University

of Santo Tomas
Faculty of Civil Law

REMEDIAL LAW


Questions Asked More Than Once
QuAMTO 2021





QuAMTO is a compilation of past bar questions with answers as suggested by the UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2021 Bar Exams.

Bar questions are arranged per topic in accordance with the bar syllabus released by the Supreme Court and
were selected based on their occurrence on past bar examinations from 1987 to 2019.



ACADEMICS COMMITTEE

MARIA FRANCES FAYE R. GUTIERREZ SECRETARY GENERAL

JOHN EDWARD F. FRONDA
ANGEL ISAH M. ROMERO
KIRBY ANNE C. RENIA EXECUTIVE COMMITTEE
KAREN ABBIE C. ASPIRAS
JOSE CHRISTIAN ANTHONY I. PINZON
NATHAN RAPHAEL D.L. AGUSTIN

MARIA FRANCES FAYE R. GUTIERREZ LAYOUT AND DESIGN

QuAMTO COMMITTEE MEMBERS

JOHN KRISTOFFER P. PEREDA
JAN MATTHEW V. TEVES




ATTY. KENNETH JAMES CARLO C. HIZON
ATTY. KING JAMES CARLO C. HIZON
ADVISERS

OUR DEEPEST APPRECIATION TO OUR

MENTORS AND INSPIRATION


JUSTICE ROBERTO A. ABAD ATTY. GREGORIO GERRY F. FERNANDEZ

JUSTICE MARIA CRISTINA J. CORNEJO (+) ATTY. BENIGNO G.PAR, JR.

JUSTICE MAGDANGAL DE LEON ATTY. CHRISTIAN G. VILLASIS

JUSTICE MYRA V. FERNANDEZ DEAN MA. SOLEDAD MAWIS

JUSTICE OSCAR C. HERRERA, JR. DEAN JOSE I. DELA RAMA, JR.

JUSTICE AMY L. JAVIER JUSTICE MARIA FILOMENA SINGH

JUSTICE ZENAIDA G. LAGUILLES JUDGE GENER M. GITO

JUSTICE GABRIEL T. ROBENIOL DEAN FERDINAND A. TAN

JUDGE PHILIP A. AGUINALDO ATTY. IAN JERNY E. DE LEON

JUDGE CESAR D. SANTAMARIA, SR. JUSTICE CARLITO B. CALPATURA

JUSTICE RONALD B. MORENO JUDGE LEILANI MARIE DACANAY-
GRIMARES
JUDGE MYRA B. QUIAMBAO
JUDGE KATLYN ANNE C. AGUILAR-BILGERA
DEAN LOPE E. FEBLE
DEAN REY OLIVER S. ALEJANDRINO
DEAN CARLOS M. ORTEGA
JUDGE JOSE LORENZO R. DELA ROSA
DEAN WILLARD B. RIANO

For being our guideposts in understanding
the intricate sphere of Remedial Law.
-Academics Committee 2021





 QuAMTO (1987-2019)
REMEDIAL LAW QuAMTO special and important reasons therefor. (Montes v.
Court of Appeals, G.R. No. 143797, 4 May 2006)

GENERAL PRINCIPLES (b) What is the Harmless Error Rule in relation
to appeals?


A: The harmless error rule in relation to appeals
CONCEPT OF REMEDIAL LAW
provides that the appellate court should not reverse

a judgment as a result of any error or defect which
Q: How shall the Rules of Court be construed? does not affect the substantial rights of the parties.
(1998 Bar) (Sec. 6, Rule 51; Bersamin, Appeal & Review in the

Philippines 362)
A: The Rules of Court should be liberally

constructed in order to promote their objective of
(c) When does a public prosecutor conduct an
securing a just, speedy and inexpensive disposition
inquest instead of a preliminary
of every action and proceeding. (Sec. 6, Rule 1)
investigation?


Q: What is the concept of Remedial Law? A: Under the Rules of Criminal Procedure, the public
Distinguish between substantive law and
prosecutor conducts an inquest instead of a
remedial law. (2006 Bar)
preliminary investigation when a person is lawfully

arrested without a warrant involving an offense
A: Remedial law is a branch of public law which
which requires a preliminary investigation (Sec. 6,
prescribes the procedural rules to be observed in
Rule 112).
litigations, whether civil, criminal, or

administrative, and in special proceedings, as well
Doctrine of non-interference or Doctrine of
as the remedies or reliefs available in each case.
judicial stability


Substantive law is that part of the law which creates,
Q: In rendering a decision, should a court take
defines and regulates rights and obligations, the
into consideration the possible effect of its
violation of which gives rise to a cause of action. On verdict upon the political stability and economic
the other hand, remedial law prescribes the method welfare of the nation? (2003 Bar)
of enforcing rights or obtaining redress for their

invasion. (cf. Bustos v. Lucero, 81 Phil. 540, 650
A: No, because a court is required to take into
[1948])
consideration only the legal issues and the evidence

admitted in the case. The political stability and
Q: How are remedial laws implemented in our
economic welfare of the nation are extraneous to
system of government? (2006 Bar)
the case. They can have persuasive influence, but

they are not the main factors that should be
A: Remedial Laws are implemented in our system of
considered in deciding a case. A decision should be
government through the judicial system, including
based on the law, rules of procedure, justice and
the prosecutorial service, our courts, and quasi-
equity. However, in exceptional cases the court may
judicial agencies.
consider the political stability and economic welfare
of the nation when these are capable of being taken
Q: Give brief answers to the following: (2017 into judicial notice of and are relevant to the case.
Bar)


JURISDICTION
(a) What is the doctrine of hierarchy of courts?


Supreme Court
A: The doctrine of hierarchy of courts provides that

where there is a concurrence of jurisdiction by Q: Distinguish Questions of Law from Questions
courts over an action or proceeding, there is an
of Fact. (2004 Bar)
ordained sequence of recourse to such courts

beginning from the lowest to the highest. A direct
A: A question of law exists when the doubt or
invocation of the Supreme Court’s original
difference arises as to what the law is on a certain
jurisdiction should be allowed only when there are
set of facts, while a question of fact is when the

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 REMEDIAL Law
doubt or difference arises as to the truth or a. In annulment of judgment under Secs. 5 and 6,
falsehood of the alleged facts. (Ramos v. Pepsi-Cola Rule 47. Should the Court of Appeals find prima
Bottling Co. of the Phil., G.R. No. L-22533, February 9, facie merit in the petition, the same shall be
1967) given due course and summons shall be served
on the respondent, after which trial will follow,
Q: Goodfeather Corporation, through its where the procedure in ordinary civil cases
President, Al Pakino, filed with the Regional shall be observed;
Trial Court (RTC) a complaint for specific b. When a motion for new trial is granted by the
performance against Robert White. Instead of Court of Appeals, the procedure in the new trial
filing an answer to the complaint, Robert White shall be the same as that granted by a Regional
filed a motion to dismiss the complaint on the Trial Court (Sec. 4, Rule 53);
ground of lack of the appropriate board c. A petition for habeas corpus shall be set for
resolution from the Board of Directors of Good hearing (Sec. 12, Rule 102);
feather Corporation to show the authority of Al d. In a petition for the writs of amparo and habeas
Pakino to represent the corporation and file the data, a hearing can be conducted;
complaint in its behalf. The RTC granted the e. Under Section 12, Rule 124 of the Rules of
motion to dismiss and, accordingly it ordered Criminal Procedure, the Court of Appeals has
the dismissal of the complaint. Al Pakino filed a the power to try cases and conduct hearings,
motion for reconsideration which the RTC receive evidence and perform any and all acts
denied. As nothing more could be done by Al necessary to resolve factual issues cases which
Pakino before the RTC, he filed an appeal before fall within its original and appellate
the Court of Appeals (CA). Robert White moved jurisdiction;
for dismissal of the appeal in the ground that the f. The Court of Appeals can grant a new trial based
same involved purely a question of law and on the ground of newly discovered evidence
should have been filed with the Supreme Court (Sec. 14, Rule 124);
(SC). However, Al Pakino claimed that the g. The Court of Appeals, under Section 6, Rule 46,
appeal involved mixed questions of fact and law whenever necessary to resolve factual issues,
because there must be a factual determination may conduct hearing thereon or delegate the
if, indeed, Al Pakino was duly authorized by reception of the evidence of such issues to any
Goodfeather Corporation to file the complaint. of its members or to an appropriate agency or
Whose position is correct? Explain. (2014 Bar) office.

A: Al Pakino is correct in claiming that the appeal Q: Does the Court of Appeals have jurisdiction to
involved mixed questions of fact and law. There is a review the Decisions in criminal and
question of law when the doubt or difference arises administrative cases of the Ombudsman? (2006
as to what the law is on a certain state of facts. On Bar)
the other hand, there is a question of fact when the
doubt or difference arises as to the truth or A: Yes, but only in administrative cases. In
falsehood of the alleged facts. (Mirant Philippines administrative and disciplinary cases, appeals from
Corporation v. Sario, G.R. No. 197598, November 21, the Ombudsman must be taken to the Court of
2012) Since the complaint was dismissed due to the Appeals under Rule 43. Conversely, the Supreme
alleged lack of appropriate board resolution from Court has exclusive appellate jurisdiction over
the Board of Directors of Goodfeather Corporation, decisions of the Ombudsman in criminal cases.
the appeal will necessarily involve a factual (Lanting v. Ombudsman, G.R. No. 141426, May 6,
determination of the authority to file the Complaint 2005; Fabian v. Desierto, G.R. No. 129742, September
for the said Corporation. Hence, the appeal before 16, 1998; Sec. 14, RA 6770)
the Court of Appeals is correct.
Court of Tax Appeals
Court of Appeals
Q: Mark filed with the Bureau of Internal
Q: Give at least three instances where the Court Revenue a complaint for refund of taxes paid,
of Appeals may act as a trial court. (2008 Bar) but it was not acted upon. So, he filed a similar
complaint with the Court of Tax Appeals raffled
A: to one of its Divisions. Mark’s complaint was
dismissed. Thus, he filed with the Court of

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 QuAMTO (1987-2019)
Appeals a petition for certiorari under Rule 65. indicted together with the public officer. Indeed, it
Does the Court of Appeals have jurisdiction over is not necessary to join all alleged co-conspirators in
Mark’s petition? (2006 Bar) an indictment for conspiracy. (People v. Go, G.R. No.
168539, March 25, 2014)
A: No. The procedure is governed by Sec. 11 of R.A.
9282, which provides that decisions of a division of Regional Trial Courts
the Court of Tax Appeals must be appealed to the
Court of Tax Appeals en banc. Further, the CTA now Q: Santa filed against Era in the RTC of Quezon
has the same rank as the Court of Appeals and is no City an action for specific performance praying
longer considered as a quasi-judicial agency. It is for the delivery of a parcel of land subject of
likewise provided in the said law that the decisions their contract of sale. Unknown to the parties,
of the CTA en banc are congnizable by the Supreme the case was inadvertently raffled to an RTC
Court under Rule 45 of the 1997 Rules of Civil designated as a special commercial court. Later,
Procedure. the RTC rendered judgment adverse to Era, who,
upon realizing that the trial court was not a
Sandiganbayan regular RTC, approaches you and wants you to
file a petition to have the judgment annulled for
Q: The Ombudsman, after conducting the lack of jurisdiction. What advice would you give
requisite preliminary investigation, found to Era? Explain your answer. (2017 Bar)
probable cause to charge Gov. Matigas in
conspiracy with Carpintero, a private A: The advice I would give to Era is that the petition
individual, for violating Section 3(e) of Republic for annulment of judgment on lack of jurisdiction
Act (RA) No. 3019 (Anti-Graft and Corrupt will not prosper. It has been held that a special
Practices Act, as amended). Before the commercial court is still a court of general
information could be filed with the jurisdiction and can hear and try a non-commercial
Sandiganbayan, Gov. Matigas was killed in an case. (Concorde Condominium Inc. v. Baculio, Gr.
ambush. This, notwithstanding, an information 203678, February 17, 2016)
was filed against Gov. Matigas and Carpintero.
Hence, the special commercial court has jurisdiction
At the Sandiganbayan, Carpintero, through to try and decide the action for specific performance
counsel, filed a Motion to Quash the information, and to render a judgment therein.
on the ground of lack of jurisdiction of the
Sandiganbayan, arguing that with the death of Q: Hades, an American citizen, through a dating
Gov. Matigas, there is no public officer charged website, got acquainted with Persephone, a
in the information. Filipina. Hades came to the Philippines and
proceeded to Baguio City where Persephone
Is the Motion to Quash legally tenable? (2014 resides. Hades and Persephone contracted
Bar) marriage, solemnized by the Metropolitan Trial
Court judge of Makati City. After the wedding,
A: No. While it is true that by reason of the death of Hades flew back to California, United States of
Gov. Matigas, there is no longer any public officer America, to wind up his business affairs. On his
with whom he can be charge for violation of R.A. return to the Philippines, Hades discovered that
3019, it does not mean, however, that the allegation Persephone had an illicit affair with Phanes.
of conspiracy between them can no longer be Immediately, Hades returned to the United
proved or that their alleged conspiracy is already States and was able to obtain a valid divorce
expunged. The only thing extinguished by the death decree from the Superior Court of the County of
of Gov. Matigas is his criminal liability. His death did San Mateo, California, a court of competent
not extinguish the crime nor did it remove the basis jurisdiction against Persephone. Hades desires
of the charge of conspiracy between him and to marry Hestia, also a Filipina, whom he met at
Carpintero. The requirement before a private Baccus Grill in Pasay City. (2015 Bar)
person may be indicted for violation of Section 3(g)
of R.A. 3019, among others, is that such private a. As Hades' lawyer, what petition should you
person must be alleged to have acted in conspiracy file in order that your client can avoid
with a public officer. The law, however, does not prosecution for bigamy if he desires to marry
require that such person must, in all instances, be Hestia?

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 REMEDIAL Law
A: As Hade’s lawyer, I would file a petition for Romeo. The Family Court issued a 30-day TPO
cancellation of entry of marriage under Rule 108 against Romeo. A day before the expiration of
with prayer for recognition of foreign divorce the TPO, Juliet filed a motion for extension.
judgment. In a case involving similar facts, the Romeo in his opposition raised, among others,
Supreme Court held that a foreign divorce decree the constitutionality of R.A. No. 9262 (The VAWC
must first be recognized before it can be given effect. Law) arguing that the law authorizing the
The Supreme Court stated that the recognition may issuance of a TPO violates the equal protection
be prayed for in the petition for cancellation of the and due process clauses of the 1987
marriage entry under Rule 108. (Corpuz v. Sto. Constitution. The Family Court judge, in
Tomas, G.R. No. 186571, August 11, 2010) granting the motion for extension of the TPO,
declined to rule on the constitutionality of R.A.
b. In what court should you file the petition? No. 9262. The Family Court judge reasoned that
Family Courts are without jurisdiction to pass
A: I would file the petition in the Regional Trial upon constitutional issues, being a special court
Court of Makati City, where the corresponding civil of limited jurisdiction and R.A. No. 8369, the law
registry is located. (Sec 1, Rule 108) creating the Family Courts, does not provide for
such jurisdiction. Is the Family Court judge
c. What is the essential requisite that you must correct when he declined to resolve the
comply with for the purpose of establishing constitutionality of R.A. No. 9262? (2015 Bar)
jurisdictional facts before the court can hear
the petition? A: No, the Family Court Judge is not correct when it
declined to resolve the constitutionality of R.A. No.
A: For the Rule 108 petition, the jurisdictional facts 9262.
are the following:
In Garcia v. Drilon, the Supreme Court held that the
a. Joinder of the local civil registrar and all Family Courts have authority and jurisdiction to
persons who have or claim any interest which resolve the constitutionality of a statute. In spite of
would be affected by petition. its designation as a family court, the RTC remains to
b. Notice of the order of hearing to the persons possess the authority as a court of general original
named in the petition. jurisdiction to pass upon all kinds of cases whether
c. Publication of the order of hearing in a civil, criminal, special proceedings, land
newspaper of general circulation in the registration, guardianship, naturalization,
province. admiralty or insolvency. This authority is embraced
in the general definition of judicial power to
Family courts determine the valid and binding laws in conformity
with the fundamental law. (G.R. No. 179267, June 25,
Q: How should the records of child and family 2013)
cases in the Family Courts or RTC designated by
the Supreme Court to handle Family Court cases Metropolitan Trial Courts / Municipal Trial
be treated and dealt with? Under what Courts
conditions may the identity of parties in child
and family cases be divulged? (2001 Bar) Q: Estrella was the registered owner of a huge
parcel of land located in a remote part of their
A: The records of child and family cases in the barrio in Benguet. However, when she visited
Family Courts or Regional Trial Courts designated the property after she took a long vacation
by the Supreme Court to handle Family Court cases abroad, she was surprised to see that her
shall be dealt with utmost confidentiality and shall childhood friend, John, had established a
not be divulged unless necessary and with authority vacation house on her property. Both Estrella
of the judge. (Sec. 12, Family Courts Act of 1997) and John were residents of the same barangay.

Q: Juliet invoking the provisions of the Rule on To recover possession, Estrella filed a complaint
Violence Against Women and their Children for ejectment with the Municipal Trial Court
filed with the RTC designated as a Family Court (MTC), alleging that she is the true owner of the
a petition for issuance of a Temporary land as evidenced by her certificate of title and
Protection Order (TPO) against her husband, tax declaration which showed the assessed

4

 QuAMTO (1987-2019)
value of the property as P21,000.00. On the irrespective of the amounts involved. (Sec. 22, B.P.
other hand, John refuted Estrella’s claim of 129)
ownership and submitted in evidence a Deed of
Absolute Sale between him and Estrella. After Quasi-judicial Courts
the filing of John’s answer, the MTC observed
that the real issue was one of ownership and not Q: What court has jurisdiction over an action for
of possession. Hence, the MTC dismissed the specific performance filed by a subdivision
complaint for lack of jurisdiction. homeowner against a subdivision developer?
Explain. (2002 Bar)
On appeal by Estrella to the Regional Trial Court
(RTC), a full-blown trial was conducted as if the A: An action for specific performance by a
case was originally filed with it. The RTC subdivision homeowner against a subdivision
reasoned that based on the assessed value of the developer is within the jurisdiction of the Housing
property, it was the court of proper jurisdiction. and Land Use Regulatory Board (HLURB). Sec. 1 of
Eventually, the RTC rendered a judgment P.D. 1344 provides that the HLURB has jurisdiction
declaring John as the owner of the land and, over cases involving specific performance of
hence, entitled to the possession thereof. contractual and statutory obligations filed by
buyers of subdivision lots and condominium units
(a) Was the MTC correct in dismissing the against the owner, developer, dealer, broker or
complaint for lack of jurisdiction? Why or salesman. (Manila Bankers Life Insurance Corp. v.
why not? Eddy Ng Kok Wei, G.R. No. 139791, December 12,
2003; Kakilala v. Faraon, G.R. No. 143233, October 18,
A: No. It is well settled that jurisdiction is 2004; Sec. 1, PD 1344)
determined by the allegations contained in the
complaint. The contention of defendant in his TOTALITY RULE
Motion to Dismiss has nothing to do in the
determination of jurisdiction. Q: Lender extended to Borrower a P100,000.00
loan covered by a promissory note. Later,
Relative thereto, the MTCs has exclusive original Borrower obtained another P100,000.00 loan
jurisdiction over cases of forcible entry and again covered by a promissory note. Still later,
unlawful detainer. (Section 33, B.P. 129) Hence, the Borrower obtained a P300,000.00 loan secured
MTC is not correct in dismissing the complaint for by a real estate mortgage on his land valued at
lack of jurisdiction. At any rate, the rules allow P500,000.00. Borrower defaulted on his
provisional determination of ownership in payments when the loans matured. Despite
ejectment cases when the defendant raises the demand to pay the P500,000.00 loan, Borrower
defense of ownership in his pleadings and the refused to pay. Lender, applying the totality
question of possession cannot be resolved without rule, filed against Borrower with the Regional
deciding the issue of ownership. (Sec. 16, Rule 70) Trial Court (RTC) of Manila, a collection suit for
Accordingly, the inferior courts have jurisdiction to P500,000.00. Did Lender correctly apply the
resolve questions of ownership whenever it is totality rule and the rule on joinder of causes of
necessary to decide the question of possession in an action? (2015 Bar)
ejectment case. (Serreno v. Spouses Gutierrez, G.R.
No. 162366, November 10, 2006) A: Yes. The Lender correctly applied the totality rule
and the rule on joinder of causes of action because
(b) Was the RTC correct in ruling that based on where the claims in all the causes of action are
the assessed value of the property, the case principally for recovery of sum of money, the
was within its original jurisdiction and, aggregate amount of the claim shall be the test of
hence, it may conduct a full-blown trial of jurisdiction. (Section 5[d], Rule 2)
the appealed case as if it was originally filed
with it? Why or why not? (2014 Bar) Here, the total amount of the claim is P500,000.00.
Hence, the Regional Trial Court (RTC) of Manila has
A: No. It is settled that forcible entry and unlawful jurisdiction over the suit. At any rate, it is
detainer cases are within the exclusive original immaterial that one of the loans is secured by a real
jurisdiction of the MTC. Moreover, all cases decided estate mortgage because the Lender opted to file a
by the MTC are generally appealable to the RTC

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 REMEDIAL Law
collection of sum of money instead of foreclosure of property. Galaxy filed a Motion to Dismiss on the
the said mortgage. ground of improper venue alleging that the
complaint should be filed with the RTC of Makati
NOTE: R.A. No. 11576 was enacted in 2021 since the complaint involves the ownership and
increasing the jurisdiction of the RTCs in all actions possession of Eduardo’s lot. Resolve the motion
and maritime jurisdiction where the demand or with reasons (2016 Bar).
claims exceeds P2,000,000.
A: The motion to dismiss should be granted. An
Q: At the trial, Borrower's lawyer, while cross- action for nullification of the mortgage documents
examining Lender, successfully elicited an and foreclosure of the mortgaged property is a real
admission from the latter that the two action that affects the title to the property; thus,
promissory notes have been paid. Thereafter, venue of the real action is before the court having
Borrower's lawyer filed a motion to dismiss the jurisdiction over the territory in which the property
case on the ground that as proven only lies. (Chua v. Total Office Products and Services, G.R.
P300,000.00 was the amount due to Lender and 152808, September 30, 2005)
which claim is within the exclusive original
jurisdiction of the Metropolitan Trial Court. He Being a real action, it shall be commenced and tried
further argued that lack of jurisdiction over the in the proper court which has jurisdiction over the
subject matter can be raised at any stage of the area where the real property involved, or a portion
proceedings. Should the court dismiss the case? thereof, is situated. (Sec. 1, Rule 4) Consequently, the
(2015 Bar) complaint should be filed in the RTC of Makati
where the mortgaged property is situated.
A: No. The court should not dismiss the case. What
determines the jurisdiction of the court is the nature ALTERNATIVE ANSWER:
of the action pleaded as appearing from the
allegations in the complaint. The averments therein The motion to dismiss should be denied. An action
and the character of the relief sought are the ones to for the annulment of a real estate mortgage is a
be consulted. (Navida v. Hon. Teodoro A. Dizon, Jr., personal action, which may be commenced and
G.R. No. 125078, May 30, 2011) tried where the defendant or any of the defendants
resides or may be found, or where the plaintiff or
Accordingly, even if the defendant is able to prove in any of the plaintiffs resides or may be found, at the
the course of the trial that a lesser amount is due, election of plaintiff (Section 2, Rule 4, Rules of Court;
the court does not lose jurisdiction and a dismissal Chua v. Total Office Products & Services, Sept. 30,
of the case is not in order. (Paadlan v. Dinglasan, G.R. 2005; Orbeta v. Orbeta, G.R. No. 166837, Nov. 27,
No. 180321, March 20, 2013) 2006). Since the plaintiff resides in Manila, the
complaint was properly filed in RTC of Manila.

CIVIL PROCEDURE CAUSE OF ACTION

Q: Distinguish Cause of Action from Action.
PERSONAL ACTIONS AND REAL ACTIONS (1997, 1999 Bar)

Q: What do you mean by a) real actions; and b) A: An action is one by which a party sues another for
personal actions? (2006 Bar) the enforcement or protection of a right, or the
prevention or redress of a wrong (Sec. 3[a], Rule 2).
A: Real actions are actions affecting title to or A cause of action is the act or omission by which a
possession of real property or an interest therein. party violates a right of another (Sec. 2, Rule 2).
All other actions are personal actions. (Sec. 1, Rule 4) Every action must be based on a cause of action.
(Sec. 1, Rule 2)
Q: Eduardo, a resident of the City of Manila, filed
before the Regional Trial Court (RTC) of Manila Q: A bought a Volvo Sedan from ABC Cars for P
a complaint for the annulment of a Deed of Real 5.0M. ABC Cars, before delivering to A, had the
Estate Mortgage he signed in favor of Galaxy car rust proofed and tinted by XYZ Detailing.
Bank (Galaxy), and the consequent foreclosure When delivered to A, the car’s upholstery was
and auction sale on his mortgaged Makati found to be damaged. ABC Cars and XYZ

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 QuAMTO (1987-2019)
Detailing both deny any liability. Who can A sue Corporation to compel them to interplead. He
and on what cause(s) of action? Explain. (2012 alleged therein that the three corporations
Bar) claimed title and right of possession over the
goods deposited in his warehouse and that he
A: A can file an action for specific performance and was uncertain which of them was entitled to the
damages against ABC Cars since the damage to the goods. After due proceedings, judgment was
Volvo sedan’s upholstery was caused before rendered by the court declaring that X
delivery of the same to A, and therefore prior to the Corporation was entitled to the goods. The
transfer of ownership to the latter (Article 1477, decision became final and executory. Raphael
NCC). Under Article 1170 of the Civil Code, those filed a complaint against X Corporation for the
who contravene the tenor of the obligation are liable payment of P100,000.00 for storage charges and
for damages. Hence, an action for specific other advances for the goods. X Corporation
performance against ABC Corporation to deliver the filed a motion to dismiss the complaint on the
agreed Volvo Sedan in the contract free form any ground of res judicata. X Corporation alleged the
damage or defects, with corresponding damages Raphael should have incorporated in his
will lie against ABC Cars. complaint for interpleader his claim for storage
fees and advances that for his failure he was
Splitting a single cause of action and its effects barred from interposing his claim. Raphael
replied that he could not have claimed storage
Q: What is the rule against splitting a cause of fees and other advances in his complaint for
action and its effect on the respective rights of interpleader because he was not yet certain as
the parties for failure to comply with the same? to who was liable therefor. Resolve the motion
(1999 Bar) with reasons. (2005 Bar)

A: The rule against splitting a cause of action and its A: The motion to dismiss should be granted.
effect are that if two or more suits are instituted on Raphael should have incorporated in his complaint
the basis of the same cause of action, the filing of one for interpleader his claim for storage fees and
or a judgment upon the merits in any one is advances, the amounts of which were obviously
available as a ground for the dismissal of the others. determinable at the time of the filing of the
(Sec. 4, Rule 2) complaint. They are part of Raphael’s cause of action
which he may not split. Hence, when the
Q: A purchased a lot from B for P1,500,000.00. warehouseman asks the court to ascertain who
He gave a down payment of P500,000.00, signed among the defendants are entitled to the goods, he
a promissory note payable thirty days after date, also has the right to ask who should pay for the
and as a security for the settlement of the storage fees and other related expenses. The filing
obligation, mortgaged the same lot to B. When of the interpleader is available as a ground for
the note fell due and A failed to pay, B dismissal for the second case. (Sec. 4, Rule 2). It is
commenced suit to recover from A the balance akin to a compulsory counterclaim which, if not set
of P1,000,000.00. After securing a favorable up, shall be barred. (Sec. 2, Rule 9; Arreza v. Diaz, G.R.
judgment on his claim, B brought another action No. 133113, August 30, 2001)
against A before the same court to foreclose the
mortgage. A now files a motion to dismiss the Q: Rolando filed a petition for declaration of the
second action on the ground of bar by prior nullity of his marriage to Carmela because of
judgment. Rule on the Motion. (1999 Bar) alleged psychological incapacity of the latter.
After trial, the court rendered judgment
A: The motion to dismiss should be granted. When dismissing the petition on the ground that
B commenced suit to collect on the promissory note, Rolando failed to prove the psychological
he waived his right to foreclose the mortgage. B split incapacity of his wife. The judgment having
his cause of action. Under Sec. 4, Rule 2, when a become final, Rolando filed another petition,
cause of action is split, the filing of one or a judgment this time on the ground that his marriage to
upon the merits in any one is available as a ground Carmela had been celebrated without a license.
for the dismissal of the others. Is the second action barred by the judgment in
the first? Why? (2002 Bar)
Q: Raphael, a warehouseman, filed a complaint
against V Corporation, X Corporation and Y

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A: No. The second action is not barred by the Instead of filing an answer, Mr. D moved to
judgment in the first because they have different dismiss the complaint on the ground of lack of
causes of action. The first is for annulment of cause of action. In opposition, Mr. C argued that
marriage on the ground of psychological incapacity lack of cause of action is not a ground for a
under Article 36 of the Family Code, while the motion to dismiss as the ground provided under
second is for the declaration of nullity of the Section 1(g), Rule 16 of the Rules of Court is
marriage in view of the absence of a basic failure to state a cause of action.
requirement, which is a marriage license (Arts. 9 &
35[3], FC). They are different causes of action Distinguish the concepts of lack of cause of
because the evidence required to prove them are action and failure to state a cause of action.
not the same. (Pagsisihan v. CA, G.R. No. L-34885, Based on this distinction, is Mr. C's opposition
January 28, 1980) tenable? Explain. (2019 Bar)

Q: Elise obtained a loan of P3 Million from A: The two (2) grounds are distinguished as follows:
Merchant Bank. Aside from executing a
promissory note in favor of Merchant Bank, she i. Failure to state a cause of action refers to the
executed a deed of real estate mortgage over her insufficiency of the allegations in the
house and lot as security for her obligation. The pleading.
loan fell due but remained unpaid; hence,
Merchant Bank filed an action against Elise to While lack of cause of action is the
foreclose the real estate mortgage. A month insufficiency of the factual basis for the
after, and while the foreclosure suit was action.
pending, Merchant Bank also filed an action to
recover the principal sum of P3 Million against ii. Dismissal for failure to state a cause of action
Elise based on the same promissory note may be raised as affirmative defense in the
previously executed by the latter. In opposing defendant’s answer.
the motion of Elise to dismiss the second action
on the ground of splitting of a single cause of While dismissal for lack of cause of action
action, Merchant Bank argued that the ground may be raised at any time after the questions
relied upon by Elise was devoid of any legal of fact have been resolved on the basis of
basis considering that the two actions were stipulations, admissions or evidence
based on separate contracts, namely, the presented by the plaintiff through a demurrer
contract of loan evidenced by the promissory to evidence under Rule 33.
note, and the deed of real estate mortgage. Is
there a splitting of a single cause of action? Based on the above distinctions, Mr. C’s opposition
Explain your answer. (2017 Bar) was tenable.

A: Yes, there is a splitting of a single cause of action. Joinder and misjoinder of causes of action
Under the Section 4, Rule 2, there is a splitting of a
single cause of action if two or more suits are Q: What is the rule on joinder of causes of action?
instituted on the basis of the same cause of action. (1999 Bar)
Here, both suits - the foreclosure and the collection
suit - arose from the same cause of action, that is, the A: The rule on joinder of causes of action is that a
non-payment by Elise of her P3 million loan from party may in one pleading assert, in the alternative
Merchant Bank. The fact that the two actions were or otherwise, as many causes of action as he may
based on separate contracts is irrelevant, what have against an opposing party, provided that the
matters is that both actions arose from the same rule on joinder of parties is complied with; the
cause of action. joinder shall not include special civil actions or
actions governed by special rules, but may include
Q: Mr. C sued Mr. D for reconveyance of property causes of action pertaining to different venues or
and damages, claiming that Mr. D, through fraud jurisdictions provided one cause of action falls
and forgery, was able to obtain the title to Lot within the jurisdiction of a Regional Trial Court and
No. 1234, which was previously registered in Mr. venue lies therein; and the aggregate amount
C's name. The complaint was filed before the claimed shall be the test of jurisdiction where the
Regional Trial Court.

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 QuAMTO (1987-2019)
claims in all the causes of action are principally for fees. State with reasons whether it was proper
the recovery of money. (Sec. 5, Rule 2) for Ricky to join his causes of action in his
complaint for partition against Perry and
Q: Give the effects of the following: Marvin in the RTC of Pasay City. (2005 Bar)

a. Splitting a single cause of action; and A: It was not proper for Ricky to join his causes of
action against Perry in his complaint for partition
A: The effect of splitting a single cause of action is against Perry and Marvin. The causes of action may
found in the rule as follows: If two or more suits are be between the same parties, Ricky and Perry, with
instituted on the basis of the same cause of action, respect to the loan but not with respect to the
the filing of one or a judgment on the merits in any partition which includes Marvin. Moreover, the
one is available as a ground for the dismissal of the supposed joinder includes a special civil action,
others. (Sec. 4, Rule 2) thus, not allowed under Sec. 5(b), Rule 2.

b. Non-joinder of a necessary party. (1998 PARTIES TO A CIVIL ACTION
Bar)
Real parties-in-interest; Indispensable parties;
A: The effect of the non-joinder of a necessary party Representatives as parties; Necessary parties;
may be stated as follows: The court may order the Indigent parties; Alternative defendants
inclusion of an omitted necessary party if
jurisdiction over his person may be obtained. The Q: In 1996, Congress passed Republic Act No.
failure to comply with the order for his inclusion 8189, otherwise known as the Voter’s
without justifiable cause is a waiver of the claim Registration Act of 1996, providing for the
against such party. The court may proceed with the computerization of elections. Pursuant thereto,
action but the judgment rendered shall be without the COMELEC approved the Voter’s Registration
prejudice to the rights of such necessary party. (Sec. and Identification System (VRIS) Project. It
9, Rule 3) issued invitations to pre-qualify and bid for the
project. After the public bidding, Fotokina was
Q: A secured two loans from B. One for declared the winning bidder with a bid of P6
P500,000.00 and the other for P1,000,000, billion and was issued a Notice of Award. But
payable on different dates. Both have fallen due. COMELEC Chairman Gener Go objected to the
Is B obliged to file only one complaint against A award on the ground that that under the
for the recovery of both loans? Explain. (1999 Appropriations Act, the budget for the
Bar) COMELEC’s modernization is only P1 billion. He
announced to the public that the VRIS project
A: No. Joinder is only permissive since the loans are has been set aside. Two Commissioners sided
separate loans which may be governed by the with Chairman Go, but the majority voted to
different terms and conditions. The two loans give uphold the contract. Meanwhile, Fotokina filed
rise to two separate causes of action and may be the with the RTC a petition for mandamus to compel
basis of two separate complaints. the COMELEC to implement the contract. The
Office of the Solicitor General (OSG),
Q: Perry is a resident of Manila, while Ricky and representing Chairman Go, opposed the petition
Marvin are residents of Batangas City. They are on the ground that mandamus does not lie to
the co-owners of a parcel of residential land enforce contractual obligations. During the
located in Pasay City with an assessed value of proceedings, the majority Commissioners filed a
P100,000.00. Perry borrowed P100,00.00 from manifestation that Chairman Go was not
Ricky which promised to pay on or before authorized by the COMELEC En Banc to oppose
December 1, 2004. However, Perry failed to pay the petition. May the OSG represent Chairman
his loan. Perry also rejected Ricky and Marvin’s Go before the RTC notwithstanding that his
proposal to partition the property. Ricky filed a position is contrary to that of the majority?
complaint against Perry and Marvin in the RTC (2002 Bar)
of Pasay City for the partition of the property. He
also incorporated in his complaint his action A: Yes, the OSG may represent the COMELEC
against Perry for the collection of the latter’s Chairman before the RTC notwithstanding that his
P100,000.00 loan, plus interests and attorney’s position is contrary to that of the majority of the

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Commission members in the COMELEC. Being an case. Hence, she is bound by the judgment as against
independent office, the hands of the OSG are not Roscoe although she is not party to the case (Sec. 19,
shackled to the cause of its client agency. In the Rule 3; Cabresos v. Tero, G.R. No. L-46843, October 18,
discharge of its task, the primordial concern of the 1988). A judgment is conclusive between the parties
OSG is to see to it that the best interest of the and their successors-in-interest by title subsequent
government is upheld. This is regardless of the fact to the case. (Sec. 47, Rule 39)
that what it perceived as the "best interest of the
government" runs counter to its client agency’s Q: Strauss filed a complaint against Wagner for
position. (COMELEC v. Quijano-Padilla, G. R. No. cancellation of title. Wagner moved to dismiss
151992, September 18, 2002) the complaint because Grieg, to whom he
mortgaged the property as duly annotated in the
Q: Half-brothers Roscoe and Salvio inherited TCT, was not impleaded as defendant.
from their father a vast tract of unregistered
land. Roscoe succeeded in gaining possession of a. Should the complaint be dismissed?
the parcel of land in its entirety and transferring
the tax declaration thereon in his name. Roscoe A: No. The complaint should not be dismissed
sold the northern half to Bono, Salvio's cousin. because the mere non-joinder of an indispensable
Upon learning of the sale, Salvio asked Roscoe to party is not a ground for the dismissal of the action
convey the southern half to him. Roscoe refused (Sec. 11, Rule 3; Republic v. Hon. Mangotara, G.R. No.
as he even sold one-third of the southern half 170375, July 7, 2010).
along the West to Carlo. Thereupon, Salvio filed
an action for the reconveyance of the southern b. If the case should proceed to trial without
half against Roscoe only. Carlo was not Grieg being impleaded as a party to the case,
impleaded. After filing his answer, Roscoe sold what is his remedy to protect his interest?
the middle third of the southern half to Nina. (2015 Bar)
Salvio did not amend the complaint to implead
Nina. After trial, the court rendered judgment A: If the case should proceed to trial without Grieg
ordering Roscoe to reconvey the entire southern being impleaded as a party, he may intervene in the
half to Salvio. The judgment became final and action (Sec. 1, Rule 19). He may also file a petition for
executory. A writ of execution having been annulment of judgment under Rule 4, should a
issued, the Sheriff required Roscoe, Carlo and judgment be already rendered.
Nina to vacate the southern half and yield
possession thereof to Salvio as the prevailing In Metrobank v. Hon. Floro Alejo, (G.R. No. 141970,
party. Carlo and Nina refused, contending that September 10, 2001) the Supreme Court held that in
they are not bound by the judgment as they are a suit to nullify an existing Torrens Certificate of
not parties to the case. Is the contention Title (TCT) in which a real estate mortgage is
tenable? Explain fully. (2008 Bar) annotated, the mortgagee is an indispensable party.
In such suit, a decision cancelling the TCT and the
A: Yes. In case of transfer of interest pending mortgage annotation is subject to a petition for
litigation, the action may be continued by or against annulment of judgment, because the non-joinder of
the original party unless the court, upon motion, a mortgagee deprived the court of jurisdiction to
directs a person to be substituted in the action or pass upon the controversy.
joined with the original party (Sec. 19, Rule 3). The
owners of property over which reconveyance is Q: Spouses Marlon and Edith have three (3)
asserted are indispensable parties and must be children ages 15, 12 and 7, who are studying at
joined in the action. Accordingly, the contention of public schools. They have a combined gross
Carlo who is such party to the action filed by Salvio, monthly income of P30,000.00 and they stay in
is tenable. He is not bound by the judgment because an apartment in Manila with a monthly rent of
he became a co-owner of the land before the case P5,000.00. The monthly minimum wage per
was filed and yet he has not been included as a party employee in Metro Manila does not exceed
thereto (Matuguina Integrated Wood Products, Inc. P13,000.00. They do not own any real property.
v. Court of Appeals, G.R. No. 98310, October 24, 1996; The spouses want to collect a loan of P25,000.00
Ma. Valentia Santana-Cruz v. Court of Appeals, G.R. from Jojo but do not have the money to pay the
No. 120176, July 20, 2001). Nina, however is a filing fees.
successor-in-interest of Roscoe and privy to the

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 QuAMTO (1987-2019)
a. Would the spouses qualify as indigent half of which fell on the front portion of Ms. A's
litigants under Section 19, Rule 141 on Legal car and permanently damaged its engine. In her
Fees? (2016 Bar) answer, Ms. B denied any personal liability for
the damage caused to Ms. A's car, averring that
A: No, the spouses would not qualify as indigent she merely acquiesced to the advice of her
litigants under Section 19, Rule 141 since their contractor, XYZ Construction Co., to have the
combined gross monthly income of P30,000.00 concrete fence demolished. Thus, damages, if
exceeds P26,000, the amount double the monthly any, should be collected from it.
minimum wage.
Thereafter, Ms. A filed a motion for judgment on
b. If the spouses do not qualify under Rule 141, the pleadings, alleging that Ms. B's statement in
what other remedy can they avail of under her answer is actually a negative pregnant. Ms. B
the rules to exempt them from paying the opposed the motion, reiterating her defense in
filing fees? (2016 bar) her answer which purportedly rendered
judgment on the pleadings improper. Ms. B also
A: The other remedy the spouses can avail of under moved for the dismissal of the case on the
the rules to exempt them from paying the filing fees ground of non-joinder of XYZ Construction Co.,
is to apply for exemption pursuant to the “indigency which she alleged is an indispensable party to
test” under Section 21, Rule 3 of the Rules of Court the case.
if they can prove that they have no money or
property sufficient and available for food, shelter Assuming that XYZ Construction Co. is an
and basic necessities for themselves and their indispensable party, is its non-joinder a ground
family. (Sps. Algura v. City of Naga, 30 October 2006) for the dismissal of the case? Explain. (2019 Bar)

Misjoinder and non-joinder of parties A: No. The non-joinder of XYZ Construction Co. as an
indispensable party is not a ground for the dismissal
Q: Hanna, a resident of Manila, filed a complaint of the case. The remedy is to implead the party
for the partition of a large tract of land located claimed to be indispensable, considering that the
in Oriental Mindoro. She impleaded her two parties may be added by order of the court, on
brothers John and Adrian as defendants but did motion of the party or on its own initiative at any
not implead Leica and Agatha, her two sisters stage of the action. In Plasabas v. CA (G.R. No.
who were permanent residents of Australia. 166519, March. 31, 2009), it was held that the non-
Arguing that there could be no final joinder of indispensable parties is not a ground for
determination of the case without impleading the dismissal of an action.
all indispensable parties, John and Adrian
moved to dismiss the complaint. Class suit

Does the trial court have a reason to deny the Q: Distinguish a derivative suit from a class suit.
motion? Explain your answer. (2017 Bar) (2005 Bar)

A: Yes. The trial court has reason to deny the A: A derivative suit is a suit in equity that is filed by
motion. Section 11, Rule 3 Rules of Court states that a minority shareholder in behalf of a corporation to
neither misjoinder nor non-joinder of parties is a redress wrongs committed against it, for which the
ground for the dismissal of an action. The petitioner directors refuse to sue, the real party in interest
can still amend his initiatory pleading in order to being the corporation itself (Lim v. Lim-Yu, G.R. No.
implead Leica and Agatha, for under the same rule, 138343, February 19, 2001). A class suit is filed in
such amendment to implead an indispensable party behalf of many persons so numerous that it is
may be made on motion of any party or on the trial impracticable to join all as parties. (Sec. 12, Rule 3)
court’s own initiative at any stage of the action and
on such terms as are just. (Ablaza v. Republic; G.R. Effect of death of party-litigant
No. 158298, August 11, 2010)
Q: What is the effect of the death of a party upon
Q: Ms. A filed a complaint for damages against a pending action? (1999 Bar)
Ms. B, alleging that Ms. B negligently caused the
demolition of her house's concrete fence, the top

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A: When the claim in a pending action is purely against the executor or administrator or successor
personal, the death of either of the parties in interest of the deceased in accordance with Sec.
extinguishes the claim and the action is dismissed. 7(b), Rule 39.
When the claim is not purely personal and is not
thereby extinguished, the party should be Q: A filed a complaint for the recovery of
substituted by his heirs or his executor or ownership of land against B who was
administrator (Sec. 16, Rule 3). If the action is for represented by her counsel X. In the course of
recovery of money arising from contract, express or the trial, B dies. However, X failed to notify the
implied, and the defendant dies before entry of final court of B’s death. The court proceeded to hear
judgment in the court in which the action was the case and rendered judgment against B. After
pending at the time of such death, it shall not be the judgment became final, a writ of execution
dismissed but shall instead be allowed to continue was issued against C, who being B’s sole heir,
until entry of final judgment. A favorable judgment acquired the property. If you were the counsel of
obtained by the plaintiff shall be enforced in the C, what course of action would you take? (1998
manner provided in the rules for prosecuting claims Bar)
against the estate of a deceased person. (Sec. 20,
Rule 3) A: As counsel of C, I would move to set aside the writ
of execution and the judgment for lack of
Q: PJ engaged the services of Atty. ST to jurisdiction and lack of due process in the same
represent him in a civil case filed by OP against court because the judgment is void. If X had notified
him which was docketed as Civil Case No. 123. A the court of B’s death, the court would have ordered
retainership agreement was executed between the substitution of the deceased by C, the sole heir
PJ and Atty. ST whereby PJ promised to pay Atty. of B (Sec. 16, Rule 3). The court acquired no
ST a retainer sum of P24,000.00 a year and to jurisdiction over C upon whom trial and the
transfer the ownership of a parcel of land to judgment are not binding (Ferreria v. Ibarra Vda. De
Atty. ST after presentation of PJ’s evidence. PJ Gonzales, G.R. No. L-11567, July 17, 1958; Vda. De la
did not comply with his undertaking. Atty. ST Cruz v. Court of Appeals, G.R. No. L-41107, February
filed a case against PJ which was docketed as 28, 1979; Lawas v. Court of Appeals, G.R. No. L-45809
Civil Case No. 456. During the trial of Civil Case December 12, 1986). I could also file an action to
No. 456, PJ died. annul the judgment for lack of jurisdiction because
C, as the successor of B, was deprived of due process
(a) Is the death of PJ a valid ground to dismiss and should have been heard before judgment. (Rule
the money claim of Atty. ST in Civil Case No. 47)
456? Explain.
Q: Prince Chong entered into a lease contract
A: No. Under Sec. 20, Rule 3, when the action is for with King Kong over a commercial building
recovery of money arising from contract, express or where the former conducted his hardware
implied, and the defendant dies before entry of final business. The lease contract stipulated, among
judgment in the court in which the action is pending others, a monthly rental of P50,000.00 for a four
at the time of such death, it shall not be dismissed (4) – year period commencing on January 1,
but shall instead be allowed to continue until entry 2010. On January 1, 2013, Prince Chong died.
of final judgment. A favorable judgment obtained by Kin II Chong was appointed administrator of the
the plaintiff shall be enforced in the manner estate of Prince Chong, but the former failed to
especially provided in the Rules for prosecuting pay the rentals for the months of January to June
claims against the estate of the deceased person. 2013 despite King Kong’s written demands.
Thus, on July 1, 2013, King Kong filed with the
(b) Will your answer be the same with respect Regional Trial Court (RTC) an action for
to the real property being claimed by Atty. rescission of contract with damages and
ST in Civil Case No. 456? Explain. (1999, payment of accrued rentals as of June 30, 2013.
2000, 2009 Bar)
a. Can Kin II Chong move to dismiss the
A: Yes. An action to recover real property in any complaint on the ground that the RTC is
event survives the death of the defendant (Sec. 1, without jurisdiction since the amount
Rule 87). However, a favorable judgment may be claimed is only P300,000.00?
enforced in accordance with Sec. 7(b), Rule 39

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 QuAMTO (1987-2019)
A: No. Kin II Chong cannot move to dismiss the a contingent claim in the probate proceedings
Complaint. An action for rescission of contract with pursuant to Rule 86 of the Rules of Court.
damages and payment of accrued rentals is
considered incapable of pecuniary estimation and VENUE
therefore cognizable by the Regional Trial Court.
(Ceferina De Ungria v. Court of Appeals, G.R. No. Q: Distinguish Jurisdiction from Venue. (2006
165777, July 25, 2011) Bar)

b. If the rentals accrued during the lifetime of A: Jurisdiction is the power of the Court to decide a
Prince Chong, and King Kong also filed the case on the merits, while venue refers to the place
complaint for sum of money during that where the suit may be filed. In criminal actions,
time, will the action be dismissible upon however, venue is jurisdictional. Jurisdiction may
Prince Chong’s death during the pendency of not be conferred upon a court by consent through
the case? (2014 Bar) waiver, but venue may be waived except in criminal
cases.
A: No. The action will not be dismissible upon Prince
Chong’s death during the pendency of the case. Q: Angela, a resident of Quezon City, sued
When the action is for recovery of money arising Antonio, a resident of Makati City before the RTC
from contract, and defendant dies before entry of of Quezon City for the reconveyance of two
final judgment in the court in which the action was parcels of land situated in Tarlac and Nueva
pending at the time of such death, it shall not be Ecija, respectively. May her action prosper?
dismissed but shall instead be allowed to continue Assuming that the action was for foreclosure on
until entry of final judgment. A favorable judgment the mortgage of the same parcels of land, what is
obtained by the plaintiff shall be enforced under the proper venue for the action? (2008 Bar)
Rule 86 (Sec. 20, Rule 3). Relative thereto, since the
complaint for sum of money filed by King Kong A: Yes. The action may prosper because improper
survives the death of Prince Chong, the case shall venue can be waived; and there appears to be no
not be dismissed and the Court shall merely order objection from the defendant. An action for
the substitution of the deceased defendant. (Sarsaba reconveyance of parcels of land partakes of an
v. Vda. De Te, G.R. No. 175910, July 30, 2009) action to recover title to or possession of such land;
hence a real action which should be filed in the place
Q: Chika sued Gringo, a Venezuelan, for a sum of where the parcels of land are situated in Tarlac and
money. The Metropolitan Trial Court of Manila Nueva Ecija.
(MeTC) rendered a decision ordering Gringo to
pay Chika P50,000.00 plus legal interest. During If the action was for foreclosure of mortgage, the
its pendency of the appeal before the RTC, action may be filed either in Tarlac or Nueva Ecija
Gringo died of acute hemorrhagic pancreatitis. where any of the parcels of land is situated. Only one
Atty. Perfecto, counsel of Gringo, filed a action for foreclosure need be filed as only one
manifestation attaching the death certificate of contract had been instituted. (BPI. v. Green, G.R. No.
Gringo and informing the RTC that he cannot 35125, December 12, 1932)
substitute the heirs since Gringo did not disclose
any information on his family. As counsel for Q: A law was passed declaring Mt. Karbungko as
Chika, what remedy can you recommend to your a protected area since it was a major watershed.
client so the case can move forward and she can The protected area covered a portion located in
eventually recover her money? Explain. (2016 Municipality A of the Province I and a portion
Bar) located in the City of Z of Province II. Maingat is
the leader of Samahan ng Tagapag-ingat ng
A: The remedy I can recommend to my client Chika Karbungko (STK), a people's organization. He
is to file a petition for settlement of the estate of learned that a portion of the mountain located in
Gringo and for the appointment of an administrator. the City of Z of Province II was extremely
Chika as a creditor is an interested person who can damaged when it was bulldozed and leveled to
file the petition for settlement of Gringo’s estate. the ground, and several trees and plants were
Once the administrator is appointed, I will move cut down and burned by workers of World
that the administrator be substituted as the Pleasure Resorts, Inc. (WPRI) for the
defendant. I will also file my claim against Gringo as construction of a hotel and golf course. Upon

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inquiry with the project site engineer if they had Q: XV Water Builders, a construction company
a permit for the project, Maingat was shown a based in Makati City, entered into a construction
copy of the Environmental Compliance agreement with Super Powers, Inc., an energy
Certificate (ECC) issued by the DENR-EMB, company based in Manila, for the construction of
Regional Director (RD- DENR-EMB). a mini hydro electric plant. Water Builders
Immediately, Maingat and STK filed a petition failed to complete the project within the
for the issuance of a writ of continuing stipulated duration. Super Powers cancelled the
mandamus against RD-DENR-EMB and WPRI contract. Water Builders filed a request for
with the RTC of Province I, a designated arbitration with the Construction Industry
environmental court, as the RD-DENR-EMB Arbitration Commission (CIAC). After due
negligently issued the ECC to WPRI. proceedings, CIAC rendered judgment in favor
of Super Powers, Inc. ordering Water Builders to
On scrutiny of the petition, the court determined pay the former P 10 million, the full amount of
that the area where the alleged actionable the down payment paid, and P2 million by way
neglect or omission subject of the petition took of liquidated damages. Dissatisfied with the
place in the City of Z of Province II, and therefore CIAC's judgment, Water Builders, pursuant to
cognizable by the RTC of Province II. Thus, the the Special Rules of Court on Alternative Dispute
court dismissed outright the petition for lack of Resolution (ADR Rules) filed with the RTC of
jurisdiction. Pasay City a petition to vacate the arbitral
award. Super Powers, Inc., in its opposition,
(a) Was the court correct in motu proprio moved to dismiss the petition, invoking the ADR
dismissing the petition? Rules, on the ground of improper venue as
neither of the parties were doing business in
A: No. The court was not correct in motu propio Pasay City. Should Water Builders' petition be
dismissing the petition. While it appears that the dismissed? (2015 Bar)
alleged actionable neglect or omission took place in
the City of Z of Province II and, therefore cognizable A: Yes. Water Builders’ petition should be
by the RTC of Province II, nonetheless, venue is not dismissed. Under Rule 11.3 of the Special ADR
jurisdictional, and it can be waived in a special civil Rules, the petition for vacation of a domestic arbitral
action for continuing mandamus. (Dolot v. Hon. Paje, award may be filed with the Regional Trial Court
G.R. No. 199199, August 27, 2013) having jurisdiction over the place in which one of
the parties is doing business, where any of the
Besides, under Section 1, Rule 9 of the Rules of parties reside or where arbitration proceedings
Court, defenses and objections not pleaded in the were conducted. Here neither of the parties were
answer or in the motion to dismiss are deemed doing business in Pasay City nor was there a
waived. Hence, the court cannot motu propio showing that arbitration proceedings were
dismiss the case on the ground of improper venue. conducted in Pasay City.

(b) Assuming that the court did not dismiss the Effects of Stipulations on Venue
petition, the RD-DENR-EMB in his Comment
moved to dismiss the petition on the ground Q: X, a resident of Angeles City, borrowed
that petitioners failed to appeal the issuance P300,000.00 from A, a resident of Pasay City. In
of the ECC and to exhaust administrative the loan agreement, the parties stipulate that
remedies provided in the DENR Rules and “the parties agree to sue and be sued in the City
Regulations. Should the court dismiss the of Manila.”
petition? (2015 Bar)
a. In case of non-payment of the loan, can A file
A: Yes, the court should dismiss the petition his complaint to collect the loan from X in
because the proper procedure to question defect in Angeles City?
an ECC is to follow the DENR administrative appeal
process in accordance with the doctrine of A: Yes, because the stipulation in the loan
exhaustion of administrative remedies. (Dolot v. agreement that “the parties agree to sue and be sued
Hon. Paje, G.R. No. 199199, August 27, 2013; Paje v. in the City of Manila” does not make Manila the
Casiño, G.R. No. 207257, February 3, 2015) “exclusive venue thereof” (Sec. 4, Rule 4). Hence, A

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 QuAMTO (1987-2019)
can file his complaint in Angels City where he exclusive venue stipulation contained therein and
resides. (Sec. 2, Rule 4) should be filed in accordance with the general rules
on venue. The Supreme Court ruled that it would be
b. Suppose the parties did not stipulate in the inherently inconsistent for a complaint of this
loan agreement as to the venue, where can A nature to recognize the exclusive venue stipulation
file his complaint against X? when it, in fact, precisely assails the validity of the
instrument in which such stipulation is contained.
A: If the parties did not stipulate on the venue, A can
file his complaint either in Angeles City where he In this case, Evan’s complaint directly assails the
resides or in Pasay City where X resides. (Sec. 2, Rule validity of the promissory note and deed of
4) mortgage, which contains said venue stipulation;
hence, said venue stipulation is not binding on him.
c. Suppose the parties stipulated in their loan Evan correctly filed his complaint with the Manila
agreement that “venue for all suits arising RTC pursuant to Rule of the Rules of Court.
from this contract shall be the courts in
Quezon City,” can A file his complaint against PLEADINGS
X in Pasay City? (1997 Bar)
Q: What is counterclaim? Distinguish a
A: No. If the parties stipulated that the venue “shall counterclaim from a crossclaim. (1999 Bar)
be in the courts in Quezon City,” A cannot file his
complaint in Pasay City because the use of the word A: A counterclaim is distinguished from a cross-
“shall” makes Quezon City the exclusive venue claim in that a cross-claim is any claim by one party
thereof. (Hoechst Philippines v. Torres, G.R. No. L- against a co-party arising out of the transaction or
44351 May 18, 1978) occurrence that is the subject matter either of the
original action or of a counterclaim therein. A
Q: After working for 25 years in the Middle East, counterclaim is against an opposing party while a
Evan returned to the Philippines to retire in cross-claim is against a co-party. (Sec. 8, Rule 6)
Manila, the place of his birth and childhood. Ten
years before his retirement, he bought for cash Q: Antique dealer Mercedes borrowed
in his name a house and lot in Malate, Manila. Six P1,000,000 from antique collector Benjamin.
months after his return, he learned that his Mercedes issued a postdated check in the same
house and lot were the subject of foreclosure amount to Benjamin to cover the debt. On the
proceedings commenced by ABC Bank on the due date of the check, Benjamin deposited it but
basis of a promissory note and a deed of real it was dishonored. As despite demands,
estate mortgage he had allegedly executed in Mercedes failed to make good the check,
favor of ABC Bank five years earlier. Knowing Benjamin filed in January 2009 a complaint for
that he was not in the country at the time the collection of sum of money before the RTC of
promissory note and deed of mortgage were Davao. Mercedes filed in February 2009 her
supposedly executed, Evan forthwith initiated a Answer with Counterclaim, alleging that before
complaint in the RTC of Manila praying that the the filing of the case, she and Benjamin had
subject documents be declared null and void. entered into a dacion en pago agreement in
ABC Bank filed a motion to dismiss Evan's which her vintage P1,000,000 Rolex watch
complaint on the ground of improper venue on which was taken by Benjamin for sale on
the basis of a stipulation in both documents commission was applied to settle her
designating Quezon City as the exclusive venue indebtedness; and that she incurred expenses in
in the event of litigation between the parties defending what she termed a "frivolous
arising out of the loan and mortgage. Should the lawsuit." She accordingly prayed for P50,000
motion to dismiss of ABC Bank be granted? damages.
Explain your answer. (2017 Bar)
a. Benjamin soon after moved for the dismissal
A: No. ABC Bank’s motion to dismiss should be of the case. The trial court accordingly
denied. In Briones v. Court of Appeals (G.R. No. dismissed the complaint. And it also
204444, January 14, 2015), the Supreme Court ruled dismissed the Counterclaim. Mercedes
that a complaint directly assailing the validity of the moved for a reconsideration of the dismissal
written instrument itself should not be bound by the

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of the Counterclaim. Pass upon Mercedes’ promptly filed his answer, and included a
motion. counterclaim for P250,000.00 arising from the
allegedly baseless and malicious claims of
A: Mercedes’ Motion for Reconsideration is Abraham that compelled him to litigate and to
impressed with merit: the trial court should not engage the services of counsel, and thus caused
have dismissed her counter-claim despite the him to suffer mental anguish. Noting that the
dismissal of the Complaint. Since it was the plaintiff amount of the counterclaim was below the
(Benjamin) who moved for the dismissal of his exclusive original jurisdiction of the RTC,
Complaint, and at a time when the defendant Abraham filed a motion to dismiss vis-a-vis the
(Mercedes) had already filed her Answer thereto counterclaim on that ground. Should the
and with counterclaim, the dismissal of the counterclaim of Salvador be dismissed? Explain
Complaint should not carry with it the dismissal of your answer. (2017 Bar)
the counterclaim without the conformity of the
defendant-counterclaimant. Under Rule 15, Section A: No, the counterclaim of Salvador should not be
2, if a counterclaim has been pleaded by a defendant dismissed on the ground of lack of jurisdiction. In an
prior to the service upon him of the plaintiff’s original action before the RTC, the RTC has
motion for dismissal, the dismissal shall be limited jurisdiction over a compulsory counterclaim
to the complaint. The dismissal shall be without regardless of its amount (Sec. 7, Rule 6). Here
prejudice to the right of the defendant to prosecute Salvador’s counterclaim for damages arising from
his counterclaim. the alleged malicious and baseless claims of
Abraham is a compulsory counterclaim as it arises
b. Suppose there was no Counterclaim and from Abraham’s complaint. Hence the RTC has
Benjamin’s complaint was not dismissed, jurisdiction over Salvador’s counterclaim even if it
and judgment was rendered against did not exceed the jurisdictional amount of
Mercedes for P1,000,000. The judgment P400,000.
became final and executory and a writ of
execution was correspondingly issued. NOTE: R.A. No. 11576 was enacted in 2021
Since Mercedes did not have cash to settle increasing the jurisdiction of the RTCs in all actions
the judgment debt, she offered her Toyota and maritime jurisdiction where the demand or
Camry model 2008 valued at P1.2 million. claims exceeds P2,000,000.
The Sheriff, however, on request of
Benjamin, seized Mercedes’ 17th century Q: PX filed a suit for damages against DY. In his
ivory image of the La Sagrada Familia answer, DY incorporated a counterclaim for
estimated to be worth over P1,000,000. Was damages against PX and AC, counsel for plaintiff
the Sheriff’s action in order? (2010 Bar) in said suit, alleging in said counterclaim, inter
alia, that AC, as such counsel, maliciously
A: No, the Sheriff’s action was not in order. He induced PX to bring the suit against DY despite
should not have listened to Benjamin, the judgment AC’s knowledge of its utter lack of factual and
obligee/creditor, in levying on the properties of legal basis. In due time, AC filed a motion to
Mercedes, the judgment obligor/debtor. The option dismiss the counterclaim as against him on the
to immediately choose which property or part ground that he is not a proper party to the case,
thereof may be levied upon, sufficient to satisfy the he being merely plaintiff’s counsel. Is the
judgment, is vested by law (Rule 39, Sec. 9[b]) upon counterclaim of DY compulsory or not? Should
the judgment obligor, Mercedes, not upon the AC’s motion to dismiss the counterclaim be
judgment obligee, Benjamin, in this case. Only if the granted or not? Reason. (2004 Bar)
judgment obligor does not exercise the option is the
Sheriff authorized to levy on personal properties if A: Yes. The counterclaim of DY is compulsory
any, and then on the real properties if the personal because it is one which arises out of or is connected
properties are insufficient to answer for the with the subject matter of the opposing party’s
judgment. claim and does not require for its adjudication the
presence of third parties of whom the court cannot
Q: Abraham filed a complaint for damages in the acquire jurisdiction (Sec. 7, Rule 6). The motion to
amount of P750,000.00 against Salvador in the dismiss of plaintiff’s counsel should not be granted
RTC in Quezon City for the latter's alleged because bringing in plaintiff’s counsel as a
breach of their contract of services. Salvador defendant in the counterclaim is authorized by the

16


 QuAMTO (1987-2019)
Rules. Where it is required for the grant of complete controverted (Sec. 10, Rule 6). However, since the
relief in the determination of the counterclaim, the contract of lease attached to the answer is the basis
court shall order the defendant’s counsel to be of the defense, by not filing a reply denying under
brought in since jurisdiction over him can be oath the genuineness and due execution of said
obtained (Sec. 12, Rule 6; Aurelio v. Court of Appeals, contract, the plaintiff is deemed to have admitted
G.R. No. 90742, May 6, 1991). Here, the counterclaim the genuineness and due execution thereof. (Secs. 7
was against both the plaintiff and his lawyer who and 8, Rule 8; Toribio v. Bidin,G.R. No. L-57821
allegedly maliciously induced the plaintiff to file the January 17, 1985)
suit.
Q: Mr. H filed a complaint against Mr. I to recover
Q: B and C borrowed P400,000.00 from A. The the amount of ₱500,000.00 based on their
promissory note was executed by B and C in a contract of services. In his answer, Mr. I
joint and several capacity. B, who received the admitted that he has yet to pay Mr. H for his
money from A, gave C P200,000.00. C, in turn, services based on their contract but
loaned P100,000.00 out of the P200,000.00 he nevertheless, interposed a counterclaim
received to D. alleging that Mr. H still owed him rental
arrearages for the lease of his apartment also
a. In an action filed by A against B and C with amounting to ₱500,000.00.
the RTC of Quezon City, can B file a cross-
claim against C for the amount of It has come to Mr. H's attention that Mr. I did not
P200,000.00? pay any filing fees when he filed his answer. As
such, Mr. H moved to dismiss the counterclaim.
A: Yes. B can file a cross-claim against C for the In response to Mr. H's motion, Mr. I averred that
amount of P200,000.00 given to C. A cross-claim is a the non-payment of filing fees was purely based
claim filed by one party against a co-party arising on inadvertence and that the said filing fees had
out of the transaction or occurrence that is the already been paid as of date, as evinced by the
subject matter of the original action or a official receipt issued by the clerk of court
counterclaim therein and may include a claim that therefor.
the party against whom it is asserted is or may be
liable to the cross- claimant for all or part of a claim a. What is the nature of Mr. l's counterclaim? Is
asserted against the cross-claimant (Sec. 8, Rule 6). the payment of filing fees required for such
counterclaim to prosper? Explain.
b. Can C file a third-party complaint against D
for the amount of P100,000.00? (1997 Bar) A: Mr. I’s counterclaim is permissive. It is
permissive because the rental arrearages for the
A: No. C cannot file a third-party complaint against lease of his apartment amounting to P500,000 does
D because the loan of P100,000 has no connection not arise out of or is not necessarily connected with
with the opponent’s claim. C could have loaned the the subject matter of the opposing party’s claim
money out of other funds in his possession. which is the recovery in the amount of P500,000
based on their contract of service. Thus, permissive
Q: X files a complaint in the RTC for the recovery counterclaim of Mr. I is essentially an independent
of a sum of money with damages against Y. Y files claim that may be filed separately in another case.
his answer denying liability under the contract (Sy-Vargas v. Estate of Ogsos, Sr., G.R. No. 221062,
of sale and praying for the dismissal of the October 5, 2016)
complaint on the ground of lack of cause of
action because the contract of sale was b. Should Mr. I's counterclaim be dismissed?
superseded by a contract of lease executed and Explain. (2019 Bar)
signed by X and Y two weeks after the contract
of sale was executed. The contract of lease was A: No. While the rule in permissive counterclaims is
attached to the answer. X does not file a reply. that for the trial court to acquire jurisdiction, the
What is the effect of non- filing of a reply? counterclaimant is bound to pay the prescribed
Explain. (2000 Bar) docket fees. In this case, Mr. I had already paid the
docket fees as there was already an official receipt.
A: A reply is generally optional. If it is not filed, the The counterclaim should not be dismissed for non-
new matters alleged in the answer are deemed payment of docket fees. Instead, the docket fees

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required shall constitute judgment lien on the non-forum shopping. To avoid further delays in
monetary awards in respondent’s favor. In the filing of the complaint, Atty. XY signed the
Intercontinental Broadcasting Corporation v. certification and immediately filed the
Legasto (G.R. No. 169108, April 18, 2006) citing Sec. complaint in court. Is XY justified in signing the
2, Rule 141 of the Rules of Court, the Court held that certification? Why? (2000 Bar)
in instances where a litigant’s non-payment of
docket fees was made in good faith and without any A: No, counsel cannot sign the anti-forum shopping
intention of defrauding the government, the clerk of certification because it must be executed by the
court of the court a quo should be ordered to assess “plaintiff or principal party” himself (Sec. 5, Rule 7),
the amount of deficient docket fees due from such since the rule requires personal knowledge by the
litigant, which will constitute a judgment lien on the party executing the certification, unless counsel
amount awarded on him, and enforce such lien. gives a good reason why he is not able to secure his
client’s signatures and shows that his clients will be
Verification and Certification Against Forum deprived of substantial justice (Ortiz v. Court of
Shopping Appeals,G.R. No. 127393, December 4, 1998) or
unless he is authorized to sign it by his clients
Q: What is Forum Shopping? (2006 Bar) through a special power of attorney.

A: Forum-shopping is the act of filing multiple suits Q: Mr. Humpty filed with the Regional Trial
involving the same parties for the same cause of Court (RTC) a complaint against Ms. Dumpty for
action, either simultaneously or successively, for the damages. The RTC, after due proceedings,
purpose of obtaining a favorable judgment. rendered a decision granting the complaint and
(Executive Secretary v. Gordon, G.R. No. 134171, ordering Ms. Dumpty to pay damages to Mr.
November 18, 1998) Humpty. Ms. Dumpty timely filed an appeal
before the Court of Appeals (CA), questioning
Q: Honey filed with the Regional Trial Court the RTC decision. Meanwhile, the RTC granted
Taal, Batangas, a complaint for specific Mr. Humpty’s motion for execution pending
performance against Bernie. For lack of appeal. Upon receipt of the RTC’s order granting
certification against forum shopping, the judge execution pending appeal, Ms. Dumpty filed
dismissed the complaint. Honey’s lawyer filed a with the CA another case, this time a special civil
motion for reconsideration, attaching thereto action for certiorari assailing said RTC order. Is
an amended complaint with the certification there a violation of the rule against forum
against forum shopping. If you were the judge, shopping considering that two (2) actions
how will you resolve the motion? (2006 Bar) emanating from the same case with the RTC
were filed by Ms. Dumpty with the CA? Explain.
A: If I were the judge, the motion should be denied (2014 Bar)
after hearing because, as expressly provided in the
Rules, failure to comply with the requirement of A: There is no violation of the rule against forum
forum shopping is not curable by mere amendment shopping. In Philippines Nails and Wires Corporation
of the complaint or other initiatory pleading, but v. Malayan Insurance Company, Inc. (G.R. No. 143933,
shall be cause for dismissal of the case, without February 14, 2003), the Supreme Court held that one
prejudice, unless otherwise provided (Sec. 5, Rule 7). party may validly question a decision in a regular
However, the trial court in the exercise of its sound appeal and at the same time assail the execution
discretion, may choose to be liberal and consider pending appeal via certiorari without violating the
the amendment as substantial compliance. (Great rule against forum shopping. This is because the
Southern Maritime Services Corp. v. Acuna, G.R. No. merits of the case will not be addressed in the
140189, February 28, 2005; Chan v. RTC of Petition dealing with the execution and vice versa.
Zamboanga del Norte, G.R. 149253, April 15, 2004; Uy Since Ms. Dumpty merely filed a special civil action
v. Land Bank, G.R. 136100, July 24, 2000) for certiorari, the same will not constitute a
violation of the rules on forum shopping because the
Q: As counsel for A, B, C and D, Atty. XY prepared resolution or a favorable judgment thereon will not
a complaint for recovery of possession of a amount to res judicata in the subsequent
parcel of land against Z. Before filing the proceedings between the same parties (Benedicto v.
complaint, Atty. XY discovered that his clients Lacson, G.R. No. 141508, May 5, 2010).
were not available to sign the certification of

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 QuAMTO (1987-2019)
Q: Tailors Toto, Nelson and Yenyen filed a August 22, 2008). Evidently, since there is a
special civil action for certiorari under Rule 65 commonality of interest among tailors Toto, Nelson
from an adverse decision of the National Labor and Yenyen, there is substantial compliance with
Relations Commission (NLRC) on the complaint the ruels on verification and certification against
for illegal dismissal against Empire Textile forum shopping, when Toto signed the verification
Corporation. They were terminated on the and certification, and Atty. Arman signed the same
ground that they failed to meet the prescribed for Nelson.
production quota at least four (4) times. The
NLRC decision was assailed in a special civil Allegations in a pleading
action under Rule 65 before the Court of Appeals
(CA). In the verification and certification against Q: In his complaint for foreclosure of mortgage
forum shopping, only Toto signed the to which was duly attached a copy of the
verification and certification, while Atty. Arman mortgage deed plaintiff PP alleged inter alia as
signed for Nelson. Empire filed a motion to follows: (1) that defendant DD duly executed the
dismiss on the ground of defective verification mortgage deed, copy of which is Annex “A” of the
and certification. Decide with reasons. (2016 complaint and made an integral part thereof;
Bar) and (2) that to prosecute his complaint, plaintiff
contracted a lawyer, CC, for a fee of P50,000. In
A: The motion to dismiss should be granted. The his answer, the defendant alleged, inter alia, that
verification and certification against non-forum he had no knowledge of the mortgage deed and
shopping were not signed by all petitioners. There he also denied any liability for plaintiffs
was no showing that Toto nor Atty. Arman were contracting with a lawyer for a fee. Does
duly authorized by the other petitioners through a defendant’s answer as to plaintiff’s allegation
special power of attorney to sign on their behalf; no. 1 as well as no. 2 sufficiently raise an issue of
hence, the motion to dismiss should be granted. fact? Reason briefly. (2004 Bar)

ALTERNATIVE ANSWER: A: As to plaintiffs allegation no. 1, defendant does
not sufficiently raise an issue of fact, because he
The motion to dismiss should be denied, because cannot allege lack of knowledge of the mortgage
there is substantial compliance of the requirements deed since he should have personal knowledge as to
of the rules. Verification is not a jurisdictional but whether he signed it or not and because he did not
merely a formal requirement which the court may deny under oath the genuineness and due execution
motu proprio direct a party to comply with or of the mortgage deed, which is an actionable
correct, as the case may be. On the other hand, document. As to plaintiff’s allegation no. 2,
regarding the certificate of non-forum shopping, the defendant did not properly deny liability as to
general rule is that all the petitioners or plaintiffs in plaintiffs contracting with a lawyer for a fee. He did
a case should sign it. not even deny for lack of knowledge. (Sec. 10, Rule
8)
However, the Supreme Court has time and again
stressed that the rules on forum shopping, which Q: On the basis of an alleged promissory note
were designed to promote the orderly executed by Harold in favor of Ramon, the latter
administration of justice, do not interdict filed a complaint for P950,000.00 against the
substantial compliance with its provisions under former in the RTC of Davao City. In an unverified
justifiable circumstances. As ruled by the Court, the answer, Harold specifically denied the
signature of any of the principal petitioners or genuineness of the promissory note. During the
principal parties, would constitute a substantial trial, Harold sought to offer the testimonies of
compliance with the rule on verification and the following: (1) the testimony of an NBI
certification of non-forum shopping. And should handwriting expert to prove the forgery of his
there exist a commonality of interest among the signature; and (2) the testimony of a credible
parties, or where the parties filed the case as a witness to prove that if ever Harold had
collective, raising only one common cause of action executed the note in favor of Ramon, the same
or presenting a common defense, then the signature was not supported by a consideration. May
of one of the petitioners or complainants, acting as Ramon validly object to the proposed
representative, is sufficient compliance (Irene testimonies? Give a brief explanation of your
Marcos-Araneta v. Court of Appeals, G.R. No. 154096, answer. (2017 Bar)

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A: Ramon may validly object to the proposed pre-marked during pre-trial, identified but not
testimony of an NBI handwriting expert to prove authenticated during trial, and formally offered.
forgery. Under Sec. 8, Rule 8, the genuineness and
due execution of an actionable document is deemed Can the RTC of Manila consider the PN and the
admitted by the adverse party if he fails to Surety Agreement in rendering its decision?
specifically deny such genuineness and due (2018 Bar)
execution.
A: Yes. The RTC of Manila may consider the PN and
Here, the genuineness and due execution of the the surety agreement in rendering its decision.
promissory note, which is an actionable document,
was impliedly admitted by Harold when he failed to The PN and the surety agreement are actionable
deny the same under oath, his answer being documents, defined under Rule 8, Section 7 of the
unverified. Hence Harold is precluded from setting Rules of Court as a written instrument upon which
up the defense of forgery and thus Ramon may an action is founded upon. Rule 8, Section 8,
object to the proposed testimony seeking to prove moreover, provides that when an action is founded
forgery. upon a written instrument, copied in or attached to
the corresponding pleading, the genuineness and
However, Ramon may not validly object to the due execution of the instrument shall be deemed
proposed testimony showing that the note was not admitted unless the adverse party, under oath
supported by a consideration. specifically denies them, and sets forth what he
claims to be the facts.
The Supreme Court has held that an implied
admission under Sec. 8, Rule 8 does not preclude the In this case, Debra, Daniel, and Debbie are parties to
adverse party from introducing evidence that the the PN and the surety agreement. Since the PN and
actionable document was not supported by a surety agreement are attached to the complaint,
consideration. The reason is that such evidence is Debra, Daniel, and Debbie are deemed to have
not inconsistent with the implied admission of admitted the genuineness and due execution
genuineness and due execution (Acabal v. Acabal, thereof for their failure to: (a) deny the genuineness
G.R. No. 148376, March 31, 2005). The fact that the and due execution of these documents under oath;
defense of lack of consideration is inconsistent with and (b) to set for what they claim to be facts.
Harold’s defense of forgery is also not objectionable.
The court, therefore, may consider the PN and the
Q: Dorton Inc. (Dorton) sued Debra surety agreement in rendering its decision.
Commodities Inc. (Debra), Daniel, and Debbie in
the RTC of Manila for recovery of sum of money. Default; Relief from an order of default
The complaint alleged that, on October 14, 2017,
Debra obtained a loan from Dorton in the Q: When may a party be declared in Default?
amount of PhP 10 million with interest of 9% What is the effect of an Order of Default? (1999
per annum. The loan was evidenced by a Bar)
promissory note (PN) payable on demand
signed by Daniel and Debbie, the principal A: A party may be declared in default when he fails
stockholders of Debra, who also executed a to answer within the time allowed therefor and
Surety Agreement binding themselves as upon motion of the claiming party with notice to the
sureties. Copies of both the PN and the Surety defending party, and proof of such failure (Sec. 3,
Agreement were attached to the complaint. Rule 9). The effect of an Order of Default is that the
Dorton further alleged that it made a final court may proceed to render judgment granting the
demand on March 1, 2018 for Debra and the claimant such relief as his pleading may warrant
sureties to pay, but the demand was not heeded. unless the court in its discretion requires the
claimant to submit evidence. The party in default
Debra, Daniel, and Debbie filed their answer, cannot take part in the trial but shall be entitled to
and raised the affirmative defense that, while notice of subsequent proceedings (Sec. 3[a], Rule 9).
the PN and the Surety Agreement appeared to
exist, Daniel and Debbie were uncertain
whether the signatures on the documents were
theirs. The PN and the Surety Agreement were

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 QuAMTO (1987-2019)
Q: Mario was declared in default but before A: After finality of the judgment, there are three
judgment was rendered, he decided to file a ways to assail the Judgment, which are: (a) a
motion to set aside the order of default. petition for relief under Rule 38 on the grounds of
fraud, accident, mistake or excusable negligence; (b)
a. What should Mario state in his motion in annulment of Judgment under Rule 47 for extrinsic
order to justify the setting aside of the order fraud or lack of jurisdiction; or (c) certiorari if the
of default? judgment is void on its face or by the judicial record.
(Balangcad v. Justices of the Court of Appeals, G.R. No.
A: In order to justify the setting aside of the order of 83888, February 12, 1992)
default, Mario should state in his motion that his
failure to answer was due to fraud, accident, Q: For failure of K.J. to file an answer within the
mistake or excusable negligence and that he has a reglementary period, the Court, upon motion of
meritorious defense. (Sec. 3(b) Rule 9) LM, declared KJ in default. In due time, KJ filed
an unverified motion to lift the order of default
b. In what form should such motion be? (2001 without an affidavit of merit attached to it. KJ
Bar) however attached the motion in his answer
under oath, stating in said answer his reasons
A: The motion should be under oath. (Sec. 3(b) Rule for his failure to file an answer on time, as well
9) as his defenses. Will the motion to lift the order
of default prosper? Explain. (2000 Bar)
Q: What are the available remedies of a party
declared in Default: A: Yes, there is substantial compliance with the rule.
Although the motion is unverified, the answer
a. Before the rendition of judgment; attached to the motion is verified. The answer
contains the motion to lift the order of default and
A: Before the rendition of judgment (a) he may file a the affidavit of merit should contain, which are the
motion under oath to set aside the order of default reasons of the movant’s failure to answer as well as
on the grounds of fraud, accident, mistake or his defenses. (Sec. 3[b], Rule 9; Citibank, N.A. v. Court
excusable negligence and that he has a meritorious of Appeals, G.R. No. 61508, March 17, 1999)
defense (Sec. 3[b), Rule 9); and if it is denied, he may
move to reconsider, and if reconsideration is Q: For failure to seasonably file his Answer
denied, he may file the special civil action of despite due notice, A was declared in default in
certiorari for grave abuse of discretion tantamount a case instituted against him by B. The following
to lack or excess of the lower court's jurisdiction. day, A’s mistress who is working as a clerk in the
(Sec. 1, Rule 65); or (b) he may file a petition for sala of the Judge before whom his case pending,
certiorari if he has been illegally declared in default, informed him of the declaration of default. On
e.g. during the pendency of his motion to dismiss or the same day, A presented a motion under oath
before the expiration of the time to answer. (Matute to set aside the order of default on the ground
v. CA, G.R. No. 26751, January 31, 1969; Acosta-Ofalia that his failure to answer was due to fraud and
v. Sundiam, G.R. No. L-42648, September 30, 1978) he has a meritorious defense. Thereafter, he
went abroad. After his return a week later, with
b. After judgment but before its finality; and the case still undecided, he received the order
declaring him in default. The motion to set
A: After judgment but before its finality, he may file aside default was opposed by B on the ground
a motion for new trial on the grounds of fraud, that it was filed before A received notice of his
accident, mistake, excusable negligence, or a motion having been declared in default, citing the rule
for reconsideration on the ground of excessive that the motion to set aside may be made at any
damages, insufficient evidence or the decision or time after notice but before judgment. Resolve
final order being contrary to law (See. 2, Rule 37); the Motion. (1999 Bar)
and thereafter. If the motion is denied, appeal is
available under Rules 40 or 41, whichever is A: Assuming that the motion to set aside complies
applicable. with the other requirements of the rule, it should be
granted. Although such a motion may be made after
c. After the finality of judgment? (1998, 2006 notice but before judgment (Sec. 3[b], Rule 9), with
Bar)

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UNIVERSITY OF SANTO TOMAS
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2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
more reason may it be filed after discovery even foreclose the mortgage. Robert moved to
before receipt of the order of default. dismiss the complaint for lack of cause of action
as the debt was not yet due. The resolution of the
Q: Laura was the lessee of an apartment unit motion to dismiss was delayed because of the
owned by Louie. When the lease expired, Laura retirement of the judge.
refused to vacate the property. Her refusal
prompted Louie to file an action for unlawful a. On October 1, 2007, pending resolution of
detainer against Laura who failed to answer the the motion to dismiss, Arturo filed an
complaint within the reglementary period. amended complaint alleging that Robert's
debt had in the meantime become due but
Louie then filed a motion to declare Laura in that Robert still refused to pay. Should the
default. Should the motion be granted? Explain amended complaint be allowed considering
your answer. (2017 Bar) that no answer has been filed?

A: No, a Motion to declare the defendant in default A: No. Even though an amendment of complaint
is a prohibited motion in ejectment cases pursuant before answer is a matter of right, lack of a cause of
to Section 13, Rule 70. action at the commencement of the suit is not cured
by the accrual of a cause of action subsequent
Q: The plaintiff sued the defendant in the RTC for thereto, such that an amendment setting up the
the damage allegedly caused by the latter’s after-accrued cause of action is not allowed
encroachment on the plaintiff’s lot. In his (Swagman Hotel and Travel, Inc. v. Court of Appeals,
answer, the defendant denied the plaintiff’s G.R. No. 161135, April 8, 2005).
claim and alleged that it was the plaintiff who in
fact had encroached on his (defendant’s) land. b. Would your answer be different had Arturo
Accordingly, the defendant counterclaimed filed instead a supplemental complaint
against the plaintiff for damages resulting from stating that the debt became due after the
the alleged encroachment on his lot. The filing of the original complaint? (2008 Bar)
plaintiff filed an ex parte motion for extension of
time to answer the defendant’s counterclaim, A: No, because a complaint whose cause of action
but the court denied the motion on the ground has not accrued yet when filed, does not gain any
that it should have been set for hearing. On the standing in court such that no amendment, whether
defendant’s motion, therefore, the court by amended or supplemental pleading, can cure the
declared the plaintiff in default on the deficiency. The subsequent cause of action that
counterclaim. Was the plaintiff validly declared arose may only be subject of a different suit but
in default? Why? (2002 Bar) cannot be pleaded as a supplement to the complaint
where no cause action exists. Simply put, no
A: No, the plaintiff was not validly declared in amended or supplemental complaint is allowed
default. A motion for extension of time may be filed (Id.).
ex parte and need not be set for hearing. (Amante v.
Sunga, G.R. No. L-40491, May 28, 1975) Q: Daribell Inc. (Daribell) filed a complaint for
sum of money and damages against spouses
Amendment Dake and Donna Demapilis for unpaid
purchases of construction materials in the sum
Q: Arturo lent P1 Million to his friend Robert on of PhP 250,000. In their answer, spouses
the condition that Robert will execute a Demapilis admitted the purchases from
promissory note for the loan and a real estate Daribell, but alleged that they could not
mortgage over his property located in Tagaytay remember the exact amount since no copies of
City. Robert complied. In his promissory note the documents were attached to the complaint.
dated September 20, 2006, Robert undertook to They nevertheless claimed that they made
pay the loan within a year from its date at 12% previous payments in the amounts of PhP
per annum interest. In June 2007, Arturo 110,000 and PhP 20,000 and that they were
requested Robert to pay ahead of time but the willing to pay the balance of their indebtedness
latter refused and insisted on the agreement. after account verification. In a written
Arturo issued a demand letter and when Robert manifestation, spouses Demapilis stated that, in
did not comply, Arturo filed an action to order to buy peace, they were willing to pay the

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 QuAMTO (1987-2019)
sum of PhP 250,000, but without interests and Court of Appeals, G.R. No. 121687, October 16, 1997).
costs. Subsequently, Daribell filed a Motion for This should only be true, however, when the
partial summary judgment. Thereafter, Daribell substantial change or alteration in the cause of
filed an amended complaint, alleging that the action or defense shall serve the higher interests of
total purchases of construction materials were substantial justice and prevent delay and equally
PhP 280,000 and only PhP 20,000 had been paid. promote the laudable objective of the rules which is
Daribell also served upon the spouses Demapilis to secure a just, speedy and inexpensive disposition
a request for admission asking them to admit of every action and proceeding. (Valenzuela v. Court
the genuineness of the statement of accounts, of Appeals, G.R. No. 131175, August 28, 2001)
delivery receipts and invoices, as well as the
value of the principal obligation and the amount Amendments to conform to or authorize
paid as stated in the amended complaint. presentation of evidence

Daribell thereafter amended the complaint Q: In a complaint for a sum of money filed before
anew. The amendment modified the period the MM RTC, plaintiff did not mention or even
covered and confirmed the partial payment of just hint at any demand for payment made on
PhP110,000 but alleged that this payment was defendant before commencing suit. During the
applied to the spouses’ other existing trial, plaintiff duly offered Exh. “A” in evidence
obligations. Daribell however reiterated that for the stated purpose of proving the making of
the principal amount remains unchanged. extrajudicial demand on defendant to pay
P500.000, the subject of the suit. Exh. “A” was a
a. Is the request for admission deemed letter of demand for defendant to pay said sum
abandoned or withdrawn by the filing of the of money within 10 days from receipt,
second amended complaint? addressed to and served on defendant some two
months before suit was begun. Without
A: No. The second amended complaint merely objection from defendant, the court admitted
supersedes the first amended complaint and Exh. “A” in evidence. Was the court’s admission
nothing more, pursuant to Rule 10, Section 8 of the of Exh. “A” in evidence erroneous or not?
Rules of Court; thus, the Request for Admission is Reason. (2004 Bar)
not deemed abandoned or withdrawn by the filing
of the Second Amended Complaint. (Spouses Villuga A: The court’s admission of Exhibit “A” in evidence
v. Kelly Hardware and Construction Supply, Inc., G.R. is not erroneous. It was admitted in evidence
No. 176570, July 18, 2012) without objection on the part of the defendant. It
should be treated as if it had been raised in the
b. Can the amendment of the complaint be pleadings. The complaint may be amended to
allowed if it substantially alters the cause of conform to the evidence, but if it is not so amended,
action? (2003, 2018 BAR) it does not affect the result of the trial on this issue.
(Sec. 5, Rule 10)
A: Such amendment could still be allowed when it is
sought to serve the higher interest of substantial Effect of amended pleading
justice, prevent delay, and secure a just, speedy and
inexpensive disposition of actions and proceedings. Q: X, an illegitimate child of Y, celebrated her
(Valenzuela v. Court of Appeals, G.R. No. 131175, 18th birthday on May 2, 1996. A month before
August 28, 2001) The amended complaint may be her birthday, Y died. The legitimate family of Y
allowed if it will not prejudice the rights of the refused to recognize X as an illegitimate child of
parties. Y. After countless efforts to convince them, X
filed on April 25, 2000 an action for recognition
Q: After an answer has been filed, can the against Z, wife of Y. After Z filed an answer on
plaintiff amend his complaint, with leave of August 14, 2000, X filed a motion for leave to file
court, by changing entirely the nature of the an amended complaint and a motion to admit
action? (2003 Bar) the said amended complaint impleading the
three (3) legitimate children of Y. The trial court
A: Yes. The present rules allow amendments admitted the amended complaint on August 22,
substantially altering the nature of the cause of 2000. What is the effect of the admission of the
action (Sec. 3, Rule 10; Heirs of Marcelino Pagobo v.

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UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
amended complaint? Has the action of X the loan. Charlie’s office secretary, Esther,
prescribed? Explain. (2000 Bar) received the summons at Charlie’s office. Charlie
failed to file an answer within the required
A: No. The action filed on April 25, 2000 is still period, and Alfie moved to declare Charlie in
within the four-year prescriptive period which default and to be allowed to present evidence ex
started to run on May 2, 1996. The amended parte. Ten days later, Charlie filed his verified
complaint impleading the three legitimate children, answer, raising the defense of full payment with
though admitted on August 22, 2000 beyond the interest. (2006, 2013 Bar)
four-year prescriptive period, retroacts to the date
of the filing of the original complaint. Amendments Was there proper and valid service of summons
impleading new defendants retroact to the date of on Charlie?
the filing of the complaint because they do not
constitute a new cause of action. (Verzosa v. CA, G.R. A: No. There is no showing that earnest efforts were
Nos. 119511-13, November 24, 1998) exerted to personally serve the summons on the
defendant before substituted service was resoted
SUMMONS to; the service of sumoons was improper.

Q: What is the effect of absence of summons on In an action strictly in personam like a complaint for
the judgment rendered in the case? (1999 Bar) sum of money, personal service on the defendant is
the preferred mode of service, that is, by handing a
A: The effect of the absence of summons on a copy of the summons to the defendant in person. If
judgment would make the judgment null and void defendant, for excusable reasons, cannot be served
because the court would not have jurisdiction over with summons within a reasonable period, then
the person of the defendant, unless if the defendant substituted service can be resorted to (Manotoc v.
voluntarily appeared before the court, which is Court of Appeals, G.R. No. 130974, August 16, 2006).
deemed equivalent to the service of summons. (Sec. Otherwise stated, it is only when the defendant
20, Rule 14) cannot be served personally within a reasonable
time that a substituted service may be made.
Q: When additional defendant is impleaded in (Galura v. Math-Agro Corporation, G.R. No. 167230,
the action, is it necessary that summons be August 14, 2009)
served upon him? Explain. (1999 Bar)
Since there was no prior attempt to serve the
A: Yes. Summons must be served on an additional summons in person, the substituted service to
defendant impleaded in the action so that the court Charlie’s secretary is invalid.
can acquire jurisdiction over him, unless he makes a
voluntary appearance. Q: Juan sued Roberto for specific performance.
Roberto knew that Juan was going to file the case
Q: Is summons required to be served upon a so he went out of town and temporarily stayed
defendant who was substituted for the in another city to avoid service of summons.
deceased? Explain. (1999 Bar) Juan engaged the service of Sheriff Matinik to
serve the summons but when the latter went to
A: No. A defendant who was substituted for the the residence of Roberto, he was told by the
deceased need not be served with summons caretaker thereof that his employer no longer
because it is the court which orders him as the legal resides at the house. The caretaker is a high
representative of the deceased to appear and school graduate and is the godson of Roberto.
substitute the deceased. (Sec. 16, Rule 3) Believing the caretaker’s story to be true, Sheriff
Matinik left a copy of the summons and
Substituted Service complaint with the caretaker. Was there a valid
substituted service of summons? Discuss the
Q: Alfie Bravo filed with the Regional Trial Court requirements for a valid service of summons.
of Caloocan, a complaint for a sum of money (2016 Bar)
against Charlie Delta. The claim is for
Php1.5Million. The complaint alleges that A: No, there was no valid substituted service of
Charlie borrowed the amount from Alfie and summons. In an action strictly in personam,
duly executed a promissory note as evidence of personal service on the defendant is the preferred

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 QuAMTO (1987-2019)
mode of service, that is, by handing a copy of the service of summons by publication? Explain.
summons to the defendant in person. If defendant, (2016 Bar)
for excusable reasons, cannot be served with the
summons within a reasonable period, then A: Yes. The RTC Judge is correct in ordering the
substituted service can be resorted to. service of summons by publication. An action for
declaration of nullity of title and recovery of
In case of substituted service, the Sheriff’s Return ownership of real property, or re-conveyance, is not
must show that serious efforts or attempts were a real action but it is an action in personam, for it
exerted to personally serve the summons and that binds a particular individual only although it
said efforts failed, indicating therein: concerns the right to a tangible thing. Any judgment
therein is binding only upon the parties properly
1. The impossibility of prompt personal service impleaded. (Heirs of Lopez v. Enriquez, as cited in
within a period of thirty (30) calendar days Munoz v. Yabut G.R. No. 142676, June 6, 2011)
from issue and receipt of summons;
2. The date and time of the three (3) attempts on Under Sec. 14, Rule 14, (now Sec. 16, Rule 14) in any
at least two (2) different dates to cause personal action where the defendant is designated as an
service and the details of the inquiries made to unknown owner, or the like, or whenever his
locate the defendant residing thereat; and whereabouts are unknown and cannot be
3. The name of the person at least eighteen (18) ascertained by diligent inquiry, service may, by
years of age and of sufficient discretion residing leave of court, be effected upon him by publication
thereat, name of competent person in charge of in a newspaper of general circulation and in such
the defendant’s office or regular place of places and for such time as the court may order. This
business, or name of the officer of the rule applies to any action, whether in personam, in
homeowners’ association or condominium rem or quasi in rem (Santos v. PNOC Exploration
corporation or its chief security officer in Corporation, G.R. No. 170943, September 23, 2008).
charge of the community or building where the Clearly, since the action for re-conveyance is an
defendant may be found. (Sec. 20, Rule 14) action in personam, the RTC Judge is correct in
ordering service of summons by publication.
Q: Tristan filed a suit with the RTC of Pasay
against Arthur King and/or Estate of Arthur ALTERNATIVE ANSWER:
King for reconveyance of a lot declared in the
name of Arthur King under TCT No. 1234. The No. The RTC Judge is not correct in ordering service
complaint alleged that on account Arthur King’s of summons by publication. It is well-settled that in
residence abroad up to the present and the an action in personam wherein the defendant is a
uncertainty of whether he is still alive or dead, non-resident who does not voluntarily submit
he or his estate may be served with summons by himself to the authority of the court, personal
publication.” Summons was published and service of summons within the state is essential to
nobody filed any responsive pleading within the acquisition of jurisdiction over his or her person.
sixty (60) days therefrom. Upon motion, This method of service is possible if such defendant
Defendants were declared in default and is physicially present in the country. If he is not
judgment was rendered declaring Tristan as found therein, the court cannot acquire jurisdiction
legal owner and ordering defendants to over his person and therefor cannot validly try and
reconvey said lot to Tristan. decide the case against him (Spouses Belen v. Chavez,
G.R. No. 175334, March 26, 2008). Accordingly, the
Jojo, the court-designated administrator of RTC Judge is not correct in ordering service of
Athur King’s estate, filed a petition for summons by publication.
annulment of judgment before the CA praying
that the decision in favor of Tristan be declared MOTIONS
null and void for lack of jurisdiction. He claims
that the action filed by Tristan is an action in Omnibus motion rule
personam and that the court did not acquire
jurisdiction over defendants Arthur King and/or Q: Charisse, alleging that she was a resident of
his estate. On the other hand, Tristan claims that Lapu-Lapu City, filed a complaint for damages
the suit is an action in rem or at least an action against Atlanta Bank before the RTC of Lapu-
quasi in rem. Is the RTC judge correct in ordering Lapu City, following the dishonor of a check she

25
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UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
drew in favor of Shirley against her current Q: Within the period for filing a responsive
account which she maintained in the bank’s pleading, the defendant filed a motion for bill of
local branch. The bank filed a Motion to Dismiss particulars that he set for hearing on a certain
the complaint on the ground that it failed to date. However, the defendant was surprised to
state a cause of action, but it was denied. It thus find on the date set for hearing that the trial
filed an Answer. court had already denied the motion on the day
of its filing, stating that the allegations of the
In the course of the trial, Charisse admitted that complaint were sufficiently made.
she was a US citizen residing in Los Angeles,
California and that she was temporarily billeted a. Did the judge gravely abuse his discretion in
at the Pescado Hotel in Lapu-Lapu City, drawing acting on the motion without waiting for the
the bank to file another motion to dismiss, this hearing set for the motion?
time on the ground of improper venue, since
Charisse is not a resident of Lapu-Lapu City. A: No, the judge did not gravely abuse his discretion
Charisse opposed the motion citing the when he denied the motion for bill of particulars
"omnibus motion rule." Rule on the motion. without waiting for the hearing set for the motion.
Section 2, Rule 12 of the Rules of Court authorizes
A: The bank’s second motion to dismiss which is the court to either deny or grant said motion
grounded on improper venue should be denied. The outright upon the clerk of court bringing such
improper venue of an action is deemed waived by motion to the attention of the court. The motion may
the bank’s filing an earlier motion to dismiss lack merit.
without raising improper venue as an issue, and
more so when the bank filed an Answer without b. If the judge grants the motion and orders the
raising improper venue as an issue after its first plaintiff to file and serve the bill of
motion to dismiss was denied. Under the “omnibus particulars, can the trial judge dismiss the
motion rule” (Sec. 8, Rule 15, now Sec. 9, Rule 15) case if the plaintiff does not comply with the
which governs the bank’s motion to dismiss, such order? (2008 Bar)
motion should include all objections then available;
otherwise, all objections not so included shall be A: Yes, the trial judge can dismiss the case if the
deemed waived. plaintiff failed to comply with the court’s order to
file and serve the needed bill of particulars. Section
NOTE: Under the 2019 Amendments to the Rules of 4, Rule 12 authorizes the court to order the striking
Civil Procedure, motions to dismiss, including one out of the pleading affected, hence the dismissal of
on the ground of improper venue, are generally the complaint. To the same end is the provision of
prohibited. Section 3, Rule 17 of the Rules when plaintiff fails to
comply for no justifiable cause with any order of the
Motions for bill of particulars court or with the Rules.

Q: When can a bill of particulars be availed of? Q: The Republic of the Philippines (Republic)
What is the effect of non-compliance with the filed a complaint with the Sandiganbayan in
order of a bill of particulars? (2003 Bar) connection with the sequestered assets and
properties of Demo Companies Inc. (Demo) and
A: Before responding to a pleading, a party may impleaded its officers and directors. Since the
move for a bill of particulars of any matter which is complaint did not include Demo as defendant,
not averred with sufficient definiteness or the Sandiganbayan issued a resolution where it
particularity to enable him properly to prepare his ordered Demo to be impleaded. Thereafter, the
responsive pleading. If the pleading is a reply, the Republic filed an amended complaint naming
motion must be filed within ten (10) calendar days Demo as additional defendant, which
from service thereof (Sec. 1, Rule 12). If the order is amendment was later admitted. Demo filed a
not complied with, the court may order the striking motion for bill of particulars for the Republic to
out of the pleading or the portions thereof to which clarify certain matters in its amended
the order was directed or make such other order as complaint. The Sandiganbayan immediately
it deems just. (Sec. 4, Rule 12) granted the motion. Upon submission of the bill
of particulars by the Republic, Demo filed a
motion to dismiss arguing that the answers in

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 QuAMTO (1987-2019)
the bill of particulars were indefinite and Q: What is "res judicata in prison grey"? What
deficient responses to the question of what the are the essential requisites of res judicata?
alleged illegally acquired funds or properties of (2000, 2010 Bar)
Demo were. The Sandiganbayan dismissed the
case. A: “Res judicata in prison grey" is the criminal
concept of double jeopardy, as “res judicata" is the
a. Was the Sandiganbayan correct in doctrine of civil law (Trinidad v. Office of the
dismissing the case? Ombudsman, G.R. No. 166038, December 4, 2007).
Described as “res judicata in prison grey,” the right
A: No. The Sandiganbayan is incorrect in dismissing against double jeopardy prohibits the prosecution
the case. An action cannot be dismissed on the of a person for a crime of which he has been
ground of vagueness or indefiniteness. (Galeon v. previously acquitted or convicted. The purpose is to
Galeon, G.R. L-30380, 28 February 1973) set the effects of the first prosecution forever at rest,
assuring the accused that he shall not thereafter be
ALTERNATIVE ANSWER: subjected to the danger and anxiety of a second
charge against him for the same offense (Caes v. IAC,
Yes. The Sandiganbayan was correct in dismissing G.R. Nos. 74989-90, November 6, 1989). The essential
the case. requisites of res judicata are:

Under Rule 12, Section 4, the consequence of a. The judgment or order rendered must be
insufficient compliance with the court’s order for a final;
bill of particulars or a more definite pleading is that b. The court rendering the same must have
the court may order the striking out of said pleading jurisdiction of the subject matter and of the
or the portions thereof. parties;
c. It must be a judgment or order on the
In this case, the Sandiganbayan dismissed the case merits; and
upon non-compliance with its order for a definite d. There must be between the two cases
pleading. The dismissal of the case was made by the identity of parties, identity of subject
striking out of the pleading, which in this case was matter, and identity of causes of action.
the complaint by the Republic. In striking out said (San Diego v. Cardona, G.R. No. 46655, June
pleading, no complaint existed; thus, the 27, 1940)
Sandiganbayan effectively dismissed the case.
Q: Distinguish bar by prior judgment from
The Sandiganbayan, therefore, correctly dismissed conclusiveness of judgment. (1997 Bar)
the case, as the bill of particulars was deemed
insufficient leading to the striking out of the A: Bar by prior judgment is the doctrine of res
complaint. judicata, which bars a second action when there is
identity of parties, subject matter, and cause of
b. What can the defendant, in a civil case, do in action (Sec. 47[b], Rule 39). Conclusiveness of
the event that his motion for bill of judgment precludes the relitigation of a particular
particulars is denied? (2018 BAR) issue in another action between the same parties on
a different cause of action (Sec. 47[c], Rule 39).
A: Under Rule 12, Section 5 of the Rules of Court,
after notice of denial of his motion, the moving party Grounds
may file his responsive pleading within the period
to which he was entitled at the time of filing his Q: Mariano, through his attorney-in-fact,
motion, which shall not be less than five (5) Marcos, filed with the RTC of Baguio City a
calendar days in any event. If tainted with grave complaint for annulment of sale against Henry.
abuse of discretion, the moving party may question Marcos and Henry both reside in Asin Road,
the denial through a petition for certiorari Rule 65. Baguio City, while Mariano resides in Davao City.
Henry filed a motion to dismiss the complaint on
Res judicata the ground of prematurity for failure to comply
with the mandatory barangay conciliation.
Resolve the motion with reasons. (2009 Bar)

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UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
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 REMEDIAL Law
A: The motion to dismiss should be denied because reserve the filing of a separate civil action. V
the parties in interest, Mariano and Henry, do not subsequently filed a complaint for Damages
reside in the same city/municipality, or is the against X and Y before the Regional Trial Court
property subject of the controversy situated of Pangasinan in Urdaneta where he resides. In
therein. The required conciliation/mediation before his "Certification Against Forum Shopping," V
the proper Barangay as mandated by the Local made no mention of the pendency of the
Government Code governs only when the parties to criminal case in Sta. Maria. (2010)
the dispute reside in the same city or municipality,
and if involving real property, as in this case, the a. Is V guilty of forum shopping?
property must be situated also in the same city or
municipality. A: No, V is not guilty of forum shopping because the
case the Sta. Maria, Bulacan, is a criminal action filed
Q: AB, as mother and in her capacity as legal in the name of the People of the Philippines, where
guardian of her legitimate minor son, CD, civil liability arising from the crime is deemed also
brought action for support against EF, as father instituted therewith; whereas the case filed in
of CD and AB’s lawfully wedded husband. EF Urdaneta, Pangasinan, is a civil action for quasi-
filed his answer denying his paternity with delict in the name of V and against both X and Y for
counterclaim for damages. Subsequently, AB all damages caused by X and Y to V, which may be
filed a manifestation in court that in view of the beyond the jurisdiction of MTC. Hence, the tests of
denial made by EF, it would be futile to pursue forum shopping, which is res judicata or litis
the case against EF. AB agreed to move for the pendencia, do not obtain here. Moreover,
dismissal of the complaint, subject to the substantive law (Art. 33, NCC) and Sec. 3, Rule 111,
condition that EF will withdraw his expressly authorize the filing such action for
counterclaim for damages. AB and EF filed a damages entirely separate and distinct from the
joint motion to dismiss. The court dismissed the criminal action.
case with prejudice. Later on, minor son CD,
represented by AB, filed another complaint for b. Instead of filing an Answer, X and Y move to
support against EF. EF filed a motion to dismiss dismiss the complaint for damages on the
on the ground of res judicata. Is res judicata a ground of litis pendentia. Is the motion
valid ground for dismissal of the second meritorious? Explain.
complaint? Explain your answer. (2000 Bar)
A: No, the motion to dismiss based on alleged litis
A: No, res judicata is not a defense in an action for pendencia is without merit because there is no
support even if the first case was dismissed with identity of parties and subject matter in the two
prejudice on a joint motion to dismiss. The plaintiff’s cases. Besides, Art. 33 of the Civil Code and Rule 111,
mother agreed to the dismissal of the complaint for Sec. 3 of the Rules of Criminal Procedure authorize
support in view of the defendant’s answer denying the separate civil action for damages arising from
his paternity with counterclaim for damages. This physical injuries to proceed independently.
was in the nature of a compromise of the right to
support which is prohibited by law. (Art. 2035, NCC; c. Suppose only X was named as defendant in
De Asis v. Court of Appeals, G.R. No. 127578, February the complaint for damages, may he move for
15, 1999) the dismissal of the complaint for failure of
V to implead Y as an indispensable party?
Q: X was driving the dump truck of Y along
Cattleya Street in Sta. Maria, Bulacan. Due to his A: No, X may not move for dismissal of the civil
negligence, X hit and injured V who was crossing action for damages on the contention that Y is an
the street. Lawyer L, who witnessed the incident, indispensable party who should be impleaded. Y is
offered his legal services to V. V, who suffered not an indispensable party but only a necessary
physical injuries including a fractured wrist party. At any rate, nonjoinder and misjoinder of
bone, underwent surgery to screw a metal plate parties is not a ground for dismissal of actions. (Sec.
to his wrist bone. On complaint of V, a criminal 11, Rule 3)
case for Reckless Imprudence Resulting in
Serious Physical Injuries was filed against X d. X moved for the suspension of the
before the Municipal Trial Court (MTC) of Sta. proceedings in the criminal case to await the
Maria. Atty. L, the private prosecutor, did not decision in the civil case. For his part, Y

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 QuAMTO (1987-2019)
moved for the suspension of the civil case to a competent court. Moreover, in Ching v. Cheng (G.R.
await the decision in the criminal case. No. 175507, October 8, 2014), the Supreme Court
Which of them is correct? Explain. ruled that the following requisites should concur for
the Two-Dismissal Rule to apply:
A: Neither of them is correct. Both substantive law
(Art. 33, NCC) and procedural law (Sec. 3, Rule 111) 1. There was a previous case that was dismissed
provide for the two actions to proceed by a competent courts;
independently of each other, therefore, no 2. Both cases were based on or include the same
suspension of action is authorized. claim;
3. Both notices for dismissal were filed by the
e. Atty. L offered in the criminal case his plaintiff; and
affidavit respecting what he witnessed 4. When the motion to dismiss filed by the plaintiff
during the incident. X’s lawyer wanted to was consented to by the defendant on the
cross-examine Atty. L who, however, ground that the latter paid and satisfied all the
objected on the ground of lawyer-client claims of the former.
privilege. Rule on the objection. (2010 Bar)
In this case, the Makati City RTC had no jurisdiction
A: The objection should be overruled. Lawyer-client over the first complaint which was dismissed
privilege is not involved here. The subject on which through Agatha’s notice, because it is below its
the counsel would be examined has been made jurisdictional amount of at least P400,000.00.
public in the affidavit he offered and thus, no longer Therefore, the Two-Dismissal Rule cannot be
privileged, aside from the fact that it is in respect of successfully invoked in this case.
what the counsel witnessed during the incident and
not to the communication made by the client to him Q: Pedro and Juan are residents of Barangay
or the advice he gave thereon in his professional Ifurug, Municipality of Dupac, Mountain
capacity. Province. Pedro owes Juan the amount of
P50,000.00. Due to nonpayment, Juan brought
DISMISSAL OF ACTIONS his complaint to the Council of Elders of said
barangay which implements the bodong justice
Q: Agatha filed a complaint against Yana in the system. Both appeared before the council where
RTC in Makati City to collect P350,000.00, an they verbally agreed that Pedro will pay in
amount representing the unpaid balance on the installments on specific due dates. Pedro
price of the car Yana had bought from Agatha. reneged on his promise. Juan filed a complaint
Realizing a jurisdictional error in filing the for sum of money before the Municipal Trial
complaint in the RTC, Agatha filed a notice of Court (MTC). Pedro filed a Motion to Dismiss on
dismissal before she was served with the answer the ground that the case did not pass through
of Yana. The RTC issued an order confirming the the barangay conciliation under R.A. No. 7160
dismissal. Three months later, Agatha filed and that the RTC, not the MTC, has jurisdiction.
another complaint against Yana based on the In his opposition, Juan argued that the
same cause of action this time in the MeTC of intervention of the Council of Elders is
Makati City. However, for reasons personal to substantial compliance with the requirement
her, Agatha decided to have the complaint of R.A. No. 7160 and the claim of P50,000.00 is
dismissed without prejudice by filing a notice of clearly within the jurisdiction of the MTC. As
dismissal prior to the service of the answer of MTC judge, rule on the motion and explain.
Yana. Hence, the case was dismissed by the (2016 Bar)
MeTC. A month later, Agatha refiled the
complaint against Yana in the same MeTC. May A: As MTC judge, I would deny the motion to
Yana successfully invoke the Two-Dismissal dismiss. Under the Rules of Procedure for Small
Rule to bar Agatha’s third complaint? Explain Claims Cases, a motion to dismiss on whatever
your answer. (2017 Bar) ground is a prohibited motion. Here the complaint
falls under the coverage of the Rules of Procedure
A: No. Yana cannot successfully invoke the Two- for Small Claims Cases since the claim for sum of
Dismissal Rule. In order for the Two-Dismissal Rule money did not exceed P100,000. Hence the motion
to apply, Sec. 1, Rule 17 requires that both to dismiss filed by Pedro is a prohibited motion and
dismissals through plaintiff’s notices were made by should thus be denied.

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NOTE: Pursuant to 26 February 2019 Resolution in dismissal were filed by the plaintiff; and (d) when
A.M. No. 08-8-7-SC, the jurisdictional amount for the motion to dismiss filed by the plaintiff was
small claims cases has been increased to consented to by the defendant on the ground that
P400,000.00 for the MeTCs and P300,000.00 for the latter paid and satisfied all the claims of the
MTCs, MTCCs, and MCTCs. former. (Ching v. Cheng, G.R. No. 175507, 8 October
2014)
Q: Dick Dixson had sons with different women —
(i) Dexter with longtime partner Delia and (ii) In this case, the third requisite is absent because the
Dongdong and Dingdong with his housemaid first dismissal was upon the motion to dismiss filed
Divina. When Dick fell ill in 2014, he entrusted by Dexter; hence, the two-dismissal rule will not
all his property titles and shares of stock in apply.
various companies to Delia who, in turn, handed
them to Dexter for safekeeping. After the death PRE-TRIAL
of Dick, Dexter induced Dongdong and Dingdong
to sign an agreement and waiver of their right to Q: Upon termination of the pre-trial, the judge
Dick’s estate in consideration of PhP 45 million. dictated the pre-trial order in the presence of
As Dexter reneged on his promise to pay, the parties and their counsel, reciting what had
Dongdong and Dingdong filed with the RTC of transpired and defining three (3) issues to be
Manila a complaint for annulment of the tried.
agreement and waiver. The summons and
complaint were received by Dalia, the a. If, immediately upon receipt of his copy of
housemaid of Dexter, on the day it was first the pre-trial order, plaintiff’s counsel should
served. Hence, Dexter filed a motion to dismiss move for its amendment to include a fourth
on the ground of lack of jurisdiction over his (4th) triable issue which he allegedly
person. RTC Manila granted the motion to inadvertently failed to mention when the
dismiss. judge dictated the order. Should the motion
to amend be granted? Reasons.
Dongdong and Dingdong thereafter filed a new
complaint against Dexter for annulment of the A: Depending on the merit of the issue sought to be
agreement and waiver. Before Dexter could file brought in by the amendment, the motion to amend
his answer, Dongdong and Dingdong filed a may be granted upon due hearing. It is a policy of
motion to withdraw their complaint praying the Rules of Court that parties should be afforded
that it be dismissed without prejudice. An Order reasonable opportunity to bring about a complete
was issued granting the motion to withdraw determination of the controversy between them,
without prejudice on the basis that the consistent with substantial justice. With this end in
summons had not yet been served on Dexter. view, the amendment before trial may be granted to
Dexter filed a motion for reconsideration of the prevent manifest injustice. The matter is addressed
order of dismissal. He argued that the dismissal to the sound and judicious discretion of the trial
should have been with prejudice under the “two- court.
dismissal rule” of Rule 17, Section 1 of the Rules
of Court, in view of the previous dismissal of the b. Suppose trial had already commenced and
first case. after the plaintiff’s second witness had
testified, the defendant’s counsel moves for
Will the two-dismissal rule apply making the the amendment of the pre-trial order to
second dismissal with prejudice? (2018 Bar) include a fifth (5th) triable issue vital to his
client’s defense. Should the motion be
A: No. The two-dismissal rule will not apply, granted over the objection of plaintiff’s
because the first dismissal was at the instance of the counsel? Reasons. (2009 Bar)
defendant.
A: The motion may be denied since trial had already
The requirements for the application of the two- commenced and two witnesses for the plaintiff had
dismissal rule under Sec. 1 Rule 17 are: (a) there already testified. Courts are required to issue pre-
was a previous case that was dismissed by a trial order after the pre-trial conference has been
competent court; (b) both cases were based on or terminated and before trial begins, precisely
include the same claim; (c) both notices for because the reason for such order is to define the

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 QuAMTO (1987-2019)
course of the action during the trial. Where trial had of Deposition-Discovery Measures provides that a
already commenced, more so the adverse party had witness has to be fully examined in one day only,
already presented witnesses, to allow an subject to the court’s discretion to extend the direct
amendment would be unfair to the party who had and/or cross-examination for justifiable reasons.
already presented his witnesses. The amendment
would simply render nugatory the reason for or INTERVENTION
purpose for the pre-trial order. Sec. 7, Rule 18 on
pre-trial in civil action is explicit in allowing a Q: What are the requisites for an intervention by
modification of the pre-trial order “before” trial a non-party in an action pending in court? (2000
begins to prevent manifest injustice. Bar)

Distinction between pre-trial in civil case and A: The requisites for Intervention are:
pre-trial in criminal case
a. Legal interest in the matter in controversy; or
Q: Give three distinctions between a pre-trial in b. Legal interest in the success of either of the
a criminal case and a pre-trial in a civil case. parties; or
(1997 Bar) c. Legal interest against both; or
d. So situated as to be adversely affected by a
A: The distinctions between a pre-trial in a criminal distribution or other disposition of property
case and a pre-trial in a civil case are as follows: in the custody of the court or of an officer
thereof;
a. The pre-trial in a criminal case is conducted e. Intervention will not unduly delay or
only “where the accused and counsel agree" prejudice the adjudication of the rights of
(Rule 118, Sec. 1) while the pre-trial in a civil original parties;
case is mandatory (Sec. 1, Rule 18, now Sec. 2). f. Intervenor’s rights may not be fully protected
b. The pre-trial in a criminal case does not in a separate proceeding (Acenas v. CA, G.R.
consider the possibility of a compromise, which No. 107762, August 29, 1995; Sec. 1, Rule 19).
is one important aspect of the pre-trial in a civil
case (Sec. 2, Rule 18). MODES OF DISCOVERY
c. In a criminal case, a pre-trial agreement is
required to be reduced in writing and signed by Q: Describe briefly at least five (5) modes of
the accused and his counsel (Rule 118, Sec. 4) discovery under the Rules of Court. (2000 Bar)
while in a civil case, the agreement may be
contained in the pre-trial order (Sec. 7, Rule 18). A: The modes of discovery under the Rules of Court
are:
Q:
1. Deposition. Upon ex-parte motion of a party,
a. What is the "most important witness" rule the testimony of any person, whether a
pursuant to the 2004 Guidelines of Pretrial party or not, may be taken by deposition
and Use of Deposition-Discovery Measures? upon oral examination or written
Explain. (2016 Bar) interrogatories. (Sec. 1, Rule 23)
2. Interrogatories to parties. Under the same
A: The “most important witness” rule pursuant to conditions specified in Section 1 of Rule 23,
the 2004 Guidelines of Pre-Trial and Use of any party shall file and serve upon any
Deposition-Discovery Measures provides that the adverse party written interrogatories
judge shall, during the Pre-Trial Conference, regarding material and relevant facts to be
determine the most important witnesses to be answered by the party served. (Sec. 1, Rule
heard and limit the number of witnesses. 25)
3. Admission by adverse party. At any time
b. What is the "one day examination of after issues have been joined, a party may
witness" rule pursuant to the said 2004 file and serve upon any other party a
Guidelines? Explain. written request for the admission by the
latter of the genuineness of any material
A: The “one-day examination of a witness” rule and relevant document or of the truth of
pursuant to the 2004 Guidelines of Pretrial and Use

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any material and relevant matter of fact. signed statements from the survivors. He also
(Sec. 1, Rule 26) interviewed other persons, in some instance
4. Production or inspection of documents or making memoranda. The heirs of the five (5)
things. Upon motion of any party showing victims filed an action for damages against SPS.
good cause therefor, a court may order any Plaintiffs' counsel sent written interrogatories
party to produce and permit the inspection to Atty. Ely, asking whether statements of
and copying or photographing of any witnesses were obtained; if written, copies were
designated documents, etc. or order any to be furnished; if oral, the exact provisions
party to permit entry upon designated land were to be set forth in detail. Atty. Ely refused to
or property for inspecting, measuring, comply, arguing that the documents and
surveying, or photographing the property information asked are privileged
or any designated relevant object or communication. Is the contention tenable?
operation thereon. (Sec. 1, Rule 27) Explain. (2008 Bar)
5. Physical and mental examination of persons.
In an action in which the mental or physical A: Yes, the contention of counsel for SPS is tenable
condition of a party is in controversy, the considering that he was acting in his professional
court in which the action is pending may in capacity in bringing about the statement he
its discretion order him to submit to a obtained from witnesses and the memoranda he
physical or mental examination by a made. The notes, memoranda, and writings made by
physician. (Sec. 1, Rule 28). (Answered under counsel in pursuance of his professional duty, form
the 2019 Amendments to the Rules of Civil part of his private and confidential files in the cases
Procedure) handled by him; hence privileged. (Air Philippines
Corp. v. Pennswell, Inc., G.R. No. 172835, December
Written interrogatories to adverse party 13, 2007)

Q: An heir/oppositor in a probate proceeding Q: In an admiralty case filed by A against Y
filed a motion to remove the administrator on Shipping Lines (whose principal offices are in
the grounds of neglect of duties as administrator Manila) in the RTC Davao City, the court issued a
and absence from the country. On his part the subpoena duces tecum directing Y, the president
heir/oppositor served written interrogatories of the shipping company, to appear and testify at
to the administrator preparatory to presenting the trial and to bring with him several
the latter as a witness. The administrator documents.
objected, insisting that the modes of discovery
apply only to ordinary civil actions, not special a. On what valid ground can Y refuse to comply
proceedings. Rule on the matter. (2008 Bar) with the subpoena duces tecum?

A: The administrator’s contention that the modes of A: Y can refuse to comply with the subpoena duces
discovery apply only to ordinary civil action and not tecum on the ground that he resides more than 100
to special proceedings is not correct. Sec 2, Rule 72 kilometres from the place where he is to testify, also
provides that in the absence of special provisions, known as the viatory right. (Sec. 10, Rule 21) The
the rules provided for in ordinary civil actions shall witness can also refuse to comply with the subpoena
be, as far as practicable, applicable in special duces tecum on the ground that the documents are
proceedings. There is no provision to the contrary not relevant and there was no tender of fees for one
that would preclude the application of the modes of day’s attendance and the kilometrage allowed by
discovery, specifically Interrogatories to Parties the rules.
under Rule 25 of the Rules, to probate proceedings.
b. How can A take the testimony of Y and
Q: A tugboat owned by Speedy Port Service, Inc. present the documents as exhibits other
(SPS) sank in Manila Bay while helping tow than through the subpoena from the RTC?
another vessel, drowning five (5) of the crew in (1997 Bar)
the resulting shipwreck. At the maritime board
inquiry, the four (4) survivors testified. SPS A: A can take the testimony of Y and present the
engaged Atty. Ely to defend it against potential documents as exhibits by taking his deposition
claims and to sue the company owning the other through oral examination or written interrogatories
vessel for damages to the tug. Atty. Ely obtained

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 QuAMTO (1987-2019)
(Rule 23). He may also file a motion for the relevant matter of fact set forth in the request.
production or inspection of documents. (Rule 27) Copies of the documents shall be delivered with
the request unless copies have already been
Q: furnished. (Sec. 1, Rule 26)
2. Each of the matters of which an admission is
a. Briefly explain the procedure in requested shall be deemed admitted unless,
“Interrogatories to Parties” under Rule 25 within a period designated in the request,
and state the effect of failure to serve which shall not be less than fifteen (15)
written interrogatories. calendar days after service thereof, or within
such further time as the court may allow on
A: motion, the party to whom the request directed
1. Any party desiring to elicit material and files and serves upon the party requesting the
relevant facts from any adverse parties shall file admission a sworn statement either denying
and serve upon the latter written specifically the matters of which an admission
interrogatories to be answered by the party is requested or setting forth in detail the
served or, if the party served is a public or reasons why he cannot truthfully either admit
private corporation or a partnership or or deny those matters.
association, by any officer thereof competent to 3. Objections to any request for admission shall be
testify in its behalf. (Section 1, Rule 25) submitted to the court by the party requested
2. The interrogatories shall be answered fully in within the period for and prior to the filing of
writing and shall be signed and sworn to by the his sworn statement as contemplated in the
person making them. The party upon whom the preceding paragraph and his compliance
interrogatories have been served shall file and therewith shall be deferred until such
serve a copy of the answers on the party obligations are resolved, which resolution shall
submitting the interrogatories within fifteen be made as early as practicable. (Sec. 2, Rule 26)
(15) days after service thereof, unless the court 4. Any admission made by a party pursuant to
on motion and for good cause shown, extends such request is for the purpose of the pending
or shortens the time. (Section 2, Rule 25) action only and shall not constitute an
3. Objections to any interrogatories may be admission by him for any other purpose nor
presented to the court within ten (10) calendar may the same be used against him in any other
days after service thereof, with notice as in case proceeding. (Sec. 3, Rule 26)
of a motion; and answers shall be deferred until 5. Unless otherwise allowed by the court for good
the objections are resolved, which shall be at as cause shown and to prevent a failure of justice,
early a time as is practicable. (Sec. 3, Rule 25) a party who fails to file and serve a request for
4. Should a party fail to file and serve written admission on the adverse party of material and
interrogatories on an adverse party, he cannot relevant facts at issue which are or ought to be,
compel the latter to give testimony in open within the personal knowledge of the latter,
court or to give deposition pending appeal, shall not be permitted to present evidence on
unless allowed by the court for good cause such facts. (Sec. 5, Rule 26)
shown and to prevent failure of justice. (Sec. 6,
Rule 25; Spouses Afulugencia v. Metrobank, G.R. Production or inspection of documents or things
No. 185145, February 5, 2014)
Q: Continental Chemical Corporation (CCC) filed
b. Briefly explain the procedure on “Admission a complaint for a sum of money against Barstow
by Adverse Party” under Rule 26 and the Trading Corporation (BTC) for the latter’s
effect of failure to file and serve the request. failure to pay for its purchases of industrial
(2016 Bar) chemicals. In its answer, BTC contended that it
refused to pay because CCC misrepresented that
A: the products it sold belonged to a new line, when
1. At any time after issues have been joined, a in fact they were identical with CCC’s existing
party may file and serve upon any party a products. To substantiate its defense, BTC filed
written request for the admission by the latter a motion to compel CCC to give a detailed list of
of the genuineness of any material and relevant the products’ ingredients and chemical
document described in and exhibited with the components, relying on the right to avail of the
request or of the truth of any material and modes of discovery allowed under Rule 27. CCC

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objected, invoking confidentiality of the Physical and mental examination of persons
information sought by BTC. Resolve BTC’s
motion with reasons. (2009 Bar) Q: Ernie filed a petition for guardianship over
the person and properties of his father, Ernesto.
A: I will deny the motion. The ingredients and Upon receipt of the notice of hearing, Ernesto
chemical components of CCC’s products are trade filed an opposition to the petition. Ernie, before
secrets within the contemplation of the law. Trade the hearing of the petition, filed a motion to
secrets may not be the subject of compulsory order Ernesto to submit himself for mental and
disclosure by reason of their confidential and physical examination which the court granted.
privileged character. Otherwise, CCC would
eventually be exposed to unwarranted business After Ernie's lawyer completed the presentation
competition with others who may imitate and of evidence in support of the petition and the
market the same kinds of products in violation of court's ruling on the formal offer of evidence,
CCC’s proprietary rights. Being privileged, the Ernesto's lawyer filed a demurrer to evidence.
detailed list of ingredients and chemical Ernie's lawyer objected on the ground that a
components may not be the subject of mode of demurrer to evidence is not proper in a special
discovery under Sec. 1, Rule 27 which expressly proceeding.
makes privileged information an exception from its
coverage. (Air Philippines Corporation v. Pennswell, If Ernesto defies the court's order directing him
Inc., G.R. No. 172835, December 13, 2007) to submit to physical and mental examinations,
can the court order his arrest? (2015 Bar)
Q: The plaintiff sued the defendant in the RTC to
collect on a promissory note, the terms of which A: If the order for the conduct of physical and mental
were stated in the complaint and a photocopy examination is issued as a mode of discovery and
attached to the complaint as an annex. Before Ernesto defies the said order, the court cannot
answering, the defendant filed a motion for an validly order his arrest (Sec. 3[d], Rule 29).
order directing the plaintiff to produce the
original of the note so that the defendant could DEMURRER TO EVIDENCE
inspect it and verify his signature and the
handwritten entries of the dates and amounts. Q: AX, a Makati-bound paying passenger of PBU,
a public utility bus, died instantly on board the
a. Should the judge grant the defendant’s bus on account of the fatal head wounds he
motion for production and inspection of the sustained as a result of the strong impact of the
original of the promissory note? Why? collision between the bus and a dump truck that
happened while the bus was travelling on EDSA
A: Yes, because upon motion of any party showing towards Makati. The foregoing facts, among
good cause, the court in which the action is pending others, were duly established on evidence-in-
may order any party to produce and permit the chief by the plaintiff TY, sole heir of AX, in TY’s
inspection of designated documents (Rule 27). The action against the subject common carrier for
defendant has the right to inspect and verify the breach of contract of carriage. After TY had
original of the promissory note so that he could rested his case, the common carrier filed a
intelligently prepare his answer. demurrer to evidence, contending that
plaintiff’s evidence is insufficient because it did
b. Assuming that an order for production and not show (1) that defendant was negligent and
inspection was issued but the plaintiff failed (2) that such negligence was the proximate
to comply with it, how should the defendant cause of the collision. Should the court grant or
plead to the alleged execution of the note? deny defendant’s demurrer to evidence? Reason
(2002 Bar) briefly. (2004 Bar)

A: The defendant may file a motion to dismiss the A: No. The Court should not grant defendant’s
complaint because of the refusal of the plaintiff to demurrer to evidence because the case is for breach
obey the order of the court for the production and of contract of carriage. Proof that the defendant was
inspection of the promissory note. (Sec. 3(c), Rule negligent and that such negligence was the
29) proximate cause of the collision is not required.
(Arts. 1170 and 2201, NCC; Mendoza v. Phil Airlines,

34


 QuAMTO (1987-2019)
Inc., G.R. No. L- 3678, February 29, 1952; Batangas acquitted and the prosecution cannot appeal. If the
Transportation Co. v. Caguimbal, G.R. No. L-22985, accused does not obtain leave of court and his
January 24, 1968; Abeto v. PAL, G.R. No. L-28692, July demurrer to evidence is denied, he is deemed to
30, 1982) have waived his right to present evidence and the
case is decided on the basis of the evidence for the
Waiver of right to present evidence prosecution. The court may also dismiss the action
on the ground of insufficiency of the evidence on its
Q: Carlos filed a complaint against Pedro in the own initiative after giving the prosecution the
RTC of Ozamis City for the recovery of the opportunity to be heard. (Sec. 23, Rule 119)
ownership of a car. Pedro filed his answer
within the reglementary period. After the pre- Q: Ernie filed a petition for guardianship over
trial and actual trial, and after Carlos has the person and properties of his father, Ernesto.
completed the presentation of his evidence, Upon receipt of the notice of hearing, Ernesto
Pedro moved for the dismissal of the complaint filed an opposition to the petition. Ernie, before
on the ground that under the facts proven and the hearing of the petition, filed a motion to
under the law applicable to the case, Carlos is order Ernesto to submit himself for mental and
not entitled to the ownership of the car. The RTC physical examination which the court granted.
granted the motion for dismissal. Carlos
appealed the order of dismissal and the After Ernie's lawyer completed the presentation
appellate court reversed the order of the trial of evidence in support of the petition and the
court. Thereafter, Pedro filed a motion with the court's ruling on the formal offer of evidence,
RTC asking the latter to allow him to present his Ernesto's lawyer filed a demurrer to evidence.
evidence. Carlos objected to the presentation of Ernie's lawyer objected on the ground that a
evidence by Pedro. Should the RTC grant Pedro’s demurrer to evidence is not proper in a special
motion to present evidence his evidence? Why? proceeding. Was Ernie's counsel's objection
(2001 Bar) proper? (2015 Bar)

A: No. Pedro’s motion should be denied. The Rules A: No. In Matute v. Court of Appeals (G.R. No. 26751,
provide that if the motion for dismissal is granted by January 31, 1969), the Supreme Court has held that
the trial court but on appeal the order of dismissal the rule on demurrer to evidence is applicable in
is reversed, he shall be deemed to have waived the special proceedings. Moreover, under Sec 2, Rule 72,
right to present evidence. (Sec. 1, Rule 33) in the absence of special rules, the rules provided for
in ordinary actions shall be applicable, as far as
Demurrer to evidence in a civil case vs. practicable, to special proceedings.
Demurrer to evidence in a criminal case
JUDGMENTS AND FINAL ORDERS
Q: Compare the effects of denial of demurrer to
evidence in a civil case with those of a denial of Q: What is the difference between a judgment
demurrer to evidence in a criminal case. (2003 and an opinion of the court? (2006 Bar)
Bar)
A: The judgment or fallo is the final disposition of
A: In a civil case, the defendant has the right to file a the court which is reflected in the dispositive
demurrer to evidence without leave of court. If his portion of the decision, while the opinion of the
demurrer is denied, he has the right to present court is contained in the body of the decision that
evidence. If his demurrer is granted and on appeal serves as a guide or enlightenment to determine the
by the plaintiff, the appellate court reverses the ratio decidendi of the decision.
order and renders judgment for the plaintiff, the
defendant loses his right to present evidence. (Rule Judgment on the pleadings
33)
Q: What are the grounds for judgment on the
In a criminal case, the accused has to obtain leave of pleadings? (1999 Bar)
court to file a demurrer to evidence. If he obtains
leave of court and his demurrer to evidence is A: The grounds for judgment on the pleadings are:
denied, he has the right to present evidence in his (a) where an answer fails to tender an issue, or (b)
defense. If his demurrer to evidence is granted, he is

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otherwise admits the material allegations of the allegations stated in the complaint, what should
adverse party’s pleading. (Sec. 1, Rule 34) plaintiff do? (2012 Bar)

Q: A brought an action against her husband B for A: The plaintiff should file a Motion for Judgment on
annulment of their marriage on the ground of the Pleadings because the failure of the defendant to
psychological incapacity, B filed his Answer to answer a request for admission results to an implied
the Complaint admitting all the allegations admission of all the matters which an admission is
therein contained. May A move for judgment on requested. Hence, a motion for judgment on the
the pleadings? Explain. (1999 Bar) pleadings is the appropriate remedy where the
defendant is deemed to have admitted matters
A: No, because even if B’s answer to A’s complaint contained in the request for admission by the
annulment of their marriage admits all the plaintiff. (Rule 34, in relation to Sec. 2, Rule 26)
allegations therein contained, the material facts
alleged in the complaint must always be proved Q: Plaintiff sued defendant for collection of P1
(Sec. 1, Rule 34). The court shall order the million based on the latter's promissory note.
prosecutor to investigate whether or not a collusion The complaint alleges, among others:
between the parties exists, and if there is no
collusion, to intervene for the State in order to see 1. Defendant borrowed Php 1 million from
to it that the evidence submitted is not fabricated. plaintiff as evidenced by a duly executed
(Sec. 3[e], Rule 9) promissory note;
2. The promissory note reads:
Q: In a complaint for recovery of real property,
the plaintiff averred, among others, that he is "Makati, Philippines Dec. 30, 2014
the owner of the said property by virtue of a
deed of sale executed by the defendant in his For value received from plaintiff,
favour. Copy of the deed of sale was appended to defendant promises to pay plaintiff 1
the complaint as Annex “A” thereof. In his million, twelve (12) months from the
unverified answer, the defendant denied the above indicated date without necessity
allegation concerning the sale of the property in of demand.
question, as well as the appended deed of sale,
for lack of knowledge or information sufficient Signed Defendant
to form a belied as to the truth thereof. Is it
proper for the court to render judgment without A copy of the promissory note is attached as
trial? Explain (2005 Bar) Annex “A.”

A: Yes. Defendant cannot deny the sale of the Defendant, in his verified answer, alleged
property for lack of knowledge or information among others:
sufficient to form a belied as to the truth thereof.
The answer amounts to an admission. The 1. Defendant specifically denies the
defendant must aver or state positively how it is allegation in paragraphs 1 and 2 of the
that he is ignorant of the facts alleged (Phil. complaint, the truth being defendant did
Advertising Counselors, Inc. v. Revilla, G.R. No. L- not execute any promissory note in favor of
31869, August 8, 1973; Sec. 10, Rule 8). Moreover, the plaintiff, or
genuineness and due execution of the deed of sale 2. Defendant has paid the 1 million claimed in
can only be denied by the defendant under oath and the promissory note (Annex "A" of the
failure to do so is also an admission of the deed (Sec. Complaint) as evidenced by an
8, Rule 8). Hence, a judgment in the pleadings can be "Acknowledgment Receipt" duly executed
rendered by the court without need of a trial. by plaintiff on January 30, 2015 in Manila
with his spouse signing as witness.
Q: Plaintiff files a request for admission and
serves the same on Defendant who fails, within A copy of the "Acknowledgment Receipt" is
the time prescribed by the rules, to answer the attached as Annex "1" hereof.
request. Suppose the request for admission
asked for the admission of the entire material Plaintiff filed a motion for judgment on the
pleadings on the ground that defendant's

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 QuAMTO (1987-2019)
answer failed to tender an issue as the must be given the benefit of all favourable
allegations therein on his defenses are sham for inferences as can reasonably be drawn from the
being inconsistent; hence, no defense at all. evidence. (Smart Communications v. Aldecoa, G.R.
Defendant filed an opposition claiming his No. 166330, September 11, 2013)
answer tendered an issue.
Q: Ms. A filed a complaint for damages against
a. Is judgment on the pleadings proper? Ms. B, alleging that Ms. B negligently caused the
demolition of her house's concrete fence, the top
A: No, the judgment on the pleadings is not proper. half of which fell on the front portion of Ms. A's
Judgment on the pleading is proper only when the car and permanently damaged its engine. In her
answer fails to tender an issue, or otherwise admits answer, Ms. B denied any personal liability for
the material allegations of the adverse party’s the damage caused to Ms. A's car, averring that
pleading. (Sec. 1, Rule 34) she merely acquiesced to the advice of her
contractor, XYZ Construction Co., to have the
When it appears, however, that not all the material concrete fence demolished. Thus, damages, if
allegations of the complaint were admitted in the any, should be collected from it.
answer, because some of them were either denied
or disputed, and the defendant has set up certain Thereafter, Ms. A filed a motion for judgment on
special defenses which, if proven, would have the the pleadings, alleging that Ms. B's statement in
effect of nullifying plaintiff’s main cause of action, her answer is actually a negative pregnant. Ms. B
judgment on the pleadings cannot be rendered. opposed the motion, reiterating her defense in
(PNB v. Aznar, G.R. No. 17105, May 30, 2011) her answer which purportedly rendered
judgment on the pleadings improper. Ms. B also
Clearly, since the defendant’s verified Answer moved for the dismissal of the case on the
specifically denied the execution of the promissory ground of non-joinder of XYZ Construction Co.,
note, or raised the affirmative of payment, judgment which she alleged is an indispensable party to
on the pleading is not proper. the case.

b. Defendant filed a motion for summary a. Is Ms. A's motion for judgment on the
judgment on the ground that there are no pleadings proper? Explain. (2019 Bar)
longer any triable genuine issues of facts.
Should the court grant defendant's motion A: Yes. When an answer fails to tender an issue, or
for summary judgment? (2015 Bar) otherwise admits the material allegations of the
adverse party’s pleading, judgment on the pleadings
A: No, the court should not grant the motion for is appropriate. The rule is stated in Section 1, Rule
summary judgment because the defense of payment 34 of the Rules of Court. In this relation,
is a genuine issue as to material fact that must be jurisprudence dictates that an answer fails to tender
resolved by the court upon presentation of an issue it does not comply with the requirements
evidence. of a specific denial as set out in Section 8 and 10,
Rule 8, resulting in the admission of the material
For a summary judgment to be proper, the movant allegations of the adverse party’s pleadings.
must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the As such, it is a form of judgment that is exclusively
amount of damages; and (b) the party presenting based on the submitted pleadings without the
the motion for summary judgment must be entitled introduction of evidence as the factual issues
to a judgment as a matter of law. A genuine issue is remain uncontroverted as in the case of Ms. B.
an issue of fact which requires the presentation of (Government Service Insurance System v. Prudential
evidence as distinguished from an issue which is Guarantee and Assurance, Inc., G.R. No. 165585,
sham, fictitious, contrived or false claim. November 20, 2013).

Relative thereto, when the facts pleaded by the Summary judgment v. Judgment on the
parties are disputed or contested, proceedings for a Pleadings
summary judgment cannot take place of a trial. The
evidence on record must be viewed in light most Q: Royal Bank (Royal) filed a complaint for a
favourable to the party opposing the motion who sum of money against Ervin and Jude before the

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 REMEDIAL Law
RTC of Manila. The initiatory pleading averred that not all the material allegations of the complaint
that on February 14, 2010, Ervin obtained a loan were admitted in the answer for some of them were
from Royal in the amount of P1 million, as either denied or disputed, and the defendant has set
evidenced by Promissory Note No. 007 (PN) up certain special defenses which, if proven, would
signed by Ervin. Jude signed a Surety Agreement have the effect of nullifyinf plaintiff’s main cause of
binding herself as surety for the loan. Royal action, judgment on the pleadings cannot be
made a final demand on February 14, 2015 for rendered (PNB v. Aznar, G.R. No. 171805, May 30,
Ervin and Jude (defendants) to pay, but the 2011).
latter failed to pay. Royal prayed that
defendants Ervin and Jude be ordered to pay the b. Distinguish “Summary Judgment” and
amount of P1 million plus interests. “Judgment on the Pleadings.”

In their answer, Ervin admitted that he obtained A: What distinguishes a judgment on the pleadings
the loan from Royal and signed the PN. Jude also from a summary judgment is the presence of issues
admitted that she signed the Surety Agreement. in the Answer to the Complaint. When the Answer
Defendants pointed out that the PN did not fails to tender any issue, that is, if it does not deny
provide the due date for payment, and that the the material allegations in the complaint or admits
loan has not yet matured as the maturity date said material allegations of the adverse party’s
was left blank to be agreed upon by the parties pleading by admitting the truthfulness thereof
at a later date. Defendants filed a Motion for a and/or omitting to deal with them at all, a
Judgment on the Pleadings on the ground that judgement on the pleadings is appropriate.
there is no genuine issue presented by the
parties’ submissions. Royal opposed the motion On the other hand, when the Answer specifically
on the ground that the PN’s maturity is an issue denies the material averments of the complaint or
that must be threshed out during trial. asserts affirmative defenses, or in other words
raises an issue, a summary judgment is proper
a. Resolve the motion with reasons. provided that the issue raised is not genuine. A
genuine issue means an issue of face which calls for
A: The motion for judgment on the pleadings should the presentation of evidence, as distinguished from
be denied. an issue which is fictitious or contrived or which
does not constitute a genuine issue for trial. (Basbas
First, judgment on the pleadings is available to the v. Sayson, G.R. No. 172660, August 24, 2011)
plaintiff and not to the defendant.
POST-JUDGMENT REMEDIES
Second, judgment on the pleadings is proper only
when the Answer fails to tender any issue, that is, if Matters not appealable
it does not deny the material allegations in the
complaint or admits said material allegations of the Q: What is an interlocutory order? (2006 Bar)
adverse party’s pleadings by admitting the
truthfulness thereof and/or omitting to deal with A: An interlocutory order is an order which decides
them at all. some point or matter between the commencement
and end of the suit but it is not the final decision on
Here, while the defendants’ Answer to the the whole controversy. It leaves something to be
Complaint practically admitted all the material done by the court before the case is finally decided
allegations therein, it nevertheless asserts the on the merits. (Metropolitan Bank&. Trust Co. v. CA,
affirmative defenses that the loan is not yet due. As G.R. No. 110147, April 17, 2001; Gallardo v. People,
issues obviuously arise from these affirmative G.R. No. 142030, April 21, 2005)
defences, a judgment on the pleadings is clearly
improper in this case. Q: After defendant has served and filed his
answer to plaintiff’s complaint for damages
Besides, it should be emphasized that judgement on before the proper RTC, plaintiff served and filed
the pleadings is based exclusively upon the a motion (with supporting affidavits) for a
allegations appearing in the pleadings of the parties summary judgment in his favour upon all of his
and the annexes, if any, without consideration of claims. Defendant served and filed his
any evidence aliunde. Henceforth, when it appears opposition (with supporting affidavits) to the

38


 QuAMTO (1987-2019)
motion. After due hearing, the court issued an to which the appeal is being taken; and stating the
order (1) stating that the court has found no material dates showing the timeliness of the appeal.
genuine issue as to any material fact and thus The notice of appeal shall be filed with the RTC
concluded that plaintiff is entitled to judgment which rendered the judgment appealed from and
in his favour as a matter of law except as to the copy thereof shall be served upon the adverse party
amount of damages recoverable, and (2) within 15 days from notice of judgment or final
accordingly ordering that plaintiff shall have order appealed from. But if the case admits of
judgment summarily against defendant for such multiple appeals or is a special proceeding, a record
amount as may be found due plaintiff for on appeal is required aside from the written notice
damages, to be ascertained by trial on October 7, of appeal to perfect the appeal, in which case the
2004, at 8:30 o’clock in the morning. May period for appeal and notice upon the adverse party
defendant properly take an appeal from said is not only 15 days but 30 days from notice of
order? Or, may defendant properly challenge judgment or final order appealed from. The full
said order thru a special civil action for amount of the appellate court docket fee and other
certiorari? Reason. (2004 Bar) lawful fees required must also be paid within the
period for taking an appeal, to the clerk of the court
A: No, plaintiff may not properly take an appeal which rendered the judgment or final order
from said order because partial summary appealed from (Secs. 4 and 5, Rule 41). The periods
judgments are interlocutory orders. There is still of 15 or 30 days above-stated are non-extendible.
something to be done, which is the trial for the
adjudication of damages (Province of Pangasinan v. In cases decided by the Regional Trial Court in the
Court of Appeals,G.R. No. 104266, March 31, 1993; exercise of its appellate jurisdiction, appeal to the
Guevarra v. Court of Appeals,G.R. No. L-49017 and L- Court of Appeals shall be by filing a verified petition
49024, August 30, 1983). But the defendant may for review with the Court of Appeals and furnishing
properly challenge said order through a special civil the RTC and the adverse party with copy thereof,
action for certiorari. (Sec. 1 [c] and last par. Rule 41) within 15 days from notice of judgment or final
order appealed from. Within the same period for
Modes of Appeal appeal, the docket fee and other lawful fees required
with the deposit for cost should be paid. The 15-day
Q: What are the modes of appeal to the Supreme period maybe extended for 15 days and another 15
Court? (2002 Bar) days for compelling reasons.

A: The modes of appeal to the Supreme Court are: Q: What is the mode of appeal applicable to the
(a) appeal by certiorari on pure questions of law following cases, and what issues may be raised
under Rule 45 through a petition for review on before the reviewing court/tribunal? (2017
certiorari; and (b) ordinary appeal in criminal cases Bar)
through a notice of appeal from convictions
imposing reclusion perpetua or life imprisonment a. The decision or final order of the National
or where a lesser penalty is involved but for Labor Relations Commission.
offenses committed on the same occasion or which
arose out of the same occurrence that gave rise to A: There is no mode of appeal from a decision or
the more serious offense (Sec. 3, Rule 122). final order of the NLRC, since such decision or final
Convictions imposing the death penalty are order is final and executory pursuant to the Labor
elevated through automatic review. Code (Art. 223). The remedy of the aggrieved party
is to file a special civil action for certiorari with the
Q: Distinguish the two (2) modes of appeal from Court of Appeals (St. Martin Funeral Home v. NLRC,
the judgment of the Regional Trial Court to the G.R. No. 103866, September 16, 1998). Such special
Court of Appeals. (2009 Bar) civil action may raise questions both of fact and law
(Aggabao v. COMELEC, G.R. No. 163756, January 26,
A: In cases decided by the Regional Trial Courts in 2005).
the exercise of their original jurisdiction, appeals to
the Court of Appeals shall be ordinary appeal by b. The judgment or final order of the RTC in the
filing written notice of appeal indicating the parties exercise of its appellate jurisdiction.
to the appeal; specifying the judgment/final order
or part thereof appealed from; specifying the court

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A: The mode of appeal applicable to judgments or allow a Fresh Period of 15 days within which to file
final orders of the RTC in the exercise of its appellate the notice of appeal in the RTC, counted from receipt
jurisdiction is a petition for review under Rule 42. of the order dismissing a motion for a new trial or
The petition may raise questions both of fact and motion for reconsideration. (Neypes v. Court of
law. (Sec. 2, Rule 42) Appeals, G.R. No. 121524, September 14, 2005)

Period of appeal Q: XXX received a copy of the RTC decision on
June 9, 1999; YYY received it on the next day,
Q: Defendant X received an adverse Decision of June 10, 1999. XXX filed a Notice of Appeal on
the RTC in an ordinary civil case on 02 January June 15, 1999. The parties entered into a
2003. He filed a Notice of Appeal on 10 January compromise on June 16, 1999. On June 13, 1999,
2003. On the other hand, plaintiff A received the YYY, who did not appeal, filed with the RTC a
same Decision on 06 January 2003 and, on 19 motion for approval of the Compromise
January 2003, filed a Motion for Agreement. XXX changed his mind and opposed
Reconsideration of the Decision. On 13 January the motion on the ground that the RTC has no
2003, defendant X filed a Motion withdrawing more jurisdiction. Rule on the motion assuming
his notice of appeal in order to file a Motion for that the records have not yet been forwarded to
New Trial which he attached. On January 2003, the CA. (1999 Bar)
the court denied A’s Motion to Withdraw Notice
of Appeal. Plaintiff A received the Order denying A: The contention of XXX that the RTC has no more
his Motion for Reconsideration on 03 February jurisdiction over the case is not correct because at
2003 and filed his Notice of Appeal on 05 the time that the motion to approve the compromise
February 2003. The court denied due course to had been filed, the period of appeal of YYY had not
A’s Notice of Appeal on the ground that the yet expired, the records of the case had not yet been
period to appeal already lapsed. forwarded to the Court of Appeals. The rules
provide that in appeals by notice of appeal, the court
a. Is the court’s denial of X’s Motion to loses jurisdiction over the case upon the perfection
Withdraw Notice of Appeal proper? of the appeals filed in due time and the expiration of
the time to appeal of the other parties The rules also
A: No, the court’s denial of X’s Motion to Withdraw provide that prior to the transmittal of the record,
Notice of Appeal is not proper, because the period of the court may, among others, approve
appeal of X has not yet expired. From January 2, compromises. (Sec. 9, Rule 41)
2003 when X received a copy of the adverse decision
up to January 13, 2003 when he filed his withdrawal Perfection of appeal
of appeal and Motion for New Trial, only ten (10)
days had elapsed and he had fifteen (15) days to do Q: When is an appeal from the RTC to the Court
so. of Appeals deemed perfected? (1999 Bar)

b. Is the court’s denial of due course to A’s A: An appeal from the Regional Trial Court to the
appeal correct? (2003 Bar) Court of Appeals is deemed perfected as to the
appellant upon the filing of a notice of appeal in the
A: No, the court’s denial of due course to A’s appeal Regional Trial Court in due time or within the
is not correct because the appeal was taken on time. reglementary period of appeal. An appeal by record
From January 6, 2003 when A received a copy of the on appeal is deemed perfected as to the appellant
decision up to January 19, 2003 when he filed a with respect to the subject matter thereof upon the
Motion for Reconsideration, only twelve (12) days approval of the record on appeal filed in due time.
had lapsed. Consequently, he had three (3) days (Sec. 9, Rule 4)
from receipt on February 2003 of the Order denying
his Motion for Reconsideration within which to Appeal from judgments or final orders of the
appeal. He filed his notice of appeal February 5, MTC; Appeal from judgments or final orders of
2003, or only two (2) days later. the RTC; Appeal from judgments or final orders
of the CTA
NOTE: To standardize the appeal periods provided
in the Rules and to afford litigants fair opportunity Q: Where and how will you appeal the following:
to appeal their cases, the Court deems it practical to

40


 QuAMTO (1987-2019)
a. An order of execution issued by the RTC. decision when the monetary awards were reduced
in the amended decision and in effect the amended
A: A petition for certiorari under Rule 65 before the decision superseded the original decision. A new
Court of Appeals. notice of appeal is required to comply with the
required contents thereof in respect of the amended
b. Judgment of RTC denying a petition for Writ decision. (Pacific Life Assurance Corporation v. Sison,
of Amparo. G.R. No. 122839, November 20, 1998; Magdalena
Estates, Inc. v. Caluag,G.R. No. L-16250, June 30,
A: Any party may appeal from the final judgment or 1964)
order to the Supreme Court by way of a petition for
review on certiorari under Rule 45 of the Rules of Q: On July 15, 2009, Atty. Manananggol was
Court. The period of appeal shall be five (5) working served copies of numerous unfavorable
days from the date of notice of the adverse judgments and orders. On July 29, 2009, he filed
judgment, and the appeal may raise questions of fact motions for reconsideration which were denied.
or law or both. (Sec. 19, Rule on the Writ of Amparo, He received the notices of denial of the motions
A.M. No. 07- 9-12-SC, September 25,2007) for reconsideration on October 2, 2009, a Friday.
He immediately informed his clients who, in
c. Judgment of MTC on a land registration case turn, uniformly instructed him to appeal. How,
based on its delegated jurisdiction. when and where should he pursue the
appropriate remedy for each of the following:
A: The appeal should be filed with the Court of
Appeals by filing a Notice of Appeal within 15 days a. Judgment of a Municipal Trial Court (MTC)
from notice of judgment or final order appealed pursuant to its delegated jurisdiction
from. (Sec. 34, B.P. Blg. 129, as by Republic Act No. dismissing his client’s application for land
7691) registration?

d. A decision of the Court of Tax Appeal's First A: By notice of appeal, within 15 days from notice of
Division. (2012 Bar) judgment or final order appealed from, to the Court
of Appeals.
A: The decision of the Court of Tax Appeals Division
may be appealed to the CTA en banc. The decisions b. Judgment of the Regional Trial Court (RTC)
of the Court of Tax Appeals are no longer appealable denying his client’s petition for a Writ of
to the Court of Appeals. Under the modified appeal Habeas Data?
procedure, the decision of a division of the CTA may
be appealed to the CTA en banc. The decision of the A: By verified petition for review on certiorari under
Rule 45, with the modification that appellant may
CTA en banc may in turn be directly appealed to the raise questions of fact or law or both, within 5 work
Supreme Court by way of a petition for review on days from date of notice of the judgment or final
certiorari under Rule 45 on questions of law. order to the Supreme Court. (Sec. 19, A.M. No. 08-1-
(Section 11, R.A. No. 9282) 16-SC)

Q: After receiving the adverse decision rendered c. Order of a Family Court denying his client’s
against his client, the defendant, Atty. Sikat duly petition for habeas corpus in relation to
filed a notice of appeal. For his part, the plaintiff custody of a minor child?
timely filed a motion for partial new trial to seek
an increase in the monetary damages awarded. A: By notice of appeal, within 48 hours from notice
The RTC instead rendered an amended decision of judgment or final order to the Court of Appeals.
further reducing the monetary awards. Is it (Sec. 14, R.A. No. 8369 in relation to Sec. 3, Rule 41)
necessary for Atty. Sikat to file a second notice of
appeal after receiving the amended decision? d. Order of the RTC denying his client’s
(2008 Bar) Petition for Certiorari questioning the
Metropolitan Trial Court’s (MeTC’s) denial
A: Yes, it is necessary for Atty. Sikat to file a second of a motion to suspend criminal
notice of appeal to the amended decision because a proceedings?
substantial change was made to the original

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A: By notice of appeal, within 15 days from notice of Rule 70 provides that the RTC judgment against the
the finalOrder, to the Court of Appeals. (Magestrado defendant shall be immediately executory, without
v. People, G.R. No. 148072, July 7, 2007) prejudice to a further appeal that may be taken
therefrom. (Uy v. Santiago, G.R. No. 131237, July 31,
e. Judgment of the First Division of the Court of 2000)
Tax Appeals (CTA) affirming the RTC
decision convicting his client for violation of Q: Judgment was rendered against defendant
the National Internal Revenue Code? (2009 Jaypee in an action for unlawful detainer. The
Bar) judgment ordered Jaypee to vacate and to pay
attorney's fees in favor of Bart, the plaintiff. To
A: By petition for review filed with the CTA en banc, prevent the immediate execution of the
within 30 days from receipt of the decision or ruling judgment, would you advise the posting of a
in question. (Sec. 9[b], Rule 9, Revised Rulesof Court supersedeas bond as counsel for Jaypee?
of Tax Appeals)
A: No, as counsel for Jaypee I would not advise the
Relief from judgments, orders and other posting of a supersedeas bond. Under the Rule 70, a
proceedings supersedeas bond is necessary to prevent
immediate execution only if the judgment awarded
Q: Mike was renting an apartment unit in the rents, damages, and costs. Here, the judgment only
building owned by Jonathan. When Mike failed ordered Jaypee to vacate and to pay attorney’s fees.
to pay six months’ rent, Jonathan filed an A supersedeas bond is not required to cover
ejectment suit. The Municipal Trial Court (MTC) attorney’s fees (Once v. Gonzalez, G.R. No. L-44806,
rendered judgment in favor of Jonathan, who March 31, 1977). Hence the posting of a supersedeas
then filed a motion for the issuance of a writ of bond is not required.
execution. The MTC issued the writ.
Q: Having obtained favorable judgment in his
a. How can Mike stay the execution of the MTC suit for a sum of money against Patricio, Orencio
judgment? Explain. sought the issuance of a writ of execution. When
the writ was issued, the sheriff levied upon a
A: Writ of Execution shall be issue if immediately parcel of land that Patricio owns, and a date was
upon motion, unless Mike (a) perfects his appeal to set for the execution sale.
the RTC, (b) files a sufficient supersedeas bond to
pay the rents, damages and costs accruing up to the a. How may Patricio prevent the sale of the
time of the judgment appealed from, and (c) property on execution?
deposits monthly with the RTC during the pendency
of the appeal the amount of rent due from time to A: Patricio may file a Petition for Relief with
time. (Sec. 19, Rule 70) preliminary injunction (Rule 38), posting a bond
equivalent to the value of the property levied upon;
b. Mike appealed to the Regional Trial Court or assail the levy as invalid if ground exists. Patricio
(RTC), which affirmed the MTC decision. may also simply pay the amount required by the
Mike then filed a petition for review with the writ and the costs incurred therewith.
Court of Appeals (CA). The CA dismissed the
petition on the ground that the sheriff had b. If Orencio is the purchaser of the property at
already executed the MTC decision and had the execution sale, how much does he have
ejected Mike from the premises, thus to pay? Explain.
rendering the appeal moot and academic. Is
the CA correct? Reasons. (2009 Bar) A: Orencio, the judgment creditor should pay only
the excess amount of the bid over the amount of the
A: No, the Court of Appeals is not correct. The judgment, if the bid exceeds the amount of the
dismissal of the appeal is wrong because the judgment.
execution of the RTC judgment is only in respect of
the eviction of the defendant from the leased c. If the property is sold to a third party at the
premises. Such execution pending appeal has no execution sale, what can Patricio do to
effect on the merits of the ejectment suit which still recover the property? Explain. (2009 Bar)
has to be resolved in the pending appeal. Sec. 21,

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 QuAMTO (1987-2019)
A: Patricio can exercise his right of legal redemption Time to file the petition
within 1 year from date of registration of the
certificate of sale by paying the amount of the Q: May an order denying the probate of a will
purchase price with interest of 1% monthly, plus still be overturned after the period to appeal
assessment and taxes paid by the purchaser, with therefrom has lapsed? Why? (2002 Bar)
interest thereon, at the same rate.
A: Yes, an order denying the probate of a will may
Q: A default judgment was rendered by the RTC be overturned after the period to appeal therefrom
ordering D to pay P a sum of money. The has lapsed. A petition for refief may be filed on the
judgment became final, but D filed a petition for grounds of fraud, accident, mistake or excusable
relief and obtained a writ of preliminary negligence within a period of sixty (60) days after
injunction staying the enforcement of the the petitioner learns of the judgment or final order
judgment. After hearing, the RTC dismissed D’s and not more than six (6) months after such
petition, whereupon P immediately moved for judgment or final order was entered. (Secs. 1 and 3,
the execution of the judgment in his favour. Rule 38; Soriano v. Asi, G.R. No. L-9633, January 29,
Should P’s motion be granted? Why? (2002 Bar) 1957)

A: P’s immediate motion for execution of the An action for annulment may also be filed on the
judgment in his favor should be granted because the ground of extrinsic fraud within four (4) years from
dismissal of D’s petition for relief also dissolves the its discovery, and if based on lack of jurisdiction,
writ of preliminary injunction staying the before it is barred by laches or estoppel. (Secs. 2 and
enforcement of the judgment, even if the dismissal 3, Rule 47)
is not yet final. (Golez v. Leonidas, G.R. No. L-56587,
August 31, 1981) Q: Miguel filed a Complaint for damages against
Jose, who denied liability and filed a Motion to
Q: After his properties were attached, defendant Dismiss on the ground of failure to state a cause
Porfirio filed a sufficient counterbond. The trial of action. In an Order received by Jose on
court discharged the attachment. Nonetheless, January 5, 2015, the trial court denied the
Porfirio suffered substantial prejudice due to Motion to Dismiss. On February 4, 2015, Jose
the unwarranted attachment. In the end, the sought reconsideration of that Order through a
trial court rendered a judgment in Porfirio's Motion for Reconsideration. Miguel opposed the
favor by ordering the plaintiff to pay damages Motion for Reconsideration on the ground that
because the plaintiff was not entitled to the it was filed out of time. Jose countered that the
attachment. Porfirio moved to charge the 15-day rule under Section 1 of Rule 52 does not
plaintiff's attachment bond. The plaintiff and his apply where the Order sought to be
sureties opposed the motion, claiming that the reconsidered is an interlocutory order that does
filing of the counterbond had relieved the not attain finality. Is Jose correct? Explain. (2016
plaintiff's attachment bond from all liability for Bar)
the damages. Rule on Porfirio's motion. (2008
Bar) A: Yes, Jose is correct. The 15-day period to file a
motion for reconsideration under Section 1 of Rule
A: Porfirio’s motion to charge plaintiff’s attachment 52 refers to a motion for reconsideration of a
bond is proper and can be granted. It is not correct judgment or final resolution or order.
to contend that Porfirio’s filing of a counterbond
constitutes a waiver of his right to proceed against Here, what is involved is an order denying a motion
the attachment bond for the damages he suffered to dismiss, which is not a final order as it does not
from the unwarranted attachment. It is a condition terminate the case. The order is simply an
inter alia of the applicant’s attachment bond that he interlocutory order which may be reconsidered by
will pay all the costs which may be adjudged to the the trial court at any time during the pendency of
adverse party and all damages which the latter may the case (Rasdas v. Estenor, G.R. 157605, December
sustain by reason of the attachment, if the court 13, 2005). It should also be noted that Miguel did not
shall finally adjudge that the applicant was not file a motion to declare Jose in default.
entitled thereto. (Sec. 4, Rule 57; D.M. Wenceslao and
Associates, Inc. v. Readycon Trading and Construction Annulment of judgments or final orders and
Corp., G.R. No. 154106, June 29, 2004) resolutions

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Q: Mr. X filed a complaint for sum of money remedies are no longer available through no fault of
against his old friend, Mr. Y. In order to ensure the petitioner. (Sec. 1, Rule 47)
that Mr. Y would not be able to file a responsive
pleading and much more, participate in the case, The grounds for annulment of judgment may be
Mr. X paid off Mr. Y's counsel, Atty. Z, who based only on the grounds of extrinsic fraud and
deliberately let the case proceed as such without lack of jurisdiction. Jurisprudence, however,
his client's knowledge. provides for the third ground which is denial of due
process. If based on extrinsic fraud, it must be filed
Eventually, judgment was rendered on March 1, within four (4) years from its discovery and if based
2016 in Mr. X's favor, a copy of which was on lack of jurisdiction, before it is barred by laches
received by Atty. Z on April 4, 2016. Bothered by or estoppel. (Teaño v. Municipality of Navotas, G.R
his conscience, Atty. Z brought the copy of the No. 205814, February 15, 2016)
decision to Mr.Y on June 1, 2016, thereby
surprising the latter and causing him grief. Q: Tom Wallis filed with the Regional Trial Court
Meanwhile, the decision became final and (RTC) a petition for declaration of nullity of his
executory in due course on April 19, 2016. marriage with Debi Wallis on the ground of
psychological incapacity of the latter. Before
Thereafter, Mr. Y took steps in vindicating his filing the petition, Tom Wallis had told Debi
rights, which culminated on August 15, 2016 Wallis that he wanted the annulment of their
when he, as represented by a new counsel, filed marriage because he was already fed up with
a petition for annulment of judgment before the her irrational and eccentric behaviour.
Court of Appeals (CA) on the ground of extrinsic However, in the petition for declaration of
fraud. The CA dismissed the petition on the nullity of marriage, the correct residential
ground that Mr. Y failed to submit a satisfactory address of Debi Wallis was deliberately not
explanation as to why he directly resorted to a alleged and instead, the resident address of
petition for annulment of judgment, when he their married son was stated. Summons was
could have filed a petition for relief from served by served by substituted service at the
judgment. address stated in the petition. For failure to file
an answer, Debi Wallis was declared in default
What are the differences between a petition for and Tom Wallis presented evidence ex parte.
relief from judgment and a petition for The RTC rendered judgment declaring the
annulment of judgment in terms of grounds and marriage null and void on the ground of
periods to file? (1998, 2019 BAR) psychological incapacity of Debi Wallis. Three
(3) years after the RTC judgment was rendered,
A: In a Petition for relief from judgment, when a Debi Wallis got hold of a copy thereof and
judgment or final order is entered or any other wanted to have the RTC judgment reversed and
proceeding is thereafter taken against a party in any set aside. If you are the lawyer of Debi Wallis,
court through fraud, accident, mistake, or excusable what judicial remedy or remedies will you take?
negligence, he may file a petition in such court and Discuss and specify the ground or grounds for
in the same case praying that the judgment, order or said remedy or remedies. (2014 Bar)
proceeding be set aside. (Section 1, Rule 38) It must
be filed within sixty (60) days after the petitioner A: Debi Wallis may file a Petition for Annulment of
learns of the judgment, and not more than six (6) Judgment under Rule 47 of the Rules of Court, on the
months after such judgment was entered, or such grounds of lack of jurisdiction, extrinsic fraud and
proceeding was taken, and must be accompanied denial of the right to due process (Diona v. Balange,
with affidavit showing the fraud, accident, mistake, G.R. No. 173589, January 7, 2013). An action for
or excusable negligence relied upon, and the facts annulment of judgment is resorted to in cases where
constituting the petitioner’s good and substantial the ordinary remedies of new trial, appeal, petition
cause of action or defense as the case may be. (Sec. for relief from judgment, or other appropriate
3, Rule 38) remedies are no longer available through no fault of
the appellant and is based on the grounds of
Whereas, in annulment of judgment, the Court of extrinsic fraud, and lack of jurisdiction. (Aleban v.
Appeals can annul the judgment of the RTC in civil Court of Appeals, G.R. No. 156021, September 23,
actions when the ordinary remedies of new trial, 2005)
appeal, petition for relief or other appropriate

44


 QuAMTO (1987-2019)
Relative thereto, the act of Tom Wallis in other disposition of such deposit/interest within
deliberately keeping Debi Wallis away from the 120 days from notice of the order. (Secs. 37 and 43,
Court, by intentionally alleging a wrong address in Rule 39)
the complaint constitutes extrinsic fraud. Moreover,
the failure of the Court to acquire jurisdiction over Q: A, a resident of Dagupan City, secured a
the person of the respondent, being an favorable judgment in an ejectment case against
indispensable party, necessitates the annulment of X, a resident of Quezon City, from the MTC of
judgment of the Regional Trial Court. Likewise, Manila. The judgment, entered on 15 June 1991,
there is denial of the right to due process when Debi had not as yet been executed.
Wallis was not given an opportunity to be heard in
the case. a. In July 1996, A decided to enforce the
judgment of the MTC of Manila. What is the
At any rate, the Court erred in declaring the procedure to be followed by A in enforcing
defendant in default because there is no default in a the judgment?
petition for declaration of nullity of marriage. (Sec.
3, Rule 9) A: A can enforce the judgment by another action
reviving the judgment because it can no longer be
EXECUTION AND SATISFACTION OF enforced by motion as the five-year period within
JUDGMENTS which a judgment may be enforced by motion has
already expired. (Sec. 6, Rule 39)
Q:
a. The writ of execution was returned b. With what court should A institute the
unsatisfied. The judgment obligee proceedings? (1997 Bar)
subsequently received information that a
bank holds a substantial deposit belonging A: A may institute the proceedings in the Regional
to the judgment obligor. If you are the Trial Court in accordance with the rules of venue
counsel of the judgment obligee, what steps because the enforcement of the judgment is a
would you take to reach the deposit to personal action incapable of pecuniary estimation.
satisfy the judgment?
Q: The trial court rendered judgment ordering
A: Since a writ of execution is valid for five years the defendant to pay the plaintiff moral and
from its issuance, the sheriff should be informed and exemplary damages. The judgment was served
requested to garnish or levy on execution the bank on the plaintiff on October 1, 2001 and on the
deposits belonging to the judgment obligor defendant on October 5, 2001. On October 8,
(Sec.9[c], Rule 39). Then the judgment creditor may 2001, the defendant filed a notice of appeal from
move for a court order directing the application of the judgment, but the following day, October 9,
such bank deposit to the satisfaction of the 2001, the plaintiff moved for the execution of
judgment. (Sec. 40, Rule 39) the judgment pending appeal. The trial court
granted the motion upon the posting by the
b. If the bank denies holding the deposit in the plaintiff of a bond to indemnify the defendant
name of the judgment obligor but your for damages it may suffer as a result of the
client's informant is certain that the deposit execution. The court gave as a special reason for
belongs to the judgment obligor under an its order the imminent insolvency of the
assumed name, what is your remedy to defendant. Is the order of execution pending
reach the deposit? (2008 Bar) appeal correct? Why? (2002 Bar)

A: To reach the bank deposit belonging to the A: No, because awards for moral and exemplary
judgment obligor but under an assumed name, a damages cannot be the subject of execution pending
motion may be filed for a court order requiring the appeal. The execution of any award for moral and
proper bank officer to appear in court for exemplary damages is dependent on the outcome of
examination under oath as to such bank deposit, the main case. Liabilities for moral and exemplary
and subsequently move for a court order damages, as well as the exact amounts remain
authorizing the filing of an action against such bank uncertain and indefinite pending resolution by the
for the recovery of the judgment obligor’s Court of Appeals or Supreme Court. (RCPI v. Lantin,
deposit/interest therein and to forbid a transfer or G.R. No. L-59311, January 31, 1985; International

45
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2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
School, Inc. v. Court of Appeals, G.R. No. 131109, June Under Section 10, Rule 39, if a judgment directs a
29, 1999) party to execute a conveyance of land or personal
property, or to deliver deeds, other documents, or
Q: Aldrin entered into a contract to sell with Neil to perform, any other specific act in connection
over a parcel of land. The contract stipulated a therewith, and the party fails to comply within the
P500,000.00 down payment upon signing and time specified, the court may direct the act to be
the balance payable in twelve (12) monthly done at the cost of the disobedient party by some
installments of Pl00,000.00. Aldrin paid the other person appointed by the court and the act
down payment and had paid three (3) monthly when so done shall have like effect as if done by the
installments when he found out that Neil had party. If real or personal property is situated within
sold the same property to Yuri for Pl.5 million the Philippines, the court in lieu of directing a
paid in cash. Aldrin sued Neil for specific conveyance thereof may by an order divest the title
performance with damages with the RTC. Yuri, of any party and vest it in others, which shall have
with leave of court, filed an answer-in- the force and effect of a conveyance executed in due
intervention as he had already obtained a TCT in form of law.
his name. After trial, the court rendered
judgment ordering Aldrin to pay all the The phrase “some other person appointed by the
instalments due, the cancellation of Yuri's title, court” may refer to the branch clerk of court, sheriff
and Neil to execute a deed of sale in favor of or even the Register of Deeds, and their acts when
Aldrin. When the judgment became final and done under such authority shall have the effect of
executory, Aldrin paid Neil all the installments having been done by Neil himself.
but the latter refused to execute the deed of sale
in favor of the former. Aldrin filed a "Petition for Q: JK’s real property is being attached by the
the Issuance of a Writ of Execution" with proper sheriff in a civil action for damages against LM.
notice of hearing. The petition alleged, among JK claims that he is not a party to the case; that
others, that the decision had become final and his property is not involved in said case; and
executory and he is entitled to the issuance of that he is the sole registered owner of said
the writ of execution as a matter of right. Neil property. Under the Rules of Court, what must JK
filed a motion to dismiss the petition on the do to prevent the sheriff from attaching his
ground that it lacked the required certification property? (2000 Bar)
against forum shopping.
A: If the real property is being attached, the remedy
a. Should the court grant Neil's Motion to is to file a third-party claim. The third-party
Dismiss? (2015 Bar) claimant should make an affidavit of his title to the
property attached, stating the grounds of his title
A: No. The motion to dismiss should be denied thereto, and serve such affidavit upon the sheriff
because the certification against forum shopping is while the latter has possession of the attached
only required in a complaint or other initiatory property, and a copy thereof upon the attaching
pleading (Sec. 5, Rule 7; Arquiza v. Court of Appeals, party (Sec. 14, Rule 57). The third-party claimant
G.R. No. 160479, June 8, 2005). Since a petition for the may also intervene or file a separate action to
issuance of the writ of execution is not an initiatory vindicate his claim to the property involved and
pleading, it does not require a certification against secure the necessary reliefs, such as preliminary
forum shopping. injunction, which will not be considered as
interference with a court of coordinate jurisdiction.
b. Despite the issuance of the writ of execution (Ong v. Tating, G.R. No. L-61042, April 15, 1987)
directing Neil to execute the deed of sale in
favor of Aldrin, the former obstinately Q: A obtained a money judgment against B. After
refused to execute the deed. What is Aldrin's the finality of the decision, the court issued a
remedy? (2015 Bar) writ of execution for the enforcement thereof.
Conformably with the said writ, the sheriff
A: Aldrin may move for the issuance of a court order levied upon certain properties under B’s name.
directing the execution of the Deed of Sale by some C filed a third-party claim over said properties
other person appointed by it. claiming that B had already transferred the
same to him. A moved to deny the third-party
claim and to hold B and C jointly and severally

46


 QuAMTO (1987-2019)
liable to him for the money judgment alleging and income, outside the province or city in which
that B had transferred said properties to C to such obligor resides. In this case the judgment
defraud him (A). After due hearing, the court obligor resides in Bulacan. (Sec. 36, Rule 39)
denied the third-party claim and rendered an
amended decision declaring B and C jointly and b. Seven years after the entry of judgment, the
severally liable to A for the money judgment. Is plaintiff filed an action for its revival. Can
the ruling of the court correct? Explain. (2005 the defendant successfully oppose the
Bar) revival of the judgment by contending that it
is null and void because the RTC-Manila did
A: No. C has not been properly impleaded as a party not acquire jurisdiction over his person?
defendant. He cannot be held liable for the judgment Why? (2002 Bar)
against A without a trial. In fact, since no bond was
filed by B, the sheriff is liable to C for damages. C can A: Yes, because the sheriff did not exert sufficient
file a separate action to enforce his third-party effort to serve summons personally on the
claim. It is in that suit that B can raise the ground of defendant within a reasonable time and hence the
fraud against C. However, the execution may RTC-Manila did not acquire jurisdiction over his
proceed where there is a finding that the claim is person. (Secs. 6 and 7, Rule 14; De Guzman v. Court of
fraudulent. (Tanongan v. Samson, G.R. No. 140889, Appeals, G.R. No. 120941, April 18, 1997)
May 9, 2002)
Enforcement and effect of foreign judgments or
Examination of judgment obligor when final orders
judgment is unsatisfied
Q: Under Article 1144 of the New Civil Code, an
Q: The plaintiff, a Manila resident, sued the action upon a judgment must be brought within
defendant, a resident of Malolos Bulacan, in the 10 years from the time the right of action
RTC –Manila for a sum of money. When the accrues. Is this provision applicable to an action
sheriff tried to serve the summons with a copy of filed in the Philippines to enforce a foreign
the complaint on the defendant at his Bulacan judgment? Explain. (2005 Bar)
residence, the sheriff was told that the
defendant had gone to Manila for business and A: No. Article 1144 of the Civil Code which requires
would not be back until the evening of that day. that an action upon a judgment (though without
So, the sheriff served the summons, together distinction) must be brought within 10 years from
with a copy of the complaint, on the defendant’s the time the right of action accrues, does not apply
18 year-old daughter, who was a college student. to an action filed in the Philippines to enforce a
For the defendant’s failure to answer the foreign judgment. While we can say that where the
complaint within the reglementary period, the law does not distinguish, we should not distinguish,
trial court, on motion of the plaintiff, declared still the law does not evidently contemplate the
the defendant in default. A month later, the trial inclusion of foreign judgments. A local judgment
court rendered judgment holding the defendant may be enforced by motion within five years and by
liable for the entire amount prayed for in the action within the next five years (Rule 39). That is
complaint. not the case with respect to foreign judgments
which cannot be enforced by mere motion.
a. After the judgment had become final, a writ
of execution was issued by the court. As the PROVISIONAL REMEDIES
writ was returned unsatisfied, the plaintiff
filed a motion for an order requiring the Preliminary attachment
defendant to appear before it and to be
examined regarding his property and Q: The plaintiff obtained a writ of preliminary
income. How should the court resolve the attachment upon a bond of P1 million. The writ
motion? was levied on the defendant’s property, but it
was discharged upon the posting by the
A: The RTC-Manila should deny the motion because defendant of a counterbond in the same amount
it is in violation of the rule that no judgment obligor of P1 million. After trial, the court rendered
shall be required to appear before a court, for the judgment finding that the plaintiff had no cause
purpose of examination concerning his property of action against the defendant and that he had

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2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
sued out the writ of attachment maliciously. Q: May a preliminary injunction be issued ex
Accordingly, the court dismissed the complaint parte? Why? (2001 Bar)
and ordered the plaintiff and its surety to pay
jointly to the defendant P1.5 million as actual A: No, a writ of preliminary injunction may not be
damages, P0.5 million as moral damages and issued ex parte. As provided in the Rules, no
P0.5 million as exemplary damages. Evaluate preliminary injunction shall be granted without
the soundness of the judgment from the point of hearing and prior notice to the party or person
view of procedure. (2002 Bar) sought to be enjoined (Sec. 5, Rule 58). The reason is
that a preliminary injunction may cause grave and
A: The judgment against the surety is not sound if irreparable injury to the party enjoined.
due notice was not given to him of the applicant for
damages (Sec. 20, Rule 57). Moreover, the judgment Q: Katy filed an action against Tyrone for
against the surety cannot exceed the amount of its collection of the sum of P1 million in the RTC,
counterbond of P1 million. with an ex parte application for a writ of
preliminary attachment. Upon posting of an
Q: In a case, the property of an incompetent attachment bond, the court granted the
under guardianship was in custodia legis. Can it application and issued a writ of preliminary
be attached? Explain. (1999 Bar) attachment. Apprehensive that Tyrone might
withdraw his savings deposit with the bank, the
A: Although the property of an incompetent under sheriff immediately served a notice of
guardianship is in custodia legis, it may be attached garnishment on the bank to implement the writ
as in fact it is provided that in such case, a copy of of preliminary attachment. The following day,
the writ of attachment shall be filed with the proper the sheriff proceeded to Tyrone’s house and
court and notice of the attachment served upon the served him the summons, with copies of the
custodian of such property (Sec. 7, Rule 57). complaint containing the application for writ of
attachment, Katy’s affidavit, order of
Q: May damages be claimed by a party attachment, writ of preliminary attachment and
prejudiced by a wrongful attachment even if the attachment bond. Within fifteen (15) days from
judgment is adverse to him? Explain. (1999 Bar) service of the summons, Tyrone filed a motion
to dismiss and to dissolve the writ of
A: Yes, damages may be claimed by a party preliminary attachment on the following
prejudiced by a wrongful attachment even if the grounds: (i) the court did not acquire
judgment is adverse to him. This is authorized by jurisdiction over his person because the writ
the Rules. A claim for damages may be made on was served ahead of the summons; (ii) the writ
account of improper, irregular or excessive was improperly implemented; and (iii) said writ
attachment, which shall be heard with notice to the was improvidently issued because the
adverse party and his surety or sureties. (Sec. 20, obligation in question was already fully paid.
Rule 57; Javellana v. D.O. Plaza Enterprises Inc., G.R. Resolve the motion with reasons. (2005 Bar)
No. L-28297, March 30, 1970)
A: The motion to dismiss and to dissolve the writ of
Q: May a writ of preliminary attachment be preliminary attachment should be denied.
issued ex parte? Briefly state the reason(s) for
your answer. (2001 Bar) The fact that the writ of attachment was served
ahead of the summons did not affect the jurisdiction
A: Yes, an order of attachment may be issued ex of the court over his person. It makes the writ,
parte or upon motion with notice and hearing (Sec. unenforceable (Sec. 5, Rule 57). However, all that is
2, Rule 57). The reason why the order may be issued needed to be done is to re- serve the writ. (Onate v.
ex parte is that requiring notice to the adverse party Abrogar, G.R. No. 197393, February 23, 1985)
and a hearing would defeat the purpose of the
provisional remedy and enable the adverse party to Further, the writ was improperly implemented.
abscond or dispose of his property before a writ of Serving a notice of garnishment, particularly before
attachment issues. (Mindanao Savings and Loan the summons is served, is not proper. It should be a
Association, Inc. v. Court of Appeals, G.R. No. 84481, copy of the writ of attachment that should be served
April 18, 1989) on the defendant, and a notice that the bank

48


 QuAMTO (1987-2019)
deposits are attached pursuant to the writ. (Sec. shall state how much funds or credits the garnishee
7[d], Rule 57) holds for the judgment obligor. (Section 9[c], Rule
39)
Also, the writ was improvidently issued if indeed it
can be shown that the obligation was already fully Levy on execution is a manner of satisfying or
paid. The writ is only ancillary to the main action executing judgment where the sheriff may sell
(Sec. 13, Rule 57). The alleged payment of the property of the judgment obligor if he is unable to
account cannot serve as a ground for resolving the pay all or part of the obligation in cash, certified
improvident issuance of the writ, because this bank check or any other manner acceptable to the
matter delves into the merits of the case, and obligee. If the obligor does not chose which among
requires full-blown trial. Payment, however, serves his property may be sold, the sheriff shall sell
as a ground for a motion to dismiss. personal property first and then real property
second. He must sell only so much of the personal or
Q: Distinguish attachment from garnishment. real property as is sufficient to satisfy judgment and
(1999 Bar) other lawful fees. (Sec. 9 [b], Rule 39)

A: Attachment and garnishment are distinguished Warrant of seizure is normally applied for with a
from each other as follows: attachment is a search warrant, in criminal cases. The warrant of
provisional remedy that effects a levy on property seizure must particularly describe the things to be
of a party as security for the satisfaction of any seized. While it is true that the property to be seized
judgment that may be recovered, while under a warrant must be particularly described
garnishment is a levy on debts due the judgment therein and no other property can be taken
obligor or defendant and other credits, including thereunder, yet the description is required to be
bank deposits, royalties and other personal specific only insofar as the circumstances will
property not capable of manual delivery under a ordinarily allow. An application for search and
writ of execution or a writ of attachment. seizure warrant shall be filed with the following: (a)
any court within whose territorial jurisdiction a
Q: Briefly discuss/differentiate the following crime was committed; (b) for compelling reasons
kinds of Attachment: preliminary attachment, stated in the application, any court within the
garnishment, levy on execution, warrant of judicial region where the crime was committed if
seizure and warrant of distraint and levy. (2012 the place of the commission of the crime is known,
Bar) or any court within the judicial region where the
warrant shall be enforced. However, if the criminal
A: Preliminary attachment is a provisional remedy action has already been filed, the application shall
under Rule 57. It may be sought at the only be made in the court where the criminal action
commencement of an action or at any time before is pending.
entry of judgment where property of an adverse
party may be attached as security for satisfaction of Warrant of distraint and levy is remedy available to
any judgment, where this adverse party is about to local governments and the BIR in tax cases to satisfy
depart from the Philippines, where he has intent to deficiencies or delinquencies in inheritance and
defraud or has committed fraud, or is not found in estate taxes, and real estate taxes. Distraint is the
the Philippines. An affidavit and a bond is required seizure of personal property to be sold in an
before the preliminary attachment issues. It is authorized auction sale. Levy is the issuance of a
discharged upon payment of a counter bond. certification by the proper officer showing the name
of the taxpayer and the tax, fee, charge or penalty
Garnishment is a manner of satisfying or executing due him. Levy is made by writing upon said
judgment where the sheriff may levy debts, credits, certificate the description of the property upon
royalties, commissions, bank deposits and other which levy is made.
personal property not capable of manual delivery
that are in the control or possession of third persons Q: A sues B for collection of a sum of money.
and are due the judgment obligor. Notice shall be Alleging fraud in the contracting of the loan, A
served on third parties. The third party garnishee applies for preliminary attachment with the
must make a written report on whether or not the court. The Court issues the preliminary
judgment obligor has sufficient funds or credits to attachment after A files a bond. While summons
satisfy the amount of the judgment. If not, the report on B was yet unserved, the sheriff attached B's

49
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BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
properties. Afterwards, summons was duly is valid notwithstanding the absence of a prior
served on B. B moves to lift the attachment. Rule service of summons to Agnete.
on this. (2012 Bar)
b. Was the writ of preliminary attachment
A: I will grant the motion since no levy on properly executed? (2014 Bar)
attachment pursuant to the writ shall be enforced
unless it is preceded or contemporaneously A: No. The writ of preliminary attachment was not
accompanied by service of summons. There must properly executed. Although a writ of attachment
the prior or contemporaneous service of summons may issue even before summons is served upon the
with the writ of attachment. (Sec. 5, Rule 57) defendant, the same, however, may not bind and
affect the defendant until jurisdiction over his
Q: Bayani, an overseas worker based in Dubai, person is obtained (Davao Light and Power Co., Inc.
issued in favor of Agente, a special power of v. Court of Appeals, G.R. No. 93262 December 29,
attorney to sell his house and lot. Agente was 1991). Thus, the writ of preliminary attachment
able to sell the property but failed to remit the must only be served simultaneous or at least after
proceeds to Bayani, as agreed upon. On his the service of summons to the defendant. (Torres v.
return to the Philippines, Bayani, by way of a Satsatin, G.R. No. 166759, November 25, 2009)
demand letter duly received by Agente sought to
recover the amount due him. Agente failed to Preliminary Injunction
return the amount as he had used it for the
construction of his own house. Thus, Bayani Q: Define a temporary restraining order (TRO).
filed an action against Agente for sum of money Differentiate a TRO from a status quo order.
with damages. Bayani subsequently filed an ex- (2006 Bar)
parte motion for the issuance of a writ of
preliminary attachment duly supported by an A: A temporary restraining order is issued upon
affidavit. The court granted the ex parte motion application of a party and upon the posting of the
and issued a writ of preliminary attachment required bond. On the other hand, a status quo
upon Bayani’s posting of the required bond. order maybe issued motu proprio on equitable
Bayani prayed that the court’s sheriff be considerations, and does not require the posting of
deputized to serve and implement the writ of a bond. Unlike a temporary restraining order or a
attachment. On November 19, 2013, the Sheriff preliminary injunction, a status quo order is more in
served upon Agente the writ of attachment and the nature of a cease and desist order, since it
Agente levied on the latter’s house and lot. On neither directs the doing or undoing of acts as in the
November 20, 2013, the Sheriff served upon case of prohibitory or mandatory injunctive relief.
Agente summons and a copy of the complaint. (Garcia v. Mojica, G.R. No. 139043, September 10,
On November 22, 2013, Agente filed an Answer 1999)
with Motion to Discharge the Writ if Attachment
alleging that at the time the writ of preliminary Q: What are the requisites for the issuance of (a)
attachment was issued, he has not been served a writ of preliminary injunction; and (b) a final
with summons and, therefore, it was improperly writ of injunction? (2006 Bar)
issued. (2014 Bar)
A: The requisites for the issuance of a writ of
a. Is Agente correct? preliminary injunction are: (1) a right in esse or a
clear and unmistakable right to be protected; (2) a
A: No. Agente is not correct. Section 2, Rule 57 violation of that right; (3) that there is an urgent and
provides that a writ of attachment may be issued ex permanent act and urgent necessity for the writ to
parte or upon motion with notice and hearing by the prevent serious damage. (Tayag v. Lacson, G.R. No.
Court in which the action is pending. Under the 134971, March 25, 2004)
Rules, the applicant of the writ is only required to (i)
submit an affidavit and (ii) post a bond before the A final writ of injunction may be granted if after trial
court can validly issue the writ of attachment. The of the action, it appears that the applicant is entitled
Rules do not require prior service of summons for to have the act or acts complained of permanently
the proper issuance of a writ of attachment. (Torres enjoined. (Sec. 9, Rule 58)
v. Satsatin, G.R. No. 166759, November 25, 2009).
Accordingly, the issuance of the writ of attachment

50


 QuAMTO (1987-2019)
Q: Distinguish between injunction as an Dante should bring an original (or an equivalent
ancillary remedy and injunction as a main copy) printout of: (a) the online ticket purchase
action. (2006 Bar) using his credit card; (b) the phone call log to show
that he already alerted the credit card company of
A: Injunction as an ancillary remedy presupposes his loss; and (c) his credit card billing statement-
the existence of a principal or a main action bearing the online ticket transaction.
(Vallangca v. Court of Appeals, G.R. No. 55336, May 4,
1989). Its main function is to preserve the status quo Q: Can a suit for injunction be aptly filed with the
until the merits can be heard and resolved. (Urbanes Supreme Court to stop the President of the
v. Court of Appeals, G.R. No. 117964, March 28, 2001) Philippines from entering into a peace
agreement with the National Democratic Front?
On the other hand, an injunction as the main action (2003 Bar)
is brought specifically to obtain a judgment
perpetually restraining or commanding the A: A suit for injunction cannot be filed with the
performance of an act after trial. (Del Mar v. Supreme Court to stop the President of the
PAGCOR, G.R. No. 138298, November 29, 2000) Philippines from entering into a peace agreement
with the National Democratic Front, which is a
Q: While window-shopping at the mall on August purely political question (Madarang v.
4, 2008, Dante lost his organizer including his Santamaria,G.R. No. L- 13316, December 11, 1917).
credit card and billing statement. Two days The President of the Philippines is immune from
later, upon reporting the matter to the credit suit.
card company, he learned that a one-way
airplane ticket was purchased online using his Q: May the RTC issue injunction without bond?
credit card for a flight to Milan in mid- August (2006 Bar)
2008. Upon extensive inquiry with the airline
company, Dante discovered that the plane ticket A: Yes, if the injunction issued is a final injunction.
was under the name of one Dina Meril. Dante Generally, however, a preliminary injunction may
approaches you for legal advice. not be issued without the posting of a bond, unless
exempted by the trial court (Sec. 4 [b], Rule 58) or
a. What is the proper procedure to prevent otherwise provided for by law.
Dina from leaving the Philippines?
Q: An application for a writ of preliminary
A: (1) The filing of an appropriate criminal action injunction with a prayer for a temporary
cognizable by the RTC against Dina and the filing in restraining order is included in a complaint and
said criminal action a Motion for the issuance of a filed in a multi-sala RTC consisting of Branches
Hold Departure Order; (2) thereafter, a written 1, 2, 3 and 4. Being urgent in nature, the
request with the Commissioner of the Bureau of Executive Judge, who was sitting in Branch 1,
Immigration for a Watch List Order pending the upon the filing of the aforesaid application
issuance of the Hold Departure Order should be immediately raffled the case in the presence of
filed; (3) then, the airline company should be the judges of Branches 2, 3 and 4. The case was
requested to cancel the ticket issued to Dina. raffled to Branch 4 and judge thereof
immediately issued a temporary restraining
b. Suppose an Information is filed against Dina order. Is the temporary restraining order valid?
on August 12, 2008 and she is immediately Why? (2001, 2006 Bar)
arrested. What pieces of electronic evidence
will Dante have to secure in order to prove A: No. It is only the Executive Judge who can issue
the fraudulent online transaction? (2010 immediately a temporary restraining order
Bar) effective only for seventy-two (72) hours from
issuance. No other Judge has the right or power to
A: He will have to present (a) his report to the bank issue a temporary restraining order ex parte. The
that he lost his credit card; (b) that the ticket was Judge to whom the case is assigned will then
purchased after the report of the lost add; and (c) conduct a summary hearing to determine whether
the purchase of one-way ticket. the temporary restraining order shall be extended,
but in no case beyond 20 days, including the original
72- hour period. (Sec. 5, Rule 58)

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Q: May a justice of a Division of the Court of a real property with prayer for the issuance of a
Appeals issue a TRO? (2006 Bar) writ of preliminary injunction against Z Bank.
Immediately thereafter, the RTC issued an ex
A: Yes, a Justice of a Division of the Court of Appeals parte writ of preliminary injunction enjoining Z
may issue a TRO, as authorized under Rule 58 and Bank from disposing of the foreclosed property
by Section 5, Rule VI of the Internal Rules of Court of or taking possession thereof.
Appeals which additionally requires that the action
shall be submitted on the next working day to the Did the RTC err in issuing the writ of
absent members of the division for their ratification, preliminary injunction ex parte? Explain. (2019
modification or recall. (Heirs of Reyes v. Court of Bar)
Appeals, G.R. Nos. 135180-81; 135425-26, August 16,
2000) A: Yes. An application for the issuance of a writ of
preliminary injunction and/or TRO may be granted
Q: A temporary restraining order (TRO) was upon the filing of a verified application showing
issued on September 20, 2017 by the RTC facts entitling the applicant to the relief demanded.
against defendant Jeff enjoining him from Essential to granting the injunctive relief is the
entering the land of Regan, the plaintiff. On existence of an urgent necessity for the writ in order
October 9, 2017, upon application of Regan, the to prevent serious damage. A TRO issues only if the
trial court, allegedly in the interest of justice, matter is of such extreme urgency that grave
extended the TRO for another 20 days based on injustice and irreparable injury would arise unless
the same ground for which the TRO was issued. it is immediately issued.
On October 15, 2017, Jeff entered the land
subject of the TRO. May Jeff be liable for Based on Section 5, Rule 58 of the Rules of Court, an
contempt of court? Why? (2017 Bar) ex parte TRO may be issued based on the following:

A: No, Jeff may not be liable for contempt. Under the 1. It is issued only in matters of extreme
Rule on Preliminary Injunction, a TRO is effective urgency and the applicant will suffer grave
only for a period of 20 days from service on the injustice and irreparable injury;
person sought to be enjoined. It is deemed 2. It shall be effective for only 72 hours
automatically vacated if the application for counted from its issuance;
preliminary injunction is denied or not resolved 3. Within this original 72-hour period, the
within the said period and no court shall have the issuing judge must conduct a summary
authority to extend or renew the TRO on the same hearing to determine the proprietary of
ground for which it was issued (Sec. 5, Rule 58). Here extending the TRO; and
the extension of the TRO by the RTC was invalid 4. In no case shall the total period of the TRO
since it was for the same ground for which the TRO which shall include the original 72 hours
was issued. Hence the TRO was deemed exceed 20 days.
automatically vacated and thus Jeff may not be liable
for contempt for ignoring it. Within the aforesaid 72-hours, the judge before
whom the case is pending shall conduct a summary
Q: Mrs. G defaulted in the payment of her loan hearing to determine whether the TRO shall be
obligation with Z Bank. As such, Z Bank extra- extended until the application for preliminary
judicially foreclosed Mrs. G's mortgaged injunction can be heard. In no case shall the total
property and sold it at public auction where it period of effectivity of the TRO exceed 20 days,
emerged as the highest bidder. Eventually, a including the original 72 hours provided herein.
certificate of sale was issued in Z Bank's favor,
and title to the property was later consolidated Thus, the issuance of the ex parte 72 hours TRO
under the bank's name. upon compliance with the parameters above, shall
be included in the computation of the 20-day period.
Claiming that Z Bank used fraudulent The same cannot be extended. After the lapsed 20
machinations in increasing the interest and days period and no injunction has been issued, the
penalty charges on the loan, thereby making it TRO becomes functus officio.
impossible for her to pay, Mrs. G filed before the
Regional Trial Court (RTC) a complaint for The criterion above cited are absent in the case of
cancellation of consolidation of ownership over Mrs. G. Hence, the RTC erred in the issuance of ex

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 QuAMTO (1987-2019)
parte Preliminary Injunction against Z Bank. petition for support pendente lite. The accused,
(Rodriguez v. Noel, A.M. No. RTJ-18-2525, June 25, however, insists that he cannot be made to give
2018) such support arguing that there is as yet no
finding as to his guilt. Would you agree with the
Receivership trial court if it denied the application for
support pendente lite? Explain. (1999, 2001)
Q: Joaquin filed a complaint against Jose for the
foreclosure of a mortgage of a furniture factory A: No. The provisional remedy of support pendente
with a large number of machinery and lite may be granted by the RTC in the criminal action
equipment. During the pendency of the for rape. In criminal actions where the civil liability
foreclosure suit, Joaquin learned from reliable includes support for the offspring as a consequence
sources that Jose was quietly and gradually of the crime and the civil aspect thereof has not been
disposing of some of his machinery and waived, reserved or instituted prior to its filing, the
equipment to a businessman friend who was accused may be ordered to provide support
also engaged in furniture manufacturing such pendente lite to the child born to the offended party
that from confirmed reports Joaquin gathered, allegedly because of the crime. (Sec. 6, Rule 61)
the machinery and equipment left with Jose
were no longer sufficient to answer for the SPECIAL CIVIL ACTIONS
latter’s mortgage indebtedness. In the
meantime, judgment was rendered by the court Certiorari, prohibition and mandamus
in favor of Joaquin but the same is not yet final.
Knowing what Jose has been doing. If you were Q: Distinguish error of jurisdiction from error of
Joaquin’s lawyer, what action would you take to judgment. (2012 Bar)
preserve whatever remaining machinery and
equipment are left with Jose? Why? (2001 Bar) A: An error of judgment is one which the court may
commit in the exercise of its jurisdiction. Such an
A: To preserve whatever remaining machinery and error does not deprive the court of jurisdiction and
equipment are left with Jose, Joaquin's lawyer is correctible only by appeal; whereas an error of
should file a verified application for the jurisdiction is one which the court acts without or in
appointment by the court of one or more receivers. excess of its jurisdiction. Such an error renders an
The Rules provide that receivership is proper in an order or judgment void or voidable and is
action by the mortgagee for the foreclosure of a correctible by the special civil action of certiorari.
mortgage when it appears that the property is in (Dela Cruz v. Moir, G.R. No. L-12256, February 6,
danger of being wasted or dissipated or materially 1917; Cochingyan v. Cloribel, G.R. No. 27070-71,
injured and that its value is probably insufficient to April 22, 1977; Fortich v. Corona, G.R. No. 131457,
discharge the mortgage debt. (Sec. 1[b], Rule 59) April 24, 1998; Artistica Ceramica, Inc. v. Ciudad Del
Carmen Homeowner's Association, Inc., G.R. Nos.
Replevin 167583-84, June 16, 2010)

Q: What is replevin? (1999 Bar) Q: Compare the certiorari jurisdiction of the
Supreme Court under the Constitution with that
A: Replevin or delivery of personal property consists under Rule 65 of the Rules of Civil Procedure.
in the delivery, by order of the court, of personal (2008 Bar)
property by the defendant to the plaintiff, upon the
filing of a bond. (Calo v. Roldan, G.R. No. L-252, March A: Under the Constitution, the certiorari jurisdiction
30, 1946) of the Supreme Court provides for its expanded
jurisdiction power of judicial review over all
Support pendente lite branches or instrumentalities of the government
where there is a grave abuse of discretion
Q: Before the RTC, A was charged with rape of his amounting to lack or excess of jurisdiction, as
16-year old daughter. During the pendency of provided in Section 1, second par., Article VIII of the
the case, the daughter gave birth to a child 1987 Constitution.
allegedly as a consequence of the rape.
Thereafter, she asked the accused to support the Under Rule 65 of the Rules of Court, the certiorari
child, and when he refused, the former filed a jurisdiction of the Supreme Court is limited to acts

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done without or in excess of jurisdiction or grave Q: The defendant was declared in default in the
abuse of discretion amounting to lack or excess of RTC for his failure to file an answer to a
jurisdiction, by a tribunal, board or officer complaint for a sum of money. On the basis of the
exercising judicial or quasi-judicial functions only. plaintiff’s ex parte presentation of evidence,
And the period fixed for availing of the remedy is not judgment by default was rendered against the
later than 60 days from notice of judgment; order or defendant. The default judgment was served on
resolution in question. (Secs. 1 and 4, Rule 65) the defendant on October 1, 2001. On October
10, 2001, he files a verified motion to lift the
Q: AB mortgaged his property to CD. AB failed to order of default and to set aside the judgment. In
pay his obligation and CD filed an action for his motion, the defendant alleged that,
foreclosure of mortgage. After trial, the court immediately upon receipt of the summons, he
issued an Order granting CD’s prayer for saw the plaintiff and confronted him with his
foreclosure of mortgage and ordering AB to pay receipt evidencing his payment and the plaintiff
CD the full amount of the mortgage debt assured him that he would instruct his lawyer to
including interest and other charges not later withdraw the complaint. The trial court denied
than 120 days from date of receipt of the Order. the defendant’s motion because it was not
AB received the Order on August 10, 1999. No accompanied by an affidavit of merit. The
other proceeding took place thereafter. On defendant filed a special civil action for
December 20, 1999, AB tendered the full certiorari under Rule 65 challenging the denial
amount adjudged by the court to CD but the order.
latter refused to accept it on the ground that the
money was tendered beyond the 120-day period a. Is certiorari under Rule 65 the proper
granted by the court. AB filed a motion in the remedy? Why?
same court praying that CD be directed to
receive the amount tendered by him on the A: Yes. The petition for certiorari under Rule 65
ground that the Order does not comply with the filed by the defendant is the proper remedy because
provisions of Section 2, Rule 68 of the Rules of appeal is not a plain, speedy and adequate remedy
Court which give AB 120 day from entry of in the ordinary course of law. In appeal, the
judgment, and not from date of receipt of the defendant in default can only question the decision
Order. The court denied his motion on the in the light of the evidence of the plaintiff. The
ground that Order had already become final and defendant cannot invoke the receipt to prove
can no longer be amended to conform with payment of his obligation to the plaintiff.
Section 2, Rule 68. Aggrieved, AB files a petition
for certiorari against the Court and CD. Will the b. Did the trial court abuse its discretion or act
petition for certiorari prosper? Explain. (2000 without or in excess of its jurisdiction in
Bar) denying the defendant’s motion to lift the
order of default judgement? Why? (2002
A: Yes. The court erred in issuing an Order granting Bar)
CD’s prayer for foreclosure of mortgage and
ordering AB to pay CD the full amount of the A: Yes, the trial court gravely abused its discretion
mortgage and ordering AB to pay CD the full amount or acted without or in excess of jurisdiction in
of the mortgage debt including interest and other denying the defendant’s motion because it was not
charges not later than 120 days from receipt of the accompanied by a separate affidavit of merit. In his
Order. The court should have rendered a judgment verified motion to lift the order of default and to set
which is appealable. Since no appeal was taken, the aside the judgment, the defendant alleged that
judgment became final on August 25, 1999, which is immediately upon the receipt of the summons, he
the date of entry of judgment (Sec. 2, Rule 36). saw the plaintiff and confronted him with his receipt
Hence, AB had up to December 24, 1999 within showing payment and that the plaintiff assured him
which to pay the amount due (Sec. 2, Rule 68). The that he would instruct his lawyer to withdraw the
court gravely abused its discretion amounting to complaint. Since the good defense of the defendant
lack or excess of jurisdiction in denying AB’s motion was already incorporated in the verified motion,
praying that CD be directed to receive the amount there was no need for a separate affidavit of merit.
tendered. (Capuz v. Court of Appeals, G.R. No. 112795, June 27,
1994; Mago v. Court of Appeals, G.R. No. 115624,
February 25, 1999)

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 QuAMTO (1987-2019)
Supreme Court from the Court of Appeals,
Q: Explain each mode of Certiorari: Sandiganbayan and the Regional Trial
Court under Rule 45.
a. As a mode of appeal from the Regional Trial b. The first can be filed only on the grounds of
Court or the Court of Appeals to the Supreme lack or excess of jurisdiction or grave abuse
Court. of discretion tantamount to lack or excess
of jurisdiction, while the second is based on
A: A petition for review on certiorari under Rule 45 the errors of law of the lower court.
is a mode of appeal on pure questions law from a c. The first should be filed within sixty (60)
judgment or final order or resolution of the Regional days from notice of the judgment, order or
Court or the Court of Appeals to the Supreme Court. resolution sought to be assailed (Sec. 4, Rule
65), while the second should be filed within
b. As special civil action from the Regional fifteen (15) days from notice of the
Trial Court or the Court of Appeals to the judgment or final order or resolution
Supreme Court. appealed from, or of the denial of the
petitioner’s motion for new trial or
A: A special civil action for certiorari under Rule 65, reconsideration filed in due time after
is an original action from the Regional Trial Court or notice of the judgment. (Sec. 2, Rule 45)
the Court of Appeals to the Supreme Court against d. The first cannot generally be availed of as a
any tribunal, board or officer exercising judicial or substitute for a lost appeal under Rules 40,
quasi-judicial functions raising the issue of lack or 41, 42, 43 and 45.
excess of jurisdiction or grave abuse of discretion e. Under the first, the lower court is
amounting to lack or excess of jurisdiction, there impleaded as a party respondent (Sec. 5,
being no appeal or any plain, speedy and adequate Rule 65), while under the second, the lower
remedy in the ordinary course of law. court is not impleaded. (Sec. 4, Rule of 45)

c. As a mode of review of the decisions of the Q: May the aggrieved party file a petition for
National Labor Relations Commission and certiorari in the Supreme Court under Rule 65 of
the Constitutional Commissions. (2006 Bar) the 1997 Rules of Civil Procedure, instead of
filing a petition for review on certiorari under
A: The mode of review of the decision of the NLRC is Rule 45 thereof for the nullification of a decision
via a special civil action for certiorari under Rule 65, of the Court of Appeals in the exercise either of
but pursuant to the hierarchy of the courts its original or appellate jurisdiction? Explain.
enunciated in the case of St. Martin’s Funeral Homes (1999, 2005 Bar)
v. NLRC (G.R. No. 130866, September 16, 1998) the
same should be filed in the Court of Appeals. A: To nullify a decision of the Court of Appeals the
aggrieved party should file a petition for review on
The mode of review of the decisions of two certiorari in the Supreme Court under Rule 45 of the
Constitutional Commissions, the Commission on Rules of Court instead of filing a petition for
Elections and the Commission on Audit, as provided certiorari under Rule 65 except under very
under Rule 64 is a special civil action for certiorari exceptional circumstances. Certiorari is not a
under Rule 65. Decisions of the Civil Service substitute for a lost appeal. It should be noted,
Commission, however, are reviewable by petition however, when the Court of Appeals imposes the
for review to be filed with the Court of Appeals death penalty, or a lesser penalty for offenses
under Rule 43. committed on such occasion, appeal by petition for
review or ordinary appeal. In cases when the Court
Q: Differentiate certiorari as an original action of Appeals imposes reclusion perpetua, life
from certiorari as a mode of appeal. (1998, 1999 imprisonment or a lesser penalty, appeal is by
Bar) notice of appeal filed with the Court of Appeals.

A: Certiorari as an original action and certiorari as a Q: After an information for rape was filed in the
mode of appeal may be distinguished as follows: RTC, the DOJ Secretary, acting on the accused's
petition for review, reversed the investigating
a. The first is a special civil action under Rule prosecutor's finding of probable cause. Upon
65, while the second is an appeal to the order of the DOJ Secretary, the trial prosecutor

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filed a Motion to Withdraw Information which 1, Rule 36. Being void, appeal is not available. The
the judge granted. The order of the judge stated proper remedy is certiorari under Rule 65.
only the following:
Q: Jaime was convicted for murder by the
"Based on the review by the DOJ Secretary of the Regional Trial Court of Davao City in a decision
findings of the investigating prosecutor during promulgated on September 30, 2015. On
the preliminary investigation, the Court agrees October 5, 2015, Jaime filed a Motion for New
that there is no sufficient evidence against the Trial on the ground that errors of law and
accused to sustain the allegation in the irregularities prejudicial to his rights were
information. The motion to withdraw committed during his trial. On October 7, 2015,
Information is, therefore, granted." the private prosecutor, with the conformity of
the public prosecutor, filed an Opposition to
If you were the private prosecutor, what should Jaime's motion. On October 9, 2015, the court
you do? Explain. (2003, 2012 Bar) granted Jaime's motion. On October 12, 2015,
the public prosecutor filed a motion for
A: If I were the private prosecutor, I would file a reconsideration. The court issued an Order
petition for certiorari under Rule 65 with the Court dated October 16, 2015 denying the public
of Appeals (Cerezo v. People, GR No.185230, June 1, prosecutor's motion for reconsideration. The
2011). It is well-settled that when the trial court is public prosecutor received his copy of the order
confronted with a motion to withdraw an of denial on October 20, 2015 while the private
Information (on the ground of lack of probable prosecutor received his copy on October 26,
cause to hold the accused for trial based on a 2015.
resolution of the DOJ Secretary), the trial court has
the duty to make an independent assessment of the a. What is the remedy available to the
merits of the motion. It may either agree or disagree prosecution from the court's order granting
with the recommendation of the Secretary. Reliance Jaime's motion for new trial?
alone on the resolution of the Secretary would be an
abdication of the trial court’s duty and jurisdiction A: The remedy of the prosecution is to file a petition
to determine a prima facie case. The court must for certiorari under Rule 65 of the Rules of Court,
itself be convinced that there is indeed no sufficient because the denial of a motion for reconsideration
evidence against the accused. Otherwise, the judge is merely an interlocutory order and there is no
acted with grave abuse of discretion if he grants the plain, speedy and adequate remedy under the
Motion to Withdraw Information by the trial course of law.
prosecutor. (Harold Tamargo v. Romulo Awingan et.
al. G.R. No. 177727, January 19, 2010) Be that as it may, it may be argued that appeal is the
appropriate remedy from an order denying a
Q: After plaintiff in an ordinary civil action motion for reconsideration of an order granting a
before the RTC, ZZ has completed presentation motion for new trial because an order denying a
of his evidence, defendant without prior leave of motion for reconsideration was already removed in
court moved for dismissal of plaintiff’s the enumeration of matters that cannot be a subject
complaint for insufficiency of plaintiff’s of an appeal under Section 1, Rule 41 of the Rules of
evidence. After due hearing of the motion and Court.
the opposition thereto, the court issued an
order, reading as follows: “The Court hereby b. In what court and within what period should
grants defendant’s motion to dismiss and a remedy be availed of?
accordingly orders the dismissal of plaintiff’s
complaint, with the costs taxed against him. It is A: Following the principle of judicial hierarchy, the
so ordered.” Is the order of dismissal valid? May petition for certiorari should be filed before the
plaintiff properly take an appeal? Reason. (2004 Court of Appeals within sixty (60) days from receipt
Bar) of the copy of the order of denial of the public
prosecutor’s motion for reconsideration, or on
A: The order or decision is void because it does not October 20, 2015.
state findings of fact and of law, as required by
Section 14, Article VIII of the Constitution and Sec. c. Who should pursue the remedy? (2015 Bar)

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 QuAMTO (1987-2019)
A: The Office of the Solicitor General (OSG) should particular way discretion is to be exercised, or to
pursue the remedy. In criminal proceedings on compel the retraction or reversal of an action
appeal in the Court of Appeals or in the Supreme already taken in the exercise of judgment or
Court, the authority to represent the people is discretion. (Ampatuan, Jr. v. De Lima, G.R. No.
vested solely in the Solicitor General. Under P.D. No. 197291, April 3, 2013)
4478 among the specific powers and functions of
the OSG is to “represent the government in the Evidently, the Ombudsman’s act of granting the
Supreme Court and the Court of Appeals in all treasurer immunity from prosecution under such
criminal proceedings.” This provision has been terms and conditions as it may determine (Sec. 17,
carried over to the Revised Administrative Code R.A. 6770) is a discretionary duty that may not be
particularly in Book IV, Title III, Chapter 12 thereof. compelled by the extraordinary writ of mandamus.
Without doubt, the OSG is the appellate counsel of
the People of the Philippines in all criminal cases. Mandamus
(Cariño v. de Castro, G.R. No. 176084, April 30, 2008)
Q: Petitioner Fabian was appointed Election
Q: The Ombudsman found probable cause to Registrar of the Municipality of Sevilla
charge with plunder the provincial governor, supposedly to replace the respondent Election
vice governor, treasurer, budget officer, and Registrar Pablo who was transferred to another
accountant. An Information for plunder was municipality without his consent and who
filed with the Sandiganbayan against the refused to accept his aforesaid transfer, much
provincial officials except for the treasurer who less to vacate his position in Bogo Town as
was granted immunity when he agreed to election registrar, as in fact he continued to
cooperate with the Ombudsman in the occupy his aforesaid position and exercise his
prosecution of the case. Immediately, the functions thereto. Petitioner Fabian then filed a
governor filed with the Sandiganbayan a petition for mandamus against Pablo but the
petition for certiorari against the Ombudsman trial court dismissed Fabian’s petition
claiming there was grave abuse of discretion in contending that quo warranto is the proper
excluding the treasurer from the Information. remedy. Is the court correct in its ruling? Why?
(2001 Bar)
a. Was the remedy taken by the governor
correct? A: Yes, the court is correct in its ruling. Mandamus
will not lie as it is a remedy that applies only where
A: No, the remedy taken by the Governor is not petitioner’s right is founded clearly in law, not when
correct. The petition for certiorari is a remedy that it is doubtful. Pablo was transferred without his
is only available when there is no plain, speedy and consent which is tantamount to removal without
adequate remedy under the ordinary course of law; cause, contrary to the fundamental guarantee on
hence, the Governor should have filed a Motion for non-removal except for cause. Considering that
Reconsideration. Pedro continued to occupy the disputed position
and exercised his functions therein, the proper
Besides, there is no showing that the Ombudsman remedy is quo warranto, not mandamus. (Garces v.
committed grave abuse of discretion in granting Court of Appeals, G.R. No. 114795, July 17, 1996)
immunity to the treasurer who agreed to cooperate
in the prosecution of the case. Q: In 1996, Congress passed Republic Act No.
8189, otherwise known as the Voter’s
b. Will the writ of mandamus lie to compel the Registration Act of 1996, providing for
Ombudsman to include the treasurer in the computerization of elections. Pursuant thereto,
Information? (2015 Bar) the COMELEC approved the Voter’s Registration
and Identification System (VRIS) Project. It
A: No, mandamus will not lie to compel the issued invitations to pre-qualify and bid for the
Ombudsman to include the treasurer in the project. After the public bidding, Fotokina was
Information. In matters involving exercise of declared the winning bidder with a bid of P6
judgment and discretion, mandamus may only be billion and was issued a Notice of Award. But
resorted to in order to compel respondent tribunal, COMELEC Chairman Gener Go objected to the
corporation, board, officer or person to take action, award on the ground that under the
but it cannot be used to direct the manner or appropriations Act, the budget for the

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COMELEC’s modernization is only P1 billion. He same year, the Court issued an Order enjoining
announced to the public that the VRIS project him from accepting the appointment or
has been set aside. Two Commissioners sided assuming the position and discharging the
with Chairman Go, but the majority voted to functions of his office until he is able to
uphold the contract. Meanwhile, Fotokina filed successfully complete all the necessary steps to
with the RTC a petition for mandamus to compel show that he is a natural born citizen of the
the COMELEC to implement the contract. The Philippines. He, however, continued to exercise
Office of the Solicitor General (OSG), his functions as CA Justice.
representing Chairman Go, opposed the petition
on the ground that mandamus does not lie to Since the qualification of a natural born citizen
enforce contractual obligations. During the applies as well to CA Justices, Atty. Dacio, a
proceedings, the majority Commissioners filed a practicing lawyer, asked the Office of the
manifestation that Chairman Go was not Solicitor General (OSG), through a verified
authorized by the COMELEC En Banc to oppose request, to initiate a quo warranto proceeding
the petition. Is a petition for mandamus an against J. Dong in the latter’s capacity as
appropriate remedy to enforce contractual incumbent CA Justice. The OSG refused to
obligations? (1999, 2006 Bar) initiate the action on the ground that the issue of
J. Dong’s citizenship was still being litigated in
A: No, the petition for mandamus is not an another case.
appropriate remedy because it is not available to
enforce a contractual obligation. Mandamus is When the OSG refused to initiate a quo warranto
directed only to ministerial acts, directing or proceeding, Atty. Dacio filed a petition for
commanding a person to do a legal duty. (COMELEC certiorari against the OSG, and certiorari and
v. Quijano-Padilla, G.R. No. 152992, September 18, prohibition against J. Dong. The petition for
2002; Sec. 3, Rule 65) certiorari against the OSG alleged that the OSG
committed grave abuse of discretion when it
Q: A files a Complaint against B for recovery of deferred the filing of a quo warranto proceeding
title and possession of land situated in Makati against J. Dong, while the petition for certiorari
with the RTC of Pasig. B files a Motion to Dismiss and prohibition against J. Dong asked the Court
for improper venue. The RTC Pasig Judge denies to order him to cease and desist from further
B's Motion to Dismiss, which obviously was exercising his powers, duties and
incorrect. Alleging that the RTC Judge responsibilities as CA Justice. In both instances,
"unlawfully neglected the performance of an act Atty. Dacio relied on the fact that at the time of J.
which the law specifically enjoins as a duty Dong’s appointment as CA Justice, J. Dong’s birth
resulting from an office," A files a Petition for certificate indicated that he was a Chinese
mandamus against the judge. Will mandamus citizen and his bar records showed that he was a
lie? Reasons. (2012 Bar) naturalized Filipino citizen.

A: No, mandamus will not lie. The proper remedy is (a) May the OSG be compelled, in an action for
a petition for prohibition (Serena v. Sandiganbayan certiorari, to initiate a quo warranto
G.R. No. 162059, January 22, 2008). The dismissal of proceeding against J. Dong?
the case based on improper venue is not a
ministerial duty. Mandamus does not lie to compel A: No. The OSG has the discretion in determining the
the performance of a discretionary duty. (Paloma v. presence of the requisites for a quo warranto
Mora, G.R. No. 157783, September 23, 2005) proceeding. Besides, there is already a pending case
for the purpose of determining citizenship.
Quo Warranto
For a quo warranto proceeding to be successful the
Q: In 2007, Court of Appeals Justice (CA Justice) private person suing must show a clear right to the
Dread Dong (J. Dong) was appointed to the contested office. (Topacio v. Associate Justice Ong,
Supreme Court (Court) as Associate Justice. G.R. No. 179895, 18 December 2008)
Immediately after the appointment was
announced, several groups questioned his (b) Does Atty. Dacio have the legal personality
qualification to the position on the ground that to initiate the action for certiorari and
he was not a natural born Filipino citizen. In the prohibition against J. Dong? (2018 Bar)

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 QuAMTO (1987-2019)
A: No. He is not clothed with legal interest. Sections No. 147511, March 24, 2003) The planned
1 and 2, Rule 65 state that only an aggrieved party compensation, however, is not legally tenable as the
may file petitions for certiorari and prohibition in determination of just compensation is a judicial
the appropriate court. function. No statute, decree or executive order can
mandate that the determination of just
An “aggrieved party” is one who was a party to the compensation by the executive or legislative
original proceedings that gave rise to the original departments can prevail over the court’s findings.
action for certiorari under Rule 65. (Siguion Reyna (Export Processing Zone Authority v. Dulay, G.R. No.
Montecillo and Ongsiako Law Offices v. Chionlo-Sia, L-59603, April 29, 1987; Secs. 5 to 8 Rule 67) In
G.R. No. 181186, 3 February 2016) addition, compensation must be paid in money.
(Esteban v. Onorio, AM No. 00- 4-166-RTC, June 29,
In this case, since there is no “original proceeding” 2001)
before J. Dong where Atty. Dacio is a party. Atty.
Dacio cannot be considered an “aggrieved party” for Foreclosure of Real Estate Mortgage
purposes of Sections 1 and 2 of Rule 65. Atty. Dacio
therefore, has no legal personality to file the same. Q:
a. Is the buyer in the auction sale arising from
Q: A group of businessmen formed an an extra-judicial foreclosure entitled to a
association in Cebu City calling itself Cars C to writ of possession even before the
distribute/sell cars in said city. It did not expiration of the redemption period? If so,
incorporate itself under the law nor did it have what is the action to be taken?
any government permit or license to conduct its
business as such. The Solicitor General filed A: Yes, the buyer in the auction sale is entitled to a
before a RTC in Manila a verified petition for quo writ of possession even before the expiration of the
warranto questioning and seeking to stop the redemption period upon the filing of the ex parte
operations of Cars Co. The latter filed a motion petition for issuance of a writ of possession and
to dismiss the petition on the ground of posting of the appropriate bond. Under Section 7 of
improper venue claiming that its main office and Act No. 3135, as amended, the writ of possession
operation are in Cebu City and not in Manila. Is may be issued to the purchaser in a foreclosure sale
the contention of Cars Co. correct? Why? (2001 either within the one-year redemption period upon
Bar) the filing of a bond, or after the lapse of the
redemption period, without need of a bond. (LZK
A: No. As expressly provided in the Rules, when the Holdings and Development Corporation v. Planters
Solicitor General commences the action for quo Development Bank, G.R. No. 167998, April 27, 2007)
warranto, it may be brought in a RTC in the city of Hence, upon the purchaser’s filing of the ex parte
Manila, as in this case, in the Court of Appeals or in petition and posting of the appropriate bond, the
the Supreme Court. (Sec. 7, Rule 66) RTC shall, as a matter of course, order the issuance
of the writ of possession in favour of the purchaser.
Expropriation (Spouses Marquez Marquez v. Spouses Alindog, G.R.
No. 184045, January 22, 2014; Spouses Gatuslao v.
Q: May Congress enact a law providing that a Yanson, G.R. No. 191540, January 21, 2015)
5,000 square meter lot, a part of the UST
compound in Sampaloc Manila, be expropriated b. After the period of redemption has lapsed
for the construction of a park in honor of former and the title to the lot is consolidated in the
City Mayor Arsenio Lacson? As compensation to name of the auction buyer, is he entitled to
UST, the City of Manila shall deliver its 5-hectare the writ of possession as a matter of right? If
lot in Sta. Rosa, Laguna originally intended as a so, what is the action to be take?
residential subdivision for the Manila City Hall
employees. Explain (2006 Bar) A: Yes, the auction buyer is entitled to a writ of
possession as a matter of right. It is settled that the
A: Yes, Congress may enact a law expropriating buyer in a foreclosure sale becomes the absolute
property provided that it is for public use and with owner of the property purchased if it is not
just compensation. In this case, the construction of redeemed within a period of one year after the
a park is for public use. (Sena v. Manila Railroad Co, registration of the certificate of sale. He is, therefore,
G.R. No. 15915, September 7, 1921; Reyes v. NHA, G.R. entitled to the possession of the property and can

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demand it at any time following the consolidation of judgment debt within the period specified in the
ownership in his name and the issuane to him of a decision. Consequently, the court ordered the
new transfer certificate of title. In such a case, the foreclosure sale of the mortgaged land. In that
bond required in Section 7 of Act No. 3135 is no foreclosure sale, the land was sold to the DPB for
longer necessary. Possession of the land then P1.2 million. The sale was subsequently
becomes an absolute right of the purchases as confirmed by the court, and the confirmation of
confirmed owner. Upon proper application and the sale was registered with the Registry of
proof of title, the issuance of the writ of possession Deeds on 05 January 2002. On 10 January 2003,
becomes a ministerial duty of the court. (LZK the bank filed an ex parte motion with the court
Holdings and Development Corporation v. Planters for the issuance of a writ of possession to oust B
Development Bank, G.R. No. 167998, April 27, 2007; from the land. It also filed a deficiency claim for
Spouses Marquez Marquez v. Spouses Alindog, G.R. P800, 000.00 against A and B. The deficiency
No. 184045, January 22, 2014; Spouses Gatuslao v. claim was opposed by A and B.
Yanson, G.R. No. 191540, January 21, 2015)
a. Resolve the motion for the issuance of a
c. Suppose that after the title to the lot has writ of possession.
been consolidated in the name of the auction
buyer, said buyer sold the lot to a third party A: In judicial foreclosure of banks such as DBP, the
without first getting a writ of possession. mortgagor of debtor whose real property has been
Can the transferee exercise the right of the sold on foreclosure has the right to redeem the
auction buyer and claim that it is a property sold within one year after the date (or
ministerial duty of the court to issue a writ registration of the sale). However, the purchaser at
of possession in his favour? Briefly explain. the auction sale has the right to obtain a writ of
(2016 Bar) possession after the finality of the order confirming
the sale (Sec. 3, Rule 68; Sec. 47, RA 8791). The
A: Yes, the transferee can exercise the right of the motion for writ of possession, however, cannot be
auction buyer. A transferee or successor-in- interest filed ex parte. There must be a notice of hearing.
of the auction buyer by virtue of the contract of sale
between them, is considered to have stepped into b. Resolve the deficiency claim of the bank.
the shoes of the auction buyer. As such, the (2003 Bar)
transferee is necessarily entitled to avail of the
provisions of Sec. 7 of Act 3135, as amended, as if he A: The deficiency claim of the bank may be enforced
is the auction buyer. When the lot purchased at a against the mortgage debtor A, but it cannot be
foreclosure sale is in turn sold or transferred, the enforced against B, the owner of the mortgaged
right to the possession thereof, along with all other property, who did not assume personal liability for
rights of ownership, transfers to its new owner. the loan.
(Spouses Gallent v. Velasquez, G.R. No. 203949, Apr. 6,
2016) Thus, it is a ministerial duty of the court to Q: Laura was the lessee of an apartment unit
issue a writ of possession in favour of the transferee owned by Louie. When the lease expired, Laura
of the auction buyer. refused to vacate the property. Her refusal
prompted Louie to file an action for unlawful
Forcible Entry and Unlawful Detainer detainer against Laura who failed to answer the
complaint within the reglementary period.
Q: A borrowed from the Development Bank of
the Philippines (DBP) the amount of P1 million Louie then filed a motion to declare Laura in
secured by the titled land of his friend B who, default should the motion be granted? Explain
however, did not assume personal liability for your answer. (2017 BAR)
the loan. A defaulted and DBP filed an action for
judicial foreclosure of the real estate mortgage A: No. The motion should not be granted because it
impleading A and B as defendants. In due course, is a prohibited pleading Under Section 19(h) of the
the court rendered judgment directing A to pay Rules on Summary Procedure, a motion to declare
the outstanding account of P1.5 million defendant in default is among the pleadings that are
(principal plus interest) to the bank. No appeal prohibited in cases covered by said Rule.
was taken by A on the Decision within the Considering that an action for unlawful detainer is
reglementary period. A failed to pay the covered by the Rules on Summary Procedure,

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Louie’s motion to declare Laura in default is a actions of forcible entry and unlawful detainer are
prohibited pleading, and thus, should not be subject to summary procedure and since the
granted. counterclaim is only permissive, it cannot be
entertained by the Municipal Trial Court. (Sec. 1,
Q: On 10 January 1990, X leased the warehouse Revised Rule on Summary Procedure)
of A under a lease contract with a period of 5
years. On 08 June 1996, A filed an unlawful Q: The spouses Juan reside in Quezon City. With
detainer case against X without a prior demand their lottery winnings, they purchased a parcel
for X to vacate the premises. of land in Tagaytay City for P100,000.00. In a
recent trip to their Tagaytay property, they were
a. Can X contest his ejectment on the ground surprised to see hastily assembled shelters of
that there was no prior demand for him to light materials occupied by several families of
vacate the premises? informal settlers who were not there when they
last visited the property three (3) months ago.
A: Yes. X can contest his ejectment on the ground
that there was no prior demand to vacate the To rid the spouses’ Tagaytay property of these
premise. (Sec. 2, Rule 70; Casilan v. Tomassi, G.R. No. informal settlers, briefly discuss the legal
L-16574, February 28, 1964; Lesaca v. Cuevas, G.R. remedy you, as their counsel, would use; the
No. L-48419, October 27, 1983) steps you would take; the court where you
would file your remedy if the need arises; and
b. In case the Municipal Trial Court renders the reason/s for your actions. (2013 Bar)
judgment in favor of A, is the judgment
immediately executory? (1997 Bar) A: As counsel of spouses Juan, I will file a special civil
action for forcible entry. The Rules of Court
A: Yes, because the judgment of the Municipal Trial provides that a person deprived of the possession of
Court against the defendant X is immediately any land or building by force, intimidation, threat,
executory upon motion unless an appeal has been strategy or stealth may at any time within (one) 1
perfected, a supersedeas bond has been filed and year after such withholding of possession bring an
the periodic deposits of current rentals, if any, as action in the proper Municipal Trial Court where the
determined by the judgment will be made with the property is located. This action which is summary in
appellate court. (Sec. 19, Rule 70) nature seeks to recover the possession of the
property from the defendant which was illegally
Q: In an action for unlawful detainer in the withheld by the latter. (Sec. 1, Rule 70)
Municipal Trial Court (MTC), defendant X raised
in his Answer the defense that plaintiff A is not An ejectment case is designed to restore, through
the real owner of the house subject of the suit. X summary proceedings, the physical possession of
filed a counterclaim against A for the collection any land or building to one who has been illegally
of a debt of P80,000 plus accrued interest of deprived of such possession, without prejudice to
P15,000 and attorney’s fees of P20,000. the settlement of the parties’ opposing claims of
juridical possession in appropriate proceedings.
a. Is X’s defense tenable (Heirs of Olarte v. Office of the President, G.R. No.
177995, June 15, 2011)
A: No. X’s defense is not tenable if the action is filed
by a lessor against a lessee. However, if the right of However, before instituting the said action, I will
possession of the plaintiff depends on his ownership first endeavor to amicably settle the controversy
then the defense is tenable. with the informal settlers before the appropriate
Lupon or Barangay Chairman. If there is no
b. Does the MTC have jurisdiction over the agreement reached after mediation and conciliation
counterclaim? (1998 Bar) under the Katarungang Pambarangay Law, I will
secure a certificate to file action and file the
A: The counterclaim is within the jurisdiction of the complaint for ejectment before the MTC of Tagaytay
Municipal Trial Court which does not exceed City where the property is located since ejectment
P100,000, because the principal demand is P80,000, suit is a real action regardless of the value of the
exclusive of interest and attorney’s fees (Sec 33, B.P. property to be recovered or claim for unpaid
Blg. 129, as amended). However, inasmuch as all rentals. (BP 129 and Sec. 1, Rule 4)

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Q: BB files a complaint for ejectment in the MTC b. Where is the proper venue of the judicial
on the ground of non-payment of rentals against remedy which you recommended?
JJ. After two days, JJ files in the RTC a complaint
against BB for specific performance to enforce A: If Maria decides to file a complaint for collection
the option to purchase the land subject of the of sum of money under the Rules of Summary
ejectment case. What is the effect of JJ’s action on Procedure or Small Claims, the venue is the
BB’s complaint? Explain. (2000 Bar) residence of the plaintiff or defendant, at the
election if the plaintiff (Sec. 2, Rule 4). Hence it may
A: There is no effect. The ejectment case involves be in Quezon City or Marikina City, at the option of
possession de facto only. The action to enforce the Maria.
option to purchase will not suspend the action of
ejectment for non-payment or rentals. (Willmon If Maria files an action for inlawful detainer, the
Auto Supply Corp. v. Court of Appeals, G.R. No. 97637, same shall be commenced and tried in the Municipal
April 10, 1992) Trial Court of the municipality or city wherein the
real property involved, or a portion thereof is
Q: Landlord, a resident of Quezon City, entered situated (Sec. 1, Rule 4). Therefore, the venue is Las
into a lease contract with Tenant, a resident of Pinas City.
Marikina City, over a residential house in Las
Pinas City. The lease contract provided, among c. If Maria insists on filing an ejectment suit
others, for a monthly rental of P25,000.00, plus against Tenant, when do you reckon the one
ten percent (10%) interest rate in case of non- (1)-year period within which to file the
payment on its due date. Subsequently, action? (2014 Bar)
Landlord migrated to the United States of
America (USA) but granted in favor of his sister A: The reckoning point for determining the one-
Maria, a special power of attorney to manage the year period within which to file the action is the
property and file and defend suits over the receipt if the last demand to vacate and pay (Sec. 2,
property rented out to Tenant. Tenant failed to Rule 70).
pay the rentals due for five (5) months.Maria
asks your legal advice on how she can Q: Mr. Sheriff attempts to enforce a Writ of
expeditiously collect from Tenant the unpaid Execution against X, a tenant in a condominium
rentals plus interests due. unit, who lost in an ejectment case. X does not
want to budge and refuses to leave. Y, the
a. What judicial remedy would you winning party, moves that X be declared in
recommend to Maria? contempt and after hearing, the court held X
guilty of indirect contempt. If you were X’s
A: I will advise Maria to immediately send a letter to lawyer, what would you do? Why? (2012 Bar)
the tenant demanding the immediate payment of
the unpaid rentals plus interests due. If the tenant A: If I were X’s lawyer, I would file a petition for
refuses, Maria can avail any of the following certiorari under Rule 65. The judge should not have
remedies: acted on Y’s motion to declare X in contempt. The
charge of indirect contempt is intiated through a
1. A complaint under A.M. No. 08-8-7-SC or verified petition (Sec.4, Rule 71). The writ was not
the Rules of Procedure for Small claims directed to X but to the sheriff which was directed
cases. Maria should nonetheless waive the to deliver the property to Y. As the writ did not
amount in excess of P100,000 in order for command the judgment debtor to do anything, he
her to avail of the remedy under the said cannot be guilty of the facts described in Rule 71
Rules. which is “disobedience of or resistance to a lawful
2. A complaint for collection of sum of money writ, process, order, judgment, or command of any
under the Rules on Summary Procedure, court.” The proper procedure is for the sheriff to
since Maria is only claiming the unpaid oust X availing of the assistance of peace officers
rentals and interest due from tenant. pursuant to Section 10(c) of Rule 39. (Lipa v. Tutaan,
3. If the tenant refuses or is unable to pay the L-16643, September 29, 1983; Medina v. Garces, L-
rentals within 1 year from the last demand 25923, July 15, 1980; Pascua v. Heirs of Simeon, G.R.
to vacate and pay, I would advise Maria to No. L- 47717, May 2, 1988; Patagan v. Panis, G.R. No.
file an action for Unlawful Detainer. 55630, April 8, 1988)

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 QuAMTO (1987-2019)
Contempt In short, a charge of indirect contempt must be
initiated through a verified petition, unless the
Q: A filed a complaint for the recovery of charge is directly made by the court against which
ownership of land against B who was the contemptuous act is committed. Here, it was the
represented by her counsel X. in the course of court who initiated the contempt charge against Mr.
the trial, B died. However, X failed to notify the R. Hence, his contention is untenable. (Peralta v.
court of B’s death. The court proceeded to hear Omelio, A.M. No. RTJ-11-2259, October 22, 2013)
the case and rendered judgment against B. After
the Judgment became final, a writ of execution b. What is the proper mode of appeal
was issued against C, who being B’s sole heir, should Ms. R decide to assail her
acquired the property. Did the failure of counsel contempt citation? Will the filing of such
X to inform the court of B’s death constitute appeal automatically result in the
direct contempt? (1998 Bar) suspension of the execution of
judgment? Explain. (2019 Bar)
A: No. It is not direct contempt under Sec. 1 of Rule
71, but it is an indirect contempt within the purview A: The proper remedy of Mr. R is to file a petition for
of Sec. 3 of Rule 71. The lawyer can also be subject certiorari or prohibition under Rule 65.
of disciplinary action. (Sec. 16, Rule 3)
The execution of the judgment shall be suspended
Q: Ms. R received a subpoena ad testificandum pending resolution of such petition, provided such
from a Regional Trial Court (RTC) directing her person file a bond fixed by the court which rendered
to appear and testify in a case. Despite notice the judgment and conditioned that he will abide by
and without any sufficient justification, Ms. R and perform the judgment should the petition be
failed to appear. This prompted the RTC to issue decided against him. (Section 2, Rule 71)
a show-cause order directing Ms. R to explain,
within ten (10) days, why she should not be cited
for contempt for her nonappearance despite SPECIAL PROCEEDINGS
receipt of the subpoena. Ms. R, however, did not
file her comment. After due hearing with notice
to the parties, the RTC cited her in indirect LETTERS TESTAMENTARY AND LETTERS
contempt, and consequently, ordered her arrest. ADMINISTRATION

Ms. R moved to quash the warrant issued for her Q: Dominic was appointed special administrator
arrest, claiming that a formal charge should of the Estate of Dakota Dragon. Delton, husband
have been filed against her, and that the same of Dakota, together with their five (5) children,
should have been docketed and prosecuted as a opposed the appointment of Dominic claiming
separate case against her. She thus claimed that that he (Dominic) was just a stepbrother of
since this procedure was not followed, the order Dakota. After giving Dominic the chance to
citing her in contempt is null and void. comment, the court issued an Order affirming
the appointment of Dominic.
a. Is Ms. R's contention tenable? Explain.
a. What is the remedy available to the
A: No. Under Section 4, Rule 71, a person may be oppositors? (2018 BAR)
charged with indirect contempt only by either two
(2) alternative ways, namely: A: The remedy available to the oppositors of the
appointment of Dominic as special administrator is
(1) By a verified petition, if initiated by a party; to file a petition for certiorari under Rule 65 of the
or Rules of Court. The appointment of special
(2) By an order or any other formal charge administrators, being discretionary, is thus
requiring the respondent to show cause interlocutory and may be assailed through a
why he should not be punished for petition for certiorari under Rule 65 of the Rules of
contempt, if made by a court against which Court. (Ocampo v. Ocampo, G.R. No. 187879, 5 July
the contempt is committed. 2010)

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b. If there are no qualified heirs, can the resolve factual issues raised in cases falling within
government initiate escheat proceedings its original jurisdiction.
over the assets of the deceased? To whom, in
particular, shall the estate of the deceased Q: A was arrested on the strength of a warrant of
go and for whose benefit? (2018 Bar) arrest issued by the RTC in connection with an
Information for Homicide. W, the live-in partner
A: If there are no qualified heirs, Rule 91, Section 1 of A filed a petition for habeas corpus against A’s
of the Rules of Court provides that the Solicitor jailer and police investigators with the Court of
General or his representatives in behalf of the Appeals.
Republic of the Philippines, may file a petition with
the Regional Trial Court where the deceased last a. Does W have the personality to file the
resided or in which he had estate, if he resided petition for habeas corpus?
outside the Philippines, setting forth the facts and
praying that the estate of the deceased be declared A: Yes. W, the live-in partner of A, has the
escheated. personality to file the petition for habeas corpus
because it may be filed by “some person in his
Rule 91, Section 3 of the Rules of Court provides that behalf.” (Sec 3, Rule 102)
once a judgment has been rendered in escheat
proceedings, the properties of the deceased shall be b. Is the petition tenable? (1998 Bar)
assigned as follows: (a) personal estate to the
municipality or city where he last resided in the A: No, the petition is not tenable because the
Philippines; (b) real estate to the municipalities or warrant of arrest was issued by a court which had
cities in which the same is located; and (c) if the jurisdiction to issue it. (Sec. 4 Rule 102)
deceased never resided in the Philippines, the
whole estate may be assigned to the respective Rules on Custody of Minors and Writ of Habeas
municipalities or cities where the same is located. Corpus in relation to Custody of Minors
Such estate shall be for the benefit of public schools,
and public charitable institutions and centers in said Q: While Marietta was in her place of work in
municipalities or cities. Makati City, her estranged husband Carlo
barged into her house in Paranaque City,
HABEAS CORPUS abducted their six-year old son, Percival, and
brought the child to his hometown in Baguio
Q: Roxanne, a widow, filed a petition for habeas City. Despite Marietta’s pleas, Carlo refused to
corpus with the Court of Appeals against Major return their child. Marietta, through counsel,
Amor who is allegedly detaining her 18 year old filed a petition for habeas corpus against Carlo
son Bong without authority of law. After Amor in the Court of Appeals in Manila to compel him
had filed a return alleging the cause of detention to produce their son before the court and for her
of Bong, the Court of Appeals promulgated a to regain custody. She alleged in the petition that
resolution remanding the case to the RTC for a despite her efforts, she could no longer locate
full blown trial due to the conflicting facts her son. In his comment, Carlo alleged that the
presented by the parties in their pleadings. In petition was erroneously filed in the Court of
directing the remand, the Court of Appeals Appeals as the same should have been filed in
relied on Sec. 9(1) in relation to Sec. 21 of BP 129 the Family Court of Baguio City which, under
conferring upon said Court the authority to try Republic Act No. 8369, has exclusive
and decide habeas corpus cases concurrently jurisdiction, over the petition. Marietta replied
with the RTCs. Did the Court of Appeals act that under Rule 102 of the Rules of Court, as
correctly in remanding the petition to the RTC? amended, the petition may be filed in the Court
Why? (1993 Bar) of Appeals and if granted, the writ of habeas
corpus shall be enforceable anywhere in the
A: No, because while the CA has original jurisdiction Philippines. Whose contention is correct?
over habeas corpus concurrent with the RTCs, it has Explain. (2005 Bar)
no authority for remanding to the latter original
actions filed with the former. On the contrary, the A: Marietta's contention is correct. The Court of
CA is specifically given the power to receive Appeals has concurrent jurisdiction with the family
evidence and perform any and all acts necessary to courts and the Supreme Court in petitions for

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 QuAMTO (1987-2019)
habeas corpus where the custody of minors is at corpus of the two minor girls, because the
issue, notwithstanding the provision in the Family grandparent has the right of custody as against the
Courts Act (R.A. No. 8369) that family courts have mother A who is a prostitute. (Sec. 2 and 13, A.M. No.
exclusive jurisdiction in such cases. (Thornton v. 03-04-04-SC)
Thornton, G.R. No. 154598, August 16, 2004)
Q: Hercules was walking near a police station
Sec. 20, par. 6 of SC AM No. 03-04-04 provides that when a police officer signalled for him to
the petition may likewise be filed with the Supreme approach. As soon as Hercules came near, the
Court, Court of Appeals, or with any of its members police officer frisked him but the latter found no
and, if so granted; the writ shall be enforceable contraband. The police officer told Hercules to
anywhere in the Philippines. The writ may be made get inside the police station. Inside the police
returnable to a Family Court or to any regular court station, Hercules asked the police officer, "Sir,
within the region where the petitioner resides or may problema po ba?" Instead of replying, the
where the minor may be found for hearing and police officer locked up Hercules inside the
decision on the merits. police station jail. What is the remedy available
to Hercules to secure his immediate release
Q: Widow A and her two children, both girls, from detention? (2015 Bar)
aged 8 and 12 years old, reside in Angeles City,
Pampanga. A leaves her two daughters in their A: The remedy available to Hercules is to file a
house at night because she works in a brothel as petition for habeas corpus questioning the illegality
a prostitute. Realizing the danger to the morals of his warrantless arrest. The writ of habeas corpus
of these two girls, B the father of the deceased shall extend to all cases of illegal confinement or
husband of A, files a petition for habeas corpus detention by which any person is deprived of
against A for the custody of the girls in the liberty. (Sec. 1, Rule 102)
Family Court in Angeles City. In said petition, B
alleges that he is entitled to the custody of the WRIT OF AMPARO
two girls in the Family Court in Angeles City. In
said petition, B alleges that he is entitled to the Q: What is the writ of amparo? How is it
custody of the two girls because their mother is distinguished from the writ of habeas corpus?
living a disgraceful life. The court issues the writ (2009 Bar)
of habeas corpus. When A learns of the petition
and the writ, she brings her two children to Cebu A: The petition for a writ of amparo is a remedy
City. At the expense of B the sheriff of the said available to any person whose right to life, liberty
Family Court goes to Cebu City and serves the and security is violated or threatened with violation
writ on A. A files her comment on the petition by an unlawful act or omission of a public official or
raising the following defenses: employee, or of a private individual or entity. The
writ shall cover extra-legal killings and enforced
a. The enforcement of the writ of habeas disappearances or threats thereof.
corpus in Cebu City is illegal; and
The writ of amparo differs from a writ of habeas
A: The writ of habeas corpus issued by the Family corpus in that the latter writ is availed of as a
Court in Angeles City may not be legally enforced in remedy against cases of unlawful confinement or
Cebu City, because the writ is enforceable only detention by which any person is deprived of his
within the judicial region to which the Family Court liberty, or cases by which rightful custody of any
belongs, unlike the writ granted by the Supreme person is withheld from another who is lawfully
Court or Court of Appeals which is enforceable entitled thereto. (Sec 1, Rule 102)
anywhere in the Philippines. (Sec. 20, A.M. No. 03-04-
04-SC) Q: Marinella is a junior officer of the Armed
Forces of the Philippines who claims to have
b. B has no personality to institute the petition. personally witnessed the malversation of funds
Resolve the petition in the light of the above given by US authorities in connection with the
defenses of A. (2003 Bar) Balikatan exercises. Marinella alleges that as a
result of her exposé, there are operatives within
A: B, the father of the deceased husband of A, has the the military who are out to kill her. She files a
personality to institute the petition for habeas petition for the issuance of a writ of amparo

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against, among others, the Chief of Staff but the State; hence, cannot be impleaded as
without alleging that the latter ordered that she respondents in an amparo petition.
be killed. Atty. Daro, counsel for the Chief of
Staff, moves for the dismissal of the Petition for a. Is their defense tenable?
failure to allege that his client issued any order
to kill or harm Marinella. Rule on Atty. Daro’s A: No. The defense is not tenable. The writ of
motion. Explain. (2010 Bar) amparo is a remedy available to any person whose
right to life, liberty and security has been violated or
A: The motion to dismiss must be denied on the is threatened with violation by an unlawful act or
ground that it is a prohibited pleading under Section omission of a public officer or employee or of a
11(a) of the Rule on the Writ of Amparo. Moreover, private individual or entity. The writ covers extra-
said Rule does not require the petition therefor to legal killings, enforced disappearances or threats
allege a complete detail of the actual or threatened thereof. (Sec. 1, A.M. No. 07-9-12-SC)
violation of the victim’s rights. It is sufficient that
there be an allegation of real threat against Moreover, the rules do not require that the
petitioner’s life, liberty and/or security. (Razon v. respondents should be agents of the State in order
Tagitis, G.R. No. 182498, December 03, 2009) to be impleaded as respondents in an amparo
petition. (Secretary of National Defense v. Manalo,
Q: The residents of Mt. Ahohoy, headed by G.R. No. 180906, October 7, 2008)
Masigasig, formed a nongovernmental
organization - Alyansa Laban sa Minahan sa b. Respondents Mapusok and APKA, in their
Ahohoy (ALMA) to protest the mining Return filed with the Court of Appeals,
operations of Oro Negro Mining in the mountain. raised as their defense that the petition
ALMA members picketed daily at the entrance of should be dismissed on the ground that
the mining site blocking the ingress and egress ALMA cannot file the petition because of the
of trucks and equipment of Oro Negro, earlier petition filed by Mayumi with the
hampering its operations. Masigasig had an RTC. Are respondents correct in raising
altercation with Mapusok arising from the their defense?
complaint of the mining engineer of Oro Negro
that one of their trucks was destroyed by ALMA A: Yes. The respondents are correct in raising the
members. Mapusok is the leader of the defense. Under Section 2(c) of the Rules on the Writ
Association of Peace of Amparo, the filing of a petition by Mayumi who is
an immediate member of the family of the aggrieved
Keepers of Ahohoy (APKA), a civilian volunteer party already suspends the right of all other
organization serving as auxiliary force of the authorized parties to file similar petitions. Hence,
local police to maintain peace and order in the ALMA cannot file the petition because of earlier
area. Subsequently, Masigasig disappeared. petition by Mayumi with the RTC.
Mayumi, the wife of Masigasig, and the members
of ALMA searched for Masigasig, but all their c. Mayumi later filed separate criminal and
efforts proved futile. Mapagmatyag, a member of civil actions against Mapusok. How will the
ALMA, learned from Maingay, a member of cases affect the amparo petition she earlier
APKA, during their binge drinking that filed? (2015 Bar)
Masigasig was abducted by other members of
APKA, on order of Mapusok. Mayumi and ALMA A: When a criminal action and separate civil action
sought the assistance of the local police to are filed subsequent to a petition for a writ of
search for Masigasig, but they refused to extend amparo, the latter shall be consolidated with the
their cooperation. Immediately, Mayumi filed criminal action. After consolidation, the procedure
with the RTC, a petition for the issuance of the under Rules shall continue to apply to the
writ of amparo against Mapusok and APKA. disposition of the reliefs in the petition. (Sec. 1, A.M.
ALMA also filed a petition for the issuance of the No. 07-9-12-SC)
writ of amparo with the Court of Appeals against
Mapusok and APKA. Respondents Mapusok and WRIT OF HABEAS DATA
APKA, in their Return filed with the RTC, raised
among their defenses that they are not agents of Q: What is the writ of habeas data? (2009 Bar)

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 QuAMTO (1987-2019)
A: The writ of habeas data is a remedy available to The marriage of the Parties contracted on
any person whose right to privacy in life, liberty or xxx before the Civil Registrar of Dusseldorf
security is violated or threatened by an unlawful act is hereby dissolved. The parental custody of
or omission of a public official or employee, or of a the children Diktor and Daus is granted to
private individual or entity engaged in the the father.
gathering, collecting or storing of data or
information regarding the person, family, home and Drylvik filed a motion to dismiss in the RTC of
correspondence of the aggrieved party. Manila on the ground that the court no longer
had jurisdiction over the matter as a decree of
Q: Azenith, the cashier of Temptation divorce had already been promulgated
Investments, Inc. (Temptation, Inc.) with dissolving his marriage to Dara. Dara objected,
principal offices in Cebu City, is equally hated saying that while she was not challenging the
and loved by her co-employees because she divorce decree, the case in the RTC still had to
extends cash advances or "sales" to her proceed for the purpose of determining the
colleagues whom she likes. One morning, issue of the children’s custody. Drylvik counters
Azenith discovers an anonymous letter inserted that the issue had been disposed of in the
under the door of her office threatening to kill divorce decree, thus constituting res judicata.
her. Azenith promptly reports the matter to her
superior Joshua, who thereupon conducts an a. Should Drylvik’s motion to dismiss be
internal investigation to verify the said threat. granted?
Claiming that the threat is real, Temptation, Inc.
opts to transfer Azenith to its Palawan Office, a A: No. The motion to dismiss cannot be granted.
move she resists in view of the company’s
refusal to disclose the results of its In Roehr v. Rodriguez (G.R. No. 142820, 20 June
investigation. Decrying the move as a virtual 2003), the Supreme Court ruled that divorce decrees
deprivation of her employment, Azenith files a obtained by foreigners in other countries are
petition for the issuance of a writ of habeas data recognizable in our jurisdiction, but the legal effects
before the Regional Trial Court (RTC) to enjoin thereof, e.g. on custody, care and support of the
Temptation, Inc. from transferring her on the children, must still be determined by our courts.
ground that the company’s refusal to provide Before our courts can give the effect of res judicata
her with a copy of the investigation results to a foreign judgment, such as the award of custody
compromises her right to life, liberty and of the children, it must be shown that the parties
privacy. Resolve the petition. Explain. (2010 opposed to the judgment had been given ample
Bar) opportunity to do so on grounds allowed under
Section 50, Rule 39.
A: Azenith’s petition for the issuance of a writ of
habeas data must be dismissed. Under the facts, Rule 39, Section 50 states that “in case of a judgment
there is no showing that her right to privacy in life, against a person, the judgment is presumptive
liberty or security is violated or threatened by an evidence of a right as between the parties and their
unlawful act or omission. Neither was the company successors in interest by a subsequent title; but the
shown to be engaged in the gathering, collecting judgment may be repelled by evidence of a want of
nor, storing of data or information regarding the jurisdiction, want of notice to the party, collusion,
person, family, home and correspondence of the fraud, or clear mistake of law or fact.” Thus, in
aggrieved party. (Sec. 1, A.M. 01-08-16-SC) actions in personam, a foreign judgment merely
constitutes prima facie evidence of the justness of
CANCELLATION OR CORRECTION OF ENTRIES the claim of a party and, as such, is subject to proof
to the contrary.
Q: Drylvik, a German national, married Dara, a
Filipina, in Dusseldorf, Germany. When the In this case, the divorce decree issued by the
marriage collapsed, Dara filed a petition for German Family Court merely constitutes prima facie
declaration of nullity of marriage before the RTC evidence and it must be proven that Dara was given
of Manila. Drylvik, on the other hand, was able to the opportunity to challenge the judgment of the
obtain a divorce decree from the German Family German court so that there is basis for declaring that
Court. The decree, in essence, states: judgment as res judicata with regard to the rights of

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petitioner to have parental custody of their two
children.
CRIMINAL PROCEDURE
b. Is a foreign divorce decree between a
foreign spouse and a Filipino spouse,
uncontested by both parties, sufficient by GENERAL MATTERS
itself to cancel the entry in the civil registry
pertaining to the spouses’ marriage? (2018 Q: Governor Pedro Mario of Tarlac was charged
Bar) with indirect bribery before the Sandiganbayan
for accepting a car in exchange of the award of a
A: No. A foreign divorce decree between a foreign series of contracts for medical supplies. The
spouse and a Filipino spouse, uncontested by both Sandiganbayan, after going over the
parties is insufficient by itself to cancel the entry in information, found the same to be valid and
the civil registry. Before a foreign divorce decree ordered the suspension of Mario. The latter
can be recognized by our courts, the party pleading contested the suspension claiming that under
it must prove the divorce as a fact and demonstrate the law (Sec. 13 of RA 3019) his suspension is
its conformity to the foreign law allowing it. not automatic upon filing the information and
(Republic v. Manalo, G.R. No. 221029, 24 April 2018) his suspension under Sec. 13 of RA 3019 is in
conflict with Sec. 5 of the Decentralization Act of
Q: Ms. N initiated a special proceeding for the 1967 (RA 5185). The Sandiganbayan overruled
correction of entries in the civil registry under Mario’s contention stating that Mario’s
Rule 108 of the Rules of Court before the suspension under the circumstances is
Regional Trial Court (RTC), impleading only the mandatory. Is the court’s ruling correct? Why?
Local Civil Registrar therein. In her petition, Ms. (2001 Bar)
N sought to change the entry in her birth
certificate with respect to the date of her A: Yes. Mario’s suspension is mandatory although
parents' marriage from "May 22, 1992" to "not not automatic (Sec. 13 of RA No 3019 in relation to
married." The Office of the Solicitor General Sec. 5 of or RA No. 5185). It is mandatory after the
opposed the petition, arguing that Ms. N's determination of the validity of the information in a
parents should have been impleaded in the pre-suspension hearing (Segovia v. Sandiganbayan,
proceeding. In response, Ms. N argued that this G.R. No. 124067, March 27, 1998). The purpose of
was not necessary since it was an entry in her suspension is to prevent the accused public officer
own birth certificate which she intended to from frustrating or hampering his prosecution by
change. Hence, it was a matter personal to her, intimidating or influencing witnesses or tampering
and as such, the participation of her parents in with evidence or from committing further acts if
the case could be dispensed with. malfeasance while in office.

Is Ms. N's position correct? Explain. (2019 Bar) Jurisdiction of criminal courts

A: No. Ms. N’s parents should be impleaded. The Q: Jose, Alberto and Romeo were charged with
Civil Registrar, as well as all other persons who have murder. Upon filing of the information, the RTC
or claim to have any interest that would be affected judge issued the warrants for their arrest.
thereby, shall be made respondents for the reason Learning of the issuance of the warrants, the
that they are indispensable parties. three accused jointly filed a motion for
reinvestigation and for the recall of the
In Republic v. Uy (G.R. No. 198010, August 10, 2010), warrants of arrest. On the date set for hearing of
the Supreme Court nullified the trial court’s order to their motion, none of the accused showed up in
correct respondent’s entry for the latter’s failure to court for fear of being arrested. The RTC judge
implead and notify not only the Local Civil Registrar, denied their motion because the RTC did not
but also her parents and siblings as the persons who acquire jurisdiction over the persons of the
have interest and are affected by the changes or movants. Did the RTC rule correctly? (2008 Bar)
corrections sought.
A: No, the court acquired jurisdiction over the
person of the accused when they filed the aforesaid
motion and invoked the court’s authority over the

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 QuAMTO (1987-2019)
case, without raising the issue of jurisdiction over People, G.R. No. L-3580, March 22, 1950) despite the
their person. Their filing the motion is tantamount finality of the judgment.
to voluntary submission to the court’s jurisdiction
and contributes voluntary appearance. (Miranda v. When injunction may be issued to restrain
Tuliao, G.R. No. 158763, March 31, 2006) criminal prosecution

Q: In complex crimes, how is the jurisdiction of a Q: Will the injunction lie to restrain the
court determined? (2003 Bar) commencement of a criminal action? Explain.
(1999 Bar)
A: In a complex crime, jurisdiction over the whole
complex crime must be lodged with the trial court A: As a general rule, injunction will not lie to restrain
having jurisdiction to impose the maximum and a criminal prosecution except:
most serious penalty imposable on an offense
forming part of the complex crime. (Cuyos v. Garcia, 1. To afford adequate protection to the
G.R. No. L-46934 April 15, 1988) constitutional rights of the accused;
2. When necessary for the orderly
Q: Mariano was convicted by the RTC for raping administration of justice or to avoid
Victoria and meted the penalty of reclusion oppression or multiplicity of actions;
perpetua. While serving sentence at the National 3. When double jeopardy is clearly apparent;
Penitentiary, Mariano and Victoria were 4. Where the charges are manifestly false and
married. Mariano filed a motion in said court for motivated by the lust for vengeance; and
his release from the penitentiary on his claim 5. Where there is clearly no prima facie case
that under Republic Act No. 8353, his marriage against the accused and a motion to quash
to Victoria extinguished the criminal action on that ground has been denied. (Roberts v.
against him for rape, as well as the penalty Court of Appeals, G.R. No. 113930, March 5,
imposed on him. However, the court denied the 1996; Brocka v. Ponce Enrile, G.R. No. 69863-
motion on the ground that it had lost 65, December 10, 1990)
jurisdiction over the case after its decision had
become final and executory. PROSECUTION OF OFFENSES

a. Is the ruling of the court correct? Explain. Q: Distinguish a Complaint from Information.
(1999 Bar)
A: No. The court can never lose jurisdiction so long
as its decision has not yet been fully implemented A: In criminal procedure, a complaint is a sworn
and satisfied. Finality of a judgment cannot operate written statement charging a person with an
to divest a court of its jurisdiction. The court retains offense, subscribed by the offended party, any peace
an interest in seeing the proper execution and officer or other peace officer charged with the
implementation of its judgments, and to that extent, enforcement of the law violated (Sec. 3, Rule 110);
may issue such orders necessary and appropriate while an information is an accusation in writing
for these purposes. (Echegaray v. Secretary of charging a person with an offense subscribed by the
Justice, G.R. No. 13205, January 19, 1999) prosecutor and filed with the court. (Sec. 4, Rule 110)

b. What remedy/remedies should the counsel Q: While in his Nissan Patrol and hurrying home
of Mariano take to secure his proper and to Quezon City from his work in Makati, Gary
most expeditious release from the National figured in a vehicular mishap along that portion
Penitentiary? Explain. (2005 Bar) of EDSA within the City of Mandaluyong. He was
bumped from behind by a Ford Expedition SUV
A: To secure the proper and most expeditious driven by Horace who was observed using his
release of Mariano from the National Penitentiary, cellular phone at the time of the collision. Both
his counsel should file: (a) a petition for habeas vehicles – more than 5 years old – no longer
corpus for the illegal confinement of Mariano (Rule carried insurance other than the compulsory
102), or (b) a motion in court which convicted him, third-party liability insurance. Gary suffered
to nullify the execution of his sentence or the order physical injuries while his Nissan Patrol
of his commitment on the ground that a sustained damage in excess of Php500, 000.
supervening development had occurred (Melo v.

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a. As counsel for Gary, describe the witnesses who saw Horace using his cellular phone
process you need to undertake starting at the time the incident happened.
from the point of the incident if Gary
would proceed criminally against I will also present proof of employment of Gary such
Horace, and identify the court with as his pay slip in order to prove that he was gainfully
jurisdiction over the case. employed at the time of the mishap, and as a result
of the injuries he suffered, he was not able to earn
A: As counsel for Gary, I will first make him his usual income thereof. I will also present the
medically examined in order to ascertain the gravity attending Doctor of Gary to corroborate and
and extent of the injuries he sustained from the authenticate the contents of the medical report and
accident. Second, I will secure a police report abstract thereof. The evidence required to hold
relative to the mishap. Third, I will ask him to defendant Horace liable is only preponderance of
execute his Sinumpaang Salaysay. Thereafter, I will evidence.
use his Sinumpaang Salaysay or prepare a complaint
affidavit and file the same in the Office of the City The types of defenses that may be raised against this
Prosecutor and later on to the appropriate MTC of action are fortuitous event, force majeure or acts of
Mandaluyong City for the crime of Reckless God. The defendant can also invoke contributory
Imprudence resulting to physical injuries and negligence as partial defense. Moreover, the
damage to property. (Sec. 1 and 15, Rule 110) defendant can raise the usual defenses that the: (a)
plaintiff will be entitled to double compensation or
b. If Gary chooses to file an independent recovery, and (b) defendant will be constrained to
civil action for damages, explain briefly litigate twice and therefore suffer the cost of
this type of action: its legal basis; the litigation twice.
different approaches in pursuing this
type of action; the evidence you would Q: On his way to the PNP Academy in Silang,
need; and types of defenses you could Cavite, on board a public transport bus as a
expect. (2013 Bar) passenger, Police Inspector Masigasig of the
Valenzuela Police witnessed an on-going armed
A: An independent civil action is an action which is robbery while the bus was traversing Makati.
entirely distinct and separate from the criminal His alertness and training enabled him to foil
action. Such civil action shall proceed independently the robbery and to subdue the malefactor. He
of the criminal prosecution and shall require only a disarmed the felon and while frisking him,
preponderance of evidence. Section 3 of Rule 111 discovered another handgun tucked in his waist.
allows the filing of an independent civil action by the He seized both handguns and the malefactor
offended party based on Article 33 and 2176 of the was later charged with the separate crimes of
New Civil Code. robbery and illegal possession of firearm.

The different approaches that the plaintiff can Where should Police Inspector Masigasig bring
pursue in this type of action are, as follows: the felon for criminal processing? To Silang,
Cavite where he is bound; to Makati where the
a. File the independent civil action and bus actually was when the felonies took place; or
prosecute the criminal case separately. back to Valenzuela where he is stationed? Which
b. File the independent civil action without court has jurisdiction over the criminal cases?
filing the criminal case. (2013 Bar)
c. File the criminal case without need of
reserving the independent civil action. A: Police Inspector Masigasig should bring the felon
to the nearest police station or jail in Makati City
Aside from the testimony of Gary, the pieces of where the bus actually was when the felonies took
evidence that would be required in an independent place.
civil action are the medical report and certificate
regarding the injuries sustained by Gary, hospital Moreover, where an offense is committed in a public
and medical bills including receipt of payments vehicle while in the course of its trip, the criminal
made, police report and proof of the extent of action shall be instituted and tried in the court of
damage sustained by his car, and the affidavit of any Municipality or territory where such vehicle
passed during its trip, including the place of its

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 QuAMTO (1987-2019)
departure and arrival. (Sec. 15[b], Rule 110) the probate court has the power to determine
Consequently, the criminal case for robbery and questions as to who are the heirs of the decedent.
illegal possession of firearms can be filed in (Reyes v.Ysip, et al., G.R. No. L-7516, May 12, 1955;
Regional Trial Court of Makati City or on any of the Jimenez v. Intermediate Appellate Court, G.R. No.
places of departure or arrival of the bus. 75773, April 17, 1990)

Q: Yvonne, a young and lonely OFW, had an Incidentally, the heirs can also submit the baby boy
intimate relationship abroad with a friend, for DNA testing under the Rules on DNA Evidence
Percy. Although Yvonne comes home to Manila (A.M. No. 6-11-5-SC) or even blood-test in order to
every six months, her foreign posting still left determine paternity and filiation.
her husband Dario lonely so that he also
engaged in his own extramarital activities. In Q: Your friend YY, an orphan, 16 years old, seeks
one particularly exhilarating session with his your legal advice. She tells you that ZZ, her uncle,
girlfriend, Dario died. Within 180 days from subjected her to acts of lasciviousness; that
Dario’s death, Yvonne gives birth in Manila to a when she told her grandparents, they told her to
baby boy. Irate relatives of Dario contemplate just keep quiet and not to file charges against ZZ,
criminally charging Yvonne for adultery and their son. Feeling very much aggrieved, she asks
they hire your law firm to handle the case. you how her uncle ZZ can be made to answer for
his crime.
a. Is the contemplated criminal action a viable
option to bring? a. What would your advice be? Explain.

A: No. Sec. 5, Rule 110 provides that the crimes of A: I would advise the minor, an orphan of 16 years
adultery and concubinage shall not be prosecuted of age, to file the complaint herself independently of
except upon complaint by the offended spouse. her grandparents, because she is not incompetent
Since the offended party is already dead, then the or incapable of doing so upon grounds other than
criminal action for adultery as contemplated by her minority. (Sec. 5, Rule 110)
offended party’s relatives is no longer viable.
b. Suppose the crime committed against YY by
b. Is a civil action to impugn the paternity of her uncle ZZ is rape, witnessed by your
the baby boy feasible, and if so, in what mutual friend XX. But this time, YY was
proceeding may such issue be determined? prevailed upon by her grandparents not to
(2013 Bar) file charges. XX asks you if she can initiate
the complaint against ZZ. Would your
A: Yes, under Article 171 of the Family Code, the answer be the same? Explain. (2000 Bar)
heirs of the husband may impugn the filiation of the
child in the following cases: A: Since rape is now classified as a Crime Against
Persons under the Anti-Rape Law of 1997 (RA
1. If the husband should die before the 8353), I would advise XX to initiate the complaint
expiration of the period fixed for bringing against ZZ.
his action;
2. If he should die after the filing of the Q: X was arrested, in flagrante, for robbing a
complaint, without having desisted bank. After an investigation, he was brought
therefrom; or before the office of the prosecutor for inquest,
3. If the child was born after the death of the but unfortunately no inquest prosecutor was
husband. available. May the bank directly file the
complaint with the proper court? If in the
Since Dario is already dead when the baby boy was affirmative, what document should be filed?
born, his heirs have the right to impugn the filiation (2012 Bar)
of the child.
A: Yes, the bank may directly file the complaint with
Consequently, the heirs may impugn the filiation the proper court. In the absence or unavailability of
either by a direct action to impugn such filiation or an inquest prosecutor, the complaint may be filed by
raise the same in a special proceeding for settlement the offended party or a peace officer directly with
of the estate of the decedent. In the said proceeding, the proper court on the basis of the affidavit of the

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offended party or arresting officer or person. (Sec. 6, A: No. The information cannot be amended to
Rule 12) change the offense charged from homicide to
parricide. The marriage is not a supervening fact
Designation of offense arising from the act constituting the charge of
homicide. (Sec. 8, Rule 110)
Q: The prosecution filed an information against
Jose for slight physical injuries alleging the acts b. Suppose instead of moving for the
constituting the offense but without any more amendment of the information, the public
alleging that it was committed after Jose’s prosecutor presented in evidence the
unlawful enter in the complainant’s abode. Was marriage certificate without objection on
the information correctly prepared by the the part of the defense, could A be convicted
prosecution? Why? (2001 Bar) of parricide? (1997 Bar)

A: No. The aggravating circumstance of unlawful A: No. A can be convicted only of homicide not of
entry in the complainant’s abode has to be specified parricide which is a graver offense. The accused has
in the information; otherwise, it cannot be the constitutional rights of due process and to be
considered as aggravating. (Sec. 8, Rule 110) informed of the nature and the cause of the
accusation against him. (Sec. 1, 14[1] and [2] Art. III,
Amendment or substitution of complaint or 1987 Constitution)
information
PROSECUTION OF CIVIL ACTIONS
Q:
a. D and E were charged with homicide in one Q: While cruising on a highway, a taxicab driven
Information. Before they could be by Mans hit an electric post. As a result thereof,
arraigned, the prosecution moved to amend its passenger, Jovy, suffered serious injuries.
the information to exclude E therefrom. Can Mans was subsequently charged before the
the court grant the motion to amend? Why? Municipal Trial Court with reckless imprudence
(2001, 2002 Bar) resulting in serious physical injuries.
Thereafter, Jovy filed a civil action against
A: Yes, provided notice is given to the offended Lourdes, the owner of the taxicab, for breach of
party and the court states its reasons for granting contract, and Mans for quasi-delict. Lourdes and
the same. (Sec. 14, Rule 110) Mans filed a motion to dismiss the civil action on
the ground of litis pendentia, that is, the
b. On the facts above stated, suppose the pendency of the civil action impliedly instituted
prosecution, instead of filing a motion to in the criminal action for reckless imprudence
amend, moved to withdraw the information resulting in serious physical injuries. Resolve
altogether and its motion was granted. Can the motion with reasons. (2005 Bar)
the prosecution re-file the information
although this time for murder? Explain. A: The motion to dismiss should be denied. The
action for breach of contract against the taxicab
A: Yes, the prosecution can re-file the information owner cannot be barred by the criminal action
for murder in substitution of the information for against the taxicab driver, although the taxicab
homicide because no double jeopardy has a yet owner can be held subsidiarily liable in the criminal
attached. (Galvez v. Court of Appeals, G.R. No. 114046 case, if the driver is insolvent. On the other hand, the
October 24, 1994) civil action for quasi-delict against the driver is an
independent civil action under Article 33 of the Civil
Q: A was accused of homicide for the killing of B. Code and Sec. 3, Rule 111 of the Rules of Court,
During the trial, the public prosecutor received which can be filed separately and can proceed
a copy of the marriage certificate of A and B. independently of the criminal action and regardless
of the result of the latter. (Samson v. Daway, G.R. Nos.
a. Can the public prosecutor move for the 160054-55, July 21, 2004)
amendment of the information to charge A
with the crime of parricide? Q: Name at least two instances where the trial
court can hold the accused civilly liable even if
he is acquitted. (2002, 2010 Bar)

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 QuAMTO (1987-2019)
A: The instances where the civil, liability is not deemed instituted. He insisted that the basis of
extinguished despite acquittal of the accused are: the separate civil action was the very same act
that gave rise to the criminal action. Rule on
1. Where the acquittal is based on reasonable Tomas' motion to dismiss, with brief reasons.
doubt; (2017 Bar)
2. Where the court expressly declares that the
liability of the accused is not criminal but A: Tomas’s motion to dismiss on the ground of litis
only civil in nature; and pendentia should be denied. In cases of physical
3. Where the civil liability is not derived from injuries, a civil action for damages, entirely separate
or based on the criminal act of which the and distinct from the criminal action, may be
accused is acquitted. (Sapiera v. Court of brought by the injured party. Such civil action shall
Appeals, G.R. No. 128927, September 14, proceed independently of the criminal action (Art.
1999) 33, Civil Code; Sec. 3, Rule 111) and hence may not be
dismissed on the ground of litis pendentia.
Q: In an action for violation of Batas Pambansa
Blg. 22, the court granted the accused’s Prejudicial question
demurrer to evidence which he filed without
leave of court. Although he was acquitted of the Q: A allegedly sold to B a parcel of land which A
crime charged, he, however, was required by the later also sold to X. B brought a civil action for
court to pay the private complainant the face nullification of the second sale and asked that
value of the check. The accused filed a Motion of the sale made by A in his favour be declared
Reconsideration regarding the order to pay the valid. A theorized that he never sold the
face value of the check on the following grounds: property to B and his purported signatures
appearing in the first deed of sale were
a. the demurrer to evidence applied only forgeries. Thereafter, an Information for estafa
to the criminal aspect of the case (2001 was filed against A based on the same double
Bar); and sale that was the subject of the civil action. A
filed a “Motion for suspension of Action” in the
A: The Motion for Reconsideration should be criminal case, contending that the resolution of
denied. The ground that the demurrer to evidence the issue in civil case would necessarily be
applied only to the criminal aspect of the case was determinative of his guilt or innocence. Is the
not correct because the criminal action for violation suspension of the criminal action in order?
of Batas Pambansa Blg. 22 included the Explain. (1999, 2000 Bar)
corresponding civil action. (Sec. 1[b], Rule 111)
A: Yes. The suspension of the criminal action is in
b. at the very least, he was entitled to order because the defense of A in civil action, that he
adduce controverting evidence on the never sold the property to B and that his purported
civil liability. Resolve the Motion for signatures in the first deed of sale were forgeries, is
Reconsideration (2003 Bar) a prejudicial question the resolution of which is
determinative of his guilt or innocence. If the first
A: The accused was not entitled to adduce sale is null and void, there would be no double sale
controverting evidence on the civil liability, because and A would be innocent of the offense of estafa.
he filed his demurrer to evidence without leave of (Ras v. Rasul, G.R. Nos. L-50441-42 September 18,
court. (Sec. 23, Rule 119) 1980)

Q: Tomas was criminally charged with serious Q: Solomon and Faith got married in 2005. In
physical injuries allegedly committed against 2010, Solomon contracted a second marriage
Darvin. During the pendency of the criminal with Hope. When Faith found out about the
case, Darvin filed a separate civil action for second marriage of Solomon and Hope, she filed
damages based on the injuries he had sustained. a criminal case for bigamy before the Regional
Tomas filed a motion to dismiss the separate Trial Court (RTC) of Manila sometime in 2011.
civil action on the ground of litis pendentia, Meanwhile, Solomon filed a petition for
pointing out that when the criminal action was declaration of nullity of his first marriage with
filed against him, the civil action to recover the Faith in 2012, while the case for bigamy before
civil liability from the offense charged was also the RTC of Manila is ongoing. Subsequently,

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Solomon filed a motion to suspend the brought him to the inquest prosecutor for the
proceedings in the bigamy case on the ground of conduct of an inquest. Thereafter, an
prejudicial question. He asserts that the Information for Homicide was filed by the
proceedings in the criminal case should be inquest prosecutor without the conduct of a
suspended because if his first marriage with preliminary investigation. The next day Mr. A
Faith will be declared null and void, it will have requested for the conduct of a preliminary
the effect of exculpating him from the crime of investigation.
bigamy. Decide. (2014 Bar)
(a) Is the inquest prosecutor's filing of the
A: The motion filed by Solomon should be Information without the conduct of
denied.The elements of prejudicial question are: (1) preliminary investigation proper?
the previous instituted civil action involves an issue
similar or intimately related to the issue determines A: Yes. The initial duty of the inquest officer is to
the subsequent criminal action; and (2) the determine whether the respondent was arrested
resolution of such issue determines whether or not pursuant to Section 5, Rule 113. If that was so, then
the criminal action may proceed. In order for a he can file the information immediately in the
prejudicial question to exist, the civil action must proper court. Since Mr. A was arrested in flagrante
precede the filing of the criminal action (Dreamwork delicto, the action of the inquest prosecutor in filing
Construction, Inc. v. Janiola, G.R. No. 184861, June 30, the Information without conducting a preliminary
2009). Since the criminal case for bigamy was filed investigation was correct. (Section 8, Rule on
ahead of the civil action for declaration of nullity of Inquest)
marriage, there is no prejudicial question. At any
rate, the outcome of the civil case for annulment has (b) Is Mr. A's request permissible? Explain.
no bearing upon the determination of the guilt or (2017, 2019 Bar)
innocence of the accused in the criminal case for
bigamy because the accused has already committed A: The request of Mr. R to conduct a preliminary
the crime of bigamy when he contracted the second investigation was correct and the same is supported
marriage without the first marriage having being by the Revised Guidelines on Continuous trial
declared null and void. because it was made within the five (5)-day
reglementary period from inquest and filing of the
NB: In the case of Pulido v. People, G.R. No. 220149, Information in Court. Mr. R’s request was made a
July 27, 2021, the Supreme Court ruled that the day after the Information for Homicide was filed in
parties are not required to obtain a judicial court by the inquest prosecutor. (A.M. No. 15-06-10-
declaration of absolute nullity of a void ab initio of a SC, otherwise known as the Revised Guidelines for
prior or subsequent marriage in order to raise it as Continuous trial in Criminal cases)
a defense in a Bigamy case. Art. 40 of the Family
Code did not, in any way, amend Art. 349 of the Q: Regional Director AG of the Department of
Revised Penal Code on Bigamy. Thus, the accused in Public Works and Highways was charged with
the Bigamy case can collaterally attack the validity violation of Section 3(e) of Republic Act No. 3019
of a prior marriage in the same proceedings for in the Office of the Ombudsman. An
Bigamy. The foregoing will not apply if the 1st or 2nd administrative charge for gross misconduct
marriage is merely voidable, since a voidable arising from the transaction subject matter of
marriage is valid until annulled. said criminal case was filed against him in the
same office. The Ombudsman assigned a team
PRELIMINARY INVESTIGATION composed of investigators from the office of the
Special Prosecutor and from the Office of the
Q: In a neighborhood bicycle race, Mr. A bumped Deputy Ombudsman for the Military to conduct
the bicycle of one of his competitors, Mr. B, in a joint investigation of the criminal case and the
order to get ahead. This caused the latter to lose administrative case. The team of investigators
control of the bike which hit the concrete recommended to the Ombudsman that AG be
pavement and sent Mr. B crashing headfirst into preventively suspended for a period not
the sidewalk. By the time the organizers got to exceeding six months on its finding that the
him, Mr. B was dead. Law enforcement evidence of guilt is strong. The Ombudsman
authorities who witnessed the incident arrested issued the said order as recommended by the
Mr. A without a warrant, and immediately investigators. AG moved to reconsider the order

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 QuAMTO (1987-2019)
on the following grounds: a) The office of the office, which he might currently be holding and not
Special Prosecutor had exclusive authority to necessarily the particular office under which he was
conduct a preliminary investigation of the charged. Thus, the DENR undersecretary can be
criminal case; b) The order for his preventive preventively suspended even though he was a
suspension was premature because he has yet to mayor, when he allegedly committed malversation.
file his answer to the administrative complaint
and submit countervailing evidence; and c) he Settled is the rule that where the accused files a
was career executive service officer and under motion to quash the information or challenges the
Presidential Decree No. 807 (Civil Service Law), validity thereof, a show-cause order of the trial
his preventive suspension shall be for a court would no longer be necessary. What is
maximum period of three months. Resolve with indispensable is that the trial court duly hear the
reasons the motion of respondent AG. (2005 parties at a hearing held for determining the validity
Bar) of the information, and thereafter hand down its
ruling, issuing the corresponding order of
A: The motion should be denied for the following suspension should it uphold the validity of the
reasons: information (Luciano v. Mariano, G.R. No. L-32950,
July 30, 1971). Since a pre-suspension hearing is
1. The office of the Special Prosecutor does basically a due process requirement, when an
not have exclusive authority to conduct a accused public official is given an adequate
preliminary investigation of the criminal opportunity to be heard on his possible defenses
case but it participated in the investigation against the mandatory suspension under R.A. No.
together with the Deputy Ombudsman for 3019, then an accused would have no reason to
the Military who can handle cases of complain that no actual hearing was conducted.
civilians and is not limited to the military. (Miguel v. Sandiganbayan, G.R. No. 172035, July 04,
2. The order of preventive suspension need 2012)
not wait for the answer to the
administrative complaint and the In the facts given, the DENR Undersecretary was
submission of countervailing evidence. already given opportunity to question the validity of
(Garcia v. Mojica, G.R. No. 13903, September the Information for malversation by filing a motion
10, 1999) to quash, and yet, the Sandiganbayan sustained its
validity. There is no necessity for the court to
Q: X, an undersecretary of DENR, was charged conduct pre-suspension hearing to determine for
before the Sandiganbayan for malversation of the second time the validity of the information for
public funds allegedly committed when he was purpose of preventively suspending the accused.
still the Mayor of a town in Rizal. After
arraignment, the prosecution moved that X be Q: You are the defense counsel of Angela Bituin
preventively suspended. X opposed the motion who has been charged under RA 3019 (Anti-
arguing that he was now occupying a position Graft and Corrupt Practices Act) before the
different from that which the Information Sandiganbayan. While Angela has posted bail,
charged him and therefore, there is no more she has yet to be arraigned. Angela revealed to
possibility that he can intimidate witnesses and you that she has not been investigated for any
hamper the prosecution. Decide. Suppose X files offense and that it was only when police officers
a Motion to Quash challenging the validity of the showed up at her residence with a warrant of
Information and the Sandiganbayan denies the arrest that she learned of the pending case
same, will there still be a need to conduct a pre- against her. She wonders why she has been
suspension hearing? Explain. (2012 Bar) charged before the Sandiganbayan when she is
not in government service.
A: There is no necessity for the court to conduct pre-
suspension hearing. Under Section 13 of RA No. a. What "before-trial" remedy would you
3019, an incumbent public officer against whom any invoke in Angela’s behalf to address the fact
criminal prosecution under a valid information for that she had not been investigated at all, and
graft-related crime such as malversation is pending how would you avail of this remedy?
in court, shall be suspended from office. The word
“office”, from which the public officer charged shall A: I will file a motion for the conduct of preliminary
be preventively suspended, could apply to any investigation or reinvestigation and the quashal or

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recall of the warrant of arrest in the Court where the A: Yes. Since the offender was arrested in flagrante
case is pending with an additional prayer to delicto without a warrant of arrest; an inquest
suspend the arraignment. proceeding should be conducted and thereafter a
case may be filed in court even without the requisite
Under Section 6, Rule 112, after filing of the preliminary investigation.
complaint or information in court without a
preliminary investigation, the accused may within Under Section 7, Rule 112, when a person is lawfully
five days from the time he learns of its filing ask for arrested without a warrant involving an offense
a preliminary investigation with the same right to which requires preliminary investigation, the
adduce evidence in his defense. complaint or information may be filed by a
prosecutor without the need of such investigation
Moreover, Section 26, Rule 114 provides that an provided an inquest has been conducted in
application for or admission to bail shall not bar the accordance with existing rules. In the absence or
accused from challenging the validity of his arrest or unavailability of an inquest prosecutor, the
the legality of the warrant issued therefor, or from complaint may be filed by the offended party or a
assailing the regularity or questioning the absence peace officer directly with the proper court on the
of a preliminary investigation of the charge against basis of the affidavit of the offended party or
him, provided that he raises them before entering arresting officer or person.
his plea. The court shall resolve the matter as early
as practicable as but not later than the start of the Q: Engr. Magna Nakaw, the District Engineer of
trial of the case. the DPWH in the Province of Walang Progreso,
and Mr. Pork Chop, a private contractor, were
b. What "during-trial" remedy can you use to both charged in the Office of the Ombudsman for
allow an early evaluation of the prosecution violation of the Anti-Graft and Corrupt Practices
evidence without the need of presenting Act (R.A. No. 3019) under a conspiracy theory.
defense evidence; when and how can you While the charges were undergoing
avail of this remedy? (2013 Bar) investigation in the Office of the Ombudsman,
Engr. Magna Nakaw passed away. Mr. Pork Chop
A: I will file first a motion for leave to file a demurrer immediately filed a motion to terminate the
within five (5) days from the time the prosecution investigation and to dismiss the charges against
rested its case. If the same is granted, then I will now him, arguing that because he was charged in
file a demurrer to evidence within ten (10) days conspiracy with the deceased, there was no
(Sec. 23, Rule 119). This remedy would allow the longer a conspiracy to speak of and,
evaluation of the sufficiency of prosecution’s consequently, any legal ground to hold him for
evidence without the need of presenting defense trial had been extinguished. Rule on the motion
evidence. It may be done through the court’s to terminate filed by Mr. Pork Chop, with brief
initiative or upon motion of the accused and after reasons. (2017 Bar)
the prosecution rested its case. (Sec. 23, Rule 119)
A: Mr. Pork Chop’s motion to terminate the
Q: On his way to the PNP Academy in Silang, investigation before the Office of the Ombudsman
Cavite on board a public transport bus as a should be denied. In a case involving similar facts,
passenger, Police Inspector Masigasig of the the Supreme Court held that the death of a co-
Valenzuela Police witnessed an on-going armed conspirator, even if he was the lone public officer,
robbery while the bus was traversing Makati. did not mean that the allegation of conspiracy to
His alertness and training enabled him to foil violate the Anti-Graft Law could no longer be proved
the robbery and to subdue the malefactor. He or that the alleged conspiracy was already
disarmed the felon and while frisking him, expunged. The only thing extinguished by the death
discovered another handgun tucked in his waist. of a co-conspirator was his criminal liability. His
He seized both handguns and the malefactor death did not extinguish the crime nor did it remove
was later charged with the separate crimes of the basis of the charge of conspiracy between him
robbery and illegal possession of firearm. May and private respondent. (People v. Go, G.R. 168539,
the charges of robbery and illegal prosecution of March 25, 2014)
firearm be filed directly by the investigating
prosecutor with the appropriate court without a ARREST
preliminary inestigation? (2013 Bar)

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 QuAMTO (1987-2019)
Q: Give at least two instances when a peace City Prosecutor of Manila a complaint for estafa
officer or a private person may make a valid supported by RY’s sworn statement and other
warrantless arrest. (2017 Bar) documentary evidence. After due inquest, the
prosecutor filed the requisite information with
A: Under Section 5, Rule 113, a peace officer or a the MM RTC. No preliminary investigation was
private person may make a valid warrantless arrest conducted either before or after the filing of the
in the following instances: information and the accused at no time asked
for such an investigation. However, before
a. When, in his presence, the person to be arraignment, the accused moved to quash the
arrested has committed, is actually information on the ground that the prosecutor
committing, or is attempting to commit an suffered from a want of authority to file the
offense; information because of his failure to conduct a
preliminary investigation before filing the
b. When an offense has just been committed, information, as required by the Rules of Court.
and he has probable cause to believe based
on personal knowledge of facts or a. Is the warrantless arrest of AX valid?
circumstances that the person to be
arrested has committed it; and A: No. The warrantless arrest is not valid because
the alleged offense has not just been committed. The
c. When the person to be arrested is a crime was allegedly committed one year before the
prisoner who has escaped from a penal arrest. (Sec. 5(b), Rule 113)
establishment or place where he is serving
final judgment or is temporarily confined b. Is he entitled to a preliminary investigation
while his case is pending, or has escaped before the filing of the information? Explain.
while being transferred from one (2004 Bar)
confinement to another.
A: Yes, he is entitled to a preliminary investigation
Q: As Cicero was walking down a dark alley one because he was not lawfully arrested without a
midnight, he saw an "owner-type jeepney" warrant (Sec. 7, Rule 112). He can move for a
approaching him. Sensing that the occupants of reinvestigation.
the vehicle were up to no good, he darted into a
corner and ran. The occupants of the vehicle − Q: A was killed by B during a quarrel over a
elements from the Western Police District − hostess in a nightclub. Two days after the
gave chase and apprehended him. The police incident, and upon complaint of the widow of A,
apprehended Cicero, frisked him and found a the police arrested B without a warrant of arrest
sachet of 0.09 gram of shabu tucked in his waist and searched his house without a search
and a Swiss knife in his secret pocket, and warrant.
detained him thereafter. Is the arrest and body-
search legal? (2010 Bar) a. Can the gun used by B in shooting A, which
was seized during the search of the house of
A: No. The arrest and the body-search were not B, be admitted in evidence?
legal. Cicero’s act of running does not show any
reasonable ground to believe that a crime has been A: No. The gun seized during the search of the house
committed or is about to be committed for the police of B without a search warrant is not admissible in
officers to apprehend him and conduct body search. evidence (Sec. 2 and 3[2], Art. III, 1987 Constitution).
Hence, the arrest was illegal as it does not fall under Moreover, the search was not an incident to a lawful
any of the circumstances for a valid warrantless arrest of a person under Sec. 13, Rule 126.
arrest provided in Section 5, Rule 113.
b. Is the arrest of B legal?
Q: AX swindled RY in the amount P10,000
sometime in mid-2003. On the strength of the A: No. A warrantless arrest requires that the crime
sworn statement given by RY personally to SPO1 has in fact just been committed and the police
Juan Ramos sometime in mid-2004, and without arresting has personal knowledge of facts that the
securing a warrant, the police officer arrested person to be arrested has committed it (Sec. 5, Rule
AX. Forthwith the police officer filed with the 113). Here, the crime has not just been committed

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since a period of two days had already lapsed, and merits ensued. The court rendered judgment
the police arresting has no such personal knowledge convicting him. On appeal, FG claims that the
because he was not present when the incident judgment is void because he was illegally
happened. (Go v. Court of Appeals, G.R. No. 101837, arrested. If you were the Solicitor General,
February 11, 1992) counsel, for the People of the Philippines, how
would you refute said claim? (2000 Bar)
c. Under the circumstances, can B be convicted
of homicide? (1997 Bar) A: I would assert that any objection to the illegality
of the arrest of the accused without a warrant is
A: Yes. The gun is not indispensable in the deemed waived when he pleaded not guilty at the
conviction of A because the court may rely on arraignment without raising the question. It is too
testimonial or other evidence. late to complain about a warrantless arrest after
trial is commenced and completed and a judgment
Q: In a buy-bust operation, the police operatives of conviction rendered against the accused. (People
arrested the accused and seized from him a v. Cabiles, G.R. No. 112035, January 16, 1998)
sachet of shabu and an unlicensed firearm. The
accused was charged in two Informations, one Q: Boy Maton, a neighborhood tough guy, was
for violation of the “Dangerous Drug Act”, as arrested by a police officer on suspicion that he
amended, and another for illegal possession of was keeping prohibited drugs in his clutch bag.
firearms. The accused filed an action for When Boy Maton was searched immediately
recovery of the firearm in another court against after the arrest, the officer found and recovered
the police officers with an application for the 10 sachets of shabu neatly tucked in the inner
issuance of a writ of replevin. He alleged in his linings of the clutch bag. At the time of his arrest,
complaint that he was a military informer who Boy Maton was watching a basketball game
had been issued a written authority to carry said being played in the town plaza, and he was
firearm. The police officers moved to dismiss the cheering for his favorite team. He was
complaint on the ground that the subject subsequently charged with illegal possession of
firearm was in custodia legis. The court denied dangerous drugs, and he entered a plea of not
the motion and instead issued the writ of guilty when he was arraigned. During the trial,
replevin. Boy Maton moved for the dismissal of the
information on the ground that the facts
a. Was the seizure of the firearm valid? revealed that he had been illegally arrested. He
further moved for the suppression of the
A: Yes. The seizure of the firearm was valid because evidence confiscated from him as being the
it was seized in the course of a valid arrest in a buy- consequence of the illegal arrest, hence, the fruit
bust operation (Secs. 12 and 13, Rule 126). In such of the poisonous tree. The trial court, in denying
operation, a search warrant was not necessary. the motions of Boy Maton, explained that at the
(People v. Salazar, G.R. No. 98060, January 27, 1997) time the motions were filed Boy Maton had
already waived the right to raise the issue of the
b. Was the denial of the motion to dismiss legality of the arrest. The trial court observed
proper? (2003 Bar) that, pursuant to the Rules of Court, Boy Maton,
as the accused, should have assailed the validity
A: No. The denial of the motion to dismiss was not of the arrest before entering his plea to the
proper. The court had no authority to issue the writ information. Hence, the trial court opined that
of replevin whether the firearm was in custodia legis any adverse consequence of the alleged illegal
or not. The motion to recover the firearm should be arrest had also been equally waived.
filed in the court where the criminal action is
pending. Comment on the ruling of the trial court. (2017
Bar)
Q: FG was arrested without a warrant by
policemen while he was walking in a busy street. A: The ruling of the court denying the motion for
After the preliminary investigation, he was dismissal of the information on the ground of illegal
charged with rape and the corresponding arrest is proper. Under Sec. 9, Rule 117, the
information was filed in the RTC. On accused’s failure to file a motion to quash before
arraignment, he pleaded not guilty. Trial on the plea is a waiver of the objection to lack of personal

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 QuAMTO (1987-2019)
jurisdiction or of the objection to an illegal arrest. A: The phrase “personal knowledge of the facts and
Here, Boy Maton entered a plea without filing a circumstances that the person to be arrested
motion to quash on the ground of lack of personal committed it” means that matters in relation to the
jurisdiction. Hence, he is deemed to have waived the supposed commission of the crime were within the
ground of illegal arrest which is subsumed under actual perception, personal evaluation or
lack of personal jurisdiction. observation of the police officer at the scene of the
crime. Thus, even though the police officer has not
However, the ruling denying the motion to suppress seen someone actually, fleeing, he could still make a
evidence is not correct. The Supreme Court has held warrantless arrest if, based on his personal
that a waiver of an illegal, warrantless arrest does evaluation of the circumstances at the scene of the
not carry with it a waiver of the inadmissibility of crime, he could determine the existence of probable
evidence seized during an illegal warrantless arrest cause that the person sought to be arrested has
(People v. Racho, G.R. No. 186529, August 3, 2010). A committed the crime; however, the determination
waiver of an illegal arrest is not a waiver of an illegal of probable cause and the gathering of facts or
search. The Constitution provides that evidence circumstances should be made immediately after
seized in violation of the right against illegal search the commission of the crime in order to comply with
is inadmissible in evidence. Hence, the evidence was the element of immediacy.
seized was virtue of an illegal search considering
that the arrest was illegal, rendering it inadmissible Determination of probable cause and issuance
in evidence. of warrant of arrest

Q: Under Section 5, Rule 113, a warrantless Q: An information for murder was filed against
arrest is allowed when an offense has just been Rapido. The RTC judge, after personally
committed and the peace officer has probable evaluating the prosecutor's resolution,
cause to believe, based on his personal documents and parties' affidavits submitted by
knowledge of facts and circumstances, that the the prosecutor, found probable cause and issued
person to be arrested has committed it. A a warrant of arrest. Rapido's lawyer examined
policeman approaches you for advice and asks the rollo of the case and found that it only
you how he will execute a warrantless arrest contained the copy of the information, the
against a murderer who escaped after killing a submissions of the prosecutor and a copy of the
person. The policeman arrived two (2) hours warrant of arrest. Immediately, Rapido's
after the killing and a certain Max was allegedly counsel filed a motion to quash the arrest
the killer per information given by a witness. He warrant for being void, citing as grounds:
asks you to clarify the following:
1. The judge before issuing the warrant did
a. How long after the commission of the crime not personally conduct a searching
can he still exeute the warrantless arrest? examination of the prosecution
witnesses in violation of his client's
A: In executing a warrantless arrest under Section 5, constitutionally-mandated rights;
Rule 113, the Supreme Court held that the
requirement that an offense has just been 2. There was no prior order finding
committed means that there must be a large probable cause before the judge issued
measure of immediacy between the time the offense the arrest warrant.
was committed and the time of the arrest (Pestilos v.
Generoso, G.R. No. 182601, November 10, 2014). If May the warrant of arrest be quashed on the
there was an appreciable lapse of time between the grounds cited by Rapido's counsel? State your
arrest and the commission of the crime, a warrant of reason for each ground. (2015 Bar)
arrest must be secured. In any case, personal
knowledge by the arresting officer is an A: No, the warrant of arrest may not be quashed
indispensable requirement to the validity of a vaid based on the grounds cited by Rapido’s counsel. In
warrantless arrest. the issuance of warrant of arrest, the mandate of the
Constitution is for the judge to personally determine
b. What does “personal knowledge of the facts the existence of probable cause. The words
and circumstances that the person to be “personal determination,” was interpreted by the
arrested committed it” mean? (2016 Bar) Supreme Court in Soliven v. Makasiar (G.R. No.

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82585, November 14, 1988) as the exclusive and 114 that: “in no case shall bail be allowed after the
personal responsibility of the issuing judge to accused has commenced to serve sentence.” (People
satisfy himself as to the existence of probable cause. v. Fitzgerald, G.R. No. 149723, October 27, 2006)

What the law requires as personal determination on Q: When is bail a matter of right and when is it a
the part of a judge is that he should not rely solely matter of discretion? (1999, 2006, 2017, 2019
on the report of the investigating prosecutor. Thus, Bar)
personal examination of the complainant and his
witnesses is, thus, not mandatory and indispensable A: Bail is a matter of right: (a) before or after
in the determination of probable cause for the conviction by the Metropolitan Trial Court,
issuance of a warrant of arrest. (People v. Grey, G.R. Municipal Trial Court, Municipal Trial Court in
No. 10109, July 26, 2010) Cities, or Municipal Circuit Trial Court; (b) before
conviction by the Regional Trial Court of an offense
BAIL not punishable by death, reclusion perpetua, or life
imprisonment (Sec. 4, Rule 114); and (c) if the charge
Nature; When a matter of right; When a matter involves a capital offense and the evidence of guilt is
of discretion not strong. (Sec. 7, Rule 114)

Q: After Alma had started serving her sentence Bail is a matter of discretion upon conviction by the
for violation of Batas Pambansa Blg. 22 (BP 22), Regional Trial Court of an offense not punishable by
she filed a petition for writ of habeas corpus, death, reclusion perpetua, or life imprisonment.
citing Vaca v. CA where the sentence of (Sec. 5, Rule 114)
imprisonment of a party found guilty of
violation of BP 22 was reduced to a fine equal to Q: When the accused is entitled as a matter of
double the amount of the check involved. She right to bail, may the court refuse to grant him
prayed that her sentence be similarly modified bail on the ground that there exists a high
and that she be immediately released from degree of probability the he will abscond or
detention. In the alternative, she prayed that escape? Explain. (1999 Bar)
pending determination on whether the Vaca
ruling applies to her, she be allowed to post bail A: If bail is a matter of right, it cannot be denied on
pursuant to Rule 102, Sec. 14, which provides the ground that there exists a high degree of
that if a person is lawfully imprisoned or probability that the accused will abscond or escape.
restrained on a charge of having committed an What the court can do is to increase the amount of
offense not punishable by death, he may be the bail. One of the guidelines that the judge may use
admitted to bail in the discretion of the court. in fixing a reasonable amount of bail is the
Accordingly, the trial court allowed Alma to post probability of the accused appearing in trial. (Sec
bail and then ordered her release. In your 9[g], Rule 114, as amended by Circular No. 12-94)
opinion, is the order of the trial court correct?
Q: At the Public Attorney's Office station in
a. Under Rule 102? Taguig where you are assigned, your work
requires you to act as public defender at the
A: No. Section 4, Rule 102 of the Rules of Court local Regional Trial Court and to handle cases
(Habeas Corpus) does not authorize a court to involving indigents.
discharge by writ of habeas corpus a person charged
with or convicted of an offense in the Philippines, or In one other case, an indigent mother seeks
of a person suffering imprisonment under lawful assistance for her 14-year old son who has been
judgment. arrested and detained for malicious mischief.
Would an application for bail be the appropriate
b. Under the Rules of Criminal Procedure? remedy or is there another remedy available?
(2008 Bar) Justify your chosen remedy and outline the
appropriate steps to take. (2013 Bar)
A: No. The trial court’s order releasing Alma on bail
even after judgment against her has become final A: Yes. An application for bail is an appropriate
and in fact she has started serving sentence, is a remedy to secure provisional remedy of the 14-year
brazen disregard of the mandate in Section 24, Rule old boy. Under the Rules, bail is a matter of right

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 QuAMTO (1987-2019)
before or even after conviction before the MTC the nature of the offense from non-bailable to
which has jurisdiction over the crime of malicious bailable. Be that as it may, the denial of bail pending
mischief (Sec. 4, Rule 114). As such, bail can be appeal is a matter of wise discretion since after
posted as a matter of right. conviction by the trial court, the presumption of
innocence terminates and, accordingly, the
Q: A was charged with murder in the lower constitutional right to bail ends. (Leviste v. Court of
court. His Petition for Bail was denied after a Appeals, G.R. No. 189122, March 17, 2010)
summary hearing on the ground that the
prosecution had established a strong evidence Q: D was charged with murder, a capital offense.
of guilt. No Motion for Reconsideration was filed After arraignment, he applied for bail. The trial
from the denial of the Petition for Bail. During court ordered the prosecution to present its
the reception of the evidence of the accused, the evidence in full on the ground that only on the
accused reiterated his petition for bail on the basis of such presentation could it determine
ground that the witnesses so far presented by whether the evidence of D’s guilt was strong for
the accused had shown that no qualifying purposes of bail. Is the ruling correct? Why?
aggravating circumstance attended the killing. (2002 Bar)
The court denied the petition on the grounds
that it had already ruled that: (i) the evidence of A: No, the prosecution is only required to present as
guilt is strong; (ii) the resolution for the Petition much evidence as is necessary to determine
for Bail is solely based on the evidence whether the evidence of D’s guilt is strong for
presented by the prosecution; and (iii) no purposes of bail. (Sec. 8, Rule 114)
Motion for Reconsideration was filed from the
denial of the Petition for Bail. Q: In an information charging them of Murder,
policemen A, B and C were convicted of
a. If you are the Judge, how will you resolve the Homicide. A appealed from the decision but was
incident? denied. Finally, the Court of Appeals rendered a
decision acquitting A on the ground that the
A: If I were the Judge, I would grant the second evidence pointed to the NPA as the killers of the
Petition for Bail. Under Section 7, Rule 114, no victim.
person charge with a capital offense, or an offense
punishable by reclusion perpetua or life a. Was the Court of Appeal’s denial of A’s
imprisonment, shall be admitted to bail when application for bail proper?
evidence of guilt is strong, regardless of the stage of
the criminal prosecution. A: Yes, the Court of Appeals properly denied A’s
application for bail. The court had the discretion to
In this case, the evidence of guilt for the crime of do so. An appellant who, though convicted of an
murder is not strong, as shown by the prosecution’s offense not punishable by death, reclusion perpetua
failure to prove the circumstance that will qualify or life imprisonment, was nevertheless originally
the crime to, and consequently convict the accused charged with a capital offense can hardly be
of, murder. Accordingly, the accused should be unmindful of the fact that, in the ordinary course of
allowed to post bail because the evidence of his guilt things, there is a substantial likelihood of his
is not strong (Sec. 13, Art. III, 1987 Constitution). conviction (and the corresponding penalty) being
Besides, it is settled that an Order granting bail is affirmed on appeal, or worse, the not insignificant
merely interlocutory which cannot attain finality. possibility and infinitely more unpleasant prospect
(Pobre v. People, G.R. No. 141805, July 8, 2015) of instead being found guilty of the capital offense
originally charged. (Obosa v. Court of Appeals, G.R.
b. Suppose the accused is convicted of the No. 114350, January 16, 1997)
crime of homicide and the accused filed a
Notice of Appeal, is he entitled to bail? (2014 b. Can B and C be benefited by the decision of
Bar) the Court of Appeals? (1998 Bar)

A: Yes. The accused is entitled to bail subject to the A: B, who did not appeal, can be benefited by the
discretion of the Court. Under Section 5, Rule 114, decision of the Court of Appeals which is favourable
the appellate court may allow him to post bail and applicable to him (Sec. 11[a], Rule 122). On the
because the trial court in convicting him, changed

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other hand, the benefit will also apply to C even if his of Hong Kong Special Administrative Region v. Olalia,
appeal is dismissed because of his escape. G.R. No. 153675, April 19, 2007)

Q: If an information was filed in the RTC-Manila Q: May the Court require a witness to post bail?
charging D with homicide and he was arrested in Explain your answer. (1999 Bar)
Quezon City, in what court or courts may he
apply for bail? Explain. (2002 Bar) A: Yes. The court may require a witness to post bail
if he is a material witness and bail is needed to
A: D may apply for bail in the RTC-Manila where the secure his appearance. The rules provide that when
information was filed or in the RTC-Quezon City the court is satisfied, upon proof or oath, that a
where he was arrested, or if no judge, thereof is material witness will not testify when required, it
available, with any metropolitan trial judge, may, upon motion of either party, order the witness
municipal trial judge or municipal circuit trial judge to post bail in such sum as may be deemed proper.
therein. (Sec. 17, Rule 114) Upon refusal to post bail, the court shall commit him
to prison until he complies or is legally discharged
Q: In what forms may bail be given? (1999 Bar) after his testimony is taken. (Sec. 6, Rule 119)

A: Bail may be given by a corporate surety, or Q: A was charged with a non-bailable offense. At
through a property bond, cash deposit or the time when the warrant of arrest was issued,
recognizance (Sec. 1, Rule 114). he was confined in the hospital and could not
obtain a valid clearance to leave the hospital. He
Q: RP and State XX have a subsisting Extradition filed a petition for bail saying therein that he be
Treaty. Pursuant thereto RP’s Secretary of considered as having placed himself under the
Justice (SoJ) filed a Petition for Extradition jurisdiction of the court. May the court entertain
before the MM RTC alleging that Juan Kwan is his petition? Why or why not? (2012 Bar)
the subject of an arrest warrant duly issued by
the proper criminal court of State XX in A: Yes, a person is deemed to be under the custody
connection with a criminal case for tax evasion of the law either when he has been arrested or has
and fraud before his return to RP as a surrendered himself to the jurisdiction of the court.
balikbayan. Petitioner prays that Juan be The accused who is confined in a hospital may be
extradited and delivered to the proper deemed to be in the custody of the law if he clearly
authorities of State XX for trial, and that to communicates his submission to the court while he
prevent Juan’s flight in the interim, a warrant for is confined in a hospital. (Paderanga v. Court of
his immediate arrest be issued. Before the RTC Appeals, G.R. No. 115407, August 28, 1995)
could act on the petition for extradition, Juan
filed before it an urgent motion, in sum praying Q: Paz was awakened by a commotion coming
(1) that SoJ’s application for an arrest warrant from a condo unit next to hers. Alarmed, she
be set for hearing and (2) that Juan be allowed called up the nearby police station. PO1 Remus
to post bail in the event the court would issue an and P02 Romulus proceeded to the condo unit
arrest warrant. Should the court grant or deny identified by Paz. PO 1 Remus knocked at the
Juan’s prayer? Reason. (2004 Bar) door and when a man opened the door, PO1
Remus and his companions introduced
A: The Court should grant Juan’s prayer. An themselves as police officers. The man readily
extradition proceeding, while ostensibly identified himself as Oasis Jung and gestured to
administrative, bears all earmarks of a criminal them to come in. Inside, the police officers saw a
process. However, while our extradition law does young lady with her nose bleeding and face
not provide for the grant of bail to an extraditee, swollen. Asked by P02 Romulus what happened,
there is no provision prohibiting him or her from the lady responded that she was beaten up by
filing a motion for bail, a right to due process under Oasis Jung. The police officers arrested Oasis
the Constitution. Jung and brought him and the young lady back
to the police station. PO1 Remus took the young
In light of the recent developments in international lady's statement who identified herself as AA.
law, where emphasis is given to the worth of the She narrated that she is a sixteen-year-old high
individual and the sanctity of human rights, an school student; that previous to the incident, she
extraditee may be allowed to post bail. (Government had sexual intercourse with Oasis Jung at least

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five times on different occasions and she was RIGHTS OF THE ACCUSED
paid P5,000.00 each time and it was the first
time that Oasis Jung physically hurt her. P02 Q: Under Republic Act No. 8353, one may be
Romulus detained Oasis Jung at the station's jail. charged with and found guilty of qualified rape
After the inquest proceeding, the public if he knew on or before the commission of the
prosecutor filed an information for Violation of crime that he is afflicted with Human Immuno-
R.A. No. 9262 (The VAWC Law) for physical Deficiency Virus (HIV)/Acquired Immune
violence and five separate informations for Deficiency Syndrome (AIDS) or any other
violation of R.A. No. 7610 (The Child Abuse sexually transmissible disease and the virus or
Law). Oasis Jung's lawyer filed a motion to be disease is transmitted to the victim. Under
admitted to bail but the court issued an order Section 17(a) of Republic Act No. 8504 the court
that approval of his bail bond shall be made only may compel the accused to submit himself to a
after his arraignment. blood test where blood samples would be
extracted from his veins to determine whether
a. Did the court properly impose that bail he has HIV. (2005, 2010 Bar)
condition?
a. Are the rights of the accused to be presumed
A: No. The court did not properly impose that bail innocent of the crime charged, to privacy,
condition. The Revised Rules of Criminal Procedure and against self-incrimination violated by
do not require the arraignment of the accused as such compulsory testing? Explain.
prerequisite to the conduct of hearings in the bail
petition. A person is allowed to file a petition for bail A: No. The court may compel the accused to submit
as soon as he is deprived of his liberty by virtue of himself to a blood test to determine whether he has
his arrest or voluntary surrender. An accused need HIV under Sec. 17(a) of R.A. No. 8054. His rights to
not wait for his arraignment before filing the bail be presumed innocent of the crime charged, to
petition. (Serapio v. Sandiganbayan, G.R. No. 149116, privacy and against self-incrimination are not
January 2, 2003) violated by such compulsory testing. In an action in
which the physical condition of a party is in
Moreover, the condition that the approval of bail controversy, the court may order the accused to
bonds shall be made only after arraignment would submit to a physical examination. (Sec. 1, Rule 28)
place the accused in a position where he has to
choose between: (1) filing a motion to quash (the b. If the result of such test shows that he is HIV
Information) and thus delay his released on bail positive, and the prosecution offers such
because until his motion to quash can be resolved, result in evidence to prove the qualifying
his arraignment cannot be held; and (2) foregoing circumstance under the Information for
the filing of a motion to quash (the Information) so qualified rape, should the court reject such
that he can be arraigned at once and thereafter be result on the ground that it is the fruit of a
released on bail. (Lavides v. Court of Appeals, G.R. No. poisonous tree? Explain.
129670, February 1, 2000)
A: No. Since the rights of the accused are not
b. After his release from detention on bail, can violated because the compulsory testing is
Oasis Jung still question the validity of his authorized by the law, the result of the testing
arrest? (2015 Bar) cannot be considered to be the fruit of a poisonous
tree and can be offered in evidence to prove the
A: Yes. Oasis Jung can still question the validity of qualifying circumstance under the information for
his arrest even after his release from detention on qualified rape under R.A. No. 8353. The fruit of the
bail. Under Sec. 26, Rule 114, an application for or poisonous tree doctrine refers to that rule of
admission to bail shall not bar the accused from evidence that excludes any evidence which may
challenging the validity of his arrest or the legality have been derived or acquired from a tainted or
of the warrant issued therefor, or from assailing the polluted source. Such evidence is inadmissible for
regularity or questioning the absence of a having emanated from spurious origins. The
preliminary investigation of a charge against him, doctrine, however, does not apply to the results
provided that he raises them before entering his obtained pursuant to Sec. 1, Rule 28, as it does not
plea. contemplate a search within the meaning of the law.

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(People v. Montilla, G.R. No. 123872, January 30, Procedure enjoins that in all criminal prosecutions
1998) the accused shall be entitled to confront and cross-
examine the witnesses against him at the trial.
Q: X was arrested for the alleged murder of a 6-
year old lad. He was read his Miranda rights Accordingly, the testimony of a witness given on
immediately upon being apprehended. In the direct examination should be stricken off the record
course of his detention, X was subjected to three where there was not adequate opportunity for
hours of non-stop interrogation. He remained cross-examination. (People v. Fernando Monjey
quiet until, on the 3rd hour, he answered "yes" Rosario, G.R. No. 146689, September 27, 2002)
to the question of whether "he prayed for
forgiveness for shooting down the boy." The ALTERNATIVE ANSWER:
trial court, interpreting X’s answer as an
admission of guilt, convicted him. On appeal, X’s The motion is not meritorious. The right of a party
counsel faulted the trial court in its to confront and cross-examine opposing witnesses
interpretation of his client’s answer, arguing in a judicial litigation is a personal one which may
that X invoked his Miranda rights when he be waived, expressly or impliedly, by conduct
remained quiet for the first two hours of amounting to a renunciation of the right of cross
questioning. Rule on the assignment of error. examination. Where a party has had the opportunity
(2002, 2010 Bar) to cross-examine a witness but failed to avail
himself of it, he necessarily forfeits the right to
A: The assignment of error invoked by X’s counsel is cross-examine and the testimony given on direct
impressed with merit since there has been no examination of the witness will be received or
express waiver of X’s Miranda rights. In order to allowed to remain in the record. The conduct of a
have a valid waiver of the Miranda rights, the same party which may be construed as an implied waiver
must be in writing and made in the presence of his of the right to cross-examine may take various
counsel. The uncounselled extrajudicial confession forms. (People v. Abatayao, G.R. No. 139456, July 7,
of X being without a valid waiver of his Miranda 2004).
rights, is inadmissible, as well as any information
derived therefrom. (Ho Wai Pang v. People, G.R. No. Under the Doctrine of Incomplete Testimony, the
176299, October 19, 2011) direct testimony of a witness who dies before
conclusion of the cross examination can be stricken
Q: Pedro, the principal witness in a criminal only insofar as not covered by the cross-
case, testified and completed his testimony on examination and that a referee has no power to
direct examination in 2015. Due to several strike the examination of a witness on his failure to
postponements by the accused, grounded on his appear for cross-examination where a good excuse
recurring illness, which were all granted by the is given. (People v. Hon. Alberto V. Seneris, G.R. No. L-
judge, the cross-examination of Pedro was 48883, August 6, 1980)
finally set on October 15, 2016. Before the said
date, Pedro died. The accused moved to At any rate, the accused may be deemed to have
expunge Pedro’s testimony on the ground that it waived his right to confront and cross-examine the
violates his right of confrontation and the right witness when he asked the postponements of the
to cross- examine the witness. The prosecution hearing for several times; therefore, the direct
opposed the motion and asked Pedro’s testimony of a witness who dies before the
testimony on direct examination be admitted as conclusion of the cross-examination should not be
evidence. Is the motion meritorious? (2016 Bar) expunged from the records.

A: The motion is meritorious. The cross- ARRAIGNMENT AND PLEA
examination of a witness is an absolute right, not a
mere privilege, of the party against whom he is Q: D was charged with theft of an article worth
called. With regard to the accused, it is a right P15,000.00. Upon being arraigned, he pleaded
guaranteed by the fundamental law as part of due not guilty to the offense charged. Thereafter,
process. Article III, Sec. 14(2) of the 1987 before trial commenced, he asked the court to
Constitution specifically mandates that “the accused allow him to change his plea of not guilty to a
shall enjoy the right to meet the witnesses face to plea of guilty but only to estafa involving
face,” and Rule 115, Sec. 1(f) of the Rules of Criminal

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 QuAMTO (1987-2019)
P5,000.00. Can the court allow D to change his A: No. In effect, the judgment rendered by the trial
plea? Why? (2002 Bar) court against Mr. W which was based on a void plea
bargaining is also void ab initio and cannot be
A: No, because a plea of guilty to a lesser offense considered to have attained finality for the simple
may be allowed if the lesser offense is necessarily reason that a void judgment has no legality from its
included in the offense charged (Sec. 2, Rule 116). inception. Thus, since the judgment of conviction
Estafa involving P5,000.00 is not necessarily rendered against Mr. W was void, double jeopardy
included in theft of an article worth P15,000.00. will not lie.

Q: Mr. W was charged with raping his neighbor's MOTION TO QUASH
seventeen (17)-year old daughter, AAA. When
he was arraigned, Mr. W expressed his desire to Grounds
plead "guilty," provided that his sentence be
substantially reduced. Both AAA's mother and Q: Give two (2) grounds to quash an Information.
the prosecutor were amenable to the proposal. (1998 Bar)
Consequently, the judge entered a plea of guilty
for Mr. W and sentenced him to serve a reduced A: Two grounds to quash an Information are:
straight penalty of only ten (10) years of
imprisonment, as agreed upon. 1. That the facts charged do not constitute an
offense; and
(a) Did the judge properly enter a plea of guilty 2. That the court trying the case has no
for Mr. W? Explain. jurisdiction over the offense charged or the
person of the accused.
A: No. The act of Mr. W is a conditional plea,
meaning, subject to the condition that he be NOTE: The other grounds are:
punished to a certain penalty. In that case, the trial
court should have vacated such a plea and entered a 3. That the officer who filed the Information
plea of not guilty for a conditional plea of guilty, or had no authority to do so;
one subject to the proviso that a certain penalty be 4. That it does not conform substantially to
imposed upon him. A conditional plea of guilty is the prescribed form;
equivalent to a plea of not guilty and would, 5. That more than one offense is charged
therefore, require a full-blown trial before judgment except in those cases in which existing laws
may be rendered. prescribe a single punishment for various
offenses;
ALTERNATIVE ANSWER: 6. That the criminal action or liability has
been extinguished;
No. Rape is considered as a capital offense being 7. That it contains averments which, if true,
punishable by reclusion perpetua. Thus, under would constitute a legal excuse or
Section 3, Rule 166 of the Rules of Court, the Judge Justification; and
is duty bound: (1) to conduct a searching inquiry 8. That the accused has been previously
into the voluntariness and full comprehension of the convicted or in Jeopardy of being convicted,
consequences of the plea of guilt; (2) to require the or acquitted of the offense charged. (Sec. 3,
prosecution to still prove the guilt of the accused Rule 117)
and the precise degree of his culpability; and (3) to
inquire whether or not the accused wishes to Q: A criminal information is filed in court
present evidence in his behalf and allow him to do charging Anselmo with homicide. Anselmo files
so if he desires. a motion to quash the information on the ground
that no preliminary investigation was
(b) Assuming that Mr. W was once more charged conducted. Will the motion be granted? Why or
with the crime of Rape committed against why not? (2009 Bar)
AAA based on the same incident, may Mr. W
validly invoke the defense of double A: No, the motion to quash will not be granted. The
jeopardy through a motion to quash and will lack of preliminary investigation is not a ground for
such motion prosper? Explain. (2019 Bar) a motion to quash. Preliminary investigation is only
a statutory right and can be waived. The accused

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should instead file a motion for reinvestigation has such authority. During the pre-trial, BC
within five (5) days after he learn of the filing in moves that the case against him be dismissed on
Court of the case against him. (Sec. 6, Rule 112, as the ground that the Information is defective
amended) because the officer signing it lacked the
authority to do so. The Provincial Prosecutor
Q: Pedrito and Tomas, Mayor and Treasurer, opposes the motion on the ground of estoppel as
respectively, of the Municipality of San Miguel, BC did not move to quash the Information before
Leyte, are charged before the Sandiganbayan for arraignment. If you are counsel for BC, what is
violation of Section 3 (e), Republic Act No. 3019 your argument to refute the opposition of the
(Anti-Graft and Corrupt Practices Act). The Provincial Prosecutor? (2000 Bar)
information alleges, among others, that the two
conspired in the purchase of several units of A: I would argue that since the Provincial
computer through personal canvass instead of a Prosecutor had no authority to file the information,
public bidding, causing undue injury to the the court did not acquire jurisdiction over the
municipality. Before arraignment, the accused person of the accused and over the subject matter of
moved for reinvestigation of the charge, which the offense charged (Cudia v. Court of Appeals, G.R.
the court granted. After reinvestigation, the No. 110315, January 16, 1998). Hence, this ground is
Office of the Special Prosecutor filed an not waived if not raised in a motion to quash and
amended information duly signed and approved could be raised at the pre-trial. (Sec. 9, Rule 117)
by the Special Prosecutor, alleging the same
delictual facts, but with an additional allegation Note: In Gomez v. People, G.R. No. 216824, November
that the accused gave unwarranted benefits to 10, 2020, the Supreme Court held that the lack of
SB Enterprises owned by Samuel. Samuel was signature and approval of the provincial, city or
also indicted under the amended information. chief state prosecutor on the face of the Information
Before Samuel was arraigned, he moved to shall not divest the court of jurisdiction over the
quash the amended information on the ground person of the accused and the subject matter in a
that the officer who filed the same had no criminal action. It is sufficient for the validity of the
authority to do so. Resolve the motion to quash Information or Complaint, as the case may be, that
with reasons. (2009 Bar) the Resolution of the investigating prosecutor
recommending for the filing of the same in court
A: The motion to quash filed Samuel should be bears the imprimatur of the provincial, city or chief
granted. Under R.A. No. 6770, also known as the state prosecutor whose approval is required under
Ombudsman Act of 1989, the Special Prosecutor has Section 4, Rule 112 of the Rules of Court.
the power and authority, under the supervision and
control of the Ombudsman, to conduct preliminary Q: Rodolfo is charged with possession of
investigation and prosecute criminal cases before unlicensed firearms in an Information filed in
the Sandiganbayan and perform such other duties the RTC. It was alleged therein that Rodolfo was
assigned to him by the Ombudsman (Calingin v. in possession of two unlicensed firearms: a .45
Desierto, G.R. Nos. 145743-89, August 10, 2007). calibre and a .32 calibre. Under Republic Act No.
Absent a clear delegation of authority from the 8294, possession of an unlicensed .45 calibre
Ombudsman to the Special Prosecutor to file the gun is punishable by prision mayor in its
information, the latter would have no authority to minimum period and a fine of P30,000.00, while
file the same. The Special Prosecutor cannot be possession of an unlicensed .32 calibre gun is
considered an alter ego of the Ombudsman as the punishable by prision correccional in its
doctrine of qualified political agency does not apply maximum period and a fine of not less than
to the Office of the Ombudsman. (Perez v. P15,000.00. As counsel of the accused, you
Sandiganbayan, G.R. No. 166062, September 26, intend to file a motion to quash the Information.
2006) What ground or grounds should you invoke?
Explain. (2005 Bar)
Q: BC is charged with illegal possession of
firearms under an Information signed by a A: The ground for the motion to quash is that more
Provincial Prosecutor. After arraignment but than one offense is charged in the information (Sec.
before pre-trial, BC found out that the Provincial 3(f), Rule 117). Likewise, the RTC has no jurisdiction
Prosecutor had no authority to sign the over the second offense of possession of an
information as it was the City Prosecutor who unlicensed .32 calibre gun, punishable by prision

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 QuAMTO (1987-2019)
correccional in its maximum period and a fine of not acts and omissions constituting the offense, or any
less than P15,000.00. It is the MTC that has exclusive special or aggravating circumstances attending the
and original jurisdiction over all offenses same, as required under the rules of criminal
punishable by imprisonment not exceeding six year. procedure.
(B.P. Blg. 129, as amended by R.A. No. 7691)
Double Jeopardy
Q: If the Information is not accompanied by a
certification that a preliminary investigation Q: SPO1 CNC filed with the MTC in Quezon City
has been conducted. Is the Information void? (MeTC-QC) a sworn written statement duly
(1998 Bar) subscribed by him, charging RGR (an actual
resident of Cebu City) with the offense of slight
A: No. The certification which is provided in Sec. 4, physical injuries allegedly inflicted on SPS (an
Rule 112, Rules of Criminal Procedure, is not an actual resident of Quezon City). The judge of the
indispensable part of the information. (People v. branch to which the case was raffled thereupon
Lapura, G.R. No. 94494, March 15, 1996) issued an order declaring that the case shall be
governed by the Rule on Summary Procedure in
Q: The Information against Roger Alindogan for Criminal cases. Soon thereafter, the Judge
the crime of acts of lasciviousness under Art. ordered the dismissal of the case for the reason
336 of the Revised Penal Code avers: that it was not commenced by information, as
required by said Rule. Sometime later, based on
“That on or about 10:30 o’ clock in the evening the same facts giving rise to the slight physical
of February 1, 2010 at Barangay Matalaba, Imus, injuries case, the City Prosecutor filed with the
Cavite and within the jurisdiction of this same MeTC-QC an information for attempted
Honorable Court, the above-named accused, homicide against the same RGR. In due time,
with lewd and unchaste design, through force before arraignment, RGR moved to quash the
and intimidation, did then and there, wilfully, information on the ground of double jeopardy
unlawfully and feloniously commit sexual abuse and after due hearing, the Judge granted his
on his daughter, Rose Domingo, a minor of 11 motion.
years old, either by raping her or committing
acts of lasciviousness on her, against her will a. Was the dismissal of the complaint for slight
and consent to her damage and prejudice. physical injuries proper?

ACTS CONTRARY TO LAW.” A: Yes, the dismissal of the complaint for slight
physical injuries is proper because in Metropolitan
The accused wants to have the case dismissed Manila and in chartered cities, the case has to be
because he believes that the charge is confusing commenced only by information. (Sec. 11, Revised
and the information is defective. What ground Rule on Summary Procedure)
or grounds can he raise in moving for the
quashal of the information? Explain. (2016 Bar) b. Was the grant of the motion to quash the
attempted homicide information correct?
A: The accused may move to quash the information (2004 Bar)
based on any of the following grounds: (a) That the
facts charged do not constitute an offense; (b) That A: No, the grant of the motion to quash the
it does not conform substantially to the prescribed attempted homicide information on the ground of
form; and (c) That more that one offense is charged double jeopardy was not correct, because there was
except when a single punishment for various no valid prosecution for slight physical injuries.
offenses is prescribed by law (Sec. 3, Rule 117).
Q: D was charged with slight physical injuries in
In People v. Dela Cruz (G.R. Nos. 135554-56, June 21, the MTC. He pleaded not guilty and went to trial.
2002) the Supreme Court ruled that the phrase “by After the prosecution had presented its
either raping her or committing acts of evidence, the trial court set the continuation of
lasciviousness” does not constitute an offense since the hearing on another date. On the date
it does not cite which among the numerous sections scheduled for hearing, the prosecutor failed to
or subsections of R.A. No. 7610 has been violated by appear, whereupon the court, on motion of D,
accused-appellant. Moreover, it does not state the dismissed the case. A few minutes later, the

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prosecutor arrived and opposed the dismissal of graver charge became known or were discovered
the case. The court reconsidered its order and only after a plea was entered in the former complain
directed D to present his evidence. Before the or information. Here, when the plea to frustrated
next date of trial came, however, D moved that homicide was made, neither the court nor the
the last order be set aside on the ground that the prosecution was aware that the victim had died two
reinstatement of the case had placed him twice days earlier on account of his stab wounds.
in jeopardy. Acceding to this motion, the court
again dismissed the case. The prosecutor then Q: McJolly is a trouble-maker of sorts, always
filed an Information in the RTC, charging D with getting into brushes with the law. In one
direct assault based on the same facts alleged in incident, he drove his Humvee recklessly,
the information for slight physical injuries but hitting a pedicab which sent its driver and
with the added allegation that D inflicted the passengers in different directions. The pedicab
injuries out of resentment for what the driver died, while two (2) of the passenger
complainant had done in the performance of his suffered slight physical injuries. Two (2)
duties as chairman of the board of election Informations were then filed against McJolly.
inspectors. D moved to quash the second One, for Reckless Imprudence Resulting in
information on the ground that its filing had Homicide and Damage to Property, and two, for
placed him in double jeopardy. How should D’s Reckless Imprudence Resulting in Slight
motion to quash be resolved? (2002 Bar) Physical Injures. The latter case was scheduled
for arraignment earlier, on which occasion
A: D’s motion to quash should be granted on the McJolly immediately pleaded guilty. He was
ground of double jeopardy because the first offense meted out the penalty of public censure. A
charged is necessarily included in the second month later, the case for reckless imprudence
offense charged. (Draculan v. Donato, G.R. No. L- resulting on homicide was also set for
44079, December 19, 1985) arraignment. Instead of pleading, McJolly
interposed the defense of double jeopardy.
Q: For the multiple stab wounds sustained by the Resolve. (2014 Bar)
victim, Noel was charged with frustrated
homicide in the RTC. Upon arraignment, he A: McJolly correctly interposed the defense of
entered a plea of guilty to said crime. Neither the double jeopardy. Reckless imprudence under
court nor the prosecution was aware that the Article 365 is a quasi-offense by itself and not
victim had died two days earlier on account of merely a means to commit other crimes, such that
his stab wounds. Because of his guilty plea, Noel conviction or acquittal of such quasi-offense already
was convicted of frustrated homicide and meted bars subsequent prosecution for the same quasi-
the corresponding penalty. When the offense, regardless of its various resulting acts.
prosecution learned of the victim’s death, it filed (Ivler v. Modesto-San Pedro, G.R. No. 172716,
within 15 days therefrom a motion to amend the November 17, 2010)
information to upgrade the charge from
frustrated homicide to consummated homicide. Q: Juancho entered a plea of guilty when he was
Noel opposed the motion claiming that the arraigned under an information for homicide.
admission of the amended information would To determine the penalty to be imposed, the
place him in double jeopardy. Resolve the trial court allowed Juancho to present evidence
motion with reasons. (2005 Bar) proving any mitigating circumstance in his
favor. Juancho was able to establish complete
A: The amended information to consummated self- defense. Convinced by the evidence
homicide from frustrated homicide does not place adduced by Juancho, the trial court rendered a
the accused in double jeopardy. As provided in the verdict of acquittal. May the Prosecution assail
second paragraph of Sec. 7, Rule 117, the conviction the acquittal without infringing the
of the accused shall not be a bar to another constitutional guarantee against double
prosecution for an offense which necessarily jeopardy in favor of Juancho? Explain your
includes the offense charged in the former answer. (2017 Bar)
complaint or information when: a) the graver
offense developed due to supervening facts arising A: Yes, the Prosecution may assail the acquittal
from the same act or omission constituting the without infringing upon the constitutional
former charge; or b) the facts constituting the guarantee against double jeopardy. Under the Rules

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of Criminal Procedure, a requirement for a first She narrated that she is a sixteen-year-old high
jeopardy to attach is that there must have been a school student; that previous to the incident, she
valid plea by the accused. Said rules also provide had sexual intercourse with Oasis Jung at least
that when the accused pleads guilty but presents five times on different occasions and she was
exculpatory evidence, his plea shall be deemed paid P5,000.00 each time and it was the first
withdrawn and a plea of guilty shall be entered for time that Oasis Jung physically hurt her. P02
him. Here Juancho’s plea of guilty was deemed Romulus detained Oasis Jung at the station's jail.
withdrawn when he presented exculpatory After the inquest proceeding, the public
evidence to the effect that he acted in self-defense. prosecutor filed an information for Violation of
Hence his plea of guilty was deemed withdrawn and R.A. No. 9262 (The VAWC Law) for physical
a plea of guilty should have been entered for him by violence and five separate informations for
the court, which however was not done. Since there violation of R.A. No. 7610 (The Child Abuse
was no standing plea, a first jeopardy did not attach Law). Oasis Jung's lawyer filed a motion to be
and thus the Prosecution may assail the acquittal admitted to bail but the court issued an order
without infringing upon Juancho’s right against that approval of his bail bond shall be made only
double jeopardy. (People v. Balisacan, G.R. No 26376, after his arraignment.
August 31, 1966)
Before arraignment, Oasis Jung's lawyer moved
Provisional dismissal to quash the other four separate informations
for violation of the child abuse law invoking the
Q: In a prosecution for robbery against D, the single larceny rule. Should the motion to quash
prosecutor moved for the postponement of the be granted? (2015 Bar)
first scheduled hearing on the ground that he
had lost his records of the case. The court A: No. The court should not grant the motion to
granted the motion but, when the new date of quash, because the “single larceny rule” does not
trial arrived, the prosecutor, alleging that he find application where the charges involve
could not locate his witnesses, moved for the violations of R.A. 9262 (The VAWC Law) and R.A.
dismissal of the case. If D’s counsel does not 7610 (The Child Abuse Law), considering that each
object, may the court grant the motion of the criminal act is based on a different criminal impulse
prosecutor? Why? (2002 Bar) and intent.

A: No, because a case cannot be provisionally In Santiago v. Garchitorena (G.R. No. 109266,
dismissed except upon the express consent of the December 2, 1993) the Supreme Court explained
accused and with notice to the offended party. (Sec. that the “Single Larceny doctrine” applies only to
8, Rule 117) criminal crimes committed delicto continuado,
which exists if there should be plurality of acts
Single Larceny Rule performed during a period of time; unity of penal
provision violated; and unity of criminal intent or
Q: Paz was awakened by a commotion coming purpose, which means that two or more violations
from a condo unit next to hers. Alarmed, she of the same penal provisions are united in one and
called up the nearby police station. PO1 Remus same instant or resolution leading to the
and P02 Romulus proceeded to the condo unit perpetration of the same criminal purpose or aim.
identified by Paz. PO 1 Remus knocked at the
door and when a man opened the door, PO1 PRE-TRIAL
Remus and his companions introduced
themselves as police officers. The man readily Q: Lilio filed a complaint in the MTC of Lanuza
identified himself as Oasis Jung and gestured to for the recovery of a sum of money against Juan.
them to come in. Inside, the police officers saw a The latter filed his answer to the complaint
young lady with her nose bleeding and face serving a copy thereof on Lilio. After the filing of
swollen. Asked by P02 Romulus what happened, the answer of Juan, whose duty is it to have the
the lady responded that she was beaten up by case set for pre-trial? Why? (2001 Bar)
Oasis Jung. The police officers arrested Oasis
Jung and brought him and the young lady back A: After the filing of the answer of Juan, the plantiff
to the police station. PO1 Remus took the young has the duty to promptly move ex parte that the case
lady's statement who identified herself as AA. be set for pre-trial (Sec. 1, Rule 18). The reason is

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that it is the plaintiff who knows when the last b. Said notice was duly furnished to the
pleading has been filed and it is the plaintiff who has accused, personally or thru counsel;
the duty to prosecute. c. Accused failed to appear on the scheduled
date of promulgation of judgment despite
Pre-trial agreement due notice;
d. Such judgment be recorded in the criminal
Q: Mayor TM was charged of malversation docket; and
through falsification of official documents. e. Copy of said judgment had been duly
Assisted by Atty. OP as counsel de parte during served upon the accused or his counsel
pre-trial, he signed together with Ombudsman
Prosecutor TG a “Joint Stipulation of Facts and Q: If an accused who was sentenced to death
Documents,” which was presented to the escapes, is there still a legal necessity for the
Sandiganbayan. Before the court could issue a Supreme Court to review the decision of
pre-trial order but after some delay caused by conviction? (1998 Bar)
Atty. OP, he was substituted by Atty. QR as
defense counsel. Atty QR forthwith filed a A: Yes. There is still a legal necessity for the
motion to withdraw the “Joint Stipulation,” Supreme Court to review the decision of conviction
alleging that it is prejudicial to the accused sentencing the accused to death, because he is
because it contains, inter alia, the statement that entitled to an automatic review of the death
the “Defense admitted all the documentary sentence. (Secs. 3(e) and 10, Rule 122; People v.
evidence of the Prosecution,” thus leaving the Esparas, G.R. No. 120034, August 20, 1996)
accused little or no room to defend himself, and
violating his right against self-incrimination. Remedy when accused is not brought to trial
Should the court grant or deny QR’s motion? within the prescribed period
Reason. (2004 Bar)
Q: At the Public Attorney's Office station in
A: The court should deny QR’s motion. If in the pre- Taguig where you are assigned, your work
trial agreement signed by the accused and his requires you to act as public defender at the
counsel, the accused admits the documentary local Regional Trial Court and to handle cases
evidence of the prosecution, it does not violate his involving indigents.
right against self-incrimination. His lawyer cannot
file a motion to withdraw. A pre-trial order is not (a) In one criminal action for qualified theft
needed. (Bayas v. Sandiganbayan, G.R. Nos. 143689- where you are the defense attorney, you
91, November 12, 2002). The admission of such learned that the woman accused has
documentary evidence is allowed by the rule (Sec. 2, been in detention for six months, yet she
Rule 118; People v. Hernandez, G.R. No. 108028, July has not been to a courtroom nor seen a
30, 1996) judge. What remedy would you
undertake to address the situation and
TRIAL what forum would you use to invoke this
relief?
Q: Enumerate the requisites of a "trial in
absentia" and a "promulgation of judgment in A: Sec. 7, Rule 119 provides, if the public attorney
absentia" (1997, 1998, 2010 Bar) assigned to defend a person charged with a crime
knows that the latter is preventively detained,
A: The requisites of a valid trial in absentia are: (1) either because he is charged with bailable crime but
accused's arraignment; (2) his due notification of has no means to post bail, or is charge with a non-
the trial; and (3) his unjustifiable failure to appear bailable crime, or, is serving a term of imprisonment
during trial. (Bemardo v. People, G.R. No. 166980, in any penal institution, it shall be his duty to do the
April 4, 2007) following:

The requisites for a valid promulgation of judgment a. Shall promptly undertake to obtain the
in absentia are: presence of the prisoner for trial or cause a
notice to be served on the person having
a. A valid notice of promulgation of judgment, custody of the prisoner requiring such

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 QuAMTO (1987-2019)
person to so advise the prisoner of his right accused has been brought to Court five times and in
to demand trial. each instance it was postponed, it is clear that her
b. Upon receipt of that notice, the custodian of right to a speedy trial has been violated. Moreover, I
the prisoner shall promptly advise the may request the court to issue subpoena duces
prisoner of the charge and of his right to tecum and ad testificandum to the witness, so in case
demand trial. If at anytime thereafter the he disobeys same, he may be cited in contempt. I
prisoner informs his custodian that he may also file a motion to order the witness
demands such trial, the latter shall cause employer-complainant to post bail to secure his
notice to that effect to send promptly to the appearance in court (Sec. 14, Rule 119). I can also
public attorney. move for provisional dismissal of the case. (Sec. 8,
Rule 117)
Moreover, Section 1 (e), Rule 116 provides, when
the accused is under preventive detention, his case Demurrer to Evidence
shall be raffled and its records transmitted to the
judge to whom the case was raffled within three (3) Q: After the prosecution had rested and made its
days from the filing of the information or complaint. formal offer of evidence, with the court
The accused shall be arraigned within ten (10) days admitting all of the prosecution evidence, the
from the date of the raffle. The pre-trial conference accused filed a demurrer to evidence with leave
of his case shall be held within ten (10) days after of court. The prosecution was allowed to
arraignment. comment thereon. Thereafter, the court granted
the demurrer, finding that the accused could not
On the other hand, if the accused is not under have committed the offense charged. If the
preventive detention, the arraignment shall be held prosecution files a motion for reconsideration
within thirty (30) days from the date the court on the ground that the court order granting the
acquires jurisdiction over the person of the accused. demurrer was not in accord with the law and
(Sec. 1 (g), Rule116) jurisprudence, will the motion prosper? Explain
your answer. (2009 Bar)
Since the accused has not been brought for
arraignment within the limit required in the A: No, the motion will not prosper. With the
aforementioned Rule, the Information may be granting of the demurrer, the case shall be
dismissed upon motion of the accused invoking his dismissed and the legal effect is the acquittal of the
right to speedy trial (Sec. 9, Rule 119) or to a speedy accused. A judgment of acquittal is immediately
disposition of cases. (Sec. 16, Art. III, 1987 executory and no appeal can be made therefrom.
Constitution) Otherwise, the constitutional protection against
double jeopardy would be violated.
b. In another case, also for qualified theft,
the detained young domestic helper has Q: Facing a charge of Murder, X filed a petition
been brought to court five times in the for bail. The petition was opposed by the
last six months, but the prosecution has prosecution but after hearing the court granted
yet to commence the presentation of its bail to X. On the first scheduled hearing the
evidence. You find that the reason for merits, the prosecution manifested that it was
this is the continued absence of the not adducing additional evidence and that it was
employer- complainant who is working resting its case. X filed a demurrer to evidence
overseas. What remedy is appropriate without leave of court but it was denied by the
and before which forum would you court.
invoke this relief? (2013 Bar)
a. Did the court have the discretion to deny
A: I will file a motion to dismiss the information in the demurrer to evidence under the
the court where the case is pending on the ground circumstances mentioned above?
of denial of the accused right to speedy trial. (Sec. 9,
Rule 119; Tan v. People, G.R. No. 173637, April 21, A: Yes. The Court had the discretion to deny the
2009) demurrer to the evidence, because although the
evidence presented by the prosecution at the
This remedy can be invoked, at any time, before trial hearing for bail was not strong, without any
and if granted will result to an acquittal. Since the

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evidence for the defense, it could be sufficient for A: Yes. The judgment of the trial court is valid. The
conviction. accused did not ask for leave to file the demurrer to
evidence. He is deemed to have waived his right to
b. If the answer to the preceding question present evidence (Sec. 23, Rule 119; People v. Flores,
is in the affirmative can X adduce G.R. 106581, March 3, 1997). However, the judgment
evidence in his defense after the denial is not proper or is erroneous because there was no
of his demurrer to evidence? showing from the proper office that the accused has
a permit to own or possess the firearm, which is
A: No. Because he filed the demurrer to the evidence fatal to the conviction of the accused. (Mallari v.
without leave (Sec. 15, Rule 119). However, the trial Court of Appeals, G.R. No. 110569, December 9, 1996)
court should inquire as to why the accused filed the
demurrer without leave and whether his lawyer Q: AA, a twelve-year-old girl, while walking
knew that the effect of filing it without leave is to alone met BB, a teenage boy who befriended her.
waive the presentation of the evidence for the Later, BB brought AA to a nearby shanty where
accused. (People v. Fores, G.R. 106581, March 3, he raped her. The Information for rape filed
1997) against BB states:

c. Without further proceeding and on the "On or about October 30, 2015, in the City of S.P.
sole basis of the evidence of the and within the jurisdiction of this Honorable
prosecution, can the court legally Court, the accused, a minor, fifteen (15) years
convict X for Murder? (1998 Bar) old with lewd design and by means of force,
violence and intimidation, did then and there,
A: Yes. Without any evidence from the accused, the willfully, unlawfully and feloniously had sexual
prima facie evidence of the prosecution has been intercourse with AA, a minor, twelve (12)
converted to proof beyond reasonable doubt. years old against the latter's will and consent."

Q: The information for illegal possession of At the trial, the prosecutor called to the witness
firearm filed against the accused specifically stand AA as his first witness and manifested that
alleged that he had no license or permit to he be allowed to ask leading questions in
possess the calibre .45 pistol mentioned therein. conducting his direct examination pursuant to
In its evidence-in-chief, the prosecution the Rule on the Examination of a Child Witness.
established the fact that the subject firearm was BB's counsel objected on the ground that the
lawfully seized by the police from the possession prosecutor has not conducted a competency
of the accused that is, while the pistol was examination on the witness, a requirement
tucked at his waist in plain view, without the before the rule cited can be applied in the case.
accused being able to present any license or
permit to possess the firearm. The prosecution After the prosecution had rested its case, BB's
on such evidence rested its case and within a counsel filed with leave a demurrer to evidence,
period of five days therefrom, the accused filed seeking the dismissal of the case on the ground
a demurrer to evidence, in sum contending that that the prosecutor failed to present any
the prosecution evidence has not established evidence on BB's minority as alleged in the
the guilt of the accused beyond reasonable Information. Should the court grant the
doubt and so prayed that he be acquitted of the demurrer? (2015 Bar)
offense charged. The trial court denied the
demurrer to evidence and deemed the accused A: No, the court should not grant the demurrer.
as having waived his right to present evidence While it was alleged in the information that BB was
and submitted the case for judgment on the a minor at the time of the commission of the offense,
basis of the prosecution evidence. In due time, the failure of the prosecutor to present evidence to
the court rendered judgment finding the prove his minority is not a basis for the granting of
accused guilty of the offense charged beyond the demurrer, because minority of the accused is
reasonable doubt and accordingly imposing on not an element of the crime of rape.
him the penalty prescribed therefore. Is the
judgment of the trial court valid and proper? Be that as it may, the Court should not consider
Reason (2001, 2004 Bar) minority in rendering the decision. After all, the
failure of the prosecutor to prove the minority of AA

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 QuAMTO (1987-2019)
may only affect the imposable penalty but may not A: The motion to quash the information should be
absolve him from criminal liability. denied because, while the provisional dismissal had
already become permanent, the prescriptive period
JUDGMENT for filing the murder charge had not prescribed.
There was no double jeopardy because the first case
Q: When a criminal case is dismissed on nolle was dismissed before the accused had pleaded to
prosequi, can it later be refilled? (2003 Bar) the charge. (Sec. 7, Rule 117)

A: As a general rule, when a criminal case is Q: X, the accused in a homicide case before the
dismissed on nolle prosequi before the accused is RTC, Dagupan City, was personally notified of
placed on trial and before he is called on to plead, the promulgation of judgment in his case set for
this is not equivalent to an acquittal and does not 10 December 1996. On said date, X was not
bar a subsequent prosecution for the same offense. present as he had to attend to the trial of another
(Galvez v. Court of Appeals, G.R. No. 114046, October criminal case against him in Tarlac, Tarlac. The
24, 1994) trial court denied the motion of the counsel of X
to postpone the promulgation. Can the trial
Q: Before the arraignment for the crime of court also order the arrest of X? (1997 Bar)
murder, the private complainant executed an
Affidavit of Desistance stating that she was not A: No, the trial court cannot order the arrest of X if
sure if the accused was the man who killed her the judgment is one of acquittal and, in any event,
husband. The public prosecutor filed a Motion to his failure to appear was with justifiable cause since
Quash the Information on the ground that with he had to attend to another criminal case against
private complainant’s desistance, he did not him.
have evidence sufficient to convict the accused.
On 02 January 2001, the court without further Q: AX was charged before the YY RTC with theft
proceedings granted the motion and of jewelry valued at P20,000.00, punishable
provisionally dismissed the case. The accused with imprisonment of up to 10 years of prison
gave his express consent to the provisional mayor under the Revised Penal Code. After trial,
dismissal of the case. The offended party was he was convicted of the offense charged,
notified of the dismissal but she refused to give notwithstanding that the material facts duly
her consent. Subsequently, the private established during the trial showed that the
complainant urged the public prosecutor to re- offense committed was estafa, punishable by
file the murder charge because the accused imprisonment of up to eight years of prision
failed to pay the consideration which he had mayor under the said Code. No appeal having
promised for the execution of the Affidavit of been taken therefrom, said judgment of
Desistance. conviction became final. Is the judgment of
conviction valid? Is the said judgment
The public prosecutor obliged and refiled the reviewable thru a special civil action for
murder charge against the accused on 01 certiorari? Reason. (2004 Bar)
February 2003, the accused filed a Motion to
Quash the Information on the ground that the A: Yes, the judgment of conviction for theft upon
provisional dismissal of the case had already Information for theft is valid because the court had
become permanent. jurisdiction to render judgment. However, the
judgment was grossly and blatantly erroneous. The
a. Was the provisional dismissal of the variance between the evidence and the judgment of
case proper? conviction is substantial since the evidence is one
for estafa while the judgment is one for theft. The
A: The provisional dismissal of the case was proper elements of the two crimes are not the same (Santos
because the accused gave his express consent v. People, G.R. No. 77429 January 29, 1990). Further,
thereto and the offended party was notified. It was one offense does not necessarily include or is
not necessary for the offended party to give her included in the other. (Sec. 5, Rule 120)
consent thereto. (Sec. 8, Rule 117)
The judgment of conviction is reviewable by
b. Resolve the Motion to Quash. (2003 Bar) certiorari even if no appeal had been taken because
the judge committed a grave abuse of discretion

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tantamount to lack or excess of his jurisdiction in b. Can Balatong and Labong appeal their
convicting the accused of theft and in violating due conviction in case Ludong accepts his
process and his right to be informed of the nature conviction for homicide? (2014 Bar)
and the cause of the accusation against him, which
make the judgment void. With the mistake in A: No, Balatong and Labong cannot appeal their
charging the proper offense, the judge should have conviction because they lost their right to appeal
directed the filing of the proper information and during the promulgation of judgment. Nonetheless,
thereafter dismissed the original information. (Sec. if they surrendered and filed a Motion for Leave to
19, Rule 119) avail of their post judgment remedies within fifteen
(15) days from promulgation of judgment and they
Promulgation of judgment; instances of have proven that their absence at the scheduled
judgment in absentia promulgation was for a justifiable cause, they may
be allowed to avail of said remedies within fifteen
Q: Ludong, Balatong, and Labong were charged (15) days from notice thereof. (People v. De Grano,
with murder. After trial, the court announced G.R. No. 167710, June 5, 2009)
that the case was considered submitted for
decision. Subsequently, the Clerk of Court issued SEARCH AND SEIZURES
the notices of promulgation of judgment which
were duly received. On promulgation day, Q: A PDEA asset/informant tipped the PDEA
Ludong and his lawyer appeared. The lawyers of Director Shabunot that a shabu laboratory was
Balatong and Labong appeared but without operating in a house at Sta. Cruz, Laguna, rented
their clients and failed to satisfactorily explain by two (2) Chinese nationals, Ho Pia and Sio Pao.
their absence when queried by the court. Thus, PDEA Director Shabunot wants to apply for a
the judge ordered that the judgment be entered search warrant, but he is worried that if he
in the criminal docket and copies be furnished applies for a search warrant in any Laguna
their lawyers. The lawyers of Ludong, Balatong, court, their plan might leak out.
and Labong filed within the reglementary
period of Joint Motion for Reconsideration. The a. Where can he file an application for
court favorably granted the motion of Ludong search warrant?
downgrading his conviction from murder to
homicide but denied the motion as regards A: PDEA Director may file an application for search
Balatong and Labong. warrant in any court within the judicial region
where the crime was committed. (Sec. 2[b], Rule
a. Was the court correct in taking 126)
cognizance of the Joint Motion for
Reconsideration? b. What documents should he prepare in
his application for search warrant?
A: No. The court is not correct in taking cognizance
of the Joint Motion for Reconsideration. Section 6, A: He should prepare a petition for issuance of a
Rule 120 of the Rules of Court provides that if the search warrant and attach therein sworn
judgment is for conviction and the failure of the statements and affidavits.
accused to appear was without justifiable cause, he
shall lose the remedies available against the c. Describe the procedure that should be
judgment and the court shall order his arrest. taken by the judge on the application.
Hence, the Court erred when it entertained the Joint
Motion for Reconsideration with respect to accused A: The judge must, before issuing the warrant,
Balatong and Labong who were not present during examine personally in the form of searching
the promulgation of the judgment. The Court should questions and answers, in writing and under oath,
have merely considered the joint motion as a the complainant and the witnesses he may produce
motion for reconsideration that was solely filed by on facts personally known to them and attach to the
Ludong. (People v. De Grano, G.R. No. 167710, June 5, record their sworn statements, together with the
2009) affidavits submitted (Sec. 5, Rule 126). If the judge is
satisfied of the existence of facts upon which the
application is based or that there is probable cause
to believe that they exist, he shall issue the warrant,

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 QuAMTO (1987-2019)
which must be substantially in the form prescribed a. The search warrant failed to particularly
by the Rules. (Sec. 6, Rule 126) describe the place to be searched and the
things to be seized (Sec. 4, Rule 126).
d. Suppose the judge issues the search b. The search warrant commanded the
warrant worded in this way: immediate search, at any time in the day or
night. The general rule is that a search
PEOPLE OF THE PHILIPPINES warrant must be served in the daytime (Sec.
Plaintiff 8, Rule 126), or that portion of the twenty-
four hours in which a man’s person and
-versus- countenance are. By way of exception, a
Ho Pia and Sio search warrant may be made at night when
Pao, Accused. it is positively asserted in the affidavit that
the property is on the person or in the place
Criminal Case No. ordered to be searched (Alvares v. CFI of
007 for Violation of R.A. 9165 Tayabas, G.R. No. L-45358, January 29,
1937). There is no showing that the
x x exception applies.

TO ANY PEACE OFFICER e. Suppose the search warrant was served
on March 15, 2012 and the search
Greetings: yielded the described contraband and a
case was filed against the accused in
It appearing to the satisfaction of the RTC, Sta. Cruz, Laguna and you are the
undersigned after examining under lawyer of Sio Pao and Ho Pia, what will
oath PDEA Director Shabunot that there you do?
is probable cause to believe that
violations of Section 18 and 16 of R.A. A: If I were the lawyer of Sio Pao and Ho Pia, I would
9165 have been committed and that file a Motion to Quash the search warrant for having
there are good and sufficient reasons to been served beyond its period of validity (Sec. 14,
believe that Ho Pia and Sio Pao have in Rule 126). A search warrant shall be valid only for
their possession or control, in a two (2) ten days from its date. Thereafter, it shall be void.
door apartment with an iron gate (Sec. 10, Rule 126)
located at Jupiter St., Sta. Cruz, Laguna,
undetermined amount of "shabu" and f. Suppose an unlicensed armalite was
drug manufacturing implements and found in plain view by the searchers and
paraphernalia which should be seized the warrant was ordered quashed,
and brought to the undersigned. should the court order the return of the
same to the Chinese nationals? (2012
You are hereby commanded to make an Bar)
immediate search, at any time in the day
or night, of the premises above A: No, the Court should not order the return of the
described and forthwith seize and take unlicensed armalite because it is contraband or
possession of the abovementioned illegal per se (PDEA v. Bodett, G.R. No. 196390,
personal property, and bring said September 28, 2011). The possession of an
property to the undersigned to be dealt unlicensed armalite found in plain view is mala
with as the law directs. prohibita. The same be kept in custodia legis.

Witness my hand this 1st day of March, Particularity of place to be searched and things
2012. to be seized
(signed) Judge XYZ
Q: The search warrant authorized the seizure of
Cite/enumerate the defects, if any, of the "undetermined quantity of shabu." During the
search warrant. service of the search warrant, the raiding team
also recovered a kilo of dried marijuana leaves
A: wrapped in newsprint. The accused moved to

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suppress the marijuana leaves as evidence for assistance of barangay tanods who were
the violation of Section 11 of the Comprehensive assigned to look at other portions of the
Dangerous Drugs Act of 2002 since they were premises around the house. In a nipa hut thirty
not covered by the search warrant. The State (30) meters away from the house of Ass-asin, a
justified the seizure of the marijuana leaves Barangay tanod came upon a kilo of marijuana
under the "plain view" doctrine. There was no that was wrapped in newsprint. He took it and
indication of whether the marijuana leaves this was later used by the authorities to charge
were discovered and seized before or after the Ass-asin with illegal possession of marijuana.
seizure of the shabu. If you are the judge, how Ass-asin objected to the introduction of such
would you rule on the motion to suppress? evidence claiming that it was illegally seized. Is
(2008 Bar) the objection of Ass-asin valid? (2014 Bar)

A: The motion to suppress filed by the accused A: The objection is valid. The search warrant
should be granted. The search warrant violates the specifically designates or describes the house as the
constitutional and statutory requirement that it place to be searched. Incidentally, the marijuana
should particularly describe the person or things to was seized by the Barangay Tanods thirty (30)
be seized (Sec. 2, Art. 3, 1987 Constitution; Sec. 2, Rule meters away from the house of the accused. Since
126). The “plain view” doctrine cannot be invoked the confiscated items were found in a place other
because the marijuana leaves were wrapped in than the one described in the search warrant, it can
newsprint. Besides the marijuana leaves are not the be considered as fruits of an invalid warrantless
subject of the search warrant. search, the presentation of which as an evidence is
a violation of petitioner’s constitutional guaranty
Q: Police operatives of Western Police District, against unreasonable searches and seizure (Castillo
Philippine National Police, applied for a search v. People, G.R. No. 185128, January 30, 2012).
warrant in the RTC for the search of the house of Besides, the search is also illegal because the
Juan Santos and the seizure of an undetermined marijuana confiscated in the nipa hut was wrapped
amount of shabu. The team arrived at the house in a newsprint. Therefore, the same cannot be
of Santos but failed to find him there. Instead, considered validly seized in plain view. (Miclat v.
the team found Roberto Co. The team conducted People, G.R. No. 176077, August 31, 2011)
a search in the house of Santos in the presence
of Roberto Co and barangay official and found Remedies from unlawful search and seizure
ten (10) grams of shabu. Roberto Co was charged
in court with illegal possession of ten grams of Q: Hercules was walking near a police station
shabu. Before his arraignment, Roberto Co filed when a police officer signalled for him to
a motion to quash the warrant on the following approach. As soon as Hercules came near, the
grounds (a) it was not the accused named in the police officer frisked him but the latter found no
search warrant and (b) the warrant does not contraband. The police officer told Hercules to
prescribe the article to be seized with sufficient get inside the police station. Inside the police
particularity. Resolve the motion with reasons. station, Hercules asked the police officer, "Sir,
(2005 Bar) may problema po ba?" Instead of replying, the
police officer locked up Hercules inside the
A: The motion to quash should be denied. The name police station jail.
of the person in the search warrant is not important.
It is not even necessary that a particular person be a. If Hercules filed with the Ombudsman a
implicated (Mantaring v. Roman, A.M. No. RTJ-93- complaint for warrantless search, as
904, February 28, 1996), so long as the search is counsel for the police officer, what
conducted in the place where the search warrant defense will you raise for the dismissal
will be served. Moreover, describing the shabu in an of the complaint?
undetermined amount is sufficiently particular.
(People v. Tee, G.R. Nos. 140546-47, January 20, 2003) A: As counsel of policeman, I will raise the defense
of presumption of regularity in the performance of
Q: A search warrant was issued for the purpose duty.
of looking for unlicensed firearms in the house
of Ass-asin, a notorious gun for hire. When the I can also raise the defense that the police officer has
police served the warrant, they also sought the the duty to search Hercules under the “Stop-and-

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 QuAMTO (1987-2019)
Frisk” rule. A stop-and-frisk situation must precede Whereas, a Warrant to Examine Computer Data
a warrantless arrest, be limited to the person’s outer (WECD), upon acquiring possession of a computer
clothing, and should be grounded upon a genuine device or computer system via a lawful warrantless
reason, in the light of the police officers experience arrest or by any other lawful method, law
and surrounding conditions, to warrant the belief enforcement authorities shall first apply for a
that the person detained has weapons concealed warrant before searching the said computer device
about him. (Valdez v. People, G.R. No. 170180, or computer system for the purpose of obtaining for
November 23, 2007) forensic examination of the computer data
contained therein. (Section 6.9, A.M. No. 17-11-03-
The “stop-and-frisk” search should be used “when SC)
dealing with rapidly unfolding and potentially
criminal situation in the city streets where
unarguably there is no time to secure a search EVIDENCE
warrant.” “Stop-and-frisk” searches (sometimes
referred to as Terry searches) are necessary for law
enforcement, that is, law enforcers should be given GENERAL PRINCIPLES
the legal arsenal to prevent the commission of the
offenses. This should be balanced, however, with Q: Legislative facts and adjudicative facts. (2004
the need to protect the privacy of citizens in Bar)
accordance with Article III, Section 2 of the
Constitution (People v. Cogaed, G.R. No. 200334, July A: Legislative facts refer to facts mentioned in a
30, 2014). statue or in an explanatory note, while adjudicative
facts are facts found in a court decision.
b. If Hercules opts to file a civil action
against the police officer, will he have a Q: Give the reasons underlying the adoption of
cause of action? (2015 Bar) the following rules of evidence:

A: Yes. Hercules has a cause of action to file civil a. Dead Man Rule
action against the police officer under Article 32(4)
in relation to Article 2219(6) and (10) of the New If death has closed the lips of one party, the policy of
Civil Code, which provides that a police officer may the law is to close the lips of the other (Goni v. Court
be liable for damages when the right to be secure in of Appeals, L-77434, September 23, 1986). This is to
one’s person, house, papers and effects against prevent the temptation to perjury because death
unreasonable searches and seizures is impaired. has already sealed the lips of the party.
The indemnity includes moral damages. Exemplary
damages may also be adjudicated. (Galvante v. b. Parol Evidence Rule
Casimiro, G.R. No. 162808, April 22, 2008)
It is designed to give certainty to a transaction
Cybercrime warrants which has been reduced to writing, because written
evidence is much more certain and accurate than
Q: Distinguish the following: that which rests on fleeting memory only (Francisco,
Revised Rules of Court)
Warrant to Search, Seize, and Examine
Computer Data (WSSECD) and Warrant to c. xxx
Examine Computer Data (WECD) (2019 Bar)
d. The rule against the admission of
A: A Warrant to Search, Seize and Examine Compute illegally obtained extrajudicial
Data (WSSECD) is an order in writing issued in the confession.
name of the people of the Philippines, signed by a
judge, upon application of law enforcement An illegally obtained extrajudicial confession nulli-
authorities, authorizing the latter to search the fies the intrinsic validity of the confession and
particular place for items to be seized and/or renders it unreliable as evidence of the truth
examined. (Section 6.1, A.M. No. 17-11-03-SC) (Moran, Volume 5. p. 257). It is the fruit of a
poisonous tree.

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e. The rule against the admission of an
offer of compromise in civil cases (1997 A: The sworn statement is not admissible in
Bar) evidence because it was taken without informing
him of his custodial rights and without the
The reason for the rule against the admission of an assistance of counsel which should be independent
offer of compromise in civil case as an admission of and competent and preferably of the choice of the
any liability is that parties are encouraged to enter accused. (People v. Januario, G.R. No. 98252,
into compromises. Courts should endeavor to February 7, 1997)
persuade the litigants in a civil case to agree upon
some fair compromise (Art. 2029, NCC). During pre- c. Waiver of Right to Counsel of X. (1998
trial, courts should direct the parties to consider the Bar)
possibility of an amicable settlement. (Sec. 2[a], Rule
18) A: The waiver of his right to counsel is not
admissible because it was made without the
Q: Answer the following briefly: assistance of counsel of his choice. (People v. Gomez,
G.R. No. 101817, March 26, 1997)
What elements should concur for circumstantial
evidence to be sufficient for conviction? (2017 Q: Dominique was accused of committing a
Bar) violation of the Human Security Act. He was
detained incommunicado, deprived of sleep,
A: The following elements should concur for and subjected to water torture. He later
circumstantial evidence to be sufficient for allegedly confessed his guilt via an affidavit.
conviction: After trial, he was acquitted on the ground that
his confession was obtained through torture,
(a) There is more than one circumstance; hence, inadmissible as evidence. In a
(b) The facts from which the inferences are subsequent criminal case for torture against
derived are proven; those who deprived him of sleep and subjected
(c) The combination of all the circumstances is him to water torture, Dominique was asked to
such as to produce a conviction beyond testify and to, among other things, identify his
reasonable doubt (Sec. 4, Rule 133). above-said affidavit of confession. As he was
about to identify the affidavit, the defense
Admissibility of evidence counsel objected on the ground that the affidavit
is a fruit of a poisonous tree. Can the objection
Q: The barangay captain reported to the police be sustained? Explain. (2010 Bar)
that X was illegally keeping in his house in the
barangay an Armalite M16 rifle. On the strength A: No, the objection may not be sustained on the
of that information, the police conducted a ground stated, because the affiant was only to
search of the house of X and indeed found said identify the affidavit which is not yet being offered
rifle. The police raiders seized the rifle and in evidence. The doctrine of the fruit of the
brought X to the police station. During the poisonous tree can only be invoked by Domingo as
investigation, he voluntarily signed a Sworn his defense in the crime of violation of Human
Statement that he was possessing said rifle Security Act filed against him but not by the accused
without license or authority to possess, and a in a torture case filed by him. In the instant case, the
Waiver of Right to Counsel, individually rule on presentation of the affidavit cannot be objected to
the admissibility in evidence of the: by the defense counsel on the ground that it is a fruit
of the poisonous tree because the same is used in
a. Rifle; Domingo’s favour.

A: The rifle is not admissible in evidence because it Q: Sgt. GR of WPD arrested two NPA suspects,
was seized without a proper search warrant. A Max and Brix, both aged 22, in the act of robbing
warrantless search is not justified. There was time a grocery in Ermita. As he handcuffed them he
to secure a search warrant. (People v. Encicada G.R. noted a pistol tucked in Max’s waist and a dagger
No. 116720, October 2, 1997) hidden under Brix’s shirt, which he promptly
confiscated. At the police investigation room,
b. Sworn Statement; (2008 Bar) and Max and Brix orally waived their right to counsel

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 QuAMTO (1987-2019)
and to remain silent. Then under oath, they A: Burden of proof is the duty of a party to present
freely answered questions asked by the police evidence on the facts in issue necessary to establish
desk officer. Thereafter they signed their sworn his claim or defense by the amount of evidence
statements before the police captain, a lawyer. required by law (Sec. 1, Rule 131), while burden of
Max admitted his part in the robbery, his evidence is the duty of a party to go forward with
possession of a pistol and his ownership of the the evidence to overthrow prima facie evidence
packet of shabu found in his pocket. Brix established against him (Bautista v. Sarmiento, G.R.
admitted his role in the robbery and his No. L-45137 September 23, 1985).
possession of a dagger. But they denied being
NPA hit men. In due course, proper charges were Quantum of evidence
filed by the City Prosecutor against both
arrestees before the MM RTC. May the written Q: Distinguish preponderance of the evidence
statements signed and sworn to by Max and Brix from substantial evidence. (2003 Bar)
be admitted by the trial court as evidence for the
prosecution? Reason. (2004 Bar) A: Preponderance of evidence means that the
evidence as a whole adduced by one side is superior
A: No. The sworn written statements of Max and to that of the other. This is applicable in civil cases.
Brix may not be admitted in evidence, because they (Sec. 1, Rule 133; Municipality of Moncada v.
were not assisted by counsel, even if the police Cajuigan, G.R. No. L-7048, January 12, 1912)
captain before whom they signed the statements
was a lawyer, nor can he be considered as an Substantial evidence is that amount of relevant
independent counsel. The waiver of the right to a evidence which a reasonable mind might accept as
cousel must be done in writing and in the presence adequate to justify a conclusion. This is applicable in
of independent counsel. (People v. Mahinay, G.R. No. cases filed before administrative or quasi-judicial
122485, February 1, 1999; People v. Espiritu, G.R. No. bodies (Sec. 5, Rule 133).
128287, February 2, 1999)
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
Q: Defendant was declared in default by the RTC.
Plaintiff was allowed to present evidence in Q: Give three instances when a Philippine Court
support of his complaint. Photocopies of official can take judicial notice of a foreign law. (1997
receipts and original copies of affidavits were Bar)
presented in court, identified by plaintiff on the
witness stand and marked as exhibits. Said A: The three instances when a Philippine court can
documents were offered by plaintiff and take judicial notice of a foreign law are: (1) when the
admitted in evidence by the court on the basis of Philippine courts are evidently familiar with the
which the RTC rendered judgment in favor of the foreign law (Moran, 1980); (2) when the foreign law
plaintiff, pursuant to the relief prayed for. Upon refers to the law of nations (Sec. 1, Rule 129) and, (3)
receipt of judgment, defendant appeals to the when it refers to a published treatise, periodical or
Court of Appeals claiming that the judgment is pamphlet on the subject of law if the court takes
not valid because the RTC based its judgment on judicial notice of the fact that the writer thereof is
mere photocopies and affidavits of persons not recognized in his profession or calling as expert on
presented in court. Is the claim valid? Explain. the subject. (Sec. 4[5], Rule 130)
(2000 Bar)
Q: How do you prove a written foreign law?
A: The claim of defendant is valid because the court (1997 Bar)
received evidence which it can order in its own
discretion, in which case the evidence of the plaintiff A: A written foreign law may be evidenced by an
must pass the basic requirements of admissibility. official publication thereof or by a copy attested by
the officer having the legal custody of the record, or
Burden of proof and burden of evidence by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such
Q: Distinguish Burden of proof and burden of officer has the custody, if the office in which the
evidence. (2004 Bar) record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or
legation, consul general, consul, vice-consul, or

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consular agent or by any officer in the foreign A: In prosecutions involving narcotics and other
service of the Philippines stationed in the foreign illegal substances, the substance itself constitutes
country in which the record is kept, and part of the corpus delicti of the offense and the fact
authenticated by the seal of his office. (Sec. 24, Rule of its existence is vital to sustain a judgment of
132, Zalamea v. Court of Appeals, G.R. No. 104235 conviction beyond reasonable doubt. The chain of
November 18, 1993) custody requirement is essential to ensure that
doubts regarding the identity of the evidence are
Q: Suppose a foreign law was pleaded as part of removed through the monitoring and tracking of the
the defense of defendant but no evidence was movements of the seized drugs from the accused, to
presented to prove the existence of said law, the police, tothe forensic chemist, and finally to the
what is the presumption to be taken by the court court (People v. Sitco, G.R. No. 178202, May 14, 2010).
as to the wordings of said law? (1997 Bar) The failure to establish, through convincing proof,
that the integrity of the seized items has been
A: The presumption is that the wordings of the adequately preserved through an unbroken chain of
foreign law are the same as the local law (Northwest custody is enough to engender reasonable doubt on
Orient Airlines v. Court of Appeals,G.R. No. 112573, the guilt of an accused. (People v. De Guzman y
February 9, 1995; Moran, 1980; Lim v. Collector of Danzil, G.R. No.186498, March 26, 2010)
Customs, G.R. No. L-11759, March 16, 1917). This is
known as the processual presumption. DNA Evidence

OBJECT (REAL) EVIDENCE Q: In a prosecution for rape, the defense relied
on Deoxyribonucleic Acid (DNA) evidence
Chain of custody, in relation to Section 21 of the showing that the semen found in the private part
Comprehensive Dangerous Drugs Act of 2002 of the victim was not identical with that of the
accused. As private prosecutor, how will you
Q: At the trial of Ace for violation of the dispute the veracity and accuracy of the results
Dangerous Drugs Act, the prosecution offers in of the DNA evidence? (2010 Bar)
evidence a photocopy of the marked P100.00
bills used in the “buy-bust” operation. Ace A: As private prosecutor, I shall try to discredit the
objects to the introduction of the photocopy on results of the DNA test by questioning and possibly
the ground that the Best Evidence Rule prohibits impugning the integrity of the DNA profile by
the introduction of secondary evidence in lieu of showing a flaw/error in obtaining the biological
the original. sample, or in the chain of custody of the biological
sample obtained; the testing methodology
a. Is the photocopy real (object) evidence employed; the scientific standard observed; the
or documentary evidence? forensic DNA laboratory which conducted the test;
and the qualification, training and experience of the
A: The photocopy of the marked bills is real (object) forensic laboratory personnel who conducted the
evidence and not documentary evidence, because DNA testing.
the marked bills are real evidence.
Q: At the Public Attorney's Office station in
b. Is the photocopy admissible in Taguig where you are assigned, your work
evidence? (1994 Bar) requires you to act as public defender at the
local Regional Trial Court and to handle cases
A: Yes, the photocopy is admissible in evidence, involving indigents.
because the best evidence rule does not apply to
object or real evidence. (People v. Tandoy, G.R. No. Still in another case, this time for illegal
80505, December 4, 1990) possession of dangerous drugs, the prosecution
has rested but you saw from the records that the
Q: Discuss the “chain of custody” principle with illegal substance allegedly involved has not
respect to evidence seized under R.A. 9165 or been identified by any of the prosecution
the Comprehensive Dangerous Drugs Act of witnesses nor has it been the subject of any
2002. (2012 Bar) stipulation. Should you now proceed post haste
to the presentation of defense evidence or
consider some other remedy? Explain the

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 QuAMTO (1987-2019)
remedial steps you propose to undertake. (2013 submission of position papers, the evidence
Bar) submitted with the position paper must be
admissible in evidence (Sec. 9, Revised Rule of
A: I will first file a motion for leave to file demurrer Summary Procedure). Photocopies of official
to evidence within five (5) days from the time the receipts and affidavits are not admissible without
prosecution rested its case. If the same is granted, proof of loss or destruction of the original (Sec. 3,
then I will file a demurrer to evidence within ten Rule 130).
(10) days from notice on the ground of insufficiency
of evidence of the prosecution (Sec. 23, Rule 119). Q: Police officers arrested Mr. Druggie in a buy-
bust operation and confiscated from him 10
In People v. De Guzman (G.R. No. 186498, March 26, sachets of shabu and several marked genuine
2010), the Supreme Court held that in prosecution peso bills worth P5,000.00 used as the buy-bust
for violation of the dangerous Drugs Act, the money during the buy-bust operation. At the
existence of the dangerous drug is a condition sine trial of Mr. Druggie for violation of R.A. No. 9165
qua non for conviction. The dangerous drug is the (Comprehensive Dangerous Drug Act of 2002),
very corpus delicti of the crime. The identity of the the Prosecution offered in evidence, among
prohibited drug must be established with moral others, photocopies of the confiscated marked
certainty. genuine peso bills. The photocopies were
offered to prove that Mr. Druggie had engaged at
DOCUMENTARY EVIDENCE the time of his arrest in the illegal selling of
dangerous drugs. Invoking the Best Evidence
Q: May a private document be offered, and Rule, Atty. Maya Bang, the defense counsel,
admitted in evidence both as documentary objected to the admissibility of the photocopies
evidence and as object evidence? Explain (2005 of the confiscated marked genuine peso bills.
Bar) Should the trial judge sustain the objection of
the defense counsel? Briefly explain your
A: Yes. A private document may be offered and answer. (2017 Bar)
admitted in evidence both as documentary evidence
and as object evidence. A document can also be A: No, the trial judge should not sustain the
considered as an object for purposes of a case. objection that invokes the best evidence rule (now
the “original document rule”). The Supreme Court
Objects as evidence are those addressed to the has held that the best evidence rule applies only to
senses of the court (Sec. 1, Rule 130) Documents as documentary evidence, not to object or testimonial
evidence consist of writings, recordings, evidence. Here, the marked money is object not
photographs or any material containing letters, documentary evidence since it is being offered to
words, sounds, numbers, figures, symbols, or their prove not its contents but its existence and use in
equivalent, or other modes of written expression off the buy-bust operation. (People v. Tandoy, G.R. No.
ered as proof of their contents. Photographs include 80505, December 4, 1990)
still pictures, drawings, stored images, x-ray films,
motion pictures or videos. (Sec. 2, Rule 130; Q: In a case for specific performance and
Answered under the 2019 Amendments to the Revised damages, plaintiff Q presented photocopies of
Rule on Evidence) the contracts he had executed with defendant R
for the purpose of establishing their existence.
Original Document Rule Defendant R's counsel objected to the admission
of said photocopies, invoking the best evidence
Q: If the photocopies of official receipts and rule.
photocopies of affidavits were attached to the
position paper submitted by plaintiff in an a. Should the objection of defendant R's
action for unlawful detainer filed with Municipal counsel be sustained? Explain.
Trial Court on which basis the court rendered
judgment in favor of plaintiff? Explain. (2000 A: No. The best evidence rule (now the Original
Bar) Document Rule) applies only when the content of
the document is the subject of the inquiry. Where
A: The claim of defendant is valid, because although the issue is only as to whether such document was
summary procedure requires merely the actually executed, or exists, or on the circumstances

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relevant to or surrounding its execution, the best thee Rules (Sec. 2, Rule 3, A.M. 01-7-01-SC). The
evidence rule does not apply and testimonial authenticity of any private electronic document
evidence is admissible. Any other substitutionary must be proved by evidence that it had been
evidence is likewise admissible without need to digitally signed and other appropriate security
account for the original. measures have been applied. (Sec. 2, Rule 5, A.M. 01-
7-01-SC)
b. Assuming that the best evidence rule
applies, under what circumstances will Q: When is an electronic evidence regarded as
the photocopies be admissible in being the equivalent of an original document
evidence? (2019 Bar) under the Best Evidence Rule? (2003 Bar)

A: If a party desires to present photocopies of the A: An electronic document shall be regarded as the
original documents, he must first establish that the equivalent of an original document under the Best
presentation of photocopies is justified under Evidence Rule if it is a printout or output readable
Section 3(a), (b), and/or (d), Rule 130. He must by sight or other means, shown to reflect the data
establish the presence of all the elements under accurately. (Sec. 1, Rule 4, A.M. 01-7-01-SC)
these provisions. The provision states that when the
subject of inquiry is the contents of a document, Parol Evidence Rule
writing, recording, photograph or other record, no
evidence is admissible other than the original Q: Pedro filed a complaint against Lucio for the
document itself, except in the following cases: recovery of a sum of money based on a
promissory note executed by Lucio. In his
(a) When the original is lost or destroyed, or complaint, Pedro alleged that although the
cannot be produced in court, without bad promissory note says that it is payable within
faith on the part of the offeror; 120 days, the truth is that the note is payable
(b) When the original is in the custody or under immediately after 90 days but that if Pedro is
the control of the party against whom the willing, he may upon request of Lucio give the
evidence is offered, and the latter fails to latter up to 120 days to pay the note. During the
produce it after reasonable notice, or the hearing, Pedro testified that the truth is that the
original cannot be obtained by local judicial agreement between him and Lucio is for the
processes or procedures; latter to pay immediately after ninety day’s
time. Also, since the original note was with Lucio
x x x x and the latter would not surrender to Pedro the
original note which Lucio kept in a place about
(d) When the original is a public record in one day’s trip from where he received the notice
the custody of a public officer or is recorded to produce the note and in spite of such notice to
in a public office. produce the same within six hours from receipt
of such notice, Lucio failed to do so. Pedro
presented a copy of such the note which was
Electronic Evidence executed at the same time as the original and
with identical contents.
Q: State the rule on the admissibility of an
electronic evidence. (2003 Bar) a. Over the objection of Lucio, will Pedro
be allowed to testify as to the true
A: Whenever a rule of evidence refers to the term agreement or contents of the
writing, document, record, instrument, promissory note? Why?
memorandum or any other form of writing, such
term shall be deemed to include an electronic A: Yes, because Pedro has alleged in his complaint
document as defined in the Rules. (Sec. 1, Rule 3, A.M. that the promissory note does not express the true
01-7-01-SC) intent and agreement of the parties. This is an
exception to the parol evidence rule. (Sec. 9[b], Rule
An electronic document is admissible in evidence if 130, now Sec. 10[b], Rule 130)
it complies with the rules on admissibility
prescribed by the Rules of Court and related laws b. Over the objection of Lucio, can Pedro
and is authenticated in the manner prescribed by present a copy of promissory note and

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 QuAMTO (1987-2019)
have it admitted as valid evidence in his just be questioned about a conference they had
favor? Why? (2001 Bar) with the barangay captain, a matter which is not
confidential in nature. The trial court ruled in
A: Yes, the copy in the possession of Pedro is a favor of Ody. Was the ruling proper? Will you
duplicate original, being a counterpart produced by answer be the same if the matters to be testified
the same impression as the original (Sec. 4[b] Rule on were known to Baby or acquired by her prior
130). Moreover, the failure of Lucio to produce the to her marriage to Cesar? Explain (1998, 2000,
original of the note is excusable because he was not 2004 Bar)
given reasonable notice, as requirement under the
Rules before secondary evidence may be presented. A: No. Under the Rules, a wife cannot be examined
(Sec. 6 Rule 130; Answered under the 2019 for or against her husband without his consent,
Amendments to the Revised Rule on Evidence) except in civil cases by one against the other, or in a
criminal case for a crime committed by one against
Authentication and proof of documents the other. Since the case was filed by Ody against the
spouses Cesar and Baby, Baby cannot be compelled
Q: X states on direct examination that he once to testify against Cesar without his consent.
knew the facts being asked but he cannot recall (Lezama v. Rodriguez, G.R. No. L-25643, June 27,
them now. When handed a written record of the 1968)
facts he testifies that the facts are correctly
stated, but that he has never seen the writing Q: On March 12, 2008, Mabini was charged with
before. Is the writing admissible as past Murder for fatally stabbing Emilio. To prove the
recollection recorded? Explain. (1996 Bar) qualifying circumstance of evident
premeditation, the prosecution introduced on
A: No, because for the written record to be December 11, 2009 a text message, which
admissible as past recollection recorded, it must Mabini’s estranged wife Gregoria had sent to
have been written or recorded by X or under his Emilio on the eve of his death, reading: "Honey,
direction at the time when the fact occurred, or pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg
immediately thereafter, or at any other time when ingat u bka ma tsugi k."
the fact was fresh in his memory and he knew that
the same was correctly written or recorded (Sec. 16, b. A subpoena ad testificandum was served
Rule 132). But in this case, X has never seen the on Gregoria for her to be presented for
writing before. the purpose of identifying her cellphone
and the text message. Mabini objected to
TESTIMONIAL EVIDENCE her presentation on the ground of
marital privilege. Resolve.
Qualifications of a witness
A: The objection should be sustained on the ground
Q: Distinguish Competency of the witness and of the marital disqualification rule (Sec. 22, Rule 130,
credibility of the witness. (2004 Bar) now Sec. 23, Rule 130), not on the ground of the
“marital privilege” communication rule (Sec. 24,
A: Competency of the witness refers to the Rule 130). The marriage between Mabini and
capability of a witness to perceive and to make Georgia is still subsisting and the situation at bar
known his perception to others (Sec. 20, Rule 130, does not come under the exceptions to the
now Sec. 21, Rule 130), while credibility of the disqualification by reason of marriage.
witness refers the character of testimony of a
witness of being believable. b. Suppose Mabini’s objection in question
A was sustained. The prosecution
Disqualifications of a witness thereupon announced that it would be
presenting Emilio’s wife Graciana to
Q: Ody sued spouses Cesar and Baby for a sum of identify Emilio’s cellphone bearing
money and damages. At the trial, Ody called Gregoria’s text message. Mabini
Baby as his first witness. Baby objected, joined objected again. Rule on the objection.
by Cesar, on the ground that she may not be
compelled to testify against her husband. Ody A: The objection should be overruled. The
insisted and contended that after all, she would testimony of Graciana is not covered by the said

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marital disqualification rule because she is not the quashed on the ground of privileged
wife of Mabini. Besides, Graciana will identify only communication? Explain fully. (2008 Bar)
the cellphone as that of her husband Emilio, not the
messages therein which to her are hearsay. A: No, the subpoena may not be simply quashed on
the allegation that the testimony to be elicited
c. If Mabini’s objection in question B was constitutes privileged communication. It may be
overruled, can he object to the noted that the accused committed the crime of
presentation of the text message on the swindling on August 15, 2008, whereas he first
ground that it is hearsay? visited his lawyers on August 14, 2008 or before he
committed the swindling. Clearly the conversations
A: No, Gregoria’s text message in Emilio’s cellphone the accused had with his lawyer during such first
is not covered by the hearsay rule because it is visit, before he committed the swindling cannot be
regarded in the rules of evidence as independently protected by the privilege between attorney and
relevant statement. The text message is not to prove client because the crime had not been committed
the truth of the fact alleged therein but only as to the yet and it is no part of the lawyer’s professional duty
circumstances of whether or not premeditation to assist or aid in the commission of the crime;
exists. hence not in the course of professional employment.

d. Suppose that shortly before he expired, The second visit by accused Edgardo to his lawyer
Emilio was able to send a text message the next day (August 16, 2008) after the swindling
to his wife Graciana reading "Nasaksak was committed may also suffer from the same
ako. D na me makahinga. Si Mabini ang infirmity as the conversations had during their first
may gawa ni2." Is this text message meeting inasmuch as there could not be complaint
admissible as a dying declaration? made immediately after the estafa was committed.
Explain. (2010 Bar) The privilege covering a lawyer-client relation
under Sec. 24(b), Rule 130, may not be invoked, as
A: Yes, the text message is admissible as a dying it is not a ground for quashal of a subpoena ad
declaration since the same came from the victim testificandum under Sec. 4, Rule 21.
who “shortly” expired and it is in respect of the
cause and circumstance of his death. The decisive Although the subpoena ad testificandum may not be
factor that the message was made and sent under quashed, the privilege covers conversations “with a
consciousness of an impending death, is evidently view to professional employment.” Thus, it can be
attendant from the victim’s statement: “D na me invoked at the trial but not quash the subpoena.
makakahinga” and the fact that he died shortly after
he sent the message. However, cellphone messages Q: C is the child of the spouses H and W. H sued
are regarded as electronic evidence, and in Ang v. his wife W for judicial declaration of nullity of
Court of Appeals (G.R. No. 182835, April 20, 2010), marriage under Article 36 of the Family Code. In
the Supreme Court ruled that the Rules on the trial, the following testified over the
Electronic Evidence applies only to civil actions, objection of W: C, H and D, a doctor of medicine
quasi-judicial proceedings and administrative who used to treat W. Rule on W’s objections
proceeding, not to criminal actions. which are the following:

Q: On August 15, 2008, Edgardo committed a. H cannot testify against her because of
estafa against Petronilo in the amount of P3 the rule on marital privilege;
Million. Petronilo brought his complaint to the
National Bureau of Investigation, which found A: The rule of marital privilege cannot be invoked in
that Edgardo had visited his lawyer twice, the the annulment case under Article 36 of the Family
first time on August 14, 2008 and the second Code because it is a civil case filed by one against the
on August 16, 2008; and that both visits other. (Sec. 22, Rule 130, now Sec. 23, Rule 130)
concerned the swindling of Petronilo. During
the trial of Edgardo, the RTC issued a subpoena b. C cannot testify against her because of
ad testificandum to Edgardo's lawyer for him to the doctrine on parental privilege
testify on the conversations during their first
and second meetings. May the subpoena be A: The doctrine of parental privilege cannot
likewise be invoked by W as against the testimony

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of C, their child. C may not be compelled to testify sex tourism and child trafficking. The defense
but free to testify against her. (Sec. 25, Rule 130; Art. counsel for XYZ objected to the testimony of ABC
215 FC) at the trial of the child prostitution case and the
introduction of the affidavits she executed
c. D cannot testify against her because of against her husband as a violation of espousal
the doctrine of privileged confidentiality and marital privilege rule. It
communication between patient and turned out that DEF, the minor daughter of ABC
physician (1998). by her first husband who was a Filipino, was
molested by XYZ earlier. Thus, ABC had filed for
A: D, as doctor who used to treat W, is disqualified legal separation from XYZ since last year. May
to testify against W over her objection as to any the court admit the testimony and affidavits of
advice or treatment given by him or any information the wife, ABC, against her husband, XYZ, in the
which he may have acquired in his professional criminal case involving child prostitution?
capacity. (Sec. 24[c], Rule 130) Reason. (2004 Bar)

Q: Vida and Romeo are legally married. Romeo A: Yes. The court may admit the testimony and
is charged in court with the crime of serious affidavits of the wife against her husband in the
physical injuries committed against Selmo, son criminal case where it involves child prostitution of
of Vida, step-son of Romeo. Vida witnessed the the wife's daughter. It is not covered by the marital
infliction of the injuries on Selmo by Romeo. The privilege rule. One exception thereof is where the
public prosecutor called Vida to the witness crime is committed by one against the other or the
stand and offered her testimony as an latter’s direct descendants or ascendants (Sec. 22,
eyewitness. Counsel for Romeo objected on the Rule 130, now Sec. 23, Rule 130). A crime by the
ground of the marital disqualification rule husband against the daughter is a crime against the
under the Rules of Court. wife and directly attacks or vitally impairs the
conjugal relation. (Ordono v. Daquigan, G.R. No. L-
a. Is the objection valid? 39012 January 31, 1975)

A: No. While neither the husband nor the wife may Q: John filed a petition for declaration of nullity
testify for or against the other without the consent of his marriage to Anne on the ground of
of the affected spouse, one exception is if the psychological incapacity under Art. 36 of the
testimony of the spouse is in a criminal case for a Family Code. He obtained a copy of the
crime committed by one against the other or the confidential psychiatric evaluation report on his
latter’s direct descendants or ascendants (Sec. 22, wife from the secretary of the psychiatrist. Can
Rule 130, now Sec. 23, Rule 130). The case falls under he testify on the said report without offending
this exception because Selma is the direct the rule on privileged communication? (2016
descendant of the spouse Vida. Bar)

b. Will your answer be the same if Vida’s A: Yes, John can testify. Under the rule on privileged
testimony is offered in a civil case for communication, the husband or the wife, during or
recovery of personal property filed by after the marriage, cannot be examined without the
Selmo against Romeo? (2000 Bar) consent of the other as to any communication
received in confidence by one from the other during
A: No. The marital disqualification rule applies this the marriage except in a civil case filed by one
time. The exception provided by the rules is in a civil against the other, or in a criminal case for a crime
case by one spouse against the other. The case here committed by one agaisnst the other or the latter’s
involves a case by Selmo for the recovery of direct descendants or ascendants (Sec. 24(a), Rule
personal property against Vida’s spouse, Romeo. 130). In this cae, Anne cannot prevent John from
testifying against her since the petition for
Q: XYZ, an alien, was criminally charged of declaration of nullity is a civil case filed by one
promoting and facilitating child prostitution spouse against the other; hence, the rule on
and other sexual abuses under Rep. Act No. privileged communication between the spouses
7610. The principal witness against him was his does not apply. John could testify on the confidential
Filipina wife, ABC. Earlier, she had complained psychiatric evaluation report of his wife that he
that XYZ’s hotel was being used as a center for obtained from the secretary of the psychiatrist,

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without offending the rule on privileged lawyer objected to the prosecution's use of
communication. judicial affidavits of her witnesses considering
the imposable penalty on the offense with which
EXAMINATION OF A WITNESS his client was charged. (2015)

Q: What are the contents of a judicial affidavit? a. Is Pedro's lawyer correct in objecting to
(2016 Bar) the judicial affidavit of Mario?

A: A judicial affidavit shall be prepared in the A: Yes, Pedro’s lawyer is correct in objecting to the
language known to the witness and, if not in English judicial affidavit of Mario. The Judicial Affidavit
or Filipino, accompanied by a translation in English Rules shall apply only to criminal actions where the
or Filipino, and shall contain the following: maximum of the imposable penalty does not exceed
six (6) years. (Section 9(a)(1), A.M. No. 12-8-9-SC)
a. The name, age, residence or business
address, and occupation of the witness; Here, the maximum imposable penalty for the crime
b. The name and address of the lawyer who of theft of a cellphone worth P20,000 is prision
conducts or supervises the examination of mayor in its minimum to medium periods, or six
the witness and the place where the years and one day to eight years and one day. Thus,
examination is being held; Pedro’s lawyer is correct in objecting to the judicial
c. A statement that the witness is answering affidavit of Mario.
the questions asked of him, fully conscious
that he does so under oath, and that he b. Is Pedro's lawyer correct in objecting to
mayface criminal liability for false the judicial affidavit of Juan?
testimony or perjury;
d. Questions asked of the witness and his A: No. Pedro’s lawyer is not correct in objecting to
corresponding answers, consecutively the judicial affidavit of Juan because the Judicial
numbered, that: Affidavit Rules apply with respect to the civil aspect
of the actions, regardless of the penalties involved.
1. show the circumstances under which (Sec. 9, A.M. No. 12-8-8-SC) Here the judicial affidavit
the witness acquired the facts upon of Juan was offered to prove the civil liability of
which he testifies; Pedro. Thus, the objection of Pedro’s lawyer to the
2. Elicit from him those facts which are judicial affidavit of Juan is not correct.
relevant to the issues that the case
presents; and c. At the conclusion of the prosecution's
3. Identify the attached documentary and presentation of evidence, Prosecutor
object evidence and establish their Marilag orally offered the receipt
authenticity in accordance with the attached to Juan's judicial affidavit,
Rules of Court. which the court admitted over the
objection of Pedro's lawyer. After
e. The signature of the witness over his Pedro's presentation of his evidence, the
printed name; and court rendered judgment finding him
f. A jurat with the signature of the notary guilty as charged and holding him civilly
public who administers the oath or an liable for P20,000.00. Pedro's lawyer
officer who is authorized by law to seasonably filed a motion for
administer the same. (Sec. 3, A.M. No. 12-8- reconsideration of the decision
8-SC) asserting that the court erred in
awarding the civil liability on the basis
Q: Pedro was charged with theft for stealing of Juan's judicial affidavit, documentary
Juan's cellphone worth P20,000.00. Prosecutor evidence which Prosecutor Marilag
Marilag at the pre-trial submitted the judicial failed to orally offer. Is the motion for
affidavit of Juan attaching the receipt for the reconsideration meritorious? (2015
purchase of the cellphone to prove civil liability. Bar)
She also submitted the judicial affidavit of
Mario, an eyewitness who narrated therein how A: No. The motion for reconsideration is not
Pedro stole Juan's cellphone. At the trial, Pedro's meritorious. The judicial affidavit is not required to

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be orally offered as separate documentary evidence, Witness Protection, Security and Benefit Act. The
because it is filed in lieu of the direct testimony of right to prosecute vests the prosecutor with a wide
the witness. It is offered, at the time the witness is range of discretion, including what and whom to
called to testify, and any objection to it should have charge. (Soberano v. People, G.R. No. 154629, October
been made at the time the witness was presented. 5, 2005)
(Section 6 and 8, A.M. No. 12-8-8-SC)
Admissions and confessions
Since the receipt attached to the judicial affidavit
was orally offered, there was enough basis for the Q: A was accused of having raped X. Rule on the
court to award civil liability. admissibility of the following pieces of evidence:

Q: Aside from asking a witness to explain and a. An offer of A to marry X; and
supplement his answer in the cross-
examination, can the proponent ask in re-direct A: A’s offer to marry X is admissible in evidence as
examination questions on matters not dealt an implied admission of guilt. It has been held that
with during cross-examination? (1997 Bar) in rape cases, an offer of marriage is considered an
implied admission of guilt of the accused. (People v
A: Yes, on redirect examination, questions on Domingo, G.R. No. 97921, September 8, 1993)
matters not dealt with during the cross-examination
may be allowed by the court in its discretion. (Sec. 7, b. A pair of short pants allegedly left by A
Rule 132) at the crime which the court, over the
objection of A, required him to put on,
Q: Aside from asking the witness on matters and when he did, it fit him well. (1998
stated in his re-direct examination, can the Bar)
opponent in his re-cross examination ask
questions on matters not dealt with during the A: The pair of short pants, which fit the accused well,
re-direct? (1997 Bar) is circumstantial evidence of his guilt, although
standing alone it cannot be the basis of conviction.
A: Yes, the opponent in his re-cross-examination The accused cannot object to the court requiring
may also ask questions on such other matters as him to put the short pants on. It is not part of his
may be allowed by the court in its discretion. (Sec. 8, right against self-incrimination because it is a mere
Rule 132) physical act.

Q: After plaintiff has formally submitted his Q: A, while driving his car, ran over B. A visited B
evidence, he realized that he had forgotten to at the hospital and offered to pay for his
present what is considered an important hospitalization expenses. After the filing of the
evidence. Can he recall a witness? (1997 Bar) criminal case against A for serious physical
injuries through reckless imprudence, A’s
A: Yes, after formally submitting his evidence, the insurance carrier offered to pay for the injuries
plaintiff can recall a witness with leave of court. The and damages suffered by B. the offer was
court may grant or withhold leave in its discretion rejected because B considered the amount
as the interests of justice may require. (Sec. 9, Rule offered was inadequate.
132)
a. Is the offer by A to pay hospitalization
Q: As counsel of an accused charged with expenses of B admissible in evidence?
homicide, you are convinced that he can be
utilized as a state witness. What procedure will A: The offer by A to pay the hospitalization expenses
you take? (2006 Bar) of B is not admissible in evidence to prove his guilt
in both civil and criminal cases. (Sec. 27, Rule 130,
A: As counsel for the accused, I will advise my client now Sec. 28, Rule 130)
to ask for a reinvestigation and convince the
prosecutor for him to move for the discharge of my b. Is the offer by A’s insurance carrier to
client as a state witness, or the accused can apply as pay for injuries and damages of B
a state witness with the Department of Justice admissible in evidence? (1997 Bar)
pursuant to R.A. No. 6981, otherwise known as The

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A: No. It is irrelevant. The obligation of the
insurance company is based on the contract of Q: What is the probative value of a witness’
insurance and is not admissible in evidence against Affidavit of Recantation? (1998 Bar)
the accused because it was not offered by the
accused but by the insurance company which is not A: On the probative value of an affidavit of
his agent. recantation, courts look with disfavor upon
recantations because they can easily be secured
Res inter alios acta rule from witnesses, usually through intimidation or for
a monetary consideration. Recanted testimony is
Q: Bembol was charged with rape. Bembol's exceedingly unreliable. There is always the
father, Ramil, approached Artemon, the victim's probability that it will be repudiated. (Molina v.
father, during the preliminary investigation and People, G.R. Nos. 70168-69, July 24, 1996)
offered P1 Million to Artemon to settle the case.
Artemon refused the offer. Q: X and Y were charged with murder. Upon
application of the prosecution, Y was discharged
a. During trial, the prosecution presented from the Information to be utilized as a state
Artemon to testify on Ramil's offer and witness. The prosecutor presented Y as witness
thereby establish an implied admission but forgot to state the purpose of his testimony
of guilt. Is Ramil's offer to settle much less offer it in evidence. Y testified that he
admissible in evidence? and X conspired to kill the victim but it was X
who actually shot the victim. The testimony of Y
A: No. The offer to settle not being made by the was the only material evidence establishing the
accused or with his participation is not admissible guilt of X. Y was thoroughly cross-examined by
against him under the rule of res inter alios acta. No the defense counsel. After the prosecution
implied admission of guilt can be drawn from efforts rested its case, the defense filed a motion for
to settle a criminal case out of court, where the demurrer to evidence based on the following
accused had no participation in such negotiation. grounds:
(People v. Godoy, G.R. Nos. 115908-09, December 6,
1995) 1. The testimony of Y should be excluded
because its purpose was not initially
b. During the pre-trial, Bembol personally stated and it was not formally offered in
offered to settle the case for P1 Million evidence as required by Sec. 34, Rule
to the private prosecutor, who 132; and
immediately put the offer on record in 2. Y’s testimony is not admissible against X
the presence of the trial judge. Is pursuant to the rule on “res inter alios
Bembol's offer a judicial admission of acta.”
his guilt? (2008 Bar)
Rule on the motion for demurrer to evidence on
A: No. The offer is not a judicial admission of guilt the above grounds. (2003 Bar)
because it has not been reduced in writing or signed
by the accused. The Sec. 2, Rule 118 requires that all A: The demurrer to the evidence should be denied:
agreements or admissions made or entered during
the pre-trial conference shall be reduced in writing 1. The testimony of Y should not be excluded
and signed by the accused and counsel, otherwise, because the defense counsel did not object
they cannot be used against the accused. to his testimony despite the fact that the
prosecutor forgot to state its purpose or
Q: If the accused on the witness stand repeats his offer it in evidence. Moreover, the defense
earlier uncounseled extrajudicial confession counsel thoroughly cross- examined Y and
implicating his co-accused in the crime charged, thus waived the objection.
is that testimony admissible in evidence against 2. The res inter alios acta rule does not apply
the latter? (1998 Bar) because Y testified in open court and was
subjected to cross examination.
A: Yes. The accused can testify by repeating his
earlier uncounseled extrajudicial confession, Q: Arrested in a buy-bust operation, Edmond
because he can be subjected to cross-examination. was brought to the police station where he was

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informed of his constitutional rights. During the A: The exceptions to the hearsay rule are: dying
investigation, Edmond refused to give any declaration, statement of decedent or person of
statement. However, the arresting officer asked unsound mind, declaration against interest, act or
Edmond to acknowledge in writing that six (6) declaration about pedigree, family reputation or
sachets of “shabu” were confiscated from him. tradition regarding pedigree, common reputation,
Edmond consented and also signed a receipt for part of the res gestae, records of regularly conducted
the amount of P3,000.00, allegedly representing business activity, entries in official records,
the “purchase price of the shabu.” At the trial, commercial lists and the like, learned treatises, and
the arresting officer testified and identified the testimony or deposition at a former proceeding and
documents executed and signed by Edmond. residual exception. (Secs. 37 to 47, Rule 130, now
Edmond’s lawyer did not object to the Secs. 38 to 50, Rule 130)
testimony. After the presentation of the
testimonial evidence, the prosecutor made a Q: A foreign dog trained to sniff dangerous drugs
formal offer of evidence which included the from packages, was hired by FDP Corporation, a
documents signed by Edmond. Edmond’s lawyer door to door forwarder company, to sniff
objected to the admissibility of the documents packages in their depot at the international
for being the “fruit of the poisonous tree.” airport. In one of the routinary inspections of
Resolve the objection with reasons. (2009 Bar) packages waiting to be send to the United States
of America (USA), the dog sat beside one of the
A: The objection to the admissibility of the packages, a signal that the package contained
documents which the arresting officer asked dangerous drugs. Thereafter, the guards opened
Edmond to sign without the benefit of counsel, is the package and found two (2) kilograms of
well-taken. Said documents having been signed by cocaine. The owner objected of the package was
the accused while under custodial investigation, arrested and charges were filed against him.
imply an “admission” without the benefit of counsel During the trial, the prosecution, through the
that the shabu came from him and that the trainer who was present during the incident and
P3,000.00 was received by him pursuant to the an expert in this kind of field, testified that the
illegal selling of the drugs. Thus, it was obtained by dog was highly trained to sniff packages to
the arresting officer in violation of Section 12(3), determine if the contents were dangerous drugs
Article III of the 1987 Constitution, particularly the and the sniffing technique of their highly trained
right to be assisted by the counsel during custodial dogs was accepted worldwide and had been
investigation. Moreover, the objection to the successful in dangerous drugs operations. The
admissibility of the evidence was timely made, i.e., prosecution moved to admit this evidence to
when the same is formally offered. justify the opening of the package. The accused
objected on the grounds that : (i) the guards had
Hearsay Rule no personal knowledge of the contents of the
package before it was opened; (ii) the testimony
Q: Distinguish clearly but briefly between of the trainer of the dog is hearsay; and (iii) the
hearsay evidence and opinion evidence. (2004 accused could not cross-examine the dog.
Bar) Decide. (2014 Bar)

A: Hearsay evidence consists of testimony that is A: The objections of the accused should be
not based on personal knowledge of the person overruled. An evidence is admissible when it is
testifying, (Sec. 36, Rule 130, now Sec. 37, Rule 130), relevant to the issue and is not excluded by the
while opinion evidence is expert evidence based on Constition, law or the rules (Sec 3, Rule 128). Under
the personal knowledge skill, experience, training Section 36, Rules 130 (now Sec. 22, Rule 130), a
or education of the person testifying (Sec. 49, Rule witness can testify only to those which he knows of
130, now Sec. 52, Rule 130) and evidence of an his or her personal knowledge and derived from his
ordinary witness on limited matters. (Sec. 50, Rule or her own perception. The contention that the
130, now Sec. 53, Rule 130) guards had no personal knowledge of the contents
of the package before it was opened is without
Q: What are the exceptions to hearsay rule? merit. The guards can testify as to the facts surround
(1999 Bar) the opening of the package since they have personal
knowledge of the circumstances thereof, being
physically present at the time of its discovery.

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Q: Romeo is sued for damages for injuries
On the other hand, the testimony of the trainer of suffered by the plaintiff in a vehicular accident.
the dog is not hearsay based on the following Julieta, a witness in court, testifies that Romeo
grounds: told her (Julieta) that he (Romeo) heard
Antonio, a witness to the accident, give an
a. He has personal knowledge of the facts in excited account of the accident immediately
issue, having witnessed the same; after its occurrence. Is Julieta’s testimony
b. Hearsay merely contemplates an out-of- admissible against Romeo over proper and
court declaration of a person which is being timely objection? Why? (2002 Bar)
offered to prove the truthfulness and
veracity of the facts asserted therein; A: No, Julieta’s testimony is not admissible against
c. He is an expert witness, hence, his Romeo, because while the excited account of
testimony may constitute an exception to Antonio, a witness to the accident, was told to
the hearsay rule; Romeo, it was only Romeo who told Julieta about it,
d. The accused has the opportunity to cross- which makes it hearsay.
examine him; and
e. Testimony of a witness as to statements Q: Maximo filed an action against Pedro, the
made by nonhuman declarants does not administrator of the estate of deceased Juan, for
violate the rule against hearsay. The law the recovery of a car which is a part of the
permits the so-called “non-human latter’s estate. During the trial, Maximo
evidence” on the ground that machines and presented witness Mariano who testified that he
animals, unlike humans, lack a conscious was present when Maximo and Juan agreed that
motivation to tell falsehoods, and because the latter would pay a rental of P20,000 for the
the workings of machines can be explained use of Maximo’s car for one month after which
by human witnesses who are then subject Juan should immediately return the car to
to cross-examination by opposing counsel. Maximo. Pedro objected to the admission of
(City of Webster Groves v. Quick. 323 S.W. 2d Mariano’s testimony. If you were the judge,
386 [Mo. 1959]; Buck v. State, 138 P. 2d 115 would you sustain Pedro’s objection? Why?
[Okla. 1943]; Herrera, 1999)
A: No, the testimony is admissible in evidence
Conversely, the accused may not argue that he because witness Mariano who testified as to what
cannot cross-examine the dog as the Constitutional Maximo and Juan, the deceased person agreed upon,
right to confrontation refers only to witnesses. As is not disqualified to testify on the agreement. Those
alluded, the human witnesses who have explained disqualified are parties or assignors of the parties to
the workings of the non-human evidence is the one a case, or persons in whose behalf a case is
that should be cross-examined. Hence, the prosecuted, against the administrator or Juan’s
contention of the accused that the he could not estate, upon a claim or demand against his estate as
cross-examine the dog is misplaced. to any matter of fact occurring before Juan’s death.
(Sec. 23, Rule 130, now Sec. 39, Rule 130)
Dying Declaration
Q: The accused was charged with robbery and
Q: Requisites of Dying Declaration (1998 Bar) homicide. The victim suffered several stab
wounds. It appears that eleven (11) hours after
A: The requisites for the admissibility of a dying the crime, while the victim was being brought to
declaration are: (a) the declaration is made by the the hospital in a jeep, with his brother and a
deceased under the consciousness of his impending policeman as companions, the victim was asked
death; (b) the deceased was at the time competent certain questions which he answered, pointing
as a witness; (c) the declaration concerns the cause to the accused as his assailant. His answers were
and surrounding circumstances of the declarant’s put down in writing, but since he was in a critical
death; and (d) the declaration is offered in a condition, his brother and the policemen signed
(criminal) case wherein the declarant's death is the the statement. Is the statement admissible as a
subject of inquiry. (People v. Santos, G.R. No. 94545, dying declaration? (1999 Bar)
April 4, 1997)
A: Yes. The statement is admissible as a dying
declaration of the victim subsequently dies and his

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 QuAMTO (1987-2019)
answers were made under the consciousness of Q: Linda and spouses Arnulfo and Regina Ceres
impending death (Sec. 37, Rule 130, now Sec. 38, Rule were co-owners of a parcel of land. Linda died
130). The fact that he did not sign the statement intestate and without any issue. Ten (10)
point to the accused as his assailant, because he was persons headed by Jocelyn, claiming to be the
in critical condition, does not affect its admissibility collateral relatives of the deceased Linda, filed
as a dying declaration. A dying declaration need not an action for partition with the RTC praying for
be in writing. (People v. Viovicente, G.R. No. 118707, the segregation of Linda’s ½ share, submitting
February 2, 1998) in support for their petition the baptismal
certificates of seven of the petitioners, a family
Q: Immediately before he died of gunshot bible belonging to Linda in which the names of
wounds to his chest, Venancio told the attending the petitioners have been entered, a photocopy
physician; in a very feeble voice, that it was of the birth certificate of Jocelyn, and a
Arnulfo, his co-worker, who had shot him certification of the local civil registrar that its
Venancio added that it was also Arnulfo who had office had been completely razed by fire. The
shot Vicente, the man whose cadaver was lying spouses Ceres refused partition on the following
on the bed beside him. grounds: 1) the baptismal certificates of the
parish priest are evidence only of the
In the prosecution of Arnulfo for the criminal administration of the sacrament of baptism and
killing of Venancio and Vicente, are all the they do not prove filiation of the alleged
statements of Venancio admissible as dying collateral relatives of the deceased; 2) entry in
declarations? Explain your answer. (2017 Bar) the family bible is hearsay; 3) the certification of
the registrar on non-availability of the records
A: No. Not all statements of Venancio are admissible of birth does not prove filiation; 4) in partition
as dying declarations. A dying declaration is a case where filiation to the deceased is in dispute,
statement made under the consciousness of an prior and separate judicial declaration of
impending death (Sec. 37, Rule 130, now Sec. 38, Rule heirship in a settlement of estate proceedings is
130). It may be received in any case wherein his necessary; and 5) there is need for publication
death is the subject of inquiry, as evidence of the as real property is involved. As counsel for
cause and surrounding circumstances of such death. Jocelyn and her co-petitioners, argue against the
objections of the spouses Ceres so as to convince
In this case, presuming there is evidence that the court to allow the partition. Discuss each of
Venancio was conscious of his impending death the five (5) arguments briefly but completely
when he made his statement that it was Arnulfo who (2000 Bar)
shot him, said statement may be considered as a
dying declaration which is admissible in evidence as A:
an exception to the hearsay rule. The degree and
seriousness of the gunshot wounds sustained by 1. The baptismal certificate can show the
Venancio and the fact that death supervened filiation or prove pedigree. It is one of the
thereafter may constitute substantial evidence of other means allowed under the Rules of
his consciousness of his impending death. (People v. Court and special laws to show pedigree.
Tanaman, G.R. No. 71768, July 28, 1987) (Trinidad v. Court of Appeals, G.R. No.
118904, April 20, 1998; Heirs of Ignacio
While Venancio’s statement about the death of Conti v. Court of Appeals, G.R. No. 118464,
Vicente may not be considered as a dying December 21, 1998)
declaration, it may still be admitted in evidence as 2. Entries in the family bible may be received
part of res gestae, which is also an exception to the as evidence of pedigree. (Sec. 40, Rule 130,
hearsay rule (Sec. 42, Rule 130, now Sec. 44, Rule now Sec. 42, Rule 130)
130). Venancio’s statement about the killing of 3. The certification by the civil registrar of the
Vicente may be considered to have been made after non-availability of records is needed to
the occurrence of a startling occurrence. Thus, it justify the presentation of secondary
may be admitted in evidence. evidence, which is the photocopy of the
birth certificate of Jocelyn. (Heirs of Conti v.
Family reputation or tradition regarding Court of Appeals, G.R. No. 118464, December
pedigree 21, 1998)

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a. Declaration of heirship in a settlement A: No. It cannot be considered as an opinion because
proceeding is not necessary. It can be made he was testifying on what he actually observed. The
in the ordinary action for partition wherein last paragraph of Sec. 50, Rule 130 (now Sec. 52,
the heirs are exercising the right pertaining Rule 130) expressly provides that a witness may
to the decedent, their predecessor-in- testify on his impressions of the emotion, behavior,
interest, to ask for partition as co-owners. condition or appearance of a person.
(Id.)
4. Even if real property is involved, no Q: While passing by a dark uninhabited part of
publication is necessary, because what is their barangay, PO2 Asintado observed shadows
sought is the mere segregation of Linda’s and heard screams from a distance. PO2
share in the property. (Sec. 1, Rule 69) Asintado hid himself behind the bushes and saw
a man beating a woman whom he recognized as
Part of the res gestae his neighbour, Kulasa. When Kulasa was already
in agony the man stabbed her and she fell on the
Q: Dencio barged into the house of Marcela, tied ground. The man hurriedly left thereafter. PO2
her to a chair and robbed her of assorted pieces Asintado immediately went to Kulasa’s rescue.
of jewelry and money. Dencio then brought Kulasa who was then in a state of hysteria, kept
Candida, Marcela’s maid, to a bedroom where he mentioning to PO2 Asintado “Si Rene, gusto
raped her. Marcela could hear Candida crying akong patayin! Sinaksak niya ako!” When PO2
and pleading; “Huwag! Maawa ka sa akin!” After Asintado was about to carry her, Kulasa refused
raping Candida, Dencio fled from the house with and said “Kaya ko. Mababaw lang to. Habulin mo
loot. Candida then untied Marcela and rushed to si Rene.” The following day, Rene learned of
the police station about a kilometer away and Kulasa’s death and, bothered by his conscience,
told Police Officer Roberto Maawa that Dencio surrendered to the authorities with his counsel.
had barged into the house of Marcela, tied the As his surrender was broadcasted all over
latter to a chair and robbed her of her jewelry media, Rene opted to release his statement to
and money. Candida also related to the police the press which goes:
officer that despite her pleas, Dencio had raped
her. The policemen noticed that Candida was “I believe that I am entitled to the presumption
hysterical and on the verge of collapse. Dencio of innocence until my guilt is proven beyond
was charged with robbery with rape. During the reasonable doubt. Although I admit that I
trial, Candida can no longer be located. performed acts that may take one’s life away, I
hope and pray that justice will be served in the
a. If the prosecutor presents Police Officer right way. God bless us all.
Roberto Maawa to testify on what (Sgd.) Rene”
Candida had told him, would such
testimony of the policemen be hearsay? The trial court convicted Rene of homicide on
Explain. (1999, 2009 Bar) the basis of PO2 Asintado’s testimony, Kulasa’s
statements, and Rene’s statement to the press.
A: No. The testimony of the policemen is not On appeal, Rene raises the following errors:
hearsay. It is part of the res gestae. It is also an
independently relevant statement. The police (a) The trial court erred in giving weight to
officer testified his own personal knowledge, not to PO2 Asintado’s testimony, as the latter
the truth of Candida’s statement, i.e., that she told did not have personal knowledge of the
him, despite her pleas, Dencio has raped her. (People facts in issue, and violated Rene’s right
v. Gaddi, G.R. No. 74065, February 27, 1989) to due process when it considered
Kulasa’s statements despite lack of
b. If the police officer will testify that he opportunity for her cross-examination.
noticed Candida to be hysterical and on
the verge of collapse, would such A: The trial court did not err in giving weight to PO2
testimony be considered as opinion, Asintado’s testimony.
hence, inadmissible? Explain. (2005
Bar) While a witness can only testify as to those facts
which he has personal knowledge, the Rules provide
that a statement made under the influence of a

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startling event witnessed by the person who made During trial, MMM was presented as a witness to
the declaration before he had time to think and testify on what AAA reported to her and AAA's
make up a story, or to concoct or contrive a gestures and disposition at that time. Mr. G's
falsehood, or to fabricate an account, and without counsel objected to MMM's testimony on the
any undue influence in obtaining it, aside from ground that it is hearsay evidence. The
referring to the event in question or its immediate prosecutor countered that the subject of MMM's
attending circumstances, is an exception being part testimony may be admitted as an independently
of res gestae. (Belbis, Jr., v. People, G.R. No. 181052, relevant statement and as part of the res gestae.
November 14, 2012)
(a) May MMM's testimony be admitted on
In the case, the statements made by PO2 Asintado the ground that it constitutes an
constitutes part of res gestae since the same were independently relevant statement?
made without any opportunity to fabricate and Explain. (2019 Bar)
while a startling occurrence was actually taking
place. A: Yes. Under the doctrine of independently
relevant statements, regardless of their truth or
In addition, the statement of PO2 Asintado may fall falsity, the fact that such statements have been
within the purview of the doctrine of independent made is relevant. The hearsay rule does not apply,
relevant statement, where only the fact that such and the statements are admissible as evidence.
statements were made is relevant, and the truth and Evidence as to the making of such statement is not
falsity thereof is immaterial. (People v. Malibiran, secondary but primary, for the statement itself may
G.R. No. 178301, April 24, 2009) constitute a fact in issue or be circumstantially
relevant as to the existence of such facts. Thus,
On the other hand, Kulasa’s statements are also MMM’s testimony can be admitted.
admissible as part of res gestae since the same were
made under the influence of a startling event and (b) May AAA's statement to MMM be
without any opportunity to concoct or devise a admitted on the ground of res gestae?
falsehood. Explain. (2019 Bar)

(b) The trial court erred in holding that A: Yes. Res gestae refers to the circumstances, facts,
Rene’s statement to the press was a and declarations that grow out of the main fact and
confession which, standing alone, would serve to illustrate its character and are so
be sufficient to warrant a conviction. spontaneous and contemporaneous with the main
Resolve. (2014 Bar) fact as to exclude the idea of deliberation and
fabrication.
A: The trial court did not err in holding that Rene’s
statement to the press is a confession. Rene’s Entries in official records
confessions to the media were properly admitted
because statements spontaneously made by a Q: X was charged with robbery. On the strength
suspect to news reporters on a televised interview of a warrant of arrest issued by the court, X was
are deemed voluntary and are admissible in arrested by police operatives. They seized from
evidence. (People v. Hipona, G.R. No. 185709, his person a handgun. A charge for illegal
February 18, 2010) possession of firearm was also filed against him.
In a press conference called by the police, X
Q: AAA, a ten (10)-year old minor, was sleeping admitted that he had robbed the victim of
inside her room when she was awakened by her jewelry valued at P500,000. The robbery and
uncle, Mr. G, who was reeking of alcohol and was illegal possession of firearm cases were tried
already on top of her. After Mr. G succeeded in jointly. The prosecution presented in evidence a
having carnal knowledge of AAA, the former newspaper clipping of the report to the reporter
immediately left the latter's room. Thereafter, who was present during the press conference
AAA rushed into the room of her mother, MMM, stating that X admitted the robbery. It likewise
and spontaneously and frantically reported the presented a certification of the PNP Firearms
incident. Eventually, Mr. G was arrested and was and Explosive Office attesting that the accused
indicted for the crime of Rape. had no license to carry any firearm. The
certifying officer, however, was not presented as

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a witness. Both pieces of evidence were objected Q: D was prosecuted for homicide for allegedly
to by the defense. beating up V to death with an iron pipe.

(a) Is the newspaper clipping admissible in (a) May the prosecution introduce evidence
evidence against X? that V had a good reputation for
peacefulness and non-violence? Why?
A: Yes, the newspaper clipping is admissible in
evidence against X regardless of the truth or falsity A: The prosecution may introduce evidence of the
of a statement, the hearsay rule does not apply and good or even bad moral character of the victim if it
the statement may be shown where the fact that it is if it tends to establish in any reasonable degree the
made relevant. Evidence as to making of such probability or improbability of the offense charged.
statement is not secondary but primary, for the (Sec. 54[a][1], Rule 130)
statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such (b) May D introduce evidence of specific
fact. (Gotesco Investment Corporation v. Chatto, G.R. violent acts by V? Why? (2002 Bar)
No. L-87584 June 16, 1992)
A: Yes, D may introduce evidence of specific violent
(b) Is the certification of the PNP Firearm acts by V. Evidence that one did or did not do a
and Explosive Office without the certain thing at one time is not admissible to prove
certifying officer testifying on it that he did or did not do the same or a similar thing
admissible in evidence against X? (2003 at another time; but it may be received to prove a
Bar) specific intent or knowledge, identity, plan, system,
scheme, habit, custom or usage, and the like. (Sec.
A: Yes, the certification is admissible in evidence 34, Rule 130, now Sec. 35, Rule 130)
against X because a written statement signed by an
officer having the custody of an official record or by Q: In a prosecution for murder, the prosecutor
his deputy that after diligent search no record or asks accused Darwin if he had been previously
entry of a specified tenor is found to exist in the arrested for violation of the Anti-Graft and
records of his office, accompanied by a certificate as Corrupt Practices Act. As defense counsel, you
above provided, is admissible as evidence that the object. The trial court asks you on what
records of his office contain no such record of entry. ground/s. Respond. (2010 Bar)
(Sec. 28, Rule 132)
A: The objection is on the ground that the fact
Opinion rule sought to be elicited by the prosecution is irrelevant
and immaterial to the offense under prosecution
Q: At Nolan’s trial for possession and use of the and trial. Moreover, the Rules do not allow the
prohibited drugs, known as “shabu” his prosecution to adduce evidence of bad moral
girlfriend Kin, testified that on a particular day, character of the accused pertinent to the offense
she would see Nolan very prim and proper, alert charged, except on rebuttal and only if it involves a
and sharp, but that three days after, he would prior conviction by final judgment. (Sec. 51, Rule
appear haggard, tired and overly nervous at the 130, now Sec. 54[a][2], Rule 130)
slightest sound he would hear. Nolan objects to
the admissibility of Kim’s testimony on the Q: In an attempt to discredit and impeach a
ground that Kim merely stated her opinion Prosecution witness in a homicide case, the
without having been first qualified as expert defense counsel called to the stand a person who
witness. Should you as a judge exclude the had been the boyhood friend and next-door
testimony of Kim? (1994 Bar) neighbor of the Prosecution witness for 30
years. One question that the defense counsel
A: No, the testimony of Kim should not be excluded. asked of the impeaching witness was: "Can you
Even though Kim is not an expert witness, Kim may tell this Honorable Court about the general
testify on her impressions of the emotion, behavior, reputation of the prosecution witness in your
condition or appearance of a person. (Sec. 50, Rule community for aggressiveness and violent
130 now Sec. 52, Rule 130) tendencies?" Would you, as the trial prosecutor,
interpose your objection to the question of the
Character evidence

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 QuAMTO (1987-2019)
defense counsel? Explain your answer. (2017 searches and seizures and confessions and
Bar) admissions in violation of the rights of a person
under custodial investigation.
A: Yes, I as the trial prosecutor, would interpose my
objection to defense counsel’s question on the Q: A trial court cannot take into consideration in
ground of improper impeachment. Under the the deciding a case an evidence that has not been
Rules, an adverse party’s witness may be properly “formally offered.” When are the following
impeached by reputation evidence provided that it pieces of evidence formally offered? (1994,
is to the effect that the witness’s general reputation 1997 Bar)
for honesty, truth, or integrity was bad (Sec. 11, Rule
132). The reputation must only be on character for (a) Testimonial evidence
truthfulness or untruthfulness. (Cordial v. People,
G.R. No. L-75880 September 27, 1988) A: Testimonial evidence is formally offered at the
time the witness is called to testify. (Sec. 35, Rule
Here the evidence is not on the prosecution 132)
witness’s general reputation for honesty, truth, or
integrity but on his aggressive and violent (b) Documentary evidence
tendencies. The evidence had nothing to do with the
witness’s character for truthfulness or A: Documentary evidence is formally offered after
untruthfulness. Hence the impeachment was the presentation of the testimonial evidence. (Sec.
improper. 35, Rule 132)

Q: Dave is on trial for sexual assault of Delly, a (c) Object evidence
law student who sidelines as a call center agent.
Dave offers the testimony of Danny, who says A: The same is true with object evidence. It is also
that Dave is known in the community as a decent offered after the presentation of the testimonial
and discerning person. The prosecution evidence.
presents a rebuttal witness, Dovie, who testifies
that, if Dave was reputed to be a good person, Q: Counsel A objected to a question posed by
that reputation was a misperception because opposing Counsel B on the grounds that it was
Dave had been previously convicted of hearsay and it assumed a fact not yet
homicide. Is Dovie’s testimony admissible as to established. The judge banged his gavel and
the character of Dave? (2018 Bar) ruled by saying "Objection Sustained". Can
Counsel B ask for a reconsideration of the
A: No, Dovie’s testimony on Dave’s previous ruling? Why? (2012 Bar)
conviction for homicide as evidence of his bad
character does not refer to a moral trait involved in A: Yes, Counsel B may ask the Judge to specify the
the offense charged which is sexual assault. (Sec ground/s relied upon for sustaining the objection
51[a][2], Rule 130) and thereafter move its reconsideration thereof.
(Sec. 38, Rule 132)
Offer and objection
Q: What is a tender of excluded evidence? (2017
Q: What are the two kinds of objections? Explain Bar)
each briefly. Give example each. (1997 Bar)
A: Tender of excluded evidence is a remedy
A: Two kinds of objections are: (1) the evidence embodied under Section 40, Rule 132 of the Rules of
being presented is not relevant to the issue; and (2) Court, which states that if documents or things
the evidence is incompetent or excluded by the offered in evidence are excluded by the court, the
Constition, law or the rules (Sec. 3, Rule 128). An offeror may have the same attached to or made part
example of the first is when the prosecution offers of the record. If the evidence excluded is oral, the
as evidence the alleged offer of an insurance offeror may state for the record the name and other
company to pay for the damages suffered by the personal circumstances of the witness and the
victim in a homicide case. Examples of the second substance of the proposed testimony.
are evidence obtained in violation of the
Constitutional prohibition against unreasonable

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In Cruz-Arevalo v. Querubin-Layosa (A.M. No. RTJ-06- prompted Louie to file an action for unlawful
2005, July 14, 2006), the Supreme Court ruled that detainer against Laura who failed to answer the
this procedure, also known as offer of proof, is made complaint within the reglementary period.
for purposes of appeal. If an adverse judgment is
eventually rendered against the offeror, he may in Louie then filed a motion to declare Laura in
his appeal assign as error the rejection of the default. Should the motion be granted? Explain
excluded evidence. The appellate court will better your answer. (2017 BAR)
understand and appreciate the assignment of error
if the evidence involved is included in the record of A: No. The motion should not be granted because it
the case. is a prohibited pleading Under Section 19 (h) of the
Rules on Summary Procedure, a motion to declare
defendant in default is among the pleadings that are
REVISED RULES ON SUMMARY PROCEDURE prohibited in cases covered by said Rule:
Considering that an action for unlawful detainer is
covered by the Rules on Summary Procedure,
Q: Charged with the offense of slight physical Louie’s motion to declare Laura in default is a
injuries under an information duly filed with the prohibited pleading, and thus, should not be
MeTC in Manila which in the meantime had duly granted.
issued an order declaring that the case shall be
governed by the Revised Rule on Summary Q: Danielle, a Filipino citizen and permanent
Procedure, the accused filed with said court a resident of Milan, Italy, filed with the Regional
motion to quash on the sole ground that the Trial Court (RTC) of Davao City, where she owns
officer who filed the information had no a rest house, a complaint for ejectment against
authority to do so. The MeTC denied the motion Dan, a resident of Barangay Daliao, Davao City.
on the ground that it is a prohibited motion Danielle’s property, which is located in Digos
under the said Rule. The accused thereupon City, Davao del Sur, has an assessed value of PhP
filed with the RTC in Manila a petition for 25,000. Appended to the complaint was
certiorari in sum assailing and seeking the Danielle’s certification on non-forum shopping
nullification of the MeTC’s denial of his motion executed in Davao City duly notarized by Atty.
to quash. The RTC in due time issued an order on Dane Danoza, a notary public.
the ground that it is not allowed by the said Rule.
The accused forthwith filed with said RTC a Should the complaint be verified or is the
motion for reconsideration of its said order. The certification sufficient? (2018 BAR)
RTC in time denied said motion for
reconsideration on the ground that the same is A: Yes. Considering that the action is for unlawful
also a prohibited motion under the said Rule. detainer, the Rules on Summary Procedure will
Were the RTC’s orders denying due course to the apply. Rule II, Section 3(B) of the Rules on Summary
petition as well as denying the motion for Procedure requires that all pleadings submitted to
reconsideration correct? Reason. (2004 Bar) the court be verified; hence, a mere certification on
non-forum shopping, the complaint being an
A: The RTC’s orders denying due course to the initiatory pleading is insufficient.
petition for certiorari as well as denying the motion
for reconsideration are both not correct. The
petition for certiorari is a prohibited pleading under RULES FOR ENVIRONMENTAL CASES
Section 19(g) of the Revised Rule on Summary
Procedure and the motion for reconsideration,
while it is not prohibited motion (Lucas v. Fabros, Q: What do you understand about the
AM No. MTJ-99- 1226, January 31, 2000, citing Joven “precautionary principle” under the Rules of
v. Court of Appeals, G.R. No. 80739 August 20, 1992), Procedure for Environmental Cases? (2012,
should be denied because the petition for certiorari 2018 Bar)
is a prohibited pleading.
A: Precautionary principle states that when human
Q: Laura was the lessee of an apartment unit activities may lead to threats of serious and
owned by Louie. When the lease expired, Laura irreversible damage to the environment that is
refused to vacate the property. Her refusal scientifically plausible but uncertain, actions shall

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 QuAMTO (1987-2019)
be taken to avoid or diminish that threat. In its charter. It is, thus, ministerial in nature and can be
essence, the precautionary principle calls for the compelled by mandamus.
exercise of caution in the face of risk and
uncertainty. (Sec. 4[f], Rule 1, Part 1, and Rule 20, Accordingly, the RTC may issue a writ of continuing
A.M. NO. 09-6-8-SC) mandamus directing any agency or instrumentality
of the government or officer thereof to perform an
WRIT OF CONTINUING MANDAMUS act or series of acts decreed by final judgment which
shall remain effective until the judgement is fully
Q: Hannibal, Donna, Florence and Joel, satisfied. (Metropolitan Manila Development
concerned residents of Laguna de Bay, filed a Authority v. Concerned Residents of Manila Bay, G.R.
complaint of mandamus against the Laguna Nos. 171947-48, December 18, 2008)
Lake Development Authority, the Department of
Environment and Natural Resources, the (b) What is the writ of continuing
Department of Public Works and Highways, mandamus? (2016 Bar)
Department of Interior and Local Government,
Department of Agriculture, Department of A: A writ of continuing mandamus is a writ issued
Budget and Philippine National Police before when any agency or instrumentality of the
the RTC of Laguna alleging that the continued government or officer thereof unlawfully neglects
neglect of defendants in performing their duties the performance of an act which the law specifically
has resulted in serious deterioration of the enjoins as a duty resulting from an office, trust or
water quality of the lake and the degradation of station in connection with the enforcement or
the marine life in the lake. The plaintiffs prayed violation of an environmental law, rule or regulation
that said government agencies be ordered to or a right therein, or unlawfully excludes another
clean up Laguna de Bay and restore its water from the use or enjoyment of such right and there is
quality to Class C waters as prescribed by no other plain, speedy and adequate remedy in the
Presidential Decree 1151, otherwise known as ordinary course of law, the person aggrieved
the Philippine Environment Code. Defendants thereby may file a verified petition in the proper
raise the defense that the clean up of the lake is court, alleging the facts with certainty, attaching
not a ministerial function and they cannot be thereto supporting evidence, specifying that the
compelled by mandamus to perform the same. petition concerns an environmental law, rule or
The RTC of Laguna rendered a decision regulation and praying that judgment be rendered
declairing that it is the duty of the agency to commanding the respondent to do an act or series
clean up Laguna de Bay and issued a permanent of acts until the judgment is fully satisfied, and to
writ of mandamus ordering said agencies to pay damages sustained by the petitioner by reason
perform their duties prescribed by law relating of malicious neglect to perform the duties of the
to the cleanup of Laguna de Bay. respondent, under the law, rules or regulations. The
petition shall also contain a sworn certification of
(a) Is the RTC correct in issuing the writ of non-forum shopping. (Sec. 1, Part III, Rule 8, A.M. No.
mandamus? Explain. 09-6-8-SC)

A: Yes, the RTC is correct in issuing the writ of WRIT OF KALIKASAN
mandamus. Generally, the writ of mandamus lies to
require the execution of a ministerial duty. While Q: Distinguish the following:
the implementation of the government agencies
mandated tasks may entail a decision-making Writ of kalikasan and writ of continuing
process, the enforcement of the law or the very act mandamus (2019 Bar)
of doing what the law exacts to be done is
ministerial in nature and may be compelled by A: A Writ of Kalikasan is a remedy available to a
mandamus. natural or juridical person, entity authorized by law,
people’s organization, non-governmental
Here, the duty to clean up Laguna Lake and restore organization, or any public interest group
its water quality to Class C is required not only by accredited by or registered with any government
Presidential Decree No. 1152, otherwise known as agency, on behalf of persons whose constitutional
the Philippine Environment Code, but also in its right to a balanced and healthful ecology is violated,
or threatened with violation by an unlawful act or

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omission of a public official or employee, or private The Writ of Kalikasan is a remedy available to a
individual or entity, involving environmental natural or juridical person, entity authorized by law,
damage of such magnitude as to prejudice the life, people’s organization, non-governmental
health or property of inhabitants in two or more organization, or any public interest group
cities or provinces. accredited by or registered with any government
agency, on behalf of persons whose constitutional
Whereas, in Continuing Mandamus, when any right to a balanced and healthful ecology is violated,
agency or instrumentality of the government or or threatened with violation by an unlawful act or
officer unlawfully neglects the performance of an omission of a public official or employee, or private
act which the law specifically enjoins as a duty individual or entity, involving environmental
resulting from an office, trust, station in connection damage of such magnitude as to prejudice the life,
with the enforcement or violation of an health or property of inhanbitants in two or more
environmental law, rule or regulation or a right cities or provinces. (Sec. 1, Rule 7, A.M. No. 09-6-8-
therein, or unlawfully excludes another from the SC)
use or enjoyment of such right and there Is no other
plain, speedy, and adequate remedy in the ordinary Further, the petition for Writ of Kalikasan is more
course of law, the person aggrieved thereby may file advantageous compared to a complaint for damages
a verified petition in the proper court, alleging the before the RTC because it may be filed directly with
facts with certainty, attaching thereto supporting the Supreme Court or with any of the stations of the
evidence, specifying that the petition concerns an Court of Appeals. Unlike a complaint for damages
environmental law, rile or regulation, and praying before the RTC which only be filed by a real party-
that judgment be rendered commanding the in-interest as defined in Rule 3(2) of the Ruels of
respondent to do an act or series of acts until the Court, the rule on locus standi is relaxed in peitions
judgment is fully satisfied, and to pay damages for Writ of Kalikasan which allows the petition to be
sustained by the petitioner by reason of the filed by parties as citizen suit. Besides, the petition
malicious neglect to perform the duties of the for Writ of Kalikasan is exempted from the payment
respondent, under the law, rules or regulations. The of docket fees.
petition shall also contain a sworn a certification of
non-forum shopping. (Sec. 1, Part III, Rule 8, A.M. No. From the foregoing, it is clear that filing a petition
09-6-8-SC) for Writ of Kalikasan would be the best remedy to
address all the environmental problems caused by
Q: The officers of “Ang Kapaligiran ay Alagaan, the release of the toxic waste to the waters of
Inc.” engaged your services to file an action Romblon and Quezon without the burden of paying
against ABC Mining Corporation which is docket fees. After all, the filing of a petition for the
engaged in mining operations in Sta. Cruz, issuance of Writ of Kalikasan shall not preclude the
Marinduque. ABC used highly toxic chemicals in filing of separate civil, criminal, or administrative
extracting gold. ABC’s toxic mine tailings were actions; thus, the organization can later file a
accidentellay released from its storage dams complaint for damages with the Regional Trial
and were discharged into the rivers of said town. Court, should they desire to do so.
The mine tailings found their way to Calancan
Bay allegedly to the waters of nearby Romblon
and Quezon. The damage to the crops and loss of
earnings were estimated at P1 Billion. Damage
to the environment is estimated at P1 Billion. As
a lawyer for the organization, you are requested
to explain the advantages derived from a
petition for writ of kalikasan before the the
Supreme Court over a complaint for damages
before the RTC of Marinduque or vice versa.
What action will you recommend? Explain.
(2016, 2018 Bar)

A: As a lawyer for the organization, I would
recommend the filing of a petition for issuance of a
Writ of Kalikasan.

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