University of Santo Tomas

FACULTY OF CIVIL LAW (1734)

REMEDIAL LAW
Questions Asked More Than Once

QuAMTO 2023
 The UST GOLDEN NOTES is the annual student-edited bar review material of
the University of Santo Tomas, Faculty of Civil Law. Communications
regarding the Notes should be addressed to the Academics Committee of the
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 Faculty of Civil Law (1734)

ACADEMICS COMMITTEE 2023

ANGELA BEATRICE S. PEÑA KATHERINE S. POLICARPIO

SECRETARIES-GENERAL

RON-SOPHIA NICOLE C. ANTONIO CRIMINAL LAW

HERLENE MAE D. CALILUNG LABOR LAW AND SOCIAL LEGISLATION

POLITICAL LAW AND

PATRISHA LOUISE E. DUMANIL
PUBLIC INTERNATIONAL LAW

LEGAL AND JUDICIAL ETHICS WITH

ALEXANDRA MAUREEN B. GARCIA
PRACTICAL EXERCISES

HANNAH JOY C. IBARRA COMMERCIAL LAW

JEDIDIAH R. PADUA CIVIL LAW

PAULINNE STEPHANY G. SANTIAGO TAXATION LAW

DIANNE MICAH ANGELA D. YUMANG REMEDIAL LAW

EXECUTIVE COMMITTEE

PAULA ANDREA F. PEÑAFLOR COVER DESIGN ARTIST

 Faculty of Civil Law (1734)

REMEDIAL LAW COMMITTEE 2023

MIKKAH F. FACTOR

REMEDIAL LAW SUBJECT HEAD

SANTIAGO U. VITUG ASST. HEAD, CIVIL PROCEDURE

MIGUEL JOSHUA G. AGUIRRE ASST. HEAD, SPECIAL PROCEEDINGS
CAMILLE RAZEN D. SUMERA ASST. HEAD, CRIMINAL PROCEDURE
SHARMAINE ELIZA T. MACASERO ASST. HEAD, EVIDENCE

REMEDIAL LAW ASSISTANT SUBJECT HEADS

MEMBERS
PATRICIA CLARISSE H. BERNABE
JEANINE ANDREA V. BUENAVENTURA
DANIELLE LOUISE CLEO C. ESQUILLO
CAMILLE RAZEN D. SUMERA

ADVISERS
JUDGE MYRA B. QUIAMBAO
JUDGE KATLYN ANNE C. AGUILAR-BILGERA
ATTY. IAN JERNY E. DE LEON
 Faculty of Civil Law (1734)

FACULTY OF CIVIL LAW

UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P.
DEAN REGENT

ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

JUDGE PHILIP A. AGUINALDO

SWDB COORDINATOR

LENY G. GADIANA, R.G.C.

GUIDANCE COUNSELOR
 Faculty of Civil Law (1734)

OUR DEEPEST APPRECIATION TO OUR

MENTORS AND INSPIRATION
Justice Roberto A. Abad Judge Gidget Rose V. Duque

Justice Maria Cristina J. Cornejo† Judge Leilani Marie D. Grimares

Justice Maria Filomena D. Singh Judge Gener M. Gito

Justice Magdangal M. De Leon Dean Jose I. Dela Rama

Justice Myra V. Fernandez Dean Lope E. Feble

Justice Oscar C. Herrera, Jr. Dean Ma. Soledad D. Mawis

Justice Amy Lazaro-Javier Dean Salvador N. Moya II

Justice Zenaida G. Laguilles Dean Carlos M. Ortega

Justice Carlito B. Calpatura Dean Willard B. Riano†

Justice Jose Lorenzo R. De La Rosa Dean Ferdinand A. Tan

Justice Georgina D. Hidalgo Atty. Irene D.T. Alogoc

Justice Ronald B. Moreno Atty. Ian Jerny E. De Leon

Justice Eduardo B. Peralta, Jr. Atty. Gregorio Gerry F. Fernandez

Justice Selma Palacio-Alaras Atty. Elmar B. Galacio

Justice Gabriel T. Robeniol Atty. Benigno G. Par, Jr.

Judge Myra B. Quiambao Atty. Christian G. Villasis

For being our guideposts in understanding the intricate sphere of Remedial Law.
– Academics Committee 2023
 DISCLAIMER

THE RISK OF USE OF THIS BAR

REVIEW MATERIAL SHALL BE
BORNE BY THE USER
UST 1611
 QuAMTO (1987-2022)
I. GENERAL PRINCIPLES
CONCEPT OF REMEDIAL LAW
(2006, 1998 BAR)
Q: What is the concept of Remedial Law? (2006 BAR)
A: The concept of Remedial Law is that it is a branch of
public law which prescribes the procedural rules to be
observed in litigations, whether civil, criminal, or
administrative, and in special proceedings, as well as the
remedies or reliefs available in each case. (Bustos v. Lucero
G.R. No. L-2068, 20 Oct. 1948)
Q: How are remedial laws implemented in our system
of government? (2006 BAR)
A: Remedial Laws are implemented in our system of
government through the pillars of the judicial system,
including the prosecutorial service, our courts, and quasi-
judicial agencies. (UPLC Suggested Answers)
Q: How shall the Rules of Court be construed? (1998
BAR)
A: The Rules of Court should be liberally constructed in
order to promote their objective of securing a just, speedy,
and inexpensive disposition of every action and proceeding.
(Sec. 6, Rule 1, ROC, as amended)
A. SUBSTANTIVE LAW vs. REMEDIAL LAW
(2006 BAR)
Q: Distinguish between substantive law and remedial
law. (2006 BAR)
A: Substantive law is that part of the law which creates,
defines, and regulates rights and obligations, the violation
of which gives rise to a cause of action. On the other hand,
remedial law prescribes the method of enforcing rights or
obtaining redress for their invasion. (Bustos v. Lucero G.R.
No. L-2068, 20 Oct. 1948)
B. RULE-MAKING POWER OF THE SUPREME COURT
C. PRINCIPLE OF JUDICIAL HIERARCHY
(2017 BAR)
Q: Give brief answers to the following: (2017 BAR)
1 UNIVERSITY OF SANTO TOMAS
(a) What is the doctrine of hierarchy of courts?
A: The doctrine of hierarchy of courts provides that where
there is a concurrence of jurisdiction by courts over an
action or proceeding, there is an ordained sequence of
recourse to such courts beginning from the lowest to the
highest. A direct invocation of the Supreme Court’s original
jurisdiction should be allowed only when there are special
and important reasons therefor. (Montes v. Court of Appeals,
G.R. No. 143797, 04 May 2006)
(b) What is the Harmless Error Rule in relation to
appeals?
A: The harmless error rule in relation to appeals provides
that the appellate court should not reverse a judgment as a
result of any error or defect which does not affect the
substantial rights of the parties. (Sec. 6, Rule 51, ROC, as
amended; Bersamin, 2000)
Q: A wants to file a Petition for Writ of Habeas Data
against the AFP in connection with threats to his life
allegedly made by AFP intelligence officers. A needs
copies of AFP highly classified intelligence reports
collected by Sgt. Santos who is from AFP. A can file his
petition with:
a. RTC where AFP is located;
b. RTC where Sgt. Santos resides;
c. Supreme Court;
d. Court of Appeals. (2012 BAR)
A: d. Court of Appeals
In accordance with the principle of judicial hierarchy of the
courts, A should file the petition with the Court of Appeals.
ALTERNATIVE ANSWERS:
b. RTC where Sgt. Santos resides
c. Supreme Court
The petition may be filed with the Regional Trial Court
where the petitioner or respondent resides, or that which
has jurisdiction over the place where the data or
information is gathered, collected or stored, at the option of
the petitioner. The petition may also be filed with the
Supreme Court or the Court of Appeals or the
Sandiganbayan when the action concerns public data files
of government offices. (A. M. No. 08-1-16-SC)
D. DOCTRINE OF NON-INTERFERENCE/
JUDICIAL STABILITY
(2003 BAR)
Q: In rendering a decision, should a court take into
consideration the possible effect of its verdict upon the
FACULTY OF CIVIL LAW
 REMEDIAL LAW
political stability and economic welfare of the nation?
(2003 BAR)
A: NO. A court is required to take into consideration only
the legal issues and the evidence admitted in the case. The
political stability and economic welfare of the nation are
extraneous to the case. They can have persuasive influence
but they are not the main factors that should be considered
in deciding a case. A decision should be based on the law,
rules of procedure, justice and equity. However, in
exceptional cases the court may consider the political
stability and economic welfare of the nation when these are
capable of being taken into judicial notice of and are
relevant to the case. (UPLC Suggested Answers)
II. JURISDICTION
A. CLASSIFICATION OF JURISDICTION
1. ORIGINAL vs. APPELLATE
2. GENERAL vs. SPECIAL
3. EXCLUSIVE vs. CONCURRENT
B. DOCTRINES OF HIERARCHY OF COURTS
AND ADHERENCE OF JURISDICTION
(2015 BAR)
Q: A law was passed declaring Mt. Karbungko as a
protected area since it was a major watershed. The
protected area covered a portion located in
Municipality A of the Province I and a portion located in
the City of Z of Province II. Maingat is the leader of
Samahan ng Tagapag-ingat ng Karbungko (STK), a
people's organization. He learned that a portion of the
mountain located in the City of Z of Province II was
extremely damaged when it was bulldozed and leveled
to the ground, and several trees and plants were cut
down and burned by workers of World Pleasure
Resorts, Inc. (WPRI) for the construction of a hotel and
golf course. Upon inquiry with the project site engineer
if they had a permit for the project, Maingat was shown
a copy of the Environmental Compliance Certificate
(ECC) issued by the DENR-EMB, Regional Director (RD-
DENR-EMB). Immediately, Maingat and STK filed a
petition for the issuance of a writ of continuing
mandamus against RD-DENR-EMB and WPRI with the
RTC of Province I, a designated environmental court, as
the RD-DENR-EMB negligently issued the ECC to WPRI.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
On scrutiny of the petition, the court determined that
the area where the alleged actionable neglect or
omission subject of the petition took place in the City of
Z of Province II, and therefore cognizable by the RTC of
Province II. Thus, the court dismissed outright the
petition for lack of jurisdiction.
Assuming that the court did not dismiss the petition, the
RD-DENR-EMB in his Comment moved to dismiss the
petition on the ground that petitioners failed to appeal
the issuance of the ECC and to exhaust administrative
remedies provided in the DENR Rules and Regulations.
Should the court dismiss the petition? (2015 BAR)
A: YES. The court should dismiss the petition because the
proper procedure to question defect in an ECC is to follow
the DENR administrative appeal process in accordance with
the doctrine of exhaustion of administrative remedies.
(Dolot v. Hon. Paje, G.R. No. 199199, 27 Aug. 2013; Paje v.
Casiño, G.R. No. 207257, 03 Feb. 2015)
C. JURISDICTION OF VARIOUS PHILIPPINE COURTS
AND TRIBUNALS
(2022, 2017, 2016, 2015, 2014, 2012, 2009, 2008,
2006, 2004, 2001 BAR)
1. SUPREME COURT
(2014, 2012, 2004 BAR)
Q: If the Supreme Court en banc is equally divided in
opinion covering an original action, the case shall be:
(2012 BAR)
A: Where the Court en banc is equally divided in option or
the necessary majority vote cannot be had, the Court shall
deliberate on it anew. If after such deliberation still no
decision is reached, the Court shall, in an original action
filed with it, dismiss the case.
In all matters incidental to the main action where the
Court en banc is equally divided in opinion, the relief sought
shall be denied. (A.M. No. 10-4-20-SC)
Q: Distinguish Questions of Law from Questions of Fact.
(2004 BAR)
A: A question of law is when the doubt or difference arises
as to what the law is on a certain set of facts, while a
question of fact is when the doubt or difference arises as to
the truth or falsehood of alleged facts. (Ramos v. Pepsi-Cola
Bottling Co. of the Phil., G.R. No. L-22533, 09 Feb. 1967)
Q: Goodfeather Corporation, through its President, Al
Pakino, filed with the Regional Trial Court (RTC) a
complaint for specific performance against Robert
White. Instead of filing an answer to the complaint,
Robert White filed a motion to dismiss the complaint on
2
 QuAMTO (1987-2022)
the ground of lack of the appropriate board resolution
from the Board of Directors of Good feather
Corporation to show the authority of Al Pakino to
represent the corporation and file the complaint in its
behalf. The RTC granted the motion to dismiss and,
accordingly, it ordered the dismissal of the complaint.
Al Pakino filed a motion for reconsideration which the
RTC denied. As nothing more could be done by Al
Pakino before the RTC, he filed an appeal before the
Court of Appeals (CA). Robert White moved for
dismissal of the appeal on the ground that the same
involved purely a question of law and should have been
filed with the Supreme Court (SC). However, Al Pakino
claimed that the appeal involved mixed questions of
fact and law because there must be a factual
determination if, indeed, Al Pakino was duly authorized
by Goodfeather Corporation to file the complaint.
Whose position is correct? Explain. (2014 BAR)
A: Al Pakino is correct in claiming that the appeal involved
mixed questions of fact and law. There is a question of law
when the doubt or difference arises as to what the law is on
a certain state of facts. On the other hand, there is a question
of fact, when the doubt or difference arises as to the truth or
falsehood of alleged facts. (Mirant Philippines Corporation v.
Sario, G.R. No. 197598, 21 Nov. 2012) Since the complaint
was dismissed due to the alleged lack of appropriate board
resolution from the Board of Directors of Goodfeather
Corporation, the appeal will necessarily involve a factual
determination of the authority to file the Complaint for the
said corporation. Hence, the appeal before the Court of
Appeals is correct. (UPLC Suggested Answers)
2. COURT OF APPEALS
(2008, 2006 BAR)
Q: Give at least three instances where the Court of
Appeals may act as a trial court. (2008 BAR)
A:
a. In annulment of judgment under Secs. 5 and 6, Rule 47
of the Rules of Court. Should the Court of Appeals find
prima facie merit in the petition, the same shall be given
due course and summons shall be served on the
respondent, after which trial will follow, where the
procedure in ordinary civil cases shall be observed;
b. When a motion for new trial is granted by the Court of
Appeals, the procedure in the new trial shall be the
same as that granted by a Regional Trial Court (Sec. 4,
Rule 53, ROC, as amended);
c. A petition for habeas corpus shall be set for hearing
(Sec. 12, Rule 102, ROC, as amended);
d. In a petition for the writs of amparo and habeas data, a
hearing can be conducted;
e. Under Sec. 12, Rule 124 of the Rules of Criminal
Procedure, the Court of Appeals has the power to try
3 UNIVERSITY OF SANTO TOMAS
cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual
issues cases which fall within its original and appellate
jurisdiction;
f. The Court of Appeals can grant a new trial based on the
ground of newly discovered evidence (Sec. 14, Rule 124,
ROC, as amended);
g. The Court of Appeals, under Sec. 6, Rule 46 of the Rules
of Court, whenever necessary to resolve factual issues,
may conduct hearing thereon or delegate the reception
of the evidence of such issues to any of its members or
to an appropriate agency or office.
Q: Does the Court of Appeals have jurisdiction to review
the Decisions in criminal and administrative cases of
the Ombudsman? (2006 BAR)
A: YES, but only in administrative cases. In administrative
and disciplinary cases, appeals from the Ombudsman must
be taken to the Court of Appeals under Rule 43 of the Rules
of Court. Conversely, the Supreme Court has exclusive
appellate jurisdiction over decisions of the Ombudsman in
criminal cases. (Lanting v. Ombudsman, G.R. No. 141426, 06
May 2005; Fabian v. Desierto, G.R. No. 129742, 16 Sept. 1998;
Sec. 14, R.A. No. 6770)
3. COURT OF TAX APPEALS
(2022, 2006 BAR)
Q: Fides filed a case before the Regional Trial Court
(RTC) questioning the authority of the local
government unit (LGU) to assess real property taxes
(RPT) on a certain property she owns. She also prayed
for a writ of preliminary injunction (WPI) to restrain
the LGU from collecting the RPT. The LGU moved to
dismiss Fides’ case arguing that since the matter
involves RPT, her remedy was to file an appeal to the
Local Board of Assessment Appeals. (2022 BAR)
(a) Is the LGU correct? Explain briefly.
A: NO. The LGU is not correct. The Supreme Court has held
that an appeal to the Local Board of Assessment Appeals is
not required where the taxpayer is questioning the very
authority and power of the LGU to assess and collect the real
property tax and that a court case in such a situation may be
properly resorted to. (Ty v. Trampe, G.R. No. 117577, 01 Dec.
1995; Riguera, 2023)
(b) If the RTC issues an order denying the application
for a WPI, and thereafter denies Fides’ subsequent
motion for reconsideration, what is her remedy?
A: Fides’ remedy is to file a petition for certiorari under Rule
65 with the Court of Tax Appeals. The Supreme Court has
held that the remedy of an aggrieved party from an
interlocutory order of the RTC in a local tax case is a petition
FACULTY OF CIVIL LAW
 REMEDIAL LAW
for certiorari under Rule 65 filed with the Court of Tax
Appeals.
Here, the order denying the application for a WPI is an
interlocutory order since it does not completely dispose of
the case. Fides should show that the denial of the
application for a WPI was made with grave abuse of
discretion amounting to lack of or excess of jurisdiction.
Hence, Fides’ remedy is to file a petition for certiorari under
Rule 65 with the Court of Tax Appeals. (City of Manila v.
Grecia-Cuerdo, G.R. No. 175723, 04 Feb. 2014)
Q: Mark filed with the Bureau of Internal Revenue a
complaint for refund of taxes paid, but it was not acted
upon. So, he filed a similar complaint with the Court of
Tax Appeals raffled to one of its Divisions. Mark’s
complaint was dismissed. Thus, he filed with the Court
of Appeals a petition for certiorari under Rule 65. Does
the Court of Appeals have jurisdiction over Mark’s
petition? (2006 BAR)
A: NO. The procedure is governed by Sec. 11 of R.A. No. 9282,
which provides that decisions of a division of the Court of
Tax Appeals must be appealed to the Court of Tax Appeals
en banc. Further, the CTA now has the same rank as the
Court of Appeals and is no longer considered as a quasi-
judicial agency. It is likewise provided in the said law that
the decisions of the CTA en banc are cognizable by the
Supreme Court under Rule 45 of the 1997 Rules of Civil
Procedure. (UPLC Suggested Answers)
4. SANDIGANBAYAN
(2014, 2009 BAR)
Q: TRUE or FALSE. In the exercise of its original
jurisdiction, the Sandiganbayan may grant petitions for
the issuance of a writ of habeas corpus. (2009 BAR)
A: FALSE. The Sandiganbayan may grant petitions for
habeas corpus only in aid of its appellate jurisdiction (R.A.
No. 7975, as amended by R.A. No. 8249), not in the exercise
of “original” jurisdiction.
Q: The Ombudsman, after conducting the requisite
preliminary investigation, found probable cause to
charge Gov. Matigas in conspiracy with Carpintero, a
private individual, for violating Section 3(e) of Republic
Act No. 3019 (Anti-Graft and Corrupt Practices Act, as
amended). Before the information could be filed with
the Sandiganbayan, Gov. Matigas was killed in an
ambush. This, notwithstanding, an information was
filed against Gov. Matigas and Carpintero.
At the Sandiganbayan, Carpintero through counsel,
filed a Motion to Quash the information, on the ground
of lack of jurisdiction of the Sandiganbayan, arguing
that with the death of Gov. Matigas, there is no public
officer charged in the information.
Is the Motion to Quash legally tenable? (2014 BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: NO. While it is true that by reason of the death of Gov.
Matigas, there is no longer any public officer with whom he
can be charged for violation of R.A. No. 3019, it does not
mean, however, that the allegation of conspiracy between
them can no longer be proved or that their alleged
conspiracy is already expunged. The only thing
extinguished by the death of Gov. Matigas is his criminal
liability. His death did not extinguish the crime, nor did it
remove the basis of the charge of conspiracy between him
and Carpintero. The requirement before a private person
may be indicated for violation of Sec. 3(g) of R.A. No. 3019,
among others, is that such private person must be alleged
to have acted in conspiracy with a public officer. The law,
however, does not require that such person must, in all
instances, be indicated together with the public officer.
Indeed, it is not necessary to join all alleged co-conspirators
in an indictment for conspiracy. (People v. Go, G.R. No.
168539, 25 Mar. 2014)
5. REGIONAL TRIAL COURTS
(2017, 2016, 2015, 2014 BAR)
Q: State at least five (5) civil cases that fall under the
exclusive original jurisdiction of the Regional Trial
Courts (RTCs). (2016 BAR)
A:
(1) Subject matter of action not capable of pecuniary
estimation; (Genesis Investment, Inc. v. Heirs of
Ceferino Ebarasabal, G.R. No. 181622, 20 Nov. 2013)
(2) Actions involving title or possession of real
property or interest therein where the assessed
value exceeds P400,000.00 except forcible entry
and unlawful detainer; (R.A. No. 11576, effective 21
Aug. 2021)
(3) Actions in admiralty and maritime jurisdiction
where demand or claim exceeds P2,000,000.00;
(R.A. No. 11576, effective 21 Aug. 2021)
(4) Matters of probate, testate, or intestate, where
gross value of estate exceeds P2,000,000.00; (R.A.
No. 11576, effective 21 Aug. 2021)
(5) Cases not within exclusive jurisdiction of any
courts, tribunal or person or body exercising
judicial or quasi-judicial function;
(6) Actions involving personal property valued at
more than P2,000,000.00; (R.A. No. 11576, effective
21 Aug. 2021)
(7) Other cases where demand, exclusive of interest,
damages, attorney’s fees, litigation expenses and
costs, or value or property in controversy exceeds
P2,000,000.00. (R.A. No. 11576, effective 21 Aug.
2021) However, if the claim of damages is the main
cause of action, the amount thereof shall be
4
 QuAMTO (1987-2022)
considered in determining the jurisdiction of the
court.
Q: Santa filed against Era in the RTC of Quezon City an
action for specific performance praying for the delivery
of a parcel of land subject of their contract of sale.
Unknown to the parties, the case was inadvertently
raffled to an RTC designated as a special commercial
court. Later, the RTC rendered judgment adverse to Era,
who, upon realizing that the trial court was not a
regular RTC, approaches you and wants you to file a
petition to have the judgment annulled for lack of
jurisdiction. What advice would you give to Era?
Explain your answer. (2017 BAR)
A: The advice I would give to Era is that the petition for
annulment of judgment on lack of jurisdiction will not
prosper. It has been held that a special commercial court is
still a court of general jurisdiction and can hear and try a
non-commercial case. (Concorde Condominium Inc. v.
Baculio, Gr. 203678, 17 Feb. 2016)
Hence, the special commercial court has jurisdiction to try
and decide the action for specific performance and to
render a judgment therein.
Q: Hades, an American citizen, through a dating
website, got acquainted with Persephone, a Filipina.
Hades came to the Philippines and proceeded to Baguio
City where Persephone resides. Hades and Persephone
contracted marriage, solemnized by the Metropolitan
Trial Court judge of Makati City. After the wedding,
Hades flew back to California, United States of America,
to wind up his business affairs. On his return to the
Philippines, Hades discovered that Persephone had an
illicit affair with Phanes. Immediately, Hades returned
to the United States and was able to obtain a valid
divorce decree from the Superior Court of the County of
San Mateo, California, a court of competent jurisdiction
against Persephone. Hades desires to marry Hestia,
also a Filipina, whom he met at Baccus Grill in Pasay
City. (2015 BAR)
(a) As Hades’ lawyer, what petition should you file in
order that your client can avoid prosecution for
bigamy if he desires to marry Hestia?
A: As Hades’ lawyer, I would file a petition for cancellation
of entry of marriage under Rule 108 of the Rules of Court
with prayer for recognition of foreign divorce judgment. In
a case involving similar facts, the Supreme Court held that a
foreign divorce decree must first be recognized before it can
be given effect. The Supreme Court stated that the
recognition may be prayed for in the petition for
cancellation of the marriage entry under Rule 108 of the
Rules of Court. (Corpuz v. Sto. Tomas, G.R. No. 186571, 11 Aug.
2010)
(b) In what court should you file the petition?
5 UNIVERSITY OF SANTO TOMAS
A: I would file the petition in the Regional Trial Court of
Makati City, where the corresponding civil registry is
located. (Sec. 1, Rule 108, ROC, as amended)
(c) What is the essential requisite that you must
comply with for the purpose of establishing
jurisdictional facts before the court can hear the
petition?
A: For the Rule 108 petition, the jurisdictional facts are the
following:
a. Joinder of the local civil registrar and all persons who
have or claim any interest which would be affected by
petition.
b. Notice of the order of hearing to the persons named in
the petition.
c. Publication of the order of hearing in a newspaper of
general circulation in the province.
Q: Prince Chong entered into a lease contract with King
Kong over a commercial building where the former
conducted his hardware business. The lease contract
stipulated, among others, a monthly rental of
P50,000.00 for a four (4)–year period commencing on
01 Jan. 2010. On 01 Jan. 2013, Prince Chong died. Kin II
Chong was appointed administrator of the estate of
Prince Chong, but the former failed to pay the rentals
for the months of January to June 2013 despite King
Kong’s written demands. Thus, on 01 July 2013, King
Kong filed with the Regional Trial Court (RTC) an action
for rescission of contract with damages and payment of
accrued rentals as of 30 June 2013.
Can Kin II Chong move to dismiss the complaint on the
ground that the RTC is without jurisdiction since the
amount claimed is only P300,000.00? (2014 BAR)
A: NO. Kin II Chong cannot move to dismiss the Complaint.
An action for rescission of contract with damages and
payment of accrued rentals is considered incapable of
pecuniary estimation and therefore cognizable by the
Regional Trial Court. (Ceferina De Ungria v. Court of Appeals,
G.R. No. 165777, 25 July 2011)
6. FAMILY COURTS
(2015, 2001 BAR)
Q: How should the records of child and family cases in
the Family Courts or RTC designated by the Supreme
Court to handle Family Court cases be treated and dealt
with? Under what conditions may the identity of parties
in child and family cases be divulged? (2001 BAR)
A: The records of child and family cases in the Family Courts
or Regional Trial Court designated by the Supreme Court to
handle Family Court cases shall be dealt with utmost
confidentiality and shall not be divulged unless necessary
and with authority of the judge (Sec. 12, Family Courts Act
of 1997).
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Juliet invoking the provisions of the Rule on Violence
Against Women and their Children filed with the RTC
designated as a Family Court a petition for issuance of a
Temporary Protection Order (TPO) against her
husband, Romeo. The Family Court issued a 30-day TPO
against Romeo. A day before the expiration of the TPO,
Juliet filed a motion for extension. Romeo in his
opposition raised, among others, the constitutionality
of R.A. No. 9262 (The VAWC Law) arguing that the law
authorizing the issuance of a TPO violates the equal
protection and due process clauses of the 1987
Constitution. The Family Court judge, in granting the
motion for extension of the TPO, declined to rule on the
constitutionality of R.A. No. 9262. The Family Court
judge reasoned that Family Courts are without
jurisdiction to pass upon constitutional issues, being a
special court of limited jurisdiction, and R.A. No. 8369,
the law creating the Family Courts, does not provide for
such jurisdiction. Is the Family Court judge correct
when he declined to resolve the constitutionality of R.A.
No. 9262? (2015 BAR)
A: NO. The Family Court Judge is not correct when it
declined to resolve the constitutionality of R.A. No. 9262.
In Garcia v. Drilon (G.R. No. 179267, 25 June 2013) the
Supreme Court held that the Family Courts have authority
and jurisdiction to resolve the constitutionality of a statute.
In spite of its designation as a family court, the RTC remains
to possess the authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil,
criminal, special proceedings, land registration,
guardianship, naturalization, admiralty or insolvency. This
authority is embraced in the general definition of judicial
power to determine the valid and binding laws in
conformity with the fundamental law. (UPLC Suggested
Answers)
7. METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL
COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
AND MUNICIPAL CIRCUIT TRIAL COURTS
R.A. No. 11576, An Act Further Expanding
the Jurisdiction of First-Level Courts
(2014 BAR)
Q: Estrella was the registered owner of a huge parcel of
land located in a remote part of their barrio in Benguet.
However, when she visited the property after she took
a long vacation abroad, she was surprised to see that
her childhood friend, John, had established a vacation
house on her property. Both Estrella and John were
residents of the same barangay.
To recover possession, Estrella filed a complaint for
ejectment with the Municipal Trial Court (MTC),
alleging that she is the true owner of the land as
evidenced by her certificate of title and tax declaration
which showed the assessed value of the property as
P21,000.00. On the other hand, John refuted Estrella’s
claim of ownership and submitted in evidence a Deed of
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
Absolute Sale between him and Estrella. After the filing
of John’s answer, the MTC observed that the real issue
was one of ownership and not of possession. Hence, the
MTC dismissed the complaint for lack of jurisdiction.
On appeal by Estrella to the Regional Trial Court (RTC),
a full-blown trial was conducted as if the case was
originally filed with it. The RTC reasoned that based on
the assessed value of the property, it was the court of
proper jurisdiction. Eventually, the RTC rendered a
judgment declaring John as the owner of the land and,
hence, entitled to the possession thereof. (2014 BAR)
(a) Was the MTC correct in dismissing the complaint
for lack of jurisdiction? Why or why not?
A: NO. It is well settled that jurisdiction is determined by
the allegations contained in the complaint. The contention
of defendant in his Motion to Dismiss has nothing to do in
the determination of jurisdiction.
Relative thereto, the MTCs has exclusive original
jurisdiction over cases of forcible entry and unlawful
detainer (Sec. 33, B.P. 129). Hence, the MTC is not correct in
dismissing the complaint for lack of jurisdiction. At any rate,
the rules allow provisional determination of ownership in
ejectment cases when the defendant raises the defense of
ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership
(Sec. 16, Rule 70, ROC, as amended). Accordingly, the inferior
courts have jurisdiction to resolve questions of ownership
whenever it is necessary to decide the question of
possession in an ejectment case. (Serreno v. Spouses
Gutierrez, G.R. No. 162366, 10 Nov. 2006)
(b) Was the RTC correct in ruling that based on the
assessed value of the property, the case was within
its original jurisdiction and, hence, it may conduct a
full-blown trial of the appealed case as if it was
originally filed with it? Why or why not?
A: NO. It is settled that forcible entry and unlawful detainer
cases are within the exclusive original jurisdiction of the
MTC. Moreover, all cases decided by the MTC are generally
appealable to the RTC irrespective of the amounts involved.
(Sec. 22, B.P. 129)
D. ASPECTS OF JURISDICTION
(2009 BAR)
1. JURISDICTION OVER THE SUBJECT MATTER
Q: Amorsolo, a Filipino citizen permanently residing in
New York City, filed with the RTC of Lipa City a
Complaint for Rescission of Contract of Sale of Land
against Brigido, a resident of Barangay San Miguel, Sto.
Tomas, Batangas. The subject property, located in
6
 QuAMTO (1987-2022)
Barangay Talisay, Lipa City, has an assessed value of
P19,700.00. Appended to the complaint is Amorsolo’s E. JURISDICTION vs. EXERCISE OF JURISDICTION
verification and certification of non-forum shopping (2012 BAR)
executed in New York City, duly notarized by Mr. Joseph
Brown, Esq., a notary public in the State of New York.
Brigido filed a motion to dismiss the complaint on the
Q: Distinguish error of jurisdiction from error of
following grounds:
judgment. (2012 BAR)
The RTC does not have jurisdiction over the subject
matter of the action involving real property with an
A: An error of judgment is one which the court may commit
assessed value of P19,700.00; exclusive and original
in the exercise of its jurisdiction. Such an error does not
jurisdiction is with the Municipal Trial Court where
deprive the court of jurisdiction and is correctible only by
the defendant resides. Rule on the foregoing ground.
appeal; whereas an error of jurisdiction is one in which the
(2009 BAR)
court acts without or in excess of its jurisdiction. Such an
error renders an order or judgment void or voidable and is
A: The ground that the RTC does not have subject matter
correctible by the special civil action of certiorari. (Dela Cruz
jurisdiction is without merit. A complaint for rescission of a
v. Moir, G.R. No. 12256, 06 Feb. 1917; Cochingyan, Jr. v.
contract of sale is an action incapable of pecuniary
Cloribel, G.R. No. L-27070-71, 22 Apr. 1977; Fortich v. Corona,
estimation and hence within the jurisdiction of the RTC
G.R. No. 131457, 24 Apr. 1998; Artistica Ceramica, Inc. v.
pursuant to B.P. 129. (UPLC Suggested Answers)
Ciudad Del Carmen Homeowner’s Association, Inc., G.R. Nos.
167583-84, 16 June 2010)
2. JURISDICTION OVER THE PARTIES
(2009 BAR)
F. JURISDICTION vs. VENUE
Q: Amorsolo, a Filipino citizen permanently residing in (2006 BAR)
New York City, filed with the RTC of Lipa City a
Complaint for Rescission of Contract of Sale of Land
against Brigido, a resident of Barangay San Miguel, Sto.
Q: Distinguish jurisdiction from venue. (2006 BAR)
Tomas, Batangas. The subject property, located in
Barangay Talisay, Lipa City, has an assessed value of
A: Jurisdiction is the power of the Court to decide a case on
P19,700.00. Appended to the complaint is Amorsolo’s
the merits, while venue refers to the place where the suit
verification and certification of non-forum shopping
may be filed. In criminal actions, however, venue is
executed in New York City, duly notarized by Mr. Joseph
jurisdictional. Jurisdiction may not be conferred upon a
Brown, Esq., a notary public in the State of New York.
court by consent through waiver, but venue may be waived
Brigido filed a motion to dismiss the complaint on the
except in criminal cases. (Nocum, et al. v. Tan, G.R. No.
following grounds:
145022, 23 Sept. 2005; Santos III v. Northwest Airlines, G.R.
No. 101538, 23 June 1992)
The court cannot acquire jurisdiction over the person
of Amorsolo because he is not a resident of the
Philippines. Rule on the foregoing ground. (2009 BAR)
G. JURISDICTION OVER CASES COVERED
A: The first ground raised lacks merit because jurisdiction BY BARANGAY CONCILIATION, AND CASES
over the person of a plaintiff is acquired by the court upon COVERED BY THE RULES ON EXPEDITED PROCEDURES
the filing of the plaintiff’s complaint therewith. Residency or IN THE FIRST LEVEL COURTS
citizenship is not a requirement for a filing of a complaint, (A.M. No. 08-8-7-SC, as amended,
because plaintiff thereby submits to the jurisdiction of the approved on 01 Mar. 2022)
court. (UPLC Suggested Answers) (2018, 2017, 2016, 2009, 2004 BAR)

3. JURISDICTION OVER THE ISSUES

Q: Danielle, a Filipino citizen and permanent resident of
Milan, Italy, filed with the Regional Trial Court (RTC) of
4. JURISDICTION OVER THE RES Davao City, where she owns a rest house, a complaint
OR THE PROPERTY IN LITIGATION for ejectment against Dan, a resident of Barangay
Daliao, Davao City. Danielle’s property, which is located
in Digos City, Davao del Sur, has an assessed value of
PhP 25,000. Appended to the complaint was Danielle’s
certification on non-forum shopping executed in Davao
City duly notarized by Atty. Dane Danoza, a notary
public.

7 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Should the complaint be verified or is the certification
sufficient? (2018 BAR)
A: YES. Considering that the action is for unlawful detainer,
the Rules on Summary Procedure will apply. Sec. 3(B) of the
Revised Rules on Summary Procedure requires that all
pleadings submitted to the court be verified; hence, a mere
certification on non-forum shopping, the complaint being
an initiatory pleading is insufficient. (UPLC Suggested
Answers)
Q: Laura was the lessee of an apartment unit owned by
Louie. When the lease expired, Laura refused to vacate
the property. Her refusal prompted Louie to file an
action for unlawful detainer against Laura who failed to
answer the complaint within the reglementary period.
Louie then filed a motion to declare Laura in default.
Should the motion be granted? Explain your answer.
(2017 BAR)
A: NO. The motion should not be granted because it is a
prohibited pleading. Under Sec. 19(h) of the Revised Rules on
Summary Procedure, a motion to declare defendant in
default is among the pleadings that are prohibited in cases
covered by said Rule: Considering that an action for
unlawful detainer is covered by the Rules on Summary
Procedure, Louie’s motion to declare Laura in default is a
prohibited pleading, and thus, should not be granted. (UPLC
Suggested Answers)
Q: Pedro and Juan are residents of Barangay Ifurug,
Municipality of Dupaci Mountain Province. Pedro owes
Juan the amount of P50,000,00. Due to non-payment.
Juan brought his complaint to the Council of Elders of
said barangay which implements the bodong justice
system. Both appeared before the council where they
verbally agreed that Pedro will pay in installments on
specific due dates. Pedro reneged on his promise. Juan
filed a complaint for sum of money before the Municipal
Trial Court (MTC). Pedro filed a Motion to Dismiss on
the ground that the case did not pass through the
barangay conciliation under R.A. No. 7160 and that the
RTC, not the MTC, has jurisdiction. In his opposition,
Juan argued that the intervention of the Council of
Elders is substantial compliance with the requirement
of R.A. No. 7160 and the claim of P50,000.00 is clearly
within the jurisdiction of the MTC. As MTC judge, rule
on the motion and explain. (2016 BAR)
A: The Motion to Dismiss should be denied. As a general
rule, no complaint involving any matter within the authority
of the Lupon shall be instituted or filed directly in court for
adjudication, unless there has been a confrontation
between the parties in the barangay and no settlement was
reached. (Sec. 412(a), R.A. No. 7160; April Wolf, G. Martinez,
G.R. No. 162084, 28 June 2005) However, in barangays
where majority of the inhabitants are members of
indigenous cultural communities, local systems of settling
disputes through their councils of datus or elders shall be
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
recognized without prejudice to the applicable provisions
of the Local Government Code. (Sec. 399, R.A. No. 7160) As a
consequence, the customs and traditions of indigenous
cultural communities shall be applied in settling disputes
between members of the cultural communities (Sec. 412,
R.A. No. 7160); thus, the confrontation between Pedro and
Juan before the Council of Elders of their barangay is
sufficient compliance with the precondition for filing the
case in court under Sec. 412 of R.A. No. 7160. (Zamora v. Heirs
of Izguierdo, G.R. No. 146195, 18 Nov. 2004)
Be that as it may, it is well-settled that the mode of
enforcement of an amicable settlement under the
Katarungang Pambarangay Law does not rule out the right
of rescission under Art. 2041 of the Civil Code. (Crisanta
Miguel v. Montanez, G.R. No. 191336, 25 Jan. 2014)
Accordingly, Juan filed a complaint for sum of money in the
MTC, he is deemed to have rescinded the compromise
agreement reached before the Council of Elders of the
barangay. Henceforth, Pedro is incorrect in alleging that the
RTC, not the MTC has jurisdiction over Juan's claim.
Considering that the claim is only for P50,000.00, the case
is within the exclusive jurisdiction of the MTC pursuant to
R.A. No. 11576, which extended the jurisdictional amount of
MTC to P2,000,000.00.
Q: Mariano, through his attorney-in-fact, Marcos, filed
with the RTC of Baguio City a complaint for annulment
of sale against Henry. Marcos and Henry both reside in
Asin Road, Baguio City, while Mariano resides in Davao
City. Henry filed a motion to dismiss the complaint on
the ground of prematurity for failure to comply with the
mandatory barangay conciliation. Resolve the motion
with reasons. (2009 BAR)
A: The motion to dismiss should be denied because the
parties in interest, Mariano and Henry, do not reside in the
same city/municipality, or is the property subject of the
controversy situated therein. The required
conciliation/mediation before the proper Barangay as
mandated by the Local Government Code governs only
when the parties to the dispute reside in the same city or
municipality, and if involving real property, as in this case,
the property must also be situated in the same city or
municipality. (Sec. 408, Local Government Code of 1991;
UPLC Suggested Answers)
Q: Charged with the offense of slight physical injuries
under an information duly filed with the MeTC in
Manila which in the meantime had duly issued an order
declaring that the case shall be governed by the Revised
Rule on Summary Procedure, the accused filed with
said court a motion to quash on the sole ground that the
officer who filed the information had no authority to do
so. The MeTC denied the motion on the ground that it is
a prohibited motion under the said Rule. The accused
thereupon filed with the RTC in Manila a petition for
certiorari in sum assailing and seeking the nullification
of the MeTC’s denial of his motion to quash. The RTC in
due time issued an order on the ground that it is not
8
 QuAMTO (1987-2022)
allowed by the said Rule. The accused forthwith filed
with said RTC a motion for reconsideration of its said III. CIVIL PROCEDURE
order. The RTC in time denied said motion for
reconsideration on the ground that the same is also a
prohibited motion under the said Rule. Were the RTC’s
orders denying due course to the petition as well as
denying the motion for reconsideration correct? A. GENERAL PROVISIONS
Reason. (2004 BAR) (RULE 1)

A: The RTC’s orders denying due course to the petition for

certiorari as well as denying the motion for reconsideration
are both not correct. The petition for certiorari is a B. KINDS OF ACTION
prohibited pleading under Sec. 19(g) of the Revised Rule on (2016, 2009, 2006 BAR)
Summary Procedure and the motion for reconsideration,
while it is not prohibited motion (Lucas v. Fabros, A.M. No.
MTJ-99- 1226, 31 Jan. 2000, citing Joven v. Court of Appeals,
G.R. No. 80739 20 Aug. 1992), should be denied because the 1. IN REM
petition for certiorari is a prohibited pleading. (UPLC
Suggested Answers) 2. IN PERSONAM

3. QUASI IN REM
(2009, 2006 BAR)

Q: TRUE or FALSE. A suit for injunction is an action in

rem. (2009 BAR)

A: FALSE. A suit for injunction is an action in personam. In

the early case of Auyong Hian v. Court of Tax Appeals (G.R.
No. L-28782, 12 Sept. 1974), it was held that a restraining
order, like an injunction, operates upon a person. It is
granted in the exercise of equity jurisdiction and has no in
rem effect to invalidate an act done in contempt of an order
of the court except whereby statutory authorization, the
decree is so framed as to act in rem on property. (Air
Materiel Wing Savings and Loan Association, Inc. v. Manay,
G.R. No. 175338, 09 Oct. 2007)

PERSONAL ACTIONS AND REAL ACTIONS

(2016, 2006 BAR)

Q: What do you mean by a) real actions; and b) personal

action? (2006 BAR)

A: Real actions are actions affecting title to or possession of

real property or an interest therein. All other actions are
personal actions. (Sec. 1, Rule 4, ROC, as amended)

Q: Eduardo, a resident of the City of Manila, filed before

the Regional Trial Court (RTC) of Manila a complaint for
the annulment of a Deed of Real Estate Mortgage he
signed in favor of Galaxy Bank (Galaxy), and the
consequent foreclosure and auction sale on his
mortgaged Makati property. Galaxy filed a Motion to
Dismiss on the ground of improper venue alleging that
the complaint should be filed with the RTC of Makati
since the complaint involves the ownership and
possession of Eduardo’s lot. Resolve the motion with
reasons. (2016 BAR)

9 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: The motion to dismiss should be granted. An action for
nullification of the mortgage documents and foreclosure of
the mortgaged property is a real action that affects the title
to the property; thus, venue of the real action is before the
court having jurisdiction over the territory in which the
property lies. (Chua v. Total Office Products and Services, G.R.
152808, 30 Sept. 2005)
Being a real action, it shall be commenced and tried in the
proper court which has jurisdiction over the area where the
real property involved, or a portion thereof, is situated. (Sec.
1, Rule 4, ROC, as amended) Consequently, the complaint
should be filed in the RTC of Makati where the mortgaged
property is situated.
ALTERNATIVE ANSWER:
The motion to dismiss should be denied. An action for the
annulment of a real estate mortgage is a personal action,
which may be commenced and tried where the defendant
or any of the defendants resides or may be found, or where
the plaintiff or any of the plaintiffs resides or may be found,
at the election of plaintiff. (Sec. 2, Rule 4, ROC, as amended;
Chua v. Total Office Products & Services, 30 Sept. 2005;
Orbeta v. Orbeta, G.R. No. 166837, 27 Nov. 2006) Since the
plaintiff resides in Manila, the complaint was properly filed
in the RTC of Manila.
C. CAUSE OF ACTION
(RULE 2)
(2022, 2019, 2017, 2005, 2002, 2000, 1999, 1997 BAR)
Q: Distinguish Cause of Action from Action. (1999, 1997
BAR)
A: An action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or
redress of a wrong (Sec. 3(a), Rule 2, ROC, as amended). A
cause of action is the act or omission by which a party
violates a right of another (Sec. 2, Rule 2, ROC, as amended).
An action must be based on a cause of action (Sec. 1, Rule 2,
ROC, as amended)
Q: A bought a Volvo Sedan from ABC Cars for P 5.0M.
ABC Cars, before delivering to A, had the car rust-
proofed and tinted by XYZ Detailing. When delivered to
A, the car’s upholstery was found to be damaged. ABC
Cars and XYZ Detailing both deny any liability. Who can
A sue and on what cause(s) of action? Explain. (2012
BAR)
A: A can file an action for specific performance and damages
against ABC Cars since the damage to the Volvo sedan’s
upholstery was caused before delivery of the same to A, and
therefore prior to the transfer of ownership to the latter
(Article 1477, NCC). Under Article 1170 of the Civil Code,
those who contravene the tenor of the obligation are liable
for damages. Hence, an action for specific performance
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
against ABC Corporation to deliver the agreed Volvo Sedan
in the contract free from any damage or defects, with
corresponding damages will lie against ABC Cars.
Q: Mr. C sued Mr. D for reconveyance of property and
damages, claiming that Mr. D, through fraud and
forgery, was able to obtain the title to Lot No. 1234,
which was previously registered in Mr. C's name. The
complaint was filed before the Regional Trial Court.
Instead of filing an answer, Mr. D moved to dismiss the
complaint on the ground of lack of cause of action. In
opposition, Mr. C argued that lack of cause of action is
not a ground for a motion to dismiss as the ground
provided under Section 1(g), Rule 16 of the Rules of
Court is failure to state a cause of action.
Distinguish the concepts of lack of cause of action and
failure to state a cause of action. Based on this
distinction, is Mr. C's opposition tenable? Explain.
(2019 BAR)
A: Mr. C’s opposition is tenable because the ground of lack
of cause of action is not among the grounds for a motion to
dismiss under Sec. 1(g), Rule 76 of the Rules of Court. Lack of
cause of action is different from failure to state cause of
action.
Jurisprudence provides that failure to state a cause of action
and lack of cause of action are distinct grounds to dismiss a
particular action. The former refers to the insufficiency of
the allegations in the pleading, while the latter to the
insufficiency of the factual basis for the action. Dismissal for
failure to state a cause of action may be raised at the earliest
stages of the proceedings through a motion to dismiss
under Rule 16 of the Rules of Court, while dismissal for lack
of cause of action may be raised any time after the questions
of fact have been resolved on the basis of stipulations,
admissions or evidence presented by the plaintiff.
(Westmont Bank v. Funai Philippines Corporation, G.R. No.
175733, 08 July 2015)
SPLITTING A SINGLE CAUSE OF ACTION
AND ITS EFFECTS
(2022, 2017, 2005, 2002, 2000, 1999 BAR)
Q: What is the rule against splitting a cause of action and
its effect on the respective rights of the parties for
failure to comply with the same? (1999 BAR)
A: The rule against splitting a cause of action and its effect
is that if two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment upon
the merits in any one is available as a ground for the
dismissal of the others (Sec. 4, Rule 2, ROC, as amended).
Q: Elise obtained a loan of P3 Million from Merchant
Bank. Aside from executing a promissory note in favor
of Merchant Bank, she executed a deed of real estate
mortgage over her house and lot as security for her
10
 QuAMTO (1987-2022)
obligation. The loan fell due but remained unpaid;
hence, Merchant Bank filed an action against Elise to
foreclose the real estate mortgage. A month after, and
while the foreclosure suit was pending, Merchant Bank
also filed an action to recover the principal sum of P3
Million against Elise based on the same promissory
note previously executed by the latter. In opposing the
motion of Elise to dismiss the second action on the
ground of splitting of a single cause of action, Merchant
Bank argued that the ground relied upon by Elise was
devoid of any legal basis considering that the two
actions were based on separate contracts, namely, the
contract of loan evidenced by the promissory note, and
the deed of real estate mortgage. Is there a splitting of
a single cause of action? Explain your answer. (2017
BAR)
A: YES. There is a splitting of a cause of action. A creditor
cannot file a civil action against the debtor for collection of
the debt and subsequently file an action to foreclose the
mortgage. This is an example of splitting a single cause of
action, a practice that is vexatious and oppressive. (Danao v.
Court of Appeals, G.R. No. L-48276, 06 June 2001)
Q: Raphael, a warehouseman, filed a complaint against
V Corporation, X Corporation, and Y Corporation to
compel them to interplead. He alleged therein that the
three corporations claimed title and right of possession
over the goods deposited in his warehouse and that he
was uncertain which of them was entitled to the goods.
After due proceedings, judgment was rendered by the
court declaring that X Corporation was entitled to the
goods. The decision became final and executory.
Raphael filed a complaint against X Corporation for the
payment of P100,000.00 for storage charges and other
advances for the goods. X Corporation filed a motion to
dismiss the complaint on the ground of res judicata. X
Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his
claim for storage fees and advances that for his failure
he was barred from interposing his claim. Raphael
replied that he could not have claimed storage fees and
other advances in his complaint for interpleader
because he was not yet certain as to who was liable
therefor. Resolve the motion with reasons. (2005 BAR)
A: The motion to dismiss should be granted. Raphael should
have incorporated in his complaint for interpleader his
claim for storage fees and advances, the amounts of which
were obviously determinable at the time of the filing of the
complaint. They are part of Raphael’s cause of action which
he may not split. Hence, when the warehouseman asks the
court to ascertain who among the defendants are entitled to
the goods, he also has the right to ask who should pay for
the storage fees and other related expenses. The filing of the
interpleader is available as a ground for dismissal for the
second case. (Sec. 4, Rule 2, ROC, as amended). It is akin to a
compulsory counterclaim which, if not set up, shall be
barred (Sec. 2, Rule 9, ROC, as amended; Arreza v. Diaz, G.R.
No. 133113, 30 Aug. 2001)
11
Q: Jimuel filed against his wife Jewel a petition for the
declaration of nullity of their marriage, alleging as
ground therefor Jewel's psychological incapacity under
Article 36 of the Family Code. The court denied the
petition for insufficiency of the evidence presented at
the trial. Much later, Jimuel again filed a petition
against Jewel for the declaration of nullity of their
marriage. This time, the basis of Jimuel’s petition was
the absence of a marriage license at the time their
marriage was celebrated. Upon Jewel's motion, the
court dismissed the petition on the ground of res
judicata by virtue of the judgment in the first suit.
Was the denial of the petition on the ground of res
judicata proper? Explain briefly. (2022 BAR)
A: Yes, the denial of the petition on the ground of res
judicata was proper. Under the Rules of Civil Procedure on
res judicata, a judgment is conclusive not only with respect
to the matter directly adjudged but also as to any other
matter that could have been raised in relation thereto. (Sec.
47(b), Rule 39, ROC, as amended)
Here, the ground of lack of a marriage license could have
been raised by Jimuel in the first petition for declaration of
nullity of marriage. Not having been so raised, the judgment
in the first case was conclusive as to the validity of the
marriage. (Mallion v. Alcantara, G.R. No. 141528, 31 Oct.
2006) Hence, the denial of the petition on the ground of res
judicata was proper.
Q: AB, as mother and in her capacity as legal guardian
of her legitimate minor son, CD, brought action for
support against EF, as father of CD and AB’s lawfully
wedded husband. EF filed his answer denying his
paternity with counterclaim for damages.
Subsequently, AB filed a manifestation in court that in
view of the denial made by EF, it would be futile to
pursue the case against EF. AB agreed to move for the
dismissal of the complaint, subject to the condition that
EF will withdraw his counterclaim for damages. AB and
EF filed a joint motion to dismiss. The court dismissed
the case with prejudice. Later on, minor son CD,
represented by AB, filed another complaint for support
against EF. EF filed a motion to dismiss on the ground
of res judicata. Is res judicata a valid ground for
dismissal of the second complaint? Explain your
answer. (2000 BAR)
A: NO. Res judicata is not a defense in an action for support
even if the first case was dismissed with prejudice on a joint
motion to dismiss. The plaintiff’s mother agreed to the
dismissal of the complaint for support in view of the
defendant’s answer denying his paternity with
counterclaim for damages. This was in the nature of a
compromise of the right to support which is prohibited by
law. (Art, 2035, NCC; De Asis v. Court of Appeals, G.R. No.
127578, 15 Feb. 1999)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Rolando filed a petition for declaration of the nullity
of his marriage to Carmela because of the alleged
psychological incapacity of the latter. After trial, the
court rendered judgment dismissing the petition on the
ground that Rolando failed to prove the psychological
incapacity of his wife. The judgment having become
final, Rolando filed another petition, this time on the
ground that his marriage to Carmela had been
celebrated without a license. Is the second action
barred by the judgment in the first? Why? (2002 BAR)
A: NO. The second action is not barred by the judgment in
the first because they are different causes of action. The first
is for annulment of marriage on the ground of psychological
incapacity under Art. 36 of the Family Code, while the second
is for the declaration of nullity of the marriage in view of the
absence of a basic requirement, which is a marriage license.
(Arts. 9 & 35(3), FC) They are different causes of action
because the evidence required to prove them are not the
same. (Pagsisihan v. CA, G.R. No. L-34885, 28 Jan. 1980)
Q: A purchased a lot from B for P1,500,000.00. He gave
a down payment of P500,000.00, signed a promissory
note payable thirty days after date, and as a security for
the settlement of the obligation, mortgaged the same lot
to B. When the note fell due and A failed to pay, B
commenced suit to recover from A the balance of
P1,000,000.00. After securing a favorable judgment on
his claim, B brought another action against A before the
same court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground of
bar by prior judgment. Rule on the Motion. (1999 BAR)
A: The motion to dismiss should be granted. When B
commenced suit to collect on the promissory note, he
waived his right to foreclose the mortgage. B split his cause
of action. (UPLC Suggested Answers)
JOINDER AND MISJOINDER OF CAUSES OF ACTION
(2005, 1999 BAR)
Q: What is the rule on joinder of causes of action? (1999
BAR)
A: The rule on joinder of causes of action is that a party may
in one pleading assert, in the alternative or otherwise, as
many causes of action as he may have against an opposing
party, provided that the rule on joinder of parties is
complied with; the joinder shall not include special civil
actions or actions governed by special rules, but may
include causes of action pertaining to different venues or
jurisdictions provided one cause of action falls within the
jurisdiction of a Regional Trial Court and venue lies therein;
and the aggregate amount claimed shall be the test of
jurisdiction where the claims in all the causes of action are
principally for the recovery of money. (Sec. 5, Rule 2, ROC, as
amended)
Q: Give the effects of the following: (1998 BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
(a) Splitting a single cause of action; and
A: The effect of splitting a single cause of action is found in
the rule as follows: If two or more suits are instituted on the
basis of the same cause of action, the filing of one or a
judgment on the merits in any one is available as a ground
for the dismissal of the others. (Sec. 4, Rule 2, ROC, as
amended)
(b) Non-joinder of a necessary party.
A: The effect of the non-joinder of a necessary party may be
stated as follows: The court may order the inclusion of an
omitted necessary party if jurisdiction over his person may
be obtained. The failure to comply with the order for his
inclusion without justifiable cause is a waiver of the claim
against such party. The court may proceed with the action,
but the judgment rendered shall be without prejudice to the
rights of such necessary party. (Sec. 9, Rule 3, ROC, as
amended)
Q: Perry is a resident of Manila, while Ricky and Marvin
are residents of Batangas City. They are the co-owners
of a parcel of residential land located in Pasay City with
an assessed value of P100,000.00. Perry borrowed
P100,00.00 from Ricky which promised to pay on or
before December 1, 2004. However, Perry failed to pay
his loan. Perry also rejected Ricky and Marvin’s
proposal to partition the property. Ricky filed a
complaint against Perry and Marvin in the RTC of Pasay
City for the partition of the property. He also
incorporated in his complaint his action against Perry
for the collection of the latter’s P100,000.00 loan, plus
interests and attorney’s fees. State with reasons
whether it was proper for Ricky to join his causes of
action in his complaint for partition against Perry and
Marvin in the RTC of Pasay City. (2005 BAR)
A: It was not proper for Ricky to join his causes of action
against Perry in his complaint for partition against Perry
and Marvin. The causes of action may be between the same
parties, Ricky and Perry, with respect to the loan but not
with respect to the partition which includes Marvin.
Moreover, the supposed joinder includes a special civil
action, thus, not allowed under Sec. 5(b), Rule 2 of the Rules
of Court. (UPLC Suggested Answers)
Q: A secured two loans from B. One for P500,000.00 and
the other for P1,000,000, payable on different dates.
Both have fallen due. Is B obliged to file only one
complaint against A for the recovery of both loans?
Explain. (1999 BAR)
A: NO. Joinder is only permissive since the loans are
separate loans which may be governed by different terms
and conditions. The two loans give rise to two separate
causes of action and may be the basis of two separate
complaints. (UPLC Suggested Answers)
12
 QuAMTO (1987-2022)
(b) If the case should proceed to trial without Grieg
D. PARTIES TO CIVIL ACTIONS being impleaded as a party to the case, what is his
(RULE 3) remedy to protect his interest? (2015 BAR)
(2019, 2017, 2016, 2015, 2014, 2008, 2002, 2000,
1999, 1998 BAR) A: If the case should proceed to trial without Grieg being
impleaded as a party, he may intervene in the action (Sec. 1,
Rule 19, ROC, as amended). He may also file a petition for
annulment of judgment under Rule 46 of the Rules of Court,
REAL PARTIES-IN-INTEREST; INDISPENSABLE
should a judgment be already rendered.
PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
In Metrobank v. Hon. Floro Alejo, (G.R. No. 141970, 10 Sept.
ALTERNATIVE DEFENDANTS
2001) the Supreme Court held that in a suit to nullify an
(2016, 2015, 2008, 2005, 2002 BAR)
existing Torrens Certificate of Title (TCT) in which a real
estate mortgage is annotated, the mortgagee is an
Q: Spouses Marlon and Edith have three (3) children
indispensable party. In such suit, a decision cancelling the
ages 15, 12, and 7, who are studying at public schools.
TCT and the mortgage annotation is subject to a petition for
They have a combined gross monthly income of
annulment of judgment, because the non-joinder of a
P30,000.00 and they stay in an apartment in Manila
mortgagee deprived the court of jurisdiction to pass upon
with a monthly rent of P5,000.00. The monthly
the controversy. (UPLC Suggested Answers)
minimum wage per employee in Metro Manila does not
exceed P13,000.00. They do not own any real property.
Q: X was driving the dump truck of Y along Cattleya
The spouses want to collect a loan of P25,000.00 from
Street in Sta. Maria, Bulacan. Due to his negligence, X hit
Jojo but do not have the money to pay the filing fees.
and injured V who was crossing the street. Lawyer L,
(2016 BAR)
who witnessed the incident, offered his legal services to
V. V, who suffered physical injuries including a
(a) Would the spouses qualify as indigent litigants
fractured wrist bone, underwent surgery to screw a
under Section 19, Rule 141 on Legal Fees?
metal plate to his wrist bone. On the complaint of V, a
criminal case for Reckless Imprudence Resulting in
A: NO. The spouses would not qualify as indigent litigants
Serious Physical Injuries was filed against X before the
under Sec. 19, Rule 141 of the Rules of Court since their
Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the
combined gross monthly income of P30,000.00 exceeds
private prosecutor, did not reserve the filing of a
P26,000, the amount double the monthly minimum wage.
separate civil action. V subsequently filed a complaint
(UPLC Suggested Answers)
for Damages against X and Y before the Regional Trial
Court of Pangasinan in Urdaneta where he resides. In
(b) If the spouses do not qualify under Rule 141, what
his "Certification Against Forum Shopping," V made no
other remedy can they avail of under the rules to
mention of the pendency of the criminal case in Sta.
exempt them from paying the filing fees?
Maria.

A: The other remedy the spouses can avail of under the

Suppose only X was named as defendant in the
rules to exempt them from paying the filing fees is to apply
complaint for damages, may he move for the dismissal
for an exemption pursuant to the “indigency test” under Sec.
of the complaint for failure of V to implead Y as an
21, Rule 3 of the Rules of Court if they can prove that they
indispensable party? (2010 BAR)
have no money or property sufficient and available for food,
shelter and basic necessities for themselves and their
A: NO. X may not move for dismissal of the civil action for
family. (Sps. Algura v. City of Naga, 30 Oct. 2006)
damages on the contention that Y is an indispensable party
who should be impleaded. Y is not an indispensable party
Q: Strauss filed a complaint against Wagner for
but only a necessary party. At any rate, nonjoinder and
cancellation of title. Wagner moved to dismiss the
misjoinder of parties is not a ground for dismissal of actions.
complaint because Grieg, to whom he mortgaged the
(Sec. 11, Rule 3, ROC, as amended)
property as duly annotated in the TCT, was not
impleaded as defendant.
Q: Half-brothers Roscoe and Salvio inherited from their
father a vast tract of unregistered land. Roscoe
(a) Should the complaint be dismissed?
succeeded in gaining possession of the parcel of land in
its entirety and transferring the tax declaration
A: NO. The complaint should not be dismissed because the
thereon in his name. Roscoe sold the northern half to
mere non-joinder of an indispensable party is not a ground
Bono, Salvio's cousin. Upon learning of the sale, Salvio
for the dismissal of the action. (Sec. 11, Rule 3, ROC, as
asked Roscoe to convey the southern half to him.
amended; Republic v. Hon. Mangotara, G.R. No. 170375, 07
Roscoe refused as he even sold one-third of the
July 2010)
southern half along the West to Carlo. Thereupon,
Salvio filed an action for the reconveyance of the

13 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
southern half against Roscoe only. Carlo was not
impleaded. After filing his answer, Roscoe sold the
middle third of the southern half to Nina. Salvio did not
amend the complaint to implead Nina. After trial, the
court rendered judgment ordering Roscoe to reconvey
the entire southern half to Salvio. The judgment
became final and executory. A writ of execution having
been issued, the Sheriff required Roscoe, Carlo and Nina
to vacate the southern half and yield possession thereof
to Salvio as the prevailing party. Carlo and Nina refused,
contending that they are not bound by the judgment as
they are not parties to the case. Is the contention
tenable? Explain fully. (2008 BAR)
A: YES. In case of transfer of interest pending litigation, the
action may be continued by or against the original party
unless the court, upon motion, directs a person to be
substituted in the action or joined with the original party
(Sec. 19, Rule 3, ROC, as amended). The owners of property
over which reconveyance is asserted are indispensable
parties and must be joined in the action. Accordingly, the
contention of Carlo who is such party to the action filed by
Salvio, is tenable. He is not bound by the judgment because
he became a co-owner of the land before the case was filed
and yet he has not been included as a party thereto.
(Matuguina Integrated Wood Products, Inc. v. Court of
Appeals, G.R. No. 98310, 23 Oct. 1996; Ma. Valentia Santana-
Cruz v. Court of Appeals, G.R. No. 120176, 20 July 2001) Nina,
however, is a successor-in-interest of Roscoe and privy to
the case. Hence, she is bound by the judgment as against
Roscoe although she is not a party to the case. (Sec. 19, Rule
3, ROC, as amended; Cabresos v. Tero, G.R. No. L-46843, 18
Oct. 1988) A judgment is conclusive between the parties and
their successors-in-interest by title subsequent to the case.
(Sec. 47, Rule 39, ROC, as amended)
Q: In 1996, Congress passed Republic Act No. 8189,
otherwise known as the Voter’s Registration Act of
1996, providing for the computerization of elections.
Pursuant thereto, the COMELEC approved the Voter’s
Registration and Identification System (VRIS) Project. It
issued invitations to pre-qualify and bid for the project.
After the public bidding, Fotokina was declared the
winning bidder with a bid of P6 Billion and was issued
a Notice of Award. But COMELEC Chairman Gener Go
objected to the award on the ground that under the
Appropriations Act, the budget for the COMELEC’s
modernization is only P1 Billion. He announced to the
public that the VRIS project has been set aside. Two
Commissioners sided with Chairman Go, but the
majority voted to uphold the contract. Meanwhile,
Fotokina filed with the RTC a petition for mandamus to
compel the COMELEC to implement the contract. The
Office of the Solicitor General (OSG), representing
Chairman Go, opposed the petition on the ground that
mandamus does not lie to enforce contractual
obligations. During the proceedings, the majority of the
Commissioners filed a manifestation that Chairman Go
was not authorized by the COMELEC En Banc to oppose
the petition. May the OSG represent Chairman Go
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
before the RTC notwithstanding that his position is
contrary to that of the majority? (2002 BAR)
A: YES. The OSG may represent the COMELEC Chairman
before the RTC notwithstanding that his position is contrary
to that of the majority of the Commission members in the
COMELEC. Being an independent office, the hands of the
OSG are not shackled to the cause of its client agency. In the
discharge of its task, the primordial concern of the OSG is to
see to it that the best interest of the government is upheld.
This is regardless of the fact that what it perceived as the
“best interest of the government” runs counter to its client
agency’s position. (COMELEC v. Quijano-Padilla, G.R. No.
151992, 18 Sept. 2002)
MISJOINDER AND NON-JOINDER OF PARTIES
(2019, 2017 BAR)
Q: Ms. A filed a complaint for damages against Ms. B,
alleging that Ms. B negligently caused the demolition of
her house's concrete fence, the top half of which fell on
the front portion of Ms. A’s car and permanently
damaged its engine. In her answer, Ms. B denied any
personal liability for the damage caused to Ms. A's car,
averring that she merely acquiesced to the advice of her
contractor, XYZ Construction Co., to have the concrete
fence demolished. Thus, damages, if any, should be
collected from it.
Thereafter, Ms. A filed a motion for judgment on the
pleadings, alleging that Ms. B's statement in her answer
is actually a negative pregnant. Ms. B opposed the
motion, reiterating her defense in her answer which
purportedly rendered judgment on the pleadings
improper. Ms. B also moved for the dismissal of the case
on the ground of non-joinder of XYZ Construction Co.,
which she alleged is an indispensable party to the case.
Assuming that XYZ Construction Co. is an indispensable
party, is its non-joinder a ground for the dismissal of
the case? Explain. (2019 BAR)
A: NO. The non-joinder of XYZ Construction Co. as an
indispensable party is not a ground for the dismissal of the
case. The remedy is to implead the party claimed to be
indispensable, considering that the parties may be added by
order of the court, on motion of the party, or on its own
initiative at any stage of the action. The non-joinder of
indispensable parties is not a ground for the dismissal of an
action. (Plasabas v. CA, G.R. No. 166519, 31 Mar. 2009)
Q: Hanna, a resident of Manila, filed a complaint for the
partition of a large tract of land located in Oriental
Mindoro. She impleaded her two brothers John and
Adrian as defendants but did not implead Leica and
Agatha, her two sisters who were permanent residents
of Australia. Arguing that there could be no final
determination of the case without impleading all
14
 QuAMTO (1987-2022)
indispensable parties, John and Adrian moved to
dismiss the complaint.
Does the trial court have a reason to deny the motion?
Explain your answer. (2017 BAR)
A: YES. The trial court has reason to deny the motion. Sec.
11, Rule 3 of the Rules of Court states that neither misjoinder
nor non-joinder of parties is a ground for the dismissal of an
action. The petitioner can still amend his initiatory pleading
in order to implead Leica and Agatha, for under the same
rule, such amendment to implead an indispensable party
may be made on motion of any party or on the trial court’s
own initiative at any stage of the action and on such terms
as are just. (Ablaza v. Republic; G.R. No. 158298, 11 Aug.
2010)
CLASS SUIT
(2005 BAR)
Q: Distinguish a derivative suit from a class suit. (2005
BAR)
A: A derivative suit is a suit in equity that is filed by a
minority shareholder on behalf of a corporation to redress
wrongs committed against it, for which the directors refuse
to sue, the real party in interest being the corporation itself.
(Lim v. Lim-Yu, G.R. No. 138343, 19 Feb. 2001) A class suit is
filed on behalf of many persons so numerous that it is
impracticable to join all as parties. (Sec. 12, Rule 3, ROC, as
amended)
EFFECT OF DEATH OF PARTY-LITIGANT
(2016, 2014, 2000, 1999, 1998 BAR)
Q: What is the effect of the death of a party upon a
pending action? (1999 BAR)
A: When the claim in a pending action is purely personal,
the death of either of the parties extinguishes the claim and
the action is dismissed. When the claim is not purely
personal and is not thereby extinguished, the party should
be substituted by his heirs or his executor or administrator
(Sec. 16, Rule 3, ROC, as amended). If the action is for
recovery of money arising from contract, express or
implied, and the defendant dies before entry of final
judgment in the court in which the action was pending at
the time of such death, it shall not be dismissed but shall
instead be allowed to continue until entry of final judgment.
A favorable judgment obtained by the plaintiff shall be
enforced in the manner provided in the rules for
prosecuting claims against the estate of a deceased person.
(Sec. 20, Rule 3, ROC, as amended)
Q: Chika sued Gringo, a Venezuelan, for a sum of money.
The Metropolitan Trial Court of Manila (MeTC)
rendered a decision ordering Gringo to pay Chika
P50,000.00 plus legal interest. During the pendency of
the appeal before the RTC, Gringo died of acute
hemorrhagic pancreatitis. Atty. Perfecto, counsel of
Gringo, filed a manifestation attaching the death
15
certificate of Gringo and informing the RTC that he
cannot substitute the heirs since Gringo did not disclose
any information on his family. As counsel for Chika,
what remedy can you recommend to your client so the
case can move forward, and she can eventually recover
her money? Explain. (2016 BAR)
A: The remedy I can recommend to my client Chika is to
procure the appointment of an executor or administrator
for the estate of Gringo in accordance with Sec. 16, Rule 3 of
the Rules of Civil Procedure. Chika as a creditor is an
interested person who can file the petition for settlement of
Gringo’s estate. Once the executor or administrator is
appointed, the action shall be allowed to continue until
entry of final judgment. A favorable judgment obtained by
the plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting claims
against the estate of a deceased person. (Sec. 20, Rule 3, ROC,
as amended; UPLC Suggested Answers)
Q: Prince Chong entered into a lease contract with King
Kong over a commercial building where the former
conducted his hardware business. The lease contract
stipulated, among others, a monthly rental of
P50,000.00 for a four (4)–year period commencing on
01 Jan. 2010. On 01 Jan. 2013, Prince Chong died. Kin II
Chong was appointed administrator of the estate of
Prince Chong, but the former failed to pay the rentals
for the months of January to June 2013 despite King
Kong’s written demands. Thus, on 01 July 2013, King
Kong filed with the Regional Trial Court (RTC) an action
for rescission of contract with damages and payment of
accrued rentals as of 30 June 2013.
If the rentals accrued during the lifetime of Prince
Chong, and King Kong also filed the complaint for sum
of money during that time, will the action be
dismissible upon Prince Chong’s death during the
pendency of the case? (2014 BAR)
A: NO. The action will not be dismissible upon Prince
Chong’s death during the pendency of the case. When the
action is for recovery of money arising from contract, and
defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it
shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment
obtained by the plaintiff shall be enforced under Rule 86
(Sec. 20, Rule 3, ROC, as amended). Relative thereto, since the
complaint for sum of money filed by King Kong survives the
death of Prince Chong, the case shall not be dismissed and
the Court shall merely order the substitution of the
deceased defendant. (Sarsaba v. Vda. De Te, G.R. No. 175910,
30 July 2009)
Q: PJ engaged the services of Atty. ST to represent him
in a civil case filed by OP against him which was
docketed as Civil Case No. 123. A retainership
agreement was executed between PJ and Atty. ST
whereby PJ promised to pay Atty. ST a retainer sum of
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
P24,000.00 a year and to transfer the ownership of a
parcel of land to Atty. ST after the presentation of PJ’s E. VENUE
evidence. PJ did not comply with his undertaking. Atty. (RULE 4)
ST filed a case against PJ which was docketed as Civil (2022, 2017, 2015, 2008, 1997 BAR)
Case No. 456. During the trial of Civil Case No. 456, PJ
died. (2000 BAR)

Q: Lebron, a Makati resident, obtained a PhP

(a) Is the death of PJ a valid ground to dismiss the
350,000.00 loan from a bank secured by a real estate
money claim of Atty. ST in Civil Case No. 456?
mortgage (REM) over his lot located in Quezon City with
Explain.
an assessed value of PhP 500,000.00. Lebron failed to
pay despite written demands. The bank intends to file
A: NO. Under Sec. 20, Rule 3 of the Rules of Court, when the
an action for judicial foreclosure of the REM.
action is for recovery of money arising from contract,
express or implied, and the defendant dies before entry of
Where should the action for judicial foreclosure of the
final judgment in the court in which the action is pending at
REM be filed and in which court? Explain briefly. (2022
the time of such death, it shall not be dismissed but shall
BAR)
instead be allowed to continue until entry of final judgment.
A favorable judgment obtained by the plaintiff shall be
A: The action for judicial foreclosure should be filed in
enforced in the manner especially provided in the Rules for
Quezon City and with the Regional Trial Court (RTC). Under
prosecuting claims against the estate of the deceased
the Rules of Civil Procedure, the venue of a real action is in
person. (UPLC Suggested Answers)
the proper court which has jurisdiction over the area
wherein the real property is situated. (Sec. 1, Rule 4, ROC, as
(b) Will your answer be the same with respect to the
amended)
real property being claimed by Atty. ST in Civil Case
No. 456? Explain.
Here, the action is one for judicial foreclosure which is a real
action as held by the Supreme Court. (Roldan v. Barrios, G.R.
A: YES. An action to recover real property in any event
No. 214803, 23 Apr. 2018) The land or real property is
survives the death of the defendant (Sec. 1, Rule 87, ROC, as
situated in Quezon City. Hence, the venue is laid in Quezon
amended). However, a favorable judgment may be enforced
City and the action should be filed there.
in accordance with Sec. 7(b), Rule 39 of the Rules of Court
against the executor or administrator or successor in
The action should be filed with the RTC. Under B.P. Big. 129,
interest of the deceased. (Ibid.)
the RTC has jurisdiction over real actions wherein the
assessed value of the real property involved exceeds
Q: A filed a complaint for the recovery of ownership of
PS0,000. Hence, the RTC has jurisdiction over the action for
land against B who was represented by her counsel X.
judicial foreclosure. (Riguera, 2023)
In the course of the trial, B dies. However, X failed to
notify the court of B’s death. The court proceeded to
Q: Water Builders, a construction company based in
hear the case and rendered judgment against B. After
Makati City, entered into a construction agreement
the judgment became final, a writ of execution was
with Super Powers, Inc., an energy company based in
issued against C, who being B’s sole heir, acquired the
Manila, for the construction of a mini hydroelectric
property. If you were the counsel of C, what course of
plant. Water Builders failed to complete the project
action would you take? (1998 BAR)
within the stipulated duration. Super Powers canceled
the contract. Water Builders filed a request for
A: As counsel of C, I would move to set aside the writ of
arbitration with the Construction Industry Arbitration
execution and the judgment for lack of jurisdiction and lack
Commission (CIAC). After due proceedings, CIAC
of due process in the same court because the judgment is
rendered judgment in favor of Super Powers, Inc.
void. If X had notified the court of B’s death, the court would
ordering Water Builders to pay the former P 10 million,
have ordered the substitution of the deceased by C, the sole
the full amount of the down payment paid, and P2
heir of B (Sec. 16, Rule 3, ROC, as amended). The court
million by way of liquidated damages. Dissatisfied with
acquired no jurisdiction over C upon whom trial and the
the CIAC's judgment, Water Builders, pursuant to the
judgment are not binding (Ferreria v. Ibarra Vda. De
Special Rules of Court on Alternative Dispute
Gonzales, G.R. No. L-11567, 17 July 1958; Vda. De la Cruz v.
Resolution (ADR Rules) filed with the RTC of Pasay City
Court of Appeals, G.R. No. L-41107, 28 Feb. 1979; Lawas v.
a petition to vacate the arbitral award. Super Powers,
Court of Appeals, G.R. No. L-45809 12 Dec. 1986). I could also
Inc., in its opposition, moved to dismiss the petition,
file an action to annul the judgment for lack of jurisdiction
invoking the ADR Rules, on the ground of improper
because C, as the successor of B, was deprived of due
venue as neither of the parties were doing business in
process and should have been heard before judgment. (Rule
Pasay City. Should Water Builders' petition be
47, ROC, as amended)
dismissed? (2015 BAR)

UNIVERSITY OF SANTO TOMAS 16

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
A: YES. The petition should be dismissed. Under Rule 11.3
of the Special ADR Rules, the petition for vacation of a
domestic arbitral award may be filed with the Regional Trial
Court having jurisdiction over the place in which one of the
parties is doing business, where any of the parties reside or
where arbitration proceedings were conducted. Here
neither of the parties were doing business in Pasay City nor
was there a showing that arbitration proceedings were
conducted in Pasay City. (UPLC Suggested Answers)
Q: A law was passed declaring Mt. Karbungko as a
protected area since it was a major watershed. The
protected area covered a portion located in
Municipality A of the Province I and a portion located in
the City of Z of Province II. Maingat is the leader of
Samahan ng Tagapag-ingat ng Karbungko (STK), a
people's organization. He learned that a portion of the
mountain located in the City of Z of Province II was
extremely damaged when it was bulldozed and leveled
to the ground, and several trees and plants were cut
down and burned by workers of World Pleasure
Resorts, Inc. (WPRI) for the construction of a hotel and
golf course. Upon inquiry with the project site engineer
if they had a permit for the project, Maingat was shown
a copy of the Environmental Compliance Certificate
(ECC) issued by the DENR-EMB, Regional Director (RD-
DENR-EMB). Immediately, Maingat and STK filed a
petition for the issuance of a writ of continuing
mandamus against RD-DENR-EMB and WPRI with the
RTC of Province I, a designated environmental court, as
the RD-DENR-EMB negligently issued the ECC to WPRI.
On scrutiny of the petition, the court determined that
the area where the alleged actionable neglect or
omission subject of the petition took place in the City of
Z of Province II, and therefore cognizable by the RTC of
Province II. Thus, the court dismissed outright the
petition for lack of jurisdiction.
Was the court correct in motu proprio dismissing the
petition? (2015 BAR)
A: NO. The court was not correct in motu propio dismissing
the petition. While it appears that the alleged actionable
neglect or omission took place in the City of Z of Province II
and, therefore, cognizable by the RTC of Province II,
nonetheless, venue is not jurisdictional, and it can be
waived in a special civil action for continuing mandamus.
(Dolot v. Hon. Paje, G.R. No. 199199 12 Aug. 2013)
Besides, under Section 1, Rule 9 of the Rules of Court,
defenses and objections not pleaded in the answer or in the
motion to dismiss are deemed waived. Hence, the court
cannot motu propio dismiss the case on the ground of
improper venue.
Q: Angela, a resident of Quezon City, sued Antonio, a
resident of Makati City before the RTC of Quezon City
for the reconveyance of two parcels of land situated in
Tarlac and Nueva Ecija, respectively. May her action
prosper? Assuming that the action was for foreclosure
17
on the mortgage of the same parcels of land, what is the
proper venue for the action? (2008 BAR)
A: YES. The action may prosper because improper venue
can be waived, and there appears to be no objection from
the defendant. An action for reconveyance of parcels of land
partakes of an action to recover title to or possession of such
land; hence, a real action should be filed in the place where
the parcels of land are situated in Tarlac and Nueva Ecija.
If the action was for foreclosure of mortgage, the action may
be filed either in Tarlac or Nueva Ecija where any of the
parcels of land is situated. Only one action for foreclosure
needs to be filed as only one contract had been instituted.
(BPI. v. Green, G.R. No. 35125, 12 Dec. 1932)
EFFECTS OF STIPULATIONS ON VENUE
(2017, 1997 BAR)
Q: After working for 25 years in the Middle East, Evan
returned to the Philippines to retire in Manila, the place
of his birth and childhood. Ten years before his
retirement, he bought for cash in his name a house and
lot in Malate, Manila. Six months after his return, he
learned that his house and lot were the subjects of
foreclosure proceedings commenced by ABC Bank on
the basis of a promissory note and a deed of real estate
mortgage he had allegedly executed in favor of ABC
Bank five years earlier. Knowing that he was not in the
country at the time the promissory note and deed of
mortgage were supposedly executed, Evan forthwith
initiated a complaint in the RTC of Manila praying that
the subject documents be declared null and void. ABC
Bank filed a motion to dismiss Evan's complaint on the
ground of improper venue on the basis of a stipulation
in both documents designating Quezon City as the
exclusive venue in the event of litigation between the
parties arising out of the loan and mortgage. Should the
motion to dismiss of ABC Bank be granted? Explain your
answer. (2017 BAR)
A: NO. ABC Bank’s motion to dismiss should be denied. In
Briones v. Court of Appeals (G.R. No. 204444, 24 Jan. 2015),
the Supreme Court ruled that a complaint directly assailing
the validity of the written instrument itself should not be
bound by the exclusive venue stipulation contained therein
and should be filed in accordance with the general rules on
venue. The Supreme Court ruled that it would be inherently
inconsistent for a complaint of this nature to recognize the
exclusive venue stipulation when it, in fact, precisely assails
the validity of the instrument in which such stipulation is
contained.
In this case, Evan’s complaint directly assails the validity of
the promissory note and deed of mortgage, which contains
said venue stipulation; hence, said venue stipulation is not
binding on him. Evan correctly filed his complaint with the
Manila RTC pursuant to Rule of the Rules of Court. (UPLC
Suggested Answers)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: X, a resident of Angeles City, borrowed PhP 300,
000.00 from A, a resident of Pasay City. In the loan
agreement, the parties stipulate that “the parties agree
to sue and be sued in the City of Manila.” (1997 BAR)
(a) In case of non-payment of the loan, can A file his
complaint to collect the loan from X in Angeles City?
A: YES, because the stipulation in the loan agreement that
“the parties agree to sue and be sued in the City of Manila”
does not make Manila the “exclusive venue thereof.” (Sec. 4,
Rule 4, ROC, as amended). Hence, A can file his complaint in
Angels City where he resides. (Sec. 2, Rule 4, ROC, as
amended)
(b) Suppose the parties did not stipulate in the loan
agreement as to the venue, where can A file his
complaint against X?
A: If the parties did not stipulate the venue, A can file his
complaint either in Angeles City where he resides or in
Pasay City where X resides. (Sec. 2, Rule 4, ROC, as amended)
(c) Suppose the parties stipulated in their loan
agreement that “venue for all suits arising from this
contract shall be the courts in Quezon City,” can A
file his complaint against X in Pasay City?
A: NO. If the parties stipulated that the venue “shall be in
the courts in Quezon City,” A cannot file his complaint in
Pasay City because the use of the word “shall” makes
Quezon City the exclusive venue thereof. (Hoechst
Philippines v. Torres, G.R. No. L- 44351, 18 May 1978)
F. PLEADINGS
(2019, 2017, 2010, 2004, 2000, 1999, 1997 BAR)
1. KINDS
(RULE 6)
(2019, 2017, 2010, 2004, 2000, 1999, 1997 BAR)
Q: What is counterclaim? Distinguish a counterclaim
from a crossclaim. (1999 BAR)
A: A counterclaim is distinguished from a cross-claim in that
a cross-claim is any claim by one party against a co-party
arising out of the transaction or occurrence that is the
subject matter either of the original action or of a
counterclaim therein (Sec. 8, Rule 6, ROC, as amended). A
counterclaim is against an opposing party while a cross-
claim is against a co-party. (Sec. 6, Rule 6, ROC, as amended)
Q: Mr. H filed a complaint against Mr. I to recover the
amount of PhP 500,000.00 based on their contract of
services. In his answer, Mr. I admitted that he has yet to
pay Mr. H for his services based on their contract but
nevertheless, interposed a counterclaim alleging that
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
Mr. H still owed him rental arrearages for the lease of
his apartment also amounting to PhP 500,000.00.
It has come to Mr. H's attention that Mr. I did not pay
any filing fees when he filed his answer. As such, Mr. H
moved to dismiss the counterclaim. In response to Mr.
H's motion, Mr. I averred that the non-payment of filing
fees was purely based on inadvertence and that the said
filing fees had already been paid as of date, as evinced
by the official receipt issued by the clerk of court
therefor.
What is the nature of Mr. l's counterclaim? Is the
payment of filing fees required for such counterclaim to
prosper? Explain. (2019 BAR)
A: Mr. I’s counterclaim is permissive. It is permissive
because the rental arrearages for the lease of his apartment
amounting to PhP 500,000 do not arise out of or are not
necessarily connected with the subject matter of the
opposing party’s claim which is the recovery in the amount
of PhP 500,000 based on their contract of service. Thus, the
permissive counterclaim of Mr. I is essentially an
independent claim that may be filed separately in another
case. (Sy-Vargas v. Estate of Ogsos, Sr., G.R. No. 221062, 06
Oct. 2016)
Q: Abraham filed a complaint for damages in the
amount of PhP 750,000.00 against Salvador in the RTC
in Quezon City for the latter's alleged breach of their
contract of services. Salvador promptly filed his
answer, and included a counterclaim for P250,000.00
arising from the allegedly baseless and malicious
claims of Abraham that compelled him to litigate and to
engage the services of counsel, and thus caused him to
suffer mental anguish. Noting that the amount of the
counterclaim was below the exclusive original
jurisdiction of the RTC, Abraham filed a motion to
dismiss vis-a-vis the counterclaim on that ground.
Should the counterclaim of Salvador be dismissed?
Explain your answer. (2017 BAR)
A: NO. The counterclaim of Salvador should not be
dismissed on the ground of lack of jurisdiction. In an
original action before the RTC, the RTC has jurisdiction over
a compulsory counterclaim regardless of its amount. (Sec. 7,
Rule 6, ROC, as amended) Here Salvador’s counterclaim for
damages arising from the alleged malicious and baseless
claims of Abraham is a compulsory counterclaim as it arises
from Abraham’s complaint. Hence the RTC has jurisdiction
over Salvador’s counterclaim even if it did not exceed the
jurisdictional amount of P400,000.
NOTE: Republic Act No. 11576 was enacted in 2021
increasing the jurisdiction of the RTCs in all actions and
maritime jurisdiction where the demand or claims exceeds
P2,000,000.
Q: Antique dealer Mercedes borrowed P1,000,000 from
antique collector Benjamin. Mercedes issued a
18
 QuAMTO (1987-2022)
postdated check in the same amount to Benjamin to
cover the debt. On the due date of the check, Benjamin
deposited it, but it was dishonored. As despite
demands, Mercedes failed to make good the check,
Benjamin filed in January 2009 a complaint for
collection of sum of money before the RTC of Davao.
Mercedes filed in February 2009 her Answer with
Counterclaim, alleging that before the filing of the case,
she and Benjamin had entered into a dacion en pago
agreement in which her vintage PhP 1,000,000 Rolex
watch which was taken by Benjamin for sale on
commission was applied to settle her indebtedness;
and that she incurred expenses in defending what she
termed a “frivolous lawsuit.” She accordingly prayed
for PhP 50, 000 damages. (2010 BAR)
Benjamin soon after moved for the dismissal of the
case. The trial court accordingly dismissed the
complaint. And it also dismissed the Counterclaim.
Mercedes moved for a reconsideration of the dismissal
of the Counterclaim. Pass upon Mercedes’ motion.
A: Mercedes’ Motion for Reconsideration is impressed with
merit: the trial court should not have dismissed her
counterclaim despite the dismissal of the Complaint. Since
it was the plaintiff (Benjamin) who moved for the dismissal
of his Complaint, and at a time when the defendant
(Mercedes) had already filed her Answer thereto and with
a counterclaim, the dismissal of the Complaint should not
carry with it the dismissal of the counterclaim without the
conformity of the defendant-counterclaimant. Under Rule
15, Section 2, if a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiff’s
motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the
right of the defendant to prosecute his counterclaim. (UPLC
Suggested Answers)
Q: PX filed a suit for damages against DY. In his answer,
DY incorporated a counterclaim for damages against PX
and AC, counsel for plaintiff in said suit, alleging in the
said counterclaim, inter alia, that AC, as such counsel,
maliciously induced PX to bring the suit against DY
despite AC’s knowledge of its utter lack of factual and
legal basis. In due time, AC filed a motion to dismiss the
counterclaim as against him on the ground that he is not
a proper party to the case, he being merely plaintiff’s
counsel. Is the counterclaim of DY compulsory or not?
Should AC’s motion to dismiss the counterclaim be
granted or not? Reason. (2004 BAR)
A: YES. The counterclaim of DY is compulsory because it is
one which arises out of or is connected with the subject
matter of the opposing party’s claim and does not require
for its adjudication the presence of third parties of whom
the court cannot acquire jurisdiction (Sec. 7, Rule 6, ROC, as
amended). The motion to dismiss of plaintiff’s counsel
should not be granted because bringing in plaintiff’s counsel
as a defendant in the counterclaim is authorized by the
Rules. Where it is required for the grant of complete relief
19
in the determination of the counterclaim, the court shall
order the defendant’s counsel to be brought in since
jurisdiction over him can be obtained. (Sec. 12, Rule 6, ROC,
as amended; Aurelio v. Court of Appeals, G.R. No. 90742, 06
May 1991) Here, the counterclaim was against both the
plaintiff and his lawyer who allegedly maliciously induced
the plaintiff to file the suit. (UPLC Suggested Answers)
Q: X files a complaint in the RTC for the recovery of a
sum of money with damages against Y. Y files his
answer denying liability under the contract of sale and
praying for the dismissal of the complaint on the
ground of lack of cause of action because the contract of
sale was superseded by a contract of lease executed and
signed by X and Y two weeks after the contract of sale
was executed. The contract of lease was attached to the
answer. X does not file a reply. What is the effect of non-
filing of a reply? Explain. (2000 BAR)
A: A reply is generally optional. If it is not filed, the new
matters alleged in the answer are deemed controverted.
(Sec. 10, Rule 6, ROC, as amended). However, since the
contract of lease attached to the answer is the basis of the
defense, by not filing a reply denying under oath the
genuineness and due execution of the said contract, the
plaintiff is deemed to have admitted the genuineness and
due execution thereof. (Secs. 7 and 8, Rule 8, ROC, as
amended; Toribio v. Bidin, G.R. No. L-57821, 17 Jan. 1985)
Q: B and C borrowed PhP 400,000.00 from A. The
promissory note was executed by B and C in a joint and
several capacity. B, who received the money from A,
gave C PhP 200,000.00. C, in turn, loaned PhP
100,000.00 out of the PhP 200, 000.00 he received to D.
(1997 BAR)
(a) In an action filed by A against B and C with the RTC
of Quezon City, can B file a cross-claim against C for
the amount of PhP 200,000.00?
A: YES. B can file a cross-claim against C for the amount of
PhP 200,000.00 given to C. A cross-claim is a claim filed by
one party against a co-party arising out of the transaction or
occurrence that is the subject matter of the original action
or a counterclaim therein and may include a claim that the
party against whom it is asserted is or may be liable to the
cross- claimant for all or part of a claim asserted against the
cross-claimant. (Sec. 8, Rule 6, ROC, as amended)
(b) Can C file a third-party complaint against D for the
amount of PhP 100,000.00?
A: NO. C cannot file a third-party complaint against D
because the loan of PhP 100,000 has no connection with the
opponent’s claim. C could have loaned the money out of
other funds in his possession. (UPLC Suggested Answers)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
2. PARTS OF A PLEADING presenting a common defense, then the signature of one of
(RULE 7) the petitioners or complainants, acting as a representative,
is sufficient compliance (Irene Marcos-Araneta v. Court of
Appeals, G.R. No. 154096, 22 Aug. 2008). Evidently, since
VERIFICATION AND CERTIFICATION
there is a commonality of interest among tailors Toto,
AGAINST FORUM SHOPPING
Nelson, and Yenyen, there is substantial compliance with
(2016, 2014, 2010, 2006, 2000 BAR)
the rules on verification and certification against forum
shopping, when Toto signed the verification and
Q: What is Forum Shopping? (2006 BAR)
certification, and Atty. Arman signed the same for Nelson.
(Ibid.)
A: Forum-shopping is the act of filing multiple suits
involving the same parties for the same cause of action,
Q: Mr. Humpty filed with the Regional Trial Court (RTC)
either simultaneously or successively, for the purpose of
a complaint against Ms. Dumpty for damages. The RTC,
obtaining a favorable judgment. (Executive Secretary v.
after due proceedings, rendered a decision granting the
Gordon, G.R. No. 134171, 18 Nov. 1998)
complaint and ordering Ms. Dumpty to pay damages to
Mr. Humpty. Ms. Dumpty timely filed an appeal before
Q: Tailors Toto, Nelson, and Yenyen filed a special civil
the Court of Appeals (CA), questioning the RTC decision.
action for certiorari under Rule 65 from an adverse
Meanwhile, the RTC granted Mr. Humpty’s motion for
decision of the National Labor Relations Commission
execution pending appeal. Upon receipt of the RTC’s
(NLRC) on the complaint for illegal dismissal against
order granting execution pending appeal, Ms. Dumpty
Empire Textile Corporation. They were terminated on
filed with the CA another case, this time a special civil
the ground that they failed to meet the prescribed
action for certiorari assailing said RTC order. Is there a
production quota at least four (4) times. The NLRC
violation of the rule against forum shopping
decision was assailed in a special civil action under Rule
considering that two (2) actions emanating from the
65 before the Court of Appeals (CA). In the verification
same case with the RTC were filed by Ms. Dumpty with
and certification against forum shopping, only Toto
the CA? Explain. (2014 BAR)
signed the verification and certification, while Atty.
Arman signed for Nelson. Empire filed a motion to
A: There is no violation of the rule against forum shopping.
dismiss on the ground of defective verification and
In Philippines Nails and Wires Corporation v. Malayan
certification. Decide with reasons. (2016 BAR)
Insurance Company, Inc. (G.R. No. 143933, 14 Feb. 2003), the
Supreme Court held that one party may validly question a
A: The motion to dismiss should be granted. The verification
decision in a regular appeal and at the same time assail the
and certification against non-forum shopping were not
execution pending appeal via certiorari without violating
signed by all petitioners. There was no showing that Toto
the rule against forum shopping. This is because the merits
nor Atty. Arman was duly authorized by the other
of the case will not be addressed in the Petition dealing with
petitioners through a special power of attorney to sign on
the execution and vice versa. Since Ms. Dumpty merely filed
their behalf; hence, the motion to dismiss should be granted.
a special civil action for certiorari, the same will not
(UPLC Suggested Answers)
constitute a violation of the rules on forum shopping
because the resolution or a favorable judgment thereon will
ALTERNATIVE ANSWER:
not amount to res judicata in the subsequent proceedings
between the same parties. (Benedicto v. Lacson, G.R. No.
The motion to dismiss should be denied, because there is
141508, 05 May 2010)
substantial compliance with the requirements of the rules.
Verification is not a jurisdictional but merely a formal
Q: Honey filed with the Regional Trial Court Taal,
requirement which the court may motu proprio direct a
Batangas, a complaint for specific performance against
party to comply with or correct, as the case may be. On the
Bernie. For lack of certification against forum shopping,
other hand, regarding the certificate of non-forum
the judge dismissed the complaint. Honey’s lawyer filed
shopping, the general rule is that all the petitioners or
a motion for reconsideration, attaching thereto an
plaintiffs in a case should sign it.
amended complaint with the certification against
forum shopping. If you were the judge, how will you
However, the Supreme Court has time and again stressed
resolve the motion? (2006 BAR)
that the rules on forum shopping, which were designed to
promote the orderly administration of justice, do not
A: If I were the judge, the motion should be denied after
interdict substantial compliance with its provisions under
hearing because, as expressly provided in the Rules, failure
justifiable circumstances. As ruled by the Court, the
to comply with the requirement of forum shopping is not
signature of any of the principal petitioners or principal
curable by mere amendment of the complaint or other
parties would constitute substantial compliance with the
initiatory pleading, but shall be cause for dismissal of the
rule on verification and certification of non-forum
case, without prejudice, unless otherwise provided (Sec. 5,
shopping. And should there exist a commonality of interest
Rule 7, ROC, as amended). However, the trial court in the
among the parties, or where the parties filed the case as a
exercise of its sound discretion, may choose to be liberal
collective, raising only one common cause of action or

UNIVERSITY OF SANTO TOMAS 20

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
and consider the amendment as substantial compliance. 3. MANNER OF MAKING ALLEGATIONS
(Great Southern Maritime Services Corp. v. Acuna, G.R. No. (RULE 8)
140189, 28 Feb. 2005; Chan v. RTC of Zamboanga del Norte, (2018, 2017, 2004 BAR)
G.R. 149253, 15 Apr. 2004; Uy v. Land Bank, G.R. 136100, 24
July 2000)
a) IN GENERAL

Q: As counsel for A, B, C and D, Atty. XY prepared a

b) ACTION OR DEFENSE BASED ON DOCUMENT
complaint for recovery of possession of a parcel of land
against Z. Before filing the complaint, XY discovered
c) SPECIFIC DENIAL
that his clients were not available to sign the
certification of non-forum shopping. To avoid further
d) AFFIRMATIVE DEFENSES
delays in the filing of the complaint, XY signed the
(2018, 2017, 2004 BAR)
certification and immediately filed the complaint in
court. Is XY justified in signing the certification? Why?
Q: Dorton Inc. (Dorton) sued Debra Commodities Inc.
(2000 BAR)
(Debra), Daniel, and Debbie in the RTC of Manila for
recovery of sum of money. The complaint alleged that,
A: NO. The counsel cannot sign the anti-forum shopping
on 14 Oct. 2017, Debra obtained a loan from Dorton in
certification because it must be executed by the “plaintiff or
the amount of PhP 10 million with an interest of 9% per
principal party” himself (Sec. 5, Rule 7, ROC, as amended),
annum. The loan was evidenced by a promissory note
since the rule requires personal knowledge by the party
(PN) payable on demand signed by Daniel and Debbie,
executing the certification, unless the counsel gives a good
the principal stockholders of Debra, who also executed
reason why he is not able to secure his client’s signatures
a Surety Agreement binding themselves as sureties.
and shows that his clients will be deprived of substantial
Copies of both the PN and the Surety Agreement were
justice (Ortiz v. Court of Appeals, G.R. No. 127393, 04 Dec.
attached to the complaint. Dorton further alleged that it
1998) or unless he is authorized to sign it by his clients
made a final demand on 01 Mar. 2018 for Debra and the
through a special power of attorney.
sureties to pay, but the demand was not heeded.

Q: X was driving the dump truck of Y along Cattleya

Debra, Daniel, and Debbie filed their answer, and raised
Street in Sta. Maria, Bulacan. Due to his negligence, X hit
the affirmative defense that, while the PN and the
and injured V who was crossing the street. Lawyer L,
Surety Agreement appeared to exist, Daniel and Debbie
who witnessed the incident, offered his legal services to
were uncertain whether the signatures on the
V. V, who suffered physical injuries including a
documents were theirs. The PN and the Surety
fractured wrist bone, underwent surgery to screw a
Agreement were pre-marked during pre-trial,
metal plate to his wrist bone. On the complaint of V, a
identified but not authenticated during trial, and
criminal case for Reckless Imprudence Resulting in
formally offered.
Serious Physical Injuries was filed against X before the
Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the
Can the RTC of Manila consider the PN and the Surety
private prosecutor, did not reserve the filing of a
Agreement in rendering its decision? (2018 BAR)
separate civil action. V subsequently filed a complaint
for Damages against X and Y before the Regional Trial
A: YES. The RTC of Manila may consider the PN and the
Court of Pangasinan in Urdaneta where he resides. In
surety agreement in rendering its decision.
his "Certification Against Forum Shopping," V made no
mention of the pendency of the criminal case in Sta.
The PN and the surety agreement are actionable
Maria. (2010 BAR)
documents, defined under Sec. 7, Rule 8 of the Rules of Court
as a written instrument upon which an action is founded
Is V guilty of forum shopping?
upon. Sec. 8, Rule 8 of the Rules of Court, moreover, provides
that when an action is founded upon a written instrument,
A: NO. V is not guilty of forum shopping, because the case in
copied in or attached to the corresponding pleading, the
Sta. Maria, Bulacan is a criminal action filed in the name of
genuineness and due execution of the instrument shall be
the People of the Philippines, where civil liability arising
deemed admitted unless the adverse party, under oath
from the crime is deemed also instituted therewith;
specifically denies them, and sets forth what he claims to be
whereas the case filed in Urdaneta, Pangasinan is a civil
the facts.
action for quasi-delict in the name of V and against both X
and Y for all damages caused by X and Y to V, which may be
In this case, Debra, Daniel, and Debbie are parties to the PN
beyond the jurisdiction of MTC. Hence, the tests of forum
and the surety agreement. Since the PN and surety
shopping, which is res judicata or litis pendencia, do not
agreement are attached to the complaint, Debra, Daniel, and
obtain here. Moreover, substantive law (Art. 33, NCC) and
Debbie are deemed to have admitted the genuineness and
Sec. 3, Rule 111 of the Rules of Court, expressly authorize the
due execution thereof for their failure to: (a) deny the
filing such action for damages entirely separate and distinct
genuineness and due execution of these documents under
from the criminal action.
oath; and (b) to set for what they claim to be facts.

21 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
The court, therefore, may consider the PN and the surety plaintiff’s allegation no. 1 as well as no. 2 sufficiently
agreement in rendering its decision. raise an issue of fact? Reason briefly. (2004 BAR)

Q: On the basis of an alleged promissory note executed A: As to plaintiff’s allegation no. 1, defendant does not
by Harold in favor of Ramon, the latter filed a complaint sufficiently raise an issue of fact, because he cannot allege
for PhP 950,000.00 against the former in the RTC of lack of knowledge of the mortgage deed since he should
Davao City. In an unverified answer, Harold specifically have personal knowledge as to whether he signed it or not
denied the genuineness of the promissory note. During and because he did not deny under oath the genuineness
the trial, Harold sought to offer the testimonies of the and due execution of the mortgage deed, which is an
following: (1) the testimony of an NBI handwriting actionable document. As to plaintiff’s allegation no. 2,
expert to prove the forgery of his signature; and (2) the defendant did not properly deny liability as to plaintiffs
testimony of a credible witness to prove that if ever contracting with a lawyer for a fee. He did not even deny for
Harold had executed the note in favor of Ramon, the lack of knowledge. (Sec. 10, Rule 8, ROC, as amended)
same was not supported by a consideration. May
Ramon validly object to the proposed testimonies? Give 4. EFFECT OF FAILURE TO PLEAD
a brief explanation of your answer. (2017 BAR) (RULE 9)
(2017, 2006, 2002, 2001, 2000, 1999, 1998 BAR)
A: YES. Ramon may validly object to the proposed
testimony of an NBI handwriting expert to prove forgery.
DEFAULT; RELIEF FROM AN ORDER OF DEFAULT
The alleged promissory note attached to Ramon's
(2017, 2006, 2002, 2001, 2000, 1999, 1998 BAR)
complaint is an actionable document since it is a written
instrument upon which an action or defense is grounded.
Q: When may a party be declared in Default? What is the
Under Sec. 8, Rule 8 of the Rules of Court, the genuineness
effect of an Order of Default? (1999 BAR)
and due execution of an actionable document are deemed
admitted by the adverse party if he fails to specifically deny
A: A party may be declared in default when he fails to
such genuineness and due execution.
answer within the time allowed therefor and upon motion
of the claiming party with notice to the defending party, and
Here, the genuineness and due execution of the promissory
proof of such failure (Sec. 3, Rule 9, ROC, as amended). The
note, which is an actionable document, was impliedly
effect of an Order of Default is that the court may proceed to
admitted by Harold when he failed to deny the same under
render judgment granting the claimant such relief as his
oath, his answer being unverified. Hence Harold is
pleading may warrant unless the court in its discretion
precluded from setting up the defense of forgery and thus
requires the claimant to submit evidence. The party in
Ramon may object to the proposed testimony seeking to
default cannot take part in the trial but shall be entitled to
prove forgery.
notice of subsequent proceedings. (Sec. 3(a), Rule 9, ROC, as
amended)
However, Ramon may not validly object to the proposed
testimony showing that the note was not supported by a
Q: Mario was declared in default but before judgment
consideration.
was rendered, he decided to file a motion to set aside
the order of default. (2001 BAR)
The Supreme Court has held that an implied admission
under Sec. 8, Rule 8 of the Rules of Court does not preclude
(a) What should Mario state in his motion in order to
the adverse party from introducing evidence that the
justify the setting aside of the order of default?
actionable document was not supported by a consideration.
The reason is that such evidence is not inconsistent with the
A: In order to justify the setting aside of the order of default,
implied admission of genuineness and due execution.
Mario should state in his motion that his failure to answer
(Acabal v. Acabal, G.R. No. 148376, 31 Mar. 2005) The fact
was due to fraud, accident, mistake, or excusable negligence
that the defense of lack of consideration is inconsistent with
and that he has a meritorious defense. (Sec. 3(b), Rule 9, ROC,
Harold’s defense of forgery is also not objectionable.
as amended)

Q: In his complaint for foreclosure of mortgage to which

(b) In what form should such motion be?
was duly attached a copy of the mortgage deed, plaintiff
PP alleged inter alia as follows: (1) that defendant DD
A: The motion should be under oath. (Sec. 3(b), Rule 9, ROC,
duly executed the mortgage deed, copy of which is
as amended)
Annex “A” of the complaint and made an integral part
thereof; and (2) that to prosecute his complaint,
Q: What are the available remedies of a party declared
plaintiff contracted a lawyer, CC, for a fee of PhP 50,000.
in Default: (1998 BAR)
In his answer, the defendant alleged, inter alia, that he
had no knowledge of the mortgage deed, and he also
(a) Before the rendition of judgment;
denied any liability for plaintiffs contracting with a
lawyer for a fee. Does defendant’s answer as to

UNIVERSITY OF SANTO TOMAS 22

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
A: Before the rendition of judgment (a) he may file a motion
under oath to set aside the order of default on the grounds
of fraud, accident, mistake, or excusable negligence and that
he has a meritorious defense (Sec. 3(b), Rule 9, ROC, as
amended); and if it is denied, he may move to reconsider,
and if reconsideration is denied, he may file the special civil
action of certiorari for grave abuse of discretion tantamount
to lack or excess of the lower court's jurisdiction (Sec. 1, Rule
65, ROC, as amended); or (b) he may file a petition for
certiorari if he has been illegally declared in default, e.g.,
during the pendency of his motion to dismiss or before the
expiration of the time to answer. (Matute v. CA, G.R. No.
26751, 31 Jan. 1969; Acosta-Ofalia v. Sundiam, G.R. No. L-
42648, 30 Sept. 1978)
(b) After judgment but before its finality; and
A: After judgment but before its finality, he may file a
motion for new trial on the grounds of fraud, accident,
mistake, excusable negligence, or a motion for
reconsideration on the ground of excessive damages,
insufficient evidence, or the decision or final order being
contrary to law (Sec. 2, Rule 37, ROC, as amended); and
thereafter. If the motion is denied, appeal is available under
Rule 40 or 41 of the Rules of Court, whichever is applicable.
(c) After the finality of judgment?
A: After finality of the judgment, there are three ways to
assail the Judgment, which are: (a) a petition for relief under
Rule 38 of the Rules of Court on the grounds of fraud,
accident, mistake, or excusable negligence; (b) annulment
of Judgment under Rule 47 of the Rules of Court for extrinsic
fraud or lack of jurisdiction; or (c) certiorari if the judgment
is void on its face or by the judicial record. (Balangcad v.
Justices of the Court of Appeals, G.R. No. 83888, 12 Feb. 1992)
Q: Laura was the lessee of an apartment unit owned by
Louie. When the lease expired, Laura refused to vacate
the property. Her refusal prompted Louie to file an
action for unlawful detainer against Laura who failed to
answer the complaint within the reglementary period.
Louie then filed a motion to declare Laura in default.
Should the motion be granted? Explain your answer.
(2017 BAR)
A: NO. A Motion to declare the defendant in default is a
prohibited motion in ejectment cases pursuant to Sec. 13,
Rule 70 of the Rules of Court.
Q: For failure of K.J. to file an answer within the
reglementary period, the Court, upon motion of LM,
declared KJ in default. In due time, KJ filed an unverified
motion to lift the order of default without an affidavit of
merit attached to it. KJ however attached the motion in
his answer under oath, stating in said answer his
reasons for his failure to file an answer on time, as well
as his defenses. Will the motion to lift the order of
default prosper? Explain. (2000 BAR)
23
A: YES. There is substantial compliance with the rule.
Although the motion is unverified, the answer attached to
the motion is verified. The answer contains the motion to
lift the order of default and the affidavit of merit should
contain, which are the reasons of the movant’s failure to
answer as well as his defenses (Sec. 3(b), Rule 9, ROC, as
amended; Citibank, N.A. v. Court of Appeals, G.R. No. 61508,
17 Mar. 1999).
Q: Jojie filed with the RTC of Laguna a complaint for
damages against Joe. During the pretrial, Jojie and her
counsel failed to appear despite notice to both of them.
Upon oral motion of Jojie, Joe was declared in default
and Jojie was allowed to present her evidence ex parte.
Thereafter, the court rendered its Decision in favor of
Jojie. Joe hired Jose as his counsel. What are the
remedies available to him? Explain. (2006 BAR)
A: Before the rendition of judgment;
Before the rendition of judgment (a) he may file a motion
under oath to set aside the order of default on the grounds
of fraud, accident, mistake, or excusable negligence and that
he has a meritorious defense (Sec. 3(b), Rule 9, ROC, as
amended); and if it is denied, he may move to reconsider,
and if reconsideration is denied, he may file the special civil
action of certiorari for grave abuse of discretion tantamount
to lack or excess of the lower court's jurisdiction. (Sec. 1,
Rule 65, ROC, as amended); or (b) he may file a petition for
certiorari if he has been illegally declared in default, e.g.,
during the pendency of his motion to dismiss or before the
expiration of the time to answer. (Matute v. CA, G.R. No.
26751, 31 Jan. 1969; Acosta-Ofalia v. Sundiam, G.R. No. L-
42648, 30 Sept. 1978)
After judgment but before its finality; and
After judgment but before its finality, he may file a motion
for new trial on the grounds of fraud, accident, mistake,
excusable negligence, or a motion for reconsideration on
the ground of excessive damages, insufficient evidence, or
the decision or final order being contrary to law (Sec. 2, Rule
37, ROC, as amended); and thereafter. If the motion is
denied, appeal is available under Rule 40 or 41 of the Rules
of Court, whichever is applicable.
After the finality of judgment
After finality of the judgment, there are three ways to assail
the Judgment, which are: (a) a petition for relief under Rule
38 of the Rules of Court on the grounds of fraud, accident,
mistake, or excusable negligence; (b) annulment of
Judgment under Rule 47 of the Rules of Court for extrinsic
fraud or lack of jurisdiction; or (c) certiorari if the judgment
is void on its face or by the judicial record. (Balangcad v.
Justices of the Court of Appeals, G.R. No. 83888, 12 Feb. 1992)
Q: The plaintiff sued the defendant in the RTC for the
damage allegedly caused by the latter’s encroachment
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
on the plaintiff’s lot. In his answer, the defendant
denied the plaintiff’s claim and alleged that it was the
plaintiff who in fact had encroached on his
(defendant’s) land. Accordingly, the defendant
counterclaimed against the plaintiff for damages
resulting from the alleged encroachment on his lot. The
plaintiff filed an ex parte motion for extension of time
to answer the defendant’s counterclaim, but the court
denied the motion on the ground that it should have
been set for hearing. On the defendant’s motion,
therefore, the court declared the plaintiff in default on
the counterclaim. Was the plaintiff validly declared in
default? Why? (2002 BAR)
A: NO. The plaintiff was not validly declared in default. A
motion for extension of time may be filed ex parte and need
not be set for hearing. (Amante v. Sunga, G.R. No. L-40491, 28
May 1975)
Q: For failure to seasonably file his Answer despite due
notice, A was declared in default in a case instituted
against him by B. The following day, A’s mistress who is
working as a clerk in the sala of the Judge before whom
his case is pending, informed him of the declaration of
default. On the same day, A presented a motion under
oath to set aside the order of default on the ground that
his failure to answer was due to fraud and he has a
meritorious defense. Thereafter, he went abroad. After
his return a week later, with the case still undecided, he
received the order declaring him in default. The motion
to set aside default was opposed by B on the ground that
it was filed before A received notice of his having been
declared in default, citing the rule that the motion to set
aside may be made at any time after notice but before
judgment. Resolve the Motion. (1999 BAR)
A: Assuming that the motion to set aside complies with the
other requirements of the rule, it should be granted.
Although such a motion may be made after notice but before
judgment (Sec. 3(b), Rule 9, ROC, as amended), with more
reason may it be filed after discovery even before receipt of
the order of default.
5. AMENDED AND SUPPLEMENTAL PLEADINGS
(RULE 10)
(2018, 2008, 2004, 2003, 2002, 2000 BAR)
AMENDMENT
(2018, 2008, 2003, 2002 BAR)
Q: Daribell Inc. (Daribell) filed a complaint for sum of
money and damages against spouses Dake and Donna
Demapilis for unpaid purchases of construction
materials in the sum of PhP 250,000. In their answer,
spouses Demapilis admitted the purchases from
Daribell, but alleged that they could not remember the
exact amount since no copies of the documents were
attached to the complaint. They nevertheless claimed
that they made previous payments in the amounts of
PhP 110,000 and PhP 20,000 and that they were willing
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
to pay the balance of their indebtedness after account
verification. In a written manifestation, spouses
Demapilis stated that, in order to buy peace, they were
willing to pay the sum of PhP 250,000, but without
interests and costs. Subsequently, Daribell filed a
Motion for partial summary judgment. Thereafter,
Daribell filed an amended complaint, alleging that the
total purchases of construction materials were PhP
280,000 and only PhP 20,000 had been paid. Daribell
also served upon the spouses Demapilis a request for
admission asking them to admit the genuineness of the
statement of accounts, delivery receipts and invoices,
as well as the value of the principal obligation and the
amount paid as stated in the amended complaint.
Daribell thereafter amended the complaint anew. The
amendment modified the period covered and
confirmed the partial payment of PhP110,000 but
alleged that this payment was applied to the spouses’
other existing obligations. Daribell however reiterated
that the principal amount remains unchanged. (2018
BAR)
(a) Is the request for admission deemed abandoned or
withdrawn by the filing of the second amended
complaint?
A: NO. The second amended complaint merely supersedes
the first amended complaint and nothing more, pursuant to
Sec. 8, Rule 10 of the Rules of Court; thus, the Request for
Admission is not deemed abandoned or withdrawn by the
filing of the Second Amended Complaint. (Spouses Villuga v.
Kelly Hardware and Construction Supply, Inc., G.R. No.
176570, 18 July 2012)
(b) Can the amendment of the complaint be allowed if
it substantially alters the cause of action?
A: Such amendment could still be allowed when it is sought
to serve the higher interest of substantial justice, prevent
delay, and secure a just, speedy and inexpensive disposition
of actions and proceedings. (Valenzuela v. Court of Appeals,
G.R. No. 131175, 28 Aug. 2001). The amended complaint may
be allowed if it will not prejudice the rights of the parties.
Q: Arturo lent P1 Million to his friend Robert on the
condition that Robert will execute a promissory note
for the loan and a real estate mortgage over his
property located in Tagaytay City. Robert complied. In
his promissory note dated 20 Sept. 2006, Robert
undertook to pay the loan within a year from its date at
12% per annum interest. In June 2007, Arturo
requested Robert to pay ahead of time, but the latter
refused and insisted on the agreement. Arturo issued a
demand letter and when Robert did not comply, Arturo
filed an action to foreclose the mortgage. Robert moved
to dismiss the complaint for lack of cause of action as
the debt was not yet due. The resolution of the motion
to dismiss was delayed because of the retirement of the
judge. (2008 BAR)
24
 QuAMTO (1987-2022)
(a) On 01 Oct. 2007, pending resolution of the motion
to dismiss, Arturo filed an amended complaint
alleging that Robert's debt had in the meantime
become due, but that Robert still refused to pay.
Should the amended complaint be allowed
considering that no answer has been filed?
A: NO. Even though an amendment of complaint before
answer is a matter of right, lack of a cause of action at the
commencement of the suit is not cured by the accrual of a
cause of action subsequent thereto, such that an
amendment setting up the after-accrued cause of action is
not allowed. (Swagman Hotel and Travel, Inc. v. Court of
Appeals, G.R. No. 161135, 08 Apr. 2005)
(b) Would your answer be different had Arturo filed
instead a supplemental complaint stating that the
debt became due after the filing of the original
complaint?
A: NO. A complaint whose cause of action has not accrued
yet when filed, does not gain any standing in court such that
no amendment, whether by amended or supplemental
pleading, can cure the deficiency. The subsequent cause of
action that arose may only be subject of a different suit but
cannot be pleaded as a supplement to the complaint where
no cause action exists. Simply put, no amended or
supplemental complaint is allowed. (Id.)
Q: After an answer has been filed, can the plaintiff
amend his complaint, with leave of court, by changing
entirely the nature of the action? (2003 BAR)
A: YES. The present rules allow amendments substantially
altering the nature of the cause of action. (Sec. 3, Rule 10,
ROC, as amended; Heirs of Marcelino Pagobo v. Court of
Appeals, G.R. No. 121687, 16 Oct. 1997) This should only be
true, however, when the substantial change or alteration in
the cause of action or defense shall serve the higher
interests of substantial justice and prevent delay and
equally promote the laudable objective of the rules which is
to secure a just, speedy, and inexpensive disposition of
every action and proceeding. (Valenzuela v. Court of Appeals,
G.R. No. 131175, 28 Aug. 2001)
Q: The plaintiff sued the defendant in the RTC for the
damage allegedly caused by the latter’s encroachment
on the plaintiff’s lot. In his answer, the defendant
denied the plaintiff’s claim and alleged that it was the
plaintiff who in fact had encroached on his
(defendant’s) land. Accordingly, the defendant
counterclaimed against the plaintiff for damages
resulting from the alleged encroachment on his lot. The
plaintiff filed an ex parte motion for extension of time
to answer the defendant’s counterclaim, but the court
denied the motion on the ground that it should have
been set for hearing. On the defendant’s motion,
therefore, the court declared the plaintiff in default on
the counterclaim. Was the plaintiff validly declared in
default? Why? (2002 BAR)
25
A: NO. The plaintiff was not validly declared in default. A
motion for extension of time may be filed ex parte and need
not be set for hearing. (Amante v. Sunga, G.R. No. L-40491, 28
May 1975)
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE
(2004 BAR)
Q: In a complaint for a sum of money filed before the
MM RTC, plaintiff did not mention or even just hint at
any demand for payment made on defendant before
commencing suit. During the trial, plaintiff duly offered
Exh. “A” in evidence for the stated purpose of proving
the making of extrajudicial demand on defendant to
pay P500.000, the subject of the suit. Exh. “A” was a
letter of demand for defendant to pay said sum of
money within 10 days from receipt, addressed to and
served on defendant some two months before suit was
begun. Without objection from defendant, the court
admitted Exh. “A” in evidence. Was the court’s
admission of Exh. “A” in evidence erroneous or not?
Reason. (2004 BAR)
A: The court’s admission of Exhibit “A” in evidence is not
erroneous. It was admitted in evidence without objection on
the part of the defendant. It should be treated as if it had
been raised in the pleadings. The complaint may be
amended to conform to the evidence, but if it is not so
amended, it does not affect the result of the trial on this
issue. (Sec. 5, Rule 10, ROC, as amended)
EFFECT OF AMENDED PLEADING
(2000 BAR)
Q: X, an illegitimate child of Y, celebrated her 18th
birthday on 02 May 1996. A month before her birthday,
Y died. The legitimate family of Y refused to recognize
X as an illegitimate child of Y. After countless efforts to
convince them, X filed on 25 Apr. 2000 an action for
recognition against Z, wife of Y. After Z filed an answer
on 14 Aug. 2000, X filed a motion for leave to file an
amended complaint and a motion to admit the said
amended complaint impleading the three (3) legitimate
children of Y. The trial court admitted the amended
complaint on 22 Aug. 2000. What is the effect of the
admission of the amended complaint? Has the action of
X prescribed? Explain. (2000 BAR)
A: NO. The action filed 25 Apr. 2000 is still within the four-
year prescriptive period which started to run on 02 May
1996. The amended complaint impleading the three
legitimate children, though admitted on 22 August 2000
beyond the four-year prescriptive period, retroacts to the
date of the filing of the original complaint. Amendments
impleading new defendants retroact to the date of the filing
of the complaint because they do not constitute a new cause
of action. (Verzosa v. CA, G.R. Nos. 119511-13, 24 Nov. 1998)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
6. WHEN TO FILE RESPONSIVE PLEADINGS
(RULE 11)
(2002 BAR)
Q: The plaintiff sued the defendant in the RTC for
damages allegedly caused by the latter’s encroachment
on the plaintiff’s lot. In his answer, the defendant
denied the plaintiff’s claim and alleged that it was the
plaintiff who in fact had encroached on his
(defendant’s) land. Accordingly, the defendant
counterclaimed against the plaintiff for damages
resulting from the alleged encroachment on his lot. The
plaintiff filed an ex parte motion for extension of time
to answer the defendant’s counterclaim, but the court
denied the motion on the ground that it should have
been set for hearing. On the defendant’s motion,
therefore, the court declared the plaintiff in default on
the counterclaim. Was the plaintiff validly declared in
default? Why? (2002 BAR)
A: NO, the plaintiff was not validly declared in default. A
motion for extension of time to file an answer may be filed
ex parte and need not be set for hearing. (Amante v. Sunga,
G.R. No. L-40491, 28 May 1975)
ALTERNATIVE ANSWER:
The general rule is that a counterclaim must be answered
within ten (10) days from service. (Now twenty (20) days
under Sec. 4, Rule 11, ROC, as amended) However, a
counterclaim that raises issues which are deemed
automatically joined by the allegations of the Complaint
need not be answered. (Gojo v. Goyala, G.R. No. L-26768, 30
Oct. 1970)
In this case, the defendant’s counterclaim is a compulsory
counterclaim which arises out or is connected with the
transaction and occurrence constituting the subject matter
of the plaintiff’s claim. It raises the same issue of who
encroached on whose land. Hence, there was no need to
answer the counterclaim.
G. FILING AND SERVICE
(RULE 13)
(2022, 2012 BAR)
Q: Attorney Woo, the newly hired lawyer of a law firm,
booked Samurai Express, a duly accredited courier
service within the National Capital Judicial Region, to
serve a copy of a motion for reconsideration to Attorney
Han, counsel for the adverse party, whose office is in the
City of Manila. Attorney Han moved to deny the motion
for failure to contain a written explanation as to why
the motion was not served personally. (2022 BAR)
a. Was the motion for reconsideration properly
served? Explain briefly.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: YES. The motion for reconsideration was properly
served. Under the 2019 Rules of Civil Procedure, the
requirement of an explanation on why personal service was
not resorted to in serving a motion or other paper was
deleted. (Riguera, 2023)
b. What shall be considered as proof of service of this
motion? Explain briefly.
A: Proof of service by an accredited courier service shall be
made by an affidavit of service executed by the person who
brought the motion to the service provider, Samurai
Express, together with Samurai Express' official receipt or
document tracking number. (Sec. 17(c), Rule 13, ROC, as
amended; Riguera, 2023)
Q: Atty. X fails to serve personally a copy of his motion
to Atty. Y because the office and residence of Atty. Y and
the latter's client changed, and no forwarding
addresses were given. Atty. X's remedy is to: (2012
BAR)
A: Deliver copy of the motion to the clerk of court with proof
of failure to serve. (UPLC Suggested Answers)
1. RULES ON PAYMENT OF DOCKET FEES;
EFFECT OF NON-PAYMENT
(2022, 2019 BAR)
Q: The Regional Trial Court (RTC) rendered a decision
against Kat. She received a copy of the decision on 26
Dec. 2021. Kat’s counsel filed with the Supreme Court a
petition for review on certiorari under Rule 45 by
registered mail on 10 Jan. 2022. The petition was
dismissed for failure to pay the docket fees within the
reglementary period. Kat’s counsel challenged the
dismissal arguing that: (i) the intention was to pay the
docket fees after the same is assessed upon the court’s
receipt of the petition by registered mail; and (ii) the
dismissal of the petition effectively rendered nugatory
a party’s statutory right to appeal by registered mail
under the rules. Kat’s counsel also added that she did
not want to include cash money in the mail.
Is Kat’s counsel correct? Explain briefly. (2022 BAR)
A: NO, Kat’s counsel is incorrect.
(i) The argument of Kat’s counsel that the intention
was to pay the docket fees after the same is
assessed upon the court’s receipt of the petition by
registered mail is untenable. Under the Rules of
Civil Procedure, the docket and other lawful fees
for a petition for review on certiorari must be paid
before or at the time of the filing of the petition.
(Sec. 3, Rule 45, ROC, as amended) The Supreme
Court has held that the payment of the appellate
docket fee is mandatory and jurisdictional.
(National Transmission Corp. v. Heirs of Ebesa, G.R.
No. 186102, 24 Feb. 2016)
26
 QuAMTO (1987-2022)
(ii) The argument of Kat’s counsel that the dismissal of
the petition effectively rendered nugatory a party's
statutory right to appeal by registered mail under
the Rules is also untenable. The Supreme Court has
held that while appeal is a statutory right, it must
be exercised in accordance with the law or rule
granting such right; a party cannot complain that
he is deprived of the opportunity to appeal if he
loses such opportunity by his own fault or
negligence.
Here, Kat's counsel failed to pay the docket fee due
to his own fault or negligence. He could have
inquired as to the docket fee and sent payment by
a postal money order. Hence, Kat's counsel is not
correct. (Riguera, 2023)
Q: Mr. H filed a complaint against Mr. I to recover the
amount of PhP 500,000.00 based on their contract of
services. In his answer, Mr. I admitted that he has yet to
pay Mr. H for his services based on their contract but
nevertheless, interposed a counterclaim alleging that
Mr. H still owed him rental arrearages for the lease of
his apartment also amounting to PhP 500,000.00.
It has come to Mr. H's attention that Mr. I did not pay
any filing fees when he filed his answer. As such, Mr. H
moved to dismiss the counterclaim. In response to Mr.
H's motion, Mr. I averred that the non-payment of filing
fees was purely based on inadvertence and that the said
filing fees had already been paid as of date, as evinced
by the official receipt issued by the clerk of court
therefor.
Should Mr. I's counterclaim be dismissed? Explain.
(2019 BAR)
A: NO. It has long been settled that while the court acquires
jurisdiction over any case only upon the payment of the
prescribed docket fees, its non-payment at the time of filing
of the initiatory pleading does not automatically cause its
dismissal provided that: the fees are paid within a
reasonable period; and there was no intention on the part
of the claimant to defraud the government. (Sy-Vargas v.
Estate of Ogsos, Sr., G.R. No. 221062, 06 Oct. 2016; Manchester
Development Corporation v. CA, G.R. No. L-75919, 07 May
1987)
In this case, Mr. I already paid the docket fees, as shown by
the official receipt therefor, and there was no intention on
his part to defraud the government. (UPLC Suggested
Answers)
2. EFFICIENT USE OF PAPER RULE; E-FILING
(A.M. No. 10-3-7-SC and A.M. No. 11-9-4-SC, as revised,
approved on 22 Feb. 2022)
27
H. SUMMONS
(RULE 14)
(2022, 2017, 2016, 2013, 2011, 2006, 1999 BAR)
1. NATURE AND PURPOSE OF SUMMONS
IN RELATION TO ACTIONS IN PERSONAM, IN REM,
AND QUASI IN REM
2. WHO MAY SERVE SUMMONS
3. VALIDITY OF SUMMONS
AND ISSUANCE OF ALIAS SUMMONS
(2011, 1999 BAR)
Q: What is the effect of absence of summons on the
judgment rendered in the case? (1999 BAR)
A: The effect of the absence of summons on a judgment
would make the judgment null and void because the court
would not have jurisdiction over the person of the
defendant, unless the defendant voluntarily appeared
before the court, which is deemed equivalent to the service
of summons. (Sec. 23, Rule 14, ROC, as amended)
Q: When an additional defendant is impleaded in the
action, is it necessary that summons be served upon
him? Explain. (1999 BAR)
A: YES. Summons must be served on an additional
defendant impleaded in the action so that the court can
acquire jurisdiction over him unless he makes a voluntary
appearance. (UPLC Suggested Answers)
Q: Is summons required to be served upon a defendant
who was substituted for the deceased? Explain. (1999
BAR)
A: NO. A defendant who was substituted for the deceased
need not be served with summons because it is the court
which orders him as the legal representative of the
deceased to appear and substitute the deceased. (Sec. 16,
Rule 3, ROC, as amended)
Q: Summons was served on “MCM Theater,” a business
entity with no juridical personality, through its office
manager at its place of business. Did the court acquire
jurisdiction over MCM Theater’s owners? (2011 BAR)
A: YES. An unregistered entity like MCM Theater may be
served with summons through its office manager. Sec. 7,
Rule 14 of the Rules of Court provides that when persons
associated with an entity without juridical personality are
sued under the name by which they are generally or
commonly known, service may be effected upon all the
defendants by serving upon any one of them, or upon the
person in charge of the office or place of business
maintained in such name. But such service shall not bind
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
individually any person whose connection with the entity
has, upon due notice, been severed before the action was
filed.
4. PERSONAL SERVICE
(2017 BAR)
Q: Teddy filed against Buboy an action for rescission of
a contract for the sale of a commercial lot. After having
been told by the wife of Buboy that her husband was out
of town and would not be back until after a couple of
days, the sheriff requested the wife to just receive the
summons on behalf of her husband. The wife acceded to
the request, received the summons and a copy of the
complaint, and signed for the same. (2017 BAR)
Was there a valid service of summons upon Buboy?
Explain your answer briefly.
A: NO. There was no valid service of summons in this case
since the summons was not personally received by Buboy.
For substituted service of summons to be available, there
must be several attempts by the sheriff to personally serve
the summons within a reasonable period. “Several
attempts: means at least three tries, preferably on at least
two different dates.” (Mancha. v. Court of Appeals, G.R. No.
130974, 16 Aug. 2006)
NOTE: Sec. 6, Rule 14 of the Rules of Court, under the
amendments, provides that substituted service of summons
may be done when, for justifiable causes, the defendant
cannot be served personally after at least (3) attempts on
two (2) different dates (2019 Amendments to the Rules of
Civil Procedure).
5. SUBSTITUTED SERVICE
(2022, 2016, 2013, 2006 BAR)
Q: Asya, Inc. sued Kobe, a resident of Bukidnon. To
serve summons, the sheriff waited in the lobby of
Makati Hotel (MH), where Kobe stays whenever he is in
Manila. The sheriff failed to serve the summons because
Kobe left the hotel for an emergency. Hours later, the
sheriff asked the front desk about Kobe’s whereabouts
and his room number. The hotel refused to disclose on
grounds of confidentiality. The sheriff tried again the
next day, but Kobe was in a conference until midnight.
So, the following day, the sheriff left the summons and a
copy of the complaint with MH's chief security officer
(CSO), even as the CSO refused because Kobe had
already checked out by then. The sheriff thereafter filed
his return, stating the dates, times and places of his
attempts, the name of the CSO, and the fact that the
complaint was served with the summons. When Kobe
did not file an Answer, Asya, Inc. moved to declare him
in default.
Was there a valid substituted service of summons?
Explain briefly. (2022 BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: NO, there was no valid substituted service of summons.
Under the Rules of Civil Procedure, substituted service of
summons effected by leaving the summons with the chief
security officer would be valid provided the chief security
officer is of a homeowners' community or of a condominium
building and the defendant is found in such community or
building. (Sec. 6(c), Rule 14, ROC, as amended)
Here, the chief security officer was of a hotel and not of a
homeowners’ community or condominium building.
Moreover, Kobe was no longer in the hotel at the time the
sheriff left the summons and the complaint with the chief
security officer. Hence, the substituted service of summons
was not valid. (Riguera, 2023)
Q: Juan sued Roberto for specific performance. Roberto
knew that Juan was going to file the case, so he went out
of town and temporarily stayed in another city to avoid
service of summons. Juan engaged the service of Sheriff
Matinik to serve the summons, but when the latter went
to the residence of Roberto, he was told by the
caretaker thereof that his employer no longer resides
at the house. The caretaker is a high school graduate
and is the godson of Roberto. Believing the caretaker’s
story to be true, Sheriff Matinik left a copy of the
summons and complaint with the caretaker. Was there
a valid substituted service of summons? Discuss the
requirements for a valid service of summons. (2016
BAR)
A: NO. There was no valid substituted service of summons.
In an action strictly in personam, personal service on the
defendant is the preferred mode of service, that is, by
handing a copy of the summons to the defendant in person.
If defendant, for excusable reasons, cannot be served with
the summons within a reasonable period, then substituted
service can be resorted to.
In case of substituted service, the Sheriff’s Return must
show that serious efforts or attempts were exerted to
personally serve the summons and that said efforts failed,
indicating therein:
(1) The impossibility of prompt personal service
within a period of thirty (30) calendar days from
issue and receipt of summons;
(2) The date and time of the three (3) attempts on at
least two (2) different dates to cause personal
service and the details of the inquiries made to
locate the defendant residing thereat; and
(3) The name of the person at least eighteen (18) years
of age and of sufficient discretion residing thereat,
name of competent person in charge of the
defendant’s office or regular place of business, or
name of the officer of the homeowners’ association
or condominium corporation or its chief security
officer in charge of the community or building
28
 QuAMTO (1987-2022)
where the defendant may be found. (Sec. 20, Rule
14, ROC, as amended)
In this case, there has been three (3) attempts on at least
two (2) different dates to cause personal service and the
details of the inquiries made to locate the defendant.
(Answered under the 2019 Amendments to the Rules of Civil
Procedure)
Q: Tristan filed a suit with the RTC of Pasay against
Arthur King and/or Estate of Arthur King for
reconveyance of a lot declared in the name of Arthur
King under TCT No. 1234. The complaint alleged that”
on account Arthur King’s residence abroad up to the
present and the uncertainty of whether he is still alive
or dead, he or his estate may be served with summons
by publication.” Summons was published and nobody
filed any responsive pleading within sixty (60) days
therefrom. Upon motion. Defendants were declared in
default and judgment was rendered declaring Tristan
as legal owner and ordering defendants to reconvey
said lot to Tristan.
Jojo, the court-designated administrator of Arthur
King’s estate, filed a petition for annulment of judgment
before the CA praying that the decision in favor of
Tristan be declared null and void for lack of
jurisdiction. He claims that the action filed by Tristan is
an action in personam and that the court did not acquire
jurisdiction over defendants Arthur King and/or his
estate. On the other hand, Tristan claims that the suit is
an action in rem or at least an action quasi in rem. Is the
RTC judge correct in ordering service of summons by
publication? Explain. (2016 BAR)
A: YES. The RTC Judge is correct in ordering the service of
summons by publication. An action for declaration of nullity
of title and recovery of ownership of real property, or re-
conveyance, is not a real action but it is an action in
personam, for it binds a particular individual only although
it concerns the right to a tangible thing. Any judgment
therein is binding only upon the parties properly
impleaded. (Heirs of Lopez v. Enriquez, as cited in Muñoz v.
Yabut, G.R. No. 142676, 06 June 2011)
Under Sec. 14, Rule 14 of the Rules of Court, (now Sec. 16, Rule
14, ROC, as amended) in any action where the defendant is
designated as an unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be ascertained by
diligent inquiry, service may, by leave of court, be effected
upon him by publication in a newspaper of general
circulation and in such places and for such time as the court
may order. This rule applies to any action, whether in
personam, in rem or quasi in rem. (Santos v. PNOC
Exploration Corporation, G.R. No. 170943, 23 Sept. 2008).
Clearly, since the action for re-conveyance is an action in
personam, the RTC Judge is correct in ordering service of
summons by publication.
29
ALTERNATIVE ANSWER:
NO. The RTC Judge is not correct in ordering service of
summons by publication. It is well-settled that in an action
in personam wherein the defendant is a non-resident who
does not voluntarily submit himself to the authority of the
court, personal service of summons within the state is
essential to the acquisition of jurisdiction over his or her
person. This method of service is possible if such defendant
is physically present in the country. If he is not found
therein, the court cannot acquire jurisdiction over his
person and therefore cannot validly try and decide the case
against him. (Spouses Belen v. Chavez, G.R. No. 175334, 26
Mar. 2008). Accordingly, the RTC Judge is not correct in
ordering service of summons by publication.
Q: Alfie Bravo filed with the Regional Trial Court of
Caloocan, a complaint for a sum of money against
Charlie Delta. The claim is for PhP 1.5 million. The
complaint alleges that Charlie borrowed the amount
from Alfie and duly executed a promissory note as
evidence of the loan. Charlie’s office secretary, Esther,
received the summons at Charlie’s office. Charlie failed
to file an answer within the required period, and Alfie
moved to declare Charlie in default and to be allowed to
present evidence ex parte. Ten days later, Charlie filed
his verified answer, raising the defense of full payment
with interest.
Was there proper and valid service of summons on
Charlie? (2013 BAR)
A: NO. There is no showing that earnest efforts were
exerted to personally serve the summons on the defendant
before substituted service was resorted to; the service of
summons was improper.
In an action strictly in personam like a complaint for sum of
money, personal service on the defendant is the preferred
mode of service, that is, by handing a copy of the summons
to the defendant in person. If defendant, for excusable
reasons, cannot be served with summons within a
reasonable period, then substituted service can be resorted
to. (Manotoc v. Court of Appeals, G.R. No. 130974, 16 Aug.
2006). Otherwise stated, it is only when the defendant
cannot be served personally within a reasonable time that a
substituted service may be made. (Galura v. Math-Agro
Corporation, G.R. No. 167230, 14 Aug. 2009)
Since there was no prior attempt to serve the summons in
person, the substituted service to Charlie’s secretary is
invalid.
Q: Tina Guerrero filed with the Regional Trial Court of
Bifian, Laguna, a complaint for sum of money
amounting to PhP 1 million against Carlos Corro. The
complaint alleges, among others, that Carlos borrowed
from Tina the said amount as evidenced by a
promissory note signed by Carlos and his wife, jointly
and severally. Carlos was served with summons which
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
was received by Linda, his secretary. However, Carlos
failed to file an answer to the complaint within the 15-
day reglementary period. Hence, Tina filed with the
court a motion to declare Carlos in default and to allow
her to present evidence ex parte. Five days thereafter,
Carlos filed his verified answer to the complaint,
denying under oath the genuineness and due execution
of the promissory note; and contending that he has fully
paid his loan with interest at 12% per annum. (2006
BAR)
(a) Was the summons validly served on Carlos?
A: The summons was not validly served on Carlos because
it was served on his secretary and the requirements for
substituted service have not been followed, such as a
showing that efforts have been exerted to serve the same on
Carlos and such attempt has failed despite due diligence.
(Manotoc v. CA, G.R. No. 126947, 15 July 1996)
(b) If you were the judge, will you grant Tina's motion
to declare Carlos in default?
A: If I were the judge, I will not grant Tina’s motion to
declare Carlos in default because summons was not
properly served and anyway, a verified answer to the
complaint had already been filed. Moreover, it is better to
decide a case on the merits rather than on technicality.
(UPLC Suggested Answers)
6. CONSTRUCTIVE SERVICE
7. EXTRATERRITORIAL SERVICE
8. PROOF OF SERVICE
I. MOTIONS
(RULE 15)
(2022, 2018, 2016, 2010, 2008, 2003, 2000, 1997 BAR)
1. IN GENERAL
(2010 BAR)
OMNIBUS MOTION RULE
(2010 BAR)
Q: Charisse, alleging that she was a resident of Lapu-
Lapu City, filed a complaint for damages against Atlanta
Bank before the RTC of Lapu-Lapu City, following the
dishonor of a check she drew in favor of Shirley against
her current account which she maintained in the bank’s
local branch. The bank filed a Motion to Dismiss the
complaint on the ground that it failed to state a cause of
action, but it was denied. It thus filed an Answer.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
In the course of the trial, Charisse admitted that she was
a US citizen, residing in Los Angeles, California and that
she was temporarily billeted at the Pescado Hotel in
Lapu-Lapu City, drawing the bank to file another
motion to dismiss, this time on the ground of improper
venue, since Charisse is not a resident of Lapu-Lapu
City. Charisse opposed the motion citing the “omnibus
motion rule.” Rule on the motion. (2010 BAR)
A: The bank’s second motion to dismiss which is grounded
on improper venue should be denied. The improper venue
of an action is deemed waived by the bank’s filing an earlier
motion to dismiss without raising improper venue as an
issue, and more so when the bank filed an Answer without
raising improper venue as an issue after its first motion to
dismiss was denied. Under the “omnibus motion rule” (Sec.
8, Rule 15, now Sec. 9, Rule 15, ROC, as amended) which
governs the bank’s motion to dismiss, such motion should
include all objections then available; otherwise, all
objections not so included shall be deemed waived.
NOTE: Under the 2019 Amendments to the Rules of Civil
Procedure, motions to dismiss, including one on the ground
of improper venue, are generally prohibited.
2. NON-LITIGIOUS MOTIONS
3. LITIGIOUS MOTIONS
4. PROHIBITED MOTIONS
(2022, 2016, 2010, 2000, 1997 BAR)
Q: Ten days after service of summons, defendant Kay
filed a motion to dismiss the complaint for collection of
sum of money against her on the ground of improper
service of summons, on the basis of which the court did
not acquire jurisdiction over her person.
If you were the judge, how would you rule? Explain
briefly. (2022 BAR)
A: If I were the judge, I would deny the motion to dismiss.
Under the Rules of Civil Procedure, a motion to dismiss on a
ground other than lack of subject matter jurisdiction, res
judicata, lis pendens, or prescription is a prohibited motion
and thus should be denied outright. (Sec. 12(a), Rule 15, ROC,
as amended)
Here, the motion to dismiss was based on the improper
service of summons or lack of personal jurisdiction, which
is not among the four grounds allowable in a motion to
dismiss. The motion to dismiss is thus a prohibited motion.
Hence, I would deny the motion to dismiss. (Riguera, 2023)
Q: Pedro and Juan are residents of Barangay Ifurug,
Municipality of Dupac, Mountain Province. Pedro owes
Juan the amount of P50,000.00. Due to nonpayment,
Juan brought his complaint to the Council of Elders of
said barangay which implements the bodong justice
30
 QuAMTO (1987-2022)
system. Both appeared before the council where they the same parties on a different cause of action. (Sec. 47(c),
verbally agreed that Pedro will pay in installments on Rule 39, ROC, as amended)
specific due dates. Pedro reneged on his promise. Juan
filed a complaint for sum of money before the Municipal 5. MOTION FOR BILL OF PARTICULARS
Trial Court (MTC). Pedro filed a Motion to Dismiss on (RULE 12)
the ground that the case did not pass through the (2018, 2008, 2003 BAR)
barangay conciliation under R.A. No. 7160 and that the
RTC, not the MTC, has jurisdiction. In his opposition,
Q: When can a bill of particulars be availed of? What is
Juan argued that the intervention of the Council of
the effect of non-compliance with the order of a bill of
Elders is substantial compliance with the requirement
particulars? (2003 BAR)
of R.A. No. 7160 and the claim of P50,000.00 is clearly
within the jurisdiction of the MTC. As MTC judge, rule
A: Before responding to a pleading, a party may move for a
on the motion and explain. (2016 BAR)
bill of particulars of any matter which is not averred with
sufficient definiteness or particularity to enable him
A: As MTC judge, I would deny the motion to dismiss. Under
properly to prepare his responsive pleading. If the pleading
the Rules of Procedure for Small Claims Cases, a motion to
is a reply, the motion must be filed within ten (10) calendar
dismiss on whatever ground is a prohibited motion. Here
days from service thereof (Sec. 1, Rule 12, ROC, as amended).
the complaint falls under the coverage of the Rules of
If the order is not complied with, the court may order the
Procedure for Small Claims Cases since the claim for sum of
striking out of the pleading or the portions thereof to which
money did not exceed P100,000. Hence the motion to
the order was directed or make such other order as it deems
dismiss filed by Pedro is a prohibited motion and should
just. (Sec. 4, Rule 12, ROC, as amended)
thus be denied.

Q: The Republic of the Philippines (Republic) filed a

NOTE: Pursuant to 1 Mar. 2022 Resolution in A.M. No. 08-
complaint with the Sandiganbayan in connection with
8-7-SC, the jurisdictional amount for small claims cases has
the sequestered assets and properties of Demo
been increased to P2,000,000.00.
Companies Inc. (Demo) and impleaded its officers and
directors. Since the complaint did not include Demo as
Q: What is “res judicata in prison grey”? What are the
defendant, the Sandiganbayan issued a resolution
essential requisites of res judicata? (2000, 2010 BAR)
where it ordered Demo to be impleaded. Thereafter,
the Republic filed an amended complaint naming Demo
A: “Res judicata in prison grey” is the criminal concept of
as additional defendant, which amendment was later
double jeopardy, as “res judicata" is the doctrine of civil law.
admitted. Demo filed a motion for bill of particulars for
(Trinidad v. Office of the Ombudsman, G.R. No. 166038, 04
the Republic to clarify certain matters in its amended
Dec. 2007) Described as “res judicata in prison grey,” the
complaint. The Sandiganbayan immediately granted
right against double jeopardy prohibits the prosecution of a
the motion. Upon submission of the bill of particulars
person for a crime of which he has been previously
by the Republic, Demo filed a motion to dismiss arguing
acquitted or convicted. The purpose is to set the effects of
that the answers in the bill of particulars were
the first prosecution forever at rest, assuring the accused
indefinite and deficient responses to the question of
that he shall not thereafter be subjected to the danger and
what the alleged illegally acquired funds or properties
anxiety of a second charge against him for the same offense.
of Demo were. The Sandiganbayan dismissed the case.
(Caes v. IAC, G.R. Nos. 74989-90, 06 Nov. 1989) The essential
(2018 BAR)
requisites of res judicata are:

(a) Was the Sandiganbayan correct in dismissing the

a. The judgment or order rendered must be final;
case?
b. The court rendering the same must have
jurisdiction of the subject matter and of the parties;
A: NO. The Sandiganbayan is incorrect in dismissing the
c. It must be a judgment or order on the merits; and
case. An action cannot be dismissed on the ground of
d. There must be between the two cases identity of
vagueness or indefiniteness. (Galeon v. Galeon, G.R. L-30380,
parties, identity of subject matter, and identity of
28 Feb. 1973)
causes of action. (San Diego v. Cardona, G.R. No.
46655, 27 June 1940)
ALTERNATIVE ANSWER:

Q: Distinguish bar by prior judgment from

YES. The Sandiganbayan was correct in dismissing the case.
conclusiveness of judgment. (1997 BAR)

Under Sec. 4, Rule 12 of the Rules of Court, the consequence

A: Bar by prior judgment is the doctrine of res judicata,
of insufficient compliance with the court’s order for a bill of
which bars a second action when there is identity of parties,
particulars or a more definite pleading is that the court may
subject matter and cause of action. (Sec. 47(b), Rule 39, ROC,
order the striking out of said pleading or the portions
as amended) Conclusiveness of judgment precludes the
thereof.
relitigation of a particular issue in another action between

31 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
In this case, the Sandiganbayan dismissed the case upon
non-compliance with its order for a definite pleading. The
dismissal of the case was made by the striking out of the
pleading, which in this case was the complaint by the
Republic. In striking out said pleading, no complaint
existed; thus, the Sandiganbayan effectively dismissed the
case.
The Sandiganbayan, therefore, correctly dismissed the case,
as the bill of particulars was deemed insufficient leading to
the striking out of the complaint.
(b) What can the defendant, in a civil case, do in the
event that his motion for bill of particulars is
denied?
A: Under Sec. 5, Rule 12 of the Rules of Court, after notice of
denial of his motion, the moving party may file his
responsive pleading within the period to which he was
entitled at the time of filing his motion, which shall not be
less than five (5) calendar days in any event. If tainted with
grave abuse of discretion, the moving party may question
the denial through a petition for certiorari under Rule 65 of
the Rules of Court.
Q: Within the period for filing a responsive pleading,
the defendant filed a motion for bill of particulars that
he set for hearing on a certain date. However, the
defendant was surprised to find on the date set for
hearing that the trial court had already denied the
motion on the day of its filing, stating that the
allegations of the complaint were sufficiently made.
(2008 BAR)
(a) Did the judge gravely abuse his discretion in acting
on the motion without waiting for the hearing set
for the motion?
A: NO. The judge did not gravely abuse his discretion when
he denied the motion for bill of particulars without waiting
for the hearing set for the motion. Sec. 2, Rule 12 of the Rules
of Court authorizes the court to either deny or grant said
motion outright upon the clerk of court bringing such
motion to the attention of the court. The motion may lack
merit.
(b) If the judge grants the motion and orders the
plaintiff to file and serve the bill of particulars, can
the trial judge dismiss the case if the plaintiff does
not comply with the order?
A: YES. The trial judge can dismiss the case if the plaintiff
failed to comply with the court’s order to file and serve the
needed bill of particulars. Sec. 4, Rule 12 of the Rules of Court
authorizes the court to order the striking out of the pleading
affected, hence the dismissal of the complaint. To the same
end is the provision of Sec. 3, Rule 17 of the Rules of Court
when plaintiff fails to comply for no justifiable cause with
any order of the court or with the Rules.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
J. DISMISSAL OF ACTIONS
(2018, 2017 BAR)
1. WITH PREJUDICE vs. WITHOUT PREJUDICE
(2018, 2017 BAR)
Q: Dick Dixson had sons with different women — (i)
Dexter with longtime partner Delia and (ii) Dongdong
and Dingdong with his housemaid Divina. When Dick
fell ill in 2014, he entrusted all his property titles and
shares of stock in various companies to Delia who, in
turn, handed them to Dexter for safekeeping. After the
death of Dick, Dexter induced Dongdong and Dingdong
to sign an agreement and waiver of their right to Dick’s
estate in consideration of P45 million. As Dexter
reneged on his promise to pay, Dongdong and Dingdong
filed with the RTC of Manila a complaint for annulment
of the agreement and waiver. The summons and
complaint were received by Dalia, the housemaid of
Dexter, on the day it was first served. Hence, Dexter
filed a motion to dismiss on the ground of lack of
jurisdiction over his person. RTC Manila granted the
motion to dismiss.
Dongdong and Dingdong thereafter filed a new
complaint against Dexter for annulment of the
agreement and waiver. Before Dexter could file his
answer, Dongdong and Dingdong filed a motion to
withdraw their complaint praying that it be dismissed
without prejudice. An Order was issued granting the
motion to withdraw without prejudice on the basis that
the summons had not yet been served on Dexter. Dexter
filed a motion for reconsideration of the order of
dismissal. He argued that the dismissal should have
been with prejudice under the “two-dismissal rule” of
Rule 17, Section 1 of the Rules of Court, in view of the
previous dismissal of the first case.
Will the two-dismissal rule apply making the second
dismissal with prejudice? (2018 BAR)
A: NO. The two-dismissal rule will not apply, because the
first dismissal was at the instance of the defendant.
The requirements for the application of the two-dismissal
rule under Sec. 1, Rule 17 are: (a) there was a previous case
that was dismissed by a competent court; (b) both cases
were based on or include the same claim; (c) both notices
for dismissal were filed by the plaintiff; and (d) when the
motion to dismiss filed by the plaintiff was consented to by
the defendant on the ground that the latter paid and
satisfied all the claims of the former. (Ching v. Cheng, G.R. No.
175507, 08 Oct. 2014)
In this case, the third requisite is absent because the first
dismissal was upon the motion to dismiss filed by Dexter;
hence, the two-dismissal rule will not apply.
32
 QuAMTO (1987-2022)
Q: Agatha filed a complaint against Yana in the RTC in
Makati City to collect P350,000.00, an amount
representing the unpaid balance on the price of the car
Yana had bought from Agatha. Realizing a jurisdictional
error in filing the complaint in the RTC, Agatha filed a
notice of dismissal before she was served with the
answer of Yana. The RTC issued an order confirming the
dismissal. Three months later, Agatha filed another
complaint against Yana based on the same cause of
action this time in the MeTC of Makati City. However, for
reasons personal to her, Agatha decided to have the
complaint dismissed without prejudice by filing a
notice of dismissal prior to the service of the answer of
Yana. Hence, the case was dismissed by the MeTC. A
month later, Agatha refiled the complaint against Yana
in the same MeTC. May Yana successfully invoke the
Two-Dismissal Rule to bar Agatha’s third complaint?
Explain your answer. (2017 BAR)
A: NO. Yana cannot successfully invoke the Two-Dismissal
Rule. In order for the Two-Dismissal Rule to apply, Sec. 1,
Rule 17 requires that both dismissals through plaintiff’s
notices were made by a competent court. Moreover, in
Ching v. Cheng (G.R. No. 175507, 08 Oct. 2014), the Supreme
Court ruled that the following requisites should concur for
the Two-Dismissal Rule to apply:
a. There was a previous case that was dismissed by a
competent court;
b. Both cases were based on or include the same
claim;
c. Both notices for dismissal were filed by the
plaintiff; and
d. When the motion to dismiss filed by the plaintiff
was consented to by the defendant on the ground
that the latter paid and satisfied all the claims of
the former.
In this case, the Makati City RTC had no jurisdiction over the
first complaint which was dismissed through Agatha’s
notice, because it is below its jurisdictional amount of at
least P400,000.00. Therefore, the Two-Dismissal Rule
cannot be successfully invoked in this case.
NOTE: R. A. No. 11576, effective August 21, 2021, has now
expanded the jurisdiction of first-level courts. The first-
level courts now have jurisdiction over claims that do not
exceed P2,000,000.00.
2. DISMISSAL WHICH HAVE AN EFFECT
OF AN ADJUDICATION ON THE MERITS
33
K. PRE-TRIAL
(RULE 18)
(2016, 2011 BAR)
1. NATURE AND PURPOSE
(2016 BAR)
Q: What is the “most important witness” rule pursuant
to the 2004 Guidelines of Pretrial and Use of
Deposition-Discovery Measures? Explain. (2016 BAR)
A: The “most important witness” rule pursuant to the 2004
Guidelines of Pretrial and Use of Deposition-Discovery
Measures provides that the judge shall, during the pretrial
conference, determine the most important witnesses to be
heard and limit the number of witnesses.
Q: What is the “one day examination of witness” rule
pursuant to the said 2004 Guidelines? Explain. (2016
BAR)
A: The “one-day examination of a witness” rule pursuant to
the 2004 Guidelines of Pretrial and Use of Deposition-
Discovery Measures provides that a witness has to be fully
examined in one day only, subject to the court’s discretion
to extend the direct and/or cross-examination for
justifiable reasons.
Q: Give three distinctions between a pre-trial in a
criminal case and a pre-trial in a civil case. (1997 BAR)
A: The distinctions between a pre-trial in a criminal case
and a pre-trial in a civil case are as follows:
a. The pre-trial in a criminal case is conducted only
“where the accused and counsel agree” (Rule 118,
Sec. 1, ROC, as amended): while the pre-trial in a
civil case is mandatory. (Sec. 1, Rule 18, now Sec. 2)
b. The pre-trial in a criminal case does not consider
the possibility of a compromise, which is one
important aspect of the pre-trial in a civil case. (Sec.
2, Rule 18, ROC, as amended)
c. In a criminal case, a pre-trial agreement is required
to be reduced to writing and signed by the accused
and his counsel (Sec. 4, Rule 118, ROC, as amended)
while in a civil case, the agreement may be
contained in the pre-trial order. (Sec. 7, Rule 18,
ROC, as amended)
2. APPEARANCE OF THE PARTIES;
EFFECTS OF FAILURE TO APPEAR
(2011 BAR)
Q: What is the consequence of the unjustified absence
of the defendant at the pre-trial? (2011 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: Sec. 5, Rule 18 of the Rules of Court provides that the
failure of the defendant and counsel, despite being duly
notified, to appear without valid cause in the pre-trial shall
be cause to allow the plaintiff to present his or her evidence
ex-parte within ten (10) calendar days from the termination
of the pre-trial, and the court shall render judgment on the
basis of the evidence offered.
3. PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE
L. INTERVENTION
(RULE 19)
(2000 BAR)
Q: What are the requisites for an intervention by a non-
party in an action pending in court? (2000 BAR)
A: The requisites for Intervention are:
a. Legal interest in the matter in controversy; or
b. Legal interest in the success of either of the
parties; or
c. Legal interest against both; or
d. So situated as to be adversely affected by a
distribution or other disposition of property in
the custody of the court or of an officer thereof.
e. Intervention will not unduly delay or prejudice
the adjudication of the rights of original
parties;
f. Intervenor’s rights may not be fully protected
in a separate proceeding. (Acenas v. CA, G.R. No.
107762, 29 Aug. 1995; Sec. 1, Rule 19, ROC, as
amended)
M. SUBPOENA
(RULE 21)
(2009 BAR)
Q: TRUE or FALSE. The viatory right of a witness served
with a subpoena ad testificandum refers to his right not
to comply with the subpoena. (2009 BAR)
A: FALSE. The viatory right of a witness, embodied in Sec.
10, Rule 21 of the Rules of Civil Procedure, refers to his right
not to be compelled to attend upon a subpoena, by reason
of the distance from the residence of the witness to the place
where he is to testify. It is available only in civil cases.
(People v. Montejo, G.R. No. L-24154, 31 Oct. 1967) Under Sec.
10, Rule 21, the said witness may not be compelled if he
resides more than one hundred (100) kilometers from his
residence to the place where he is to testify by the ordinary
course of travel.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
N. COMPUTATION OF TIME
(RULE 22)
O. MODES OF DISCOVERY
(2016, 2015, 2009, 2008, 2002, 2000, 1997 BAR)
Q: Describe briefly at least five (5) modes of discovery
under the Rules of Court. (2000 BAR)
A: The modes of discovery under the Rules of Court are:
1. Deposition - Upon ex parte motion of a party, the
testimony of any person, whether a party or not, may
be taken by deposition upon oral examination or
written interrogatories (Sec. 1, Rule 23, ROC, as
amended);
2. Interrogatories to parties - Under the same
conditions specified in section 1 of Rule 23, any party
shall file and serve upon any adverse party written
interrogatories regarding material and relevant facts
to be answered by the party served (Sec. 1, Rule 25,
ROC, as amended);
3. Admission by adverse party - At any time after
issues have been joined, a party may file and serve
upon any other party a written request for the
admission by the latter of the genuineness of any
material and relevant document or of the truth of any
material and relevant matter of fact (Sec. 1, Rule 26,
ROC, as amended);
4. Production or inspection of documents or things -
Upon motion of any party showing good cause
therefor, a court may order any party to produce and
permit the inspection and copying or photographing
of any designated documents, etc. or order any party
to permit entry upon designated land or property for
inspecting, measuring, surveying, or photographing
the property or any designated relevant object or
operation thereon (Sec. 1, Rule 27, ROC, as amended);
and
5. Physical and mental examination of persons - In an
action in which the mental or physical condition of a
party is in controversy, the court in which the action
is pending may in its discretion order him to submit
to a physical or mental examination by a physician.
(Sec. 1, Rule 28, ROC, as amended; Answered under the
2019 Amendments to the Rules of Civil Procedure)
1. DEPOSITIONS
(RULES 23 AND 24)
34
 QuAMTO (1987-2022)
2. INTERROGATORIES TO PARTIES
(RULE 25)
(2016 , 2008 BAR)
Q: Briefly explain the procedure in “Interrogatories to
Parties” under Rule 25 and state the effect of failure to
serve written interrogatories. (2016 BAR)
A:
1. Any party desiring to elicit material and relevant
facts from any adverse parties shall file and serve
upon the latter written interrogatories to be
answered by the party served or, if the party served
is a public or private corporation or a partnership
or association, by any officer thereof competent to
testify in its behalf (Sec. 1, Rule 25, ROC, as
amended).
2. The interrogatories shall be answered fully in
writing and shall be signed and sworn to by the
person making them. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party submitting
the interrogatories within fifteen (15) days after
service thereof, unless the court on motion and for
good cause shown, extends or shortens the time
(Sec. 2, Rule 25, ROC, as amended)
3. Objections to any interrogatories may be presented
to the court within ten (10) calendar days after
service thereof, with notice as in case of a motion;
and answers shall be deferred until the objections
are resolved, which shall be at as early a time as is
practicable. (Sec. 3, Rule 25, ROC, as amended)
4. Should a party fail to file and serve written
interrogatories on an adverse party, he cannot
compel the latter to give testimony in open court or
to give deposition pending appeal, unless allowed
by the court for good cause shown and to prevent
failure of justice. (Sec. 6, Rule 25, ROC, as amended;
Spouses Afulugencia v. Metrobank, G.R. No. 185145,
05 Feb. 2014)
Q: An heir/oppositor in a probate proceeding filed a
motion to remove the administrator on the grounds of
neglect of duties as administrator and absence from the
country. On his part the heir/oppositor served written
interrogatories to the administrator preparatory to
presenting the latter as a witness. The administrator
objected, insisting that the modes of discovery apply
only to ordinary civil actions, not special proceedings.
Rule on the matter. (2008 BAR)
A: The administrator’s contention that the modes of
discovery apply only to ordinary civil action and not to
special proceedings is not correct. Sec. 2, Rule 72 of the Rules
of Court, as amended provides that in the absence of special
provisions, the rules provided for in ordinary civil actions
35
shall be, as far as practicable, applicable in special
proceedings. There is no provision to the contrary that
would preclude the application of the modes of discovery,
specifically Interrogatories to Parties under Rule 25 of the
Rules, to probate proceedings.
Q: A tugboat owned by Speedy Port Service, Inc. (SPS)
sank in Manila Bay while helping tow another vessel,
drowning five (5) of the crew in the resulting
shipwreck. At the maritime board inquiry, the four (4)
survivors testified. SPS engaged Atty. Ely to defend it
against potential claims and to sue the company owning
the other vessel for damages to the tug. Ely obtained
signed statements from the survivors. He also
interviewed other persons, in some instances making
memoranda. The heirs of the five (5) victims filed an
action for damages against SPS. Plaintiffs' counsel sent
written interrogatories to Ely, asking whether
statements of witnesses were obtained; if written,
copies were to be furnished; if oral, the exact provisions
were to be set forth in detail. Ely refused to comply,
arguing that the documents and information asked are
privileged communication. Is the contention tenable?
Explain. (2008 BAR)
A: YES. The contention of counsel for SPS is tenable
considering that he was acting in his professional capacity
in bringing about the statement he obtained from witnesses
and the memoranda he made. The notes, memoranda, and
writings made by counsel in pursuance of his pursuance of
his professional duty, form part of his private and
confidential files in the cases handled by him; hence
privileged. (Air Philippines Corp. v. Pennswell, Inc., G.R. No.
172835, 13 Dec. 2007)
3. ADMISSION BY ADVERSE PARTY
(RULE 26)
(2016 BAR)
Q: Briefly explain the procedure on “Admission by
Adverse Party” under Rule 26 and the effect of failure to
file and serve the request. (2016 BAR)
A:
1. At any time after issues have been joined, a party
may file and serve upon any party a written request
for the admission by the latter of the genuineness
of any material and relevant document described in
and exhibited with the request or of the truth of any
material and relevant matter of fact set forth in the
request. Copies of the documents shall be delivered
with the request unless copies have already been
furnished (Sec. 1, Rule 26, ROC, as amended).
2. Each of the matters of which an admission is
requested shall be deemed admitted unless, within
a period designated in the request, which shall not
be less than fifteen (15) calendar days after service
thereof, or within such further time as the court
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
may allow on motion, the party to whim the
request directed files and serves upon the party
requesting the admission a sworn statement either
denying specifically the matters of which an
admission is requested or setting forth in detail the
reasons why he cannot truthfully either admit or
deny those matters. (Sec. 2, Rule 26, ROC, as
amended)
3. Objections to any request for admission shall be
submitted to the court by the party requested
within the period for and prior to the filing of his
sworn statement as contemplated in the preceding
paragraph and his compliance therewith shall be
deferred until such obligations are resolved, which
resolution shall be made as early as practicable.
(Sec. 2, Rule 26, ROC, as amended)
4. Any admission made by a party pursuant to such
request is for the purpose of the pending action
only and shall not constitute an admission by him
for any other purpose nor may the same be used
against him in any other proceeding. (Sec. 3, Rule
26, ROC, as amended)
5. Unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice a
party who fails to file and serve a request for
admission on the adverse party of material and
relevant facts at issue which are or ought to be,
within the personal knowledge of the latter, shall
not be permitted to present evidence on such facts.
(Sec. 5, Rule 26, ROC, as amended)
4. PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS
(RULE 27)
(2009, 2002, 1997 BAR)
Q: Continental Chemical Corporation (CCC) filed a
complaint for a sum of money against Barstow Trading
Corporation (BTC) for the latter’s failure to pay for its
purchases of industrial chemicals. In its answer, BTC
contended that it refused to pay because CCC
misrepresented that the products it sold belonged to a
new line, when in fact they were identical with CCC’s
existing products. To substantiate its defense, BTC filed
a motion to compel CCC to give a detailed list of the
products’ ingredients and chemical components,
relying on the right to avail of the modes of discovery
allowed under Rule 27. CCC objected, invoking
confidentiality of the information sought by BTC.
Resolve BTC’s motion with reasons. (2009 BAR)
A: I will deny the motion. The ingredients and chemical
components of CCC’s products are trade secrets within the
contemplation of the law. Trade secrets may not be the
subject of compulsory disclosure by reason of their
confidential and privileged character. Otherwise, CCC
would eventually be exposed to unwarranted business
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
competition with others who may imitate and market the
same kinds of products in violation of CCC’s proprietary
rights. Being privileged, the detailed list of ingredients and
chemical components may not be the subject of mode of
discovery under Sec. 1, Rule 27 of the Rules of Court, as
amended which expressly makes privileged information an
exception from its coverage. (Air Philippines Corporation v.
Pennswell, Inc., G.R. No. 172835, 13 Dec. 2007)
Q: The plaintiff sued the defendant in the RTC to collect
on a promissory note, the terms of which were stated in
the complaint and a photocopy attached to the
complaint as an annex. Before answering, the
defendant filed a motion for an order directing the
plaintiff to produce the original of the note so that the
defendant could inspect it and verify his signature and
the handwritten entries of the dates and amounts.
(2002 BAR)
(a) Should the judge grant the defendant’s motion for
production and inspection of the original of the
promissory note? Why?
A: YES. Upon motion of any party showing good cause, the
court in which the action is pending may order any party to
produce and permit the inspection of designated
documents (Rule 27, ROC, as amended). The defendant has
the right to inspect and verify the original of the promissory
note so that he could intelligently prepare his answer.
(b) Assuming that an order for production and
inspection was issued but the plaintiff failed to
comply with it, how should the defendant plead to
the alleged execution of the note?
A: The defendant may file a motion to dismiss the complaint
because of the refusal of the plaintiff to obey the order of the
court for the production and inspection of the promissory
note. (Sec. 3(c), Rule 29, ROC, as amended)
Q: In an admiralty case filed by A against Y Shipping
Lines (whose principal offices are in Manila) in the RTC
Davao City, the court issued a subpoena duces tecum
directing Y, the president of the shipping company, to
appear and testify at the trial and to bring with him
several documents. (1997 BAR)
(a) On what valid ground can Y refuse to comply with
the subpoena duces tecum?
A: Y can refuse to comply with the subpoena duces tecum on
the ground that he resides more than 100 kilometers from
the place where he is to testify (Sec. 10, Rule 21, ROC, as
amended). The witness can also refuse to comply with the
subpoena duces tecum on the ground that the documents are
not relevant and there was no tender of fees for one day’s
attendance and the kilometrage allowed by the rules.
(b) How can A take the testimony of Y and present the
documents as exhibits other than through the
subpoena from the RTC?
36
 QuAMTO (1987-2022)
A: A can take the testimony of Y and present the documents
as exhibits by taking his deposition through oral
examination or written interrogatories (Rule 23, ROC, as
amended). He may also file a motion for the production or
inspection of documents. (Rule 27, ROC, as amended)
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(RULE 28)
(2015 BAR)
Q: Ernie filed a petition for guardianship over the
person and properties of his father, Ernesto. Upon
receipt of the notice of hearing, Ernesto filed an
opposition to the petition. Ernie, before the hearing of
the petition, filed a motion to order Ernesto to submit
himself for mental and physical examination which the
court granted.
After Ernie's lawyer completed the presentation of
evidence in support of the petition and the court's
ruling on the formal offer of evidence, Ernesto's lawyer
filed a demurrer to evidence. Ernie's lawyer objected
on the ground that a demurrer to evidence is not proper
in a special proceeding.
If Ernesto defies the court's order directing him to
submit to physical and mental examinations, can the
court order his arrest? (2015 BAR)
A: If the order for the conduct of physical and mental
examination is issued as a mode of discovery and Ernesto
defies the said order, the court cannot validly order his
arrest. (Sec. 3[d], Rule 29, ROC, as amended)
6. REFUSAL TO COMPLY WITH MODES OF DISCOVERY
(RULE 29)
P. TRIAL
(RULE 30)
1. SCHEDULE OF TRIAL
2. ADJOURNMENT AND POSTPONEMENTS
3. REQUISITES OF MOTION TO POSTPONE TRIAL
FOR ILLNESS OF PARTY OR COUNSEL
Q. CONSOLIDATION OR SEVERANCE
(RULE 31)
37
R. DEMURRER TO EVIDENCE
(RULE 33)
(2015, 2004, 2003 BAR)
1. GROUNDS
2. EFFECT OF ORDER DENYING
DEMURRER TO EVIDENCE
(2015, 2004, 2003 BAR)
Q: AX, a Makati-bound paying passenger of PBU, a
public utility bus, died instantly on board the bus on
account of the fatal head wounds he sustained as a
result of the strong impact of the collision between the
bus and a dump truck that happened while the bus was
travelling on EDSA towards Makati. The foregoing facts,
among others, were duly established on evidence-in-
chief by the plaintiff TY, sole heir of AX, in TY’s action
against the subject common carrier for breach of
contract of carriage. After TY had rested his case, the
common carrier filed a demurrer to evidence,
contending that plaintiff’s evidence is insufficient
because it did not show (1) that defendant was
negligent and (2) that such negligence was the
proximate cause of the collision. Should the court grant
or deny defendant’s demurrer to evidence? Reason
briefly. (2004 BAR)
A: NO. The Court should not grant defendant’s demurrer to
evidence because the case is for breach of contract of
carriage. Proof that the defendant was negligent and that
such negligence was the proximate cause of the collision is
not required. (Arts. 1170 and 2201, NCC; Mendoza v. Phil
Airlines, Inc., G.R. No. L- 3678, 29 Feb. 1952; Batangas
Transportation Co. v. Caguimbal, G.R. No. L-22985, 24 Jan.
1968; Abeto v. PAL, G.R. No. L-28692, 30 July 1982)
DEMURRER TO EVIDENCE IN A CIVIL CASE vs.
DEMURRER TO EVIDENCE IN A CRIMINAL CASE
(2015, 2003 BAR)
Q: Ernie filed a petition for guardianship over the
person and properties of his father, Ernesto. Upon
receipt of the notice of hearing, Ernesto filed an
opposition to the petition. Ernie, before the hearing of
the petition, filed a motion to order Ernesto to submit
himself for mental and physical examination which the
court granted.
After Ernie's lawyer completed the presentation of
evidence in support of the petition and the court's
ruling on the formal offer of evidence, Ernesto's lawyer
filed a demurrer to evidence. Ernie's lawyer objected
on the ground that a demurrer to evidence is not proper
in a special proceeding. Was Ernie's counsel's objection
proper? (2015 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: NO. In Matute v. Court of Appeals (G.R. No. 26751, 31 Jan.
1969), the Supreme Court has held that the rule on
demurrer to evidence is applicable in special proceedings.
Moreover, under Sec 2, Rule 72, in the absence of special
rules, the rules provided for in ordinary actions shall be
applicable, as far as practicable, to special proceedings.
Q: Compare the effects of denial of demurrer to
evidence in a civil case with those of a denial of
demurrer to evidence in a criminal case. (2003 BAR)
A: In a civil case, the defendant has the right to file a
demurrer to evidence without leave of court. If his
demurrer is denied, he has the right to present evidence. If
his demurrer is granted and on appeal by the plaintiff, the
appellate court reverses the order and renders judgment
for the plaintiff, the defendant loses his right to present
evidence. (Rule 33, ROC, as amended)
In a criminal case, the accused has to obtain leave of court
to file a demurrer to evidence. If he obtains leave of court
and his demurrer to evidence is denied, he has the right to
present evidence in his defense. If his demurrer to evidence
is granted, he is acquitted, and the prosecution cannot
appeal. If the accused does not obtain leave of court and his
demurrer to evidence is denied, he is deemed to have
waived his right to present evidence and the case is decided
on the basis of the evidence for the prosecution. The court
may also dismiss the action on the ground of insufficiency
of the evidence on its own initiative after giving the
prosecution the opportunity to be heard. (Sec. 23, Rule 119,
ROC, as amended)
S. JUDGMENTS AND FINAL ORDERS
(2019, 2016, 2015, 2012, 2006, 2005 BAR)
Q: What is the difference between a judgment and an
opinion of the court? (2006 BAR)
A: The judgment or fallo is the final disposition of the court
which is reflected in the dispositive portion of the decision,
while the opinion of the court is contained in the body of the
decision that serves as a guide or enlightenment to
determine the ratio decidendi of the decision. (UPLC
Suggested Answers)
SUMMARY JUDGMENT vs.
JUDGMENT ON THE PLEADINGS
(2016 BAR)
Q: Royal Bank (Royal) filed a complaint for a sum of
money against Ervin and Jude before the RTC of Manila.
The initiatory pleading averred that on February 14,
2010, Ervin obtained a loan from Royal in the amount
of P1 million, as evidenced by Promissory Note No. 007
(PN) signed by Ervin. Jude signed a Surety Agreement
binding herself as surety for the loan. Royal made a
final demand on February 14, 2015 for Ervin and Jude
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
(defendants) to pay, but the latter failed to pay. Royal
prayed that defendants Ervin and Jude be ordered to
pay the amount of P1 million plus interests.
In their answer, Ervin admitted that he obtained the
loan from Royal and signed the PN. Jude also admitted
that she signed the Surety Agreement. Defendants
pointed out that the PN did not provide the due date for
payment, and that the loan has not yet matured as the
maturity date was left blank to be agreed upon by the
parties at a later date. Defendants filed a Motion for a
Judgment on the Pleadings on the ground that there is
no genuine issue presented by the parties’ submissions.
Royal opposed the motion on the ground that the PN’s
maturity is an issue that must be threshed out during
trial. (2016 BAR)
(a) Resolve the motion with reasons.
A: The motion for judgment on the pleadings should be
denied.
First, judgment on the pleadings is available to the plaintiff
and not to the defendant.
Second, judgment on the pleadings is proper only when the
Answer fails to tender any issue, that is, if it does not deny
the material allegations in the complaint or admits said
material allegations of the adverse party’s pleadings by
admitting the truthfulness thereof and/or omitting to deal
with them at all.
Here, while the defendants’ Answer to the Complaint
practically admitted all the material allegations therein, it
nevertheless asserts the affirmative defenses that the loan
is not yet due. As issues obviously arise from these
affirmative defenses, a judgment on the pleadings is clearly
improper in this case.
Besides, it should be emphasized that judgement on the
pleadings is based exclusively upon the allegations
appearing in the pleadings of the parties and the annexes, if
any, without consideration of any evidence aliunde.
Henceforth, when it appears that not all the material
allegations of the complaint were admitted in the answer
for some of them were either denied or disputed, and the
defendant has set up certain special defenses which, if
proven, would have the effect of nullifying plaintiff’s main
cause of action, judgment on the pleadings cannot be
rendered. (PNB v. Aznar, G.R. No. 171805, 30 May 2011)
(b) Distinguish “Summary Judgment” and “Judgment
on the Pleadings.”
A: What distinguishes a judgment on the pleadings from a
summary judgment is the presence of issues in the Answer
to the Complaint. When the Answer fails to tender any issue,
that is, if it does not deny the material allegations in the
complaint or admits said material allegations of the adverse
party’s pleading by admitting the truthfulness thereof
38
 QuAMTO (1987-2022)
and/or omitting to deal with them at all, a judgment on the
pleadings is appropriate.
On the other hand, when the Answer specifically denies the
material averments of the complaint or asserts affirmative
defenses, or in other words raises an issue, a summary
judgment is proper provided that the issue raised is not
genuine. A genuine issue means an issue of face which calls
for the presentation of evidence, as distinguished from an
issue which is fictitious or contrived or which does not
constitute a genuine issue for trial. (Basbas v. Sayson, G.R.
No. 172660, 24 Aug. 2011)
1. JUDGMENT ON THE PLEADINGS
(RULE 34)
(2019, 2015, 2012, 2005, 1999 BAR)
a) GROUNDS
(1999 BAR)
Q: What are the grounds for judgment on the pleadings?
(1999 BAR)
A: The grounds for judgment on the pleadings are: (a)
where an answer fails to tender an issue, or (b) otherwise
admits the material allegations of the adverse party’s
pleading (Sec. 1, Rule 34, ROC, as amended).
b) ACTION ON MOTION FOR JUDGMENT ON PLEADINGS
(2019, 2015, 2012, 2005 BAR)
Q: Ms. A filed a complaint for damages against Ms. B,
alleging that Ms. B negligently caused the demolition of
her house's concrete fence, the top half of which fell on
the front portion of Ms. A's car and permanently
damaged its engine. In her answer, Ms. B denied any
personal liability for the damage caused to Ms. A's car,
averring that she merely acquiesced to the advice of her
contractor, XYZ Construction Co., to have the concrete
fence demolished. Thus, damages, if any, should be
collected from it.
Thereafter, Ms. A filed a motion for judgment on the
pleadings, alleging that Ms. B's statement in her answer
is actually a negative pregnant. Ms. B opposed the
motion, reiterating her defense in her answer which
purportedly rendered judgment on the pleadings
improper. Ms. B also moved for the dismissal of the case
on the ground of non-joinder of XYZ Construction Co.,
which she alleged is an indispensable party to the case.
Is Ms. A's motion for judgment on the pleadings proper?
Explain. (2019 BAR)
A: YES. When an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse
party’s pleading, judgment on the pleadings is appropriate.
The rule is stated in Sec. 1, Rule 34 of the Rules of Court. In
this relation, jurisprudence dictates that an answer fails to
39
tender an issue it does not comply with the requirements of
a specific denial as set out in Secs. 8 and 10 of Rule 8 of the
Rules of Court, resulting in the admission of the material
allegations of the adverse party’s pleadings.
As such, it is a form of judgment that is exclusively based on
the submitted pleadings without the introduction of
evidence as the factual issues remain uncontroverted as in
the case of Ms. B. (Government Service Insurance System v.
Prudential Guarantee and Assurance, Inc., G.R. No. 165585, 20
Nov. 2013).
Q: Plaintiff sued defendant for collection of P1 million
based on the latter's promissory note. The complaint
alleges, among others:
1. Defendant borrowed Php 1 million from
plaintiff as evidenced by a duly executed
promissory note;
2. The promissory note reads:
“Makati, Philippines Dec. 30, 2014
For value received from plaintiff, defendant promises
to pay plaintiff Ill million, twelve (12) months from the
above indicated date without necessity of demand.
Signed Defendant
A copy of the promissory note is attached as Annex “A.”
Defendant, in his verified answer, alleged among
others:
1. Defendant specifically denies the allegation in
paragraphs 1 and 2 of the complaint, the truth
being defendant did not execute any
promissory note in favor of plaintiff, or
2. Defendant has paid the Ill million claimed in
the promissory note (Annex “A” of the
Complaint) as evidenced by an
“Acknowledgment Receipt” duly executed by
plaintiff on January 30, 2015 in Manila with his
spouse signing as witness.
A copy of the “Acknowledgment Receipt” is attached as
Annex “1” hereof.
Plaintiff filed a motion for judgment on the pleadings on
the ground that defendant's answer failed to tender an
issue as the allegations therein on his defenses are
sham for being inconsistent; hence, no defense at all.
Defendant filed an opposition claiming his answer
tendered an issue.
Is judgment on the pleadings proper? (2015 BAR)
A: NO. The judgment on the pleadings is not proper.
Judgment on the pleading is proper only when the answer
fails to tender an issue, or otherwise admits the material
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
allegations of the adverse party’s pleading (Sec. 1, Rule 34,
ROC, as amended).
When it appears, however, that not all the material
allegations of the complaint were admitted in the answer,
because some of them were either denied or disputed, and
the defendant has set up certain special defenses which, if
proven, would have the effect of nullifying plaintiff’s main
cause of action, judgment on the pleadings cannot be
rendered (PNB v. Aznar, G.R. No. 17105, 30 May 2011).
Clearly, since the defendant’s verified Answer specifically
denied the execution of the promissory note, or raised the
affirmative of payment, judgment on the pleading is not
proper.
Q: Plaintiff files a request for admission and serves the
same on Defendant who fails, within the time
prescribed by the rules, to answer the request. Suppose
the request for admission asked for the admission of
the entire material allegations stated in the complaint,
what should plaintiff do? (2012 BAR)
A: The plaintiff should file a Motion for Judgment on the
Pleadings because the failure of the defendant to answer a
request for admission results to an implied admission of all
the matters which an admission is requested. Hence, a
motion for judgment on the pleadings is the appropriate
remedy where the defendant is deemed to have admitted
matters contained in the request for admission by the
plaintiff. (Rule 34, in relation to Sec. 2, Rule 26, ROC, as
amended)
Q: In a complaint for recovery of real property, the
plaintiff averred, among others, that he is the owner of
the said property by virtue of a deed of sale executed by
the defendant in his favor. Copy of the deed of sale was
appended to the complaint as Annex “A” thereof. In his
unverified answer, the defendant denied the allegation
concerning the sale of the property in question, as well
as the appended deed of sale, for lack of knowledge or
information sufficient to form a belied as to the truth
thereof. Is it proper for the court to render judgment
without trial? Explain (2005 BAR)
A: YES. Defendant cannot deny the sale of the property for
lack of knowledge or information sufficient to form a belied
as to the truth thereof. The answer amounts to an
admission. The defendant must aver or state positively how
it is that he is ignorant of the facts alleged (Phil. Advertising
Counselors, Inc. v. Revilla, G.R. No. L-31869, 08 Aug. 1973; Sec.
10, Rule 8, ROC, as amended). Moreover, the genuineness
and due execution of the deed of sale can only be denied by
the defendant under oath and failure to do so is also an
admission of the deed (Sec. 8, Rule 8, ROC, as amended).
Hence, a judgment in the pleadings can be rendered by the
court without need of a trial.
Q: A brought an action against her husband B for
annulment of their marriage on the ground of
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
psychological incapacity, B filed his Answer to the
Complaint admitting all the allegations therein
contained. May A move for judgment on the pleadings?
Explain. (1999 BAR)
A: NO. Even if B’s answer to A’s complaint annulment of
their marriage admits all the allegations therein contained,
the material facts alleged in the complaint must always be
proved. (Sec. 1, Rule 34, ROC, as amended) The court shall
order the prosecutor to investigate whether or not a
collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that
the evidence submitted is not fabricated. (Sec. 3(e), Rule 9,
ROC, as amended)
2. SUMMARY JUDGMENTS
(RULE 35)
(2015 BAR)
a) EFFECT OF ORDER DENYING A MOTION
FOR SUMMARY JUDGMENT
(2015 BAR)
Q: Plaintiff sued defendant for collection of P1 million
based on the latter's promissory note. The complaint
alleges, among others:
3. Defendant borrowed Php 1 million from
plaintiff as evidenced by a duly executed
promissory note;
4. The promissory note reads:
“Makati, Philippines Dec. 30, 2014
For value received from plaintiff, defendant promises
to pay plaintiff Ill million, twelve (12) months from the
above indicated date without necessity of demand.
Signed Defendant
A copy of the promissory note is attached as Annex “A.”
Defendant, in his verified answer, alleged among
others:
3. Defendant specifically denies the allegation in
paragraphs 1 and 2 of the complaint, the truth
being defendant did not execute any
promissory note in favor of plaintiff, or
4. Defendant has paid the Ill million claimed in
the promissory note (Annex “A” of the
Complaint) as evidenced by an
“Acknowledgment Receipt” duly executed by
plaintiff on January 30, 2015 in Manila with his
spouse signing as witness.
A copy of the “Acknowledgment Receipt” is attached as
Annex “1” hereof.
40
 QuAMTO (1987-2022)
Plaintiff filed a motion for judgment on the pleadings on
the ground that defendant's answer failed to tender an
issue as the allegations therein on his defenses are
sham for being inconsistent; hence, no defense at all.
Defendant filed an opposition claiming his answer
tendered an issue.
Defendant filed a motion for summary judgment on the
ground that there are no longer any triable genuine
issues of facts. Should the court grant defendant's
motion for summary judgment? (2015 BAR)
A: NO. The court should not grant the motion for summary
judgment because the defense of payment is a genuine issue
as to material fact that must be resolved by the court upon
presentation of evidence.
For a summary judgment to be proper, the movant must
establish two requisites: (a) there must be no genuine issue
as to any material fact, except for the amount of damages;
and (b) the party presenting the motion for summary
judgment must be entitled to a judgment as a matter of law.
A genuine issue is an issue of fact which requires the
presentation of evidence as distinguished from an issue
which is sham, fictitious, contrived or false claim.
Relative thereto, when the facts pleaded by the parties are
disputed or contested, proceedings for a summary
judgment cannot take place of a trial. The evidence on
record must be viewed in light most favorable to the party
opposing the motion who must be given the benefit of all
favorable inferences as can reasonably be drawn from the
evidence. (Smart Communications v. Aldecoa, G.R. No.
166330, 11 Sept. 2013)
3. RENDITION AND ENTRY OF JUDGMENTS
AND FINAL ORDERS
(RULE 36)
T. POST-JUDGMENT REMEDIES
(2022, 2020-21, 2019, 2017, 2016, 2014, 2013, 2012,
2009, 2008, 2007, 2006, 2004, 2002, 1999, 1998 BAR)
1. MOTION FOR NEW TRIAL OR RECONSIDERATION
RULE 37
(2016, 2013 BAR)
Q: When may a party file a second motion for
reconsideration of a final judgment or final order?
(2013 BAR)
A: Under the 2019 amendments, the Rules of Court expressly
provides that no second motion for reconsideration of a
judgment or final resolution by the same party shall be
entertained. (Sec. 2, Rule 52, ROC, as amended) Case law
explains that “the rule rests on the basic tenet of
41
immutability of judgments which evokes that at some point,
a decision must become final and executory and,
consequently, all litigations must come to an end.” (Carreon
v. Aguillon, G.R. No. 240108, 29 June 2020)
Note: The Carreon case is more recent but a ruling is made
in Fortune Life Insurance Company v. COA (G.R. No. 213525,
21 Nov. 2017):
“Sec. 2, Rule 52 of the Rules of Court prohibits a second
motion for reconsideration by the same party. Sec. 3, Rule
15 of the Internal Rules of the Supreme Court echoes the
prohibition, providing thusly:
Section 3. Second motion for reconsideration. - The
Court shall not entertain a second motion for
reconsideration, and any exception to this rule can
only be granted in the higher interest of justice by
the Court en banc upon a vote of at least two-thirds
of its actual membership.
There is reconsideration “in the higher interest of
justice” when the assailed decision is not only
legally erroneous but is likewise patently unjust
and potentially capable of causing unwarranted
and irremediable injury or damage to the parties. A
second motion for reconsideration can only be
entertained before the ruling sought to be
reconsidered becomes final by operation of law or
by the Court's declaration.”
a) REMEDY AGAINST DENIAL
b) FRESH-PERIOD RULE
(2016 BAR)
Q: Miguel filed a Complaint for damages against Jose,
who denied liability and filed a Motion to Dismiss on the
ground of failure to state a cause of action. In an Order
received by Jose on January 5, 2015, the trial court
denied the Motion to Dismiss. On February 4, 2015, Jose
sought reconsideration of that Order through a Motion
for Reconsideration. Miguel opposed the Motion for
Reconsideration on the ground that it was filed out of
time. Jose countered that the 15-day rule under Section
1 of Rule 52 does not apply where the Order sought to
be reconsidered is an interlocutory order that does not
attain finality. Is Jose correct? Explain. (2016 BAR)
A: YES, Jose is correct. The 15-day period to file a motion for
reconsideration under Sec. 1 of Rule 52 of the Rules of Court
refers to a motion for reconsideration of a judgment or final
resolution or order.
Here, what is involved is an order denying a motion to
dismiss, which is not a final order as it does not terminate
the case. The order is simply an interlocutory order which
may be reconsidered by the trial court at any time during
the pendency of the case. (Rasdas v. Estenor, G.R. No. 157605,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
13 Dec. 2005) It should also be noted that Miguel did not file e) MODES OF APPEAL
a motion to declare Jose in default. (PERIOD, PERFECTION, ISSUES TO BE RAISED)
(2022, 2012, 2009, 2008, 2002, 1999, 1998 BAR)
2. APPEALS
(2022, 2020-21, 2012, 2009, 2008, 2006, 2004, 2002, (1) APPEAL FROM MUNICIPAL TRIAL COURTS
1999, 1998 BAR) TO REGIONAL TRIAL COURTS
(RULE 40)
a) NATURE OF RIGHT TO APPEAL
(2) APPEAL FROM REGIONAL TRIAL COURTS
(RULE 41)
b) JUDGMENTS AND FINAL ORDERS (2020-21, 2009, 2008, 2002, 1999 BAR)
SUBJECT TO APPEAL
Q: Distinguish the two (2) modes of appeal from the
c) MATTERS NOT APPEALABLE; AVAILABLE REMEDIES judgment of the Regional Trial Court to the Court of
(2006, 2004 BAR) Appeals. (2009 BAR)

A: In cases decided by the Regional Trial Courts in the

Q: What is an interlocutory order? (2006 BAR)
exercise of their original jurisdiction, appeals to the Court of
Appeals shall be ordinary appeal by filing written notice of
A: An interlocutory order is an order which decides some
appeal indicating the parties to the appeal; specifying the
point or matter between the commencement and end of the
judgment/final order or part thereof appealed from;
suit, but it is not the final decision on the whole controversy.
specifying the court to which the appeal is being taken; and
It leaves something to be done by the court before the case
stating the material dates showing the timeliness of the
is finally decided on the merits. (Metropolitan Bank & Trust
appeal. The notice of appeal shall be filed with the RTC
Co. v. CA, G.R. No. 110147, 17 Apr. 2001; Gallardo v. People,
which rendered the judgment appealed from and copy
G.R. No. 142030, 25 Apr. 2005)
thereof shall be served upon the adverse party within 15
days from notice of judgment or final order appealed from.
Q: After defendant has served and filed his answer to
But if the case admits of multiple appeals or is a special
plaintiff’s complaint for damages before the proper
proceeding, a record on appeal is required aside from the
RTC, plaintiff served and filed a motion (with
written notice of appeal to perfect the appeal, in which case
supporting affidavits) for a summary judgment in his
the period for appeal and notice upon the adverse party is
favour upon all of his claims. Defendant served and filed
not only 15 days but 30 days from notice of judgment or
his opposition (with supporting affidavits) to the
final order appealed from. The full amount of the appellate
motion. After due hearing, the court issued an order (1)
court docket fee and other lawful fees required must also be
stating that the court has found no genuine issue as to
paid within the period for taking an appeal, to the clerk of
any material fact and thus concluded that plaintiff is
the court which rendered the judgment or final order
entitled to judgment in his favour as a matter of law
appealed from. (Secs. 4 and 5, Rule 41, ROC, as amended) The
except as to the amount of damages recoverable, and
periods of 15 or 30 days above stated are non-extendible.
(2) accordingly ordering that plaintiff shall have
judgment summarily against defendant for such
In cases decided by the Regional Trial Court in the exercise
amount as may be found due plaintiff for damages, to be
of its appellate jurisdiction, appeal to the Court of Appeals
ascertained by trial on October 7, 2004, at 8:30 o’clock
shall be by filing a verified petition for review with the Court
in the morning. May defendant properly take an appeal
of Appeals and furnishing the RTC and the adverse party
from said order? Or may defendant properly challenge
with copy thereof, within 15 days from notice of judgment
said order thru a special civil action for certiorari?
or final order appealed from. Within the same period for
Reason. (2004 BAR)
appeal, the docket fee and other lawful fees required with
the deposit for cost should be paid. The 15-day period
A: NO. The plaintiff may not properly take an appeal from
maybe extended for 15 days and another 15 days for
said order because partial summary judgments are
compelling reasons.
interlocutory orders. There is still something to be done,
which is the trial for the adjudication of damages. (Province
Q: What are the three modes of appeal from the
of Pangasinan v. Court of Appeals, G.R. No. 104266, 31 Mar.
decisions of the RTC? (2002 BAR)
1993; Guevarra v. Court of Appeals, G.R. No. L-49017 and L-
49024, 30 Aug. 1983) But the defendant may properly
A:
challenge said order through a special civil action for
1. Rule 41: Ordinary appeal or appeal by writ of error
certiorari. (Sec. 1 (c) and last par. Rule 41, ROC, as amended)
– This presupposes that the RTC rendered the judgment
or final order in the civil action or special proceeding in
d) DOCTRINE OF FINALITY/IMMUTABILITY the exercise of its original jurisdiction and appeal is
OF JUDGMENT taken to the CA on questions of fact or mixed questions

UNIVERSITY OF SANTO TOMAS 42

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
of fact and law. The appeal is taken by notice of appeal
or by record on appeal.
NOTE: An appeal on pure questions of law cannot be
taken to the CA and such improper appeal will be
dismissed pursuant to Sec. 2, Rule 50. (Regalado, 2012)
2. Rule 42: Petition for review – The questioned
judgment or final order was rendered by RTC in the
exercise of its appellate jurisdiction over a judgment or
final order in a civil action or special proceeding
originally commenced in and decided by a lower court.
The appeal is taken by a petition for review filed with
CA on questions of facts, of law or on mixed questions
of fact and law.
3. Rule 45: Petition for review on certiorari – Taken to
the SC only on questions of law from a judgment or final
order rendered in a civil action or special proceeding by
RTC in the exercise of its original jurisdiction. The
appeal is taken by filing a petition for review on
certiorari with the SC. (Regalado, 2010)
Q: XXX received a copy of the RTC decision on June 9,
1999; YYY received it on the next day, June 10, 1999.
XXX filed a Notice of Appeal on June 15, 1999. The
parties entered into a compromise on June 16, 1999. On
June 13, 1999, YYY, who did not appeal, filed with the
RTC a motion for approval of the Compromise
Agreement. XXX changed his mind and opposed the
motion on the ground that the RTC has no more
jurisdiction. Rule on the motion assuming that the
records have not yet been forwarded to the CA. (1999
BAR)
A: The contention of XXX that the RTC has no more
jurisdiction over the case is not correct because at the time
that the motion to approve the compromise had been filed,
the period of appeal of YYY had not yet expired, the records
of the case had not yet been forwarded to the Court of
Appeals. The rules provide that in appeals by notice of
appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration
of the time to appeal of the other parties The rules also
provide that prior to the transmittal of the record, the court
may, among others, approve compromises (Sec. 9, Rule 41,
ROC, as amended).
Q: When is an appeal from the RTC to the Court of
Appeals deemed perfected? (1999 BAR)
A: An appeal from the Regional Trial Court to the Court of
Appeals is deemed perfected as to the appellant upon the
filing of a notice of appeal in the Regional Trial Court in due
time or within the reglementary period of appeal. An appeal
by record on appeal is deemed perfected as to the appellant
with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time (Sec. 9,
Rule 4, ROC, as amended).
43
Q: The last day of a losing party to file a notice of appeal
from the Regional Trial Court to the Court of Appeals
fell on June 12, a legal holiday. The day after, or on
June13, the counsel for the losing party moved that the
period within which to file a notice of appeal be
extended for 10 days, citing the counsel’s “humongous”
case load, among others.
On June 23 that same year, without the motion for
extension being acted upon, the counsel for the losing
party filed a notice of appeal. Should this appeal be
dismissed? Explain briefly. (2020-21 BAR)
A: YES, the appeal should be dismissed. The Supreme Court
has held that a motion for extension of time to file a notice
of appeal is not allowed. (Lacsamana v. IAC. G.R. No. 73146-
53 26 Aug. 1986)
Here, instead of filing a notice of appeal on June 13, the
counsel for the losing party filed a motion for extension of
time to file a notice of appeal which is not allowed. Thus, the
period to appeal lapsed, and the notice to appeal was filed
out of time. Hence, the appeal should be dismissed.
Q: After receiving the adverse decision rendered
against his client, the defendant, Atty. Sikat duly filed a
notice of appeal. For his part, the plaintiff timely filed a
motion for partial new trial to seek an increase in the
monetary damages awarded. The RTC instead rendered
an amended decision further reducing the monetary
awards. Is it necessary for Atty. Sikat to file a second
notice of appeal after receiving the amended decision?
(2008 BAR)
A: YES, it is necessary for Atty. Sikat to file a second notice
of appeal to the amended decision because a substantial
change was made to the original decision when the
monetary awards were reduced in the amended decision
and in effect the amended decision superseded the original
decision. A new notice of appeal is required to comply with
the required contents thereof in respect of the amended
decision. (Pacific Life Assurance Corporation v. Sison, G.R. No.
122839, 20 Nov. 1998; Magdalena Estates, Inc. v. Caluag, G.R.
No. L-16250, 30 June 1964)
(3) PETITION FOR REVIEW FROM THE REGIONAL
TRIAL COURT TO THE COURT OF APPEALS
(RULE 42)
(2022, 1998 BAR)
Q: The RTC affirmed the appealed decision of the MTC.
You are the counsel of the defeated party and he tells
you to appeal the RTC's decision. (1998 BAR)
(a) What mode of appeal will you adopt?
A: The mode of appeal is by petition for review under Rule
42 of the Rules of Court.
(b) Within what time and in what court should you file
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
your appeal?
A: The period of appeal is within 15 days from notice of the
decision subject of the appeal or of the denial of a motion
for new trial or reconsideration filed in due time to the CA.
Q: Gail filed a forcible entry complaint against
Marianina before the Metropolitan Trial Court (MeTC).
The MeTC ruled in favor of Marianina. Gail appealed the
MeTC decision to the Regional Trial Court (RTC). The
RTC denied Gail’s appeal and sustained the MeTC. Gail
then filed a notice of appeal with the RTC indicating that
it is appealing the RTC's decision to the Court of Appeals
(CA). In her notice of appeal, Gail also requested the
RTC to transmit the records of the case to the CA.
Did Gail take the correct of mode of appeal? Explain
briefly. (2022 BAR)
A: NO, Gail did not take the correct mode of appeal. Under
the Rules of Civil Procedure, an appeal to the CA in cases
decided by the RTC in the exercise of its appellate
jurisdiction should be taken not by a notice of appeal but by
a petition for review under Rule 42 of the Rules of Court.
Here, the case was decided by the RTC in the exercise of its
appellate jurisdiction because the case was on appeal from
the MeTC. Gail should have filed a petition for review with
the CA and not a notice of appeal with the RTC. Hence, Gail
did not take the correct mode of appeal. (Riguera, 2023)
(4) APPEALS FROM THE COURT OF TAX APPEALS,
CIVIL SERVICE COMMISSION,
AND QUASI-JUDICIAL AGENCIES
(RULE 43)
(5) APPEALS BY CERTIORARI TO THE SUPREME COURT
(RULE 45)
(2002 BAR)
Q: What are the modes of appeal to the Supreme Court?
(2002 BAR)
A: The modes of appeal to the Supreme Court are: (a) appeal
by certiorari on pure questions of law under Rule 45
through a petition for review on certiorari; and (b) ordinary
appeal in criminal cases through a notice of appeal from
convictions imposing reclusion perpetua or life
imprisonment or where a lesser penalty is involved but for
offenses committed on the same occasion or which arose
out of the same occurrence that gave rise to the more
serious offense. (Sec. 3, Rule 122, ROC, as amended)
Convictions imposing the death penalty are elevated
through automatic review.
(6) REVIEW OF JUDGMENTS OR FINAL ORDERS
OF THE COMMISSION ON AUDIT
AND COMMISSION ON ELECTIONS
(RULE 64)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
(7) DISMISSAL, REINSTATEMENT,
AND WITHDRAWAL OF APPEAL
(2017, 2012, 2009, 2003 BAR)
Q: Defendant X received an adverse Decision of the RTC
in an ordinary civil case on 02 January 2003. He filed a
Notice of Appeal on 10 January 2003. On the other hand,
plaintiff A received the same Decision on 06 January
2003 and, on 19 January 2003, filed a Motion for
Reconsideration of the Decision. On 13 January 2003,
defendant X filed a Motion withdrawing his notice of
appeal in order to file a Motion for New Trial which he
attached. On January 2003, the court denied A’s Motion
to Withdraw Notice of Appeal. Plaintiff A received the
Order denying his Motion for Reconsideration on 03
February 2003 and filed his Notice of Appeal on 05
February 2003. The court denied due course to A’s
Notice of Appeal on the ground that the period to appeal
already lapsed. (2003 BAR)
(a) Is the court’s denial of X’s Motion to Withdraw
Notice of Appeal proper?
A: NO. The court’s denial of X’s Motion to Withdraw Notice
of Appeal is not proper, because the period of appeal of X
has not yet expired. From January 2, 2003 when X received
a copy of the adverse decision up to January 13, 2003 when
he filed his withdrawal of appeal and Motion for New Trial,
only ten (10) days had elapsed, and he had fifteen (15) days
to do so. (UPLC Suggested Answers)
(b) Is the court’s denial of due course to A’s appeal
correct?
A: NO. The court’s denial of due course to A’s appeal is not
correct because the appeal was taken on time. From January
6, 2003 when A received a copy of the decision up to January
19, 2003 when he filed a Motion for Reconsideration, only
twelve (12) days had lapsed. Consequently, he had three (3)
days from receipt in February 2003 of the Order denying his
Motion for Reconsideration within which to appeal. He filed
his notice of appeal February 5, 2003, or only two (2) days
later. (UPLC Suggested Answers)
NOTE: To standardize the appeal periods provided in the
Rules and to afford litigants fair opportunity to appeal their
cases, the Court deems it practical to allow a Fresh Period of
15 days within which to file the notice of appeal in the RTC,
counted from receipt of the order dismissing a motion for a
new trial or motion for reconsideration. (Neypes v. Court of
Appeals, G.R. No. 121524, 14 Sept. 2005)
Q: What is the mode of appeal applicable to the
following cases, and what issues may be raised before
the reviewing court/tribunal? (2017 BAR)
(a) The decision or final order of the National Labor
Relations Commission.
A: There is no mode of appeal from a decision or final order
of the NLRC, since such decision or final order is final and
44
 QuAMTO (1987-2022)
executory pursuant to the Labor Code (Art. 223). The
remedy of the aggrieved party is to file a special civil action
for certiorari with the Court of Appeals (St. Martin Funeral
Home v. NLRC, G.R. No. 103866, 16 Sept. 1998). Such special
civil action may raise questions both of fact and law
(Aggabao v. COMELEC, G.R. No. 163756, 26 Jan. 2005).
(b) The judgment or final order of the RTC in the
exercise of its appellate jurisdiction.
A: The mode of appeal applicable to judgments or final
orders of the RTC in the exercise of its appellate jurisdiction
is a petition for review under Rule 42. The petition may
raise questions both of fact and law (Sec. 2, Rule 42, ROC, as
amended).
Q: Where and how will you appeal the following: (2012
BAR)
(a) An order of execution issued by the RTC.
A: A petition for certiorari under Rule 65 before the Court
of Appeals.
(b) Judgment of RTC denying a petition for Writ of
Amparo.
A: Any party may appeal from the final judgment or order
to the Supreme Court by way of a petition for review on
certiorari under Rule 45 of the Rules of Court. The period of
appeal shall be five (5) working days from the date of notice
of the adverse judgment, and the appeal may raise
questions of fact or law or both. (Sec. 19, Rule on the Writ of
Amparo, A.M. No. 07- 9-12-SC, 25 Sept. 2007)
(c) Judgment of MTC on a land registration case based
on its delegated jurisdiction.
A: The appeal should be filed with the Court of Appeals by
filing a Notice of Appeal within 15 days from notice of
judgment or final order appealed from. (Sec. 34, B.P. Blg.
129, as by R.A. No. 7691)
(d) A decision of the Court of Tax Appeal's First
Division.
A: The decision of the Court of Tax Appeals Division may be
appealed to the CTA en banc. The decisions of the Court of
Tax Appeals are no longer appealable to the Court of
Appeals. Under the modified appeal procedure, the decision
of a division of the CTA may be appealed to the CTA en banc.
The decision of the
CTA en banc may in turn be directly appealed to the
Supreme Court by way of a petition for review on certiorari
under Rule 45 on questions of law (Section 11, R.A. No.
9282).
Q: On July 15, 2009, Atty. Manananggol was served
copies of numerous unfavorable judgments and orders.
45
On July 29, 2009, he filed motions for reconsideration
which were denied. He received the notices of denial of
the motions for reconsideration on October 2, 2009, a
Friday. He immediately informed his clients who, in
turn, uniformly instructed him to appeal. How, when
and where should he pursue the appropriate remedy
for each of the following: (2009 BAR)
(a) Judgment of a Municipal Trial Court (MTC)
pursuant to its delegated jurisdiction dismissing
his client’s application for land registration?
A: By notice of appeal, within 15 days from notice of
judgment or final order appealed from, to the Court of
Appeals.
(b) Judgment of the Regional Trial Court (RTC) denying
his client’s petition for a Writ of Habeas Data?
A: By verified petition for review on certiorari under Rule
45, with the modification that appellant may raise questions
of fact or law or both, within 5 workdays from date of notice
of the judgment or final order to the Supreme Court. (Sec.
19, A.M. No. 08-1- 16-SC)
(c) Order of a Family Court denying his client’s petition
for habeas corpus in relation to custody of a minor
child?
A: By notice of appeal, within 48 hours from notice of
judgment or final order to the Court of Appeals (Sec. 14, R.A.
No. 8369 in relation to Sec. 3, Rule 41).
(d) Order of the RTC denying his client’s Petition for
Certiorari questioning the Metropolitan Trial
Court’s (MeTC’s) denial of a motion to suspend
criminal proceedings?
A: By notice of appeal, within 15 days from notice of the
final order, to the Court of Appeals. (Magestrado v. People,
G.R. No. 148072, 07 July 2007)
(e) Judgment of the First Division of the Court of Tax
Appeals (CTA) affirming the RTC decision
convicting his client for violation of the National
Internal Revenue Code?
A: By petition for review filed with the CTA en banc, within
30 days from receipt of the decision or ruling in question.
(Sec. 9(b), Rule 9, Revised Rules of Court of Tax Appeals)
3. PETITION FOR RELIEF FROM JUDGEMENT
(RULE 38)
(2019, 2017, 2009, 2008, 2007, 2002 BAR)
Q: Mr. X filed a complaint for sum of money against his
old friend, Mr. Y. In order to ensure that Mr. Y would not
be able to file a responsive pleading and much more,
participate in the case, Mr. X paid off Mr. Y's counsel,
Atty. Z, who deliberately let the case proceed as such
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
without his client's knowledge. Eventually, judgment
was rendered on March 1, 2016 in Mr. X's favor, a copy
of which was received by Atty. Z on April 4, 2016.
Bothered by his conscience, Atty. Z brought the copy of
the decision to Mr. Yon June 1, 2016, thereby surprising
the latter and causing him grief. Meanwhile, the
decision became final and executory in due course on
April 19, 2016.
Thereafter, Mr. Y took steps in vindicating his rights,
which culminated on August 15, 2016 when he, as
represented by a new counsel, filed a petition for
annulment of judgment before the Court of Appeals
(CA) on the ground of extrinsic fraud. The CA dismissed
the petition on the ground that Mr. Y failed to submit a
satisfactory explanation as to why he directly resorted
to a petition for annulment of judgment, when he could
have filed a petition for relief from judgment.
What are the differences between a petition for relief
from judgment and a petition for annulment of
judgment in terms of grounds and periods to file? (2019
BAR)
A: The differences between a petition for relief from
judgment and a petition for annulment of judgment in terms
of grounds and periods to file are as follows:
AS TO GROUNDS: The grounds for a petition for relief from
judgment are (1) when a judgment or final order is entered
or any other proceeding is thereafter taken against any
party through fraud, accident, mistake, or excusable
negligence or (2) when a judgment or final order is
rendered by any court and a party is prevented by fraud,
accident, mistake, or excusable negligence from taking an
appeal.
On the other hand, the grounds of a petition for annulment
of judgment are (1) extrinsic fraud and (2) lack of
jurisdiction.
AS TO PERIOD TO FILE: A petition for relief from judgment
should be filed within 60 days after the petitioner learns of
the judgment, final order, or other proceeding to be set
aside, and not more than six months after such judgment or
final order was entered or such proceeding was taken.
On the other hand, a petition for annulment of judgment, if
based on extrinsic fraud, should be filed within 4 from the
discovery of the extrinsic fraud; or if based on lack of
jurisdiction, before it is barred by laches or estoppel.
Q: May a defendant who has been declared in default
right away avail of a petition for relief from the
judgment subsequently rendered in the case? (2007
BAR)
A: NO. The remedy of petition for relief from judgment is
available only when the judgment or order in question is
already final and executory, i.e., no longer appealable. It is
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
an equitable remedy allowed only in exceptional cases from
final judgments or orders where no other remedy is
available. (Palmares, et al. v. Jimenez, et al., G.R. No. L-4513,
31 Jan. 1952) It will not be entertained when the proper
remedy is appeal or certiorari. (Fajardo v. Bayona, et al., G.R.
No. L-8314, 23 Mar. 1956)
Q: May an order denying the probate of a will still be
overturned after the period to appeal therefrom has
lapsed? Why? (2002 BAR)
A: YES an order denying the probate of a will may be
overturned after the period to appeal therefrom has lapsed.
A petition for relief may be filed on the grounds of fraud,
accident, mistake or excusable negligence within a period of
sixty (60) days after the petitioner learns of the judgment
or final order and not more than six (6) months after such
judgment or final order was entered. (Secs. 1 and 3, Rule 38,
ROC, as amended; Soriano v. Asi, G.R. No. L-9633, 29 Jan.
1957)
An action for annulment may also be filed on the ground of
extrinsic fraud within four (4) years from its discovery, and
if based on lack of jurisdiction, before it is barred by laches
or estoppel. (Secs. 2 and 3, Rule 47, ROC, as amended)
Q: Mike was renting an apartment unit in the building
owned by Jonathan. When Mike failed to pay six
months’ rent, Jonathan filed an ejectment suit. The
Municipal Trial Court (MTC) rendered judgment in
favor of Jonathan, who then filed a motion for the
issuance of a writ of execution. The MTC issued the writ.
(2009 BAR)
(a) How can Mike stay the execution of the MTC
judgment? Explain.
A: Writ of Execution shall be issue if immediately upon
motion, unless Mike (a) perfects his appeal to the RTC, (b)
files a sufficient supersedeas bond to pay the rents, damages
and costs accruing up to the time of the judgment appealed
from, and (c) deposits monthly with the RTC during the
pendency of the appeal the amount of rent due from time to
time. (Sec. 19, Rule 70, ROC, as amended)
(b) Mike appealed to the Regional Trial Court (RTC),
which affirmed the MTC decision. Mike then filed a
petition for review with the Court of Appeals (CA).
The CA dismissed the petition on the ground that
the sheriff had already executed the MTC decision
and had ejected Mike from the premises, thus
rendering the appeal moot and academic. Is the CA
correct? Reasons.
A: NO, the Court of Appeals is not correct. The dismissal of
the appeal is wrong because the execution of the RTC
judgment is only in respect of the eviction of the defendant
from the leased premises. Such execution pending appeal
has no effect on the merits of the ejectment suit which still
has to be resolved in the pending appeal. Sec. 21, Rule 70 of
46
 QuAMTO (1987-2022)
the Rules of Court provides that the RTC judgment against
the defendant shall be immediately executory, without
prejudice to a further appeal that may be taken therefrom.
(Uy v. Santiago, G.R. No. 131237, 31 July 2000)
Q: Having obtained favorable judgment in his suit for a
sum of money against Patricio, Orencio sought the
issuance of a writ of execution. When the writ was
issued, the sheriff levied upon a parcel of land that
Patricio owns, and a date was set for the execution sale.
(2009 BAR)
(a) How may Patricio prevent the sale of the property
on execution?
A: Patricio may file a Petition for Relief with preliminary
injunction (Rule 38, ROC, as amended), posting a bond
equivalent to the value of the property levied upon; or assail
the levy as invalid if ground exists. Patricio may also simply
pay the amount required by the writ and the costs incurred
therewith. (UPLC Suggested Answers)
(b) If Orencio is the purchaser of the property at the
execution sale, how much does he have to pay?
Explain.
A: Orencio, the judgment creditor should pay only the
excess amount of the bid over the amount of the judgment,
if the bid exceeds the amount of the judgment. (UPLC
Suggested Answers)
(c) If the property is sold to a third party at the
execution sale, what can Patricio do to recover the
property? Explain.
A: Patricio can exercise his right of legal redemption within
1 year from date of registration of the certificate of sale by
paying the amount of the purchase price with interest of 1%
monthly, plus assessment and taxes paid by the purchaser,
with interest thereon, at the same rate. (UPLC Suggested
Answers)
Q: After his properties were attached, defendant
Porfirio filed a sufficient counterbond. The trial court
discharged the attachment. Nonetheless, Porfirio
suffered substantial prejudice due to the unwarranted
attachment. In the end, the trial court rendered a
judgment in Porfirio's favor by ordering the plaintiff to
pay damages because the plaintiff was not entitled to
the attachment. Porfirio moved to charge the plaintiff's
attachment bond. The plaintiff and his sureties opposed
the motion, claiming that the filing of the counterbond
had relieved the plaintiff's attachment bond from all
liability for the damages. Rule on Porfirio's motion.
(2008 BAR)
A: Porfirio’s motion to charge plaintiff’s attachment bond is
proper and can be granted. It is not correct to contend that
Porfirio’s filing of a counterbond constitutes a waiver of his
right to proceed against the attachment bond for the
47
damages he suffered from the unwarranted attachment. It
is a condition inter alia of the applicant’s attachment bond
that he will pay all the costs which may be adjudged to the
adverse party and all damages which the latter may sustain
by reason of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto. (Sec. 4, Rule 57,
ROC, as amended; D.M. Wenceslao and Associates, Inc. v.
Readycon Trading and Construction Corp., G.R. No. 154106,
29 June 2004)
Q: A default judgment was rendered by the RTC
ordering D to pay P a sum of money. The judgment
became final, but D filed a petition for relief and
obtained a writ of preliminary injunction staying the
enforcement of the judgment. After hearing, the RTC
dismissed D’s petition, whereupon P immediately
moved for the execution of the judgment in his favour.
Should P’s motion be granted? Why? (2002 BAR)
A: P’s immediate motion for execution of the judgment in
his favor should be granted because the dismissal of D’s
petition for relief also dissolves the writ of preliminary
injunction staying the enforcement of the judgment, even if
the dismissal is not yet final. (Golez v. Leonidas, G.R. No. L-
56587, 31 Aug. 1981)
4. ANNULMENT OF JUDGMENT
(RULE 47)
(2022, 2020-21, 2019, 2014, 2008, 1998 BAR)
Q: What are the grounds for the annulment of a
judgment of the RTC? (2008, 1998 BAR)
1. Lack of jurisdiction over the subject matter and over
the person – May be barred by estoppels by laches,
which is that failure to do something which should be
done or to claim or enforce a right at a proper time or a
neglect to do something which one should do or to seek
or enforce a right at a proper time.
2. Extrinsic fraud
NOTE: Fraud is regarded as extrinsic where it prevents
a party from having a trial or from presenting his entire
case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the manner
in which it is procured. (Alaban, et al., v. CA, G.R. No.
156021, 23 Sept. 2005)
Extrinsic fraud, as a ground for the annulment of a
judgment, must emanate from an act of the adverse
party. It must be of such nature as to have deprived the
petitioner of its day in court. The fraud is not extrinsic
if the act was committed by the petitioner's own
counsel. (Pinausukan Seafood House v. Far East Bank &
Trust Company, G.R. No. 159926, 20 Jan. 2014)
Nysa was defrauded by Jackie resulting in damages to
the former. Nysa filed a civil suit before the Regional
Trial Court (RTC). The RTC dismissed her complaint.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Within four years from Nysa’s discovery of the
dismissal of her complaint, she filed, through her
counsel, a petition for annulment of judgment under
Rule 47 of the Rules of Court before the Court of Appeals
(CA) on the ground of fraud. Should the CA give due
course to Nysa’s petition? Explain briefly. (2022 BAR)
A: NO. The CA should not give due course to Nysa’s petition
for annulment of judgment under Rule 47 of the Rules of
Court. Under the Law on Civil Procedure, fraud as a ground
for annulment of judgment under Rule 47 of the Rules of
Court refers only to extrinsic fraud.
Here, the fraud employed by Jackie against Nysa was not
extrinsic fraud since it was not extrinsic to the issues in the
civil case for damages but the very issue of the case itself.
Hence, the CA should not give due course to Nysa’s petition
for annulment of judgment. (Riguera, 2023)
Q: Two years after receiving a copy of a decision
rendered by a Regional Trial Court, a party engaged a
counsel and asked them to work on reopening the case.
The party explained that it took two years to find the
best legal counsel available, and that counsel had to
await two years to pass the #BestBarEver2020_21.
After perusing the judgment and the case records, the
counsel filed before the Court of Appeals a petition for
annulment of judgment under Rule 47 of the Rules of
Civil Procedure, asserting that the trial judge
improperly assessed the evidence and misapplied a
doctrine long adopted by the Supreme Court.
Will the petition for annulment of judgment prosper?
Explain briefly. (2020-21 BAR)
A: NO. The petition for annulment of judgment will not
prosper. Under the Rules of Civil Procedure, an action for
annulment of judgment may be based only on the grounds
of extrinsic fraud and lack of jurisdiction. (Sec. 2, Rule 47,
ROC, as amended)
Here, the grounds raised by the counsel in his petition are
the improper assessment of the evidence and the
misapplication of an abandoned doctrine, which have
nothing to do with extrinsic fraud or lack of jurisdiction but
are errors of judgment which are proper subjects of an
appeal. Hence, the petition for annulment of judgment will
not prosper. (Riguera, 2022)
Q: Mr. X filed a complaint for sum of money against his
old friend, Mr. Y. In order to ensure that Mr. Y would not
be able to file a responsive pleading and much more,
participate in the case, Mr. X paid off Mr. Y's counsel,
Atty. Z, who deliberately let the case proceed as such
without his client's knowledge.
Eventually, judgment was rendered on March 1, 2016 in
Mr. X's favor, a copy of which was received by Atty. Z on
April 4, 2016. Bothered by his conscience, Atty. Z
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
brought the copy of the decision to Mr. Y on June 1,
2016, thereby surprising the latter and causing him
grief. Meanwhile, the decision became final and
executory in due course on April 19, 2016.
Thereafter, Mr. Y took steps in vindicating his rights,
which culminated on August 15, 2016 when he, as
represented by a new counsel, filed a petition for
annulment of judgment before the Court of Appeals
(CA) on the ground of extrinsic fraud. The CA dismissed
the petition on the ground that Mr. Y failed to submit a
satisfactory explanation as to why he directly resorted
to a petition for annulment of judgment, when he could
have filed a petition for relief from judgment.
What are the differences between a petition for relief
from judgment and a petition for annulment of
judgment in terms of grounds and periods to file? (2019
BAR)
A: In a petition for relief from judgment, when a judgment
or final order is entered or any other proceeding is
thereafter taken against a party in any court through fraud,
accident, mistake, or excusable negligence, he may file a
petition in such court and in the same case praying that the
judgment, order or proceeding be set aside. (Section 1, Rule
38, ROC, as amended) It must be filed within sixty (60) days
after the petitioner learns of the judgment, and not more
than six (6) months after such judgment was entered, or
such proceeding was taken, and must be accompanied with
affidavit showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
petitioner’s good and substantial cause of action or defense
as the case may be. (Sec. 3, Rule 38, ROC, as amended)
Whereas, in annulment of judgment, the Court of Appeals
can annul the judgment of the RTC in civil actions when the
ordinary remedies of new trial, appeal petition for relief or
other appropriate remedies are no longer available through
no fault of the petitioner. (Sec. 1, Rule 47, ROC, as amended)
The grounds for annulment of judgment may be based only
on the grounds of extrinsic fraud and lack of jurisdiction.
Jurisprudence, however, provides for the third ground
which is denial of due process. If based on extrinsic fraud, it
must be filed within four (4) years from its discovery and if
based on lack of jurisdiction, before it is barred by laches or
estoppel. (Teaño v. Municipality of Navotas, G.R No. 205814,
15 Feb. 2016)
Q: Mr. X filed a complaint for sum of money against his
old friend, Mr. Y. In order to ensure that Mr. Y would not
be able to file a responsive pleading and much more,
participate in the case, Mr. X paid off Mr. Y's counsel,
Atty. Z, who deliberately let the case proceed as such
without his client's knowledge. Eventually, judgment
was rendered on March 1, 2016 in Mr. X's favor, a copy
of which was received by Atty. Z on April 4, 2016.
Bothered by his conscience, Atty. Z brought the copy of
the decision to Mr. Yon June 1, 2016, thereby surprising
48
 QuAMTO (1987-2022)
the latter and causing him grief. Meanwhile, the
decision became final and executory in due course on
April 19, 2016.
Thereafter, Mr. Y took steps in vindicating his rights,
which culminated on August 15, 2016 when he, as
represented by a new counsel, filed a petition for
annulment of judgment before the Court of Appeals
(CA) on the ground of extrinsic fraud. The CA dismissed
the petition on the ground that Mr. Y failed to submit a
satisfactory explanation as to why he directly resorted
to a petition for annulment of judgment, when he could
have filed a petition for relief from judgment. Was the
CA's dismissal of Mr. Y's petition for annulment of
judgment proper? Explain. (2019 BAR)
A: YES. the CA's dismissal of Mr. Y’s petition for annulment
of judgment was proper.
Under the Rules of Civil Procedure, extrinsic fraud shall not
be a valid ground for annulment of judgment if it could have
been availed of in a petition for relief under Rule 38. (Sec. 2,
Rule 47, ROC, as amended).
Here Mr. Y could have availed of a petition for relief by filing
it within 60 days from the time he learned of the judgment
on 01 June 2016, which period was also within six months
from the entry of the judgment on 19 April 2016. Hence the
dismissal of the petition was proper.
Q: Tom Wallis filed with the Regional Trial Court (RTC)
a petition for declaration of nullity of his marriage with
Debi Wallis on the ground of psychological incapacity of
the latter. Before filing the petition, Tom Wallis had told
Debi Wallis that he wanted the annulment of their
marriage because he was already fed up with her
irrational and eccentric behavior. However, in the
petition for declaration of nullity of marriage, the
correct residential address of Debi Wallis was
deliberately not alleged and instead, the resident
address of their married son was stated. Summons was
served by served by substituted service at the address
stated in the petition. For failure to file an answer, Debi
Wallis was declared in default and Tom Wallis
presented evidence ex parte. The RTC rendered
judgment declaring the marriage null and void on the
ground of psychological incapacity of Debi Wallis.
Three (3) years after the RTC judgment was rendered,
Debi Wallis got hold of a copy thereof and wanted to
have the RTC judgment reversed and set aside. If you
are the lawyer of Debi Wallis, what judicial remedy or
remedies will you take? Discuss and specify the ground
or grounds for said remedy or remedies. (2014 BAR)
A: Debi Wallis may file a Petition for Annulment of
Judgment under Rule 47 of the Rules of Court, on the
grounds of lack of jurisdiction, extrinsic fraud and denial of
the right to due process. (Diona v. Balange, G.R. No. 173589,
7 Jan. 2013) An action for annulment of judgment is resorted
to in cases where the ordinary remedies of new trial, appeal,
49
petition for relief from judgment, or other appropriate
remedies are no longer available through no fault of the
appellant and is based on the grounds of extrinsic fraud, and
lack of jurisdiction. (Aleban v. Court of Appeals, G.R. No.
156021, 23 Sept. 2005)
Relative thereto, the act of Tom Wallis in deliberately
keeping Debi Wallis away from the Court, by intentionally
alleging a wrong address in the complaint constitutes
extrinsic fraud. Moreover, the failure of the Court to acquire
jurisdiction over the person of the respondent, being an
indispensable party, necessitates the annulment of
judgment of the Regional Trial Court. Likewise, there is
denial of the right to due process when Debi Wallis was not
given an opportunity to be heard in the case.
At any rate, the Court erred in declaring the defendant in
default because there is no default in a petition for
declaration of nullity of marriage. (Sec. 3, Rule 9, ROC, as
amended)
5. COLLATERAL ATTACK ON JUDGMENTS
U. EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS
RULE 39
(2020-21, 2015, 2018, 2010, 2009, 2008, 2007, 2005,
2002, 2000, 1997 BAR)
Q: Antique dealer Mercedes borrowed P1,000,000 from
antique collector Benjamin. Mercedes issued a
postdated check in the same amount to Benjamin to
cover the debt. On the due date of the check, Benjamin
deposited it, but it was dishonored. As despite
demands, Mercedes failed to make good the check,
Benjamin filed in January 2009 a complaint for
collection of sum of money before the RTC of Davao.
Mercedes filed in February 2009 her Answer with
Counterclaim, alleging that before the filing of the case,
she and Benjamin had entered into a dacion en pago
agreement in which her vintage PhP 1,000,000 Rolex
watch which was taken by Benjamin for sale on
commission was applied to settle her indebtedness;
and that she incurred expenses in defending what she
termed a “frivolous lawsuit.” She accordingly prayed
for PhP 50, 000 damages.
Suppose there was no Counterclaim and Benjamin’s
complaint was not dismissed, and judgment was
rendered against Mercedes for PhP 1,000,000. The
judgment became final and executory, and a writ of
execution was correspondingly issued. Since Mercedes
did not have cash to settle the judgment debt, she
offered her Toyota Camry model 2008 valued at P1.2
million. The Sheriff, however, on request of Benjamin,
seized Mercedes’ 17th century ivory image of the La
Sagrada Familia estimated to be worth over PhP
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
1,000,000. Was the Sheriff’s action in order? (2010
BAR)
A: NO. The Sheriff’s action was not in order. He should not
have listened to Benjamin, the judgment obligee/creditor,
in levying on the properties of Mercedes, the judgment
obligor/debtor. The option to immediately choose which
property or part thereof may be levied upon, sufficient to
satisfy the judgment, is vested by law (Rule 39, Sec. 9(b),
ROC, as amended) upon the judgment obligor, Mercedes, not
upon the judgment obligee, Benjamin, in this case. Only if
the judgment obligor does not exercise the option is the
Sheriff authorized to levy on personal properties if any, and
then on the real properties if the personal properties are
insufficient to answer for the judgment. (UPLC Suggested
Answers)
Q: A files a case against B. While awaiting decision on
the case, A goes to the United States to work. Upon her
return to the Philippines, seven years later, A discovers
that a decision was rendered by the court in here favor
a few months after she had left. Can A file a motion for
execution of the judgment? Reason briefly. (2007 BAR)
A: On the assumption that the judgment had been final and
executory for more than five (5) years as of A’s return to the
Philippines seven (7) years later, a motion for execution of
the judgment is no longer availing because the execution of
judgment by mere motion is allowed by the Rules only
within five (5) years from entry of judgment; thereafter, and
within ten (10) years from entry of judgment, an action to
enforce the judgment is required.
Q: Mike was renting an apartment unit in the building
owned by Jonathan. When Mike failed to pay six
months’ rent, Jonathan filed an ejectment suit. The
Municipal Trial Court (MTC) rendered judgement in
favor of Jonathan, who then filed a motion for the
issuance of a writ of execution. The MTC issued the writ.
(a) How can Mike stay the execution of the MTC
judgment? (2009 BAR)
A: Execution shall issue immediately upon motion, unless
Mike (a) perfects his appeal to the RTC, (b) files a sufficient
supersedeas bond to pay the rents, damages and costs
accruing up to the time of the judgment appealed from, and
(c) deposits monthly with the RTC during the pendency of
the appeal the amount of rent due from time to time (Rule
70, Sec. 19).
(b) Mike appealed to the Regional Trial Court, which
affirmed the MTC decision. Mike then filed a
petition for review with the Court of Appeals. The
CA dismissed the petition on the ground that the
sheriff had already executed the MTC decision and
had ejected Mike from the premises, thus
rendering the appeal moot and academic. Is the CA
correct? (2009 BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: NO. The Court of Appeals is not correct. The dismissal of
the appeal is wrong because the execution of the RTC
judgment is only in respect of the eviction of the defendant
from the leased premises. Such execution pending appeal
has no effect on the merits of the ejectment suit which still
has to be resolved in the pending appeal. Rule 70, Sec. 21 of
the Rules provides that the RTC judgment against the
defendant shall be immediately executor, “without
prejudice to a further appeal” that may be taken therefrom.
(Uy v. Santiago, 336 SCRA 680 (2000))
Q: Aldrin entered into a contract to sell with Neil over a
parcel of land. The contract stipulated a P500,000.00
down payment upon signing and the balance payable in
twelve (12) monthly installments of Pl00,000.00.
Aldrin paid the down payment and had paid three (3)
monthly installments when he found out that Neil had
sold the same property to Yuri for Pl.5 million paid in
cash. Aldrin sued Neil for specific performance with
damages with the RTC. Yuri, with leave of court, filed an
answer-in-intervention as he had already obtained a
TCT in his name. After trial, the court rendered
judgment ordering Aldrin to pay all the instalments
due, the cancellation of Yuri’s title, and Neil to execute
a deed of sale in favor of Aldrin. When the judgment
became final and executory, Aldrin paid Neil all the
installments, but the latter refused to execute the deed
of sale in favor of the former. Aldrin filed a “Petition for
the Issuance of a Writ of Execution” with proper notice
of hearing. The petition alleged, among others, that the
decision had become final and executory, and he is
entitled to the issuance of the writ of execution as a
matter of right. Neil filed a motion to dismiss the
petition on the ground that it lacked the required
certification against forum shopping. (2015 BAR)
(a) Should the court grant Neil's Motion to Dismiss?
A: NO. The motion to dismiss should be denied because the
certification against forum shopping is only required in a
complaint or other initiatory pleading. (Sec. 5, Rule 7;
Arquiza v. Court of Appeals, G.R. No. 160479, 8 June 2005)
Since a petition for the issuance of the writ of execution is
not an initiatory pleading, it does not require a certification
against forum shopping.
(b) Despite the issuance of the writ of execution
directing Neil to execute the deed of sale in favor of
Aldrin, the former obstinately refused to execute
the deed. What is Aldrin's remedy?
A: Aldrin may move for the issuance of a court order
directing the execution of the Deed of Sale by some other
person appointed by it.
Under Sec. 10, Rule 39 of the Rules of Court, if a judgment
directs a party to execute a conveyance of land or personal
property, or to deliver deeds, other documents, or to
perform, any other specific act in connection therewith, and
the party fails to comply within the time specified, the court
50
 QuAMTO (1987-2022)
may direct the act to be done at the cost of the disobedient
party by some other person appointed by the court and the
act when so done shall have like effect as if done by the
party. If real or personal property is situated within the
Philippines, the court in lieu of directing a conveyance
thereof may by an order divest the title of any party and vest
it in others, which shall have the force and effect of a
conveyance executed in due form of law.
The phrase “some other person appointed by the court”
may refer to the branch clerk of court, sheriff or even the
Register of Deeds, and their acts when done under such
authority shall have the effect of having been done by Neil
himself.
Q: Drylvik, a German national, married Dara, a Filipina,
in Dusseldorf, Germany. When the marriage collapsed,
Dara filed a petition for declaration of nullity of
marriage before the RTC of Manila. Drylvik, on the
other hand, was able to obtain a divorce decree from
the German Family Court. The decree, in essence,
states:
The marriage of the Parties contracted on xxx before
the Civil Registrar of Dusseldorf is hereby dissolved.
The parental custody of the children Diktor and Daus is
granted to the father.
Drylvik filed a motion to dismiss in the RTC of Manila on
the ground that the court no longer had jurisdiction
over the matter as a decree of divorce had already been
promulgated dissolving his marriage to Dara. Dara
objected, saying that while she was not challenging the
divorce decree, the case in the RTC still had to proceed
for the purpose of determining the issue of the
children’s custody. Drylvik counters that the issue had
been disposed of in the divorce decree, thus
constituting res judicata.
Should Drylvik’s motion to dismiss be granted? (2018
BAR)
A: NO. The motion to dismiss cannot be granted.
In Roehr v. Rodriguez (G.R. No. 142820, 20 June 2003), the
Supreme Court ruled that divorce decrees obtained by
foreigners in other countries are recognizable in our
jurisdiction, but the legal effects thereof, e.g. on custody,
care and support of the children, must still be determined
by our courts. Before our courts can give the effect of res
judicata to a foreign judgment, such as the award of custody
of the children, it must be shown that the parties opposed
to the judgment had been given ample opportunity to do so
on grounds allowed under Section 50, Rule 39.
Rule 39, Section 50 states that “in case of a judgment against
a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title; but the judgment may be repelled by
evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.” Thus,
51
in actions in personam, a foreign judgment merely
constitutes prima facie evidence of the justness of the claim
of a party and, as such, is subject to proof to the contrary.
In this case, the divorce decree issued by the German Family
Court merely constitutes prima facie evidence and it must
be proven that Dara was given the opportunity to challenge
the judgment of the German court so that there is basis for
declaring that judgment as res judicata with regard to the
rights of petitioner to have parental custody of their two
children.
Q:
(a) The writ of execution was returned unsatisfied. The
judgment obligee subsequently received
information that a bank holds a substantial deposit
belonging to the judgment obligor. If you are the
counsel of the judgment obligee, what steps would
you take to reach the deposit to satisfy the
judgment? (2008 BAR)
A: Since a writ of execution is valid for five years from its
issuance, the sheriff should be informed and requested to
garnish or levy on execution the bank deposits belonging to
the judgment obligor (Sec.9(c), Rule 39, ROC, as amended)
Then the judgment creditor moves for a court order
directing the application of such bank deposit to the
satisfaction of the judgment (Sec. 40, Rule 39, ROC, as
amended).
(b) If the bank denies holding the deposit in the name
of the judgment obligor but your client's informant
is certain that the deposit belongs to the judgment
obligor under an assumed name, what is your
remedy to reach the deposit? (2008 BAR)
A: To reach the bank deposit belonging to the judgment
obligor but under an assumed name, a motion may be filed
for a court order requiring the proper bank officer to appear
in court for examination under oath as to such bank deposit,
and subsequently move for a court order authorizing the
filing of an action against such bank for the recovery of the
judgment obligor’s deposit/interest therein and to forbid a
transfer or other disposition of such deposit/interest within
120 days from notice of the order. (Secs. 37 and 43, Rule 39,
ROC, as amended)
Q: A obtained a money judgment against B. After the
finality of the decision, the court issued a writ of
execution for the enforcement thereof. Conformably
with the said writ, the sheriff levied upon certain
properties under B’s name. C filed a third-party claim
over said properties 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
liable to him for the money judgment alleging that B
had transferred said properties to C to defraud him (A).
After due hearing, the court denied the third-party
claim and rendered an amended decision declaring B
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
and C jointly and severally liable to A for the money
judgment. Is the ruling of the court correct? Explain.
(2005 BAR)
A: NO. C has not been properly impleaded as a party
defendant. He cannot be held liable for the judgment against
A without a trial. In fact, since no bond was filed by B, the
sheriff is liable to C for damages. C can file a separate action
to enforce his third-party claim. It is in that suit that B can
raise the ground of fraud against C. However, the execution
may proceed where there is a finding that the claim is
fraudulent (Tanongan v. Samson, G.R. No. 140889, 09 May
2002)
Q: The trial court rendered judgment ordering the
defendant to pay the plaintiff moral and exemplary
damages. The judgment was served on the plaintiff on
October 1, 2001 and on the defendant on October 5,
2001. On October 8, 2001, the defendant filed a notice
of appeal from the judgment, but the following day,
October 9, 2001, the plaintiff moved for the execution
of the judgment pending appeal. The trial court granted
the motion upon the posting by the plaintiff of a bond to
indemnify the defendant for damages it may suffer as a
result of the execution. The court gave as a special
reason for its order the imminent insolvency of the
defendant. Is the order of execution pending appeal
correct? Why? (2002 BAR)
A: NO, because awards for moral and exemplary damages
cannot be the subject of execution pending appeal. The
execution of any award for moral and exemplary damages
is dependent on the outcome of the main case. Liabilities for
moral and exemplary damages, as well as the exact amounts
remain uncertain and indefinite pending resolution by the
Court of Appeals or Supreme Court. (RCPI v. Lantin, G.R. No.
L-59311, 31 Jan. 1985; International School, Inc. v. Court of
Appeals, G.R. No. 131109, 29 June 1999)
Q: JK’s real property is being attached by the sheriff in a
civil action for damages against LM. JK claims that he is
not a party to the case; that his property is not involved
in said case; and that he is the sole registered owner of
said property. Under the Rules of Court, what must JK
do to prevent the sheriff from attaching his property?
(2000 BAR)
A: If the real property is being attached, the remedy is to file
a third-party claim. The third-party claimant should make
an affidavit of his title to the property attached, stating the
grounds of his title thereto, and serve such affidavit upon
the sheriff while the latter has possession of the attached
property, and a copy thereof upon the attaching party (Sec.
14, Rule 57, ROC, as amended) The third-party claimant may
also intervene or file a separate action to vindicate his claim
to the property involved and secure the necessary reliefs,
such as preliminary injunction, which will not be
considered as interference with a court of coordinate
jurisdiction. (Ong v. Tating, G.R. No. L-61042, 15 Apr. 1987)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
Q: A, a resident of Dagupan City, secured a favorable
judgment in an ejectment case against X, a resident of
Quezon City, from the MTC of Manila. The judgment,
entered on 15 June 1991, had not as yet been executed.
(1997 BAR)
(a) In July 1996, A decided to enforce the judgment of
the MTC of Manila. What is the procedure to be
followed by A in enforcing the judgment?
A: A can enforce the judgment by another action reviving
the judgment because it can no longer be enforced by
motion as the five-year period within which a judgment
may be enforced by motion has already expired. (Sec. 6, Rule
39, ROC, as amended)
(b) With what court should A institute the
proceedings?
A: A may institute the proceedings in the Regional Trial
Court in accordance with the rules of venue because the
enforcement of the judgment is a personal action incapable
of pecuniary estimation. (UPLC Suggested Answers)
EXAMINATION OF JUDGMENT OBLIGOR
WHEN JUDGMENT IS UNSATISFIED
(2020-21, 2002 BAR)
Q: The plaintiff, a Manila resident, sued the defendant,
a resident of Malolos Bulacan, in the RTC –Manila for a
sum of money. When the sheriff tried to serve the
summons with a copy of the complaint on the defendant
at his Bulacan residence, the sheriff was told that the
defendant had gone to Manila for business and would
not be back until the evening of that day. So, the sheriff
served the summons, together with a copy of the
complaint, on the defendant’s 18-year-old daughter,
who was a college student. For the defendant’s failure
to answer the complaint within the reglementary
period, the trial court, on motion of the plaintiff,
declared the defendant in default. A month later, the
trial court rendered judgment holding the defendant
liable for the entire amount prayed for in the complaint.
(2002 BAR)
(a) After the judgment had become final, a writ of
execution was issued by the court. As the writ was
returned unsatisfied, the plaintiff filed a motion for
an order requiring the defendant to appear before
it and to be examined regarding his property and
income. How should the court resolve the motion?
A: The RTC-Manila should deny the motion because it is in
violation of the rule that no judgment obligor shall be
required to appear before a court, for the purpose of
examination concerning his property and income, outside
the province or city in which such obligor resides. In this
case the judgment obligor resides in Bulacan (Sec. 36, Rule
39, ROC, as amended)
52
 QuAMTO (1987-2022)
(b) Seven years after the entry of judgment, the
plaintiff filed an action for its revival. Can the
defendant successfully oppose the revival of the
judgment by contending that it is null and void
because the RTC-Manila did not acquire
jurisdiction over his person? Why?
A: YES, because the sheriff did not exert sufficient effort to
serve summons personally on the defendant within a
reasonable time and hence the RTC-Manila did not acquire
jurisdiction over his person. (Secs. 6 and 7, Rule 14, ROC, as
amended; De Guzman v. Court of Appeals, G.R. No. 120941, 18
Apr. 1997)
Q: On her deathbed, your grandmother revealed to you
that in 1994, she and her family won a civil action for
damages against a former President for human rights
atrocities committed against them during martial law.
The judgment was never appealed.
Your grandmother informed you that she never had the
judgment executed because she wanted this to be her
parting gift for you when she passed. She said that she
also felt the need to wait for one of her grandchildren to
become a lawyer. It so happened that you have just
passed the #BestBarEver2020_21.
Your grandmother spent her last moments narrating
how she had been arrested by the military during
martial law, and was then tortured and raped while
under detention. She emphasized that her case was not
unique, and that until now, she was yet to receive an
apology from any member of the former President’s
family.
With her last breath, she instructed you not to let her
experience happen again. Her parting words to you
were: “Never again!”
Is an action for revival of judgment the proper remedy
to enable the judgment's execution? Explain briefly.
(2020-21 BAR)
A: NO, an action for revival of judgment is not the proper
remedy to enable the judgment's execution. Under the Law
on Civil Procedure, an action for revival of judgment must
be filed within ten years from the entry of judgment;
otherwise, it is barred by prescription.
Here, it has been more than ten years from the entry of
judgment in 1994, the judgment never having been
appealed. Hence, the action for revival of judgment is not
the proper remedy because it has already prescribed. (Sec.
6, Rule 39, ROC, as amended; Art. 1144, New Civil Code;
Riguera 2022)
53
ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS
OR FINAL ORDERS
(2005 BAR)
Q: Under Article 1144 of the New Civil Code, an action
upon a judgment must be brought within 10 years from
the time the right of action accrues. Is this provision
applicable to an action filed in the Philippines to
enforce a foreign judgment? Explain. (2005 BAR)
A: NO. Art. 1144 of the New Civil Code which requires that an
action upon a judgment (though without distinction) must
be brought within 10 years from the time the right of action
accrues, does not apply to an action filed in the Philippines
to enforce a foreign judgment. While we can say that where
the law does not distinguish, we should not distinguish, still
the law does not evidently contemplate the inclusion of
foreign judgments. A local judgment may be enforced by
motion within five years and by action within the next five
years (Rule 39, ROC, as amended) That is not the case with
respect to foreign judgments which cannot be enforced by
mere motion.
IV. PROVISIONAL REMEDIES
(2022, 2019, 2017, 2014, 2012, 2010, 2006, 2005,
2003, 2002, 2001, 1999 BAR)
A. NATURE, PURPOSE, AND JURISDICTION
OVER PROVISIONAL REMEDIES
B. PRELIMINARY ATTACHMENT
(RULE 57)
(2014, 2012, 2005, 2002, 2001, 1999 BAR)
Q: Bayani, an overseas worker based in Dubai, issued in
favor of Agente, a special power of attorney to sell his
house and lot. Agente was able to sell the property but
failed to remit the proceeds to Bayani, as agreed upon.
On his return to the Philippines, Bayani, by way of a
demand letter duly received by Agente sought to
recover the amount due him. Agente failed to return the
amount as he had used it for the construction of his own
house. Thus, Bayani filed an action against Agente for
sum of money with damages. Bayani subsequently filed
an ex-parte motion for the issuance of a writ of
preliminary attachment duly supported by an affidavit.
The court granted the ex parte motion and issued a writ
of preliminary attachment upon Bayani’s posting of the
required bond. Bayani prayed that the court’s sheriff be
deputized to serve and implement the writ of
attachment. On November 19, 2013, the Sheriff served
upon Agente the writ of attachment and Agente levied
on the latter’s house and lot. On November 20, 2013, the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Sheriff served upon Agente summons and a copy of the
complaint. On November 22, 2013, Agente filed an
Answer with Motion to Discharge the Writ if
Attachment alleging that at the time the writ of
preliminary attachment was issued, he has not been
served with summons and, therefore, it was improperly
issued. (2014 BAR)
(a) Is Agente correct?
A: NO. Agente is not correct. Section 2, Rule 57 provides that
a writ of attachment may be issued ex parte or upon motion
with notice and hearing by the Court in which the action is
pending. Under the Rules, the applicant of the writ is only
required to (i) submit an affidavit and (ii) post a bond
before the court can validly issue the writ of attachment.
The Rules do not require prior service of summons for the
proper issuance of a writ of attachment. (Torres v. Satsatin,
G.R. No. 166759, 25 Nov. 2009) Accordingly, the issuance of
the writ of attachment is valid notwithstanding the absence
of a prior service of summons to Agnete.
(b) Was the writ of preliminary attachment properly
executed?
A: NO. The writ of preliminary attachment was not properly
executed. Although a writ of attachment may issue even
before summons is served upon the defendant, the same,
however, may not bind and affect the defendant until
jurisdiction over his person is obtained. (Davao Light and
Power Co., Inc. v. Court of Appeals, G.R. No. 93262, 29 Dec.
1991) Thus, the writ of preliminary attachment must only
be served simultaneous or at least after the service of
summons to the defendant. (Torres v. Satsatin, G.R. No.
166759, 25 Nov. 2009)
Q: Briefly discuss/differentiate the following kinds of
Attachment: preliminary attachment, garnishment,
levy on execution, warrant of seizure and warrant of
distraint and levy. (2012 BAR)
A: Preliminary attachment is a provisional remedy under
Rule 57 of the Rules of Court. It may be sought at the
commencement of an action or at any time before entry of
judgment where property of an adverse party may be
attached as security for satisfaction of any judgment, where
this adverse party is about to depart from the Philippines,
where he has intent to defraud or has committed fraud, or
is not found in the Philippines. An affidavit and a bond is
required before the preliminary attachment issues. It is
discharged upon payment of a counter bond. (UPLC
Suggested Answers)
Garnishment is a manner of satisfying or executing
judgment where the sheriff may levy debts, credits,
royalties, commissions, bank deposits and other personal
property not capable of manual delivery that are in the
control or possession of third persons and are due the
judgment obligor. Notice shall be served on third parties.
The third party garnishee must make a written report on
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
whether or not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If not, the
report shall state how much funds or credits the garnishee
holds for the judgment obligor. (Sec. 9(c), Rule 39, ROC, as
amended; UPLC Suggested Answers)
Levy on execution is a manner of satisfying or executing
judgment where the sheriff may sell property of the
judgment obligor if he is unable to pay all or part of the
obligation in cash, certified bank check or any other manner
acceptable to the obligee. If the obligor does not choose
which among his property may be sold, the sheriff shall sell
personal property first and then real property second. He
must sell only so much of the personal or real property as is
sufficient to satisfy judgment and other lawful fees. (Sec.
9(b), Rule 39, ROC, as amended, UPLC Suggested Answers)
Warrant of seizure is normally applied for with a search
warrant, in criminal cases. The warrant of seizure must
particularly describe the things to be seized. While it is true
that the property to be seized under a warrant must be
particularly described therein and no other property can be
taken thereunder, yet the description is required to be
specific only insofar as the circumstances will ordinarily
allow. An application for search and seizure warrant shall
be filed with the following: (a) any court within whose
territorial jurisdiction a crime was committed; (b) for
compelling reasons stated in the application, any court
within the judicial region where the crime was committed if
the place of the commission of the crime is known, or any
court within the judicial region where the warrant shall be
enforced. However, if the criminal action has already been
filed, the application shall only be made in the court where
the criminal action is pending. (UPLC Suggested Answers)
Warrant of distraint and levy is remedy available to local
governments and the BIR in tax cases to satisfy deficiencies
or delinquencies in inheritance and estate taxes, and real
estate taxes. Distraint is the seizure of personal property to
be sold in an authorized auction sale. Levy is the issuance of
a certification by the proper officer showing the name of the
taxpayer and the tax, fee, charge or penalty due him. Levy is
made by writing upon said certificate the description of the
property upon which levy is made. (Ibid.)
Q: A sues B for collection of a sum of money. Alleging
fraud in the contracting of the loan, A applies for
preliminary attachment with the court. The Court
issues the preliminary attachment after A files a bond.
While summons on B was yet unserved, the sheriff
attached B's properties. Afterwards, summons was duly
served on B. B moves to lift the attachment. Rule on this.
(2012 BAR)
A: I will grant the motion since no levy on attachment
pursuant to the writ shall be enforced unless it is preceded
or contemporaneously accompanied by service of
summons. There must the prior or contemporaneous
service of summons with the writ of attachment. (Sec. 5,
Rule 57, ROC, as amended)
54
 QuAMTO (1987-2022)
Q: Katy filed an action against Tyrone for collection of
the sum of P1 million in the RTC, with an ex parte
application for a writ of preliminary attachment. Upon
posting of an attachment bond, the court granted the
application and issued a writ of preliminary
attachment. Apprehensive that Tyrone might withdraw
his savings deposit with the bank, the sheriff
immediately served a notice of garnishment on the
bank to implement the writ of preliminary attachment.
The following day, the sheriff proceeded to Tyrone’s
house and served him the summons, with copies of the
complaint containing the application for writ of
attachment, Katy’s affidavit, order of attachment, writ
of preliminary attachment and attachment bond.
Within fifteen (15) days from service of the summons,
Tyrone filed a motion to dismiss and to dissolve the writ
of preliminary attachment on the following grounds:
(i) the court did not acquire jurisdiction over his
person because the writ was served ahead of the
summons; (ii) the writ was improperly implemented;
and (iii) said writ was improvidently issued because
the obligation in question was already fully paid.
Resolve the motion with reasons. (2005 BAR)
A: The motion to dismiss and to dissolve the writ of
preliminary attachment should be denied.
The fact that the writ of attachment was served ahead of the
summons did not affect the jurisdiction of the court over his
person. It makes the writ, unenforceable. (Sec. 5, Rule 57,
ROC, as amended) However, all that is needed to be done is
to re-serve the writ. (Onate v. Abrogar, G.R. No. 197393, 23
Feb. 1985)
Further, the writ was improperly implemented. Serving a
notice of garnishment, particularly before the summons is
served, is not proper. It should be a copy of the writ of
attachment that should be served on the defendant, and a
notice that the bank deposits are attached pursuant to the
writ. (Sec. 7(d), Rule 57, ROC, as amended)
Also, the writ was improvidently issued if indeed it can be
shown that the obligation was already fully paid. The writ is
only ancillary to the main action. (Sec. 13, Rule 57, ROC, as
amended) The alleged payment of the account cannot serve
as a ground for resolving the improvident issuance of the
writ, because this matter delves into the merits of the case,
and requires full-blown trial. Payment, however, serves as a
ground for a motion to dismiss.
Q: The plaintiff obtained a writ of preliminary
attachment upon a bond of P1 million. The writ was
levied on the defendant’s property, but it was
discharged upon the posting by the defendant of a
counterbond in the same amount of P1 million. After
trial, the court rendered judgment finding that the
plaintiff had no cause of action against the defendant
and that he had sued out the writ of attachment
maliciously. Accordingly, the court dismissed the
complaint and ordered the plaintiff and its surety to pay
55
jointly to the defendant P1.5 million as actual damages,
P0.5 million as moral damages and P0.5 million as
exemplary damages. Evaluate the soundness of the
judgment from the point of view of procedure. (2002
BAR)
A: The judgment against the surety is not sound if due notice
was not given to him of the applicant for damages (Sec. 20,
Rule 57, ROC, as amended) Moreover, the judgment against
the surety cannot exceed the amount of its counterbond of
P1 million.
Q: May a writ of preliminary attachment be issued ex
parte? Briefly state the reason(s) for your answer.
(2001 BAR)
A: YES, an order of attachment may be issued ex parte or
upon motion with notice and hearing (Sec. 2, Rule 57, ROC,
as amended) The reason why the order may be issued ex
parte is that requiring notice to the adverse party and a
hearing would defeat the purpose of the provisional remedy
and enable the adverse party to abscond or dispose of his
property before a writ of attachment issues. (Mindanao
Savings and Loan Association, Inc. v. Court of Appeals, G.R. No.
84481, 18 Apr. 1989)
Q: In a case, the property of an incompetent under
guardianship was in custodia legis. Can it be attached?
Explain. (1999 BAR)
A: Although the property of an incompetent under
guardianship is in custodia legis, it may be attached as in fact
it is provided that in such case, a copy of the writ of
attachment shall be filed with the proper court and notice
of the attachment served upon the custodian of such
property (Sec. 7, Rule 57, ROC, as amended).
Q: May damages be claimed by a party prejudiced by a
wrongful attachment even if the judgment is adverse to
him? Explain. (1999 BAR)
A: YES, damages may be claimed by a party prejudiced by a
wrongful attachment even if the judgment is adverse to him.
This is authorized by the Rules. A claim for damages may be
made on account of improper, irregular or excessive
attachment, which shall be heard with notice to the adverse
party and his surety or sureties. (Sec. 20, Rule 57, ROC, as
amended; Javellana v. D.O. Plaza Enterprises Inc., G.R. No. L-
28297, 30 Mar. 1970)
Q: Distinguish attachment from garnishment. (1999
BAR)
A: Attachment and garnishment are distinguished from
each other as follows: attachment is a provisional remedy
that effects a levy on property of a party as security for the
satisfaction of any judgment that may be recovered, while
garnishment is a levy on debts due the judgment obligor or
defendant and other credits, including bank deposits,
royalties and other personal property not capable of
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
manual delivery under a writ of execution or a writ of Did the RTC err in issuing the writ of preliminary
attachment. injunction ex parte ex parte? Explain. (2019 BAR)

A: YES. An application for the issuance of a writ of

C. PRELIMINARY INJUNCTION preliminary injunction and/or TRO may be granted upon
(RULE 58) the filing of a verified application showing facts entitling the
(2022, 2019, 2017, 2010, 2006, 2003, 2001 BAR) applicant to the relief demanded. Essential to granting the
injunctive relief is the existence of an urgent necessity for
the writ in order to prevent serious damage. A TRO issues
only if the matter is of such extreme urgency that grave
Q: Isol, Inc. supplies rotisserie chicken products to the
injustice and irreparable injury would arise unless it is
grocery section of shopping malls. It conducts kitchen
immediately issued.
operations in a refurbished house located in Palanan, a
residential neighborhood. Rona, a resident of Palanan,
Based on Sec. 5, Rule 58 of the Rules of Court, an ex parte TRO
filed an action against Isol, Inc. to enjoin the operations
may be issued based on the following:
of its kitchen on the ground that it emits intolerable
odors and violates laws on waste disposal. In the same
(1) It is issued only in matters of extreme urgency and
action, Rona also seeks to have Isol, Inc.’s business
the applicant will suffer grave injustice and
permit revoked because an industrial facility is not
irreparable injury;
allowed by law .to be located in a residential
neighborhood and Isol, Inc. failed to comply with
(2) It shall be effective for only 72 hours counted from
sanitary inspection and other procedural and health
its issuance;
requirements. In the complaint Rona filed, she likewise
prayed for the issuance of a writ of preliminary
(3) Within this original 72-hour period, the issuing
injunction (WPI) to stop the kitchen operations during
judge must conduct a summary hearing to
the pendency of the case. Isol, Inc., in its verified
determine the proprietary of extending the TRO;
answer, strongly opposed the prayer for WPI
and
considering the huge financial disaster that it will suffer
if the writ were to be issued, especially in light of the
(4) In no case shall the total period of the TRO which
possibility that the suit could continue to be pending for
shall include the original 72 hours exceed 20 days.
more than a year.

Within the aforesaid 72-hours, the judge before whom the

Based on the foregoing, may the WPI prayed for already
case is pending shall conduct a summary hearing to
be issued? Explain briefly. (2022 BAR)
determine whether the TRO shall be extended until the
application for preliminary injunction can be heard. In no
A: NO. The WPI prayed for may not already be issued. Under
case shall the total period of effectivity of the TRO exceed 20
the Rules of Civil Procedure, no preliminary injunction shall
days, including the original 72 hours provided herein.
be issued or granted without hearing. (Sec. 5, Rule 58, ROC,
as amended) Here, although Isol, Inc. had filed its verified
Thus, the issuance of the ex parte 72 hours TRO upon
answer, the court had not yet conducted a hearing. Hence,
compliance with the parameters above, shall be included in
the WPI may not already be issued. (Riguera, 2023)
the computation of the 20 day period. The same cannot be
extended. After the lapsed 20 days period and no injunction
Q: Mrs. G defaulted in the payment of her loan
has been issued, the TRO becomes functus officio.
obligation with Z Bank. As such, Z Bank extra-judicially
foreclosed Mrs. G's mortgaged property and sold it at
The criterion above cited are absent in the case of Mrs. G.
public auction where it emerged as the highest bidder.
Hence, the RTC erred in the issuance of ex parte Preliminary
Eventually, a certificate of sale was issued in Z Bank's
Injunction against Z Bank. (Rodriguez v. Noel, A.M. No. RTJ-
favor, and title to the property was later consolidated
18-2525, 25 June 2018)
under the bank's name.

Q: A temporary restraining order (TRO) was issued on

Claiming that Z Bank used fraudulent machinations in
September 20, 2017 by the RTC against defendant Jeff
increasing the interest and penalty charges on the loan,
enjoining him from entering the land of Regan, the
thereby making it impossible for her to pay, Mrs. G filed
plaintiff. On October 9, 2017, upon application of Regan,
before the Regional Trial Court (RTC) a complaint for
the trial court, allegedly in the interest of justice,
cancellation of consolidation of ownership over a real
extended the TRO for another 20 days based on the
property with prayer for the issuance of a writ of
same ground for which the TRO was issued. On October
preliminary injunction against Z Bank. Immediately
15, 2017, Jeff entered the land subject of the TRO. May
thereafter, the RTC issued an ex parte ex parte writ of
Jeff be liable for contempt of court? Why? (2017 BAR)
preliminary injunction enjoining Z Bank from
disposing of the foreclosed property or taking
possession thereof.

UNIVERSITY OF SANTO TOMAS 56

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
A: NO, Jeff may not be liable for contempt. Under the Rule
on Preliminary Injunction, a TRO is effective only for a
period of 20 days from service on the person sought to be
enjoined. It is deemed automatically vacated if the
application for preliminary injunction is denied or not
resolved within the said period and no court shall have the
authority to extend or renew the TRO on the same ground
for which it was issued. (Sec. 5, Rule 58, ROC, as amended)
Here the extension of the TRO by the RTC was invalid since
it was for the same ground for which the TRO was issued.
Hence the TRO was deemed automatically vacated and thus
Jeff may not be liable for contempt for ignoring it.
Q: Define a temporary restraining order (TRO).
Differentiate a TRO from a status quo order. (2006 BAR)
A: A temporary restraining order is issued upon application
of a party and upon the posting of the required bond. On the
other hand, a status quo order maybe issued motu proprio
on equitable considerations and does not require the
posting of a bond. Unlike a temporary restraining order or
a preliminary injunction, a status quo order is more in the
nature of a cease-and-desist order, since it neither directs
the doing or undoing of acts as in the case of prohibitory or
mandatory injunctive relief (Garcia v. Mojica, G.R. No.
139043, 10 Sept., 1999)
Q: What are the requisites for the issuance of (a) a writ
of preliminary injunction; and (b) a final writ of
injunction? (2006 BAR)
A: The requisites for the issuance of a writ of preliminary
injunction are: (1) a right in esse or a clear and
unmistakable right to be protected; (2) a violation of that
right; (3) that there is an urgent and permanent act and
urgent necessity for the writ to prevent serious damage.
(Tayag v. Lacson, G.R. No. 134971, 25 Mar. 2004)
A final writ of injunction may be granted if after trial of the
action, it appears that the applicant is entitled to have the
act or acts complained of permanently enjoined (Sec. 9, Rule
58, ROC, as amended)
Q: Distinguish between injunction as an ancillary
remedy and injunction as a main action. (2006 BAR)
A: Injunction as an ancillary remedy presupposes the
existence of a principal or a main action. (Vallangca v. Court
of Appeals, G.R. No. 55336, 04 May 1989) Its main function is
to preserve the status quo until the merits can be heard and
resolved. (Urbanes v. Court of Appeals, G.R. No. 117964, 28
Mar. 2001)
On the other hand, an injunction as the main action is
brought specifically to obtain a judgment perpetually
restraining or commanding the performance of an act after
trial. (Del Mar v. PAGCOR, G.R. No. 138298, 29 Nov. 2000)
Q: May the RTC issue injunction without bond? (2006
BAR)
57
A: YES, if the injunction issued is a final injunction.
Generally, however, a preliminary injunction may not be
issued without the posting of a bond, unless exempted by
the trial court (Sec. 4 (b), Rule 58, ROC, as amended) or
otherwise provided for by law.
Q: May a justice of a Division of the Court of Appeals
issue a TRO? (2006 BAR)
A: YES, a Justice of a Division of the Court of Appeals may
issue a TRO, as authorized under Rule 58 and by Section 5,
Rule VI of the Internal Rules of Court of Appeals which
additionally requires that the action shall be submitted on
the next working day to the absent members of the division
for their ratification, modification or recall. (Heirs of Reyes v.
Court of Appeals, G.R. Nos. 135180-81; 135425-26, 16 Aug.
2000)
Q: Can a suit for injunction be aptly filed with the
Supreme Court to stop the president of the Philippines
from entering into a peace agreement with the National
Democratic Front? (2003 BAR)
A: A suit for injunction cannot be filed with the Supreme
Court to stop the President of the Philippines from entering
into a peace agreement with the National Democratic Front,
which is a purely political question. (Madarang v.
Santamaria, G.R. No. L- 13316, 11 Dec. 1917) The President
of the Philippines is immune from suit.
Q: May a preliminary injunction be issued ex parte?
Why? (2001 BAR)
A: NO, a writ of preliminary injunction may not be issued ex
parte. As provided in the Rules, no preliminary injunction
shall be granted without hearing and prior notice to the
party or person sought to be enjoined. (Sec. 5, Rule 58, ROC,
as amended) The reason is that a preliminary injunction
may cause grave and irreparable injury to the party
enjoined.
Q: An application for a writ of preliminary injunction
with a prayer for a temporary restraining order is
included in a complaint and filed in a multi-sala RTC
consisting of Branches 1, 2, 3 and 4. Being urgent in
nature, the Executive Judge, who was sitting in Branch
1, upon the filing of the aforesaid application
immediately raffled the case in the presence of the
judges of Branches 2, 3 and 4. The case was raffled to
Branch 4 and judge thereof immediately issued a
temporary restraining order. Is the temporary
restraining order valid? Why? (2001 BAR)
A: NO. It is only the Executive Judge who can issue
immediately a temporary restraining order effective only
for seventy-two (72) hours from issuance. No other Judge
has the right or power to issue a temporary restraining
order ex parte. The Judge to whom the case is assigned will
then conduct a summary hearing to determine whether the
temporary restraining order shall be extended, but in no
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
case beyond 20 days, including the original 72-hour period.
(Sec. 5, Rule 58, ROC, as amended)
D. RECEIVERSHIP
(RULE 59)
(2001 BAR)
Q: Joaquin filed a complaint against Jose for the
foreclosure of a mortgage of a furniture factory with a
large number of machinery and equipment. During the
pendency of the foreclosure suit, Joaquin learned from
reliable sources that Jose was quietly and gradually
disposing of some of his machinery and equipment to a
businessman friend who was also engaged in furniture
manufacturing such that from confirmed reports
Joaquin gathered, the machinery and equipment left
with Jose were no longer sufficient to answer for the
latter’s mortgage indebtedness. In the meantime,
judgment was rendered by the court in favor of Joaquin
but the same is not yet final. Knowing what Jose has
been doing. If you were Joaquin’s lawyer, what action
would you take to preserve whatever remaining
machinery and equipment are left with Jose? Why?
(2001 BAR)
A: To preserve whatever remaining machinery and
equipment are left with Jose, Joaquin's lawyer should file a
verified application for the appointment by the court of one
or more receivers. The Rules provide that receivership is
proper in an action by the mortgagee for the foreclosure of
a mortgage when it appears that the property is in danger
of being wasted or dissipated or materially injured and that
its value is probably insufficient to discharge the mortgage
debt. (Sec. 1(b), Rule 59, ROC, as amended)
E. REPLEVIN
(RULE 60)
(1999 BAR)
Q: What is replevin? (1999 BAR)
A: Replevin or delivery of personal property consists in the
delivery, by order of the court, of personal property by the
defendant to the plaintiff, upon the filing of a bond. (Calo v.
Roldan, G.R. No. L-252, 30 Mar. 1946)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
V. SPECIAL CIVIL ACTIONS
A. JURISDICTION AND VENUE
B. INTERPLEADER
(RULE 62)
C. DECLARATORY RELIEF AND SIMILAR REMEDIES
(RULE 63)
D. CERTIORARI, PROHIBITION, AND MANDAMUS
(RULE 65)
(2022, 2020-21, 2015, 2012, 2008, 2006, 2004, 2002,
2001, 2000, 1999, 1998 BAR)
1. DEFINITION AND DISTINCTIONS
(2022, 2020-21, 2015, 2012, 2008, 2006, 2004, 2002,
2001, 2000, 1999, 1998 BAR)
Q: Jaime was convicted for murder by the Regional Trial
Court of Davao City in a decision promulgated on
September 30, 2015. On October 5, 2015, Jaime filed a
Motion for New Trial on the ground that errors of law
and irregularities prejudicial to his rights were
committed during his trial. On October 7, 2015, the
private prosecutor, with the conformity of the public
prosecutor, filed an Opposition to Jaime's motion. On
October 9, 2015, the court granted Jaime's motion. On
October 12, 2015, the public prosecutor filed a motion
for reconsideration. The court issued an Order dated
October 16, 2015 denying the public prosecutor's
motion for reconsideration. The public prosecutor
received his copy of the order of denial on October 20,
2015 while the private prosecutor received his copy on
October 26, 2015. (2015 BAR)
(a) What is the remedy available to the prosecution
from the court's order granting Jaime's motion for
new trial?
A: The remedy of the prosecution is to file a petition for
certiorari under Rule 65 of the Rules of Court, because the
denial of a motion for reconsideration is merely an
interlocutory order and there is no plain, speedy and
adequate remedy under the course of law. (UPLC Suggested
Answers)
58
 QuAMTO (1987-2022)
Be that as it may, it may be argued that appeal is the
appropriate remedy from an order denying a motion for
reconsideration of an order granting a motion for new trial
because an order denying a motion for reconsideration was
already removed in the enumeration of matters that cannot
be a subject of an appeal under Sec. 1, Rule 41 of the Rules of
Court. (Ibid.)
(b) In what court and within what period should a
remedy be availed of?
A: Following the principle of judicial hierarchy, the petition
for certiorari should be filed before the Court of Appeals
within sixty (60) days from receipt of the copy of the order
of denial of the public prosecutor’s motion for
reconsideration, or on 20 Oct. 2015. (ibid.)
(c) Who should pursue the remedy?
A: The Office of the Solicitor General (OSG) should pursue
the remedy. In criminal proceedings on appeal in the Court
of Appeals or in the Supreme Court, the authority to
represent the people is vested solely in the Solicitor
General. Under P.D. No. 4478 among the specific powers
and functions of the OSG is to “represent the government in
the Supreme Court and the Court of Appeals in all criminal
proceedings.” This provision has been carried over to the
Revised Administrative Code particularly in Book IV, Title
III, Chapter 12 thereof. Without doubt, the OSG is the
appellate counsel of the People of the Philippines in all
criminal cases. (Cariño v. de Castro, G.R. No. 176084, 30 Apr.
2008)
Q: The Ombudsman found probable cause to charge
with plunder the provincial governor, vice governor,
treasurer, budget officer, and accountant. An
Information for plunder was filed with the
Sandiganbayan against the provincial officials except
for the treasurer who was granted immunity when he
agreed to cooperate with the Ombudsman in the
prosecution of the case. Immediately, the governor filed
with the Sandiganbayan a petition for certiorari against
the Ombudsman claiming there was grave abuse of
discretion in excluding the treasurer from the
Information. (2015 BAR)
(a) Was the remedy taken by the governor correct?
A: NO, the remedy taken by the Governor is not correct. The
petition for certiorari is a remedy that is only available
when there is no plain, speedy and adequate remedy under
the ordinary course of law; hence, the Governor should have
filed a Motion for Reconsideration.
Besides, there is no showing that the Ombudsman
committed grave abuse of discretion in granting immunity
to the treasurer who agreed to cooperate in the prosecution
of the case.
59
(b) Will the writ of mandamus lie to compel the
Ombudsman to include the treasurer in the
Information?
A: NO, mandamus will not lie to compel the Ombudsman to
include the treasurer in the Information. In matters
involving exercise of judgment and discretion, mandamus
may only be resorted to in order to compel respondent
tribunal, corporation, board, officer or person to take action,
but it cannot be used to direct the manner or particular way
discretion is to be exercised, or to compel the retraction or
reversal of an action already taken in the exercise of
judgment or discretion. (Ampatuan, Jr. v. De Lima, G.R. No.
197291, 03 Apr. 2013)
Evidently, the Ombudsman’s act of granting the treasurer
immunity from prosecution under such terms and
conditions as it may determine (Sec. 17, R.A. No. 6770) is a
discretionary duty that may not be compelled by the
extraordinary writ of mandamus.
Q: Mayor Dalupan, who was notorious for being
involved in rigged public biddings, was convicted by the
Sandiganbayan, in the exercise of its original
jurisdiction, for violation of Section 3 (e) of Republic Act
No. 3019, or the Anti-Graft and Corrupt Practices Act.
Seeking to overturn his conviction, Mayor Dalupan filed
a Rule 65 petition for certiorari before the Supreme
Court on the 59th day from notice of the assailed
Sandiganbayan ruling.
Is the remedy availed of by Mayor Dalupan correct?
Explain briefly. (2022 BAR)
A: NO, the remedy of a petition for certiorari under Rule 65
availed of by Mayor Dalupan is not correct. Under the Rules
of Civil Procedure, a special civil action for certiorari under
Rule 65 is not a proper remedy if appeal was available to the
aggrieved person. (Sec. 1, Rule 65, ROC, as amended)
Here, appeal was available to Mayor Dalupan because he
could have filed a notice of appeal to the Supreme Court
from the Sandiganbayan’s judgment of conviction. (People v.
Talaue, G.R. No. 248652, 12 Jan. 2021) Hence, the remedy of
a petition for certiorari availed of by Mayor Dalupan is not
correct.
Q: Compare the certiorari jurisdiction of the Supreme
Court under the Constitution with that under Rule 65 of
the Rules of Civil Procedure. (2008 BAR)
A: Under the Constitution, the certiorari jurisdiction of the
Supreme Court provides for its expanded jurisdiction
power of judicial review over all branches or
instrumentalities of the government where there is a grave
abuse of discretion amounting to lack or excess of
jurisdiction, as provided in Sec. 1(2), Article VIII of the 1987
Constitution.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Under Rule 65 of the Rules of Court, the certiorari
jurisdiction of the Supreme Court is limited to acts done
without or in excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction, by a
tribunal, board or officer exercising judicial or quasi-judicial
functions only. And the period fixed for availing of the
remedy is not later than 60 days from notice of judgment;
order or resolution in question (Secs. 1 and 4, Rule 65, ROC,
as amended)
Q: Explain each mode of Certiorari: (2006 BAR)
(a) As a mode of appeal from the Regional Trial Court
or the Court of Appeals to the Supreme Court.
A: A petition for review on certiorari under Rule 45 is a
mode of appeal on pure questions law from a judgment or
final order or resolution of the Regional Court or the Court
of Appeals to the Supreme Court.
(b) As special civil action from the Regional Trial Court
or the Court of Appeals to the Supreme Court.
A: A special civil action for certiorari under Rule 65, is an
original action from the Regional Trial Court or the Court of
Appeals to the Supreme Court against any tribunal, board or
officer exercising judicial or quasi-judicial functions raising
the issue of lack or excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction, there
being no appeal or any plain, speedy and adequate remedy
in the ordinary course of law.
(c) As a mode of review of the decisions of the National
Labor Relations Commission and the Constitutional
Commissions.
A: The mode of review of the decision of the NLRC is via a
special civil action for certiorari under Rule 65, but
pursuant to the hierarchy of the courts enunciated in the
case of St. Martin’s Funeral Homes v. NLRC (G.R. No. 130866,
16 Sept. 1998) the same should be filed in the Court of
Appeals.
The mode of review of the decisions of two Constitutional
Commissions, the Commission on Elections and the
Commission on Audit, as provided under Rule 64 of the Rules
of Court is a special civil action for certiorari under Rule 65.
Decisions of the Civil Service Commission, however, are
reviewable by petition for review to be filed with the Court
of Appeals under Rule 43 of the Rules of Court.
Q: Differentiate certiorari as an original action from
certiorari as a mode of appeal. (1998, 1999 BAR)
A: Certiorari as an original action and certiorari as a mode
of appeal may be distinguished as follows:
a. The first is a special civil action under Rule 65,
while the second is an appeal to the Supreme Court
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
from the Court of Appeals, Sandiganbayan and the
Regional Trial Court under Rule 45.
b. The first can be filed only on the grounds of lack or
excess of jurisdiction or grave abuse of discretion
tantamount to lack or excess of jurisdiction, while
the second is based on the errors of law of the lower
court.
c. The first should be filed within sixty (60) days from
notice of the judgment, order or resolution sought
to be assailed (Sec. 4, Rule 65, as amended), while
the second should be filed within fifteen (15) days
from notice of the judgment or final order or
resolution appealed from, or of the denial of the
petitioner’s motion for new trial or reconsideration
filed in due time after notice of the judgment (Sec.
2, Rule 45, ROC, as amended)
d. The first cannot generally be availed of as a
substitute for a lost appeal under Rules 40, 41, 42,
43 and 45.
e. Under the first, the lower court is impleaded as a
party respondent (Sec. 5, Rule 65), while under the
second, the lower court is not impleaded. (Sec. 4,
Rule of 45, ROC, as amended)
Q: Differentiate certiorari as an original action from
certiorari as a mode of appeal. (1998 BAR)
A: Certiorari as an original action and certiorari as a mode
of appeal may be distinguished as follows:
1. The first is a special civil action under Rule 65, while
the second is an appeal to the Supreme Court from the
Court of Appeals, Sandiganbayan and the Regional
Trial Court under Rule 45.
2. The first can be filed only on the grounds of lack or
excess of jurisdiction or grave abuse of discretion
tantamount to lack or excess of jurisdiction, while the
second is based on the errors of law of the lower court.
3. The first should be filed within sixty (60) days from
notice of the judgment, order or resolution sought to
be assailed (Sec. 4, Rule 65) while the second should be
filed within fifteen (15) days from notice of the
judgment or final order or resolution appealed from,
or of the denial of the petitioner’s motion for new trial
or recon-sideration filed in due time after notice of the
judgment. (Sec. 2, Rule 45)
4. The first cannot generally be availed of as a substitute
for a lost appeal under Rules 40, 41, 42, 43 and 45.
5. Under the first, the lower court is impleaded as a party
respondent (Sec. 5, Rule 65), while under the second,
the lower court is not impleaded (Sec. 4, Rule of 45)
60
 QuAMTO (1987-2022)
Q: In 2007, Court of Appeals Justice (CA Justice) Dread
Dong (J. Dong) was appointed to the Supreme Court
(Court) as Associate Justice. Immediately after the
appointment was announced, several groups
questioned his qualification to the position on the
ground that he was not a natural born Filipino citizen.
In the same year, the Court issued an Order enjoining
him from accepting the appointment or assuming the
position and discharging the functions of his office until
he is able to successfully complete all the necessary
steps to show that he is a natural born citizen of the
Philippines. He however, continued to exercise his
functions as CA Justice.
Since the qualification of a natural born citizen applies
as well to CA Justices, Atty. Dacio, a practicing lawyer,
asked the Office of the Solicitor General (OSG), through
a verified request, to initiate a quo warranto
proceeding against J. Dong in the latter’s capacity as
incumbent CA Justice. The OSG refused to initiate the
action on the ground that the issue of J. Dong’s
citizenship was still being litigated in another case.
When the OSG refused to initiate a quo warranto
proceeding, Atty. Dacio filed a petition for certiorari
against the OSG, and certiorari and prohibition against
J. Dong. The petition for certiorari against the OSG
alleged that the OSG committed grave abuse of
discretion when it deferred the filing of a quo warranto
proceeding against J. Dong, while the petition for
certiorari and prohibition against J. Dong asked the
Court to order him to cease and desist from further
exercising his powers, duties and responsibilities as CA
Justice. In both instances, Atty. Dacio relied on the fact
that at the time of J. Dong’s appointment as CA Justice, J.
Dong’s birth certificate indicated that he was a Chinese
citizen and his bar records showed that he was a
naturalized Filipino citizen.
Does Atty. Dacio have the legal personality to initiate
the action for certiorari and prohibition against J. Dong?
(2018 BAR)
A: NO. He is not clothed with legal interest. Secs. 1 and 2,
Rule 65 of the Rules of Court state that only an aggrieved
party may file petitions for certiorari and prohibition in the
appropriate court.
An “aggrieved party” is one who was a party to the original
proceedings that gave rise to the original action for
certiorari under Rule 65 of the Rules of Court. (Siguion Reyna
Montecillo and Ongsiako Law Offices v. Chionlo-Sia, G.R. No.
181186, 03 Feb. 2016)
In this case, since there is no “original proceeding” before J.
Dong where Atty. Dacio is a party. Atty. Dacio cannot be
considered an “aggrieved party” for purposes of Secs. 1 and
2, Rule 65 of the Rules of Court. Atty. Dacio, therefore, has no
legal personality to file the same.
61
MANDAMUS
(2020-21, 2012, 2006, 2001, 1999 BAR)
Q: Will a petition for mandamus lie to compel the
Secretary of Foreign Affairs to convene representatives
of neighboring countries similarly situated with the
Philippines in order for them to find diplomatic
solutions to enforce the Arbitral Award relating to the
West Philippine Sea? Explain briefly. (2020-21 BAR)
A: NO, a petition for mandamus will not lie to compel the
Secretary of Foreign Affairs to convene representatives of
neighboring countries similarly situated with the
Philippines in order for them to find diplomatic solutions to
enforce the Arbitral Award relating to the West Philippine
Sea. Under the Law on Civil Procedure, mandamus does not
lie to compel the performance of discretionary acts. Here,
convening representatives of neighboring countries to find
diplomatic solutions to enforce the Arbitral Award is a
discretionary not ministerial act of the executive
department. Hence, a petition for mandamus will not lie.
(Riguera, 2022)
Q: A files a Complaint against B for recovery of title and
possession of land situated in Makati with the RTC of
Pasig. B files a Motion to Dismiss for improper venue.
The RTC Pasig Judge denies B's Motion to Dismiss,
which obviously was incorrect. Alleging that the RTC
Judge "unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting
from an office," A files a Petition for mandamus against
the judge. Will mandamus lie? Reasons. (2012 BAR)
A: No, mandamus will not lie. The proper remedy is a
petition for prohibition. (Serena v. Sandiganbayan, G.R. No.
162059, 22 Jan. 2008) The dismissal of the case based on
improper venue is not a ministerial duty. Mandamus does
not lie to compel the performance of a discretionary duty.
(Paloma v. Mora, G.R. No. 157783, 23 Sept. 2005)
Q: In 1996, Congress passed Republic Act No. 8189,
otherwise known as the Voter’s Registration Act of
1996, providing for computerization of elections.
Pursuant thereto, the COMELEC approved the Voter’s
Registration and Identification System (VRIS) Project. It
issued invitations to pre-qualify and bid for the project.
After the public bidding, Fotokina was declared the
winning bidder with a bid of P6 billion and was issued
a Notice of Award. But COMELEC Chairman Gener Go
objected to the award on the ground that under the
appropriations Act, the budget for the COMELEC’s
modernization is only P1 billion. He announced to the
public that the VRIS project has been set aside. Two
Commissioners sided with Chairman Go, but the
majority voted to uphold the contract. Meanwhile,
Fotokina filed with the RTC a petition for mandamus to
compel the COMELEC to implement the contract. The
Office of the Solicitor General (OSG), representing
Chairman Go, opposed the petition on the ground that
mandamus does not lie to enforce contractual
obligations. During the proceedings, the majority
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Commissioners filed a manifestation that Chairman Go
was not authorized by the COMELEC En Banc to oppose
the petition. Is a petition for mandamus an appropriate
remedy to enforce contractual obligations? (2006,
1999, BAR)
A: NO, the petition for mandamus is not an appropriate
remedy because it is not available to enforce a contractual
obligation. Mandamus is directed only to ministerial acts,
directing or commanding a person to do a legal duty.
(COMELEC v. Quijano-Padilla, G.R. No. 152992, 18 Sept. 2002;
Sec. 3, Rule 65, ROC, as amended)
Q: Petitioner Fabian was appointed Election Registrar
of the Municipality of Sevilla supposedly to replace the
respondent Election Registrar Pablo who was
transferred to another municipality without his
consent and who refused to accept his aforesaid
transfer, much less to vacate his position in Bogo Town
as election registrar, as in fact he continued to occupy
his aforesaid position and exercise his functions
thereto. Petitioner Fabian then filed a petition for
mandamus against Pablo but the trial court dismissed
Fabian’s petition contending that quo warranto is the
proper remedy. Is the court correct in its ruling? Why?
(2001 BAR)
A: YES, the court is correct in its ruling. Mandamus will not
lie as it is a remedy that applies only where petitioner’s right
is founded clearly in law, not when it is doubtful. Pablo was
transferred without his consent which is tantamount to
removal without cause, contrary to the fundamental
guarantee on non-removal except for cause. Considering
that Pedro continued to occupy the disputed position and
exercised his functions therein, the proper remedy is quo
warranto, not mandamus. (Garces v. Court of Appeals, G.R.
No. 114795, 17 July 1996)
CERTIORARI AS A REMEDY AGAINST GRAVE ABUSE
OF ANY BRANCH OR INSTRUMENTALITY
OF THE GOVERNMENT
(2012, 2004, 2002, 2000, 1999 BAR)
Q: After an information for rape was filed in the RTC, the
DOJ Secretary, acting on the accused's petition for
review, reversed the investigating prosecutor's finding
of probable cause. Upon order of the DOJ Secretary, the
trial prosecutor filed a Motion to Withdraw
Information which the judge granted. The order of the
judge stated only the following:
"Based on the review by the DOJ Secretary of the
findings of the investigating prosecutor during the
preliminary investigation, the Court agrees that there is
no sufficient evidence against the accused to sustain the
allegation in the information. The motion to withdraw
Information is, therefore, granted."
If you were the private prosecutor, what should you do?
Explain. (2012 BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: If I were the private prosecutor, I would file a petition for
certiorari under Rule 65 with the Court of Appeals (Cerezo
v. People, GR No.185230, June 1, 2011). It is well-settled that
when the trial court is confronted with a motion to
withdraw an Information (on the ground of lack of probable
cause to hold the accused for trial based on a resolution of
the DOJ Secretary), the trial court has the duty to make an
independent assessment of the merits of the motion. It may
either agree or disagree with the recommendation of the
Secretary. Reliance alone on the resolution of the Secretary
would be an abdication of the trial court’s duty and
jurisdiction to determine a prima facie case. The court must
itself be convinced that there is indeed no sufficient
evidence against the accused. Otherwise, the judge acted
with grave abuse of discretion if he grants the Motion to
Withdraw Information by the trial prosecutor. (Harold
Tamargo v. Romulo Awingan et al., G.R. No. 177727, 19 Jan.
2010)
Q: After plaintiff in an ordinary civil action before the
RTC, ZZ has completed presentation of his evidence,
defendant without prior leave of court moved for
dismissal of plaintiff’s complaint for insufficiency of
plaintiff’s evidence. After due hearing of the motion and
the opposition thereto, the court issued an order,
reading as follows: “The Court hereby grants
defendant’s motion to dismiss and accordingly orders
the dismissal of plaintiff’s complaint, with the costs
taxed against him. It is so ordered.” Is the order of
dismissal valid? May plaintiff properly take an appeal?
Reason. (2004 BAR)
A: The order or decision is void because it does not state
findings of fact and of law, as required by Sec. 14, Art. VIII of
the 1987 Constitution and Sec. 1, Rule 36 of the Rules of Court.
Being void, appeal is not available. The proper remedy is
certiorari under Rule 65.
Q: The defendant was declared in default in the RTC for
his failure to file an answer to a complaint for a sum of
money. On the basis of the plaintiff’s ex parte
presentation of evidence, judgment by default was
rendered against the defendant. The default judgment
was served on the defendant on October 1, 2001. On
October 10, 2001, he files a verified motion to lift the
order of default and to set aside the judgment. In his
motion, the defendant alleged that, immediately upon
receipt of the summons, he saw the plaintiff and
confronted him with his receipt evidencing his payment
and the plaintiff assured him that he would instruct his
lawyer to withdraw the complaint. The trial court
denied the defendant’s motion because it was not
accompanied by an affidavit of merit. The defendant
filed a special civil action for certiorari under Rule 65
challenging the denial order. (2002 BAR)
(a) Is certiorari under Rule 65 the proper remedy?
Why?
62
 QuAMTO (1987-2022)
A: YES. The petition for certiorari under Rule 65 filed by the
defendant is the proper remedy because appeal is not a
plain, speedy and adequate remedy in the ordinary course
of law. In appeal, the defendant in default can only question
the decision in the light of the evidence of the plaintiff. The
defendant cannot invoke the receipt to prove payment of his
obligation to the plaintiff.
(b) Did the trial court abuse its discretion or act
without or in excess of its jurisdiction in denying
the defendant’s motion to lift the order of default
judgement? Why?
A: YES, the trial court gravely abused its discretion or acted
without or in excess of jurisdiction in denying the
defendant’s motion because it was not accompanied by a
separate affidavit of merit. In his verified motion to lift the
order of default and to set aside the judgment, the defendant
alleged that immediately upon the receipt of the summons,
he saw the plaintiff and confronted him with his receipt
showing payment and that the plaintiff assured him that he
would instruct his lawyer to withdraw the complaint. Since
the good defense of the defendant was already incorporated
in the verified motion, there was no need for a separate
affidavit of merit. (Capuz v. Court of Appeals, G.R. No. 112795,
27 June 1994; Mago v. Court of Appeals, G.R. No. 115624, 25
Feb. 1999)
Q: AB mortgaged his property to CD. AB failed to pay his
obligation and CD filed an action for foreclosure of
mortgage. After trial, the court issued an Order granting
CD’s prayer for foreclosure of mortgage and ordering
AB to pay CD the full amount of the mortgage debt
including interest and other charges not later than 120
days from date of receipt of the Order. AB received the
Order on August 10, 1999. No other proceeding took
place thereafter. On December 20, 1999, AB tendered
the full amount adjudged by the court to CD but the
latter refused to accept it on the ground that the money
was tendered beyond the 120-day period granted by
the court. AB filed a motion in the same court praying
that CD be directed to receive the amount tendered by
him on the ground that the Order does not comply with
the provisions of Section 2, Rule 68 of the Rules of Court
which give AB 120 day from entry of judgment, and not
from date of receipt of the Order. The court denied his
motion on the ground that Order had already become
final and can no longer be amended to conform with
Section 2, Rule 68. Aggrieved, AB files a petition for
certiorari against the Court and CD. Will the petition for
certiorari prosper? Explain. (2000 BAR)
A: YES. The court erred in issuing an Order granting CD’s
prayer for foreclosure of mortgage and ordering AB to pay
CD the full amount of the mortgage and ordering AB to pay
CD the full amount of the mortgage debt including interest
and other charges not later than 120 days from receipt of
the Order. The court should have rendered a judgment
which is appealable. Since no appeal was taken, the
judgment became final on 25 Aug. 1999, which is the date of
63
entry of judgment (Sec. 2, Rule 36, ROC, as amended) Hence,
AB had up to December 24, 1999, within which to pay the
amount due. (Sec. 2, Rule 68, ROC, as amended) The court
gravely abused its discretion amounting to lack or excess of
jurisdiction in denying AB’s motion praying that CD be
directed to receive the amount tendered.
Q: May the aggrieved party file a petition for certiorari
in the Supreme Court under Rule 65 of the 1997 Rules
of Civil Procedure, instead of filing a petition for review
on certiorari under Rule 45 thereof for the nullification
of a decision of the Court of Appeals in the exercise
either of its original or appellate jurisdiction? Explain.
(1999 BAR)
A: To nullify a decision of the Court of Appeals the aggrieved
party should file a petition for review on certiorari in the
Supreme Court under Rule 45 of the Rules of Court instead of
filing a petition for certiorari under Rule 65 Rule 65. except
under very exceptional circumstances. Certiorari is not a
substitute for a lost appeal. It should be noted, however,
when the Court of Appeals imposes the death penalty, or a
lesser penalty for offenses committed on such occasion,
appeal by petition for review or ordinary appeal. In cases
when the Court of Appeals imposes reclusion perpetua, life
imprisonment or a lesser penalty, appeal is by notice of
appeal filed with the Court of Appeals.
2. REQUISITES, WHEN, AND WHERE TO FILE
(2022 BAR)
Q: Assume that you received an adverse decision and
filed a motion for reconsideration which was denied.
Give the reglementary periods for filing the following:
a) Notice of Appeal to the Court of Appeals
b) Petition for Certiorari under Rule 65
c) Petition for Review to the Court of Appeals
under Rule 42
d) Petition for Review on Certiorari to the
Supreme Court under Rule 45
e) Petition for Certiorari under Rule 64 (2022
BAR)
A: The reglementary periods for filing the following where
a motion for reconsideration of the adverse decision was
denied are:
a) Notice of Appeal to the Court of Appeals – Within 15
days from notice of the order denying the motion for
reconsideration or within 48 hours from such denial if
a habeas corpus case. (Neypes v. Court of Appeals, 14
Sept. 2005)
b) Petition for Certiorari under Rule 65 – Within 60
days from notice of the order denying the motion for
reconsideration.
c) Petition for Review to the Court of Appeals under
Rule 42 – Within 15 days from notice of the denial of
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
the motion for reconsideration. Upon proper motion,
the Court of Appeals may grant an additional period of
15 days only. No further extension shall be granted
except for the most compelling reason and in no case
to exceed 15 days.
d) Petition for Review on Certiorari to the Supreme
Court under Rule 45 – The petition shall be filed
within 15 days from notice of the denial of the motion
for reconsideration. On proper motion, the Supreme
Court may for justifiable reasons grant an extension of
30 days only within which to file the petition.
e) Petition for Certiorari under Rule 64 – The petition
shall be filed within filed within the remaining period
but which shall not be less than 5 days in any event,
reckoned from notice of denial of the motion for
reconsideration. The remaining period is that period
remaining after deducting the time during which the
motion was pending from the 30-day period to file the
petition for certiorari under Rule 64. (Riguera, 2023)
Q: In December of 2021, Matibag Realty Corp. and
Kasangga Construction Co. submitted their
construction dispute to arbitration before the
Construction Industry Arbitration Commission (CIAC).
In March 2022, the CIAC arbitral tribunal rendered an
award in favor of Kasangga Construction Co.
What is Matibag Realty Corp.’s remedy? Explain briefly.
(2022 BAR)
A: Matibag Realty Corp.’s remedy from the CIAC's arbitral
award is to file a petition for review on certiorari under Rule
45 with the Supreme Court or a petition for certiorari under
Rule 65 with the Court of Appeals.
The Supreme Court has held that an arbitral award of the
Supreme Court may be appealed by filing a petition for
review on certiorari with the Supreme Court pursuant to
E.O. No. 1008 or the law creating the CIAC. The petition shall
raise only questions of law.
The Supreme Court also held that an aggrieved party may
file with the Court of Appeals a petition for certiorari under
Rule 65 raising factual issues but only on the limited
grounds that pertain to either a challenge on the integrity of
the CIAC arbitral tribunal or an allegation that the arbitral
tribunal violated the Constitution or positive law in the
conduct of the arbitral process. (Global Medical Center of
Laguna, Inc. v. Ross Systems International, Inc., G.R. Nos.
230112 & 230119, 11 May 2021; Riguera, 2023)
Q: Police officers Miggy and Laida were involved in an
alleged buy-bust operation against Mr. Magtalas, a
suspected drug dealer. Mr. Magtalas maintained his
innocence, asserting that the drugs were merely
planted. He further claimed that he was unjustifiably
beaten up by the police officers. Mr. Magtalas filed
before the Office of the Deputy Ombudsman for Military
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
and Other Law Enforcement Officers (OMB- MOLEO) a
criminal complaint for planting evidence which is
punishable under Section 29 of the Dangerous Drugs
Act (R.A. No. 9165). Mr. Magtalas also filed an
administrative complaint for grave misconduct against
Miggy and Laida in light of the unwarranted physical
assault against him.
The Office of the Ombudsman (OMB) rendered a
decision holding Miggy and Laida administratively
liable for grave misconduct and accordingly imposed
the penalty of dismissal from service. A few weeks later,
the OMB issued a separate resolution finding probable
cause against them for violation of Section 29 of R.A. No.
9165.
Aggrieved, Miggy and Laida filed before the Supreme
Court the following: (i) a Rule 65 petition for certiorari
assailing the OMB’s decision finding them
administratively liable for grave misconduct; and (ii) a
Rule 45 petition for review on certiorari assailing the
OMB’s resolution finding probable cause against them.
Were the remedies availed of by Miggy and Laida
proper? Explain briefly. (2022 BAR)
A: NO. The remedies availed of by Miggy and Laida were not
proper.
(i) The petition for certiorari under Rule 65 to assail the
OMB's decision finding Miggy and Laida administratively
liable was not proper. Under the Rules of Civil Procedure, a
petition for certiorari under Rule 65 is not proper if appeal
was available to the aggrieved party.
Here, appeal was available to the aggrieved parties Miggy
and Laida, that is, a petition for review to the Court of
Appeals under Rule 43 since the OMB was acting in a quasi-
judicial capacity. (Fabian v. Desierto, G.R. No. 129742, 16
Sept. 1998) Hence, the petition for certiorari under Rule 65
was not the proper remedy.
(ii) The petition for review on certiorari under Rule 45 to
assail the OMB’s resolution finding probable cause against
Miggy and Laida was not proper. Under the Law on Civil
Procedure, a petition for review on certiorari under Rule 45
is available only against judgments or final orders of courts
or of the Construction Industry Arbitration Commission
(CIAC). (Sec. 1, Rule 45, ROC, as amended; Global Medical
Center of Laguna, Inc. v. Ross Systems International, Inc., G.R.
Nos. 230112 & 230119, 11 May 2021)
Here, the OMB is not a court nor is it the CIAC. The proper
remedy of Miggy and Laida to assail the OMB's finding of
probable cause was a petition for certiorari under Rule 65
to be filed with the Supreme Court. (Salvador v. Mapa, G.R.
No. 135080, 28 Nov. 2007) Hence, the petition for review on
certiorari under Rule 45 was not the proper remedy.
64
 QuAMTO (1987-2022)
3. EXCEPTIONS TO FILING OF MOTION FOR For a quo warranto proceeding to be successful the private
RECONSIDERATION person suing must show a clear right to the contested office.
BEFORE FILING PETITION (Topacio v. Associate Justice Ong, G.R. No. 179895, 18 Dec.
2008)

Q: A group of businessmen formed an association in

E. QUO WARRANTO Cebu City calling itself Cars C to distribute/sell cars in
(RULE 66) said city. It did not incorporate itself under the law nor
(2018 BAR) did it have any government permit or license to conduct
its business as such. The Solicitor General filed before a
RTC in Manila a verified petition for quo warranto
Q: In 2007, Court of Appeals Justice (CA Justice) Dread questioning and seeking to stop the operations of Cars
Dong (J. Dong) was appointed to the Supreme Court Co. The latter filed a motion to dismiss the petition on
(Court) as Associate Justice. Immediately after the the ground of improper venue claiming that its main
appointment was announced, several groups office and operation are in Cebu City and not in Manila.
questioned his qualification to the position on the Is the contention of Cars Co. correct? Why? (2001 BAR)
ground that he was not a natural born Filipino citizen.
In the same year, the Court issued an Order enjoining A: NO. As expressly provided in the Rules, when the
him from accepting the appointment or assuming the Solicitor General commences the action for quo warranto, it
position and discharging the functions of his office until may be brought in a RTC in the city of Manila, as in this case,
he is able to successfully complete all the necessary in the Court of Appeals or in the Supreme Court. (Sec. 7, Rule
steps to show that he is a natural born citizen of the 66, ROC, as amended)
Philippines. He however, continued to exercise his
functions as CA Justice.
F. EXPROPRIATION
Since the qualification of a natural born citizen applies (RULE 67)
as well to CA Justices, Atty. Dacio, a practicing lawyer, (2006 BAR)
asked the Office of the Solicitor General (OSG), through
a verified request, to initiate a quo warranto
proceeding against J. Dong in the latter’s capacity as
Q: May Congress enact a law providing that a 5,000
incumbent CA Justice. The OSG refused to initiate the
square meter lot, a part of the UST compound in
action on the ground that the issue of J. Dong’s
Sampaloc Manila, be expropriated for the construction
citizenship was still being litigated in another case.
of a park in honor of former City Mayor Arsenio Lacson?
As compensation to UST, the City of Manila shall deliver
When the OSG refused to initiate a quo warranto
its 5-hectare lot in Sta. Rosa, Laguna originally intended
proceeding, Atty. Dacio filed a petition for certiorari
as a residential subdivision for the Manila City Hall
against the OSG, and certiorari and prohibition against
employees. Explain (2006 BAR)
J. Dong. The petition for certiorari against the OSG
alleged that the OSG committed grave abuse of
A: YES, Congress may enact a law expropriating property
discretion when it deferred the filing of a quo warranto
provided that it is for public use and with just
proceeding against J. Dong, while the petition for
compensation. In this case, the construction of a park is for
certiorari and prohibition against J. Dong asked the
public use. (Seña v. Manila Railroad Co, G.R. No. 15915, 7
Court to order him to cease and desist from further
Sept. 1921; Reyes v. NHA, G.R. No. 147511, 24 Mar. 2003) The
exercising his powers, duties and responsibilities as CA
planned compensation, however, is not legally tenable as
Justice. In both instances, Atty. Dacio relied on the fact
the determination of just compensation is a judicial
that at the time of J. Dong’s appointment as CA Justice, J.
function. No statute, decree or executive order can mandate
Dong’s birth certificate indicated that he was a Chinese
that the determination of just compensation by the
citizen and his bar records showed that he was a
executive or legislative departments can prevail over the
naturalized Filipino citizen.
court’s findings. (Export Processing Zone Authority v. Dulay,
G.R. No. L-59603, 29 Apr. 1987; Secs. 5 to 8 Rule 67). In
May the OSG be compelled, in an action for certiorari,
addition, compensation must be paid in money. (Esteban v.
to initiate a quo warranto proceeding against J. Dong?
Onorio, AM No. 00- 4-166-RTC, 29 June 2001)
(2018 BAR)

A: NO. The OSG has the discretion in determining the 1. TWO STAGES IN EVERY ACTION FOR
presence of the requisites for a quo warranto proceeding. EXPROPRIATION
Besides, there is already a pending case for the purpose of
determining citizenship. 2. ORDER OF EXPROPRIATION

65 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
3. ASCERTAINMENT OF JUST COMPENSATION
4. RIGHTS OF PLAINTIFF
UPON JUDGMENT AND PAYMENT
G. FORECLOSURE OF REAL ESTATE MORTGAGES
(RULE 68)
(2022, 2016, 2003 BAR)
1. JUDICIAL FORECLOSURE
(2022, 2016, 2003 BAR)
Q: Lebron, a Makati resident, obtained a Php
350,000.00 loan from a bank secured by a real estate
mortgage (REM) over his lot located in Quezon City with
an assessed value of Php 500,000.00. Lebron failed to
pay despite written demands. The bank intends to file
an action for judicial foreclosure of the REM.
Where should the action for judicial foreclosure of the
REM be filed and in which court? Explain briefly. (2022
BAR)
A: The action for judicial foreclosure should be filed in
Quezon City and with the Regional Trial Court (RTC). Under
the Rules of Civil Procedure, the venue of a real action is in
the proper court which has jurisdiction over the area
wherein the real property is situated. (Sec. 1, Rule 4, ROC, as
amended)
Here, the action is one for judicial foreclosure which is a real
action as held by the Supreme Court. (Roldan v. Barrios, G.R.
No. 214803, 23 Apr. 2018) The land or real property is
situated in Quezon City. Hence, venue is laid in Quezon City
and the action should be filed there.
The action should be filed with the RTC.
Under B.P. Blg. 129, the RTC has jurisdiction over real
actions wherein the assessed value of the real property
involved exceeds P50,000. Hence, the RTC has jurisdiction
over the action for judicial foreclosure. (Riguera, 2023)
Q: A borrowed from the Development Bank of the
Philippines (DBP) the amount of P1 million secured by
the titled land of his friend B who, however, did not
assume personal liability for the loan. A defaulted and
DBP filed an action for judicial foreclosure of the real
estate mortgage impleading A and B as defendants. In
due course, the court rendered judgment directing A to
pay the outstanding account of P1.5 million (principal
plus interest) to the bank. No appeal was taken by A on
the Decision within the reglementary period. A failed to
pay the judgment debt within the period specified in
the decision. Consequently, the court ordered the
foreclosure sale of the mortgaged land. In that
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
foreclosure sale, the land was sold to the DPB for P1.2
million. The sale was subsequently confirmed by the
court, and the confirmation of the sale was registered
with the Registry of Deeds on 05 January 2002. On 10
January 2003, the bank filed an ex parte motion with
the court for the issuance of a writ of possession to oust
B from the land. It also filed a deficiency claim for P800,
000.00 against A and B. The deficiency claim was
opposed by A and B. (2003 BAR)
(a) Resolve the motion for the issuance of a writ of
possession.
A: In judicial foreclosure of banks such as DBP, the
mortgagor of debtor whose real property has been sold on
foreclosure has the right to redeem the property sold within
one year after the date (or registration of the sale).
However, the purchaser at the auction sale has the right to
obtain a writ of possession after the finality of the order
confirming the sale (Sec. 3, Rule 68; Sec. 47, R.A. No. 8791)
The motion for writ of possession, however, cannot be filed
ex parte. There must be a notice of hearing.
(b) Resolve the deficiency claim of the bank.
A: The deficiency claim of the bank may be enforced against
the mortgage debtor A, but it cannot be enforced against B,
the owner of the mortgaged property, who did not assume
personal liability for the loan.
2. EXTRAJUDICIAL FORECLOSURE
(Act No. 3135, as amended)
(2016 BAR)
Q:
(a) Is the buyer in the auction sale arising from an
extra-judicial foreclosure entitled to a writ of
possession even before the expiration of the
redemption period? If so, what is the action to be
taken? (2016 BAR)
A: YES, the buyer in the auction sale is entitled to a writ of
possession even before the expiration of the redemption
period upon the filing of the ex parte petition for issuance of
a writ of possession and posting of the appropriate bond.
Under Sec. 7 of Act No. 3135, as amended, the writ of
possession may be issued to the purchaser in a foreclosure
sale either within the one-year redemption period upon the
filing of a bond, or after the lapse of the redemption period,
without need of a bond. (LZK Holdings and Development
Corporation v. Planters Development Bank, G.R. No. 167998,
27 Apr. 2007) Hence, upon the purchaser’s filing of the ex
parte petition and posting of the appropriate bond, the RTC
shall, as a matter of course, order the issuance of the writ of
possession in favour of the purchaser (Spouses Marquez
Marquez v. Spouses Alindog, G.R. No. 184045, 22 Jan. 2014;
Spouses Gatuslao v. Yanson, G.R. No. 191540, 21 Jan. 2015)
66
 QuAMTO (1987-2022)
(b) After the period of redemption has lapsed and the
title to the lot is consolidated in the name of the I. FORCIBLE ENTRY AND UNLAWFUL DETAINER
auction buyer, is he entitled to the writ of (RULE 70)
possession as a matter of right? If so, what is the (2022, 2017, 2014, 2013, 2012, 2000, 1997 BAR)
action to be take? (2016 BAR)

A: YES, the auction buyer is entitled to a writ of possession

Q: Notting Hill Corp. filed an action for forcible entry
as a matter of right. It is settled that the buyer in a
against the ten occupants of a parcel of land it owns.
foreclosure sale becomes the absolute owner of the
After the summary proceedings, the Municipal Trial
property purchased if it is not redeemed within a period of
Court (MTC) rendered judgment against the ten
one year after the registration of the certificate of sale. He
defendants. The defendants filed a notice of appeal, but
is, therefore, entitled to the possession of the property and
failed to file a supersedeas bond to stay the judgment to
can demand it at any time following the consolidation of
vacate. Upon Notting Hill Corp.’s motion, the MTC issued
ownership in his name and the issuance to him of a new
a writ of execution. When Hugh, the sheriff, was
transfer certificate of title. In such a case, the bond required
implementing the writ of execution, he discovered that
in Sec. 7 of Act No. 3135 is no longer necessary. Possession
the land was occupied by a number of families who all
of the land then becomes an absolute right of the purchases
claimed that they were legitimate lessees of the ten
as confirmed owner. Upon proper application and proof of
defendants. Julia, one of the lessees, pleaded with Hugh,
title, the issuance of the writ of possession becomes a
beseeching:
ministerial duty of the court (LZK Holdings and
Development Corporation v. Planters Development Bank, G.R.
“I’m just a lessee, standing in front of a sheriff, asking
No. 167998, 27 Apr. 2007; Spouses Marquez v. Spouses
him to let me stay in my home.”
Alindog, G.R. No. 184045, 22 Jan. 2014; Spouses Gatuslao v.
Yanson, G.R. No. 191540, 21 Jan. 2015)
May Hugh implement the writ of execution against the
lessees? Explain briefly. (2022 BAR)
(c) Suppose that after the title to the lot has been
consolidated in the name of the auction buyer, said
A: YES. Hugh may implement the writ of execution against
buyer sold the lot to a third party without first
the lessees.
getting a writ of possession. Can the transferee
exercise the right of the auction buyer and claim
The Supreme Court has held that a judgment in an
that it is a ministerial duty of the court to issue a
ejectment case may be enforced not only against the
writ of possession in his favor? Briefly explain.
defendant but also against his privies. (Sunflower
(2016 BAR)
Neighborhood Association v. Court of Appeals, G.R. No.
136274, 3 Sept. 2003)
A: YES, the transferee can exercise the right of the auction
buyer. A transferee or successor-in-interest of the auction
Here, the lessees are privies of the defendants since their
buyer by virtue of the contract of sale between them, is
possession or occupancy was derived from the defendants,
considered to have stepped into the shoes of the auction
being their lessees. Thus, the judgment in the ejectment or
buyer. As such, the transferee is necessarily entitled to avail
forcible entry case may be enforced against the defendants’
of the provisions of Sec. 7 of Act No. 3135, as amended, as if
lessees. Hence, Hugh may implement the writ of execution
he is the auction buyer. When the lot purchased at a
against the lessees. (Riguera, 2023)
foreclosure sale is in turn sold or transferred, the right to
the possession thereof, along with all other rights of
Q: Laura was the lessee of an apartment unit owned by
ownership, transfers to its new owner. (Spouses Gallent v.
Louie. When the lease expired, Laura refused to vacate
Velasquez, G.R. No. 203949, 06 Apr. 2016) Thus, it is a
the property. Her refusal prompted Louie to file an
ministerial duty of the court to issue a writ of possession in
action for unlawful detainer against Laura who failed to
favor of the transferee of the auction buyer.
answer the complaint within the reglementary period.

3. THE GENERAL BANKING LAW OF 2000 Louie then filed a motion to declare Laura in default
(Sec. 47, R.A. No. 8791) should the motion be granted? Explain your answer.
(2017 BAR)

A: NO. The motion should not be granted because it is a

H. PARTITION prohibited pleading Under Section 19(h) of the Rules on
(RULE 69) Summary Procedure, a motion to declare defendant in
default is among the pleadings that are prohibited in cases
covered by said Rule: Considering that an action for
unlawful detainer is covered by the Rules on Summary
Procedure, Louie’s motion to declare Laura in default is a
prohibited pleading, and thus, should not be granted.

67 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Judgment was rendered against defendant Jaypee in
an action for unlawful detainer. The judgment ordered
Jaypee to vacate and to pay attorney's fees in favor of
Bart, the plaintiff. To prevent the immediate execution
of the judgment, would you advise the posting of a
supersedeas bond as counsel for Jaypee? (2017 BAR)
A: NO, as counsel for Jaypee I would not advise the posting
of a supersedeas bond. Under the Rule 70, a supersedeas
bond is necessary to prevent immediate execution only if
the judgment awarded rents, damages, and costs. Here the
judgment only ordered Jaypee to vacate and to pay
attorney’s fees. A supersedeas bond is not required to cover
attorney’s fees. (Once v. Gonzalez, G.R. No. L-44806, 31 Mar.
1977) Hence the posting of a supersedeas bond is not
required.
Q: Landlord, a resident of Quezon City, entered into a
lease contract with Tenant, a resident of Marikina City,
over a residential house in Las Pinas City. The lease
contract provided, among others, for a monthly rental
of P25,000.00, plus ten percent (10%) interest rate in
case of non-payment on its due date. Subsequently,
Landlord migrated to the United States of America
(USA) but granted in favor of his sister Maria, a special
power of attorney to manage the property and file and
defend suits over the property rented out to Tenant.
Tenant failed to pay the rentals due for five (5) months.
Maria asks your legal advice on how she can
expeditiously collect from Tenant the unpaid rentals
plus interests due. (2014 BAR)
(a) What judicial remedy would you recommend to
Maria?
A: I will advise Maria to immediately send a letter to the
tenant demanding the immediate payment of the unpaid
rentals plus interests due. If the tenant refuses, Maria can
avail any of the following remedies:
1. A complaint under A.M. No. 08-8-7-SC or the
Rules of Procedure for Small claims cases.
Maria should nonetheless waive the amount in
excess of P100,000 in order for her to avail of
the remedy under the said Rules.
2. A complaint for collection of sum of money
under the Rules on Summary Procedure since
Maria is only claiming the unpaid rentals and
interest due from tenant.
3. If the tenant refuses or is unable to pay the
rentals within 1 year from the last demand to
vacate and pay, I would advise Maria to file an
action for Unlawful Detainer.
(b) Where is the proper venue of the judicial remedy
which you recommended?
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: If Maria decides to file a complaint for collection of sum
of money under the Rules on Summary Procedure or Small
Claims, the venue is the residence of the plaintiff or
defendant, at the election if the plaintiff. (Sec. 2, Rule 4, ROC,
as amended) Hence it may be in Quezon City or Marikina
City, at the option of Maria.
If Maria files an action for unlawful detainer, the same shall
be commenced and tried in the Municipal Trial Court of the
municipality or city wherein the real property involved, or
a portion thereof is situated. (Sec. 1, Rule 4, ROC, as
amended) Therefore, the venue is Las Pinas City.
(c) If Maria insists on filing an ejectment suit against
Tenant, when do you reckon the one (1)-year
period within which to file the action?
A: The reckoning point for determining the one-year period
within which to file the action is the receipt of the last
demand to vacate and pay (Sec. 2, Rule 70, ROC, as amended)
Q: The spouses Juan reside in Quezon City. With their
lottery winnings, they purchased a parcel of land in
Tagaytay City for P100,000.00. In a recent trip to their
Tagaytay property, they were surprised to see hastily
assembled shelters of light materials occupied by
several families of informal settlers who were not there
when they last visited the property three (3) months
ago.
To rid the spouses’ Tagaytay property of these informal
settlers, briefly discuss the legal remedy you, as their
counsel, would use; the steps you would take; the court
where you would file your remedy if the need arises;
and the reason/s for your actions. (2013 BAR)
A: As counsel of spouses Juan, I will file a special civil action
for forcible entry. The Rules of Court provides that a person
deprived of the possession of any land or building by force,
intimidation, threat, strategy or stealth may at any time
within (one) 1 year after such withholding of possession
bring an action in the proper Municipal Trial Court where
the property is located. This action which is summary in
nature seeks to recover the possession of the property from
the defendant which was illegally withheld by the latter.
(Sec. 1, Rule 70, ROC, as amended)
An ejectment case is designed to restore, through summary
proceedings, the physical possession of any land or building
to one who has been illegally deprived of such possession,
without prejudice to the settlement of the parties’ opposing
claims of juridical possession in appropriate proceedings.
(Heirs of Olarte v. Office of the President, G.R. No. 177995, 15
June 2011)
However, before instituting the said action, I will first
endeavor to amicably settle the controversy with the
informal settlers before the appropriate Lupon or Barangay
Chairman. If there is no agreement reached after mediation
and conciliation under the Katarungang Pambarangay Law,
68
 QuAMTO (1987-2022)
I will secure a certificate to file action and file the complaint
for ejectment before the MTC of Tagaytay City where the
property is located since ejectment suit is a real action
regardless of the value of the property to be recovered or
claim for unpaid rentals. (B.P. 129 and Sec. 1, Rule 4, ROC, as
amended)
Q: BB files a complaint for ejectment in the MTC on the
ground of non-payment of rentals against JJ. After two
days, JJ files in the RTC a complaint against BB for
specific performance to enforce the option to purchase
the land subject of the ejectment case. What is the effect
of JJ’s action on BB’s complaint? Explain. (2000 BAR)
A: There is no effect. The ejectment case involves
possession de facto only. The action to enforce the option to
purchase will not suspend the action of ejectment for non-
payment or rentals. (Willmon Auto Supply Corp. v. Court of
Appeals, G.R. No. 97637, 10 Apr. 1992)
Q: On 10 January 1990, X leased the warehouse of A
under a lease contract with a period of 5 years. On 08
June 1996, A filed an unlawful detainer case against X
without a prior demand for X to vacate the premises.
(1997 BAR)
(a) Can X contest his ejectment on the ground that
there was no prior demand for him to vacate the
premises?
A: YES. X can contest his ejectment on the ground that there
was no prior demand to vacate the premise. (Sec. 2, Rule 70,
ROC, as amended; Casilan v. Tomassi, G.R. No. L-16574, 28
Feb. 1964; Lesaca v. Cuevas, G.R. No. L-48419, 27 Oct. 1983)
(b) In case the Municipal Trial Court renders judgment
in favor of A, is the judgment immediately
executory?
A: YES, because the judgment of the Municipal Trial Court
against the defendant X is immediately executory upon
motion unless an appeal has been perfected, a supersedeas
bond has been filed and the periodic deposits of current
rentals, if any, as determined by the judgment will be made
with the appellate court. (Sec. 19, Rule 70, ROC, as amended)
1. DIFFERENTIATED FROM ACCION PUBLICIANA
AND ACCION REIVINDICATORIA
J. CONTEMPT
(RULE 71)
(2019, 2012, 1998 BAR)
Q: Ms. R received a subpoena ad testificandum from a
Regional Trial Court (RTC) directing her to appear and
testify in a case. Despite notice and without any
sufficient justification, Ms. R failed to appear. This
69
prompted the RTC to issue 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 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
contempt, and consequently, ordered her arrest.
Ms. R moved to quash the warrant issued for her arrest,
claiming that a formal charge should have been filed
against her, and that the same should have been
docketed and prosecuted as a separate case against her.
She thus claimed that since this procedure was not
followed, the order citing her in contempt is null and
void. (2019 BAR)
(a) Is Ms. R's contention tenable? Explain.
A: NO. Under Section 4, Rule 71, a person may be charged
with indirect contempt only by either two (2) alternative
ways, namely:
(1) By a verified petition, if initiated by a party; or
(2) By an order or any other formal charge requiring
the respondent to show cause why he should not
be punished for contempt, if made by a court
against which the contempt is committed.
In short, a charge of indirect contempt must be initiated
through a verified petition, unless the charge is directly
made by the court against which the contemptuous act is
committed. Here, it was the court who initiated the
contempt charge against Mr. R. Hence, his contention is
untenable. (Peralta v. Omelio, A.M. No. RTJ-11-2259, 22 Oct.
2013)
(b) What is the proper mode of appeal should Ms. R
decide to assail her contempt citation? Will the
filing of such appeal automatically result in the
suspension of the execution of judgment? Explain.
A: The proper remedy of Mr. R is to file a petition for
certiorari or prohibition under Rule 65.
The execution of the judgment shall be suspended pending
resolution of such petition, provided such person file a bond
fixed by the court which rendered the judgment and
conditioned that he will abide by and perform the judgment
should the petition be decided against him. (Section 2, Rule
71, ROC, as amended)
Q: Mr. Sheriff attempts to enforce a Writ of Execution
against X, a tenant in a condominium unit, who lost in
an ejectment case. X does not want to budge and refuses
to leave. Y, the winning party, moves that X be declared
in contempt and after hearing, the court held X guilty of
indirect contempt. If you were X’s lawyer, what would
you do? Why? (2012 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: If I were X’s lawyer, I would file a petition for certiorari
under Rule 65. The judge should not have acted on Y’s
motion to declare X in contempt. The charge of indirect
contempt is initiated through a verified petition (Sec.4, Rule
71, ROC, as amended) The writ was not directed to X but to
the sheriff which was directed to deliver the property to Y.
As the writ did not command the judgment debtor to do
anything, he cannot be guilty of the facts described in Rule
71 which is “disobedience of or resistance to a lawful writ,
process, order, judgment, or command of any court.” The
proper procedure is for the sheriff to oust X availing of the
assistance of peace officers pursuant to Sec. 10(c) of Rule 39
of the Rules of Court. (Lipa v. Tutaan, L-16643, 29 Sept. 1983;
Medina v. Garces, L- 25923, 15 July 1980; Pascua v. Heirs of
Simeon, G.R. No. L- 47717, 2 May 1988; Patagan v. Panis, G.R.
No. 55630, 08 Apr. 1988)
Q: A filed a complaint for the recovery of ownership of
land against B who was represented by her counsel X.
in the course of the trial, B died. However, X failed to
notify the court of B’s death. The court proceeded to
hear the case and rendered judgment against B. After
the Judgment became final, a writ of execution was
issued against C, who being B’s sole heir, acquired the
property. Did the failure of counsel X to inform the
court of B’s death constitute direct contempt? (1998
BAR)
A: NO. It is not direct contempt under Sec. 1 of Rule 71, but
it is an indirect contempt within the purview of Sec. 3 of
Rule 71. The lawyer can also be subject of disciplinary
action. (Sec. 16, Rule 3, ROC, as amended)
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
Q: Distinguish civil actions from special proceedings.
(1998 BAR)
A: A CIVIL ACTION is one by which a party sues another for
the enforcement or protection of a right, or the prevention
or redress of a wrong, while a SPECIAL PROCEEDING is a
remedy by which a party seeks to establish a status, a right
or a particular fact.
A. SETTLEMENT OF ESTATE OF DECEASED PERSONS
(2016, 2012, 2011, 2010, 2009, 2007, 2006, 2005,
2003, 1994 BAR)
1. VENUE AND PROCESS
(RULE 73)
(2005, 2003 BAR)
Q: State the rule on venue in judicial settlement of
estate of deceased persons. (2005 BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: The rule on venue in judicial settlement of estate of
deceased persons may be stated as follows: If the decedent
is an inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, the venue shall be in the
Regional Trial Court in the province in which he resides at
the time of his death. It cannot be in the place where he used
to live. If he is an inhabitant of a foreign country, the
Regional Trial Court of any province in which he had estate,
is the proper venue. The court first taking cognizance of the
case shall exercise jurisdiction to the exclusion of all other
courts. When the marriage is dissolved by the death of the
husband or wife, the community property shall be
inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate
proceedings of either.
Q: A, a resident of Malolos, Bulacan, died leaving an
estate located in Manila, worth P200,000.00. In what
court, taking into consideration the nature of
jurisdiction and of venue, should the probate
proceeding on the estate of A be instituted? (2003 BAR)
A: The probate proceeding on the estate of A should be
instituted in the Municipal Trial Court of Malolos, Bulacan
which has jurisdiction, because the estate is valued at
P200,000.00, and is the court of proper venue because A
was a resident of Malolos at the time of his death.
NOTE: R.A. No. 11576 increased the jurisdictional amount
cognizable by MTC to P2,000,000.00.
2. SUMMARY SETTLEMENT OF ESTATES
(RULE 74)
(2009, 2007, 2005, 1994)
Pinoy died without a will. His wife, Rosie, and three
children executed a deed of extrajudicial settlement of
his estate. The deed was properly published and
registered with the Office of the Register of Deeds.
Three years thereafter, Suzy appeared, claiming to be
the illegitimate child of Pinoy. She sought to annul the
settlement alleging that she was deprived of her
rightful share in the estate. Rosie and the three children
contended that:
(a) The publication of the deed constituted constructive
notice to the whole world, and should therefore bind
Suzy; and
(b) Suzy’s action had already prescribed.
Are Rosie and the three children correct? Explain.
(2009 BAR)
A: NO, Rosie and her three children are not correct.
(a) The publication of the deed of extrajudicial partition
does not constitute constructive notice to the whole world
70
 QuAMTO (1987-2022)
since the Rules of Court provides that “no extrajudicial
settlement shall be binding upon any person who has not
participated therein or had no notice thereof.”
(b) Suzy’s action has not prescribed. Her action to annul the
settlement is in effect an action for reconveyance which may
be filed within ten years from the issuance of the title. Here
only three years had lapsed hence Suzy’s action has not yet
prescribed. (Riguera, 2022)
Q: The heirs of H agree among themselves that they will
honor the division of H’s estate as indicated in her Last
Will and Testament. To avoid the expense of going to
court in a Petition for Probate of the Will, can they
instead execute an Extrajudicial Settlement Agreement
among themselves? Explain briefly. (2007 BAR)
A: The heirs of H cannot validly agree to resort to
extrajudicial settlement of his estate and do away with the
probate of H’s last will and testament. Probate of the will is
mandatory. The policy of the law is to respect the will of the
testator as manifested in the other dispositions in his last
will and testament, insofar as they are not contrary to law,
public morals and public policy. Extrajudicial settlement of
an estate of a deceased is allowed only when the deceased
left no last will and testament and all debts, if any, are paid.
(Sec. 1, Rule 74, ROC, as amended)
Q: Sergio Punzalan, Filipino, 50 years old, married, and
residing at Ayala Alabang Village, Muntinlupa City, of
sound and disposing mind, executed a last will and
testament in English, a language spoken and written by
him proficiently. He disposed of his estate consisting of
a parcel of land in Makati City and cash deposit at the
City Bank in the sum of P300 Million. He bequeathed
P50 Million each to his 3 sons and P150 Million to his
wife. He devised a piece of land worth P100 Million to
Susan, his favorite daughter-in-law. He named his best
friend, Cancio Vidal, as executor of the will without
bond.
Can the widow and her children settle extrajudicially
among themselves the estate of the deceased? (2005
BAR)
A: NO, an extrajudicial settlement of estate by agreement
between or among the heirs of the deceased may be had
only when the decedent left no will. Rene died intestate,
leaving several heirs and substantial property here in the
Philippines.
Q: Nestor died intestate in 2003, leaving no debts. How
may his estate be settled by his heirs who are of legal
age and have legal capacity? Explain. (2005 BAR)
A: If the decedent left no will and no debts, and the heirs are
all of age, the parties may, without securing letters of
administration, divide the estate among themselves by
means of a public instrument or by pending action for
partition and shall file a bond with the register of deeds in
71
an amount equivalent to the value of the personal property
involved as certified to under oath by the parties concerned.
The fact of extra-judicial settlement shall be published in a
newspaper of general circulation once a week for three
consecutive weeks in the province.
Q: Assuming Rene left no debts, as counsel for Rene’s
heirs, what steps would you suggest: (1994 BAR)
(a) To settle Rene’s estate in the least expensive
manner?
A: To settle Rene’s estate in the least expensive manner, an
extrajudicial settlement of the estate by agreement of the
parties should be made through a public instrument to be
filed with the Register of Deeds, together with a bond in an
amount equivalent to the value of the personal property
involved as certified to under oath by the parties concerned
and conditioned upon payment of any just claim that may
be filed within two (2) years by an heir or other person
unduly deprived of participation in the estate. The fact of
extrajudicial settlement or administration shall be
published in a newspaper of general circulation once a week
for three (3) consecutive weeks.
(b) Assuming Rene left only one heir and no debts, as
counsel for Rene’s lone heir, what steps would you
suggest?
A: If Rene left only one heir, then the heir may adjudicate to
himself the entire estate by means of an affidavit of self-
adjudication to be filed also with the Register of Deeds,
together with the other requirements abovementioned.
(c) Assuming that the value of Rene’s estate does not
exceed P10,000.00, what remedy is available to
obtain a speedy settlement of his estate?
A: Since the value of Rene’s estate does not exceed P
10,000.00, the remedy available is to proceed to undertake
a summary settlement of estates of small value by filing a
petition in court and upon hearing, which shall be held not
less than one (1) month nor more than three (3) months
from the date of the last publication of a notice which shall
be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province and
after such other notice to interested persons as the court
may direct. The court may proceed summarily without the
appointment of an executor or administrator, and without
delay, grant, if proper, allowance of the will, if any, to
determine the persons legally entitled to participate in the
estate, and to apportion and divide it among them after
payment of such debts of the estate as the court shall then
find to be due. The order of partition if it involves real estate,
shall be recorded by the proper register's office. (Sec. 2, Rule
74, ROC, as amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
3. ALLOWANCE OR DISALLOWANCE OF WILLS to. If it is contested, at least three witnesses who know the
(RULE 76) handwriting of the testator should explicitly declare that the
(2012, 2010, 2006 BAR) will and the signature are in the handwriting of the testator.
In the absence of any competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Q: What are the jurisdictional facts that must be alleged
in a petition for probate of a will? How do you bring
Q: Czarina died single. She left all her properties by will
before the court these jurisdictional facts? (2012 BAR)
to her friend Duqueza. In the will, Czarina stated that
she did not recognize Marco as an adopted son because
A: The jurisdictional facts in a petition for probate are: (1)
of his disrespectful conduct towards her.
that a person died leaving a will; (2) in case of a resident,
that he resided within the territorial jurisdiction of the
Duqueza soon instituted an action for probate of
court; and (3) in the case of a non- resident, that he left an
Czarina’s will. Marco, on the other hand, instituted
estate within such territorial jurisdiction. The jurisdictional
intestate proceedings. Both actions were consolidated
facts shall be contained in a petition for allowance of will.
before the RTC of Pasig. On motion of Marco, Duqueza’s
(UST FCL Bar Q&A)
petition was ordered dismissed on the ground that the
Q: Pedrillo, a Fil-Am permanent resident of Los Angeles,
will is void for depriving him of his legitime. Argue for
California at the time of his death, bequeathed to
Duqueza. (2010 BAR)
Winston a sum of money to purchase an annuity. Upon
Pedrillo’s demise, his will was duly probated in Los
A: I would argue that the will is not void for there was no
Angeles and the specified sum in the will was in fact
preterition. Preterition applies only to inadvertent
used to purchase an annuity with XYZ of Hong Kong so
omission in the will. Here there was no inadvertent
that Winston would receive the equivalent of US$1,000
omission because Czarina mentioned Marco in the will and
per month for the next 15 years. Wanting to receive the
made an ineffective disinheritance. Hence the will was valid
principal amount of the annuity, Winston files for the
and should be given effect to the extent that it does not
probate of Pedrillo’s will in the Makati RTC. As prayed
impair Marco’s legitime.
for, the court names Winston as administrator of the
estate. Winston now files in the Makati RTC a motion to
I would also argue that during the probate proper stage, the
compel XYZ to account for all sums in its possession
probate court can pass only upon the extrinsic, not the
forming part of Pedrillo’s estate. Rule on the motion.
intrinsic, validity of the will. When the court declared the
(2010 BAR)
will void for depriving Marco of his legitime, it was passing
upon the intrinsic validity of the will. (Riguera, 2022)
A: The motion should be denied. The Supreme Court has
held that the writs and processes of a probate court cannot
Q: Sergio Punzalan, Filipino, 50 years old, married, and
extend outside the Philippines. Here XYZ was in Hong Kong
residing at Ayala Alabang Village, Muntinlupa City, of
and thus beyond the jurisdiction of the Philippine probate
sound and disposing mind, executed a last will and
court. Moreover the probate court should have dismissed
testament in English, a language spoken and written by
the petition at the onset. In a petition for probate of a will
him proficiently. He disposed of his estate consisting of
where the testator is a non-resident, the petition should
a parcel of land in Makati City and cash deposit at the
allege the jurisdictional fact that the testator left estate
City Bank in the sum of P300 Million. He bequeathed
within the Philippines. (Cuenco v. Court of Appeals, G.R. No.
P50 Million each to his 3 sons and P150 Million to his
L-24742, 26 Oct. 1973; Riguera, 2022)
wife. He devised a piece of land worth P100 Million to
Susan, his favorite daughter-in-law. He named his best
Q: In the Special Proceedings for the settlement of the
friend, Cancio Vidal, as executor of the will without
intestate estate of the deceased Johnny, his widow by
bond. (2006 BAR)
his second marriage, Carmelita, moved for her
appointment as Administratrix of the estate. This was
(a) Is Cancio Vidal, after learning of Sergio's death,
opposed by Manda, the son of Johnny by his first wife,
obliged to file with the proper court a petition for
who moved for his appointment instead. The court
probate of the latter's last will and testament?
appointed Carmelita, the widow, as Administratrix.

A: NO, Cancio Vidal is not obliged to file a petition for

If Johnny left a holographic will, how may it be
probate because under Sec. 3, Rule 75, he is only obliged to
probated? Explain. (1998 BAR)
deliver the will within twenty (20) days after he knows of
the death of the testator.
A: A holographic will may be probated by filing a petition
for the allowance of said will. If it is not contested, at least
(b) Supposing the original copy of the last will and
one competent witness who knows the handwriting and
testament was lost, can Cancio compel Susan to
signature of the testator should explicitly declare that the
produce a copy in her possession to be submitted to
will and the signature are in the handwriting of the testator.
the probate court?
In the absence of any such competent witness, and if the
court deem it necessary, expert testimony may be resorted

UNIVERSITY OF SANTO TOMAS 72

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
A: YES, as a person having custody of the will, Susan has the
duty to deliver the will to the court having jurisdiction or to
the executor named in the will within twenty (20) days
upon learning the death of the testator.
(c) Can the probate court appoint the widow as
executor of the will?
A: YES, the probate court can appoint the widow as an
executor of the will if Cancio Vidal is found to be
incompetent, refuses the trust, or fails to give a bond,
provided that she is competent and willing to serve.
(d) Can the widow and her children initiate a separate
petition for partition of the estate pending the
probate of the last will and testament by the proper
court?
A: NO, the widow and her children cannot file a separate
petition for partition pending the probate of the Will.
Partition is part of the testate estate proceeding.
4. CLAIMS AGAINST THE ESTATE
(RULE 86)
(2016, 2012, 2011, 2009 BAR)
Q: If the debtor dies after entry of judgment, execution
of money judgment may be done by:
A. Presenting the judgment as a claim for payment
against the estate in a special proceeding.
B. Filing a claim for the money judgment with the
special administrator of the estate of the
debtor.
C. Filing a claim for the money judgment with the
debtor's successor in interest.
D. Move for substitution of the heirs of the debtor
and secure a writ of execution (2012 BAR)
A: A. Presenting the judgment as a claim for payment
against the estate in a special proceeding. (UST FCL Bar
Q&A)
Q: The statute of "non-claims" requires that:
A. Claims against the estate be published by the
creditors.
B. Money claims be filed with the clerk of court
within the time prescribed by the rules.
C. Claims of an executor or administrator against
the estate be filed with the special
administrator.
D. Within two (2) years after settlement and
distribution of the estate, an heir unduly
deprived of participation in the estate may
compel the re-settlement of the estate. (2012
BAR)
A: B. Money claims be filed with the clerk of court within the
time prescribed by the rules. (UST FCL Bar Q&A)
73
Q: Which of the following claims survive the death of the
defendant and need not be presented as a claim against
the estate? (2011 BAR)
A. Contingent money claims arising from contract.
B. Unenforced money judgment against the
decedent, with death occurring before levy on
execution of the property.
C. Claims for damages arising from quasi-delict.
D. Claims for funeral expenses.
A: C. Claims for damages arising from quasi-delict. (UST FCL
Bar Q&A)
Q: Chika sued Gringo, a Venezuelan, for a sum of money.
The Metropolitan Trial Court of Manila (MeTC)
rendered a decision ordering Gringo to pay Chika
P50,000.00 plus legal interest. During its pendency of
the appeal before the RTC, Gringo died of acute
‘hemorrhagic pancreatitis. Atty. Perfecto, counsel of
Gringo, filed a manifestation attaching the death
certificate of Gringo and informing the RTC that he
cannot substitute the heirs since Gringo did not disclose
any information on his family. As counsel for Chika,
what remedy can you recommend to your client so the
case can move forward and she can eventually recover
her money? Explain. (2016 BAR)
A: The remedy I can recommend to my client Chika is to file
a petition for settlement of the estate of Gringo and for the
appointment of an administrator. Chika as a creditor is an
interested person who can file the petition for settlement of
Gringo’s estate. Once the administrator is appointed, | will
move that the administrator be substituted as the
defendant. I will also file my claim against Gringo as a
contingent claim in the probate proceedings pursuant to
Rule 86 of the Rules of Court. (Riguera, 2022)
Q: Cresencio sued Dioscoro for collection of a sum of
money. During the trial, but after the presentation of
plaintiff’s evidence, Dioscoro died. Atty. Cruz,
Dioscore’s counsel, then filed a motion to dismiss the
action on the ground of his client’s death. The court
denied the motion to dismiss and, instead, directed
counsel to furnish the court with the names and
addresses of Dioscoro’s heirs and ordered that the
designated administrator of Dioscoro’s estate be
substituted as representative party. After trial, the
court rendered judgment in favor of Cresencio. When
the decision had become final and executory, Cresencio
moved for the issuance of a writ of execution against
Dioscoro’s estate to enforce his judgment claim. The
court issued the writ of execution. Was the court’s
issuance of the writ of execution proper? Explain. (2009
BAR)
A: The court’s issuance of the writ of execution was not
proper. Under the Rules of Civil Procedure, a favorable
judgment in a contractual money claim shall be enforced in
the manner especially provided in the Rules for prosecuting
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
claims against the estate of a deceased person. Under Rule A: A. Provide for the proper care, custody, and education of
86 of the Rules of Court, a judgment for money should be the ward.
filed as a money claim with the probate court. The Supreme
Court has held that a money claim cannot be enforced by a 4. TERMINATION OF GUARDIANSHIP
writ of execution but should instead.be filed as a money (RULE 97)
claim. (Riguera, 2022)

5. PAYMENT OF THE DEBTS OF THE ESTATE

(RULE 88)
C. WRIT OF HABEAS CORPUS
(RULE 102)
6. SALES, MORTGAGES, AND OTHER ENCUMBRANCES (2020-21, 2015, 2005, 2003, 1998, 1993 BAR)
OF PROPERTY OF DECEDENT
(RULE 89)
Q: Roxanne, a widow, filed a petition for habeas corpus
7. DISTRIBUTION AND PARTITION
with the Court of Appeals against Major Amor who is
(RULE 90)
allegedly detaining her 18-year-old son Bong without
authority of law. After Amor had filed a return alleging
the cause of detention of Bong, the Court of Appeals
B. GUARDIANSHIP promulgated a resolution remanding the case to the
(2011 BAR) RTC for a full-blown trial due to the conflicting facts
presented by the parties in their pleadings. In directing
the remand, the Court of Appeals relied on Sec. 9(1) in
relation to Sec. 21 of BP 129 conferring upon said Court
1. VENUE
the authority to try and decide habeas corpus cases
(RULE 92)
concurrently with the RTCs. Did the Court of Appeals act
correctly in remanding the petition to the RTC? Why?
2. APPOINTMENT OF GUARDIANS (1993 BAR)
(RULE 93)
(2012 BAR) A: NO, because while the CA has original jurisdiction over
habeas corpus concurrent with the RTCs, it has no authority
Q: In default of parents, the court may appoint a for remanding to the latter original actions filed with the
guardian for a minor giving first preference to: (2012 former. On the contrary, the CA is specifically given the
BAR) power to receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling
A. An older brother or sister who is over 18 years within its original jurisdiction.
old.
B. The actual custodian over 21 years old. Q: A was arrested on the strength of a warrant of arrest
C. A paternal grandparent. issued by the RTC in connection with an Information for
D. An uncle or aunt over 21 years old. Homicide. W, the live-in partner of A filed a petition for
habeas corpus against A’s jailer and police investigators
A: C. A paternal grandparent. with the Court of Appeals. (1998 BAR)

(a) Does W have the personality to file the petition for

3. GENERAL POWERS AND DUTIES OF GUARDIANS
habeas corpus?
(RULE 96)
(2011 BAR)
A: YES. W, the live in partner of A, has the personality to file
the petition for habeas corpus because it may be filed by
Q: Which of the following is a duty enjoined on the
“some person in his behalf.” (Sec 3, Rule 102, ROC, as
guardian and covered by his bond? (2011 BAR)
amended)

A. Provide for the proper care, custody, and

(b) Is the petition tenable?
education of the ward.
B. Ensure the wise and profitable investment of
A: NO, the petition is not tenable because the warrant of
the ward’s financial resources.
arrest was issued by a court which had jurisdiction to issue
C. Collect compensation for his services to the
it. (Sec. 4 Rule 102, ROC, as amended)
ward.
D. Raise the ward to become a responsible
Q: Inspired by the movie On the Job, the Superintendent
member of society.
of the New Bilibid Prison, without any court order,
transferred 10 persons deprived of liberty to an

UNIVERSITY OF SANTO TOMAS 74

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
agricultural farm in Davao del Norte to plant camote.
The owner of the agricultural farm promised to ensure
that the persons deprived of liberty would not escape
and would always wear the proper uniforms.
Two of these 10 persons deprived of liberty found a way
to approach you and suggested that you file a petition
for the writ of habeas corpus on their behalf. The
persons deprived of liberty added that they had no
family in Davao and that their families had no means to
visit them there. Is a petition for the writ of habeas
corpus the proper remedy for their case? Explain
briefly. (2020-21 BAR)
A: YES, a petition for the writ of habeas corpus is the proper
remedy against the transfer of the prisoners to an
agricultural farm in Davao del Norte. Under the Rules on
Special Proceedings, a petition for writ of habeas corpus is
available in case of illegal deprivation of liberty. The
Supreme Court has stated that pursuant to law, a prisoner
may not be transferred to a facility not within the control
and supervision of the Bureau of Corrections unless there is
a court order to that effect.
Here, the agricultural farm is a facility not within the control
and supervision of the Bureau of Corrections since it would
be the farm owner who would be keeping watch over the
prisoners. Thus, the prisoners’ deprivation of liberty
therein would be illegal. Hence, a petition for the writ of
habeas corpus is the proper remedy. (Riguera, 2022)
Q: Hercules was walking near a police station when a
police officer signalled for him to approach. As soon as
Hercules came near, the police officer frisked him but
the latter found no contraband. The police officer told
Hercules to get inside the police station. Inside the
police station, Hercules asked the police officer, "Sir,
may problema po ba?" Instead of replying, the police
officer locked up Hercules inside the police station jail.
What is the remedy available to Hercules to secure his
immediate release from detention? (2015 BAR)
restrained on a charge of having committed an offense
not punishable by death, he may be admitted to bail in
the discretion of the court. Accordingly, the trial court
allowed Alma to post bail and then ordered her release.
In your opinion, is the order of the trial court correct?
(2008 BAR)
Under Rule 102?
A: NO. Section 4, Rule 102 of the Rules of Court (Habeas
Corpus) does not authorize a court to discharge by writ of
habeas corpus a person charged with or convicted of an
offense in the Philippines, or of a person suffering
imprisonment under lawful judgment.
1. WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
(A.M. No. 03-04-04-SC)
(2005, 2003 BAR)
Q: While Marietta was in her place of work in Makati
City, her estranged husband Carlo barged into her
house in Paranaque City, abducted their six-year-old
son, Percival, and brought the child to his hometown in
Baguio City. Despite Marietta’s pleas, Carlo refused to
return their child. Marietta, through counsel, filed a
petition for habeas corpus against Carlo in the Court of
Appeals in Manila to compel him to produce their son,
before the court and for her to regain custody. She
alleged in the petition that despite her efforts, she could
no longer locate her son. In his comment, Carlo alleged
that the petition was erroneously filed in the Court of
Appeals as the same should have been filed in the
Family Court of Baguio City which, under Republic Act
No. 8369, has exclusive jurisdiction, over the petition.
Marietta replied that under Rule 102 of the Rules of
Court, as amended, the petition may be filed in the
Court of Appeals and if granted, the writ of habeas
corpus shall be enforceable anywhere in the
Philippines. Whose contention is correct? Explain.
(2005 BAR)

A: The remedy available to Hercules is to file a petition for

A: Marietta's contention is correct. The Court of Appeals has
habeas corpus questioning the illegality of his warrantless
concurrent jurisdiction with the family courts and the
arrest. The writ of habeas corpus shall extend to all cases of
Supreme Court in petitions for habeas corpus where the
illegal confinement or detention by which any person is
custody of minors is at issue, notwithstanding the provision
deprived of liberty. (Sec. 1, Rule 102, ROC, as amended)
in the Family Courts Act (R.A. No. 8369) that family courts
have exclusive jurisdiction in such cases. (Thornton v.
Q: After Alma had started serving her sentence for
Thornton, G.R. No. 154598, 16 Aug. 2004)
violation of Batas Pambansa Blg. 22 (BP 22), she filed a
petition for writ of habeas corpus, citing Vaca v. CA
Sec. 20, par. 6 of SC AM No. 03-04-04 provides that the
where the sentence of imprisonment of a party found
petition may likewise be filed with the Supreme Court,
guilty of violation of BP 22 was reduced to a fine equal
Court of Appeals, or with any of its members and, if so
to double the amount of the check involved. She prayed
granted; the writ shall be enforceable anywhere in the
that her sentence be similarly modified and that she be
Philippines. The writ may be made returnable to a Family
immediately released from detention. In the
Court or to any regular court within the region where the
alternative, she prayed that pending determination on
petitioner resides or where the minor may be found for
whether the Vaca ruling applies to her, she be allowed
hearing and decision on the merits.
to post bail pursuant to Rule 102, Sec. 14, which
provides that if a person is lawfully imprisoned or

75 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Widow A and her two children, both girls, aged 8 and
12 years old, reside in Angeles City, Pampanga. A leaves
her two daughters in their house at night because she
works in a brothel as a prostitute. Realizing the danger
to the morals of these two girls, B the father of the
deceased husband of A, files a petition for habeas
corpus against A for the custody of the girls in the
Family Court in Angeles City. In said petition, B alleges
that he is entitled to the custody of the two girls because
their mother is living a disgraceful life. The court issues
the writ of habeas corpus. When A learns of the petition
and the writ, she brings her two children to Cebu City.
At the expense of B the sheriff of the said Family Court
goes to Cebu City and serves the writ on A. A files her
comment on the petition raising the following defenses:
(2003 BAR)
(a) The enforcement of the writ of habeas corpus in
Cebu City is illegal; and
A: The writ of habeas corpus issued by the Family Court in
Angeles City may not be legally enforced in Cebu City,
because the writ is enforceable only within the judicial
region to which the Family Court belongs, unlike the writ
granted by the Supreme Court or Court of Appeals which is
enforceable anywhere in the Philippines. (Sec. 20, A.M. No.
03-04-04-SC)
(b) B has no personality to institute the petition.
Resolve the petition in the light of the above
defenses of A.
A: B, the father of the deceased husband of A, has the
personality to institute the petition for habeas corpus of the
two minor girls, because the grandparent has the right of
custody as against the mother A, who is a prostitute. (Secs.
2 and 13, A.M. No. 03-04-04-SC)
D. CHANGE OF NAME
(RULE 103)
E. CANCELLATION OF CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
(RULE 108)
(2022, 2019, 2018 BAR)
Q: Ms. N initiated a special proceeding for the correction
of entries in the civil registry under Rule 108 of the
Rules of Court before the Regional Trial Court (RTC),
impleading only the Local Civil Registrar therein. In her
petition, Ms. N sought to change the entry in her birth
certificate with respect to the date of her parents'
marriage from “May 22, 1992” to “not married.” The
Office of the Solicitor General opposed the petition,
arguing that Ms. N's parents should have been
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
impleaded in the proceeding. In response, Ms. N argued
that this was not necessary since it was an entry in her
own birth certificate which she intended to change.
Hence, it was a matter personal to her, and as such, the
participation of her parents in the case could be
dispensed with.
Is Ms. N’s position correct? Explain. (2019 BAR)
A: NO. Ms. N’s parents should be impleaded. The Civil
Registrar, as well as all other persons who have or claim to
have any interest that would be affected thereby, shall be
made respondents for the reason that they are
indispensable parties.
In Republic v. Uy (G.R. No. 198010, 10 Aug. 2010), the
Supreme Court nullified the trial court’s order to correct
respondent’s entry for the latter’s failure to implead and
notify not only the Local Civil Registrar, but also her parents
and siblings as the persons who have interest and are
affected by the changes or corrections sought.
Q: Drylvik, a German national, married Dara, a Filipina,
in Dusseldorf, Germany. When the marriage collapsed,
Dara filed a petition for declaration of nullity of
marriage before the RTC of Manila. Drylvik, on the
other hand, was able to obtain a divorce decree from
the German Family Court. The decree, in essence,
states:
The marriage of the Parties contracted on xxx before
the Civil Registrar of Dusseldorf is hereby dissolved.
The parental custody of the children Diktor and Daus is
granted to the father.
Drylvik filed a motion to dismiss in the RTC of Manila on
the ground that the court no longer had jurisdiction
over the matter as a decree of divorce had already been
promulgated dissolving his marriage to Dara. Dara
objected, saying that while she was not challenging the
divorce decree, the case in the RTC still had to proceed
for the purpose of determining the issue of the
children’s custody. Drylvik counters that the issue had
been disposed of in the divorce decree, thus
constituting res judicata.
Is a foreign divorce decree between a foreign spouse
and a Filipino spouse, uncontested by both parties,
sufficient by itself to cancel the entry in the civil registry
pertaining to the spouses’ marriage? (2018 BAR)
A: NO. A foreign divorce decree between a foreign spouse
and a Filipino spouse, uncontested by both parties is
insufficient by itself to cancel the entry in the civil registry.
Before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing
it. (Republic v. Manalo, G.R. No. 221029, 24 Apr. 2018)
76
 QuAMTO (1987-2022)
Q: Namjoon, a Korean national, and Regine, a Filipina,
were married in Makati City on February 14, 2012.
Unfortunately, their relationship shortly turned sour
and ended with a divorce by mutual agreement in South
Korea. The local court in Korea granted the divorce.
Wanting to marry her new boyfriend Taehyung, Regine
filed a petition for recognition of the foreign decree of
divorce in the Regional Trial Court (RTC) of Cebu where
she resides.
The Office of the Solicitor General (OSG) opposed the
petition contending that the proper remedy is a special
proceeding for cancellation or correction of entries in
the civil registry under Rule 108 of the Rules of Court,
which can only be filed in the RTC of Makati where the
marriage was celebrated and recorded in the Civil
Registry of Makati.
Is the OSG’s contention tenable? Explain briefly. (2022
BAR)
A: NO, the OSG’s opposition to the petition for recognition
of the foreign divorce decree on its contention that the
proper remedy is a special proceeding for cancellation or
correction of entries in the civil registry under Rule 108 of
the Rules of Court is not tenable.
The Supreme Court has held that a petition for recognition
is a proper remedy to give effect to a foreign divorce decree;
while the court said the recognition of the foreign divorce
decree may be made in a Rule 108 proceeding, it did not
prohibit the filing of a petition for recognition of the foreign
divorce decree independently of a petition for cancellation
of entry of marriage under Rule 108. (Corpuz v. Sto. Tomas,
628 SCRA 266 (2010); Riguera, 2023)
F. CLERICAL ERROR LAW
R.A. No. 9048, as amended by R.A. No. 10172
G. WRIT OF AMPARO
(A.M. No. 07-9-12-SC)
(2020-21, 2015, 2010, 2009 BAR)
Q: What is the writ of amparo? How is it distinguished
from the writ of habeas corpus? (2009 BAR)
A: The petition for a writ of amparo is a remedy available to
any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private
individual or entity. The writ shall cover extra-legal killings
and enforced disappearances or threats thereof.
The writ of amparo differs from a writ of habeas corpus in
that the latter writ is availed of as a remedy against cases of
77
unlawful confinement or detention by which any person is
deprived of his liberty, or cases by which rightful custody of
any person is withheld from another who is lawfully
entitled thereto. (Sec 1, Rule 102, ROC, as amended)
Q: Upon learning of her husband's death, the wife and
their daughter went to a funeral parlor where the
husband's remains lay. The husband had been killed in
a military encounter in the hinterlands. He had been
suspected as one of the members of an insurgent group,
which had been yearning for the violent overthrow of
the status quo for more than 50 years.
Upon arriving at the funeral parlor, the wife and the
daughter found that the premises were guarded by
heavily armed individuals clad in military uniform.
These individuals accosted the wife and the daughter
when they attempted to approach the husband's casket.
The two were then interrogated for almost an hour.
Fearing for their lives, the wife and the daughter
hurriedly left after the interrogation. On their way
home, they noticed a red car following them. The same
car, which carried individuals sporting crew cuts,
parked in front of their home for several days. The
daughter noted the car's license plate and called the
local police for assistance. The local police simply
laughed at her, saying that they should just cooperate
with the military and reveal all that they knew or they
would also suffer the same fate as her father.
Will a petition for the writ of amparo prosper for the
wife and the daughter? Explain briefly. (2020-21 BAR)
A: YES, a petition for the writ of amparo will prosper for the
wife and the daughter.
In a case involving similar facts, the Supreme Court held that
the placing under surveillance by the police of a widow of a
suspected NPA member, as well as of her daughters, entitled
them to avail of the remedy of a petition for writ of amparo
since such surveillance created a real threat to their life,
liberty, or security. (Sanchez v. Darroca, 15 Oct. 2019;
Sanchez v. Darroca (res.), 15 June 2021) More so here where
the police told the daughter that she and her mother should
just cooperate with the military; otherwise, they would
suffer the same fate as her father. (Riguera, 2022)
Q: The residents of Mt. Ahohoy, headed by Masigasig,
formed a nongovernmental organization - Alyansa
Laban sa Minahan sa Ahohoy (ALMA) to protest the
mining operations of Oro Negro Mining in the
mountain. ALMA members picketed daily at the
entrance of the mining site blocking the ingress and
egress of trucks and equipment of Oro Negro,
hampering its operations. Masigasig had an altercation
with Mapusok arising from the complaint of the mining
engineer of Oro Negro that one of their trucks was
destroyed by ALMA members. Mapusok is the leader of
the Association of Peace Keepers of Ahohoy (APKA), a
civilian volunteer organization serving as auxiliary
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
force of the local police to maintain peace and order in
the area. Subsequently, Masigasig disappeared.
Mayumi, the wife of Masigasig, and the members of
ALMA searched for Masigasig, but all their efforts
proved futile. Mapagmatyag, a member of ALMA,
learned from Maingay, a member of APKA, during their
binge drinking that Masigasig was abducted by other
members of APKA, on order of Mapusok. Mayumi and
ALMA sought the assistance of the local police to search
for Masigasig, but they refused to extend their
cooperation. Immediately, Mayumi filed with the RTC, a
petition for the issuance of the writ of amparo against
Mapusok and APKA. ALMA also filed a petition for the
issuance of the writ of amparo with the Court of Appeals
against Mapusok and APKA. Respondents Mapusok and
APKA, in their Return filed with the RTC, raised among
their defenses that they are not agents of the State;
hence, cannot be impleaded as respondents in an
amparo petition. (2015 BAR)
(a) Is their defense tenable?
A: NO. The defense is not tenable. The writ of amparo is a
remedy available to any person whose right to life, liberty
and security has been violated or is threatened with
violation by an unlawful act or omission of a public officer
or employee or of a private individual or entity. The writ
covers extra- legal killings, enforced disappearances or
threats thereof. (Sec. 1, A.M. No. 07-9-12-SC)
Moreover, the rules do not require that the respondents
should be agents of the State in order to be impleaded as
respondents in an amparo petition. (Secretary of National
Defense v. Manalo, G.R. No. 180906, 7 Oct. 2008)
(b) Respondents Mapusok and APKA, in their Return
filed with the Court of Appeals, raised as their
defense that the petition should be dismissed on
the ground that ALMA cannot file the petition
because of the earlier petition filed by Mayumi with
the RTC. Are respondents correct in raising their
defense?
A: YES. The respondents are correct in raising the defense.
Under Section 2(c) of the Rules on the Writ of Amparo, the
filing of a petition by Mayumi who is an immediate member
of the family of the aggrieved party already suspends the
right of all other authorized parties to file similar petitions.
Hence, ALMA cannot file the petition because of earlier
petition by Mayumi with the RTC.
(c) Mayumi later filed separate criminal and civil
actions against Mapusok. How will the cases affect
the amparo petition she earlier filed?
A: When a criminal action and separate civil action are filed
subsequent to a petition for a writ of amparo, the latter shall
be consolidated with the criminal action. After
consolidation, the procedure under Rules shall continue to
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2022 GOLDEN NOTES
apply to the disposition of the reliefs in the petition (Sec. 1,
A.M. No. 07-9-12-SC)
Q: Marinella is a junior officer of the Armed Forces of
the Philippines who claims to have personally
witnessed the malversation of funds given by US
authorities in connection with the Balikatan exercises.
Marinella alleges that as a result of her exposé, there are
operatives within the military who are out to kill her.
She files a petition for the issuance of a writ of amparo
against, among others, the Chief of Staff but without
alleging that the latter ordered that she be killed. Atty.
Daro, counsel for the Chief of Staff, moves for the
dismissal of the Petition for failure to allege that his
client issued any order to kill or harm Marinella. Rule
on Atty. Daro’s motion. Explain. (2010 BAR)
A: The motion to dismiss must be denied on the ground that
it is a prohibited pleading under Section 11(a) of the Rule
on the Writ of Amparo. Moreover, said Rule does not require
the petition therefor to allege a complete detail of the actual
or threatened violation of the victim’s rights. It is sufficient
that there be an allegation of real threat against petitioner’s
life, liberty and/or security. (Razon v. Tagitis, G.R. No.
182498, 03 Dec. 2009)
H. WRIT OF HABEAS DATA
(A.M. No. 08-1-16-SC)
(2020-21, 2010, 2009 BAR)
Q: What is the writ of habeas data? (2009 BAR)
A: The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data
or information regarding the person, family, home and
correspondence of the aggrieved party.
Q: The spokesperson of a special unit of Armed Forces
of the Philippines announced in a television interview
that the Armed Forces was putting all progressive and
left-leaning party-list representatives under
surveillance for alleged links to the ongoing insurgency.
An outspoken and progressive party-list representative
approaches you for advice on how to discover the
information that the Armed Forces may have collated
through the surveillance operations.
Will a petition for the writ of habeas data be the proper
remedy? Explain briefly. (2020-21 BAR)
A: YES. A petition for the writ of habeas data will be the
proper remedy. Under the Rule on the Writ of Habeas Data,
the writ is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened
78
 QuAMTO (1987-2022)
by an unlawful act of a public or private individual or entity
engaged in the gathering, collecting. or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party. One of the reliefs
available to the petitioner is the disclosure of the data or
information gathered.
Here, putting all progressive and left-leaning party-list
representatives under surveillance for mere alleged links to
the ongoing insurgency is an unlawful act of “red-tagging”
which would violate their right to privacy in life, liberty, or
security. The AFP here is engaged in the gathering or storing
of data or information regarding the party-list
representatives’ persons and this would violate their right
to privacy in life, liberty, or security, since connecting them
to the insurgency would place them at risk of detention or,
worse, extrajudicial killing. Hence, a petition for the writ of
habeas data will be the proper remedy. (Riguera, 2022)
Q: Azenith, the cashier of Temptation Investments, Inc.
(Temptation, Inc.) with principal offices in Cebu City, is
equally hated and loved by her co-employees because
she extends cash advances or "sales" to her colleagues
whom she likes. One morning, Azenith discovers an
anonymous letter inserted under the door of her office
threatening to kill her. Azenith promptly reports the
matter to her superior Joshua, who thereupon conducts
an internal investigation to verify the said threat.
Claiming that the threat is real, Temptation, Inc. opts to
transfer Azenith to its Palawan Office, a move she
resists in view of the company’s refusal to disclose the
results of its investigation. Decrying the move as a
virtual deprivation of her employment, Azenith files a
petition for the issuance of a writ of habeas data before
the Regional Trial Court (RTC) to enjoin Temptation,
Inc. from transferring her on the ground that the
company’s refusal to provide her with a copy of the
investigation results compromises her right to life,
liberty and privacy. Resolve the petition. Explain. (2010
BAR)
A: Azenith’s petition for the issuance of a writ of habeas data
must be dismissed. Under the facts, there is no showing that
her right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission. Neither was the
company shown to be engaged in the gathering, collecting
nor, storing of data or information regarding the person,
family, home and correspondence of the aggrieved party.
(Sec. 1, A.M. 01-08-16-SC)
I. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
(A.M. No. 09-6-8-SC)
(2019, 2018, 2016, 2012 BAR)
Q: What do you understand about the “precautionary
principle” under the Rules of Procedure for
Environmental Cases? (2018, 2012 BAR)
79
A: Precautionary principle states that when human
activities may lead to threats of serious and irreversible
damage to the environment that is scientifically plausible
but uncertain, actions shall be taken to avoid or diminish
that threat. In its essence, the precautionary principle calls
for the exercise of caution in the face of risk and uncertainty
(Sec. 4[f], Rule 1, Part 1, and Rule 20, A.M. NO. 09-6-8-SC,).
1. TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO)
2. WRIT OF CONTINUING MANDAMUS
(2016 BAR)
Q: Hannibal, Donna, Florence and Joel, concerned
residents of Laguna de Bay, filed a complaint of
mandamus against the Laguna Lake Development
Authority, the Department of Environment and Natural
Resources, the Department of Public Works and
Highways, Department of Interior and Local
Government, Department of Agriculture, Department
of Budget and Philippine National Police before the RTC
of Laguna alleging that the continued neglect of
defendants in performing their duties has resulted in
serious deterioration of the water quality of the lake
and the degradation of the marine life in the lake. The
plaintiffs prayed that said government agencies be
ordered to clean up Laguna de Bay and restore its water
quality to Class C waters as prescribed by Presidential
Decree 1151, otherwise known as the Philippine
Environment Code. Defendants raise the defense that
the clean up of the lake is not a ministerial function and
they cannot be compelled by mandamus to perform the
same. The RTC of Laguna rendered a decision declaring
that it is the duty of the agency to clean up Laguna de
Bay and issued a permanent writ of mandamus
ordering said agencies to perform their duties
prescribed by law relating to the cleanup of Laguna de
Bay. (2016 BAR)
(a) Is the RTC correct in issuing the writ of
mandamus? Explain.
A: YES, the RTC is correct in issuing the writ of mandamus.
Generally, the writ of mandamus lies to require the
execution of a ministerial duty. While the implementation of
the government agencies mandated tasks may entail a
decision-making process, the enforcement of the law or the
very act of doing what the law exacts to be done is
ministerial in nature and may be compelled by mandamus.
Here, the duty to clean up Laguna Lake and restore its water
quality to Class C is required not only by Presidential Decree
No. 1152, otherwise known as the Philippine Environment
Code, but also in its charter. It is, thus, ministerial in nature
and can be compelled by mandamus.
Accordingly, the RTC may issue a writ of continuing
mandamus directing any agency or instrumentality of the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
government or officer thereof to perform an act or series of
acts decreed by final judgment which shall remain effective
until the judgement is fully satisfied. (Metropolitan Manila
Development Authority v. Concerned Residents of Manila Bay,
G.R. Nos. 171947-48, 18 Dec. 2008)
(b) What is the writ of continuing mandamus?
A: A writ of continuing mandamus is a writ issued when any
agency or instrumentality of the government or officer
thereof unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an
office, trust or station in connection with the enforcement
or violation of an environmental law, rule or regulation or a
right therein, or unlawfully excludes another from the use
or enjoyment of such right and there is no other plain,
speedy and adequate remedy in the ordinary course of law,
the person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty, attaching
thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation and
praying that judgment be rendered commanding the
respondent to do an act or series of acts until the judgment
is fully satisfied, and to pay damages sustained by the
petitioner by reason of malicious neglect to perform the
duties of the respondent, under the law, rules or
regulations. The petition shall also contain a sworn
certification of non-forum shopping. (Sec. 1, Part III, Rule 8,
A.M. No. 09-6-8-SC)
3. WRIT OF KALIKASAN
(2019, 2018, 2016 BAR)
Q: Distinguish the following:
Writ of kalikasan and writ of continuing mandamus
(2019 BAR)
A: A Writ of Kalikasan is a remedy available to a natural or
juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public
interest group accredited by or registered with any
government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is
violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private
individual or entity, involving environmental damage of
such magnitude as to prejudice the life, health or property
of inhabitants in two or more cities or provinces.
Whereas, in Continuing Mandamus, when any agency or
instrumentality of the government or officer unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust,
station in connection with the enforcement or violation of
an environmental law, rule or regulation or a right therein,
or unlawfully excludes another from the use or enjoyment
of such right and there Is no other plain, speedy, and
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
court, alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition concerns
an environmental law, rile or regulation, and praying that
judgment be rendered commanding the respondent to do
an act or series of acts until the judgment is fully satisfied,
and to pay damages sustained by the petitioner by reason of
the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The
petition shall also contain a sworn a certification of non-
forum shopping. (Sec. 1, Part III, Rule 8, A.M. No. 09-6-8-SC)
Q: The officers of “Ang Kapaligiran ay Alagaan, Inc.”
engaged your services to file an action against ABC
Mining Corporation which is engaged in mining
operations in Sta. Cruz, Marinduque. ABC used highly
toxic chemicals in extracting gold. ABC’s toxic mine
tailings were accidentellay released from its storage
dams and were discharged into the rivers of said town.
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. (2018, 2016
BAR)
A: As a lawyer for the organization, I would recommend the
filing of a petition for issuance of a Writ of Kalikasan.
The Writ of Kalikasan is a remedy available to a natural or
juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public
interest group accredited by or registered with any
government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is
violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private
individual or entity, involving environmental damage of
such magnitude as to prejudice the life, health or property
of inhabitants in two or more cities or provinces (Sec. 1, Rule
7, A.M. No. 09-6-8-SC).
Further, the petition for Writ of Kalikasan is more
advantageous compared to a complaint for damages before
the RTC because it may be filed directly with the Supreme
Court or with any of the stations of the Court of Appeals.
Unlike a complaint for damages before the RTC which only
be filed by a real party-in-interest as defined in Rule 3(2) of
the Ruels of Court, the rule on locus standi is relaxed in
peitions for Writ of Kalikasan which allows the petition to
be filed by parties as citizen suit. Besides, the petition for
Writ of Kalikasan is exempted from the payment of docket
fees.
From the foregoing, it is clear that filing a petition for Writ
of Kalikasan would be the best remedy to address all the
environmental problems caused by the release of the toxic
80
 QuAMTO (1987-2022)
waste to the waters of Romblon and Quezon without the
burden of paying docket fees. After all, the filing of a petition VII. CRIMINAL PROCEDURE
for the issuance of Writ of Kalikasan shall not preclude the
filing of separate civil, criminal, or administrative actions;
thus, the organization can later file a complaint for damages
with the Regional Trial Court, should they desire to do so.
A. GENERAL CONCEPTS
(2017, 2008, 2005, 2003, 2001, 1999 BAR)

1. CRIMINAL JURISDICTION;
CONCEPT AND REQUISITES FOR EXERCISE
(2017, 2008, 2005, 2003, 2001 BAR)

Q: In complex crimes, how is the jurisdiction of a court

determined? (2003 BAR)

A: In a complex crime, jurisdiction over the whole complex

crime must be lodged with the trial court having jurisdiction
to impose the maximum and most serious penalty
imposable on an offense forming part of the complex crime.
(Cuyos v. Garcia, G.R. No. L-46934, 15 Apr. 1988)

Q: Engr. Magna Nakaw, the District Engineer of the

DPWH in the Province of Walang Progreso, and Mr.
Pork Chop, a private contractor, were both charged in
the Office of the Ombudsman for violation of the Anti-
Graft and Corrupt Practices Act (R.A. No. 3019) under a
conspiracy theory. While the charges were undergoing
investigation in the Office of the Ombudsman, Engr.
Magna Nakaw passed away. Mr. Pork Chop immediately
filed a motion to terminate the investigation and to
dismiss the charges against him, arguing that because
he was charged in conspiracy with the deceased, there
was no longer a conspiracy to speak of and,
consequently, any legal ground to hold him for trial had
been extinguished. Rule on the motion to terminate
filed by Mr. Pork Chop, with brief reasons. (2017 BAR)

A: The motion to terminate should be denied. In People v.

Go (G.R. No. 168539, 24 Mar. 2014), the Supreme Court ruled
that the avowed policy of the State and the legislative intent
to repress acts of public officers and private persons alike,
which constitute graft or corrupt practices, would be
frustrated if the death of a public officer would bar the
prosecution of a private person who conspired with such
public officer in violating R.A. No. 3019. Since the absence
or presence of conspiracy is factual in nature and involves
evidentiary matters, the allegation of conspiracy against Mr.
Pork Chop is better ventilated before the trial court during
the trial, where he can adduce evidence to prove or disprove
its presence.

Q: Jose, Alberto and Romeo were charged with murder.

Upon filing of the information, the RTC judge issued the
warrants for their arrest. Learning of the issuance of
the warrants, the three accused jointly filed a motion
for reinvestigation and for the recall of the warrants of
arrest. On the date set for hearing of their motion, none
of the accused showed up in court for fear of being

81 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
arrested. The RTC judge denied their motion because
the RTC did not acquire jurisdiction over the persons of
the movants. Did the RTC rule correctly? (2008 BAR)
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 case, without raising the issue
of jurisdiction over their person. Their filing the motion is
tantamount to voluntary submission to the court’s
jurisdiction and contributes voluntary appearance
(Miranda v. Tuliao, G.R. No. 158763, 31 Mar. 2006)
Q: Mariano was convicted by the RTC for raping Victoria
and meted the penalty of reclusion perpetua. While
serving sentence at the National Penitentiary, Mariano
and Victoria were married. Mariano filed a motion in
said court for his release from the penitentiary on his
claim that under Republic Act No. 8353, his marriage to
Victoria extinguished the criminal action against him
for rape, as well as the penalty imposed on him.
However, the court denied the motion on the ground
that it had lost jurisdiction over the case after its
decision had become final and executory. (2005 BAR)
(a) Is the filing of the court correct? Explain.
A: NO. The court can never lose jurisdiction so long as its
decision has not yet been fully implemented and satisfied.
Finality of a judgment cannot operate to divest a court of its
jurisdiction. The court retains an interest in seeing the
proper execution and implementation of its judgments, and
to that extent, may issue such orders necessary and
appropriate for these purposes. (Echegaray v. Secretary of
Justice, G.R. No. 13205, 19 Jan. 1999)
(b) What remedy/remedies should the counsel of
Mariano take to secure his proper and most
expeditious release from the National
Penitentiary? Explain.
A: To secure the proper and most expeditious release of
Mariano from the National Penitentiary, his counsel should
file: (a) a petition for habeas corpus for the illegal
confinement of Mariano (Rule 102), or (b) a motion in court
which convicted him, to nullify the execution of his sentence
or the order of his commitment on the ground that a
supervening development had occurred (Melo v. People, G.R.
No. L-3580, 22 Mar. 1950) despite the finality of the
judgment.
Q: Governor Pedro Mario of Tarlac was charged with
indirect bribery before the Sandiganbayan for
accepting a car in exchange of the award of a series of
contracts for medical supplies. The Sandiganbayan,
after going over the information, found the same to be
valid and ordered the suspension of Mario. The latter
contested the suspension claiming that under the law
(Sec. 13 of RA 3019) his suspension is not automatic
upon filing the information and his suspension under
Sec. 13 of RA 3019 is in conflict with Sec. 5 of the
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
Decentralization Act of 1967 (RA 5185). The
Sandiganbayan overruled Mario’s contention stating
that Mario’s suspension under the circumstances is
mandatory. Is the court’s ruling correct? Why? (2001
BAR)
A: YES. Mario’s suspension is mandatory although not
automatic (Sec. 13 of R.A. No. 3019 in relation to Sec. 5 of or
R.A. No. 5185) It is mandatory after the determination of the
validity of the information in a pre-suspension hearing
(Segovia v. Sandiganbayan, G.R. No. 124067, 27 Mar. 1998)
The purpose of suspension is to prevent the accused public
officer from frustrating or hampering his prosecution by
intimidating or influencing witnesses or tampering with
evidence or from committing further acts if malfeasance
while in office.
2. WHEN INJUNCTION MAY BE FILED
(1999 BAR)
Q: Will injunction lie to restrain the commencement of
a criminal action? Explain. (1999 BAR)
A: As a general rule, injunction will not lie to restrain a
criminal prosecution except:
1. To afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions;
3. When double jeopardy is clearly apparent;
4. Where the charges are manifestly false and
motivated by the lust for vengeance; and
5. Where there is clearly no prima facie case against
the accused and a motion to quash on that ground
has been denied. (Roberts v. Court of Appeals, G.R.
No. 113930, 5 Mar. 1996; Brocka v. Ponce Enrile,
G.R. No. 69863-65, 10 Dec. 1990)
B. PROSECUTION OF OFFENSES
(RULE 110)
(2013, 2012, 2002, 2001, 2000, 1999 BAR)
Q: Distinguish a Complaint from Information. (1999
BAR)
A: In criminal procedure, a complaint is a sworn written
statement charging a person with an offense, subscribed by
the offended party, any peace officer or other peace officer
charged with the enforcement of the law violated (Sec. 3,
Rule 110, ROC, as amended); while an information is an
accusation in writing charging a person with an offense
subscribed by the prosecutor and filed with the court. (Sec.
4, Rule 110, ROC, as amended)
82
 QuAMTO (1987-2022)
Q: While in his Nissan Patrol and hurrying home to
Quezon City from his work in Makati, Gary figured in a
vehicular mishap along that portion of EDSA within the
City of Mandaluyong. He was bumped from behind by a
Ford Expedition SUV driven by Horace who was
observed using his cellular phone at the time of the
collision. Both vehicles - more than 5 years old – no
longer carried insurance other than the compulsory
third-party liability insurance. Gary suffered physical
injuries while his Nissan Patrol sustained damage in
excess of Php500, 000. (2013 BAR)
(a) As counsel for Gary, describe the process you need
to undertake starting from the point of the incident
if Gary would proceed criminally against Horace,
and identify the court with jurisdiction over the
case.
A: As counsel for Gary, I will first make him medically
examined in order to ascertain the gravity and extent of the
injuries he sustained from the accident. Second, I will secure
a police report relative to the mishap. Third, I will ask him
to execute his Sinumpaang Salaysay. Thereafter, I will use
his Sinumpaang Salaysay or prepare a complaint affidavit
and file the same in the Office of the City Prosecutor and
later on to the appropriate MTC of Mandaluyong City for the
crime of Reckless Imprudence resulting to physical injuries
and damage to property. (Secs. 1 and 15, Rule 110, ROC, as
amended)
(b) If Gary chooses to file an independent civil action
for damages, explain briefly this type of action: its
legal basis; the different approaches in pursuing
this type of action; the evidence you would need;
and types of defenses you could expect.
A: An independent civil action is an action which is entirely
distinct and separate from the criminal action. Such civil
action shall proceed independently of the criminal
prosecution and shall require only a preponderance of
evidence. Section 3 of Rule 111 allows the filing of an
independent civil action by the offended party based on
Article 33 and 2176 of the New Civil Code.
The different approaches that the plaintiff can pursue in this
type of action are, as follows:
a. File the independent civil action and prosecute
the criminal case separately.
b. File the independent civil action without filing
the criminal case.
c. File the criminal case without need of reserving
the independent civil action.
Aside from the testimony of Gary, the pieces of evidence
that would be required in an independent civil action are
the medical report and certificate regarding the injuries
sustained by Gary, hospital and medical bills including
receipt of payments made, police report and proof of the
extent of damage sustained by his car, and the affidavit of
83
witnesses who saw Horace using his cellular phone at the
time the incident happened.
I will also present proof of employment of Gary such as his
pay slip in order to prove that he was gainfully employed at
the time of the mishap, and as a result of the injuries he
suffered, he was not able to earn his usual income thereof. I
will also present the attending Doctor of Gary to
corroborate and authenticate the contents of the medical
report and abstract thereof. The evidence required to hold
defendant Horace liable is only preponderance of evidence.
The types of defenses that may be raised against this action
are fortuitous event, force majeure or acts of God. The
defendant can also invoke contributory negligence as
partial defense. Moreover, the defendant can raise the usual
defenses that the: (a) plaintiff will be entitled to double
compensation or recovery, and (b) defendant will be
constrained to litigate twice and therefore suffer the cost of
litigation twice.
Q: On his way to the PNP Academy in Silang, Cavite on
board a public transport bus as a passenger, Police
Inspector Masigasig of the Valenzuela Police
witnessed an on-going armed robbery while the bus
was traversing Makati. His alertness and training
enabled him to foil the robbery and to subdue the
malefactor. He disarmed the felon and while frisking
him, discovered another handgun tucked in his waist.
He seized both handguns and the malefactor was later
charged with the separate crimes of robbery and illegal
possession of firearm.
Where should Police Inspector Masigasig bring the
felon for criminal processing? To Silang, Cavite where
he is bound; to Makati where the bus actually was when
the felonies took place; or back to Valenzuela where he
is stationed? Which court has jurisdiction over the
criminal cases? (2013 BAR)
A: Police Inspector Masigasig should bring the felon to the
nearest police station or jail in Makati City where the bus
actually was when the felonies took place.
Moreover, where an offense is committed in a public vehicle
while in the course of its trip, the criminal action shall be
instituted and tried in the court of any Municipality or
territory where such vehicle passed during its trip,
including the place of its departure and arrival. (Sec. 15(b),
Rule 110) Consequently, the criminal case for robbery and
illegal possession of firearms can be filed in Regional Trial
Court of Makati City or on any of the places of departure or
arrival of the bus.
Q: Yvonne, a young and lonely OFW, had an intimate
relationship abroad with a friend, Percy. Although
Yvonne comes home to Manila every six months, her
foreign posting still left her husband Dario lonely so
that he also engaged in his own extramarital activities.
In one particularly exhilarating session with his
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
girlfriend, Dario died. Within 180 days from Dario’s
death, Yvonne gives birth in Manila to a baby boy. Irate
relatives of Dario contemplate criminally charging
Yvonne for adultery and they hire your law firm to
handle the case. (2013 BAR)
(a) Is the contemplated criminal action a viable option
to bring?
A: NO. Sec. 5, Rule 110 provides that the crimes of adultery
and concubinage shall not be prosecuted except upon
complaint by the offended spouse. Since the offended party
is already dead, then the criminal action for adultery as
contemplated by offended party’s relatives is no longer
viable.
(b) Is a civil action to impugn the paternity of the baby
boy feasible, and if so, in what proceeding may such
issue be determined?
A: YES, under Article 171 of the Family Code, the heirs of
the husband may impugn the filiation of the child in the
following cases:
1. If the husband should die before the expiration of
the period fixed for bringing his action;
2. If he should die after the filing of the complaint,
without having desisted therefrom; or
3. If the child was born after the death of the husband.
Since Dario is already dead when the baby boy was born, his
heirs have the right to impugn the filiation of the child.
Consequently, the heirs may impugn the filiation either by a
direct action to impugn such filiation or raise the same in a
special proceeding for settlement of the estate of the
decedent. In the said proceeding, the probate court has the
power to determine questions as to who are the heirs of the
decedent. (Reyes v. Ysip, et al., G.R. No. L-7516, 12 May 1955;
Jimenez v. Intermediate Appellate Court, G.R. No. 75773, 17
Apr. 1990)
Incidentally, the heirs can also submit the baby boy for DNA
testing under the Rules on DNA Evidence (A.M. No. 6-11-5-
SC) or even blood-test in order to determine paternity and
filiation.
Q: X was arrested, in flagrante, for robbing a bank. After
an investigation, he was brought before the office of the
prosecutor for inquest, but unfortunately no inquest
prosecutor was available. May the bank directly file the
complaint with the proper court? If in the affirmative,
what document should be filed? (2012 BAR)
A: YES, the bank may directly file the complaint with the
proper court. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended
party or a peace officer directly with the proper court on the
basis of the affidavit of the offended party or arresting
officer or person. (Sec. 6, Rule 12, ROC, as amended)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
Q: Your friend YY, an orphan, 16 years old, seeks your
legal advice. She tells you that ZZ, her uncle, subjected
her to acts of lasciviousness; that when she told her
grandparents, they told her to just keep quiet and not
to file charges against ZZ, their son. Feeling very much
aggrieved, she asks you how her uncle ZZ can be made
to answer for his crime. (2000 BAR)
(a) What would your advice be? Explain.
A: I would advise the minor, an orphan of 16 years of age, to
file the complaint herself independently of her
grandparents, because she is not incompetent or incapable
of doing so upon grounds other than her minority. (Sec. 5,
Rule 110, ROC, as amended)
(b) Suppose the crime committed against YY by her
uncle ZZ is rape, witnessed by your mutual friend
XX. But this time, YY was prevailed upon by her
grandparents not to file charges. XX asks you if she
can initiate the complaint against ZZ. Would your
answer be the same? Explain.
A: Since rape is now classified as a Crime Against Persons
under the Anti-Rape Law of 1997 (R.A. No. 8353), I would
advise XX to initiate the complaint against ZZ.
DESIGNATION OF OFFENSE
(2001 BAR)
Q: The prosecution filed an information against Jose for
slight physical injuries alleging the acts constituting the
offense but without any more alleging that it was
committed after Jose’s unlawful enter in the
complainant’s abode. Was the information correctly
prepared by the prosecution? Why? (2001 BAR)
A: NO. The aggravating circumstance of unlawful entry in
the complainant’s abode has to be specified in the
information; otherwise, it cannot be considered as
aggravating. (Sec. 8, Rule 110, ROC, as amended)
AMENDMENT OR SUBSTITUTION OF COMPLAINT
OR INFORMATION
(2002, 2001 BAR)
Q:
(a) D and E were charged with homicide in one
Information. Before they could be arraigned, the
prosecution moved to amend the information to
exclude E therefrom. Can the court grant the motion
to amend? Why? (2002, 2001 BAR)
A: YES, provided notice is given to the offended party and
the court states its reasons for granting the same. (Sec. 14,
Rule 110, ROC, as amended)
(b) On the facts above stated, suppose the prosecution,
instead of filing a motion to amend, moved to
84
 QuAMTO (1987-2022)
withdraw the information altogether and its
motion was granted. Can the prosecution re-file the
information although this time for murder?
Explain.
A: YES, the prosecution can re-file the information for
murder in substitution of the information for homicide
because no double jeopardy has a yet attached. (Galvez v.
Court of Appeals, G.R. No. 114046, 24 Oct. 1994)
Q: A was accused of homicide for the killing of B. During
the trial, the public prosecutor received a copy of the
marriage certificate of A and B. (1997 BAR)
(a) Can the public prosecutor move for the amendment
of the information to charge A with the crime of
parricide?
A: NO. The information cannot be amended to change the
offense charged from homicide to parricide. The marriage is
not a supervening fact arising from the act constituting the
charge of homicide. (Sec. 8, Rule 110, ROC, as amended)
(b) Suppose instead of moving for the amendment of
the information, the public prosecutor presented in
evidence the marriage certificate without objection
on the part of the defense, could A be convicted of
parricide?
A: NO. A can be convicted only of homicide not of parricide
which is a graver offense. The accused has the constitutional
rights of due process and to be informed of the nature and
the cause of the accusation against him. (Sec. 1, 14(1) and (2)
Art. III, 1987 Constitution)
C. PROSECUTION OF CIVIL ACTION
(RULE 111)
(2017, 2014, 2010, 2005, 2003, 2001, 2000, 1999 BAR)
Q: Name two instances where the trial court can hold
the accused civilly liable even if he is acquitted. (2010
BAR)
A: The instances where the civil, liability is not extinguished
despite acquittal of the accused are:
1. Where the acquittal is based on reasonable doubt;
2. Where the court expressly declares that the
liability of the accused is not criminal but only civil
in nature; and
3. Where the civil liability is not derived from or
based on the criminal act of which the accused is
acquitted. (Sapiera v. Court of Appeals, G.R. No.
128927, 14 Sept. 1999)
Q: Tomas was criminally charged with serious physical
injuries allegedly committed against Darvin. During the
pendency of the criminal case, Darvin filed a separate
85
civil action for damages based on the injuries he had
sustained. Tomas filed a motion to dismiss the separate
civil action on the ground of litis pendentia, pointing out
that when the criminal action was filed against him, the
civil action to recover the civil liability from the offense
charged was also deemed instituted. He insisted that
the basis of the separate civil action was the very same
act that gave rise to the criminal action. Rule on Tomas'
motion to dismiss, with brief reasons. (2017 BAR)
A: Tomas’s motion to dismiss on the ground of litis
pendentia should be denied. In cases of physical injuries, a
civil action for damages, entirely separate and distinct from
the criminal action, may be brought by the injured party.
Such civil action shall proceed independently of the criminal
action (Art. 33, NCC; Sec. 3, Rule 111, ROC, as amended) and
hence may not be dismissed on the ground of litis pendentia.
Q: While cruising on a highway, a taxicab driven by
Mans hit an electric post. As a result thereof, its
passenger, Jovy, suffered serious injuries. Mans was
subsequently charged before the Municipal Trial Court
with reckless imprudence resulting in serious physical
injuries. Thereafter, Jovy filed a civil action against
Lourdes, the owner of the taxicab, for breach of
contract, and Mans for quasi-delict. Lourdes and Mans
filed a motion to dismiss the civil action on the ground
of litis pendentia, that is, the pendency of the civil action
impliedly instituted in the criminal action for reckless
imprudence resulting in serious physical injuries.
Resolve the motion with reasons. (2005 BAR)
A: The motion to dismiss should be denied. The action for
breach of contract against the taxicab owner cannot be
barred by the criminal action against the taxicab driver,
although the taxicab owner can be held subsidiarily liable in
the criminal case, if the driver is insolvent. On the other
hand, the civil action for quasi-delict against the driver is an
independent civil action under Article 33 of the Civil Code
and Sec. 3, Rule 111 of the Rules of Court, which can be filed
separately and can proceed independently of the criminal
action and regardless of the result of the latter. (Samson v.
Daway, G.R. Nos. 160054-55, 21 July 2004)
Q: In an action for violation of Batas Pambansa Blg. 22,
the court granted the accused’s demurrer to evidence
which he filed without leave of court. Although he was
acquitted of the crime charged, he, however, was
required by the court to pay the private complainant
the face value of the check. The accused filed a Motion
of Reconsideration regarding the order to pay the face
value of the check on the following grounds:
(a) the demurrer to evidence applied only to the
criminal aspect of the case (2001 BAR); and
A: The Motion for Reconsideration should be denied. The
ground that the demurrer to evidence applied only to the
criminal aspect of the case was not correct because the
criminal action for violation of Batas Pambansa Blg. 22
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
included the corresponding civil action. (Sec. 1(b), Rule 111,
ROC, as amended)
(b) at the very least, he was entitled to adduce
controverting evidence on the civil liability.
Resolve the Motion for Reconsideration (2003
BAR)
A: The accused was not entitled to adduce controverting
evidence on the civil liability, because he filed his demurrer
to evidence without leave of court. (Sec. 23, Rule 119, ROC,
as amended)
PREJUDICIAL QUESTION
(2014, 2010, 2000, 1999 BAR)
Q: Solomon and Faith got married in 2005. In 2010,
Solomon contracted a second marriage with Hope.
When Faith found out about the second marriage of
Solomon and Hope, she filed a criminal case for bigamy
before the Regional Trial Court (RTC) of Manila
sometime in 2011. Meanwhile, Solomon filed a petition
for declaration of nullity of his first marriage with Faith
in 2012, while the case for bigamy before the RTC of
Manila is ongoing. Subsequently, Solomon filed a
motion to suspend the proceedings in the bigamy case
on the ground of prejudicial question. He asserts that
the proceedings in the criminal case should be
suspended because if his first marriage with Faith will
be declared null and void, it will have the effect of
exculpating him from the crime of bigamy. Decide.
(2014 BAR)
A: The motion filed by Solomon should be denied. The
elements of prejudicial question are: (1) the previous
instituted civil action involves an issue similar or intimately
related to the issue determines the subsequent criminal
action; and (2) the resolution of such issue determines
whether or not the criminal action may proceed. In order
for a prejudicial question to exist, the civil action must
precede the filing of the criminal action. (Dreamwork
Construction, Inc. v. Janiola, G.R. No. 184861, 30 June 2009)
Since the criminal case for bigamy was filed ahead of the
civil action for declaration of nullity of marriage, there is no
prejudicial question. At any rate, the outcome of the civil
case for annulment has no bearing upon the determination
of the guilt or innocence of the accused in the criminal case
for bigamy because the accused has already committed the
crime of bigamy when he contracted the second marriage
without the first marriage having being declared null and
void.
NOTE: In the case of Pulido v. People (G.R. No. 220149, 27 July
2021, J. Hernando), the Court held that a void ab initio
marriage is a valid defense in the prosecution for bigamy
even without a judicial declaration of absolute nullity.
Consequently, a judicial declaration of absolute nullity of
either the first and second marriages obtained by the
accused is considered a valid defense in bigamy.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
Q: X was driving the dump truck of Y along Cattleya
Street in Sta. Maria, Bulacan. Due to his negligence, X hit
and injured V who was crossing the street. Lawyer L,
who witnessed the incident, offered his legal services to
V. V, who suffered physical injuries including a
fractured wrist bone, underwent surgery to screw a
metal plate to his wrist bone. On the complaint of V, a
criminal case for Reckless Imprudence Resulting in
Serious Physical Injuries was filed against X before the
Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the
private prosecutor, did not reserve the filing of a
separate civil action. V subsequently filed a complaint
for Damages against X and Y before the Regional Trial
Court of Pangasinan in Urdaneta where he resides. In
his "Certification Against Forum Shopping," V made no
mention of the pendency of the criminal case in Sta.
Maria. (2010 BAR)
(a) X moved for the suspension of the proceedings in
the criminal case to await the decision in the civil case.
For his part, Y moved for the suspension of the civil case
to await the decision in the criminal case. Which of
them is correct? Explain.
A: Neither of them is correct. Both substantive law (Art. 33,
NCC) and procedural law (Sec. 3, Rule 111, ROC, as amended)
provide for the two actions to proceed independently of
each other, therefore, no suspension of action is authorized.
(b) Instead of filing an Answer, X and Y move to dismiss
the complaint for damages on the ground of litis
pendentia. Is the motion meritorious? Explain.
A: NO. The motion to dismiss based on alleged litis
pendencia is without merit because there is no identity of
parties and subject matter in the two cases. Besides, Art. 33
of the Civil Code and Rule 111, Sec. 3 of the Rules of Criminal
Procedure authorize the separate civil action for damages
arising from physical injuries to proceed independently.
Q: A allegedly sold to B a parcel of land which A later
also sold to X. B brought a civil action for nullification of
the second sale and asked that the sale made by A in his
favour be declared valid. A theorized that he never sold
the property to B and his purported signatures
appearing in the first deed of sale were forgeries.
Thereafter, an Information for estafa was filed against
A based on the same double sale that was the subject of
the civil action. A filed a “Motion for suspension of
Action” in the criminal case, contending that the
resolution of the issue in civil case would necessarily be
determinative of his guilt or innocence. Is the
suspension of the criminal action in order? Explain.
(2000, 1999 BAR)
A: YES. The suspension of the criminal action is in order
because the defense of A in civil action, that he never sold
the property to B and that his purported signatures in the
first deed of sale were forgeries, is a prejudicial question the
resolution of which is determinative of his guilt or
86
 QuAMTO (1987-2022)
innocence. If the first sale is null and void, there would be
no double sale and A would be innocent of the offense of
estafa. (Ras v. Rasul, G.R. Nos. L-50441-42, 18 Sept. 1980)
D. PRELIMINARY INVESTIGATION
(RULE 112)
(2019, 2017, 2013, 2012, 2005 BAR)
1. EXECUTIVE vs. JUDICIAL DETERMINATION
OF PROBABLE CAUSE
(2019, 2017, 2013, 2012, 2005 BAR)
Q: In a neighborhood bicycle race, Mr. A bumped the
bicycle of one of his competitors, Mr. B, in order to get
ahead. This caused the latter to lose control of the bike
which hit the concrete pavement and sent Mr. B
crashing headfirst into the sidewalk. By the time the
organizers got to him, Mr. B was dead. Law enforcement
authorities who witnessed the incident arrested Mr. A
without a warrant, and immediately brought him to the
inquest prosecutor for the conduct of an inquest.
Thereafter, an Information for Homicide was filed by
the inquest prosecutor without the conduct of a
preliminary investigation. The next day Mr. A
requested for the conduct of a preliminary
investigation. (2019, 2017 BAR)
(a) Is the inquest prosecutor's filing of the Information
without the conduct of preliminary investigation
proper?
A: YES. The initial duty of the inquest officer is to determine
whether the respondent was arrested pursuant to Section
5, Rule 113. If that was so, then he can file the information
immediately in the proper court. Since Mr. A was arrested
in flagrante delicto, the action of the inquest prosecutor in
filing the Information without conducting a preliminary
investigation was correct. (Sec. 8, Rule on Inquest)
(b) Is Mr. A’s request permissible? Explain.
A: The request of Mr. R to conduct a preliminary
investigation was correct and the same is supported by the
Revised Guidelines on Continuous trial because it was made
within the five (5)-day reglementary period from inquest
and filing of the Information in Court. Mr. R’s request was
made a day after the Information for Homicide was filed in
court by the inquest prosecutor. (A.M. No. 15-06-10-SC,
Revised Guidelines for Continuous trial in Criminal cases)
Q: Engr. Magna Nakaw, the District Engineer of the
DPWH in the Province of Walang Progreso, and Mr.
Pork Chop, a private contractor, were both charged in
the Office of the Ombudsman for violation of the Anti-
Graft and Corrupt Practices Act (R.A. No. 3019) under a
conspiracy theory. While the charges were undergoing
investigation in the Office of the Ombudsman, Engr.
87
Magna Nakaw passed away. Mr. Pork Chop immediately
filed a motion to terminate the investigation and to
dismiss the charges against him, arguing that because
he was charged in conspiracy with the deceased, there
was no longer a conspiracy to speak of and,
consequently, any legal ground to hold him for trial had
been extinguished. Rule on the motion to terminate
filed by Mr. Pork Chop, with brief reasons. (2017 BAR)
A: Mr. Pork Chop’s motion to terminate the investigation
before the Office of the Ombudsman should be denied. In a
case involving similar facts, the Supreme Court held that the
death of a co-conspirator, even if he was the lone public
officer, did not mean that the allegation of conspiracy to
violate the Anti-Graft Law could no longer be proved or that
the alleged conspiracy was already expunged. The only
thing extinguished by the death of a co-conspirator was his
criminal liability. His death did not extinguish the crime nor
did it remove the basis of the charge of conspiracy between
him and private respondent. (People v. Go, G.R. No. 168539,
25 Mar. 2014)
Q: You are the defense counsel of Angela Bituin who has
been charged under RA 3019 (Anti-Graft and Corrupt
Practices Act) before the Sandiganbayan. While Angela
has posted bail, she has yet to be arraigned. Angela
revealed to you that she has not been investigated for
any offense and that it was only when police officers
showed up at her residence with a warrant of arrest
that she learned of the pending case against her. She
wonders why she has been charged before the
Sandiganbayan when she is not in government service.
(2013 BAR)
(a) What “before-trial” remedy would you invoke in
Angela’s behalf to address the fact that she had not
been investigated at all, and how would you avail of
this remedy?
A: I will file a motion for the conduct of preliminary
investigation or reinvestigation and the quashal or recall of
the warrant of arrest in the Court where the case is pending
with an additional prayer to suspend the arraignment.
Under Section 6, Rule 112, after filing of the complaint or
information in court without a preliminary investigation,
the accused may within five days from the time he learns of
its filing ask for a preliminary investigation with the same
right to adduce evidence in his defense.
Moreover, Section 26, Rule 114 provides that an application
for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of
the charge against him, provided that he raises them before
entering his plea. The court shall resolve the matter as early
as practicable as but not later than the start of the trial of
the case.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
(b) What “during-trial” remedy can you use to allow an
early evaluation of the prosecution evidence
without the need of presenting defense evidence;
when and how can you avail of this remedy?
A: I will file first a motion for leave to file a demurrer within
five (5) days from the time the prosecution rested its case.
If the same is granted, then I will now file a demurrer to
evidence within ten (10) days. (Sec. 23, Rule 119, ROC, as
amended) This remedy would allow the evaluation of the
sufficiency of prosecution’s evidence without the need of
presenting defense evidence. It may be done through the
court’s initiative or upon motion of the accused and after
the prosecution rested its case. (Sec. 23, Rule 119, ROC, as
amended)
Q: On his way to the PNP Academy in Silang, Cavite on
board a public transport bus as a passenger, Police
Inspector Masigasig of the Valenzuela Police witnessed
an on-going armed robbery while the bus was
traversing Makati. His alertness and training enabled
him to foil the robbery and to subdue the malefactor. He
disarmed the felon and while frisking him, discovered
another handgun tucked in his waist. He seized both
handguns and the malefactor was later charged with
the separate crimes of robbery and illegal possession of
firearm. May the charges of robbery and illegal
prosecution of firearm be filed directly by the
investigating prosecutor with the appropriate court
without a preliminary investigation? (2013 BAR)
A: YES. Since the offender was arrested in flagrante delicto
without a warrant of arrest; an inquest proceeding should
be conducted and thereafter a case may be filed in court
even without the requisite preliminary investigation.
Under Section 7, Rule 112, when a person is lawfully
arrested without a warrant involving an offense which
requires preliminary investigation, the complaint or
information may be filed by a prosecutor without the need
of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence
or unavailability of an inquest prosecutor, the complaint
may be filed by the offended party or a peace officer directly
with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
Q: X, an undersecretary of DENR, was charged before
the Sandiganbayan for malversation of public funds
allegedly committed when he was still the Mayor of a
town in Rizal. After arraignment, the prosecution
moved that X be preventively suspended. X opposed the
motion arguing that he was now occupying a position
different from that which the Information charged him
and therefore, there is no more possibility that he can
intimidate witnesses and hamper the prosecution.
Decide. Suppose X files a Motion to Quash challenging
the validity of the Information and the Sandiganbayan
denies the same, will there still be a need to conduct a
pre- suspension hearing? Explain. (2012 BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: There is no necessity for the court to conduct pre-
suspension hearing. Under Sec. 13 of R.A. No. 3019 an
incumbent public officer against whom any criminal
prosecution under a valid information for graft-related
crime such as malversation is pending in court, shall be
suspended from office. The word “office”, from which the
public officer charged shall be preventively suspended,
could apply to any office, which he might currently be
holding and not necessarily the particular office under
which he was charged. Thus, the DENR undersecretary can
be preventively suspended even though he was a mayor,
when he allegedly committed malversation.
Settled is the rule that where the accused files a motion to
quash the information or challenges the validity thereof, a
show-cause order of the trial court would no longer be
necessary. What is indispensable is that the trial court duly
hear the parties at a hearing held for determining the
validity of the information, and thereafter hand down its
ruling, issuing the corresponding order of suspension
should it uphold the validity of the information. (Luciano v.
Mariano, G.R. No. L-32950, 30 July 1971) Since a pre-
suspension hearing is basically a due process requirement,
when an accused public official is given an adequate
opportunity to be heard on his possible defenses against the
mandatory suspension under R.A. No. 3019, then an
accused would have no reason to complain that no actual
hearing was conducted. (Miguel v. Sandiganbayan, G.R. No.
172035, 04 July 2012)
In the facts given, the DENR Undersecretary was already
given opportunity to question the validity of the
Information for malversation by filing a motion to quash,
and yet, the Sandiganbayan sustained its validity. There is
no necessity for the court to conduct pre-suspension
hearing to determine for the second time the validity of the
information for purpose of preventively suspending the
accused.
Q: Regional Director AG of the Department of Public
Works and Highways was charged with violation of
Section 3(e) of Republic Act No. 3019 in the Office of the
Ombudsman. An administrative charge for gross
misconduct arising from the transaction subject matter
of said criminal case was filed against him in the same
office. The Ombudsman assigned a team composed of
investigators from the office of the Special Prosecutor
and from the Office of the Deputy Ombudsman for the
Military to conduct a joint investigation of the criminal
case and the administrative case. The team of
investigators recommended to the Ombudsman that
AG be preventively suspended for a period not
exceeding six months on its finding that the evidence
of guilt is strong. The Ombudsman issued the said
order as recommend by the investigators. AG moved to
reconsider the order on the following grounds: a) The
office of the Special Prosecutor had exclusive
authority to conduct a preliminary investigation of the
criminal case; b) The order for his preventive
suspension was premature because he has yet to file his
88
 QuAMTO (1987-2022)
answer to the administrative complaint and submit
countervailing evidence; and c) he was career executive
service officer and under Presidential Decree No. 807
(Civil Service Law), his preventive suspension shall be
for a maximum period of three months. Resolve with
reasons the motion of respondent AG. (2005 BAR)
A: The motion should be denied for the following reasons:
1. The office of the Special Prosecutor does not have
exclusive authority to conduct a preliminary
investigation of the criminal case but it participated
in the investigation together with the Deputy
Ombudsman for the Military who can handle cases
of civilians and is not limited to the military.
2. The order of preventive suspension need not wait
for the answer to the administrative complaint and
the submission of countervailing evidence. (Garcia
v. Mojica, G.R. No. 13903, 10 Sept. 1999)
E. ARREST
(RULE 113)
(2017, 2016, 2015, 2010, 2004, 2003, 1997 BAR)
1. ARREST WITHOUT WARRANT, WHEN LAWFUL
(2017, 2016, 2010, 2004, 2003, 2000, 1997 BAR)
Q: Give at least two instances when a peace officer or a
private person may make a valid warrantless arrest.
(2017 BAR)
A: Under Section 5, Rule 113, a peace officer or a private
person may make a valid warrantless arrest in the following
instances:
a. When, in his presence, the person to be arrested
has commit ted, is actually committing, or is
attempting to commit an offense;
b. When an offense has just been committed, and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the
person to be arrested has committed it; and
c. When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or is
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
Q: Boy Maton, a neighborhood tough guy, was arrested
by a police officer on suspicion that he was keeping
prohibited drugs in his clutch bag. When Boy Maton was
searched immediately after the arrest, the officer found
and recovered 10 sachets of shabu neatly tucked in the
89
inner linings of the clutch bag. At the time of his arrest,
Boy Maton was watching a basketball game being
played in the town plaza, and he was cheering for his
favorite team. He was subsequently charged with illegal
possession of dangerous drugs, and he entered a plea of
not guilty when he was arraigned. During the trial, Boy
Maton moved for the dismissal of the information on
the ground that the facts revealed that he had been
illegally arrested. He further moved for the suppression
of the evidence confiscated from him as being the
consequence of the illegal arrest, hence, the fruit of the
poisonous tree. The trial court, in denying the motions
of Boy Maton, explained that at the time the motions
were filed Boy Maton had already waived the right to
raise the issue of the legality of the arrest. The trial
court observed that, pursuant to the Rules of Court, Boy
Maton, as the accused, should have assailed the validity
of the arrest before entering his plea to the information.
Hence, the trial court opined that any adverse
consequence of the alleged illegal arrest had also been
equally waived.
Comment on the ruling of the trial court. (2017 BAR)
A: The ruling of the court denying the motion for dismissal
of the information on the ground of illegal arrest is proper.
Under Sec. 9, Rule 117, the accused’s failure to file a motion
to quash before plea is a waiver of the objection to lack of
personal jurisdiction or of the objection to an illegal arrest.
Here, Boy Maton entered a plea without filing a motion to
quash on the ground of lack of personal jurisdiction. Hence,
he is deemed to have waived the ground of illegal arrest
which is subsumed under lack of personal jurisdiction.
However, the ruling denying the motion to suppress
evidence is not correct. The Supreme Court has held that a
waiver of an illegal, warrantless arrest does not carry with
it a waiver of the inadmissibility of evidence seized during
an illegal warrantless arrest. (People v. Racho, G.R. No.
186529, 03 Aug. 2010) A waiver of an illegal arrest is not a
waiver of an illegal search. The Constitution provides that
evidence seized in violation of the right against illegal
search is inadmissible in evidence. Hence, the evidence was
seized was virtue of an illegal search considering that the
arrest was illegal, rendering it inadmissible in evidence.
Q: Under Section 5, Rule 113, a warrantless arrest is
allowed when an offense has just been committed and
the peace officer has probable cause to believe, based
on his personal knowledge of facts and circumstances,
that the person to be arrested has committed it. A
policeman approaches your for advice and asks you
how he will execute a warrantless arrest against a
murderer who escaped after killing a person. The
policeman arrived two (2) hours after the killing and a
certain Max was allegedly the killer per information
given by a witness. He asks you to clarify the following:
(2016 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
(a) How long after the commission of the crime can he
still execute the warrantless arrest?
A: In executing a warrantless arrest under Section 5, Rule
113, the Supreme Court held that the requirement that an
offense has just been committed means that there must be
a large measure of immediacy between the time the offense
was committed and the time of the arrest. (Pestilos v.
Generoso, G.R. No. 182601, 10 Nov. 2014) If there was an
appreciable lapse of time between the arrest and the
commission of the crime, a warrant of arrest must be
secured. In any case, personal knowledge by the arresting
officer is an indispensable requirement to the validity of a
vaid warrantless arrest.
(b) What does “personal knowledge of the facts and
circumstances that the person to be arrested
committed it” mean?
A: The phrase “personal knowledge of the facts and
circumstances that the person to be arrested committed it”
means that matters in relation to the supposed commission
of the crime were within the actual perception, personal
evaluation or observation of the police officer at the scene
of the crime. Thus, even though the police officer has not
seen someone actually, fleeing, he could still make a
warrantless arrest if, based on his personal evaluation of
the circumstances at the scene of the crime, he could
determine the existence of probable cause that the person
sought to be arrested has committed the crime; however,
the determination of probable cause and the gathering of
facts or circumstances should be made immediately after
the commission of the crime in order to comply with the
element of immediacy.
Q: As Cicero was walking down a dark alley one
midnight, he saw an "owner-type jeepney" approaching
him. Sensing that the occupants of the vehicle were up
to no good, he darted into a corner and ran. The
occupants of the vehicle—elements from the Western
Police District—gave chase and apprehended him. The
police apprehended Cicero, frisked him and found a
sachet of 0.09 gram of shabu tucked in his waist and a
Swiss knife in his secret pocket, and detained him
thereafter. Is the arrest and body- search legal? (2010
BAR)
A: NO. The arrest and the body-search were not legal.
Cicero’s act of running does not show any reasonable
ground to believe that a crime has been committed or is
about to be committed for the police officers to apprehend
him and conduct body search. Hence, the arrest was illegal
as it does not fall under any of the circumstances for a valid
warrantless arrest provided in Section 5, Rule 113.
Q: AX swindled RY in the amount P10,000 sometime in
mid-2003. On the strength of the sworn statement given
by RY personally to SPO1 Juan Ramos sometime in mid-
2004, and without securing a warrant, the police officer
arrested AX. Forthwith the police officer filed with the
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
City Prosecutor of Manila a complaint for estafa
supported by RY’s sworn statement and other
documentary evidence. After due inquest, the
prosecutor filed the requisite information with the MM
RTC. No preliminary investigation was conducted
either before or after the filing of the information and
the accused at no time asked for such an investigation.
However, before arraignment, the accused moved to
quash the information on the ground that the
prosecutor suffered from a want of authority to file the
information because of his failure to conduct a
preliminary investigation before filing the information,
as required by the Rules of Court. (2004 BAR)
(a) Is the warrantless arrest of AX valid?
A: NO. The warrantless arrest is not valid because the
alleged offense has not just been committed. The crime was
allegedly committed one year before the arrest. (Sec. 5(b),
Rule 113, ROC, as amended)
(b) Is he entitled to a preliminary investigation before
the filing of the information? Explain.
A: YES, he is entitled to a preliminary investigation because
he was not lawfully arrested without a warrant. (Sec. 7, Rule
112, ROC, as amended) He can move for a reinvestigation.
Q: In a buy-bust operation, the police operatives
arrested the accused and seized from him a sachet of
shabu and an unlicensed firearm. The accused was
charged in two Informations, one for violation of the
“Dangerous Drug Act,” as amended, and another for
illegal possession of firearms. The accused filed an
action for recovery of the firearm in another court
against the police officers with an application for the
issuance of a writ of replevin. He alleged in his
complaint that he was a military informer who had
been issued a written authority to carry said firearm.
The police officers moved to dismiss the complaint on
the ground that the subject firearm was in custodia
legis. The court denied the motion and instead issued
the writ of replevin. (2003 BAR)
(a) Was the seizure of the firearm valid?
A: YES. The seizure of the firearm was valid because it was
seized in the course of a valid arrest in a buy- bust operation
(Secs. 12 and 13, Rule 126, ROC, as amended) In such
operation, a search warrant was not necessary. (People v.
Salazar, G.R. No. 98060, 27 Jan. 1997)
(b) Was the denial of the motion to dismiss proper?
A: NO. The denial of the motion to dismiss was not proper.
The court had no authority to issue the writ of replevin
whether the firearm was in custodia legis or not. The motion
to recover the firearm should be filed in the court where the
criminal action is pending.
90
 QuAMTO (1987-2022)
Q: FG was arrested without a warrant by policemen 3. DETERMINATION OF PROBABLE CAUSE
while he was walking in a busy street. After the FOR ISSUANCE OF WARRANT OF ARREST
preliminary investigation, he was charged with rape (2015 BAR)
and the corresponding information was filed in the
RTC. On arraignment, he pleaded not guilty. Trial on the
Q: An information for murder was filed against Rapido.
merits ensued. The court rendered judgment
The RTC judge, after personally evaluating the
convicting him. On appeal, FG claims that the judgment
prosecutor's resolution, documents and parties'
is void because he was illegally arrested. If you were the
affidavits submitted by the prosecutor, found probable
Solicitor General, counsel, for the People of the
cause and issued a warrant of arrest. Rapido's lawyer
Philippines, how would you refute said claim? (2000
examined the rollo of the case and found that it only
BAR)
contained the copy of the information, the submissions
of the prosecutor and a copy of the warrant of arrest.
A: I would assert that any objection to the illegality of the
Immediately, Rapido's counsel filed a motion to quash
arrest of the accused without a warrant is deemed waived
the arrest warrant for being void, citing as grounds:
when he pleaded not guilty at the arraignment without
raising the question. It is too late to complain about a
1. The judge before issuing the warrant did not
warrantless arrest after trial is commenced and completed
personally conduct a searching examination of
and a judgment of conviction rendered against the accused.
the prosecution witnesses in violation of his
(People v. Cabiles, G.R. No. 112035, 16 Jan. 1998)
client's constitutionally-mandated rights;

Q: A was killed by B during a quarrel over a hostess in a

2. There was no prior order finding probable
nightclub. Two days after the incident, and upon
cause before the judge issued the arrest
complaint of the widow of A, the police arrested B
warrant.
without a warrant of arrest and searched his house
without a search warrant. (1997 BAR)
May the warrant of arrest be quashed on the grounds
cited by Rapido's counsel? State your reason for each
(a) Can the gun used by B in shooting A, which was
ground. (2015 BAR)
seized during the search of the house of B, be
admitted in evidence?
A: NO, the warrant of arrest may not be quashed based on
the grounds cited by Rapido’s counsel. In the issuance of
A: NO. The gun seized during the search of the house of B
warrant of arrest, the mandate of the Constitution is for the
without a search warrant is not admissible in evidence. (Sec.
judge to personally determine the existence of probable
2 and 3(2), Art. III, 1987 Constitution) Moreover, the search
cause. The words “personal determination,” was
was not an incident to a lawful arrest of a person under Sec.
interpreted by the Supreme Court in Soliven v. Makasiar
13, Rule 126.
(G.R. No. 82585, 14 Nov. 1988) as the exclusive and personal
responsibility of the issuing judge to satisfy himself as to the
(b) Is the arrest of B legal?
existence of probable cause.

A: NO. A warrantless arrest requires that the crime has in

What the law requires as personal determination on the
fact just been committed and the police arresting has
part of a judge is that he should not rely solely on the report
personal knowledge of facts that the person to be arrested
of the investigating prosecutor. Thus, personal examination
has committed it. (Sec. 5, Rule 113, ROC, as amended) Here,
of the complainant and his witnesses is, thus, not
the crime has not just been committed since a period of two
mandatory and indispensable in the determination of
days had already lapsed, and the police arresting has no
probable cause for the issuance of a warrant of arrest.
such personal knowledge because he was not present when
(People v. Grey, G.R. No. 10109, 26 July 2010)
the incident happened. (Go v. Court of Appeals, G.R. No.
101837, 11 Feb.1992)

(c) Under the circumstances, can B be convicted of F. BAIL

homicide? (RULE 114)
(2019, 2017, 2015, 2014, 2013, 2012, 2008, 2006,
A: YES. The gun is not indispensable in the conviction of A 2004, 2002, 1999, 1998 BAR)
because the court may rely on testimonial or other
evidence.
1. NATURE
2. REQUISITES OF A VALID WARRANT OF ARREST
2. WHEN A MATTER OF RIGHT; EXCEPTIONS

91 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
3. WHEN A MATTER OF DISCRETION Is the objection of the prosecution valid? Explain. (2019
(2019, 2017, 2015, 2014, 2013, 2012, 2008, 2006, BAR)
2004, 2002, 1999, 1998 BAR)
A: NO, the objection of the prosecution is not valid. The
arraignment of an accused is not a prerequisite to the
Q: When is bail a matter of right and when is it a matter
conduct of hearing on his petition for bail. A person is
of discretion? (2019, 2017, 2006, 1999 BAR)
allowed to petition for bail as soon as he is deprived of his
liberty by virtue of his arrest or voluntary surrender. An
A: Bail is a matter of right: (a) before or after conviction by
accused need not wait for his arraignment before filing a
the Metropolitan Trial Court, Municipal Trial Court,
petition for bail. (Serpio v. Sandiganbayan, G.R. No. 148468,
Municipal Trial Court in Cities, or Municipal Circuit Trial
28 Jan. 2003)
Court; (b) before conviction by the Regional Trial Court of
an offense not punishable by death, reclusion perpetua, or
Q: Paz was awakened by a commotion coming from a
life imprisonment (Sec. 4, Rule 114, ROC, as amended); and
condo unit next to hers. Alarmed, she called up the
(c) if the charge involves a capital offense and the evidence
nearby police station. PO1 Remus and P02 Romulus
of guilt is not strong. (Sec. 7, Rule 114, ROC, as amended)
proceeded to the condo unit identified by Paz. PO 1
Remus knocked at the door and when a man opened the
Bail is a matter of discretion upon conviction by the
door, PO1 Remus and his companions introduced
Regional Trial Court of an offense not punishable by death,
themselves as police officers. The man readily
reclusion perpetua, or life imprisonment. (Sec. 5, Rule 114,
identified himself as Oasis Jung and gestured to them to
ROC, as amended)
come in. Inside, the police officers saw a young lady
with her nose bleeding and face swollen. Asked by P02
Q: In what forms may bail be given? (1999 BAR)
Romulus what happened, the lady responded that she
was beaten up by Oasis Jung. The police officers
A: Bail may be given by a corporate surety, or through a
arrested Oasis Jung and brought him and the young lady
property bond, cash deposit or recognizance. (Sec. 1, Rule
back to the police station. PO1 Remus took the young
114, ROC, as amended)
lady's statement who identified herself as AA. She
narrated that she is a sixteen-year-old high school
Q: When the accused is entitled as a matter of right to
student; that previous to the incident, she had sexual
bail, may the court refuse to grant him bail on the
intercourse with Oasis Jung at least five times on
ground that there exists a high degree of probability
different occasions and she was paid P5,000.00 each
that he will abscond or escape? Explain. (1999 BAR)
time and it was the first time that Oasis Jung physically
hurt her. P02 Romulus detained Oasis Jung at the
A: If bail is a matter of right, it cannot be denied on the
station's jail. After the inquest proceeding, the public
ground that there exists a high degree of probability that the
prosecutor filed an information for Violation of R.A. No.
accused will abscond or escape. What the court can do is to
9262 (The VAWC Law) for physical violence and five
increase the amount of the bail. One of the guidelines that
separate informations for violation of R.A. No. 7610
the judge may use in fixing a reasonable amount of bail is
(The Child Abuse Law). Oasis Jung's lawyer filed a
the probability of the accused appearing in trial. (Sec 9[g],
motion to be admitted to bail but the court issued an
Rule 114, as amended by Circular No. 12-94)
order that approval of his bail bond shall be made only
after his arraignment. (2015 BAR)
Q: May the Court require a witness to post bail? Explain
your answer. (1999 BAR)
(a) Did the court properly impose that bail condition?

A: YES. The court may require a witness to post bail if he is

A: NO. The court did not properly impose that bail
a material witness and bail is needed to secure his
condition. The Revised Rules of Criminal Procedure do not
appearance. The rules provide that when the court is
require the arraignment of the accused as prerequisite to
satisfied, upon proof or oath, that a material witness will not
the conduct of hearings in the bail petition. A person is
testify when required, it may, upon motion of either party,
allowed to file a petition for bail as soon as he is deprived of
order the witness to post bail in such sum as may be deemed
his liberty by virtue of his arrest or voluntary surrender. An
proper. Upon refusal to post bail, the court shall commit him
accused need not wait for his arraignment before filing the
to prison until he complies or is legally discharged after his
bail petition. (Serapio v. Sandiganbayan, G.R. No. 149116, 2
testimony is taken. (Sec. 6, Rule 119, ROC, as amended)
Jan. 2003)

Q: Mr. P was charged with Plunder before the

Moreover, the condition that the approval of bail bonds
Sandiganbayan along with several government
shall be made only after arraignment would place the
officials. Before his arraignment, he filed a petition for
accused in a position where he has to choose between: (1)
bail. This was objected to by the prosecution which
filing a motion to quash (the Information) and thus delay his
insisted that he should first be arraigned before he
released on bail because until his motion to quash can be
applies for bail, considering that grant of bail will result
resolved, his arraignment cannot be held; and (2) foregoing
in the accused fleeing the court’s jurisdiction.

UNIVERSITY OF SANTO TOMAS 92

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
the filing of a motion to quash (the Information) so that he
can be arraigned at once and thereafter be released on bail.
(Lavides v. Court of Appeals, G.R. No. 129670, 1 Feb. 2000)
(b) After his release from detention on bail, can Oasis
Jung still question the validity of his arrest?
A: YES. Oasis Jung can still question the validity of his arrest
even after his release from detention on bail. Under Sec. 26,
Rule 114, an application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or
the legality of the warrant issued therefor, or from assailing
the regularity or questioning the absence of a preliminary
investigation of a charge against him, provided that he
raises them before entering his plea.
Q: A was charged with murder in the lower court. His
Petition for Bail was denied after a summary hearing on
the ground that the prosecution had established strong
evidence of guilt. No Motion for Reconsideration was
filed from the denial of the Petition for Bail. During the
reception of the evidence of the accused, the accused
reiterated his petition for bail on the ground that the
witnesses so far presented by the accused had shown
that no qualifying aggravating circumstance attended
the killing. The court denied the petition on the grounds
that it had already ruled that: (i) the evidence of guilt is
strong; (ii) the resolution for the Petition for Bail is
solely based on the evidence presented by the
prosecution; and (iii) no Motion for Reconsideration
was filed from the denial of the Petition for Bail. (2014
BAR)
(a) If you are the Judge, how will you resolve the
incident?
A: If I were the Judge, I would grant the second Petition for
Bail. Under Section 7, Rule 114, no person charge with a
capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail
when evidence of guilt is strong, regardless of the stage of
the criminal prosecution.
In this case, the evidence of guilt for the crime of murder is
not strong, as shown by the prosecution’s failure to prove
the circumstance that will qualify the crime to, and
consequently convict the accused of, murder. Accordingly,
the accused should be allowed to post bail because the
evidence of his guilt is not strong. (Sec. 13, Art. III, 1987
Constitution) Besides, it is settled that an Order granting bail
is merely interlocutory which cannot attain finality. (Pobre
v. People, G.R. No. 141805, 8 July 2015)
(b) Suppose the accused is convicted of the crime of
homicide and the accused filed a Notice of Appeal,
is he entitled to bail?
A: YES. The accused is entitled to bail subject to the
discretion of the Court. Under Section 5, Rule 114, the
appellate court may allow him to post bail because the trial
court in convicting him, changed the nature of the offense
93
from non-bailable to bailable. Be that as it may, the denial of
bail pending appeal is a matter of wise discretion since after
conviction by the trial court, the presumption of innocence
terminates and, accordingly, the constitutional right to bail
ends. (Leviste v. Court of Appeals, G.R. No. 189122, 17 Mar.
2010)
Q: At the Public Attorney’s Office station in Taguig
where you are assigned, your work requires you to act
as public defender at the local Regional Trial Court and
to handle cases involving indigents.
In one other case, an indigent mother seeks assistance
for her 14-year old son who has been arrested and
detained for malicious mischief. Would an application
for bail be the appropriate remedy or is there another
remedy available? Justify your chosen remedy and
outline the appropriate steps to take. (2013 BAR)
A: YES. An application for bail is an appropriate remedy to
secure provisional remedy of the 14-year old boy. Under the
Rules, bail is a matter of right before or even after conviction
before the MTC which has jurisdiction over the crime of
malicious mischief. (Sec. 4, Rule 114, ROC, as amended) As
such, bail can be posted as a matter of right.
Q: A was charged with a non-bailable offense. At the
time when the warrant of arrest was issued, he was
confined in the hospital and could not obtain a valid
clearance to leave the hospital. He filed a petition for
bail saying therein that he be considered as having
placed himself under the jurisdiction of the court. May
the court entertain his petition? Why or why not? (2012
BAR)
A: YES, a person is deemed to be under the custody of the
law either when he has been arrested or has surrendered
himself to the jurisdiction of the court. The accused who is
confined in a hospital may be deemed to be in the custody
of the law if he clearly communicates his submission to the
court while he is confined in a hospital. (Paderanga v. Court
of Appeals, G.R. No. 115407, 28 Aug. 1995)
Q: After Alma had started serving her sentence for
violation of Batas Pambansa Blg. 22 (BP 22), she filed a
petition for writ of habeas corpus, citing Vaca v. CA
where the sentence of imprisonment of a party found
guilty of violation of BP 22 was reduced to a fine equal
to double the amount of the check involved. She prayed
that her sentence be similarly modified and that she be
immediately released from detention. In the
alternative, she prayed that pending determination on
whether the Vaca ruling applies to her, she be allowed
to post bail pursuant to Rule 102, Sec. 14, which
provides that if a person is lawfully imprisoned or
restrained on a charge of having committed an offense
not punishable by death, he may be admitted to bail in
the discretion of the court. Accordingly, the trial court
allowed Alma to post bail and then ordered her release.
In your opinion, is the order of the trial court correct?
(2008 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Under the Rules of Criminal Procedure?
A NO. The trial court’s order releasing Alma on bail even
after judgment against her has become final and in fact she
has started serving sentence, is a brazen disregard of the
mandate in Section 24, Rule 114 that: “in no case shall bail
be allowed after the accused has commenced to serve
sentence.” (People v. Fitzgerald, G.R. No. 149723, 27 Oct.
2006)
Q: RP and State XX have a subsisting Extradition Treaty.
Pursuant thereto RP’s Secretary of Justice (SoJ) filed a
Petition for Extradition before the MM RTC alleging that
Juan Kwan is the subject of an arrest warrant duly
issued by the proper criminal court of State XX in
connection with a criminal case for tax evasion and
fraud before his return to RP as a balikbayan. Petitioner
prays that Juan be extradited and delivered to the
proper authorities of State XX for trial, and that to
prevent Juan’s flight in the interim, a warrant for his
immediate arrest be issued. Before the RTC could act on
the petition for extradition, Juan filed before it an
urgent motion, in sum praying (1) that SoJ’s application
for an arrest warrant be set for hearing and (2) that
Juan be allowed to post bail in the event the court would
issue an arrest warrant. Should the court grant or deny
Juan’s prayer? Reason. (2004 BAR)
A: The Court should grant Juan’s prayer. An extradition
proceeding, while ostensibly administrative, bears all
earmarks of a criminal process. However, while our
extradition law does not provide for the grant of bail to an
extraditee, there is no provision prohibiting him or her from
filing a motion for bail, a right to due process under the
Constitution.
NOTE: In light of the recent developments in international
law, where emphasis is given to the worth of the individual
and the sanctity of human rights, an extraditee may be
allowed to post bail. (Government of Hong Kong Special
Administrative Region v. Olalia, G.R. No. 153675, 19 Apr.
2007)
Q: If an information was filed in the RTC-Manila
charging D with homicide and he was arrested in
Quezon City, in what court or courts may he apply for
bail? Explain. (2002 BAR)
A: D may apply for bail in the RTC-Manila where the
information was filed or in the RTC-Quezon City where he
was arrested, or if no judge, thereof is available, with any
metropolitan trial judge, municipal trial judge or municipal
circuit trial judge therein. (Sec. 17, Rule 114, ROC, as
amended)
Q: D was charged with murder, a capital offense. After
arraignment, he applied for bail. The trial court
ordered the prosecution to present its evidence in full
on the ground that only on the basis of such
presentation could it determine whether the evidence
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
of D’s guilt was strong for purposes of bail. Is the ruling
correct? Why? (2002 BAR)
A: NO, the prosecution is only required to present as much
evidence as is necessary to determine whether the evidence
of D’s guilt is strong for purposes of bail. (Sec. 8, Rule 114,
ROC, as amended)
Q: In an information charging them of Murder,
policemen A, B, and C were convicted of Homicide. A
appealed from the decision but B and C did not. B
started serving his sentence, but C escaped and is at
large. In the Court of Appeals, A applied for bail but was
denied. Finally, the Court of Appeals rendered a
decision acquitting A on the ground that the evidence
pointed to the NPA as the killers of the victim. (1998
BAR)
(a) Was the Court of Appeal’s denial of A’s application
for bail proper?
A: YES, the Court of Appeals properly denied A’s application
for bail. The court had the discretion to do so. An appellant
who, though convicted of an offense not punishable by
death, reclusion perpetua or life imprisonment, was
nevertheless originally charged with a capital offense can
hardly be unmindful of the fact that, in the ordinary course
of things, there is a substantial likelihood of his conviction
(and the corresponding penalty) being affirmed on appeal,
or worse, the not insignificant possibility and infinitely
more unpleasant prospect of instead being found guilty of
the capital offense originally charged. (Obosa v. Court of
Appeals, G.R. No. 114350, 16 Jan. 1997)
(b) Can B and C be benefited by the decision of the
Court of Appeals?
A: B, who did not appeal, can be benefited by the decision of
the Court of Appeals which is favorable and applicable to
him. (Sec. 11[a], Rule 122, ROC, as amended) On the other
hand, the benefit will also apply to C even if his appeal is
dismissed because of his escape. (UPLC Suggested Answers)
G. ARRAIGNMENT AND PLEA
(RULE 116)
(2022, 2019, 2002 BAR)
1. SEARCHING INQUIRY
2. IMPROVIDENT PLEA
(2022, 2019, 2002 BAR)
Q: Mr. W was charged with raping his neighbor's
seventeen (17)-year old daughter, AAA. When he was
arraigned, Mr. W expressed his desire to plead "guilty,"
provided that his sentence be substantially reduced.
Both AAA's mother and the prosecutor were amenable
to the proposal. Consequently, the judge entered a plea
94
 QuAMTO (1987-2022)
of guilty for Mr. W and sentenced him to serve a reduced
straight penalty of only ten (10) years of imprisonment,
as agreed upon. (2019 BAR)
(a) Did the judge properly enter a plea of guilty for Mr.
W? Explain.
A: NO. The act of Mr. W is a conditional plea, meaning,
subject to the condition that he be punished to a certain
penalty. In that case, the trial court should have vacated
such a plea and entered a plea of not guilty for a conditional
plea of guilty, or one subject to the proviso that a certain
penalty be imposed upon him. A conditional plea of guilty is
equivalent to a plea of not guilty and would, therefore,
require a full-blown trial before judgment may be rendered.
(UP BOC 2019 Bar Questions and Suggested Answers)
ALTERNATIVE ANSWER:
NO. Rape is considered as a capital offense being punishable
by reclusion perpetua. Thus, under Section 3, Rule 166 of the
Rules of Court, the Judge is duty bound: (1) to conduct a
searching inquiry into the voluntariness and full
comprehension of the consequences of the plea of guilt; (2)
to require the prosecution to still prove the guilt of the
accused and the precise degree of his culpability; and (3) to
inquire whether or not the accused wishes to present
evidence in his behalf and allow him to do so if he desires.
(b) Assuming that Mr. W was once more charged with
the crime of Rape committed against AAA based on
the same incident, may Mr. W validly invoke the
defense of double jeopardy through a motion to
quash and will such motion prosper? Explain.
A: NO. In effect, the judgment rendered by the trial court
against Mr. W which was based on a void plea bargaining is
also void ab initio and cannot be considered to have
attained finality for the simple reason that a void judgment
has no legality from its inception. Thus, since the judgment
of conviction rendered against Mr. W was void, double
jeopardy will not lie. (UP BOC 2019 Bar Questions and
Suggested Answers)
Q: D was charged with theft of an article worth
P15,000.00. Upon being arraigned, he pleaded not
guilty to the offense charged. Thereafter, before trial
commenced, he asked the court to allow him to change
his plea of not guilty to a plea of guilty but only to estafa
involving P5,000.00. Can the court allow D to change his
plea? Why? (2002 BAR)
A: NO, because a plea of guilty to a lesser offense may be
allowed if the lesser offense is necessarily included in the
offense charged. (Sec. 2, Rule 116, ROC, as amended) Estafa
involving P5,000.00 is not necessarily included in theft of an
article worth P15,000.00
Q: Cain was indicted under an Information charging
him with the crime of Murder. He was caught by the
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police in flagrant delicto as the incident happened in a
public place with many witnesses present. Videos of the
incident were also posted online which the judge was
able to watch.
During his arraignment, Cain pleaded guilty to the
crime charged. The Regional Trial Court (RTC) accepted
the plea because it was made voluntarily and with full
understanding of the consequences. The RTC directed
the prosecution to present evidence to prove Cain's
guilt. However, the prosecution failed to present any
evidence during the scheduled hearings. The RTC then
ruled and found Cain guilty beyond reasonable doubt
based solely on his plea of guilt.
Was Cain’s conviction proper? Explain briefly. (2022
BAR)
A: NO. Cain's conviction for murder was not proper. Under
the Rules of Criminal Procedure, in case the accused pleads
guilty to a capital offense, the court shall still require the
prosecution to prove his guilt and the precise degree of
culpability. (Sec. 3, Rule 116, ROC, as amended) Here, the
accused pleaded guilty to murder, which the Supreme Court
has held to be a capital offense since the death penalty was
not expunged from the Revised Penal Code but merely
prohibited from being imposed. The prosecution failed to
prove the accused Cain’s guilt since it did not present any
evidence. Hence, Cain’s conviction for murder was not
proper. (People v. Pagal, G.R. No. 241257, 29 Sept. 2020;
Riguera, 2023)
H. MOTION TO QUASH
(RULE 117)
(2022, 2019, 2017, 2016, 2015, 2014, 2009, 2005,
2004, 2003, 2002, 2000, 1998 BAR)
1. GROUNDS
(2022, 2016, 2015, 2009, 2005, 2000, 1998 BAR)
Q: Give two (2) grounds to quash an Information. (1998
BAR)
A: Two grounds to quash an Information are:
1. That the facts charged do not constitute an offense;
and
2. That the court trying the case has no jurisdiction
over the offense charged or the person of the
accused.
NOTE: The other grounds are:
3. That the officer who filed the Information had no
authority to do so;
4. That it does not conform substantially to the
prescribed form;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
5. That more than one offense Is charged except in
those cases in which existing laws prescribe a
single punishment for various offenses;
6. That the criminal action or liability has been
extinguished;
7. That it contains averments which. If true, would
constitute a legal excuse or Justification; and
8. That the accused has been previously convicted or
In jeopardy of being convicted, or acquitted of the
offense charged. (Sec. 3, Rule 117, ROC, as amended)
Q: An Information for Murder was filed against the
accused Demo and Onyok. It reads:
“That on or about the 9th day of March 2008, in the City
of Las Piñas, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused,
conspiring and confederating together and both of
them mutually helping and aiding each other, without
justifiable motive, with intent to kill and with treachery
and abuse of superior strength, did then and there
knowingly, unlawfully and feloniously attack, assault
and use personal violence upon one Angel Rosario, by
then and there repeatedly hitting and beating his head
with a baseball bat, thereby inflicting upon the latter
mortal injury which caused his death.
Contrary to law.”
The accused filed a motion to quash on the ground that
the Information does not conform substantially to the
prescribed form. Is the accused correct? Explain briefly.
(2022 BAR)
A: YES. The accused is correct in filing a motion to quash on
the ground that the Information does not conform
substantially to the prescribed form. The Supreme Court
has held that the failure of the information to specifically
allege facts relative to treachery is a ground for quashal, that
is, that the information does not conform substantially to
the prescribed form.
Here, the information failed to specifically allege facts
relative to treachery; it only alleged treachery but without
specifying how or why there was treachery. Such failure
meant that the information did not conform substantially to
the prescribed form. Hence, the accused is correct in
alleging that the information does not conform
substantially to the prescribed form. (People v. Solar, G.R.
No. 216056, 06 Aug. 2019; Riguera 2023)
Q: If the Information is not accompanied by a
certification that a preliminary investigation has been
conducted. Is the Information void? (1998 BAR)
A: NO. The certification which is provided in Sec. 4, Rule
112, Rules of Criminal Procedure, is not an indispensable
part of the information. (People v. Lapura, G.R. No. 94494, 15
Mar. 1996)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
Q: A criminal information is filed in court charging
Anselmo with homicide. Anselmo files a motion to
quash the information on the ground that no
preliminary investigation was conducted. Will the
motion be granted? Why or why not? (2009 BAR)
A: NO, the motion to quash will not be granted. The lack of
preliminary investigation is not a ground for a motion to
quash. Preliminary investigation is only a statutory right
and can be waived. The accused should instead file a motion
for reinvestigation within five (5) days after he learn of the
filing in Court of the case against him. (Sec. 6, Rule 112, ROC,
as amended)
Q: The Information against Roger Alindogan for the
crime of acts of lasciviousness under Art. 336 of the
Revised Penal Code avers:
“That on or about 10:30 o’ clock in the evening of
February 1, 2010 at Barangay Matalaba, Imus, Cavite
and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd and unchaste design,
through force and intimidation, did then and there,
wilfully, unlawfully and feloniously commit sexual
abuse on his daughter, Rose Domingo, a minor of 11
years old, either by raping her or committing acts of
lasciviousness on her, against her will and consent to
her damage and prejudice.
ACTS CONTRARY TO LAW.”
The accused wants to have the case dismissed because
he believes that the charge is confusing and the
information is defective. What ground or grounds can
he raise in moving for the quashal of the information?
Explain. (2016 BAR)
A: The accused may move to quash the information based
on any of the following grounds: (a) That the facts charged
do not constitute an offense; (b) That it does not conform
substantially to the prescribed form; and (c) That more that
one offense is charged except when a single punishment for
various offenses is prescribed by law. (Sec. 3, Rule 117, ROC,
as amended)
In People v. Dela Cruz (G.R. Nos. 135554-56, 21 June 2002),
the Supreme Court ruled that the phrase “by either raping
her or committing acts of lasciviousness” does not
constitute an offense since it does not cite which among the
numerous sections or subsections of R.A. No. 7610 has been
violated by accused-appellant. Moreover, it does not state
the acts and omissions constituting the offense, or any
special or aggravating circumstances attending the same, as
required under the rules of criminal procedure.
Q: Paz was awakened by a commotion coming from a
condo unit next to hers. Alarmed, she called up the
nearby police station. PO1 Remus and P02 Romulus
proceeded to the condo unit identified by Paz. PO 1
Remus knocked at the door and when a man opened the
96
 QuAMTO (1987-2022)
door, PO1 Remus and his companions introduced
themselves as police officers. The man readily
identified himself as Oasis Jung and gestured to them to
come in. Inside, the police officers saw a young lady
with her nose bleeding and face swollen. Asked by P02
Romulus what happened, the lady responded that she
was beaten up by Oasis Jung. The police officers
arrested Oasis Jung and brought him and the young lady
back to the police station. PO1 Remus took the young
lady's statement who identified herself as AA. She
narrated that she is a sixteen-year-old high school
student; that previous to the incident, she had sexual
intercourse with Oasis Jung at least five times on
different occasions and she was paid P5,000.00 each
time and it was the first time that Oasis Jung physically
hurt her. P02 Romulus detained Oasis Jung at the
station's jail. After the inquest proceeding, the public
prosecutor filed an information for Violation of R.A. No.
9262 (The VAWC Law) for physical violence and five
separate information for violation of R.A. No. 7610 (The
Child Abuse Law). Oasis Jung's lawyer filed a motion to
be admitted to bail but the court issued an order that
approval of his bail bond shall be made only after his
arraignment.
Before arraignment, Oasis Jung's lawyer moved to
quash the other four separate information for violation
of the child abuse law invoking the single larceny rule.
Should the motion to quash be granted? (2015 BAR)
A: NO. The court should not grant the motion to quash,
because the “single larceny rule” does not find application
where the charges involve violations of R.A. 9262 (The
VAWC Law) and R.A. 7610 (The Child Abuse Law),
considering that each criminal act is based on a different
criminal impulse and intent.
In Santiago v. Garchitorena, (G.R. No. 109266, 2 Dec. 1993),
the Supreme Court explained that the “Single Larceny
doctrine” applies only to criminal crimes committed delicto
continuado, which exists if there should be plurality of acts
performed during a period of time; unity of penal provision
violated; and unity of criminal intent or purpose, which
means that two or more violations of the same penal
provisions are united in one and same instant or resolution
leading to the perpetration of the same criminal purpose or
aim.
Q: Pedrito and Tomas, Mayor and Treasurer,
respectively, of the Municipality of San Miguel, Leyte,
are charged before the Sandiganbayan for violation of
Section 3 (e), Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act). The information alleges, among
others, that the two conspired in the purchase of
several units of computer through personal canvass
instead of a public bidding, causing undue injury to the
municipality. Before arraignment, the accused moved
for reinvestigation of the charge, which the court
granted. After reinvestigation, the Office of the Special
Prosecutor filed an amended information duly signed
97
and approved by the Special Prosecutor, alleging the
same delictual facts, but with an additional allegation
that the accused gave unwarranted benefits to SB
Enterprises owned by Samuel. Samuel was also indicted
under the amended information. Before Samuel was
arraigned, he moved to quash the amended
information on the ground that the officer who filed the
same had no authority to do so. Resolve the motion to
quash with reasons. (2009 BAR)
A: The motion to quash filed Samuel should be granted.
Under R.A. No. 6770, also known as the Ombudsman Act of
1989, the Special Prosecutor has the power and authority,
under the supervision and control of the Ombudsman, to
conduct preliminary investigation and prosecute criminal
cases before the Sandiganbayan and perform such other
duties assigned to him by the Ombudsman. (Calingin v.
Desierto, G.R. Nos. 145743-89, 10 Aug. 2007)
Absent a clear delegation of authority from the Ombudsman
to the Special Prosecutor to file the information, the latter
would have no authority to file the same. The Special
Prosecutor cannot be considered an alter ego of the
Ombudsman as the doctrine of qualified political agency
does not apply to the Office of the Ombudsman. (Perez v.
Sandiganbayan, G.R. No. 166062, 26 Sept. 2006).
Q: Rodolfo is charged with possession of unlicensed
firearms in an Information filed in the RTC. It was
alleged therein that Rodolfo was in possession of two
unlicensed firearms: a .45 calibre and a .32 calibre.
Under Republic Act No. 8294, possession of an
unlicensed .45 calibre gun is punishable by prision
mayor in its minimum period and a fine of P30,000.00,
while possession of an unlicensed .32 calibre gun is
punishable by prision correccional in its maximum
period and a fine of not less than P15,000.00. As counsel
of the accused, you intend to file a motion to quash the
Information. What ground or grounds should you
invoke? Explain. (2005 BAR)
A: The ground for the motion to quash is that more than one
offense is charged in the information. (Sec. 3(f), Rule 117,
ROC, as amended) Likewise, the RTC has no jurisdiction over
the second offense of possession of an unlicensed .32 calibre
gun, punishable by prision correccional in its maximum
period and a fine of not less than P15,000.00. It is the MTC
that has exclusive and original jurisdiction over all offenses
punishable by imprisonment not exceeding six years. (B.P.
Blg. 129, as amended by R.A. No. 7691)
Q: BC is charged with illegal possession of firearms
under an Information signed by a Provincial
Prosecutor. After arraignment but before pre-trial, BC
found out that the Provincial Prosecutor had no
authority to sign the information as it was the City
Prosecutor who has such authority. During the pre-
trial, BC moves that the case against him be dismissed
on the ground that the Information is defective because
the officer signing it lacked the authority to do so. The
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Provincial Prosecutor opposes the motion on the and a plea of guilty should have been entered for him by the
ground of estoppel as BC did not move to quash the court, which however was not done. Since there was no
Information before arraignment. If you are counsel for standing plea, a first jeopardy did not attach and thus the
BC, what is your argument to refute the opposition of Prosecution may assail the acquittal without infringing
the Provincial Prosecutor? (2000 BAR) upon Juancho’s right against double jeopardy. (People v.
Balisacan, G.R. No 26376, 31 Aug. 1966)
A: I would argue that since the Provincial Prosecutor had no
authority to file the information, the court did not acquire Q: McJolly is a trouble-maker of sorts, always getting
jurisdiction over the person of the accused and over the into brushes with the law. In one incident, he drove his
subject matter of the offense charged (Cudia v. Court of Humvee recklessly, hitting a pedicab which sent its
Appeals, G.R. No. 110315, 16 Jan. 1998). Hence, this ground driver and passengers in different directions. The
is not waived if not raised in a motion to quash and could be pedicab driver died, while two (2) of the passenger
raised at the pre-trial. (Sec. 9, Rule 117, ROC, as amended) suffered slight physical injuries. Two (2) Informations
were then filed against McJolly. One, for Reckless
2. DOUBLE JEOPARDY Imprudence Resulting in Homicide and Damage to
(2019, 2017, 2014, 2005, 2004, 2002 BAR) Property, and two, for Reckless Imprudence Resulting
in Slight Physical Injures. The latter case was scheduled
for arraignment earlier, on which occasion McJolly
Q: In an Information filed before the Regional Trial
immediately pleaded guilty. He was meted out the
Court (RTC), Mr. C was charged with Carnapping for
penalty of public censure. A month later, the case for
supposedly taking the motorcycle of Mr. O and
reckless imprudence resulting on homicide was also set
joyriding with it around the city. When Mr. C was
for arraignment. Instead of pleading, McJolly
arraigned, he entered a plea of "not guilty" to the
interposed the defense of double jeopardy. Resolve.
charge. After the prosecution rested its case, Mr. C
(2014 BAR)
proceeded to file a demurrer to evidence. The
demurrer was denied by the RTC.
A: McJolly correctly interposed the defense of double
jeopardy. Reckless imprudence under Article 365 is a quasi-
Assuming that the demurrer was granted by the RTC
offense by itself and not merely a means to commit other
and the prosecution's motion for reconsideration
crimes, such that conviction or acquittal of such quasi-
thereto is denied, what is the prosecution's further
offense already bars subsequent prosecution for the same
procedural recourse? Explain. (2019 BAR)
quasi-offense, regardless of its various resulting acts. (Ivler
v. Modesto-San Pedro, G.R. No. 172716, 17 Nov. 2010)
A: The prosecution has no more further remedy. If a
demurrer to evidence is granted, it is equivalent to acquittal
Q: For the multiple stab wounds sustained by the victim,
and thus, final and unappealable. To allow the prosecution
Noel was charged with frustrated homicide in the RTC.
to appeal would place the accused in double jeopardy.
Upon arraignment, he entered a plea of guilty to said
(Macapagal-Arroyo v. People, G.R. No. 220598, 18 Apr. 2017)
crime. Neither the court nor the prosecution was aware
that the victim had died two days earlier on account of
Q: Juancho entered a plea of guilty when he was
his stab wounds. Because of his guilty plea, Noel was
arraigned under an information for homicide. To
convicted of frustrated homicide and meted the
determine the penalty to be imposed, the trial court
corresponding penalty. When the prosecution learned
allowed Juancho to present evidence proving any
of the victim’s death, it filed within 15 days therefrom a
mitigating circumstance in his favor. Juancho was able
motion to amend the information to upgrade the charge
to establish complete self-defense. Convinced by the
from frustrated homicide to consummated homicide.
evidence adduced by Juancho, the trial court rendered
Noel opposed the motion claiming that the admission of
a verdict of acquittal. May the Prosecution assail the
the amended information would place him in double
acquittal without infringing the constitutional
jeopardy. Resolve the motion with reasons. (2005 BAR)
guarantee against double jeopardy in favor of Juancho?
Explain your answer. (2017 BAR)
A: The amended information to consummated homicide
from frustrated homicide does not place the accused in
A: Yes, the Prosecution may assail the acquittal without
double jeopardy. As provided in the second paragraph of
infringing upon the constitutional guarantee against double
Sec. 7, Rule 117, the conviction of the accused shall not be a
jeopardy. Under the Rules of Criminal Procedure, a
bar to another prosecution for an offense which necessarily
requirement for a first jeopardy to attach is that there must
includes the offense charged in the former complaint or
have been a valid plea by the accused. Said rules also
information when: a) the graver offense developed due to
provide that when the accused pleads guilty but presents
supervening facts arising from the same act or omission
exculpatory evidence, his plea shall be deemed withdrawn
constituting the former charge; or b) the facts constituting
and a plea of guilty shall be entered for him. Here Juancho’s
the graver charge became known or were discovered only
plea of guilty was deemed withdrawn when he presented
after a plea was entered in the former complain or
exculpatory evidence to the effect that he acted in self-
information. Here, when the plea to frustrated homicide
defense. Hence his plea of guilty was deemed withdrawn

UNIVERSITY OF SANTO TOMAS 98

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
was made, neither the court nor the prosecution was aware ground that its filing had placed him in double
that the victim had died two days earlier on account of his jeopardy. How should D’s motion to quash be resolved?
stab wounds. (2002 BAR)

Q: SPO1 CNC filed with the MTC in Quezon City (MeTC- A: D’s motion to quash should be granted on the ground of
QC) a sworn written statement duly subscribed by him, double jeopardy because the first offense charged is
charging RGR (an actual resident of Cebu City) with the necessarily included in the second offense charged.
offense of slight physical injuries allegedly inflicted on (Draculan v. Donato, G.R. No. L-44079, 19 Dec. 1985)
SPS (an actual resident of Quezon City). The judge of the
branch to which the case was raffled thereupon issued 3. PROVISIONAL DISMISSAL
an order declaring that the case shall be governed by (2003, 2002 BAR)
the Rule on Summary Procedure in Criminal cases. Soon
thereafter, the Judge ordered the dismissal of the case
Q: Before the arraignment for the crime of murder, the
for the reason that it was not commenced by
private complainant executed an Affidavit of
information, as required by said Rule. Sometime later,
Desistance stating that she was not sure if the accused
based on the same facts giving rise to the slight physical
was the man who killed her husband. The public
injuries case, the City Prosecutor filed with the same
prosecutor filed a Motion to Quash the Information on
MeTC-QC an information for attempted homicide
the ground that with private complainant’s desistance,
against the same RGR. In due time, before arraignment,
he did not have evidence sufficient to convict the
RGR moved to quash the information on the ground of
accused. On 02 January 2001, the court without further
double jeopardy and after due hearing, the Judge
proceedings granted the motion and provisionally
granted his motion. (2004 BAR)
dismissed the case. The accused gave his express
consent to the provisional dismissal of the case. The
(a) Was the dismissal of the complaint for slight
offended party was notified of the dismissal but she
physical injuries proper?
refused to give her consent. Subsequently, the private
complainant urged the public prosecutor to re- file the
A: YES, the dismissal of the complaint for slight physical
murder charge because the accused failed to pay the
injuries is proper because in Metropolitan Manila and in
consideration which he had promised for the execution
chartered cities, the case has to be commenced only by
of the Affidavit of Desistance.
information. (Sec. 11, Revised Rule on Summary Procedure)

The public prosecutor obliged and refiled the murder

(b) Was the grant of the motion to quash the attempted
charge against the accused on 01 February 2003, the
homicide information correct?
accused filed a Motion to Quash the Information on the
ground that the provisional dismissal of the case had
A: NO, the grant of the motion to quash the attempted
already become permanent. (2003 BAR)
homicide information on the ground of double jeopardy
was not correct, because there was no valid prosecution for
(a) Was the provisional dismissal of the case proper?
slight physical injuries.

A: The provisional dismissal of the case was proper because

Q: D was charged with slight physical injuries in the
the accused gave his express consent thereto and the
MTC. He pleaded not guilty and went to trial. After the
offended party was notified. It was not necessary for the
prosecution had presented its evidence, the trial court
offended party to give her consent thereto. (Sec. 8, Rule 117,
set the continuation of the hearing on another date. On
ROC, as amended)
the date scheduled for hearing, the prosecutor failed to
appear, whereupon the court, on motion of D, dismissed
(b) Resolve the Motion to Quash.
the case. A few minutes later, the prosecutor arrived
and opposed the dismissal of the case. The court
A: The motion to quash the information should be denied
reconsidered its order and directed D to present his
because, while the provisional dismissal had already
evidence. Before the next date of trial came, however, D
become permanent, the prescriptive period for filing the
moved that the last order be set aside on the ground
murder charge had not prescribed. There was no double
that the reinstatement of the case had placed him twice
jeopardy because the first case was dismissed before the
in jeopardy. Acceding to this motion, the court again
accused had pleaded to the charge. (Sec. 7, Rule 117, ROC, as
dismissed the case. The prosecutor then filed an
amended)
Information in the RTC, charging D with direct assault
based on the same facts alleged in the information for
Q: In a prosecution for robbery against D, the
slight physical injuries but with the added allegation
prosecutor moved for the postponement of the first
that D inflicted the injuries out of resentment for what
scheduled hearing on the ground that he had lost his
the complainant had done in the performance of his
records of the case. The court granted the motion but,
duties as chairman of the board of election inspectors.
when the new date of trial arrived, the prosecutor,
D moved to quash the second information on the
alleging that he could not locate his witnesses, moved

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FACULTY OF CIVIL LAW
 REMEDIAL LAW
for the dismissal of the case. If D’s counsel does not
object, may the court grant the motion of the
prosecutor? Why? (2002 BAR)
A: NO, because a case cannot be provisionally dismissed
except upon the express consent of the accused and with
notice to the offended party. (Sec. 8, Rule 117, ROC, as
amended)
I. PRE-TRIAL
(RULE 118)
(2008, 2004, 2000 BAR)
Q: Lilio filed a complaint in the MTC of Lanuza for the
recovery of a sum of money against Juan. The latter filed
his answer to the complaint serving a copy thereof on
Lilio. After the filing of the answer of Juan, whose duty
is it to have the case set for pre-trial? Why? (2001 BAR)
“Defense admitted all the documentary evidence of the
Prosecution,” thus leaving the accused little or no room
to defend himself, and violating his right against self-
incrimination. Should the court grant or deny QR’s
motion? Reason. (2004 BAR)
A: The court should deny QR’s motion. If in the pre-trial
agreement signed by the accused and his counsel, the
accused admits the documentary evidence of the
prosecution, it does not violate his right against self-
incrimination. His lawyer cannot file a motion to withdraw.
A pre-trial order is not needed. (Bayas v. Sandiganbayan,
G.R. Nos. 143689-91, 12 Nov. 2002) The admission of such
documentary evidence is allowed by the rule. (Sec. 2, Rule
118; People v. Hernandez, G.R. No. 108028, 30 July 1996)
2. NON-APPEARANCE DURING PRE-TRIAL
3. PRE-TRIAL ORDER

A: After the filing of the answer of Juan, the plantiff has the
duty to promptly move ex parte that the case be set for pre-
trial. (Sec. 1, Rule 18, ROC, as amended) The reason is that it J. TRIAL
is the plaintiff who knows when the last pleading has been (RULE 119)
filed and it is the plaintiff who has the duty to prosecute. (2019, 2015, 2013, 2010, 2009, 2006, 2004, 2001,
1998, 1997 BAR)

1. PRE-TRIAL AGREEMENT
(2008, 2004 BAR)
Q: If an accused who was sentenced to death escapes, is
there still a legal necessity for the Supreme Court to
Q: Bembol was charged with rape. Bembol’s father,
review the decision of conviction? (1998 BAR)
Ramil, approached Artemon, the victim’s father, during
the preliminary investigation and offered P1 Million to
A: Yes. There is still a legal necessity for the Supreme Court
Artemon to settle the case. Artemon refused the offer.
to review the decision of conviction sentencing the accused
to death, because he is entitled to an automatic review of the
During the pre-trial, Bembol personally offered to
death sentence. (Secs. 3(e) and 10, Rule 122; People v.
settle the case for P1 Million to the private prosecutor,
Esparas, G.R. No. 120034, 20 Aug. 1996)
who immediately put the offer on record in the
presence of the trial judge. Is Bembol’s offer a judicial
Q: At the Public Attorney's Office station in Taguig
admission of his guilt? (2008 BAR)
where you are assigned, your work requires you to act
as public defender at the local Regional Trial Court and
A: NO. The offer is not a judicial admission of guilt because
to handle cases involving indigents. (2013 BAR)
it has not been reduced in writing or signed by the accused.
The Rule on pre-trial in criminal cases (Sec. 2, Rule 118, Sec.
(a) In one criminal action for qualified theft where you
2, ROC, as amended) requires that all agreements or
are the defense attorney, you learned that the
admissions made or entered during the pre-trial conference
woman accused has been in detention for six
shall be reduced in writing and signed by the accused and
months, yet she has not been to a courtroom nor
counsel, otherwise, they cannot be used against the accused.
seen a judge. What remedy would you undertake to
address the situation and what forum would you
Q: Mayor TM was charged of malversation through
use to invoke this relief?
falsification of official documents. Assisted by Atty. OP
A: Sec. 7, Rule 119 provides, if the public attorney assigned
as counsel de parte during pre-trial, he signed together
to defend a person charged with a crime knows that the
with Ombudsman Prosecutor TG a “Joint Stipulation of
latter is preventively detained, either because he is charged
Facts and Documents,” which was presented to the
with bailable crime but has no means to post bail, or is
Sandiganbayan. Before the court could issue a pre-trial
charge with a non-bailable crime, or, is serving a term of
order but after some delay caused by Atty. OP, he was
imprisonment in any penal institution, it shall be his duty to
substituted by Atty. QR as defense counsel. Atty QR
do the following:
forthwith filed a motion to withdraw the “Joint
Stipulation,” alleging that it is prejudicial to the accused
a. Shall promptly undertake to obtain the presence of
because it contains, inter alia, the statement that the
the prisoner for trial or cause a notice to be served

UNIVERSITY OF SANTO TOMAS 100

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
on the person having custody of the prisoner 1. TRIAL IN ABSENTIA
requiring such person to so advise the prisoner of (2010, 1998, 1997 BAR)
his right to demand trial.

Q: Enumerate the requisites of a “trial in absentia” and

b. Upon receipt of that notice, the custodian of the
a “promulgation of judgment in absentia” (2010, 1998,
prisoner shall promptly advise the prisoner of the
1997 BAR)
charge and of his right to demand trial. If at anytime
thereafter the prisoner informs his custodian that
A: The requisites of a valid trial in absentia are: (1)
he demands such trial, the latter shall cause notice
accused's arraignment; (2) his due notification of the trial;
to that effect to send promptly to the public
and (3) his unjustifiable failure to appear during trial.
attorney.
(Bemardo v. People, G.R. No. 166980, 04 Apr. 2007)

Moreover, Section 1 (e), Rule 116 provides, when the

The requisites for a valid promulgation of judgment in
accused is under preventive detention, his case shall be
absentia are:
raffled and its records transmitted to the judge to whom the
case was raffled within three (3) days from the filing of the
a. A valid notice of promulgation of judgment,
information or complaint. The accused shall be arraigned
b. Said notice was duly furnished to the accused,
within ten (10) days from the date of the raffle. The pre-trial
personally or thru counsel;
conference of his case shall be held within ten (10) days
c. Accused failed to appear on the scheduled date of
after arraignment.
promulgation of judgment despite due notice;
On the other hand, if the accused is not under preventive
d. Such judgment be recorded in the criminal docket;
detention, the arraignment shall be held within thirty (30)
and
days from the date the court acquires jurisdiction over the
e. Copy of said judgment had been duly served upon the
person of the accused. (Sec. 1 [g], Rule116, ROC, as amended)
accused or his counsel

Since the accused has not been brought for arraignment

within the limit required in the aforementioned Rule, the 2. EXAMINATION OF WITNESS FOR THE PROSECUTION
Information may be dismissed upon motion of the accused
invoking his right to speedy trial (Sec. 9, Rule 119, ROC, as 3. REQUISITES FOR DISCHARGE OF ACCUSED
amended) or to a speedy disposition of cases. (Sec. 16, Art. TO BECOME A STATE WITNESS
III, 1987 Constitution) (2006 BAR)

(b) In another case, also for qualified theft, the

Q: As counsel of an accused charged with homicide, you
detained young domestic helper has been brought
are convinced that he can be utilized as a state witness.
to court five times in the last six months, but the
What procedure will you take? (2006 BAR)
prosecution has yet to commence the presentation
of its evidence. You find that the reason for this is
A: As counsel for the accused, I will advise my client to ask
the continued absence of the employer-
for a reinvestigation and convince the prosecutor for him to
complainant who is working overseas. What
move for the discharge of my client as a state witness, or the
remedy is appropriate and before which forum
accused can apply as a state witness with the Department of
would you invoke this relief?
Justice pursuant to R.A. No. 6981, otherwise known as The
Witness Protection, Security and Benefit Act. The right to
A: I will file a motion to dismiss the information in the court
prosecute vests the prosecutor with a wide range of
where the case is pending on the ground of denial of the
discretion, including what and whom to charge. (Soberano
accused right to speedy trial. (Sec. 9, Rule 119, ROC, as
v. People, G.R. No. 154629, 05 Oct. 2005)
amended; Tan v. People, G.R. No. 173637, 21 Apr. 2009)

This remedy can be invoked, at any time, before trial and if 4. EFFECTS OF DISCHARGE OF ACCUSED
granted will result to an acquittal. Since the accused has AS STATE WITNESS
been brought to Court five times and in each instance it was
postponed, it is clear that her right to a speedy trial has been 5. DEMURRER TO EVIDENCE
violated. Moreover, I may request the court to issue (2019, 2015, 2009, 2004, 2001, 1998 BAR)
subpoena duces tecum and ad testificandum to the witness,
so in case he disobeys same, he may be cited in contempt. I
Q: In an Information filed before the RTC, Mr. C was
may also file a motion to order the witness employer-
charged with Carnapping for supposedly taking the
complainant to post bail to secure his appearance in court.
motorcycle of Mr. O and joyriding with it around the
(Sec. 14, Rule 119, ROC, as amended) I can also move for
city. When Mr. C was arraigned, he entered a plea of “not
provisional dismissal of the case. (Sec. 8, Rule 117, ROC, as
guilty” to the charge. After the prosecution rested its
amended)
case, Mr. C proceeded to file a demurrer to evidence.
The demurrer was denied by the RTC. (2019 BAR)

101 UNIVERSITY OF SANTO TOMAS

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 REMEDIAL LAW
(a) Would Mr. C be allowed to present evidence in his
defense after the denial of his demurrer? Explain.
A: NO, the accused can no longer present evidence in the
absence of any showing that his demurrer to evidence is
with leave of court.
Rule 119, Sec. 23 of the Rules of Court provides that if the
court denies a demurrer to evidence without leave of court,
the accused waives the right to present evidence and
submts the case for judgment on the basis of the evidence
for the prosecution.
(b) Assuming that the demurrer was granted by the
RTC and the prosecution’s motion for
reconsideration thereto is denied, what is the
prosecution’s further procedural recourse?
Explain. (2019 BAR)
A: The prosecution’s remedy is to file a petition for
certiorari under Rule 65 because the grant of a demurrer to
evidence in criminal cases constitutes acquittal.
Jurisprudence provides that a judgment of acquittal may
only be assailed via petition for certiorari under Rule 65 of
the Rules of Court. (Villareal v. Aliga, G.R. No. 166995, 13 Jan.
2014)
Q: In an Information filed before the Regional Trial
Court (RTC), Mr. C was charged with Carnapping for
supposedly taking the motorcycle of Mr. O and
joyriding with it around the city. When Mr. C was
arraigned, he entered a plea of "not guilty" to the
charge. After the prosecution rested its case, Mr. C
proceeded to file a demurrer to evidence. The
demurrer was denied by the RTC.
Would Mr. C be allowed to present evidence in his
defense after the denial of his demurrer? Explain.
(2019 BAR)
A: NO, accused can no longer present evidence in the
absence of a showing that his demurrer to evidence is with
leave of court.
Under Section 23, Rule 119, the right of Mr. C to present
evidence is forfeited. When the demurrer to evidence is filed
without leave of court, the accused waives the right to
present evidence and submits the case for judgment on the
basis of the evidence for the prosecution.
Q: AA, a twelve-year-old girl, while walking alone met
BB, a teenage boy who befriended her. Later, BB
brought AA to a nearby shanty where he raped her. The
Information for rape filed against BB states:
"On or about October 30, 2015, in the City of S.P. and
within the jurisdiction of this Honorable Court, the
accused, a minor, fifteen (15) years old with lewd
design and by means of force, violence and
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
intimidation, did then and there, willfully, unlawfully
and feloniously had sexual intercourse with AA, a
minor, twelve (12) years old against the latter’s will and
consent."
At the trial, the prosecutor called to the witness stand
AA as his first witness and manifested that he be
allowed to ask leading questions in conducting his
direct examination pursuant to the Rule on the
Examination of a Child Witness. BB's counsel objected
on the ground that the prosecutor has not conducted a
competency examination on the witness, a requirement
before the rule cited can be applied in the case.
After the prosecution had rested its case, BB's counsel
filed with leave a demurrer to evidence, seeking the
dismissal of the case on the ground that the prosecutor
failed to present any evidence on BB's minority as
alleged in the Information. Should the court grant the
demurrer? (2015 BAR)
A: NO, the court should not grant the demurrer. While it was
alleged in the information that BB was a minor at the time
of the commission of the offense, the failure of the
prosecutor to present evidence to prove his minority is not
a basis for the granting of the demurrer, because minority
of the accused is not an element of the crime of rape.
Be that as it may, the Court should not consider minority in
rendering the decision. After all, the failure of the
prosecutor to prove the minority of AA may only affect the
imposable penalty but may not absolve him from criminal
liability.
Q: After the prosecution had rested and made its formal
offer of evidence, with the court admitting all of the
prosecution evidence, the accused filed a demurrer to
evidence with leave of court. The prosecution was
allowed to comment thereon. Thereafter, the court
granted the demurrer, finding that the accused could
not have committed the offense charged. If the
prosecution files a motion for reconsideration on the
ground that the court order granting the demurrer was
not in accord with the law and jurisprudence, will the
motion prosper? Explain your answer. (2009 BAR)
A: NO, the motion will not prosper. With the granting of the
demurrer, the case shall be dismissed and the legal effect is
the acquittal of the accused. A judgment of acquittal is
immediately executory and no appeal can be made
therefrom. Otherwise, the constitutional protection against
double jeopardy would be violated.
Q: The information for illegal possession of firearm
filed against the accused specifically alleged that he had
no license or permit to possess the calibre .45 pistol
mentioned therein. In its evidence-in-chief, the
prosecution established the fact that the subject
firearm was lawfully seized by the police from the
possession of the accused that is, while the pistol was
tucked at his waist in plain view, without the accused
102
 QuAMTO (1987-2022)
being able to present any license or permit to possess legally convict X for Murder?
the firearm. The prosecution on such evidence rested
its case and within a period of five days therefrom, the A: YES. Without any evidence from the accused, the prima
accused filed a demurrer to evidence, in sum facie evidence of the prosecution has been converted to
contending that the prosecution evidence has not proof beyond reasonable doubt.
established the guilt of the accused beyond reasonable
doubt and so prayed that he be acquitted of the offense 6. REVISED GUIDELINES ON CONTINUOUS TRIAL
charged. The trial court denied the demurrer to (A.M. No. 15-06-10-SC)
evidence and deemed the accused as having waived his
right to present evidence and submitted the case for
judgment on the basis of the prosecution evidence. In
due time, the court rendered judgment finding the K. JUDGMENT
accused guilty of the offense charged beyond (RULE 120)
reasonable doubt and accordingly imposing on him the (2014, 2004, 2003, 1997 BAR)
penalty prescribed therefore. Is the judgment of the
trial court valid and proper? Reason. (2004, 2001 BAR)
1. PROMULGATION OF JUDGMENT
A: YES. The judgment of the trial court is valid. The accused (2014, 2004, 2003, 1997 BAR)
did not ask for leave to file the demurrer to evidence. He is
deemed to have waived his right to present evidence. (Sec.
Q: When a criminal case is dismissed on nolle prosequi,
23, Rule 119, ROC, as amended; People v. Flores, G.R. 106581,
can it later be refilled? (2003 BAR)
3 Mar. 1997) However, the judgment is not proper or is
erroneous because there was no showing from the proper
A: As a general rule, when a criminal case is dismissed on
office that the accused has a permit to own or possess the
nolle prosequi before the accused is placed on trial and
firearm, which is fatal to the conviction of the accused.
before he is called on to plead, this is not equivalent to an
(Mallari v. Court of Appeals, G.R. No. 110569, 09 Dec. 1996)
acquittal and does not bar a subsequent prosecution for the
same offense. (Galvez v. Court of Appeals, G.R. No. 114046, 24
Q: Facing a charge of Murder, X filed a petition for bail.
Oct. 1994)
The petition was opposed by the prosecution but after
hearing the court granted bail to X. On the first
Q: Ludong, Balatong, and Labong were charged with
scheduled hearing the merits, the prosecution
murder. After trial, the court announced that the case
manifested that it was not adducing additional
was considered submitted for decision. Subsequently,
evidence and that it was resting its case. X filed a
the Clerk of Court issued the notices of promulgation of
demurrer to evidence without leave of court but it was
judgment which were duly received. On promulgation
denied by the court. (1998 BAR)
day, Ludong and his lawyer appeared. The lawyers of
Balatong and Labong appeared but without their clients
(a) Did the court have the discretion to deny the
and failed to satisfactorily explain their absence when
demurrer to evidence under the circumstances
queried by the court. Thus, the judge ordered that the
mentioned above?
judgment be entered in the criminal docket and copies
be furnished their lawyers. The lawyers of Ludong,
A: YES. The Court had the discretion to deny the demurrer
Balatong, and Labong filed within the reglementary
to the evidence, because although the evidence presented
period of Joint Motion for Reconsideration. The court
by the prosecution at the hearing for bail was not strong,
favorably granted the motion of Ludong downgrading
without any evidence for the defense, it could be sufficient
his conviction from murder to homicide but denied the
for conviction.
motion as regards Balatong and Labong. (2014 BAR)

(b) If the answer to the preceding question is in the

(a) Was the court correct in taking cognizance of the
affirmative can X adduce evidence in his defense
Joint Motion for Reconsideration?
after the denial of his demurrer to evidence?
A: NO. The court is not correct in taking cognizance of the
A: NO. Because he filed the demurrer to the evidence
Joint Motion for Reconsideration. Section 6, Rule 120 of the
without leave. (Sec. 15, Rule 119, ROC, as amended)
Rules of Court provides that if the judgment is for conviction
However, the trial court should inquire as to why the
and the failure of the accused to appear was without
accused filed the demurrer without leave and whether his
justifiable cause, he shall lose the remedies available against
lawyer knew that the effect of filing it without leave is to
the judgment and the court shall order his arrest. Hence, the
waive the presentation of the evidence for the accused.
Court erred when it entertained the Joint Motion for
(People v. Fores, G.R. No. 106581, 3 Mar. 1997)
Reconsideration with respect to accused Balatong and
Labong who were not present during the promulgation of
(c) Without further proceeding and on the sole basis of
the judgment. The Court should have merely considered the
the evidence of the prosecution, can the court
joint motion as a motion for reconsideration that was solely

103 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
filed by Ludong. (People v. De Grano, G.R. No. 167710, June 5,
2009).
(b) Can Balatong and Labong appeal their conviction in
case Ludong accepts his conviction for homicide?
A: NO, Balatong and Labong cannot appeal their conviction
because they lost their right to appeal during the
promulgation of judgment. Nonetheless, if they
surrendered and filed a Motion for Leave to avail of their
post judgment remedies within fifteen (15) days from
promulgation of judgment. And they have proven that their
absence at the scheduled promulgation was for a justifiable
cause, they may be allowed to avail of said remedies within
fifteen (15) days from notice thereof. (People v. De Grano,
G.R. No. 167710, June 5, 2009)
Q: AX was charged before the YY RTC with theft of
jewelry valued at P20,000.00, punishable with
imprisonment of up to 10 years of prison mayor under
the Revised Penal Code. After trial, he was convicted of
the offense charged, notwithstanding that the material
facts duly established during the trial showed that the
offense committed was estafa, punishable by
imprisonment of up to eight years of prision mayor
under the said Code. No appeal having been taken
therefrom, said judgment of conviction became final. Is
the judgment of conviction valid? Is the said judgment
reviewable thru a special civil action for certiorari?
Reason. (2004 BAR)
A: YES, the judgment of conviction for theft upon
Information for theft is valid because the court had
jurisdiction to render judgment. However, the judgment
was grossly and blatantly erroneous. The variance between
the evidence and the judgment of conviction is substantial
since the evidence is one for estafa while the judgment is
one for theft. The elements of the two crimes are not the
same. (Santos v. People, G.R. No. 77429 29 Jan. 1990) Further,
one offense does not necessarily include or is included in
the other. (Sec. 5, Rule 120, ROC, as amended)
The judgment of conviction is reviewable by certiorari even
if no appeal had been taken, because the judge committed a
grave abuse of discretion tantamount to lack or excess of his
jurisdiction in convicting the accused of theft and in
violating due process and his right to be informed of the
nature and the cause of the accusation against him, which
make the judgment void. With the mistake in charging the
proper offense, the judge should have directed the filing of
the proper information and thereafter dismissed the
original information. (Sec. 19, Rule 119, ROC, as amended)
Q: X, the accused in a homicide case before the RTC,
Dagupan City, was personally notified of the
promulgation of judgment in his case set for 10
December 1996. On said date, X was not present as he
had to attend to the trial of another criminal case
against him in Tarlac, Tarlac. The trial court denied the
motion of the counsel of X to postpone the
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
promulgation. Can the trial court also order the arrest
of X? (1997 BAR)
A: NO, the trial court cannot order the arrest of X if the
judgment is one of acquittal and, in any event, his failure to
appear was with justifiable cause since he had to attend to
another criminal case against him.
L. NEW TRIAL OR RECONSIDERATION
(RULE 121)
(2011 BAR)
Q: What is the effect and ramification of an order
allowing new trial?
A. The court’s decision shall be held in suspension
until the defendant could show at the reopening
of trial that it has to be abandoned.
B. The court shall maintain the part of its
judgment that is unaffected and void the rest.
C. The evidence taken upon the former trial, if
material and competent, shall remain in use.
D. The court shall vacate the judgment as well as
the entire proceedings had in the case. (2011
BAR)
A: C. The evidence taken upon the former trial, if material
and competent, shall remain in use. (UST FCL Bar Questions
and Suggested Answers 2009-2017)
M. APPEAL
(RULE 122)
(2022 BAR)
Q: Alex, Bobbie, and Gabbie were charged with the
crime of Murder. Finding them to have acted in
conspiracy, the Regional Trial Court (RTC) convicted
them of Homicide. Only Bobbie appealed the conviction
with the Court of Appeals (CA). Consequently, an entry
of judgment was issued as against Alex and Gabbie.
Subsequently, the CA modified Bobbie's conviction
from Homicide to Murder; In the same judgment, the CA
likewise modified Alex and Gabbie's conviction from
Homicide to Murder.
Upon learning of the CA’s decision, Alex and Gabbie
confronted Bobbie, saying: “Bakit ka pa ba nag-appeal?
Tumaas tuloy ang sentensya namin. Nadamay pa kami!”
Bobbie snapped back: “Bakit parang galit kayo? Pero
bakit kasalanan ko? Parang kasalanan ko?”
Was the CA correct in modifying the judgment as to Alex
and Gabbie? Explain briefly. (2022 BAR)
104
 QuAMTO (1987-2022)
A: NO, the CA was not correct in modifying the judgment as
to Alex and Gabbie by convicting them of murder, too. Under
the Rule of Criminal Procedure, an appeal taken by one or
more of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate court
is favorable and applicable to the latter.
Here, while the judgment of the appellate court or the CA
may have been applicable to Alex and Gabie who did not
appeal, it was not favorable to them since they would be
convicted of a graver offense. Thus, the appeal taken by
Bobbie should not affect Alex and Gabie. Hence, the CA was
not correct in modifying the judgment. (Sec. 11(a), Rule 122,
ROC, as amended; Riguera, 2023)
N. SEARCH AND SEIZURES
(RULE 126)
(2020-21, 2015, 2014, 2012, 2008, 2005 BAR)
Q: A search warrant was issued authorizing the police
to search for and seize: “(a) documents that will show
that the respondent is guilty of swindling and/or estafa;
(b) copies of bounced checks; and (c) all other relevant
matters.”
Is the search warrant valid? Explain briefly. (2020-21
BAR)
A: NO, the search warrant is not valid.
Under the Rules of Criminal Procedure, a search warrant
must issue in connection with only one specific offence and
must particularly describe the thin to be seized. (Sec. 4, Rule
126, Rules of Court)
Here, the warrant was issued in connection with “swindling
and/or estafa,” which is not for one specific offense since
there are many offenses embraced within the phrase
“swindling and/or estafa.” Nor does the search warrant
particularly describe the things to be seized. “Documents
that will show that the respondent is guilty of swindling
and/or estafa” and “all other relevant matters” are
sweeping descriptions which give unfetered discretion to
the officer to seize things and documents. Hence, the search
warrant is not valid. (Riguera, 2022)
Q: Hercules was walking near a police station when a
police officer signalled for him to approach. As soon as
Hercules came near, the police officer frisked him but
the latter found no contraband. The police officer told
Hercules to get inside the police station. Inside the
police station, Hercules asked the police officer, "Sir,
may problema po ba?" Instead of replying, the police
officer locked up Hercules inside the police station jail.
(2015 BAR)
(a) If Hercules filed with the Ombudsman a complaint
for warrantless search, as counsel for the police
105
officer, what defense will you raise for the dismissal
of the complaint?
A: As counsel of policeman, I will raise the defense of
presumption of regularity in the performance of duty.
I can also raise the defense that the police officer has the
duty to search Hercules under the “Stop-and-Frisk” rule. A
stop-and-frisk situation must precede a warrantless arrest,
be limited to the person’s outer clothing, and should be
grounded upon a genuine reason, in the light of the police
officers experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed
about him. (Valdez v. People, G.R. No. 170180, 23 Nov. 2007)
The “stop-and-frisk” search should be used “when dealing
with rapidly unfolding and potentially criminal situation in
the city streets where unarguably there is no time to secure
a search warrant.” “Stop-and-frisk” searches (sometimes
referred to as Terry searches) are necessary for law
enforcement, that is, law enforcers should be given the legal
arsenal to prevent the commission of the offenses. This
should be balanced, however, with the need to protect the
privacy of citizens in accordance with Article III, Section 2
of the Constitution. (People v. Cogaed, G.R. No. 200334, 30
July 2014)
(b) If Hercules opts to file a civil action against the
police officer, will he have a cause of action?
A: YES. Hercules has a cause of action to file civil action
against the police officer under Article 32(4) in relation to
Article 2219(6) and (10) of the New Civil Code, which
provides that a police officer may be liable for damages
when the right to be secure in one’s person, house, papers
and effects against unreasonable searches and seizures is
impaired. The indemnity includes moral damages.
Exemplary damages may also be adjudicated. (Galvante v.
Casimiro, G.R. No. 162808, 22 Apr. 2008)
Q: A search warrant was issued for the purpose of
looking for unlicensed firearms in the house of Ass-
asin, a notorious gun for hire. When the police served
the warrant, they also sought the assistance of
barangay tanods who were assigned to look at other
portions of the premises around the house. In a nipa hut
thirty (30) meters away from the house of Ass-asin, a
Barangay tanod came upon a kilo of marijuana that was
wrapped in newsprint. He took it and this was later
used by the authorities to charge Ass-asin with illegal
possession of marijuana. Ass-asin objected to the
introduction of such evidence claiming that it was
illegally seized. Is the objection of Ass-asin valid? (2014
BAR)
A: The objection is valid. The search warrant specifically
designates or describes the house as the place to be
searched. Incidentally, the marijuana was seized by the
Barangay Tanods thirty (30) meters away from the house of
the accused. Since the confiscated items were found in a
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
place other than the one described in the search warrant, it
can be considered as fruits of an invalid warrantless search,
the presentation of which as an evidence is a violation of
petitioner’s constitutional guaranty against unreasonable
searches and seizure. (Castillo v. People, G.R. No. 185128, 30
Jan. 2012) Besides, the search is also illegal because the
marijuana confiscated in the nipa hut was wrapped in a
newsprint. Therefore, the same cannot be considered
validly seized in plain view (Miclat v. People, G.R. No. 176077,
31 Aug. 2011)
Q: A PDEA asset/informant tipped the PDEA Director
Shabunot that a shabu laboratory was operating in a
house at Sta. Cruz, Laguna, rented by two (2) Chinese
nationals, Ho Pia and Sio Pao. PDEA Director Shabunot
wants to apply for a search warrant, but he is worried
that if he applies for a search warrant in any Laguna
court, their plan might leak out. (2012 BAR)
(a) Where can he file an application for search
warrant?
A: PDEA Director may file an application for search warrant
in any court within the judicial region where the crime was
committed. (Sec. 2(b), Rule 126, ROC, as amended)
(b) What documents should he prepare in his
application for search warrant?
A: He should prepare a petition for issuance of a search
warrant and attach therein sworn statements and affidavits.
(c) Describe the procedure that should be taken by the
judge on the application.
A: The judge must, before issuing the warrant, examine
personally in the form of searching questions and answers,
in writing and under oath, the complainant and the
witnesses he may produce on facts personally known to
them and attach to the record their sworn statements,
together with the affidavits submitted. (Sec. 5, Rule 126,
ROC, as amended) 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, which must be substantially in the form prescribed
by the Rules. (Sec. 6, Rule 126, ROC, as amended)
(d) Suppose the judge issues the search warrant
worded in this way:
PEOPLE OF THE PHILIPPINES
Plaintiff
-versus-
Ho Pia and Sio
Pao, Accused.
Criminal Case No.
007 for Violation of R.A. 9165
x x
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
TO ANY PEACE OFFICER
Greetings:
It appearing to the satisfaction of the undersigned
after examining under oath PDEA Director
Shabunot that there is probable cause to believe
that violations of Section 18 and 16 of R.A. 9165
have been committed and that there are good and
sufficient reasons to believe that Ho Pia and Sio Pao
have in their possession or control, in a two (2)
door apartment with an iron gate located at Jupiter
St., Sta. Cruz, Laguna, undetermined amount of
"shabu" and drug manufacturing implements and
paraphernalia which should be seized and brought
to the undersigned.
You are hereby commanded to make an immediate
search, at any time in the day or night, of the
premises above described and forthwith seize and
take possession of the abovementioned personal
property, and bring said property to the
undersigned to be dealt with as the law directs.
Witness my hand this 1st day of March, 2012.
(signed) Judge XYZ
Cite/enumerate the defects, if any, of the search
warrant.
A:
a. The search warrant failed to particularly describe the
place to be searched and the things to be seized. (Sec. 4,
Rule 126, ROC, as amended)
b. The search warrant commanded the immediate search,
at any time in the day or night. The general rule is that
a search warrant must be served in the day time (Sec. 8,
Rule 126, ROC, as amended), or that portion of the
twenty-four hours in which a man’s person and
countenance are. By way of exception, a search warrant
may be made at night when it is positively asserted in
the affidavit that the property is on the person or in the
place ordered to be searched. (Alvares v. CFI of Tayabas,
G.R. No. L-45358, 29 Jan. 1937) There is no showing that
the exception applies.
(e) Suppose the search warrant was served on March
15, 2012 and the search yielded the described
contraband and a case was filed against the accused
in RTC, Sta. Cruz, Laguna and you are the lawyer of
Sio Pao and Ho Pia, what will you do?
A: If I were the lawyer of Sio Pao and Ho Pia, I would file a
Motion to Quash the search warrant for having been served
beyond its period of validity. (Sec. 14, Rule 126, ROC, as
amended) A search warrant shall be valid only for ten days
106
 QuAMTO (1987-2022)
from its date. Thereafter, it shall be void. (Sec. 10, Rule 126,
ROC, as amended)
(f) Suppose an unlicensed armalite was found in plain
view by the searchers and the warrant was ordered
quashed, should the court order the return of the
same to the Chinese nationals?
A: NO, the Court should not order the return of the
unlicensed armalite because it is contraband or illegal per
se. (PDEA v. Bodett, G.R. No. 196390, 28 Sept. 2011) The
possession of an unlicensed armalite found in plain view is
mala prohibita. The same be kept in custodia legis.
Q: The search warrant authorized the seizure of
"undetermined quantity of shabu." During the service
of the search warrant, the raiding team also recovered
a kilo of dried marijuana leaves wrapped in newsprint.
The accused moved to suppress the marijuana leaves as
evidence for the violation of Section 11 of the
Comprehensive Dangerous Drugs Act of 2002 since they
were not covered by the search warrant. The State
justified the seizure of the marijuana leaves under the
“plain view” doctrine. There was no indication of
whether the marijuana leaves were discovered and
seized before or after the seizure of the shabu. If you are
the judge, how would you rule on the motion to
suppress? (2008 BAR)
A: The motion to suppress filed by the accused should be
granted. The search warrant violates the constitutional and
statutory requirement that it should particularly describe
the person or things to be seized. (Sec. 2, Art. 3, 1987
Constitution; Sec. 2, Rule 126, ROC, as amended) The “plain
view” doctrine cannot be invoked because the marijuana
leaves were wrapped in newsprint. Besides the marijuana
leaves are not the subject of the search warrant.
Q: Police operatives of Western Police District,
Philippine National Police, applied for a search warrant
in the RTC for the search of the house of Juan Santos and
the seizure of an undetermined amount of shabu. The
team arrived at the house of Santos but failed to find
him there. Instead, the team found Roberto Co. The
team conducted a search in the house of Santos in the
presence of Roberto Co and barangay official and found
ten (10) grams of shabu. Roberto Co was charged in
court with illegal possession of ten grams of shabu.
Before his arraignment, Roberto Co filed a motion to
quash the warrant on the following grounds (a) it was
not the accused named in the search warrant and (b)
the warrant does not prescribe the article to be seized
with sufficient particularity. Resolve the motion with
reasons. (2005 BAR)
A: The motion to quash should be denied. The name of the
person in the search warrant is not important. It is not even
necessary that a particular person be implicated (Mantaring
v. Roman, A.M. No. RTJ-93-904, 28 Feb. 1996), so long as the
search is conducted in the place where the search warrant
107
will be served. Moreover, describing the shabu in an
undetermined amount is sufficiently particular. (People v.
Tee, G.R. Nos. 140546-47, 20 Jan. 2003)
O. PROVISIONAL REMEDIES IN CRIMINAL CASES
(RULE 127)
P. THE RULE ON CYBERCRIME WARRANTS
(Sec. 2 of A.M. No. 17-11-03-SC only)
(2022 BAR)
Q: Enumerate and describe three warrants that may be
issued by the courts pursuant to the Rule on
Cybercrime Warrants. (2022 BAR)
A: Three warrants that may be issued by the courts
pursuant to the Rule on Cybercrime Warrants are the
following:
1. Warrant to Disclose Computer Data (WDCD) - A
WDCD is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon
application of law enforcement authorities, authorizing
the latter to issue an order to disclose and accordingly,
require any person or service provider to disclose or
submit subscriber's information, traffic data, or
relevant data in his/her or its possession or control.
2. Warrant to Intercept Computer Data (WICD) - A
WICD is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon
application of law enforcement authorities, authorizing
the latter to carry out any or all of the following
activities: (a) listening to, (b) recording, (c) monitoring,
or (d) surveillance of the content of communications,
including procuring of the content of computer data,
either directly, through access and use of a computer
system or indirectly, through the use of electronic
eavesdropping or tapping devices, at the same time that
the communication is occurring.
3. Warrant to Search, Seize and Examine Computer
Data (WSSECD) - A WSSECD is an order in writing
issued in the name of the People of the Philippines,
signed by a judge, upon application of law enforcement
authorities, authorizing the latter to search the
particular place for items to be seized and/or
examined.
Q: Distinguish the following:
Warrant to Search, Seize, and Examine Computer Data
(WSSECD) and Warrant to Examine Computer Data
(WECD) (2019 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: A Warrant to Search, Seize and Examine Compute Data
(WSSECD) is an order in writing issued in the name of the VIII. EVIDENCE
people of the Philippines, signed by a judge, upon
application of law enforcement authorities, authorizing the
latter to search the particular place for items to be seized
and/or examined. (Section 6.1, A.M. No. 17-11-03-SC)
A. GENERAL CONCEPTS
Whereas a Warrant to Examine Computer Data (WECD), (2004 BAR)
upon acquiring possession of a computer device or
computer system via a lawful warrantless arrest or by any
other lawful method, law enforcement authorities shall first 1. PROOF vs. EVIDENCE
apply for a warrant before searching the said computer
device or computer system for the purpose of obtaining for
forensic examination of the computer data contained 2. BURDEN OF PROOF vs. BURDEN OF EVIDENCE
therein. (Section 6.9, A.M. No. 17-11-03-SC) (2004 BAR)

Q: Distinguish Burden of proof and burden of evidence.

(2004 BAR)

A: Burden of proof is the duty of a party to present evidence

on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law (Sec. 1,
Rule 131, ROC, as amended), while burden of evidence is the
duty of a party to go forward with the evidence to
overthrow prima facie evidence established against him.
(Bautista v. Sarmiento, G.R. No. L-45137, 23 Sept. 1985)

3. EQUIPOISE RULE

B. ADMISSIBILITY OF EVIDENCE
(RULE 128)
(2017, 2010, 2009, 2008, 2004, 2000, 1998, 1997 BAR)

1. REQUISITES FOR ADMISSIBILITY OF EVIDENCE

2. RELEVANCE OF EVIDENCE
AND COLLATERAL MATTERS

3. MULTIPLE ADMISSIBILITY

4. CONDITIONAL ADMISSIBILITY

5. CURATIVE ADMISSIBILITY

6. DIRECT AND CIRCUMSTANTIAL EVIDENCE

(2017, 1998 BAR)

Q: Answer the following briefly:

What elements should concur for circumstantial

evidence to be sufficient for conviction? (2017 BAR)

A: The following elements should concur for circumstantial

evidence to be sufficient for conviction:

UNIVERSITY OF SANTO TOMAS 108

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
a. There is more than one circumstance;
b. The facts from which the inferences are derived are
proven;
c. The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. (Sec. 4,
Rule 133, ROC, as amended)
Q: A was accused of having raped X. Rule on the
admissibility of the following pieces of evidence: (1998
BAR)
(a) An offer of A to marry X; and
A: A’s offer to marry X is admissible in evidence as an
implied admission of guilt. It has been held that in rape
cases, an offer of marriage is considered an implied
admission of guilt of the accused. (People v Domingo, G.R. No.
97921, 08 Sept. 1993)
(b) A pair of short pants allegedly left by A at the crime
which the court, over the objection of A, required
him to put on, and when he did, it fit him well.
A: The pair of short pants, which fit the accused well, is
circumstantial evidence of his guilt, although standing alone
it cannot be the basis of conviction. The accused cannot
object to the court requiring him to put the short pants on.
It is not part of his right against self-incrimination because
it is a mere physical act.
7. POSITIVE AND NEGATIVE EVIDENCE
8. COMPETENT AND CREDIBLE EVIDENCE
(2010, 2009, 2008, 2004, 2000, 1998, 1997 BAR)
Q: How do you prove a written foreign law? (1997 BAR)
A: A written foreign law may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody, if the
office in which the 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 consular
agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
(Sec. 24, Rule 132, ROC, as amended; Zalamea v. Court of
Appeals, G.R. No. 104235, 18 Nov. 1993).
Q: Suppose a foreign law was pleaded as part of the
defense of defendant but no evidence was presented to
prove the existence of said law, what is the presumption
to be taken by the court as to the wordings of said law?
(1997 BAR)
A: The presumption is that the wordings of the foreign law
are the same as the local law. (Northwest Orient Airlines v.
109
Court of Appeals, G.R. No. 112573, 9 Feb. 1995; Moran, 1980;
Lim v. Collector of Customs, G.R. No. L-11759, 16 Mar. 1917)
This is known as the processual presumption.
Q: Defendant was declared in default by the RTC.
Plaintiff was allowed to present evidence in support of
his complaint. Photocopies of official receipts and
original copies of affidavits were presented in court,
identified by plaintiff on the witness stand and marked
as exhibits. Said documents were offered by plaintiff
and admitted in evidence by the court on the basis of
which the RTC rendered judgment in favor of the
plaintiff, pursuant to the relief prayed for. Upon receipt
of judgment, defendant appeals to the Court of Appeals
claiming that the judgment is not valid because the RTC
based its judgment on mere photocopies and affidavits
of persons not presented in court. Is the claim valid?
Explain. (2000 BAR)
A: The claim of defendant is valid, because the court
received evidence which it can order in its own discretion,
in which case the evidence of the plaintiff must pass the
basic requirements of admissibility.
Q: Arrested in a buy-bust operation, Edmond was
brought to the police station where he was informed of
his constitutional rights. During the investigation,
Edmond refused to give any statement. However, the
arresting officer asked Edmond to acknowledge in
writing that six (6) sachets of “shabu” were confiscated
from him. Edmond consented and also signed a receipt
for the amount of P3,000.00, allegedly representing the
“purchase price of the shabu.” At the trial, the arresting
officer testified and identified the documents executed
and signed by Edmond. Edmond’s lawyer did not object
to the testimony. After the presentation of the
testimonial evidence, the prosecutor made a formal
offer of evidence which included the documents signed
by Edmond. Edmond’s lawyer objected to the
admissibility of the documents for being the “fruit of the
poisoned tree.” Resolve the objection with reasons.
(2009 BAR)
A: The objection to the admissibility of the documents
which the arresting officer asked Edmond to sign without
the benefit of counsel, is well-taken. Said documents having
been signed by the accused while under custodial
investigation, imply an “admission” without the benefit of
counsel, that the shabu came from him and that the
P3,000.00 was received by him pursuant to the illegal
selling of the drugs. Thus, it was obtained by the arresting
officer in clear violation of Sec. 12(3), Art. Ill of the 1987
Constitution, particularly the right to be assisted by counsel
during custodial investigation. Moreover, the objection to
the admissibility of the evidence was timely made, i.e., when
the same is formally offered.
Q: Dominique was accused of committing a violation of
the Human Security Act. He was detained
incommunicado, deprived of sleep, and subjected to
water torture. He later allegedly confessed his guilt via
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
an affidavit. After trial, he was acquitted on the ground
that his confession was obtained through torture,
hence, inadmissible as evidence. In a subsequent
criminal case for torture against those who deprived
him of sleep and subjected him to water torture,
Dominique was asked to testify and to, among other
things, identify his above-said affidavit of confession. As
he was about to identify the affidavit, the defense
counsel objected on the ground that the affidavit is a
fruit of a poisonous tree. Can the objection be
sustained? Explain. (2010 BAR)
A: NO, the objection may not be sustained on the ground
stated, because the affiant was only to identify the affidavit
which is not yet being offered in evidence. The doctrine of
the fruit of the poisonous tree can only be invoked by
Domingo as his defense in the crime of violation of Human
Security Act filed against him but not by the accused in a
torture case filed by him. In the instant case, the
presentation of the affidavit cannot be objected to by the
defense counsel on the ground that it is a fruit of the
poisonous tree because the same is used in Domingo’s favor.
Q: The barangay captain reported to the police that X
was illegally keeping in his house in the barangay an
Armalite M16 rifle. On the strength of that information,
the police conducted a search of the house of X and
indeed found said rifle. The police raiders seized the
rifle and brought X to the police station. During the
investigation, he voluntarily signed a Sworn Statement
that he was possessing said rifle without license or
authority to possess, and a Waiver of Right to Counsel,
individually rule on the admissibility in evidence of the:
(a) Rifle;
A: The rifle is not admissible in evidence because it was
seized without a proper search warrant. A warrantless
search is not justified. There was time to secure a search
warrant. (People v. Encicada G.R. No. 116720, 02 Oct. 1997)
(b) Sworn Statement; (2008 BAR) and
A: The sworn statement is not admissible in evidence
because it was taken without informing him of his custodial
rights and without the assistance of counsel which should
be independent and competent and preferably of the choice
of the accused. (People v. Januario, G.R. No. 98252, 7 Feb.
1997)
(c) Waiver of Right to Counsel of X. (1998 BAR)
A: The waiver of his right to counsel is not admissible
because it was made without the assistance of counsel of his
choice. (People v. Gomez, G.R. No. 101817, 26 Mar. 1997)
Q: Sgt. GR of WPD arrested two NPA suspects, Max and
Brix, both aged 22, in the act of robbing a grocery in
Ermita. As he handcuffed them he noted a pistol tucked
in Max’s waist and a dagger hidden under Brix’s shirt,
which he promptly confiscated. At the police
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
investigation room, Max and Brix orally waived their
right to counsel and to remain silent. Then under oath,
they freely answered questions asked by the police
desk officer. Thereafter they signed their sworn
statements before the police captain, a lawyer. Max
admitted his part in the robbery, his possession of a
pistol and his ownership of the packet of shabu found in
his pocket. Brix admitted his role in the robbery and his
possession of a dagger. But they denied being NPA hit
men. In due course, proper charges were filed by the
City Prosecutor against both arrestees before the MM
RTC. May the written statements signed and sworn to
by Max and Brix be admitted by the trial court as
evidence for the prosecution? Reason. (2004 BAR)
A: NO. The sworn written statements of Max and Brix may
not be admitted in evidence, because they were not assisted
by counsel, even if the police captain before whom they
signed the statements was a lawyer, nor can he be
considered as an independent counsel. The waiver of the
right to a cousel must be done in writing and in the presence
of independent counsel. (People v. Mahinay, G.R. No. 122485,
1 Feb. 1999; People v. Espiritu, G.R. No. 128287, 2 Feb. 1999)
C. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
(RULE 129)
Q: Give three instances when a Philippine Court can
take judicial notice of a foreign law. (1997 BAR)
A: The three instances when a Philippine court can take
judicial notice of a foreign law are: (1) when the Philippine
courts are evidently familiar with the foreign law (Moran,
1980); (2) when the foreign law refers to the law of nations
(Sec. 1, Rule 129, ROC, as amended) and, (3) when it refers to
a published treatise, periodical or pamphlet on the subject
of law if the court takes judicial notice of the fact that the
writer thereof is recognized in his profession or calling as
expert on the subject. (Sec. 4(5), Rule 130, ROC, as amended)
D. OBJECT (REAL) EVIDENCE
(RULE 130, A)
(2022, 2013, 2012, 2010, 1994 BAR)
1. REQUISITES
2. EXCLUSIONARY RULES
(2022, 2013, 2012, 2010, 1994 BAR)
Q: At the Public Attorney's Office station in Taguig
where you are assigned, your work requires you to act
as public defender at the local Regional Trial Court and
to handle cases involving indigents.
110
 QuAMTO (1987-2022)
Still in another case, this time for illegal possession of
dangerous drugs, the prosecution has rested but you
saw from the records that the illegal substance
allegedly involved has not been identified by any of the
prosecution witnesses nor has it been the subject of any
stipulation. Should you now proceed post haste to the
presentation of defense evidence or consider some
other remedy? Explain the remedial steps you propose
to undertake. (2013 BAR)
A: I will first file a motion for leave to file demurrer to
evidence within five (5) days from the time the prosecution
rested its case. If the same is granted, then I will file a
demurrer to evidence within ten (10) days from notice on
the ground of insufficiency of evidence of the prosecution.
(Sec. 23, Rule 119, ROC, as amended)
In People v. De Guzman (G.R. No. 186498, 26 Mar. 2010), the
Supreme Court held that in prosecution for violation of the
dangerous Drugs Act, the existence of the dangerous drug is
a condition sine qua non for conviction. The dangerous drug
is the very corpus delicti of the crime. The identity of the
prohibited drug must be established with moral certainty.
Q: Discuss the “chain of custody” principle with respect
to evidence seized under R.A. 9165 or the
Comprehensive Dangerous Drugs Act of 2002. (2012
BAR)
A: In prosecutions involving narcotics and other illegal
substances, the substance itself constitutes part of the
corpus delicti of the offense and the fact of its existence is
vital to sustain a judgment of conviction beyond reasonable
doubt. The chain of custody requirement is essential to
ensure that doubts regarding the identity of the evidence
are removed through the monitoring and tracking of the
movements of the seized drugs from the accused, to the
police, tothe forensic chemist, and finally to the court.
(People v. Sitco, G.R. No. 178202, 14 May 2010) The failure to
establish, through convincing proof, that the integrity of the
seized items has been adequately preserved through an
unbroken chain of custody is enough to engender
reasonable doubt on the guilt of an accused. (People v. De
Guzman y Danzil, G.R. No.186498, 26 Mar. 2010)
Q: In a prosecution for rape, the defense relied on
Deoxyribonucleic Acid (DNA) evidence showing that
the semen found in the private part of the victim was
not identical with that of the accused. As private
prosecutor, how will you dispute the veracity and
accuracy of the results of the DNA evidence? (2010
BAR)
A: As private prosecutor, I shall try to discredit the results
of the DNA test by questioning and possibly impugning the
integrity of the DNA profile by showing a flaw/error in
obtaining the biological sample, or in the chain of custody of
the biological sample obtained; the testing methodology
employed; the scientific standard observed; the forensic
DNA laboratory which conducted the test; and the
111
qualification, training and experience of the forensic
laboratory personnel who conducted the DNA testing.
Q: At the trial of Ace for violation of the Dangerous
Drugs Act, the prosecution offers in evidence a
photocopy of the marked P100.00 bills used in the “buy-
bust” operation. Ace objects to the introduction of the
photocopy on the ground that the Best Evidence Rule
prohibits the introduction of secondary evidence in lieu
of the original. (1994 BAR)
(a) Is the photocopy real (object) evidence or
documentary evidence?
A: The photocopy of the marked bills is real (object)
evidence and not documentary evidence, because the
marked bills are real evidence.
(b) Is the photocopy admissible in evidence?
A: YES, the photocopy is admissible in evidence, because the
best evidence rule does not apply to object or real evidence.
(People v. Tandoy, G.R. No. 80505, 4 Dec. 1990)
Q: Ricky, while driving his Maserati, smashes into the
Toyota Vios of Dante. Immediately after the incident,
Ricky offers to pay the value of the Toyota Vios. Dante
still sued Ricky criminally for Reckless Imprudence
because of Ricky's wayward and speedy driving. During
trial, Dante was called as witness to testify on Ricky's
offer to compromise as an admission of guilt. Ricky's
counsel objected. If you were the judge, how would you
rule on the objection? Explain briefly. (2022 BAR)
A: If I were the judge, I would sustain the objection. Under
the Rules of Evidence, an offer of compromise in a criminal
case involving a quasi-offense is not admissible against the
offeror as an admission of guilt. (Sec. 28, Rule 130, ROC, as
amended) Here, the criminal case involves a quasi-offense
or a charge of reckless imprudence. Thus, Ricky's offer of
compromise is not admissible against him as an admission
of guilt. Hence, I would sustain the objection.
E. DOCUMENTARY EVIDENCE
(RULE 130, B)
(2022, 2020-21, 2019, 2017, 2005, 2001, 2000 BAR)
1. DEFINITION
(2005 BAR)
Q: May a private document be offered, and admitted in
evidence both as documentary evidence and as object
evidence? Explain (2005 BAR)
A: YES. A private document may be offered and admitted in
evidence both as documentary evidence and as object
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
evidence. A document can also be considered as an object
for purposes of a case.
Objects as evidence are those addressed to the senses of the
court. (Sec. 1, Rule 130, ROC, as amended) Documents as
evidence consist of writings, recordings, photographs or
any material containing letters, words, sounds, numbers,
figures, symbols, or their equivalent, or other modes of
written expression offered as proof of their contents.
Photographs include still pictures, drawings, stored images,
x-ray films, motion pictures or videos. (Sec. 2, Rule 130, ROC,
as amended)
NOTE: Answered under the 2019 Amendments to the
Revised Rules on Evidence.
2. ORIGINAL DOCUMENT RULE
(2022, 2020-21, 2019, 2017 BAR)
Q: In a case for Estafa, the prosecution offered the
photocopy of the acknowledgment receipt signed by
the accused showing personal receipt of the sum of
money from the private complainant to prove the
amount of damage. Accused objected to the offer of the
photocopy on the sole ground that it is a mere
reproduction of the original in violation of the original
document rule. The court overruled the accused's
objection and admitted in evidence the photocopy of
the acknowledgment receipt.
Did the court err in admitting the photocopy? Explain
briefly. (2022 BAR)
the Rules on Evidence. (Sec. 2, Rule 130, ROC, as amended)
Hence, the printout of the photograph is an original and this
admissible in evidence. (Riguera, 2022)
Q: In a case for specific performance and damages,
plaintiff Q presented photocopies of the contracts he
had executed with defendant R for the purpose of
establishing their existence. Defendant R's counsel
objected to the admission of said photocopies, invoking
the best evidence rule. (2019 BAR)
(a) Should the objection of defendant R's counsel be
sustained? Explain.
A: NO. The best evidence rule (now the Original Document
Rule) applies only when the content of the document is the
subject of the inquiry. Where the issue is only as to whether
such document was actually executed, or exists, or on the
circumstances relevant to or surrounding its execution, the
best evidence rule does not apply and testimonial evidence
is admissible. Any other substitutionary evidence is
likewise admissible without need to account for the
original.
(b) Assuming that the best evidence rule applies, under
what circumstances will the photocopies be
admissible in evidence?
A: If a party desires to present photocopies of the original
documents, he must first establish that the presentation of
photocopies is justified under Section 3(a), (b), and/or (d),
Rule 130. He must establish the presence of all the elements
under these provisions.

A: NO, the court did not err in admitting the photocopy over
Q: Police officers arrested Mr. Druggie in a buy-bust
objection that it violates the original document rule. Under
operation and confiscated from him 10 sachets of shabu
the original document rule, a duplicate is as a rule
and several marked genuine peso bills worth P5,000.00
admissible to the same extent as the original. (Sec. 4(c), Rule
used as the buy-bust money during the buy-bust
130, ROC, as amended)
operation. At the trial of Mr. Druggie for violation of
R.A. No. 9165 (Comprehensive Dangerous Drug Act of
Here, the photocopy of the acknowledgment receipt is a
2002), the Prosecution offered in evidence, among
duplicate because it is a counterpart produced by a
others, photocopies of the confiscated marked genuine
technique which accurately reproduces the original. (Sec.
peso bills. The photocopies were offered to prove that
4(b), Rule 130, ROC, as amended) Thus, the photocopy is
Mr. Druggie had engaged at the time of his arrest in the
admissible to the same extent as the original. Hence, the
illegal selling of dangerous drugs. Invoking the Best
court did not err in admitting the photocopy. (Riguera,
Evidence Rule, Atty. Maya Bang, the defense counsel,
2023)
objected to the admissibility of the photocopies of the
confiscated marked genuine peso bills. Should the trial
Q: Is the printout of a photocopy from your mobile
judge sustain the objection of the defense counsel?
phone showing a fly in the soup you ordered admissible
Briefly explain your answer. (2017 BAR)
evidence in an action for damages against the
restaurant owner? Explain briefly. (2020-21 BAR)
A: NO, the trial judge should not sustain the objection that
invokes the best evidence rule (now the “Original Document
A: YES, the printout of a photograph from a mobile phone is
Rule”). The Supreme Court has held that the best evidence
admissible in evidence. Under the Rules on Evidence, if a
rule applies only to documentary evidence, not to object or
document or data is stored in a computer or similar device,
testimonial evidence. Here, the marked money is object not
any printout therefrom is an original and thus admissible in
documentary evidence since it is being offered to prove not
evidence. (Sec. 4(a), Rule 130, ROC, as amended)
its contents but its existence and use in the buy-bust
operation. (People v. Tandoy, G.R. No. 80505, 04 Dec. 1990)
Here, the mobile phone is a device which is similar to a
computer. A photograph is considered as a document under

UNIVERSITY OF SANTO TOMAS 112

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
3. SECONDARY EVIDENCE original of the note is excusable because he was not given
(2000 BAR) reasonable notice, as requirement under the Rules before
secondary evidence may be presented (Sec. 6 Rule 130, ROC,
as amended).
Q: If the photocopies of official receipts and
photocopies of affidavits were attached to the position
NOTE: Answered under the 2019 Amendments to the
paper submitted by plaintiff in an action for unlawful
Revised Rules on Evidence.
detainer filed with Municipal Trial Court on which basis
the court rendered judgment in favor of plaintiff?
Explain. (2000 BAR)
F. TESTIMONIAL EVIDENCE
A: The claim of defendant is valid, because although (RULE 130, C)
summary procedure requires merely the submission of (2022, 2019, 2018, 2017, 2016, 2014, 2010, 2009,
position papers, the evidence submitted with the position 2008, 2005, 2004, 2003, 2002, 2001, 2000, 1999,
paper must be admissible in evidence. (Sec. 9, Revised Rule 1998, 1997, 1994 BAR)
of Summary Procedure) Photocopies of official receipts and
affidavits are not admissible without proof of loss or
destruction of the original. (Sec. 3, Rule 130, ROC, as Q: Give the reasons underlying the adoption of the
amended) following rules of evidence: (1997 BAR)

4. PAROL EVIDENCE RULE (a) Dead Man Rule

(2001 BAR)
A: If death has closed the lips of one party, the policy of the
law is to close the lips of the other. (Goni v. Court of Appeals,
Q: Pedro filed a complaint against Lucio for the
L-77434, 23 Sept. 1986) This is to prevent the temptation to
recovery of a sum of money based on a promissory note
perjury because death has already sealed the lips of the
executed by Lucio. In his complaint, Pedro alleged that
party.
although the promissory note says that it is payable
within 120 days, the truth is that the note is payable
(b) Parol Evidence Rule
immediately after 90 days but that if Pedro is willing, he
may upon request of Lucio give the latter up to 120 days
A: It is designed to give certainty to a transaction which has
to pay the note. During the hearing, Pedro testified that
been reduced to writing, because written evidence is much
the truth is that the agreement between him and Lucio
more certain and accurate than that which rests on fleeting
is for the latter to pay immediately after ninety day’s
memory only. (Francisco, Revised Rules of Court)
time. Also, since the original note was with Lucio and
the latter would not surrender to Pedro the original
(c) Best Evidence Rule
note which Lucio kept in a place about one day’s trip
from where he received the notice to produce the note
A: This Rule is adopted for the prevention of fraud and is
and in spite of such notice to produce the same within
declared to be essential to the pure administration of
six hours from receipt of such notice, Lucio failed to do
justice. (Moran, Vol. 5, p. 12) If a party is in possession of
so. Pedro presented a copy of such the note which was
such evidence and withholds it, the presumption naturally
executed at the same time as the original and with
arises that the better evidence is withheld for fraudulent
identical contents. (2001 BAR)
purposes. (Francisco, Revised Rules of Court)

(a) Over the objection of Lucio, will Pedro be allowed

NOTE: Under the 2019 Amendments to the 1989 Revised
to testify as to the true agreement or contents of the
Rules on Evidence, the Best Evidence Rule is now known as
promissory note? Why?
the Original Document Rule.

A: YES, because Pedro has alleged in his complaint that the

(d) The rule against the admission of illegally obtained
promissory note does not express the true intent and
extrajudicial confession.
agreement of the parties. This is an exception to the parol
evidence rule. (Sec. 10[b], Rule 130, ROC, as amended)
A: An illegally obtained extrajudicial confession nullifies the
intrinsic validity of the confession and renders it unreliable
(b) Over the objection of Lucio, can Pedro present a
as evidence of the truth. (Moran, Volume 5. p. 257) It is the
copy of promissory note and have it admitted as
fruit of a poisonous tree.
valid evidence in his favor? Why?

(e) The rule against the admission of an offer of

A: YES, the copy in the possession of Pedro is a duplicate
compromise in civil cases
original, being a counterpart produced by the same
impression as the original (Sec. 4[b] Rule 130, ROC, as
A: The reason for the rule against the admission of an offer
amended). Moreover, the failure of Lucio to produce the
of compromise in civil case as an admission of any liability

113 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
is that parties are encouraged to enter into compromises. a case is prosecuted, against the administrator or Juan’s
Courts should endeavor to persuade the litigants in a civil estate, upon a claim or demand against his estate as to any
case to agree upon some fair compromise. (Art. 2029, NCC) matter of fact occurring before Juan’s death. (Sec. 39, Rule
During pre-trial, courts should direct the parties to consider 130, ROC, as amended)
the possibility of an amicable settlement. (Sec. 2(a), Rule 18,
ROC, as amended) 2. DISQUALIFICATIONS OF WITNESSES
(2010, 2008, 2000, 1998 BAR)
1. QUALIFICATION OF WITNESSES
(2004, 2001 BAR)
a) DISQUALIFICATION BY REASON OF MARRIAGE
(2010, 2000, 1998 BAR)
Q: Distinguish Competency of the witness and
credibility of the witness. (2004 BAR)
Q: On March 12, 2008, Mabini was charged with Murder
for fatally stabbing Emilio. To prove the qualifying
A: Competency of the witness refers to the capability of a
circumstance of evident premeditation, the
witness to perceive and to make known his perception to
prosecution introduced on December 11, 2009 a text
others (Sec. 21, Rule 130, ROC, as amended), while credibility
message, which Mabini’s estranged wife Gregoria had
of the witness refers the character of testimony of a witness
sent to Emilio on the eve of his death, reading:
of being believable.
“Honey,pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg
Q: John filed a petition for declaration of nullity of his
ingat u bka ma tsugi k.” (2010 BAR)
marriage to Anne on the ground of psychological
incapacity under Art. 36 of the Family Code. He
(a) A subpoena ad testificandum was served on
obtained a copy of the confidential psychiatric
Gregoria for her to be presented for the purpose of
evaluation report on his wife from the secretary of the
identifying her cellphone and the text message.
psychiatrist. Can he testify on the said report without
Mabini objected to her presentation on the ground
offending the rule on privileged communication? (2016
of marital privilege. Resolve.
BAR)

A: The objection should be sustained on the ground of the

A: YES, John can testify. Under the rule on privileged
marital disqualification rule (Sec. 23, Rule 130, ROC, as
communication, the husband or the wife, during or after the
amended), not on the ground of the “marital privilege”
marriage, cannot be examined without the consent of the
communication rule. (Sec. 24, Rule 130, ROC, as amended)
other as to any communication received in confidence by
The marriage between Mabini and Georgia is still subsisting
one from the other during the marriage except in a civil case
and the situation at bar does not come under the exceptions
filed by one against the other, or in a criminal case for a
to the disqualification by reason of marriage.
crime committed by one against the other or the latter’s
direct descendants or ascendants. (Sec. 24(a), Rule 130, ROC,
(b) Suppose Mabini’s objection in question A was
as amended) In this case, Anne cannot prevent John from
sustained. The prosecution thereupon announced
testifying against her since the petition for declaration of
that it would be presenting Emilio’s wife Graciana
nullity is a civil case filed by one spouse against the other;
to identify Emilio’s cellphone bearing Gregoria’s
hence, the rule on privileged communication between the
text message. Mabini objected again. Rule on the
spouses does not apply. John could testify on the
objection.
confidential psychiatric evaluation report of his wife that he
obtained from the secretary of the psychiatrist, without
A: The objection should be overruled. The testimony of
offending the rule on privileged communication.
Graciana is not covered by the said marital disqualification
Q: Maximo filed an action against Pedro, the
rule because she is not the wife of Mabini. Besides, Graciana
administrator of the estate of deceased Juan, for the
will identify only the cellphone as that of her husband
recovery of a car which is a part of the latter’s estate.
Emilio, not the messages therein which to her are hearsay.
During the trial, Maximo presented witness Mariano
who testified that he was present when Maximo and
Q: Vida and Romeo are legally married. Romeo is
Juan agreed that the latter would pay a rental of
charged in court with the crime of serious physical
P20,000 for the use of Maximo’s car for one month after
injuries committed against Selmo, son of Vida, step-son
which Juan should immediately return the car to
of Romeo. Vida witnessed the infliction of the injuries
Maximo. Pedro objected to the admission of Mariano’s
on Selmo by Romeo. The public prosecutor called Vida
testimony. If you were the judge, would you sustain
to the witness stand and offered her testimony as an
Pedro’s objection? Why? (2001 BAR)
eyewitness. Counsel for Romeo objected on the ground
of the marital disqualification rule under the Rules of
A: NO, the testimony is admissible in evidence because
Court. (2000 BAR)
witness Mariano who testified as to what Maximo and Juan,
the deceased person agreed upon, is not disqualified to
(a) Is the objection valid?
testify on the agreement. Those disqualified are parties or
assignors of the parties to a case, or persons in whose behalf

UNIVERSITY OF SANTO TOMAS 114

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
A: NO. While neither the husband nor the wife may testify b) DISQUALIFICATION BY REASON OF PRIVILEGED
for or against the other without the consent of the affected COMMUNICATIONS; RULE ON THIRD PARTIES
spouse, one exception is if the testimony of the spouse is in (2010, 2008, 1998 BAR)
a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants. (Sec.
Atty. L offered in the criminal case his affidavit
23, Rule 130, ROC, as amended) The case falls under this
respecting what he witnessed during the incident. X’s
exception because Selma is the direct descendant of the
lawyer wanted to cross-examine Atty. L who, however,
spouse Vida.
objected on the ground of lawyer-client privilege. Rule
on the objection. (2010 BAR)
(b) Will your answer be the same if Vida’s testimony is
offered in a civil case for recovery of personal
A: The objection should be overruled. Lawyer-client
property filed by Selmo against Romeo?
privilege is not involved here. The subject on which the
counsel would be examined has been made public in the
A: NO. The marital disqualification rule applies this time.
affidavit he offered and thus, no longer privileged, aside
The exception provided by the rules is in a civil case by one
from the fact that it is in respect of what the counsel
spouse against the other. The case here involves a case by
witnessed during the incident and not to the
Selmo for the recovery of personal property against Vida’s
communication made by the client to him or the advice he
spouse, Romeo.
gave thereon in his professional capacity. (UPLC Suggested
Answers)
Q: C is the child of the spouses H and W. H sued his wife
W for judicial declaration of nullity of marriage under
Q: On August 15, 2008, Edgardo committed estafa
Article 36 of the Family Code. In the trial, the following
against Petronilo in the amount of P3 Million. Petronilo
testified over the objection of W: C, H and D, a doctor of
brought his complaint to the National Bureau of
medicine who used to treat W. Rule on W’s objections
Investigation, which found that Edgardo had visited his
which are the following:
lawyer twice, the first time on August 14, 2008 and the
second on August 16, 2008; and that both visits
H cannot testify against her because of the rule on
concerned the swindling of Petronilo. During the trial
marital privilege. (1998 BAR)
of Edgardo, the RTC issued a subpoena ad testificandum
to Edgardo's lawyer for him to testify on the
A: The rule of marital privilege cannot be invoked in the
conversations during their first and second meetings.
annulment case under Article 36 of the Family Code because
May the subpoena be quashed on the ground of
it is a civil case filed by one against the other. (Sec. 23, Rule
privileged communication? Explain fully. (2008 BAR)
130, ROC, as amended)

A: NO, the subpoena may not be simply quashed on the

Q: Ody sued spouses Cesar and Baby for a sum of money
allegation that the testimony to be elicited constitutes
and damages. At the trial, Ody called Baby as his first
privileged communication. It may be noted that the accused
witness. Baby objected, joined by Cesar, on the ground
committed the crime of swindling on August 15, 2008,
that she may not be compelled to testify against her
whereas he first visited his lawyers on August 14, 2008 or
husband. Ody insisted and contended that after all, she
before he committed the swindling. Clearly the
would just be questioned about a conference they had
conversations the accused had with his lawyer during such
with the barangay captain, a matter which is not
first visit, before he committed the swindling cannot be
confidential in nature. The trial court ruled in favor of
protected by the privilege between attorney and client
Ody. Was the ruling proper? Will you answer be the
because the crime had not been committed yet and it is no
same if the matters to be testified on were known to
part of the lawyer’s professional duty to assist or aid in the
Baby or acquired by her prior to her marriage to Cesar?
commission of the crime; hence not in the course of
Explain. (1998 BAR)
professional employment.

A: NO. Under the Rules, a wife cannot be examined for or

The second visit by accused Edgardo to his lawyer the next
against her husband without his consent, except in civil
day (August 16, 2008) after the swindling was committed
cases by one against the other, or in a criminal case for a
may also suffer from the same infirmity as the
crime committed by one against the other. Since the case
conversations had during their first meeting inasmuch as
was filed by Ody against the spouses Cesar and Baby, Baby
there could not be complaint made immediately after the
cannot be compelled to testify against Cesar without his
estafa was committed. The privilege covering a lawyer-
consent. (Lezama v. Rodriguez, G.R. No. L-25643, 27 June
client relation under Sec. 24(b), Rule 130, may not be
1968)
invoked, as it is not a ground for quashal of a subpoena ad
testificandum under Sec. 4, Rule 21.

Although the subpoena ad testificandum may not be

quashed, the privilege covers conversations “with a view to

115 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
professional employment.” Thus, it can be invoked at the
trial but not quash the subpoena.
Q: C is the child of the spouses H and W. H sued his wife
W for judicial declaration of nullity of marriage under
Article 36 of the Family Code. In the trial, the following
testified over the objection of W: C, H and D, a doctor of
medicine who used to treat W. Rule on W’s objections
which are the following:
D cannot testify against her because of the doctrine of
privileged communication between patient and
physician. (1998 BAR)
A: D, as doctor who used to treat W, is disqualified to testify
against W over her objection as to any advice or treatment
given by him or any information which he may have
acquired in his professional capacity. (Sec. 24[c], Rule 130,
ROC, as amended)
c) PARENTAL AND FILIAL PRIVILEGE RULE
(1998 BAR)
Q: C is the child of the spouses H and W. H sued his wife
W for judicial declaration of nullity of marriage under
Article 36 of the Family Code. In the trial, the following
testified over the objection of W: C, H and D, a doctor of
medicine who used to treat W. Rule on W’s objections
which are the following:
C cannot testify against her because of the doctrine on
parental privilege. (1998 BAR)
A: The doctrine of parental privilege cannot likewise be
invoked by W as against the testimony of C, their child. C
may not be compelled to testify but free to testify against
her. (Sec. 25, Rule 130, ROC, as amended; Art. 215 FC)
d) PRIVILEGE RELATING TO TRADE SECRETS
3. TESTIMONIAL PRIVILEGE
(2019, 2004 BAR)
Q: In a case of Attempted Parricide brought against Mr.
M by his wife, Mrs. N, their son, C, was called as a witness
for the prosecution. Mr. m’s counsel objected, invoking
the filial privilege rule.
Meanwhile, in a separate case for Serious Physical
injuries also brought against Mr. M, but this time by his
son, C, Mrs. N was called to testify against Mr. M. Mr. M’s
counsel objected, invoking the marital disqualification
rule.
Should the objections of Mr. M’s counsel in both cases
be sustained? Explain. (2019 BAR)
A: The objection for both cases should be overruled.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
In the case of Attempted Parricide, Sec. 25 of the Rule 130,
or the filial privilege rule, provides that no person may be
compelled to testify against his parents, other direct
ascendants, children, or other direct descendants. What is
prohibited in the rule is the compelling of a person to testify
against the named relatives, but it does not preclude said
persn from testifying if he wishes to. Here, C was only called
as a witness for the prosecution, and he may testify or
decline as he wishes. The rule on filial privilege may be
waived. (People v. Artemuo Invencion, G.R. No. 131636, 05
Mar. 2003)
In the case of Serious Physical Injuries, Sec. 22 of Rule 130
of the Rules of Court, or the marital disqualification rule,
provides that during the marriage, neither the husband nor
the wife, may testify for or against the other without the
consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime
committed b one against the other or the latter’s direct
descendants or ascendants. Here, the exception to the rule
applies, as Mrs. N is testifying against her husband, Mr. M,
for the crime committed by the former against their son, C.
(UPLC Suggested Answers)
Q: XYZ, an alien, was criminally charged of promoting
and facilitating child prostitution and other sexual
abuses under Rep. Act No. 7610. The principal witness
against him was his Filipina wife, ABC. Earlier, she had
complained that XYZ’s hotel was being used as a center
for sex tourism and child trafficking. The defense
counsel for XYZ objected to the testimony of ABC at the
trial of the child prostitution case and the introduction
of the affidavits she executed against her husband as a
violation of espousal confidentiality and marital
privilege rule. It turned out that DEF, the minor
daughter of ABC by her first husband who was a
Filipino, was molested by XYZ earlier. Thus, ABC had
filed for legal separation from XYZ since last year. May
the court admit the testimony and affidavits of the wife,
ABC, against her husband, XYZ, in the criminal case
involving child prostitution? Reason. (2004 BAR)
A: YES. The court may admit the testimony and affidavits of
the wife against her husband in the criminal case where it
involves child prostitution of the wife's daughter. It is not
covered by the marital privilege rule. One exception thereof
is where the crime is committed by one against the other or
the latter’s direct descendants or ascendants. (Sec. 23, Rule
130, ROC, as amended) A crime by the husband against the
daughter is a crime against the wife and directly attacks or
vitally impairs the conjugal relation. (Ordono v. Daquigan,
G.R. No. L-39012, 31 Jan. 1975)
4. ADMISSIONS AND CONFESSIONS
(2019, 2009, 2008, 1998, 1997 BAR)
Q: What is the probative value of a witness’ Affidavit of
Recantation? (1998 BAR)
116
 QuAMTO (1987-2022)
A: On the probative value of an affidavit of recantation,
courts look with disfavor upon recantations because they
can easily be secured from witnesses, usually through
intimidation or for a monetary consideration. Recanted
testimony is exceedingly unreliable. There is always the
probability that it will be repudiated. (Molina v. People, G.R.
Nos. 70168-69, 24 July 1996)
Q: If the accused on the witness stand repeats his earlier
uncounseled extrajudicial confession implicating his
co-accused in the crime charged, is that testimony
admissible in evidence against the latter? (1998 BAR)
A: YES. The accused can testify by repeating his earlier
uncounseled extrajudicial confession, because he can be
subjected to cross-examination.
Q: Arrested in a buy-bust operation, Edmond was
brought to the police station where he was informed of
his constitutional rights. During the investigation,
Edmond refused to give any statement. However, the
arresting officer asked Edmond to acknowledge in
writing that six (6) sachets of “shabu” were confiscated
from him. Edmond consented and also signed a receipt
for the amount of P3,000.00, allegedly representing the
“purchase price of the shabu.” At the trial, the arresting
officer testified and identified the documents executed
and signed by Edmond. Edmond’s lawyer did not object
to the testimony. After the presentation of the
testimonial evidence, the prosecutor made a formal
offer of evidence which included the documents signed
by Edmond. Edmond’s lawyer objected to the
admissibility of the documents for being the “fruit of the
poisonous tree.” Resolve the objection with reasons.
(2009 BAR)
A: The objection to the admissibility of the documents
which the arresting officer asked Edmond to sign without
the benefit of counsel, is well-taken. Said documents having
been signed by the accused while under custodial
investigation, imply an “admission” without the benefit of
counsel that the shabu came from him and that the
P3,000.00 was received by him pursuant to the illegal
selling of the drugs. Thus, it was obtained by the arresting
officer in violation of Section 12(3), Article III of the 1987
Constitution, particularly the right to be assisted by the
counsel during custodial investigation. Moreover, the
objection to the admissibility of the evidence was timely
made, i.e., when the same is formally offered.
Q: Bembol was charged with rape. Bembol's father,
Ramil, approached Artemon, the victim's father, during
the preliminary investigation and offered P1 Million to
Artemon to settle the case. Artemon refused the offer.
(2008 BAR)
(a) During trial, the prosecution presented Artemon to
testify on Ramil's offer and thereby establish an
implied admission of guilt. Is Ramil's offer to settle
117
admissible in evidence?
A: NO. The offer to settle not being made by the accused or
with his participation is not admissible against him under
the rule of res inter alios acta. No implied admission of guilt
can be drawn from efforts to settle a criminal case out of
court, where the accused had no participation in such
negotiation (People v. Godoy, G.R. Nos. 115908-09, 06 Dec.
1995)
(b) During the pre-trial, Bembol personally offered to
settle the case for P1 Million to the private
prosecutor, who immediately put the offer on
record in the presence of the trial judge. Is Bembol's
offer a judicial admission of his guilt?
A: NO. The offer is not a judicial admission of guilt because
it has not been reduced in writing or signed by the accused.
The Sec. 2, Rule 118 requires that all agreements or
admissions made or entered during the pre-trial conference
shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused.
Q: A, while driving his car, ran over B. A visited B at the
hospital and offered to pay for his hospitalization
expenses. After the filing of the criminal case against A
for serious physical injuries through reckless
imprudence, A’s insurance carrier offered to pay for the
injuries and damages suffered by B. the offer was
rejected because B considered the amount offered was
inadequate. (1997 BAR)
(a) Is the offer by A to pay hospitalization expenses of
B admissible in evidence?
A: The offer by A to pay the hospitalization expenses of B is
not admissible in evidence to prove his guilt in both civil and
criminal cases. (Sec. 28, Rule 130, ROC, as amended)
(b) Is the offer by A’s insurance carrier to pay for
injuries and damages of B admissible in evidence?
A: NO. It is irrelevant. The obligation of the insurance
company is based on the contract of insurance and is not
admissible in evidence against the accused because it was
not offered by the accused but by the insurance company
which is not his agent.
5. PREVIOUS CONDUCT AS EVIDENCE
(2022, 2019, 2010 BAR)
Q: The defendants argued that Xavierville Estate Inc.
(XEI) had allowed them to pay the balance of the
purchase of a subdivision lot in 120 monthly
installments. The defendants introduced three
contracts to sell in which XEI granted two lot buyers a
120-month term of payment and a third one a 180-
month term. May these three contracts to sell prove a
habit or custom on the part of XEI to grant 120-month
terms of payments to it buyers? (2022 BAR)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: NO. Under Sec. 35, Rule 130, evidence that one did or did A: The objection is on the ground that the fact sought to be
not do a certain thing at one time is not admissible to prove elicited by the prosecution is irrelevant and immaterial to
that he did or did not do the same or a similar thing at the offense under prosecution and trial. Moreover, the Rules
another time; but it may be received to prove usage, habit do not allow the prosecution to adduce evidence of bad
or custom. moral character of the accused pertinent to the offense
charged, except on rebuttal and only if it involves a prior
Courts must contend with the caveat that before they admit conviction by final judgment. (Sec. 54(a)(2), Rule 130, ROC,
evidence of usage, habit or pattern or conduct, the offering as amended)
party must establish the degree of specificity and frequency
of uniform response that ensures more than a mere 6. TESTIMONIAL KNOWLEDGE
tendency to act in a given manner but rather conduct that is (2014 BAR)
semi-automatic in nature. In determining whether the
examples are numerous enough and sufficiently regular, the
Q: While passing by a dark uninhabited part of their
key criteria are adequacy of sampling and uniformity of
barangay, PO2 Asintado observed shadows and heard
response.
screams from a distance. PO2 Asintado hid himself
behind the bushes and saw a man beating a woman
Here the defendants did not introduce evidence that XEI
whom he recognized as his neighbour, Kulasa. When
and all the lot buyers in the subdivision had executed
Kulasa was already in agony the man stabbed her and
contracts of sale containing uniform terms and conditions.
she fell on the ground. The man hurriedly left
Moreover, even in the 3 contracts adduced by the
thereafter. PO2 Asintado immediately went to Kulasa’s
defendants, there was no uniformity as two referred to 120-
rescue. Kulasa who was then in a state of hysteria, kept
month terms while the third mentioned a 180-month term.
mentioning to PO2 Asintado “Si Rene, gusto akong
(Boston Bank v. Manalo, G.R. No. 158149, 09 Feb. 2006)
patayin! Sinaksak niya ako!” When PO2 Asintado was
about to carry her, Kulasa refused and said “Kaya ko.
Q: A criminal complaint for Theft was filed against Mr.
Mababaw lang to. Habulin mo si Rene.” The following
T by his employer for allegedly stealing company
day, Rene learned of Kulasa’s death and, bothered by
property. During trial, the prosecutor called Mr. T’s
his conscience, surrendered to the authorities with his
former supervisor, Mr. v, to the stand and attempted to
counsel. As his surrender was broadcasted all over
question his on similar incidents also involving Mr. T
media, Rene opted to release his statement to the press
with his previous employer. Mr. T’s counsel objected to
which goes:
the question, invoking the rules on res inter alios acta.
In response, the prosecution argued that the question
“I believe that I am entitled to the presumption of
should be allowed since he is trying to establish Mr. T’s
innocence until my guilt is proven beyond reasonable
habit of stealing things form the workplace.
doubt. Although I admit that I performed acts that may
take one’s life away, I hope and pray that justice will be
Should the objection of Mr. T’s counsel be sustained?
served in the right way. God bless us all.
Explain. (2019 BAR)
(Sgd.) Rene”

A: The objection of Mr. T’s counsel should be overruled. The

The trial court convicted Rene of homicide on the basis
rule on res inter alios acta, which provides that the rights of
of PO2 Asintado’s testimony, Kulasa’s statements, and
a party cannot be prejudiced by an act, declaration, or
Rene’s statement to the press. On appeal, Rene raises
omission of another is inapplicable in this case. (People v.
the following errors: (2014 BAR)
Cachueta, G.R. No. 191752, 10 Jun, 2013) Mr. V’s testimony
on similar incidents of stealing involving Mr. T with his
(a) The trial court erred in giving weight to PO2
previous employer may be admissible to establish Mr. T’s
Asintado’s testimony, as the latter did not have
habit of stealing things from the workplace. Evidence that
personal knowledge of the facts in issue and
one did or did not do a certain thing at one time is not
violated Rene’s right to due process when it
admissible to prove that he did or did not do the same or
considered Kulasa’s statements despite lack of
similar thing at another time; but it may be received to
opportunity for her cross-examination.
prove a specific intent or knowledge; identity, plan, system,
scheme, habit, custom or usage, and the like. (Sec. 34, Rule
A: The trial court did not err in giving weight to PO2
130)
Asintado’s testimony.

Q: In a prosecution for murder, the prosecutor asks

While a witness can only testify as to those facts which he
accused Darwin if he had been previously arrested for
has personal knowledge, the Rules provide that a statement
violation of the Anti-Graft and Corrupt Practices Act. As
made under the influence of a startling event witnessed by
defense counsel, you object. The trial court asks you on
the person who made the declaration before he had time to
what ground/s. Respond. (2010 BAR)
think and make up a story, or to concoct or contrive a
falsehood, or to fabricate an account, and without any
undue influence in obtaining it, aside from referring to the

UNIVERSITY OF SANTO TOMAS 118

2022 GOLDEN NOTES
 QuAMTO (1987-2022)
event in question or its immediate attending circumstances,
is an exception being part of res gestae. (Belbis, Jr., v. People,
G.R. No. 181052, 14 Nov. 2012)
In the case, the statements made by PO2 Asintado
constitutes part of res gestae since the same were made
without any opportunity to fabricate and while a startling
occurrence was actually taking place.
In addition, the statement of PO2 Asintado may fall within
the purview of the doctrine of independent relevant
statement, where only the fact that such statements were
made is relevant, and the truth and falsity thereof is
immaterial. (People v. Malibiran, G.R. No. 178301, 24 Apr.
2009)
On the other hand, Kulasa’s statements are also admissible
as part of res gestae since the same were made under the
influence of a startling event and without any opportunity
to concoct or devise a falsehood.
(b) The trial court erred in holding that Rene’s
statement to the press was a confession which,
standing alone, would be sufficient to warrant a
conviction. Resolve.
A: The trial court did not err in holding that Rene’s
statement to the press is a confession. Rene’s confessions to
the media were properly admitted because statements
spontaneously made by a suspect to news reporters on a
televised interview are deemed voluntary and are
admissible in evidence. (People v. Hipona, G.R. No. 185709,
18 Feb. 2010)
Q: A foreign dog trained to sniff dangerous drugs from
packages, was hired by FDP Corporation, a door to door
forwarder company, to sniff packages in their depot at
the international airport. In one of the routinary
inspections of packages waiting to be send to the United
States of America (USA), the dog sat beside one of the
packages, a signal that the package contained
dangerous drugs. Thereafter, the guards opened the
package and found two (2) kilograms of cocaine. The
owner objected of the package was arrested and
charges were filed against him. During the trial, the
prosecution, through the trainer who was present
during the incident and an expert in this kind of field,
testified that the dog was highly trained to sniff
packages to determine if the contents were dangerous
drugs and the sniffing technique of their highly trained
dogs was accepted worldwide and had been
successful in dangerous drugs operations. The
prosecution moved to admit this evidence to justify the
opening of the package. The accused objected on the
grounds that: (i) the guards had no personal knowledge
of the contents of the package before it was opened; (ii)
the testimony of the trainer of the dog is hearsay; and
(iii) the accused could not cross-examine the dog.
Decide. (2014 BAR)
119
A: The objections of the accused should be overruled. An
evidence is admissible when it is relevant to the issue and is
not excluded by the Constitution, law or the rules. (Sec 3,
Rule 128, ROC, as amended) Under Section 36, Rules 130
(now Sec. 22, Rule 130, ROC, as amended), a witness can
testify only to those which he knows of his or her personal
knowledge and derived from his or her own perception. The
contention that the guards had no personal knowledge of
the contents of the package before it was opened is without
merit. The guards can testify as to the facts surround the
opening of the package since they have personal knowledge
of the circumstances thereof, being physically present at the
time of its discovery.
On the other hand, the testimony of the trainer of the dog is
not hearsay based on the following grounds:
a. He has personal knowledge of the facts in issue,
having witnessed the same;
b. Hearsay merely contemplates an out-of-court
declaration of a person which is being offered to
prove the truthfulness and veracity of the facts
asserted therein;
c. He is an expert witness, hence, his testimony may
constitute an exception to the hearsay rule;
d. The accused has the opportunity to cross-examine
him; and
e. Testimony of a witness as to statements made by
nonhuman declarants does not violate the rule
against hearsay. The law permits the so-called
“non-human evidence” on the ground that
machines and animals, unlike humans, lack a
conscious motivation to tell falsehoods, and
because the workings of machines can be explained
by human witnesses who are then subject to cross-
examination by opposing counsel. (City of Webster
Groves v. Quick. 323 S.W. 2d 386 [Mo. 1959]; Buck v.
State, 138 P. 2d 115 [Okla. 1943]; Herrera, 1999)
Conversely, the accused may not argue that he cannot cross-
examine the dog as the Constitutional right to confrontation
refers only to witnesses. As alluded, the human witnesses
who have explained the workings of the non-human
evidence is the one that should be cross-examined. Hence,
the contention of the accused that he could not cross-
examine the dog is misplaced.
7. HEARSAY AND EXCEPTIONS TO THE HEARSAY RULE
(2019, 2017, 2005, 2004, 2002, 2000, 1999, 1998 BAR)
Q: Distinguish clearly but briefly between hearsay
evidence and opinion evidence. (2004 BAR)
A: Hearsay evidence consists of testimony that is not based
on personal knowledge of the person testifying (Sec. 37,
Rule 130, ROC, as amended), while opinion evidence is
expert evidence based on the personal knowledge skill,
experience, training, or education of the person testifying
(Sec. 52, Rule 130, ROC, as amended) and evidence of an
ordinary witness on limited matters. (Sec. 53, Rule 130, ROC,
as amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What are the exceptions to hearsay rule? (1999 BAR)
A: The exceptions to the hearsay rule are: dying declaration,
statement of decedent or person of unsound mind,
declaration against interest, act or declaration about
pedigree, family reputation or tradition regarding pedigree,
common reputation, part of the res gestae, records of
regularly conducted business activity, entries in official
records, commercial lists and the like, learned treatises, and
testimony or deposition at a former proceeding and
residual exception. (Secs. 38 to 50, Rule 130, ROC, as
amended)
Q: Requisites of Dying Declaration (1998 BAR)
A: The requisites for the admissibility of a dying declaration
are: (a) the declaration is made by the deceased under the
consciousness of his impending death; (b) the deceased was
at the time competent as a witness; (c) the declaration
concerns the cause and surrounding circumstances of the
declarant’s death; and (d) the declaration is offered in a
(criminal) case wherein the declarant's death is the subject
of inquiry. (People v. Santos, G.R. No. 94545, 04 Apr. 1997)
Q: AAA, a ten (10)-year old minor, was sleeping inside
her room when she was awakened by her uncle, Mr. G,
who was reeking of alcohol and was already on top of
her. After Mr. G succeeded in having carnal knowledge
of AAA, the former immediately left the latter's room.
Thereafter, AAA rushed into the room of her mother,
MMM, and spontaneously and frantically reported the
incident. Eventually, Mr. G was arrested and was
indicted for the crime of Rape.
During trial, MMM was presented as a witness to testify
on what AAA reported to her and AAA's gestures and
disposition at that time. Mr. G's counsel objected to
MMM's testimony on the ground that it is hearsay
evidence. The prosecutor countered that the subject of
MMM's testimony may be admitted as an independently
relevant statement and as part of the res gestae. (2019
BAR)
(a) May MMM's testimony be admitted on the ground
that it constitutes an independently relevant
statement? Explain.
A: YES. Under the doctrine of independently relevant
statements, regardless of their truth or falsity, the fact that
such statements have been made is relevant. The hearsay
rule does not apply, and the statements are admissible as
evidence. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may
constitute a fact in issue or be circumstantially relevant as
to the existence of such facts. Thus, MMM’s testimony can
be admitted.
(b) May AAA's statement to MMM be admitted on the
ground of res gestae? Explain.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: YES. Res gestae refers to the circumstances, facts, and
declarations that grow out of the main fact and serve to
illustrate its character and are so spontaneous and
contemporaneous with the main fact as to exclude the idea
of deliberation and fabrication.
Q: Immediately before he died of gunshot wounds to his
chest, Venancio told the attending physician; in a very
feeble voice, that it was Arnulfo, his co-worker, who had
shot him Venancio added that it was also Arnulfo who
had shot Vicente, the man whose cadaver was lying on
the bed beside him.
In the prosecution of Arnulfo for the criminal killing of
Venancio and Vicente, are all the statements of
Venancio admissible as dying declarations? Explain
your answer. (2017 BAR)
A: NO. Not all statements of Venancio are admissible as
dying declarations. A dying declaration is a statement made
under the consciousness of an impending death. (Sec. 38,
Rule 130, ROC, as amended) It may be received in any case
wherein his death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of such death.
In this case, presuming there is evidence that Venancio was
conscious of his impending death when he made his
statement that it was Arnulfo who; shot him, said statement
may be considered as a dying declaration which is
admissible in evidence as an exception to the hearsay rule.
The degree and seriousness of the gunshot wounds
sustained by Venancio and the fact that death supervened
thereafter may constitute substantial evidence of his
consciousness of his impending death. (People v. Tanaman,
G.R. No. 71768, 28 July 1987)
While Venancio’s statement about the death of Vicente may
not be considered as a dying declaration, it may still be
admitted in evidence as part of res gestae, which is also an
exception to the hearsay rule. (Sec. 44, Rule 130, ROC, as
amended) Venancio’s statement about the killing of Vicente
may be considered to have been made after the occurrence
of a startling occurrence. Thus, it may be admitted in
evidence.
Q: Dencio barged into the house of Marcela, tied her to
a chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcela’s maid,
to a bedroom where he raped her. Marcela could hear
Candida crying and pleading; “Huwag! Maawa ka sa
akin!” After raping Candida, Dencio fled from the house
with loot. Candida then untied Marcela and rushed to
the police station about a kilometer away and told
Police Officer Roberto Maawa that Dencio had barged
into the house of Marcela, tied the latter to a chair and
robbed her of her jewelry and money. Candida also
related to the police officer that despite her pleas,
Dencio had raped her. The policemen noticed that
Candida was hysterical and on the verge of collapse.
120
 QuAMTO (1987-2022)
Dencio was charged with robbery with rape. During the
trial, Candida can no longer be located.
If the prosecutor presents Police Officer Roberto
Maawa to testify on what Candida had told him, would
such testimony of the policemen be hearsay? Explain.
(2005 BAR)
A: NO. The testimony of the policemen is not hearsay. It is
part of the res gestae. It is also an independently relevant
statement. The police officer testified his own personal
knowledge, not to the truth of Candida’s statement, i.e., that
she told him, despite her pleas, Dencio has raped her.
(People v. Gaddi, G.R. No. 74065, 27 Feb. 1989)
Q: Romeo is sued for damages for injuries suffered by
the plaintiff in a vehicular accident. Julieta, a witness in
court, testifies that Romeo told her (Julieta) that he
(Romeo) heard Antonio, a witness to the accident, give
an excited account of the accident immediately after its
occurrence. Is Julieta’s testimony admissible against
Romeo over proper and timely objection? Why? (2002
BAR)
A: NO, Julieta’s testimony is not admissible against Romeo,
because while the excited account of Antonio, a witness to
the accident, was told to Romeo, it was only Romeo who told
Julieta about it, which makes it hearsay.
Q: Linda and spouses Arnulfo and Regina Ceres were co-
owners of a parcel of land. Linda died intestate and
without any issue. Ten (10) persons headed by Jocelyn,
claiming to be the collateral relatives of the deceased
Linda, filed an action for partition with the RTC praying
for the segregation of Linda’s ½ share, submitting in
support for their petition the baptismal certificates of
seven of the petitioners, a family bible belonging to
Linda in which the names of the petitioners have been
entered, a photocopy of the birth certificate of Jocelyn,
and a certification of the local civil registrar that its
office had been completely razed by fire. The spouses
Ceres refused partition on the following grounds:
(a) the baptismal certificates of the parish priest
are evidence only of the administration of the
sacrament of baptism and they do not prove
filiation of the alleged collateral relatives of the
deceased;
(b) entry in the family bible is hearsay;
(c) the certification of the registrar on non-
availability of the records of birth does not
prove filiation;
(d) in partition case where filiation to the deceased
is in dispute, prior and separate judicial
declaration of heirship in a settlement of estate
proceedings is necessary; and
(e) there is need for publication as real property
is involved. As counsel for Jocelyn and her co-
petitioners, argue against the objections of the
spouses Ceres so as to convince the court to
121
allow the partition.
Discuss each of the five (5) arguments briefly but
completely (2000 BAR)
A:
(a) The baptismal certificates of the parish priest are
evidence only of the administration of the
sacrament of baptism and they do not prove
filiation of the alleged collateral relatives of the
deceased
A: The baptismal certificate can show the filiation or prove
pedigree. It is one of the other means allowed under the
Rules of Court and special laws to show pedigree (Trinidad
v. Court of Appeals, G.R. No. 118904, 20 Apr. 1998; Heirs of
Ignacio Conti v. Court of Appeals, G.R. No. 118464, 21 Dec.
1998).
(b) Entry in the family bible is hearsay
A: Entries in the family bible may be received as evidence of
pedigree (Sec. 42, Rule 130, ROC, as amended).
(c) The certification of the registrar on non-availability
of the records of birth does not prove filiation
A: The certification by the civil registrar of the non-
availability of records is needed to justify the presentation
of secondary evidence, which is the photocopy of the birth
certificate of Jocelyn (Heirs of Conti v. Court of Appeals, G.R.
No. 118464, 21 Dec. 1998).
(d) In partition case where filiation to the deceased is
in dispute, prior and separate judicial declaration
of heirship in a settlement of estate proceedings is
necessary
A: Declaration of heirship in a settlement proceeding is not
necessary. It can be made in the ordinary action for
partition wherein the heirs are exercising the right
pertaining to the decedent, their predecessor-in-interest, to
ask for partition as co-owners (Id.).
(e) There is need for publication as real property is
involved. As counsel for Jocelyn and her co-
petitioners, argue against the objections of the
spouses Ceres so as to convince the court to allow
the partition
A: Even if real property is involved, no publication is
necessary, because what is sought is the mere segregation
of Linda’s share in the property. (Sec. 1, Rule 69, ROC, as
amended)
Q: The accused was charged with robbery and
homicide. The victim suffered several stab wounds. It
appears that eleven (11) hours after the crime, while
the victim was being brought to the hospital in a jeep,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
with his brother and a policeman as companions, the
victim was asked certain questions which he answered,
pointing to the accused as his assailant. His answers
were put down in writing, but since he was in a critical
condition, his brother and the policemen signed the
statement. Is the statement admissible as a dying
declaration? (1999 BAR)
A: YES. The statement is admissible as a dying declaration
of the victim subsequently dies and his answers were made
under the consciousness of impending death. (Sec. 38, Rule
130, ROC, as amended) The fact that he did not sign the
statement point to the accused as his assailant, because he
was in critical condition, does not affect its admissibility as
a dying declaration. A dying declaration need not be in
writing. (People v. Viovicente, G.R. No. 118707, 02 Feb. 1998)
8. OPINION RULE
(2005, 1994 BAR)
Q: Dencio barged into the house of Marcela, tied her to
a chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcela’s maid,
to a bedroom where he raped her. Marcela could hear
Candida crying and pleading; “Huwag! Maawa ka sa
akin!” After raping Candida, Dencio fled from the house
with loot. Candida then untied Marcela and rushed to
the police station about a kilometer away and told
Police Officer Roberto Maawa that Dencio had barged
into the house of Marcela, tied the latter to a chair and
robbed her of her jewelry and money. Candida also
related to the police officer that despite her pleas,
Dencio had raped her. The policemen noticed that
Candida was hysterical and on the verge of collapse.
Dencio was charged with robbery with rape. During the
trial, Candida can no longer be located.
If the police officer will testify that he noticed Candida
to be hysterical and on the verge of collapse, would such
testimony be considered as opinion, hence,
inadmissible? Explain. (2005 BAR)
A: NO. It cannot be considered as an opinion, because he
was testifying on what he actually observed. The last
paragraph of Sec. 50, Rule 130 (now Sec. 52, Rule 130, ROC,
as amended) expressly provides that a witness may testify
on his impressions of the emotion, behavior, condition or
appearance of a person.
Q: At Nolan’s trial for possession and use of the
prohibited drugs, known as “shabu” his girlfriend Kin,
testified that on a particular day, she would see Nolan
very prim and proper, alert and sharp, but that three
days after, he would appear haggard, tired and overly
nervous at the slightest sound he would hear. Nolan
objects to the admissibility of Kim’s testimony on the
ground that Kim merely stated her opinion without
having been first qualified as expert witness. Should
you as a judge exclude the testimony of Kim? (1994
BAR)
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
A: NO, the testimony of Kim should not be excluded. Even
though Kim is not an expert witness, Kim may testify on her
impressions of the emotion, behavior, condition or
appearance of a person. (Sec. 52, Rule 130, ROC, as amended)
9. CHARACTER EVIDENCE
(2019, 2018, 2017, 2002 BAR)
Q: A criminal complaint for Theft was filed against Mr.
T by his employer for allegedly stealing company
property. During trial, the prosecutor called Mr. T’s
former supervisor, Mr. v, to the stand and attempted to
question his on similar incidents also involving Mr. T
with his previous employer. Mr. T’s counsel objected to
the question, invoking the rules on res inter alios acta.
In response, the prosecution argued that the question
should be allowed since he is trying to establish Mr. T’s
habit of stealing things form the workplace.
Assuming that the prosecution presents evidence on
the bad moral character of Mr. T, ay the same be
admitted in the present case? Explain. (2019 BAR)
A: YES, it may be admitted, assuming that such evidence of
Mr. T’s bad moral character was presented by the
prosecution during the rebuttal evidence, and only after
accused presented evidence to prove his good moral
character which is pertinent to the morel trait involved in
the offense of theft.
Unless in rebuttal, the prosecution may not prove the
accused’s bad moral character which is pertinent to the
moral trait involved in the offense charged. (Sec. 51 (a)(2),
Rule 130, ROC, as amended)
Q: Dave is on trial for sexual assault of Delly, a law
student who sidelines as a call center agent. Dave offers
the testimony of Danny, who says that Dave is known in
the community as a decent and discerning person. The
prosecution presents a rebuttal witness, Dovie, who
testifies that, if Dave was reputed to be a good person,
that reputation was a misperception because Dave had
been previously convicted of homicide. Is Dovie’s
testimony admissible as to the character of Dave? (2018
BAR)
A: NO, Dovie’s testimony on Dave’s previous conviction for
homicide as evidence of his bad character does not refer to
a moral trait involved in the offense charged which is sexual
assault. (Sec 51[a][2], Rule 130, ROC, as amended)
Q: In an attempt to discredit and impeach a Prosecution
witness in a homicide case, the defense counsel called
to the stand a person who had been the boyhood friend
and next-door neighbor of the Prosecution witness for
30 years. One question that the defense counsel asked
of the impeaching witness was: "Can you tell this
Honorable Court about the general reputation of the
prosecution witness in your community for
aggressiveness and violent tendencies?" Would you, as
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 QuAMTO (1987-2022)
the trial prosecutor, interpose your objection to the
question of the defense counsel? Explain your answer.
(2017 BAR)
A: YES, I as the trial prosecutor, would interpose my
objection to defense counsel’s question on the ground of
improper impeachment. Under the Rules, an adverse
party’s witness may be properly impeached by reputation
evidence provided that it is to the effect that the witness’s
general reputation for honesty, truth, or integrity was bad.
(Sec. 11, Rule 132, ROC, as amended) The reputation must
only be on character for truthfulness or untruthfulness.
(Cordial v. People, G.R. No. L-75880, 27 Sept. 1988)
Here the evidence is not on the prosecution witness’s
general reputation for honesty, truth, or integrity but on his
aggressive and violent tendencies. The evidence had
nothing to do with the witness’s character for truthfulness
or untruthfulness. Hence the impeachment was improper.
Q: D was prosecuted for homicide for allegedly beating
up V to death with an iron pipe. (2002 BAR)
(a) May the prosecution introduce evidence that V had
a good reputation for peacefulness and non-
violence? Why?
A: The prosecution may introduce evidence of the good or
even bad moral character of the victim if it if it tends to
establish in any reasonable degree the probability or
improbability of the offense charged. (Sec. 54[a][1], Rule
130, ROC, as amended).
(b) May D introduce evidence of specific violent acts by
V? Why?
A: YES, D may introduce evidence of specific violent acts by
V. Evidence that one did or did not do a certain thing at one
time is not admissible to prove that he did or did not do the
same or a similar thing at another time; but it may be
received to prove a specific intent or knowledge, identity,
plan, system, scheme, habit, custom or usage, and the like.
(Sec. 35, Rule 130, ROC, as amended)
G. BURDEN OF PROOF AND PRESUMPTIONS
(RULE 131)
H. PRESENTATION OF EVIDENCE
(RULE 132)
(2017, 2015, 2012, 2003, 1997, 1996 BAR)
Q: X and Y were charged with murder. Upon application
of the prosecution, Y was discharged from the
Information to be utilized as a state witness. The
123
prosecutor presented Y as witness but forgot to state
the purpose of his testimony much less offer it in
evidence. Y testified that he and X conspired to kill the
victim but it was X who actually shot the victim. The
testimony of Y was the only material evidence
establishing the guilt of X. Y was thoroughly cross-
examined by the defense counsel. After the prosecution
rested its case, the defense filed a motion for demurrer
to evidence based on the following grounds:
1. The testimony of Y should be excluded because its
purpose was not initially stated and it was not
formally offered in evidence as required by Sec. 34,
Rule 132; and
2. Y’s testimony is not admissible against X pursuant
to the rule on “res inter alios acta.”
Rule on the motion for demurrer to evidence on the
above grounds. (2003 BAR)
A: The demurrer to the evidence should be denied on the
following grounds:
1. The testimony of Y should not be excluded because the
defense counsel did not object to his testimony despite
the fact that the prosecutor forgot to state its purpose
or offer it in evidence. Moreover, the defense counsel
thoroughly cross-examined Y and thus waived the
objection.
2. The res inter alios acta rule does not apply because Y
testified in open court and was subjected to cross
examination.
1. EXAMINATION OF WITNESSES
(2015, 1997, 1996 BAR)
Q: Aside from asking a witness to explain and
supplement his answer in the cross-examination, can
the proponent ask in re-direct examination questions
on matters not dealt with during cross-examination?
(1997 BAR)
A: YES, on redirect examination, questions on matters not
dealt with during the cross-examination may be allowed by
the court in its discretion. (Sec. 7, Rule 132, ROC, as amended)
Q: Tony states on direct examination that he once knew
the facts being asked but he cannot recall them now.
When handed a written record of the facts, he testifies
that the facts are correctly stated, but that he has never
seen the writing before. Is the writing admissible as
past recollection recorded? Explain. (1996 BAR)
A: NO. For the written record to be admissible as past
recollection recorded, it must have been written or
recorded by Tony or under his direction at the time when
the fact occurred, or immediately thereafter, or at any other
time when the fact was fresh in his memory and he knew
that the same was correctly written or recorded. (Sec. 16,
Rule 132, ROC, as amended) But in this case, Tony has never
seen the writing before.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
a) RIGHTS AND OBLIGATIONS OF A WITNESS
b) LEADING AND MISLEADING QUESTIONS
(2015 BAR)
Q: AA, a twelve-year-old girl, while walking alone met
BB, a teenage boy who befriended her. Later, BB
brought AA to a nearby shanty where he raped her. The
Information for rape filed against BB states: “On or
about October 30, 2015, in the City of S.P. and within the
jurisdiction of this Honorable Court, the accused, a
minor, 15 years old with lewd design and by means of
force, violence, and intimidation, did then and there,
willfully, unlawfully and feloniously had sexual
intercourse with AA, a minor, 12 years old, against the
latter’s will and consent.”
At the trial, the prosecutor called to the witness stand
AA as his first witness and manifested that he be
allowed to ask leading questions in conducting his
direct examination pursuant to the Rule on the
Examination of a Child Witness. BB’s counsel objected
on the ground that the prosecutor has not conducted a
competency examination on the witness, a requirement
before the rule cited can be applied in the case. Is BB’s
counsel correct? (2015 BAR)
A: NO. BB’s counsel is not correct. Every child is presumed
qualified to be a witness. (Sec. 6, A.M. No. 004-07-SC) To
rebut the presumption of competence enjoyed by a child,
the burden of proof lies on the party challenging his
competence. Here, AA, a 12-year old child witness who is
presumed to be competent, may be asked leading questions
by the prosecutor in conducting his direct examination
pursuant to the RECW and the Revised Rules on Criminal
Procedure. (People v. Santos, G.R. No. 171452, 17 Oct. 2008)
In order to obviate the counsel’s argument on the
competency of AA as prosecution witness, the judge motu
proprio conducted his voir dire examination of AA.
c) IMPEACHMENT OF WITNESSES
2. AUTHENTICATION AND PROOF OF DOCUMENTS
(2003 BAR)
a) MEANING OF AUTHENTICATION
b) CLASSES OF DOCUMENTS
c) AUTHENTICATION OF A PRIVATE WRITING
d) PUBLIC DOCUMENTS AS EVIDENCE;
PROOF OF OFFICIAL RECORD
(2003 BAR)
Q: X was charged with robbery. On the strength of a
warrant of arrest issued by the court, X was arrested by
police operatives. They seized from his person a
handgun. A charge for illegal possession of firearm was
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
also filed against him. In a press conference called by
the police, X admitted that he had robbed the victim of
jewelry valued at P500,000. The robbery and illegal
possession of firearm cases were tried jointly. The
prosecution presented in evidence a newspaper
clipping of the report to the reporter who was present
during the press conference stating that X admitted the
robbery. It likewise presented a certification of the PNP
Firearms and Explosive Office attesting that the
accused had no license to carry any firearm. The
certifying officer, however, was not presented as a
witness. Both pieces of evidence were objected to by the
defense. (2003 BAR)
(a) Is the newspaper clipping admissible in evidence
against X?
A: YES, the newspaper clipping is admissible in evidence
against X regardless of the truth or falsity of a statement, the
hearsay rule does not apply and the statement may be
shown where the fact that it is made relevant. Evidence as
to making of such statement is not secondary but primary,
for the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such fact.
(Gotesco Investment Corporation v. Chatto, G.R. No. L-87584,
16 June 1992)
(b) Is the certification of the PNP Firearm and
Explosive Office without the certifying officer
testifying on it admissible in evidence against X?
A: YES, the certification is admissible in evidence against X
because a written statement signed by an officer having the
custody of an official record or by his deputy that after
diligent search no record or entry of a specified tenor is
found to exist in the records of his office, accompanied by a
certificate as above provided, is admissible as evidence that
the records of his office contain no such record of entry.
(Sec. 28, Rule 132, ROC, as amended)
3. OFFER AND OBJECTION
(2017, 2012, 1997 BAR)
a. WHEN TO MAKE AN OFFER
(1997 BAR)
Q: A trial court cannot take into consideration in
deciding a case an evidence that has not been “formally
offered.” When are the following pieces of evidence
formally offered? (1997 BAR)
(a) Testimonial evidence
A: Testimonial evidence is formally offered at the time the
witness is called to testify. (Sec. 35, Rule 132, ROC, as
amended)
(b) Documentary evidence
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 QuAMTO (1987-2022)
A: Documentary evidence is formally offered after the
presentation of the testimonial evidence. (Sec. 35, Rule 132,
ROC, as amended)
(c) Object evidence
A: The same is true with object evidence. It is also offered
after the presentation of the testimonial evidence.
Q: After plaintiff has formally submitted his evidence,
he realized that he had forgotten to present what is
considered an important evidence. Can he recall a
witness? (1997 BAR)
A: YES, after formally submitting his evidence, the plaintiff
can recall a witness with leave of court. The court may grant
or withhold leave in its discretion as the interests of justice
may require. (Sec. 9, Rule 132, ROC, as amended)
name and other personal circumstances of the witness and
the substance of the proposed testimony.
In Cruz-Arevalo v. Querubin-Layosa (A.M. No. RTJ-06-2005,
14 July 2006), the Supreme Court ruled that this procedure,
also known as offer of proof, is made for purposes of appeal.
If an adverse judgment is eventually rendered against the
offeror, he may in his appeal assign as error the rejection of
the excluded evidence. The appellate court will better
understand and appreciate the assignment of error if the
evidence involved is included in the record of the case.
I. JUDICIAL AFFIDAVIT RULE
(A.M. No. 12-8-8-SC)
(2016, 2015 BAR)

Q: What are the contents of a judicial affidavit? (2016

b. WHEN TO MAKE AN OBJECTION
BAR)
(2012, 1997 BAR)

A: A judicial affidavit shall be prepared in the language

Q: What are the two kinds of objections? Explain each
known to the witness and, if not in English or Filipino,
briefly. Give example each. (1997 BAR)
accompanied by a translation in English or Filipino, and
shall contain the following:
A: Two kinds of objections are: (1) the evidence being
a. The name, age, residence or business address, and
presented is not relevant to the issue; and (2) the evidence
occupation of the witness;
is incompetent or excluded by the Constitution, law or the
b. The name and address of the lawyer who conducts
rules. (Sec. 3, Rule 128, ROC, as amended) An example of the
or supervises the examination of the witness and
first is when the prosecution offers as evidence the alleged
the place where the examination is being held;
offer of an insurance company to pay for the damages
c. A statement that the witness is answering the
suffered by the victim in a homicide case. Examples of the
questions asked of him, fully conscious that he does
second are evidence obtained in violation of the
so under oath, and that he may face criminal
Constitutional prohibition against unreasonable searches
liability for false testimony or perjury;
and seizures and confessions and admissions in violation of
d. Questions asked of the witness and his
the rights of a person under custodial investigation.
corresponding answers, consecutively numbered,
that:
Q: Counsel A objected to a question posed by opposing
Counsel B on the grounds that it was hearsay and it
1. show the circumstances under which the
assumed a fact not yet established. The judge banged
witness acquired the facts upon which he
his gavel and ruled by saying “Objection Sustained.” Can
testifies;
Counsel B ask for a reconsideration of the ruling? Why?
2. Elicit from him those facts which are relevant
(2012 BAR)
to the issues that the case presents; and
3. Identify the attached documentary and object
A: YES, Counsel B may ask the Judge to specify the ground/s
evidence and establish their authenticity in
relied upon for sustaining the objection and thereafter
accordance with the Rules of Court.
move its reconsideration thereof. (Sec. 38, Rule 132, ROC, as
amended)
e. The signature of the witness over his printed name;
and
c. TENDER OF EXCLUDED EVIDENCE
f. A jurat with the signature of the notary public who
(2017 BAR)
administers the oath or an officer who is
authorized by law to administer the same. (Sec. 3,
Q: What is a tender of excluded evidence? (2017 BAR)
A.M. No. 12-8-8-SC)

A: Tender of excluded evidence is a remedy embodied

Q: Pedro was charged with theft for stealing Juan's
under Section 40, Rule 132 of the Rules of Court, which
cellphone worth P20,000.00. Prosecutor Marilag at the
states that if documents or things offered in evidence are
pre-trial submitted the judicial affidavit of Juan
excluded by the court, the offeror may have the same
attaching the receipt for the purchase of the cellphone
attached to or made part of the record. If the evidence
to prove civil liability. She also submitted the judicial
excluded is oral, the offeror may state for the record the
affidavit of Mario, an eyewitness who narrated therein

125 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
how Pedro stole Juan's cellphone. At the trial, Pedro's
lawyer objected to the prosecution's use of judicial
affidavits of her witnesses considering the imposable
penalty on the offense with which his client was
charged. (2015 BAR)
(a) Is Pedro's lawyer correct in objecting to the judicial
affidavit of Mario?
A: YES, Pedro’s lawyer is correct in objecting to the judicial
affidavit of Mario. The Judicial Affidavit Rules shall apply
only to criminal actions where the maximum of the
imposable penalty does not exceed six (6) years. (Section
9(a)(1), A.M. No. 12-8-9-SC)
Here, the maximum imposable penalty for the crime of theft
of a cellphone worth P20,000 is prision mayor in its
minimum to medium periods, or six years and one day to
eight years and one day. Thus, Pedro’s lawyer is correct in
objecting to the judicial affidavit of Mario.
(b) Is Pedro's lawyer correct in objecting to the judicial
affidavit of Juan?
A: NO. Pedro’s lawyer is not correct in objecting to the
judicial affidavit of Juan because the Judicial Affidavit Rules
apply with respect to the civil aspect of the actions,
regardless of the penalties involved. (Sec. 9, A.M. No. 12-8-8-
SC) Here the judicial affidavit of Juan was offered to prove
the civil liability of Pedro. Thus, the objection of Pedro’s
lawyer to the judicial affidavit of Juan is not correct.
(c) At the conclusion of the prosecution's presentation
of evidence, Prosecutor Marilag orally offered the
receipt attached to Juan's judicial affidavit, which
the court admitted over the objection of Pedro's
lawyer. After Pedro's presentation of his evidence,
the court rendered judgment finding him guilty as
charged and holding him civilly liable for
P20,000.00. Pedro's lawyer seasonably filed a
motion for reconsideration of the decision
asserting that the court erred in awarding the civil
liability on the basis of Juan's judicial affidavit,
documentary evidence which Prosecutor Marilag
failed to orally offer. Is the motion for
reconsideration meritorious?
A: NO. The motion for reconsideration is not meritorious.
The judicial affidavit is not required to be orally offered as
separate documentary evidence, because it is filed in lieu of
the direct testimony of the witness. It is offered, at the time
the witness is called to testify, and any objection to it should
have been made at the time the witness was presented.
(Section 6 and 8, A.M. No. 12-8-8-SC)
Since the receipt attached to the judicial affidavit was orally
offered, there was enough basis for the court to award civil
liability.
UNIVERSITY OF SANTO TOMAS
2022 GOLDEN NOTES
J. WEIGHT AND SUFFICIENCY OF EVIDENCE
(RULE 133)
(2017, 2003 BAR)
Q: Distinguish preponderance of the evidence from
substantial evidence. (2003 BAR)
A: Preponderance of evidence means that the evidence as a
whole adduced by one side is superior to that of the other.
This is applicable in civil cases. (Sec. 1, Rule 133, ROC, as
amended; Municipality of Moncada v. Cajuigan, G.R. No. L-
7048, 01 Jan. 1912)
Substantial evidence is that amount of relevant evidence
which a reasonable mind might accept as adequate to justify
a conclusion. This is applicable in cases filed before
administrative or quasi-judicial bodies (Sec. 5, Rule 133,
ROC, as amended).
Q: What elements should concur for circumstantial
evidence to be sufficient for conviction? (2017 BAR)
A: The following elements should concur for circumstantial
evidence to be sufficient for conviction:
a) There is more than one circumstance;
b) The facts from which the inferences are derived are
proven; and
c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. (Sec. 4, Rule
133, ROC, as amended)
K. RULES ON ELECTRONIC EVIDENCE
A.M. No. 01-7-01-SC
(2022, 2003 BAR)
Q: Klaus was drinking in front of his rented apartment
when he suddenly heard a gunshot which came from
inside the apartment owned by Luther. Klaus then saw
Igor, a neighbor, going down the stairs and leaving the
scene holding a gun. Klaus also witnessed Luther fall
from the stairs with blood oozing from his chest. Vanya,
Luther's daughter, also rushed to Luther when he fell.
During Igor’s trial for Murder, Vanya testified and
presented a flash drive containing the closed-circuit
television (CCTV) footages of the scene. Said footages
showed a man appearing to be Igor, armed with a gun,
proceeding up the stairs and entering Luther's
apartment. In the video, the same man was seen hastily
leaving the premises. Vanya further testified that she
was the one who transferred to the flash drive the video
footages from the barangay-owned CCTV that was
located outside their apartment.
When the footages were played in court and an
enlarged screenshot was presented, Vanya identified
126
 QuAMTO (1987-2022)
the shooter as Igor. The defense objected on the ground
that Vanya was not the recorder of the video footages.
Are the CCTV footages admissible as electronic
evidence? Explain briefly. (2022 BAR)
A: YES, the CCTV footages are admissible as evidence
notwithstanding the fact that Vanya was not the recorder
thereof. Under the Rules on Electronic Evidence, video
evidence of acts or events shall be admissible if
authenticated by the person who made the recording or by
some other person competent to testify on the accuracy
thereof. (Sec. 1, Rule 11, Rules on Electronic Evidence)
Here, Vanya can authenticate the CCTV footages even if she
was not the recorder thereof since she was a person
competent to testify on the accuracy of the CCTV footages,
having been the one who transferred to the flash drive the
video footages from the barangay-owned CCTV that was
located outside their apartment. Hence, the CCTV footages
are admissible in evidence. (People v. Manansala, 2 Sept.
2020, J. Hernando; Riguera, 2023)
Q: While window-shopping at the mall on August 4,
2008, Dante lost his organizer including his credit card
and billing statement. Two days later, upon reporting
the matter to the credit card company, he learned that
a one-way airplane ticket was purchased online using
his credit card for a flight to Milan in mid- August 2008.
Upon extensive inquiry with the airline company, Dante
discovered that the plane ticket was under the name of
one Dina Meril. Dante approaches you for legal advice.
Suppose an Information is filed against Dina on August
12, 2008 and she is immediately arrested. What pieces
of electronic evidence will Dante have to secure in
order to prove the fraudulent online transaction?
(2010 BAR)
A: He will have to present (a) his report to the bank that he
lost his credit card; (b) that the ticket was purchased after
the report of the lost add; and (c) the purchase of one-way
ticket.
Dante should bring an original (or an equivalent copy)
printout of: (a) the online ticket purchase using his credit
card; (b) the phone call log to show that he already alerted
the credit card company of his loss; and (c) his credit card
billing statement-bearing the online ticket transaction.
Q: On March 12, 2008, Mabini was charged with Murder
for fatally stabbing Emilio. To prove the qualifying
circumstance of evident premeditation, the
prosecution introduced on December 11, 2009 a text
message, which Mabini’s estranged wife Gregoria had
sent to Emilio on the eve of his death, reading:
“Honey,pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg
ingat u bka ma tsugi k.” (2010 BAR)
(c) Suppose that shortly before he expired, Emilio was
able to send a text message to his wife Graciana
127
reading "Nasaksak ako. D na me makahinga. Si
Mabini ang may gawa ni2." Is this text message
admissible as a dying declaration? Explain.
A: YES, the text message is admissible as a dying declaration
since the same came from the victim who “shortly” expired
and it is in respect of the cause and circumstance of his
death. The decisive factor that the message was made and
sent under consciousness of an impending death, is
evidently attendant from the victim’s statement: “D na me
makakahinga” and the fact that he died shortly after he sent
the message. However, cellphone messages are regarded as
electronic evidence, and in Ang v. Court of Appeals (G.R. No.
182835, 20 Apr. 2010), the Supreme Court ruled that the
Rules on Electronic Evidence applies only to civil actions,
quasi-judicial proceedings and administrative proceeding,
not to criminal actions.
Q: State the rule on the admissibility of an electronic
evidence. (2003 BAR)
A: Whenever a rule of evidence refers to the term writing,
document, record, instrument, memorandum or any other
form of writing, such term shall be deemed to include an
electronic document as defined in the Rules. (Sec. 1, Rule 3,
A.M. 01-7-01-SC)
An electronic document is admissible in evidence if it
complies with the rules on admissibility prescribed by the
Rules of Court and related laws and is authenticated in the
manner prescribed by the Rules. (Sec. 2, Rule 3, A.M. 01-7-
01-SC) The authenticity of any private electronic document
must be proved by evidence that it had been digitally signed
and other appropriate security measures have been
applied. (Sec. 2, Rule 5, A.M. 01-7-01-SC)
Q: When is an electronic evidence regarded as being the
equivalent of an original document under the Best
Evidence Rule? (2003 BAR)
A: An electronic document shall be regarded as the
equivalent of an original document under the Best Evidence
Rule if it is a printout or output readable by sight or other
means, shown to reflect the data accurately. (Sec. 1, Rule 4,
A.M. 01-7-01-SC)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW