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4 September 2005

8 A.M. 12 Noon

INSTRUCTIONS This questionnaire consists of ten (10) numbers contained in ten (10) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question. A mere Yes or No answer without any corresponding discussion will not be given any credit.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!

_______________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-I(a) The present Constitution introduced the concepts and processes of Initiative and Referendum. Compare and differentiate one from the other. (3%) (b) To give the much needed help to the Province of Aurora which was devastated by typhoons and torrential rains, the President declared it in a state of calamity. Give at least four (4) legal effects of such declaration. (4%) (c) Enumerate the rights of the coastal state in the exclusive economic zone. (3%)

- II (1.) Police Officer Henry Magiting of the Narcotics Section of the Western Police District applied for a search warrant in the Regional Trial Court of Manila for violation of Section 11, Article II (Possession of Prohibited Drugs) of Republic Act (R.A.) No. 9165 (Comprehensive Dangerous Drugs Act of 2002) for the search and seizure of heroin in the cabin of the Captain of the MSS Seastar, a foreign-registered vessel which was moored at the South Harbor, Manila, its port of destination. Based on the affidavits of the applicants witnesses who were crew members of the vessel, they saw a box containing ten (10) kilograms of heroin under the bed in the Captains cabin. The RTC found probable cause for the issuance of a search warrant; nevertheless, it denied the application on the ground that Philippine courts have no criminal jurisdiction over violations of R.A. No. 9165 committed on foreign-registered vessels found in Philippine waters. Is the ruling of the court correct? Support your answer with reasons. (5%)

(2.) The Philippines and Australia entered into a Treaty of Extradition concurred in by the Senate of the Philippines on September 10, 1990. Both governments have

notified each other that the requirements for the entry into force of the Treaty have been complied with. It took effect in 1990. The Australian government is requesting the Philippine government to extradite its citizen, Gibson, who has committed in his country the indictable offense of Obtaining Property by Deception in 1985. The said offense is among those enumerated as extraditable in the Treaty. For his defense, Gibson asserts that the retroactive application of the extradition treaty amounts to an ex post facto law. Rule on Gibsons contention. (5%)

- III (1.) Italy, through its Ambassador, entered into a contract with Abad for the maintenance and repair of specified equipment at its Embassy and Ambassadors Residence, such as air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps. It was stipulated that the agreement shall be effective for a period of four years and automatically renewed unless cancelled. Further, it provided that any suit arising from the contract shall be filed with the proper courts in the City of Manila. Claiming that the Maintenance Contract was unilaterally, baselessly and arbitrarily terminated, Abad sued the State of Italy and its Ambassador before a court in the City of Manila. Among the defenses they raised were sovereign immunity and diplomatic immunity. (a) As counsel of Abad, refute the defenses of sovereign immunity and diplomatic immunity raised by the State of Italy and its Ambassador. (b) At any rate, what should be the courts ruling on the said defenses? (5%) (2.) Adams and Baker are American citizens residing in the Philippines. Adams befriended Baker and became a frequent visitor at his house. One day, Adams arrived with 30 members of the Philippine National Police, armed with a Search Warrant authorizing the search of Bakers house and its premises for dangerous drugs being trafficked to the United States of America. The search purportedly yielded positive results, and Baker was charged with Violation of the Dangerous Drugs Act. Adams was the prosecutions principal witness. However, for failure to prove his guilt beyond reasonable doubt, Baker was acquitted.

Baker then sued Adams for damages for filing trumped-up charges against him. Among the defenses raised by Adams is that he has diplomatic immunity, conformably with the Vienna Convention on Diplomatic Relations. He presented Diplomatic Notes from the American Embassy stating that he is an agent of the United States Drug Enforcement Agency tasked with conducting surveillance operations on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S. It was also stated that after having ascertained the target, Adams would then inform the Philippine narcotic agents to make the actual arrest. (a) As counsel of plaintiff Baker, argue why his complaint should not be dismissed on the ground of defendant Adams diplomatic immunity from suit. (b) As counsel of defendant Adams, argue for the dismissal of the complaint. (5%) - IV (1.) Squatters and vendors have put up structures in an area intended for a Peoples Park, which are impeding the flow of traffic in the adjoining highway. Mayor Cruz gave notice for the structures to be removed, and the area vacated within a month, or else, face demolition and ejectment. The occupants filed a case with the Commission on Human Rights (CHR) to stop the Mayors move. The CHR then issued an order to desist against Mayor Cruz with warning that he would be held in contempt should he fail to comply with the desistance order. When the allotted time lapsed, Mayor Cruz caused the demolition and removal of the structures. Accordingly, the CHR cited him for contempt. (a) What is your concept of Human Rights? Does this case involve violations of human rights within the scope of the CHRs jurisdiction? (b) Can the CHR issue an order to desist or restraining order? (c) Is the CHR empowered to declare Mayor Cruz in contempt? Does it have contempt powers at all? (5%) (2.) In March 2001, while Congress was adjourned, the President appointed Santos as Chairman of the Commission on Elections. Santos immediately took his oath and assumed office. While his appointment was promptly submitted to the Commission on Appointments for confirmation, it was not acted upon and Congress again

adjourned. In June 2001, the President extended a second ad interim appointment to Santos for the same position with the same term, and this appointment was again submitted to the Commission on Appointments for confirmation. Santos took his oath anew and performed the functions of his office. Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned the validity of Santos appointment. Resolve the following issues: (a) Does Santos assumption of office on the basis of the ad interim appointments issued by the President amount to a temporary appointment which is prohibited by Section 1(2), Article IX-C of the Constitution? (b) Assuming the legality of the first ad interim appointment and assumption of office by Santos, were his second ad interim appointment and subsequent assumption of office to the same position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the Constitution? (5%)

-V(1.) Bruno still had several years to serve on his sentence when he was conditionally pardoned by the President. Among the conditions imposed was that he would not again violate any of the penal laws of the Philippines. Bruno accepted all of the conditions and was released. Shortly thereafter, Bruno was charged with 20 counts of estafa. He was then incarcerated to serve the unexpired portion of his sentence following the revocation by the President of the pardon. Brunos family filed a petition for habeas corpus, alleging that it was error to have him recommitted as the charges were false, in fact, half of them were already dismissed. Resolve the petition with reasons. (4%) (2.) Ricardo was elected Dean of the College of Education in a State University for a term of five (5) years unless sooner terminated. Many were not pleased with his performance. To appease those critical of him, the President created a new position, that of Special Assistant to the President with the rank of Dean, without reduction in salary, and appointed Ricardo to said position in the interest of the service. Contemporaneously, the University President appointed Santos as Acting Dean in place of Ricardo. (a) Does the phrase unless sooner terminated mean that the position of Ricardo is terminable at will? (b) Was Ricardo removed from his position as Dean of the College of Education or merely transferred to the position of Special Assistant to the President? Explain. (5%) (3.) Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose Palacpac with violation of Article 204 of the Revised Penal Code for knowingly rendering an unjust judgment in Criminal Case No. 617. Judge Palacpac filed a motion with the Ombudsman to refer the complaint to the Supreme Court to determine whether an administrative aspect was involved in the said case. The Ombudsman denied the motion on the ground that no administrative case against Judge Palacpac relative to the decision in Criminal Case No. 617 was filed and pending in his office. State with reasons whether the Ombudsmans ruling is correct. (4%) - VI (1.) The two accepted tests to determine whether or not there is a valid delegation of legislative power are the Completeness Test and the Sufficient Standard Test. Explain each. (4%)

(2.) Section 32 of Republic Act No. 4670 (The Magna Carta for Public School Teachers) reads: Sec. 32. Penal Provision.A person who shall willfully interfere with, restrain or coerce any teacher in the exercise of his rights guaranteed by this Act or who shall in any other manner commit any act to defeat any of the provisions of this Act shall, upon conviction, be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the court. Is the proviso granting the court the authority to impose a penalty of imprisonment in its discretion constitutional? Explain briefly. (4%)

- VII (1.) State with reason(s) whether bail is a matter of right or a matter of discretion in the following cases: (a) The imposable penalty for the crime charged is reclusion perpetua and the accused is a minor; (b) The imposable penalty for the crime charged is life imprisonment and the accused is a minor; (c) The accused has been convicted of homicide on a charge of murder and sentenced to suffer an indeterminate penalty of from eight (8) years and one (1) day of prision mayor, as minimum, to twelve (12) years and four (4) months of reclusion temporal, as maximum. (4%)

(2.) State with reason(s) which of the following is a government agency or a government instrumentality: (a) Department of Public Works and Highway; (b) Bangko Sentral ng Pilipinas; (c) Philippine Ports Authority;

(d) Land Transportation Office; (e) Land Bank of the Philippines. (5%)

- VIII (1.) Mariano was arrested by the NBI as a suspect in the shopping mall bombings. Advised of his rights, Mariano asked for the assistance of his relative, Atty. Santos. The NBI noticed that Atty. Santos was inexperienced, incompetent and inattentive. Deeming him unsuited to protect the rights of Mariano, the NBI dismissed Atty. Santos. Appointed in his place was Atty. Barroso, a bar topnotcher who was in the premises visiting a relative. Atty. Barroso ably assisted Mariano when the latter gave a statement. However, Mariano assailed the investigation claiming that he was deprived of counsel of his choice. Was the NBI correct in dismissing Atty. Santos and appointing Atty. Barroso in his stead? Is Marianos statement, made with the assistance of Atty. Barroso, admissible in evidence? (5%) (2.) Emilio had long suspected that Alvin, his employee, had been passing trade secrets to his competitor, Randy, but he had no proof. One day, Emilio broke open the desk of Alvin and discovered a letter wherein Randy thanked Alvin for having passed on to him vital trade secrets of Emilio. Enclosed in the letter was a check for P50,000.00 drawn against the account of Randy and payable to Alvin. Emilio then dismissed Alvin from his employment. Emilios proof of Alvins perfidy are the said letter and check which are objected to as inadmissible for having been obtained through an illegal search. Alvin filed a suit assailing his dismissal. Rule on the admissibility of the letter and check. (5%)

- IX (1.) In the May 8, 1995 elections for local officials whose terms were to commence on June 30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of Governor of Laguna. He won, but his qualifications as an elected official was questioned. It is admitted that he is a repatriated Filipino citizen and a resident of the Province of Laguna.

To be qualified for the office to which a local official has been elected, when at the latest should he be: (a) A Filipino Citizen? Explain. (b) A resident of the locality? Explain. (5%)

(2.) Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992, 1995 and 1998. He fully served his first two terms, and during his third term, the municipality was converted into the component City of Tuba. The said charter provided for a hold-over and so without interregnum Manuel went on to serve as the Mayor of the City of Tuba. In the 2001 elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed, though, that he had already served for three consecutive terms as elected Mayor when Tuba was still a municipality. He also stated in his certificate of candidacy that he is running for the position of Mayor for the first time now that Tuba is a city. Reyes, an adversary, ran against Manuel and petitioned that he be disqualified because he had already served for three consecutive terms as Mayor. The petition was not timely acted upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes received by Reyes as the only other candidate. It was only after Manuel took his oath and assumed office that the COMELEC ruled that he was disqualified for having ran and served for three consecutive terms. (a) As lawyer of Manuel, present the possible arguments to prevent his disqualification and removal. (b) How would you rule on whether or not Manuel is eligible to run as Mayor of the newly-created City of Tuba immediately after having already served for three (3) consecutive terms as Mayor of the Municipality of Tuba? (c) Assuming that Manuel is not an eligible candidate, rebut Reyes claim that he should be proclaimed as winner having received the next higher number of votes. (5%)

-X-

(1.) There was a boundary dispute between Dueas, a municipality, and Passi, an independent component city, both of the same province. State how the two local government units should settle their boundary dispute. (5%)

(2.) The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur passed Resolution No. 1 authorizing its Mayor to initiate a petition for the expropriation of a lot owned by Christina as site for its municipal sports center. This was approved by the Mayor. However, the Sangguniang Panlalawigan of Ilocos Sur disapproved the Resolution as there might still be other available lots in Santa for a sports center. Nonetheless, the Municipality of Santa, through its Mayor, filed a complaint for eminent domain. Christina opposed this on the following grounds: (a) the Municipality of Santa has no power to expropriate; (b) Resolution No. 1 has been voided since the Sangguniang Panlalawigan disapproved it for being arbitrary; and (c) the Municipality of Santa has other and better lots for that purpose. Resolve the case with reasons. (5%) NOTHING FOLLOWS. 4 September 2005 2 P.M. 5 P.M.

INSTRUCTIONS This questionnaire consists of nine (9) numbers contained in nine (9) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question. A mere Yes or No answer without any corresponding discussion will not be given any credit.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!

____________________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-I(1.) As Human Resources Department (HRD) manager of EZ Components, an unorganized manufacturer of electric and electronic components for household appliances, you are suddenly confronted with demands for recognition and collective bargaining negotiations from two competing labor unions. They both claim to represent all the rank-and-file employees. Union A is led by a moderate faction, while Union B is affiliated with a militant federation identified with leftist ideology. Which of the following courses of action should you take to best protect the interests of your company and employees? (a) Recognize Union A as the rightful bargaining representative because it will be more reasonable to deal with; (b) Recognize Union B because you do not want to antagonize its leftist connections and foment inter-union conflicts; (c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage; or (d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the employees in the bargaining unit; (10%)

(2.) Little Hands Garment Company, an unorganized manufacturer of childrens apparel with around 1,000 workers, suffered losses for the first time in history when its US and European customers shifted their huge orders to China and Bangladesh. The management informed its employees that it could no longer afford to provide transportation shuttle services. Consequently, it announced that a nominal fare would be charged depending on the distance traveled by the workers availing of the service.

Was the Little Hands Garments Company within its rights to withdraw this benefit which it had unilaterally been providing to its employees? Select the best answer(s) and briefly explain your reason(s) therefor. (a) Yes, because it can withdraw a benefit that is unilaterally given; (b) Yes, because it is suffering losses for the first time; (c) Yes, because this is a management prerogative which is not due to any legal or contractual obligation; (d) No, because this amounts to a diminution of benefits which is prohibited by the Labor Code; (e) No, because it is a fringe benefit that has already ripened into a demandable right or entitlement. (10%) - II (1.) During the open forum following your lecture to a group of managers and HRD personnel, you were asked the following questions: (a) What qualifying circumstances will convert illegal recruitment to economic sabotage, thus subjecting its perpetrator or perpetrators to a penalty of life imprisonment and a fine of at least P500,000.00? (3%) (b) Is the commission of an unfair labor practice by an employer subject to criminal prosecution? (3%) (c) How are the portability provisions of Republic Act No. 7699 beneficial or advantageous to SSS and GSIS members in terms of their creditable employment services in the private sector or the government, as the case may be, for purposes of death, disability or retirement? (3%) Please explain your answers briefly.

(2.) Mariano Martillo was a mason employed by the ABC Construction Company. Every time that ABC had a project, it would enter into an employment contract with Martillo for a fixed period that coincided with the need for his services, usually for a duration of three to six months. Since the last project involved the construction of a 40-storey building, Martillo was contracted for 14 months. During this period, ABC granted wage increases to its regular employees, composed mostly of engineers and rank-and-file construction workers as a result of the just concluded CBA negotiations. Feeling aggrieved and discriminated against, Martillo and other similarly-situated project workers demanded that the increases be extended to them, inasmuch as they should now be considered regular employees and members of the bargaining unit. (a) If you were ABCs legal counsel, how would you respond to this demand? (b) How is a project worker different from a casual or contractual worker? Briefly explain your answers. (6%)

- III (1.) Antonio Antuquin, a security guard, was caught sleeping on the job while on duty at the Yosi Cigarette Factory. As a result, he was dismissed from employment by the Wagan Security Agency, an independent contractor. At the time of his dismissal, Antonio had been serving as a watchman in the factory for many years, often at stretches of up to 12 hours, even on Sundays and holidays, without overtime, nighttime and rest day benefits. He thereafter filed a complaint for illegal dismissal and non-payment of benefits against Yosi Cigarette Factory, which he claimed was his actual and direct employer. As the Labor Arbiter assigned to hear the case, how would you correctly resolve the following:

(a) Antonios charge of illegal dismissal; and (b) Antonios claim for overtime and other benefits. (6%)

(2.) Mans Weto had been an employee of Nopolt Assurance Company for the last ten (10) years. His wife of six (6) years died last year. They had four (4) children. He then fell in love with Jovy, his coemployee, and they got married. In October this year, Wetos new wife is expected to give birth to her first child. He has accordingly filed his application for paternity leave, conformably with the provisions of the Paternity Leave Law which took effect in 1996. The HRD manager of the assurance firm denied his application, on the ground that Weto had already used up his entitlement under that law. Weto argued that he has a new wife who will be giving birth for the first time, therefore, his entitlement to paternity leave benefits would begin to run anew. (a) Whose contention is correct, Weto or the HRD manager? (b) Is Jovy entitled to maternity leave benefits? (6%)

- IV (1.) Malyn Vartan is a well-known radio-TV talk show host. She signed a contract with XYZ Entertainment Network to host a one-hour daily talk show where she interviews various celebrities on topical subjects that she herself selects. She was paid a monthly remuneration of P300,000.00. The program had been airing for almost two years when sponsors advertising revenues dwindled, constraining the network to cancel the show upon the expiration of its latest contract with Ms. Vartan. The talk-show host protested the discontinuance of her monthly talent fee, claiming that it was tantamount to her illegal dismissal from the network since she has already attained the status of a regular employee. (a) As the networks legal counsel, how would you justify its decision to cancel Ms. Vartans program which in effect terminated her services in the process?

(b) As counsel for the talk-show host, how would you argue your case? (6%)

-VDuring the open forum following your lecture before members of various unions affiliated with a labor federation, you were asked the following questions: (a) Araw ng Kagitingan and Good Friday are among the 10 paid regular holidays under Article 94 of the Labor Code. How much will an employee receive when both holidays fall on the same day? (4%) (b) May a rank-and-file employee, who is not a member of the union representing his bargaining unit, avail of the wage increases which the union negotiated for its members? (4%) (c) What is meant by payroll reinstatement and when does it apply? (4%) (d) Under what conditions may a compressed work week schedule be legally authorized as an exception to the eight-hour a day requirement under the Labor Code? (4%) State your answers and your reasons therefor.

- VI A group of employees in XYZ Factory belonging to a religious sect, in conformity with the teachings and dictates of their religion, refused to join the labor union in the factory. The labor union was able to negotiate a substantial wage increase in its collective bargaining agreement with management. A provision therein stated that the wage increase would be paid to the members of the union only in view of a closed shop union

security clause in the new agreement. The members of the sect protested and demanded that the wage increase be extended to them. The officers of the union countered by demanding their termination from the company pursuant to the closed shop provision in the just-concluded CBA. (a) Is the CBA provision valid? (b) Should the company comply with the unions demand of terminating the members of the religious sect? (6%)

- VII (1.) Ricky Marvin had worked for more than ten (10) years in IGB Corporation. Under the terms of the personnel policy on retirement, any employee who had reached the age of 65 and completed at least ten (10) years of service would be compulsorily retired and paid 30 days pay for every year of service. Ricky Marvin, whose immigrant visa to the USA had just been approved, celebrated his 60th birthday recently. He decided to retire and move to California where the son who petitioned him had settled. The company refused to grant him any retirement benefits on the ground that he had not yet attained the compulsory retirement age of 65 years as required by its personnel policy; moreover, it did not have a policy on optional or early retirement. Taking up the cudgels for Ricky Marvin, the union raised the issue in the grievance machinery as stipulated in the CBA. No settlement was arrived at, and the matter was referred to voluntary arbitration. If you were the Voluntary Arbitrator, how would you decide? Briefly explain the reasons for your award. (5%)

(2.) Carissa, a comely bank teller, was due for her performance evaluation which is conducted every six months. A rating of outstanding is rewarded with a merit increase. She was given a below average rating in the last two periods. According to the banks personnel policy, a third rating of below average will result in termination. Mr. Perry Winkle called Carissa into his office a few days before submitting her performance ratings. He invited her to spend the night with him in his rest house. She politely declined. Undaunted, Mr. Winkle renewed his invitation, and Carissa again declined. He then warned her to watch out because she might regret it later on. A few days later, Carissa found that her third and last rating was again below average.

Carissa then filed a complaint for sexual harassment against Mr. Winkle with the Department of Labor and Employment. In his counteraffidavit, he claimed that he was enamored with Carissa. He denied having demanded, much less received any sexual favors from her in consideration of giving her an outstanding rating. He also alleged that the complaint was premature because Carissa failed to refer the matter to the Committee on Decorum and Discipline for investigation and resolution before the case against him was filed. In her reply affidavit, Carissa claimed that there was no need for a prior referral to the Committee on Decorum and Discipline of her complaint. Resolve the case with reasons. (5%)

- VIII (1.) Odeck, a policeman, was on leave for a month. While resting in their house, he heard two of his neighbors fighting with each other. Odeck rushed to the scene intending to pacify the protagonists. However, he was shot to death by one of the protagonists. Zhop, a housemaid, was Odecks surviving spouse whom he had abandoned for another woman years back.

When she learned of Odecks death, Zhop filed a claim with the GSIS for death benefits. However, her claim was denied because (a) when Odeck was killed, he was on leave; and (b) she was not the dependent spouse of Odeck when he died. Resolve with reasons whether GSIS is correct in denying the claim. (5%)

(2.) Maryrose Gandas application for the renewal of her license to recruit workers for overseas employment was still pending with the Philippine Overseas Employment Administration (POEA). Nevertheless, she recruited Alma and her three sisters, Ana, Joan and Mavic, for employment as housemaids in Saudi Arabia. Maryrose represented to the sisters that she had a license to recruit workers for overseas employment. Maryrose also demanded and received P30,000.00 from each of them for her services. However, Maryroses application for the renewal of her license was denied, and consequently failed to employ the four sisters in Saudi Arabia. The sisters charged Maryrose with large scale illegal recruitment. Testifying in her defense, Maryrose declared that she acted in good faith because she believed that her application for the renewal of her license would be approved. Maryrose adduced in evidence the Affidavits of Desistance which the four private complainants had executed after the prosecution rested its case. In the said affidavits, they acknowledged receipt of the refund by Maryrose of the total amount of P120,000.00 and indicated that they were no longer interested to pursue the case against Maryrose. Resolve the case with reasons. (5%)

- IX Kitchie Tempo was one of approximately 500 production operators at HITEC Semiconductors, Inc., an export-oriented enterprise whose business depended on orders for computer chips from overseas. She was hired as a

contractual employee four years ago. Her contracts would be for a duration of five (5) months at a time, usually after a one-month interval. Her re-hiring was contingent on her performance for the immediately preceding contract. Six months after the expiration of her last contract, Kitchie went to HITECs personnel department to inquire why she was not yet being recalled for another temporary contract. She was told that her performance during her last stint was below average. Since there was no union to represent her, Kitchie seeks your advice as a labor lawyer about her chances of getting her job back. What will your advice be? (5%)

NOTHING FOLLOWS.
11 September 2005 8 A.M. 12 Noon

INSTRUCTIONS This questionnaire consists of sixteen (16) numbers contained in nine (9) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!

____________________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-IGabby and Mila got married at Lourdes Church in Quezon City on July 10, 1990. Prior thereto, they executed a marriage settlement whereby they agreed on the regime of conjugal partnership of gains. The marriage settlement was registered in the Register of Deeds of Manila, where Mila is a resident. In 1992, they jointly acquired a residential house and lot, as well as a condominium unit in Makati. In 1995, they decided to change their property relations to the regime of complete separation of property. Mila consented, as she was then engaged in a lucrative business. The spouses then signed a private document dissolving their conjugal partnership and agreeing on a complete separation of property. Thereafter, Gabby acquired a mansion in Baguio City, and a 5hectare agricultural land in Oriental Mindoro, which he registered exclusively in his name. In the year 2000, Milas business venture failed, and her creditors sued her for P10,000,000.00. After obtaining a favorable judgment, the creditors sought to execute on the spouses house and lot and condominium unit, as well as Gabbys mansion and agricultural land. a) Discuss the status of the first and the amended marriage settlements. (2%) b) Discuss the effect/s of the said settlements on the properties acquired by the spouses. (2%) c) What properties may be held answerable for Milas obligations? Explain. (2%)

- II In 1985, Sonny and Lulu, both Filipino citizens, were married in the Philippines. In 1987, they separated, and Sonny went to Canada, where he obtained a divorce in the same year. He then married another Filipina, Auring, in Canada on January 1, 1988. They had two sons, James and

John. In 1990, after failing to hear from Sonny, Lulu married Tirso, by whom she had a daughter, Verna. In 1991, Sonny visited the Philippines where he succumbed to heart attack. a) Discuss the effect of the divorce obtained by Sonny and Lulu in Canada. (2%) b) Explain the status of the marriage between Sonny and Auring. (2%) c) Explain the status of the marriage between Lulu and Tirso. (2%) d) Explain the respective filiation of James, John and Verna. (2%) e) Who are the heirs of Sonny? Explain. (2%)

- III Emil, the testator, has three legitimate children, Tom, Henry and Warlito; a wife named Adette; parents named Pepe and Pilar; an illegitimate child, Ramon; brother, Mark; and a sister, Nanette. Since his wife Adette is well-off, he wants to leave to his illegitimate child as much of his estate as he can legally do. His estate has a net amount of P1,200,000.00, and all the above-named relatives are still living. Emil now comes to you for advice in making a will. How will you distribute his estate according to his wishes without violating the law on testamentary succession? (5%) - IV Steve was married to Linda, with whom he had a daughter, Tintin. Steve fathered a son with Dina, his secretary of 20 years, whom Dina named Joey, born on September 20, 1981. Joeys birth certificate did not

indicate the fathers name. Steve died on August 13, 1993, while Linda died on December 3, 1993, leaving their legitimate daughter, Tintin, as sole heir. On May 16, 1994, Dina filed a case on behalf of Joey, praying that the latter be declared an acknowledged illegitimate son of Steve and that Joey be given his share in Steves estate, which is now being solely held by Tintin. Tintin put up the defense that an action for recognition shall only be filed during the lifetime of the presumed parents and that the exceptions under Article 285 of the Civil Code do not apply to him since the said article has been repealed by the Family Code. In any case, according to Tintin, Joeys birth certificate does not show that Steve is his father. a) Does Joey have a cause of action against Tintin for recognition and partition? Explain. (2%) b) Are the defenses set up by Tintin tenable? Explain. (2%) c) Supposing that Joey died during the pendency of the action, should the action be dismissed? Explain. (2%)

-VIn 1984, Eva, a Filipina, went to work as a nurse in the USA. There, she met and fell in love with Paul, an American citizen, and they got married in 1985. Eva acquired American citizenship in 1987. During their sojourn in the Philippines in 1990, they filed a joint petition for the adoption of Vicky, a 7-year old daughter of Evas sister. The government, through the Office of the Solicitor General, opposed the petition on the ground that the petitioners, being both foreigners, are disqualified to adopt Vicky. a) Is the governments opposition tenable? Explain. (2%) b) Would your answer be the same if they sought to adopt Evas illegitimate daughter? Explain. (2%) c) Supposing that they filed the petition to adopt Vicky in the year 2000, will your answer be the same? Explain. (2%)

- VI Hans Herber, a German national, and his Filipino wife, Rhoda, are permanent residents of Canada. They desire so much to adopt Magno, an 8-year old orphaned boy and a baptismal godson of Rhoda. Since the accidental death of Magnos parents in 2004, he has been staying with his aunt who, however, could hardly afford to feed her own family. Unfortunately, Hans and Rhoda cannot come to the Philippines to adopt Magno although they possess all the qualifications as adoptive parents. Is there a possibility for them to adopt Magno? How should they go about it? (5%)

- VII Don was the owner of an agricultural land with no access to a public road. He had been passing through the land of Ernie with the latters acquiescence for over 20 years. Subsequently, Don subdivided his property into 20 residential lots and sold them to different persons. Ernie blocked the pathway and refused to let the buyers pass through his land. a) Did Don acquire an easement of right of way? Explain. (2%) b) Could Ernie close the pathway and refuse to let the buyers pass? Give reasons. (2%) c) What are the rights of the lot buyers, if any? Explain. (2%)

- VIII State with reason whether each of the following is a nuisance, and if so, give its classification, whether public or private: a) A squatters hut (1%)

b) A swimming pool (1%) c) A house of prostitution (1%) d) A noisy or dangerous factory in a private land (1%) e) Uncollected garbage (1%)

- IX Marvin offered to construct the house of Carlos for a very reasonable price of P900,000.00, giving the latter 10 days within which to accept or reject the offer. On the fifth day, before Carlos could make up his mind, Marvin withdrew his offer. a) What is the effect of the withdrawal of Marvins offer? (2%) b) Will your answer be the same if Carlos paid Marvin P10,000.00 as consideration for that option? Explain. (2%) c) Supposing that Carlos accepted the offer before Marvin could communicate his withdrawal thereof? Discuss the legal consequences. (2%)

-XBernie bought on installment a residential subdivision lot from DEVLAND. After having faithfully paid the installments for 48 months, Bernie discovered that DEVLAND had failed to develop the subdivision in accordance with the approved plans and specifications within the time frame in the plan. He thus wrote a letter to DEVLAND informing it that he was stopping payment. Consequently, DEVLAND cancelled the sale and wrote Bernie, informing him that his payments are forfeited in its favor. a) Was the action of DEVLAND proper? Explain. (2%)

b) Discuss the rights of Bernie under the circumstances. (2%) c) Supposing DEVLAND had fully developed the subdivision but Bernie failed to pay further installments after 4 years due to business reverses. Discuss the rights and obligations of the parties. (2%) - XI Before he left for Riyadh to work as a mechanic, Pedro left his Adventure van with Tito, with the understanding that the latter could use it for one year for his personal or family use while Pedro works in Riyadh. He did not tell Tito that the brakes of the van were faulty. Tito had the van tuned up and the brakes repaired. He spent a total amount of P15,000.00. After using the vehicle for two weeks, Tito discovered that it consumed too much fuel. To make up for the expenses, he leased it to Annabelle. Two months later, Pedro returned to the Philippines and asked Tito to return the van. Unfortunately, while being driven by Tito, the van was accidentally damaged by a cargo truck without his fault. a) Who shall bear the P15,000.00 spent for the repair of the van? Explain. (2%) b) Who shall bear the costs for the vans fuel, oil and other materials while it was with Tito? Explain. (2%) c) Does Pedro have the right to retrieve the van even before the lapse of one year? Explain. (2%) d) Who shall bear the expenses for the accidental damage caused by the cargo truck, granting that the truck driver and truck owner are insolvent? Explain. (2%)

- XII -

On July 14, 2004, Pedro executed in favor of Juan a Deed of Absolute Sale over a parcel of land covered by TCT No. 6245. It appears in the Deed of Sale that Pedro received from Juan P120,000.00 as purchase price. However, Pedro retained the owners duplicate of said title. Thereafter, Juan, as lessor, and Pedro, as lessee, executed a contract of lease over the property for a period of one (1) year with a monthly rental of P1,000.00. Pedro, as lessee, was also obligated to pay the realty taxes on the property during the period of lease. Subsequently, Pedro filed a complaint against Juan for the reformation of the Deed of Absolute Sale, alleging that the transaction covered by the deed was an equitable mortgage. In his verified answer to the complaint, Juan alleged that the property was sold to him under the Deed of Absolute Sale, and interposed counterclaims to recover possession of the property and to compel Pedro to turn over to him the owners duplicate of title. Resolve the case with reasons. (6%)

- XIII Rod, the owner of an FX taxi, found in his vehicle an envelope containing TCT No. 65432 over a lot registered in Cesars name. Posing as Cesar, Rod forged Cesars signature on a Deed of Sale in Rods favor. Rod registered the said document with the Register of Deeds, and obtained a new title in his name. After a year, he sold the lot to Don, a buyer in good faith and for value, who also registered the lot in his name. a) Did Rod acquire title to the land? Explain. (2%) b) Discuss the rights of Don, if any, over the property. (2%) c) In an ejectment case filed by Don against Cesar, can the latter ask for the cancellation of Dons title considering that he (Cesar) is the rightful owner of the lot? Explain. (2%)

- XIV Under a written contract dated December 1, 1989, Victor leased his land to Joel for a period of five (5) years at a monthly rental of P1,000.00, to be increased to P1,200.00 and P1,500.00 on the third and fifth year, respectively. On January 1, 1991, Joel subleased the land to Conrad for a period of two (2) years at a monthly rental of P1,500.00. On December 31, 1992, Joel assigned the lease to his compadre, Ernie, who acted on the belief that Joel was the rightful owner and possessor of the said lot. Joel has been faithfully paying the stipulated rentals to Victor. When Victor learned on May 15, 1992 about the sublease and assignment, he sued Joel, Conrad and Ernie for rescission of the contract of lease and for damages. a) Will the action prosper? If so, against whom? Explain. (2%) b) In case of rescission, discuss the rights and obligations of the parties. (2%)

- XV Under the law on quasi-delict, aside from the persons who caused injury to persons, who else are liable under the following circumstances: a) When a 7-year-old boy injures his playmate while playing with his fathers rifle. Explain. (2%) b) When a domestic helper, while haggling for a lower price with a fish vendor in the course of buying foodstuffs for her employers family, slaps the fish vendor, causing her to fall and sustain injuries. Explain. (2%) c) A carpenter in a construction company accidentally hits the right foot of his co-worker with a hammer. Explain. (2%)

d) A 15-year-old high school student stabs his classmate who is his rival for a girl while they were going out of the classroom after their last class. Explain. (2%) e) What defense, if any, is available to them? (2%)

XVI Dr. and Mrs. Almeda are prominent citizens of the country and are frequent travelers abroad. In 1996, they booked round-trip business class tickets for the Manila-Hong Kong-Manila route of the Pinoy Airlines, where they are holders of Gold Mabalos Class Frequent Flier cards. On their return flight, Pinoy Airlines upgraded their tickets to first class without their consent and, inspite of their protestations to be allowed to remain in the business class so that they could be with their friends, they were told that the business class was already fully booked, and that they were given priority in upgrading because they are elite members/holders of Gold Mabalos Class cards. Since they were embarrassed at the discussions with the flight attendants, they were forced to take the flight at the first class section apart from their friends who were in the business class. Upon their return to Manila, they demanded a written apology from Pinoy Airlines. When it went unheeded, the couple sued Pinoy Airlines for breach of contract claiming moral and exemplary damages, as well as attorneys fees. Will the action prosper? Give reasons. (5%)

NOTHING FOLLOWS
11 September 2005 2 P.M. 5 P.M.

INSTRUCTIONS This questionnaire consists of fourteen (14) numbers contained in eight (8) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!

____________________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-Ia) Describe the power of taxation. May a legislative body enact laws to raise revenues in the absence of a constitutional provision granting said body the power to tax? Explain. b) May taxes be the subject of set-off or compensation? Explain. c) Can an assessment for a local tax be the subject of set-off or compensation against a final judgment for a sum of money obtained by the taxpayer against the local government that made the assessment? Explain. d) Is a deficiency tax assessment a bar to a claim for tax refund or tax credit? Explain. e) Is the approval of the court, sitting as probate or estate settlement court, required in the enforcement and collection of estate tax? Explain. (10%)

- II (1.) Explain briefly whether the following items are taxable or nontaxable: a) Income from jueteng; b) Gain arising from expropriation of property; c) Taxes paid and subsequently refunded;

d) Recovery of bad debts previously charged off; e) Gain on the sale of a car used for personal purposes. (5%)

(2.) State and discuss briefly whether the following cases may be compromised or may not be compromised: a) Delinquent accounts; b) Cases under administrative protest, after issuance of the final assessment notice to the taxpayer, which are still pending; c) Criminal tax fraud cases; d) Criminal violations already filed in court; e) Cases where final reports of reinvestigation or reconsideration have been issued resulting in the reduction of the original assessment agreed to by the taxpayer when he signed the required agreement form. (5%) - III (1.) A city outside of Metro Manila plans to enact an ordinance that will impose a special levy on idle lands located in residential subdivisions within its territorial jurisdiction in addition to the basic real property tax. If the lot owners of a subdivision located in the said city seek your legal advice on the matter, what would your advice be? Discuss. (5%)

(2.) a) State and explain the basis of dutiable value of an imported article subject to an ad valorem tax under the Tariff and Customs Code. b) Distinguish countervailing duty from dumping duty. (5%)

(3.) Jacob, after serving a 5-year tour of duty as military attach in Jakarta, returned to the Philippines bringing with him his personal effects including a personal computer and a car. Would Jacob be liable for taxes on these items? Discuss fully. (5%)

- IV (1.) State with reasons the tax treatment of the following in the preparation of annual income tax returns: a) Proceeds of life insurance received by a child as irrevocable beneficiary; b) 13th month pay and de minimis benefits; c) Dividends received by a domestic corporation from (i) another domestic corporation; and (ii) a foreign corporation; d) Interest on deposits with (i) BPI Family Bank; and (ii) a local offshore banking unit of a foreign bank; e) Income realized from sale of (i) capital assets; and (ii) ordinary assets.

(5%)

(2.) a) State the conditions required by the Tax Code before the Commissioner of Internal Revenue could authorize the refund or credit of taxes erroneously or illegally received. b) Does a withholding agent have the right to file an application for tax refund? Explain. (5%)

-VA taxpayer received a tax deficiency assessment of P1.2 Million from the BIR demanding payment within 10 days, otherwise, it would collect through summary remedies. The taxpayer requested for a reconsideration stating the grounds therefor. Instead of resolving the request for reconsideration, the BIR sent a Final Notice Before Seizure to the taxpayer. May this action of the Commissioner of Internal Revenue be deemed a denial of the request for reconsideration of the taxpayer to entitle him to appeal to the Court of Tax Appeals? Decide with reasons. (5%)

- VI Danilo, who is engaged in the trading business, entrusted to his accountant the preparation of his income tax return and the payment of the

tax due. The accountant filed a falsified tax return by underdeclaring the sales and overstating the expense deductions by Danilo. Is Danilo liable for the deficiency tax and the penalties thereon? What is the liability, if any, of the accountant? Discuss. (5%)

- VII An international airline with no landing rights in the Philippines sold tickets in the Philippines for air transportation. Is income derived from such sales of tickets considered taxable income of the said international air carrier from Philippine sources under the Tax Code? Explain. (5%)

- VIII JR was a passenger of an airline that crashed. He survived the accident but sustained serious physical injuries which required hospitalization for 3 months. Following negotiations with the airline and its insurer, an agreement was reached under the terms of which JR was paid the following amounts: P500,000.00 for his hospitalization; P250,000.00 as moral damages; and P300,000.00 for loss of income during the period of his treatment and recuperation. In addition, JR received from his employer the amount of P200,000.00 representing the cash equivalent of his earned vacation and sick leaves. Which, if any, of the amounts he received are subject to income tax? Explain. (5%)

- IX Company A decides to close its operations due to continuing losses and to terminate the services of its employees. Under the Labor Code, employees who are separated from service for such cause are entitled to a minimum of one-half month pay for every year of service. Company A paid the equivalent of one month pay for every year of service and the cash equivalent of unused vacation and sick leaves as separation benefits. Are such benefits taxable and subject to withholding tax under the Tax Code? Decide with reasons. (5%) -XThe Roman Catholic Church owns a 2-hectare lot in a town in Tarlac province. The southern side and middle part are occupied by the Church and a convent, the eastern side by a school run by the Church itself, the southeastern side by some commercial establishments, while the rest of the property, in particular the northwestern side, is idle or unoccupied. May the Church claim tax exemption on the entire land? Decide with reasons. (5%) - XI An alien employee of the Asian Development Bank (ADB) who is retiring soon has offered to sell his car to you which he imported tax-free for his personal use. The privilege of exemption from tax is granted to qualified personal use under the ADB Charter which is recognized by the tax authorities. If you decide to purchase the car, is the sale subject to tax? Explain. (5%)

- XII Ralph Donald, an American citizen, was a top executive of a U.S. company in the Philippines until he retired in 1999. He came to like the Philippines so much that following his retirement, he decided to spend the rest of his life in the country. He applied for and was granted a permanent resident status the following year. In the spring of 2004, while vacationing in Orlando, Florida, USA, he suffered a heart attack and died. At the time of his death, he left the following properties: (a) bank deposits with Citibank Makati and Citibank Orlando, Florida; (b) a resthouse in Orlando, Florida; (c) a condominium unit in Makati; (d) shares of stock in the Philippine subsidiary of the U.S. Company where he worked; (e) shares of stock in San Miguel Corp. and PLDT; (f) shares of stock in Disney World in Florida; (g) U.S. treasury bonds; and (g) proceeds from a life insurance policy issued by a U.S. corporation. Which of the foregoing assets shall be included in the taxable gross estate in the Philippines? Explain. (5%) - XIII Josel agreed to sell his condominium unit to Jess for P2.5 Million. At the time of the sale, the property had a zonal value of P2.0 Million. Upon the advice of a tax consultant, the parties agreed to execute two deeds of sale, one indicating the zonal value of P2.0 Million as the selling price and the other showing the true selling price of P2.5 Million. The tax consultant filed the capital gains tax return using the deed of sale showing the zonal value of P2.0 Million as the selling price. Discuss the tax implications and consequences of the action taken by the parties. (5%)

- XIV -

(1.) Mr. Fermin, a resident of Quezon City, is a Certified Public Accountant-Lawyer engaged in the practice of his two professions. He has his main office in Makati City and maintains a branch office in Pasig City. Mr. Fermin pays his professional tax as a CPA in Makati City and his professional tax as a lawyer in Pasig City. a) May Makati City, where he has his main office, require him to pay his professional tax as a lawyer? Explain. b) May Quezon City, where he has his residence and where he also practices his two professions, go after him for the payment of his professional tax as a CPA and a lawyer? Explain. (5%) (2.) In 1995, the BIR filed before the Department of Justice (DOJ) a criminal complaint against a corporation and its officers for alleged evasion of taxes. The complaint was supported by a sworn statement of the BIR examiners showing the computation of the tax liabilities of the erring taxpayer. The corporation filed a motion to dismiss the criminal complaint on the ground that there has been, as yet, no assessment of its tax liability; hence, the criminal complaint was premature. The DOJ denied the motion on the ground that an assessment of the tax deficiency of the corporation is not a precondition to the filing of a criminal complaint and that in any event, the joint affidavit of the BIR examiners may be considered as an assessment of the tax liability of the corporation. Is the ruling of the DOJ correct? Explain. (5%)

NOTHING FOLLOWS
18 September 2005 8 A.M. 12 Noon

INSTRUCTIONS This questionnaire consists of fifteen (15) numbers contained in ten (10) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!

____________________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-I(1.) What is a negotiable instrument? Give the characteristics of a negotiable instrument. (2%)

(2.) Distinguish a negotiable document from a negotiable instrument. (2%)

(3.) State and explain whether the following are negotiable instruments under the Negotiable Instruments Law: (i) Postal Money Order; (ii) A certificate of time deposit which states This is to certify that bearer has deposited in this bank the sum of FOUR THOUSAND PESOS (P4,000.00) only, repayable to the depositor 200 days after date. (iii) Letters of credit; (iv) Warehouse receipts; (v) Treasury warrants payable from a specific fund. (5%) - II (1.) Dagul has a business arrangement with Facundo. The latter would lend money to another, through Dagul, whose name would appear in the promissory note as the lender. Dagul would then immediately indorse the note to Facundo. Is Dagul an accommodation party? Explain. (2%)

(2.) a) What is a crossed check? What are the effects of crossing a check? Explain. b) Distinguish an irregular indorser from a general indorser. (3%) (3.) Brad was in desperate need of money to pay his debt to Pete, a loan shark. Pete threatened to take Brads life if he failed to pay. Brad and Pete went to see Seorita Isobel, Brads rich cousin, and asked her if she could sign a promissory note in his favor in the amount of P10,000.00 to pay Pete. Fearing that Pete would kill Brad, Seorita Isobel acceded to the request. She affixed her signature on a piece of paper with the assurance of Brad that he will just fill it up later. Brad then filled up the blank paper, making a promissory note for the amount of P100,000.00. He then indorsed and delivered the same to Pete, who accepted the note as payment of the debt. What defense or defenses can Seorita Isobel set up against Pete? Explain. (3%)

- III (1.) Under what conditions may a stock corporation acquire its own shares? (2%) (2.) Janice rendered some consultancy work for XYZ Corporation. Her compensation included shares of stock therein. Can XYZ Corporation issue shares of stock to pay for the services of Janice as its consultant? Discuss your answer. (2%)

- IV -

Divine Corporation is engaged in the manufacture of garments for export. In the course of its business, it was able to obtain loans from individuals and financing institutions. However, due to the drop in the demand for garments in the international market, Divine Corporation could not meet its obligations. It decided to sell all its equipment such as sewing machines, perma-press machines, high speed sewers, cutting tables, ironing tables, etc., as well as its supplies and materials to Top Grade Fashion Corporation, its competitor. a) How would you classify the transaction? b) Can Divine Corporation sell the aforesaid items to its competitor, Top Grade Fashion Corporation? What are the requirements to validly sell the items? Explain. c) How would you protect the interests of the creditors of Divine Corporation? d) In case Divine Corporation violated the law, what remedies are available to Top Grade Fashion Corporation against Divine Corporation? (5%)

-V(1.) a) Under what circumstances may a corporation declare dividends? (2%) b) Distinguish dividend from profit; cash dividend from stock dividend. (2%) c) From what funds are cash and stock dividends sourced? Explain why. (2%)

(2.) A Korean national joined a corporation which is engaged in the furniture manufacturing business. He was elected to the Board of Directors. To complement its furniture manufacturing business, the corporation also engaged in the logging business. With the additional logging activity, can the Korean national still be a member of the Board of Directors? Explain. (3%)

- VI Jojo deposited several cartons of goods with SN Warehouse Corporation. The corresponding warehouse receipt was issued to the order of Jojo. He endorsed the warehouse receipt to EJ who paid the value of the goods deposited. Before EJ could withdraw the goods, Melchor informed SN Warehouse Corporation that the goods belonged to him and were taken by Jojo without his consent. Melchor wants to get the goods, but EJ also wants to withdraw the same. a) Who has a better right to the goods? Why? b) If SN Warehouse Corporation is uncertain as to who is entitled to the property, what is the proper recourse of the corporation? Explain. (5%) - VII (1.) Briefly discuss the doctrine of corporate opportunity. (2%) (2.) Malyn, Schiera and Jaz are the directors of Patio Investments, a close corporation formed to run the Patio Caf, an al fresco coffee shop in Makati City. In 2000, Patio Caf began experiencing financial reverses, consequently, some of the checks it issued to its beverage distributors and employees bounced.

In October 2003, Schiera informed Malyn that she found a location for a second caf in Taguig City. Malyn objected because of the dire financial condition of the corporation. Sometime in April 2004, Malyn learned about Fort Patio Caf located in Taguig City and that its development was undertaken by a new corporation known as Fort Patio, Inc., where both Schiera and Jaz are directors. Malyn also found that Schiera and Jaz, on behalf of Patio Investments, had obtained a loan of P500,000.00, from PBCom Bank, for the purpose of opening Fort Patio Caf. This loan was secured by the assets of Patio Investments and personally guaranteed by Schiera and Jaz. Malyn then filed a corporate derivative action before the Regional Trial Court of Makati City against Schiera and Jaz, alleging that the two directors had breached their fiduciary duties by misappropriating money and assets of Patio Investments in the operation of Fort Patio Caf. a) Did Schiera and Jaz violate the principle of corporate opportunity? Explain. b) Was it proper for Malyn to file a derivative suit with a prayer for injunctive relief? Explain. c) Assuming that a derivative suit is proper, may the action continue if the corporation is dissolved during the pendency of the suit? Explain. (5%)

- VIII Aaron, a well-known architect, is suffering from financial reverses. He has four creditors with a total claim of P26 Million. Despite his intention to pay these obligations, his current assets are insufficient to cover all of them. His creditors are about to sue him. Consequently, he was constrained to file a petition for insolvency. a) Since Aaron was merely forced by circumstances to petition the court to declare him insolvent, can the judge properly treat the petition as one for involuntary insolvency? Explain.

b) If Aaron is declared an insolvent by the court, what would be the effect, if any, of such declaration on his creditors? Explain. c) Assuming that Aaron has guarantors for his debts, are the guarantors released from their obligations once Aaron is discharged from his debts? Explain. d) What remedies are available to the guarantors in case they are made to pay the creditors? Explain. (5%)

- IX (1.) What are the effects of an irrevocable designation of a beneficiary under the Insurance Code? Explain. (2%) (2.) Jacob obtained a life insurance policy for P1 Million designating irrevocably Diwata, a friend, as his beneficiary. Jacob, however, changed his mind and wants Yob and Jojo, his other friends, to be included as beneficiaries considering that the proceeds of the policy are sufficient for the three friends. Can Jacob still add Yob and Jojo as his beneficiaries? Explain. (2%)

-X(1.) M/V Pearly Shells, a passenger and cargo vessel, was insured for P40,000,000.00 against constructive total loss. Due to a typhoon, it sank near Palawan. Luckily, there were no casualties, only injured passengers. The shipowner sent a notice of abandonment of his interest

over the vessel to the insurance company which then hired professionals to afloat the vessel for P900,000.00. When re-floated, the vessel needed repairs estimated at P2,000,000.00. The insurance company refused to pay the claim of the shipowner, stating that there was no constructive total loss. a) Was there constructive total loss to entitle the shipowner to recover from the insurance company? Explain. b) Was it proper for the shipowner to send a notice of abandonment to the insurance company? Explain. (5%)

(2.)

a) When does double insurance exist? (2%)

b) What is the nature of the liability of the several insurers in double insurance? Explain. (2%)

- XI Ricardo mortgaged his fishpond to AC Bank to secure a P1 Million loan. In a separate transaction, he opened a letter of credit with the same bank for $500,000.00 in favor of HS Bank, a foreign bank, to purchase outboard motors. Likewise, Ricardo executed a Surety Agreement in favor of AC Bank. The outboard motors arrived and were delivered to Ricardo, but he was not able to pay the purchase price thereof. a) Can AC Bank take possession of the outboard motors? Why? b) Can AC Bank also foreclose the mortgage over the fishpond? Explain. (5%)

- XII Hi Yielding Corporation filed a complaint against five of its officers for violation of Section 31 of the Corporation Code. The corporation claimed that the said officers were guilty of advancing their personal interests to the prejudice of the corporation, and that they were grossly negligent in handling its affairs. Aside from documents and contracts, the corporation also submitted in evidence records of the officers U.S. Dollar deposits in several banks overseas - Boston Bank, Bank of Switzerland, and Bank of New York. For their part, the officers filed a criminal complaint against the directors of Hi Yielding Corporation for violation of Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act of the Philippines. The officers alleged that their bank deposits were illegally disclosed for want of a court order, and that such deposits were not even the subject of the case against them. a) Will the complaint filed against the directors of Hi Yielding Corporation prosper? Explain. b) Was there a violation of the Secrecy of Bank Deposits Law (Republic Act No. 1405)? Explain. (5%)

- XIII (1.) Discuss the kabit system in land transportation and its legal consequences. (2%) (2.) Procopio purchased an Isuzu passenger jeepney from Enteng, a holder of a certificate of public convenience for the operation of public utility vehicle plying the Calamba-Los Baos route. While Procopio continued offering the jeepney for public transport services, he did not have the

registration of the vehicle transferred in his name. Neither did he secure for himself a certificate of public convenience for its operation. Thus, per the records of the Land Transportation Franchising and Regulatory Board, Enteng remained its registered owner and operator. One day, while the jeepney was traveling southbound, it collided with a ten-wheeler truck owned by Emmanuel. The driver of the truck admitted responsibility for the accident, explaining that the truck lost its brakes. Procopio sued Emmanuel for damages, but the latter moved to dismiss the case on the ground that Procopio is not the real party in interest since he is not the registered owner of the jeepney. Resolve the motion with reasons. (3%) (3.) Baldo is a driver of Yellow Cab Company under the boundary system. While cruising along the South Expressway, Baldos cab figured in a collision, killing his passenger, Pietro. The heirs of Pietro sued Yellow Cab Company for damages, but the latter refused to pay the heirs, insisting that it is not liable because Baldo is not its employee. Resolve with reasons. (2%) - XIV (1.) On a clear weather, M/V Sundo, carrying insured cargo, left the port of Manila bound for Cebu. While at sea, the vessel encountered a strong typhoon forcing the captain to steer the vessel to the nearest island where it stayed for seven days. The vessel ran out of provisions for its passengers. Consequently, the vessel proceeded to Leyte to replenish its supplies. a) Assuming that the cargo was damaged because of such deviation, who between the insurance company and the owner of the cargo bears the loss? Explain. b) Under what circumstances can a vessel properly proceed to a port other than its port of destination? Explain.

(4%) (2.) Star Shipping Lines accepted 100 cartons of sardines from Master to be delivered to 555 Company in Manila. Only 88 cartons were delivered, however, these were in bad condition. 555 Company claimed from Star Shipping Lines the value of the missing goods, as well as the damaged goods. Star Shipping Lines refused because the former failed to present a bill of lading. Resolve with reasons the claim of 555 Company. (4%) - XV (1.) S Development Corporation sued Shangrila Corporation for using the S logo and the tradename Shangrila. The former claims that it was the first to register the logo and the tradename in the Philippines and that it had been using the same in its restaurant business. Shangrila Corporation counters that it is an affiliate of an international organization which has been using such logo and tradename Shangrila for over 20 years. However, Shangrila Corporation registered the tradename and logo in the Philippines only after the suit was filed. a) Which of the two corporations has a better right to use the logo and the tradename? Explain. b) How does the international affiliation of Shangrila Corporation affect the outcome of the dispute? Explain. (5%) (2.) Cezar works in a car manufacturing company owned by Joab. Cezar is quite innovative and loves to tinker with things. With the materials and parts of the car, he was able to invent a gas-saving device that will

enable cars to consume less gas. Francis, a co-worker, saw how Cezar created the device and likewise, came up with a similar gadget, also using scrap materials and spare parts of the company. Thereafter, Francis filed an application for registration of his device with the Bureau of Patents. Eighteen months later, Cezar filed his application for the registration of his device with the Bureau of Patents. a) Is the gas-saving device patentable? Explain. b) Assuming that it is patentable, who is entitled to the patent? What, if any, is the remedy of the losing party? c) Supposing Joab got wind of the inventions of his employees and also laid claim to the patents, asserting that Cezar and Francis were using his materials and company time in making the devices, will his claim prevail over those of his employees? Explain. (5%) NOTHING FOLLOWS.
18 September 2005 2 P.M. 5 P.M.

INSTRUCTIONS This questionnaire consists of fifteen (15) numbers contained in nine (9) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!

____________________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-I(1.) Distinguish the following from each other: a) Complex crime under Article 48 of the Revised Penal Code; b) Special complex crime; and c) delito continuado. (3%)

(2.) Under Article 27 of the Revised Penal Code, as amended by Republic Act (RA) No. 7959, reclusion perpetua shall be from 20 years and 1 day to 40 years. Does this mean that reclusion perpetua is now a divisible penalty? Explain. (2%)

(3.) Distinguish pecuniary penalties from pecuniary liabilities. (2%)

(4.) Taking into account the nature and elements of the felonies of coup d etat and rape, may one be criminally liable for frustrated coup d etat or frustrated rape? Explain. (2%)

(5.) Distinguish malum in se from malum prohibitum. (2%)

- II (1.) Belle saw Gaston stealing the prized cock of a neighbor and reported him to the police. Thereafter, Gaston, while driving a car saw

Belle crossing the street. Incensed that Belle had reported him, Gaston decided to scare her by trying to make it appear that he was about to run her over. He revved the engine of his car and drove towards her but he applied the brakes. Since the road was slippery at that time, the vehicle skidded and hit Belle causing her death. What is the liability of Gaston? Why? (4%) (2.) DD was engaged in the warehouse business. Sometime in November 2004, he was in dire need of money. He, thus, sold merchandise deposited in his warehouse to VR for P500,000.00. DD was charged with theft, as principal, while VR as accessory. The court convicted DD of theft but acquitted VR on the ground that he purchased the merchandise in good faith. However, the court ordered VR to return the merchandise to the owner thereof and ordered DD to refund the P500,000.00 to VR. DD moved for the reconsideration of the decision insisting that he should be acquitted of theft because being the depositary, he had juridical possession of the merchandise. VR also moved for the reconsideration of the decision insisting that since he was acquitted of the crime charged, and that he purchased the merchandise in good faith, he is not obligated to return the merchandise to its owner. Rule on the motions with reasons. (5%) - III (1.) Harold was convicted of a crime defined and penalized by a special penal law where the imposable penalty is from 6 months, as minimum, to 3 years, as maximum. State with reasons whether the court may correctly impose the following penalties: a) a straight penalty of 10 months; b) 6 months, as minimum, to 11 months, as maximum; c) a straight penalty of 2 years.

(5%) (2.) E and M are convicted of a penal law that imposes a penalty of fine or imprisonment or both fine and imprisonment. The judge sentenced them to pay the fine, jointly and severally, with subsidiary imprisonment in case of insolvency. a) Is the penalty proper? Explain. b) May the judge impose an alternative penalty of fine or imprisonment? Explain. (4%) (3.) The accused was found guilty of 10 counts of rape for having carnal knowledge with the same woman. In addition to the penalty of imprisonment, he was ordered to pay indemnity in the amount of P50,000.00 for each count. On appeal, the accused questions the award of civil indemnity for each count, considering that the victim is the same woman. How would you rule on the contention of the accused? Explain. (3%)

- IV (1.) Maganda was charged with violation of the Bouncing Checks Law (BP 22) punishable by imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not more than double the amount of the check, which fine shall not exceed P200,000.00, or both. The court convicted her of the crime and sentenced her to pay a fine of P50,000.00 with subsidiary imprisonment in case of insolvency, and to pay the private complainant the amount of the check. Maganda was unable to pay the fine but filed a petition for probation. The court granted the petition subject to the condition, among others, that she should not change her residence without the courts prior approval.

a) What is the proper period of probation? b) Supposing before the Order of Discharge was issued by the court but after the lapse of the period of probation, Maganda transferred residence without prior approval of the court. May the court revoke the Order of Probation and order her to serve the subsidiary imprisonment? Explain. (5%)

(2.) DD purchased a television set for P50,000.00 with the use of a counterfeit credit card. The owner of the establishment had no inkling that the credit card used by DD was counterfeit. What crime or crimes did DD commit? Explain. (5%) -VPaz Masipag worked as a housemaid and yaya of the one-week old son of the spouses Martin and Pops Kuripot. When Paz learned that her 70 year-old mother was seriously ill, she asked Martin for a cash advance of P1,000.00 but Martin refused. One morning, Paz gagged the mouth of Martins son with stockings; placed the child in a box; sealed it with masking tape and placed the box in the attic. Later in the afternoon, she demanded P5,000.00 as ransom for the release of his son. Martin did not pay the ransom. Subsequently, Paz disappeared. After a couple of days, Martin discovered the box in the attic with his child already dead. According to the autopsy report, the child died of asphyxiation barely three minutes after the box was sealed. What crime or crimes did Paz commit? Explain. (5%)

- VI Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for the use of shabu at the time he committed the stabbing. What should be the proper charge against Candido? Explain. (3%)

- VII Jose employed Mario as gardener and Henry as cook. They learned that Jose won P500,000.00 in the lotto, and decided to rob him. Mario positioned himself about 30 meters away from Joses house and acted as lookout. For his part, Henry surreptitiously gained entry into the house and killed Jose who was then having his dinner. Henry found the P500,000.00 and took it. Henry then took a can of gasoline from the garage and burned the house to conceal the acts. Mario and Henry fled, but were arrested around 200 meters away from the house by alert barangay tanods. The tanods recovered the P500,000.00. Mario and Henry were charged with and convicted of robbery with homicide, with the aggravating circumstances of arson, dwelling, and nighttime. Mario moved to reconsider the decision maintaining that he was not at the scene of the crime and was not aware that Henry killed the victim; hence, he was guilty only of robbery, as an accomplice. Mario also claimed that he conspired with Henry to commit robbery but not to kill Jose. Henry, likewise, moved to reconsider the decision, asserting that he is liable only for attempted robbery with homicide with no aggravating circumstance, considering that he and Mario did not benefit from the P500,000.00. He further alleged that arson is a felony and not an aggravating circumstance; dwelling is not aggravating in attempted robbery with homicide; and nighttime is not aggravating because the house of Jose was lighted at the time he was killed.

Resolve with reasons the respective motions of Mario and Henry. (7%)

- VIII Pete, a security guard, arrived home late one night after rendering overtime. He was shocked to see Flor, his wife, and Benjie, his best friend, completely naked having sexual intercourse. Pete pulled out his service gun and shot and killed Benjie. Pete was charged with murder for the death of Benjie. Pete contended that he acted in defense of his honor and that, therefore, he should be acquitted of the crime. The court found that Benjie died under exceptional circumstances and exonerated Pete of the crime, but sentenced him to destierro, conformably with Article 247 of the Revised Penal Code. The court also ordered Pete to pay indemnity to the heirs of the victim in the amount of P50,000.00. a) Is the defense of Pete meritorious? Explain. b) Under Article 247 of the Revised Penal Code, is destierro a penalty? Explain. c) Did the court correctly order Pete to pay indemnity despite his exoneration under Article 247 of the Revised Penal Code? Explain. (5%)

- IX Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return to his office after a day-long official conference. He alighted from the government car which was officially assigned to him, leaving the ignition key and the car unlocked, and rushed to his office. Jules, a

bystander, drove off with the car and later sold the same to his brother, Danny for P20,000.00, although the car was worth P800,000.00. a) What are the respective crimes, if any, committed by Allan, Danny and Jules? Explain. b) What, if any, are their respective civil liabilities? Explain. (5%)

-XDuring a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of methamphetamine hydrochloride (shabu) to a poseur-buyer. Cao Shih, through an intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section, the amount of P500,000.00 in consideration for the destruction by Patrick of the drug. Patrick managed to destroy the drug. State with reasons whether Patrick committed the following crimes: a) Direct bribery; b) Indirect bribery; c) Section 3(e) of RA 3019 (Anti-Graft and Corrupt Practices Act); d) Obstruction of Justice under PD 1829; (7%)

- XI -

On July 1, 2004, Jet Matulis, a pedophile, gave P1,000.00 to Sherly, an orphan and a prostitute, and brought her to a motel. He inserted a rusty and oversized vibrator into her vagina with such force that she bled profusely. Jet panicked and fled. Sherly was brought to the hospital and died a few days later because of shock caused by hemorrhage. a) What crime or crimes did Jet Matulis commit? Explain. b) If Sherly were a minor when she died, would your answer be the same? Explain. (5%)

- XII Don Gabito, a philanthropist, offered to fund several projects of the Mayor. He opened an account in the Mayors name and regularly deposited various amounts ranging from P500,000.00 to P1 Million. From this account, the Mayor withdrew and used the money for constructing feeder roads, barangay clinics, repairing schools and for all other municipal projects. It was subsequently discovered that Don Gabito was actually a jueteng operator and the amounts he deposited were proceeds from his jueteng operations. What crime/s were committed? Who are criminally liable? Explain. (6%)

- XIII Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or shabu. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for the use of

marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article II of RA 9165 for the possession of shabu and violation of Section 15, Article II of RA 9165 for the use of marijuana. a) Are the charges proper? Explain. b) So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? Why? (5%)

- XIV Al Chua, a Chinese national, filed a petition under oath for naturalization, with the Regional Trial Court of Manila. In his petition, he stated that he is married to Leni Chua; that he is living with her in Sampaloc, Manila; that he is of good moral character; and that he has conducted himself in an irreproachable manner during his stay in the Philippines. However, at the time of the filing of the petition, Leni Chua was already living in Cebu, while Al was living with Babes Toh in Manila, with whom he has an amorous relationship. After his direct testimony, Al Chua withdrew his petition for naturalization. What crime or crimes, if any, did Al Chua commit? Explain. (5%)

- XV In an interview aired on television, Cindee uttered defamatory statements against Erika, a successful and reputable businesswoman. What crime or crimes did Cindee commit? Explain. (3%)

NOTHING FOLLOWS.
25 September 2005 8 A.M. 12 Noon

INSTRUCTIONS This questionnaire consists of eighteen (18) numbers contained in ten (10) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question.

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____________________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-Ia) 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. b) 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. c) May a private document be offered and admitted in evidence both as documentary evidence and as object evidence? Explain. d) Distinguish a derivative suit from a class suit. e) When may the trial court order that the testimony of a child be taken by live-link television? Explain. (10%) - II (1.) While Marietta was in her place of work in Makati City, her estranged husband Carlo barged into her house in Paraaque City, abducted their six-year old son, Percival, and brought the child to his hometown in Baguio City. Despite Mariettas 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 in 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. (5%) (2.) Under Republic Act No. 8353, one may be charged with and found guilty of qualified rape if he knew on or before the commission of the crime that he is afflicted with Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim. Under Section 17(a) of Republic Act No. 8504 the court may compel the accused to submit himself to a blood test where blood samples would be extracted from his veins to determine whether he has HIV. a) Are the rights of the accused to be presumed innocent of the crime charged, to privacy, and against self-incrimination violated by such compulsory testing? Explain. b) If the result of such test shows that he is HIV positive, and the prosecution offers such result in evidence to prove the qualifying circumstance under the Information for qualified rape, should the court reject such result on the ground that it is the fruit of a poisonous tree? Explain. (8%) - III 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 P100,000.00 from Ricky which he promised to pay on or before December 1, 2004. However, Perry failed to pay his loan. Perry also rejected Ricky and Marvins proposal to partition the property.

Ricky filed a complaint against Perry and Marvin in the Regional Trial Court of Pasay City for the partition of the property. He also incorporated in his complaint his action against Perry for the collection of the latters P100,000.00 loan, plus interests and attorneys 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 Regional Trial Court of Pasay City. (5%)

- IV 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 and 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. (4%) -V-

(1.) After Lulus death, her heirs brought her last will to a lawyer to obtain their respective shares in the estate. The lawyer prepared a deed of partition distributing Lulus estate in accordance with the terms of her will. Is the act of the lawyer correct? Why? (2%) (2.) 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. (2%)

(3.) State the rule on venue in judicial settlement of estate of deceased persons. (2%)

- VI 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. (4%)

- VII -

Katy filed an action against Tyrone for collection of the sum of P1 Million in the Regional Trial Court, 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 Tyrones house and served him the summons, with copies of the complaint containing the application for writ of preliminary attachment, Katys 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. (4%)

- VIII 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 belief as to the truth thereof. Is it proper for the court to render judgment without trial? Explain. (4%)

- IX On May 12, 2005, the plaintiff filed a complaint in the Regional Trial Court of Quezon City for the collection of P250,000.00. The defendant filed a motion to dismiss the complaint on the ground that the court had no jurisdiction over the action since the claimed amount of P250,000.00 is within the exclusive jurisdiction of the Metropolitan Trial Court of Quezon City. Before the court could resolve the motion, the plaintiff, without leave of court, amended his complaint to allege a new cause of action consisting in the inclusion of an additional amount of P200,000.00, thereby increasing his total claim to P450,000.00. The plaintiff thereafter filed his opposition to the motion to dismiss, claiming that the Regional Trial Court had jurisdiction over his action. Rule on the motion of the defendant with reasons. (4%)

-XA 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 Bs 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 and C jointly and severally liable to A for the money judgment. Is the ruling of the court correct? Explain. (4%)

- XI Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her filiation from legitimate to illegitimate and her citizenship from Chinese to Filipino because her parents were not married. What petition should Helen file and what procedural requirements must be observed? Explain. (5%)

- XII Mariano was convicted by the Regional Trial Court 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. a) Is the ruling of the court correct? Explain. b) What remedy/remedies should the counsel of Mariano take to secure his proper and most expeditious release from the National Penitentiary? Explain. (7%)

- XIII Rodolfo is charged with possession of unlicensed firearms in an Information filed in the Regional Trial Court. It was alleged therein that Rodolfo was in possession of two unlicensed firearms: a .45 caliber and a . 32 caliber. Under Republic Act No. 8294, possession of an unlicensed .45 caliber gun is punishable by prision mayor in its minimum period and a fine of P30,000.00, while possession of an unlicensed .32 caliber 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. (4%)

- XIV Police operatives of the Western Police District, Philippine National Police, applied for a search warrant in the Regional Trial Court 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 officials 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 search warrant on the following grounds: (a) he was not the accused named in the search warrant; and (b) the warrant does not describe the article to be seized with sufficient particularity. Resolve the motion with reasons. (4%)

- XV For the multiple stab wounds sustained by the victim, Noel was charged with frustrated homicide in the Regional Trial Court. Upon arraignment, he entered a plea of guilty to said crime. Neither the court nor the prosecution was aware that the victim had died two days earlier on account of his stab wounds. Because of his guilty plea, Noel was convicted of frustrated homicide and meted the corresponding penalty. When the prosecution learned of the victims death, it filed within fifteen (15) days therefrom a motion to amend the Information to upgrade the charge from frustrated homicide to consummated homicide. Noel opposed the motion claiming that the admission of the amended Information would place him in double jeopardy. Resolve the motion with reasons. (4%)

- XVI 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, Marcelas 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 the 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 policeman 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.

a) If the prosecution presents Police Officer Roberto Maawa to testify on what Candida had told him, would such testimony of the policeman be hearsay? Explain. b) 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. (8%) - XVII Explain briefly whether the Regional Trial Court may, motu proprio, take judicial notice of the following: a) The street name of methamphetamine hydrochloride is shabu; b) Ordinances approved by municipalities under its territorial jurisdiction; c) Foreign laws; d) Rules and Regulations issued by quasi-judicial bodies implementing statutes; e) Rape may be committed even in public places. (5%) - XVIII 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 (6) months on its finding that the evidence of guilt is strong. The Ombudsman issued the said order as recommended 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 had yet to file his answer to the administrative complaint and submit countervailing evidence; and (c) he was a 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. (5%) NOTHING FOLLOWS.
25 September 2005 2 P.M. 5 P.M.

INSTRUCTIONS This questionnaire consists of sixteen (16) numbers contained in seven (7) pages. Read each question very carefully. Answer legibly, clearly and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the question.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!

____________________________________ CHAIRMAN 2005 BAR EXAMINATION COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE

-IMultiple choice. Choose the correct answer. Write the letter corresponding to your answer. (1.) Which of the following need not be verified? a) Petition for Certiorari; b) Interpleader; c) Petition for Habeas Corpus; d) Answer with compulsory counterclaim; e) All pleadings under the Rules on Summary Procedure. (2%)

(2.) Which of the following statements is false? a) All administrative cases against Justices of appellate courts and judges of lower courts fall exclusively within the jurisdiction of the Supreme Court. b) Administrative cases against erring Justices of the Court of Appeals and Sandiganbayan, judges, and lawyers in the government service are not automatically treated as disbarment cases. c) The IBP Board of Governors may, motu proprio, or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring lawyers including those in the government service. d) The filing of an administrative case against the judge is not a ground for disqualification/inhibition.

e) Trial courts retain jurisdiction over the criminal aspect of offenses committed by justices of appellate courts and judges of lower courts. (2%) (3.) On which of the following is a lawyer proscribed from testifying as a witness in a case he is handling for a client: a) On the mailing of documents; b) On the authentication or custody of any instrument; c) On the theory of the case; d) On substantial matters in cases where his testimony is essential to the ends of justice. (2%)

- II Mike Adelantado, an aspiring lawyer, disclosed in his petition to take the 2003 Bar Examinations that there were two civil cases pending against him for nullification of contract and damages. He was thus allowed to conditionally take the bar, and subsequently placed third in the said exams. In 2004, after the two civil cases had been resolved, Mike Adelantado filed his petition to take the Lawyers Oath and sign the Roll of Attorneys before the Supreme Court. The Office of the Bar Confidant, however, had received two anonymous letters: the first alleged that at the time Mike Adelantado filed his petition to take the bar, he had two other civil cases pending against him, as well as a criminal case for violation of Batas Pambansa (B.P.) Bilang 22; the other letter alleged that Mike Adelantado, as Sangguniang Kabataan (SK) Chairperson, had been signing the attendance sheets of (SK) meetings as Atty. Mike Adelantado.

a) Having passed the bar, can Mike Adelantado already use the appellation attorney? Explain your answer. (3%) b) Should Mike Adelantado be allowed to take his oath as a lawyer and sign the Roll of Attorneys? Explain your answer. (3%)

- III Atty. Kuripot was one of Town Banks valued clients. In recognition of his loyalty to the bank, he was issued a gold credit card with a credit limit of P250,000.00. After two months, Atty. Kuripot exceeded his credit limit, and refused to pay the monthly charges as they fell due. Aside from a collection suit, Town Bank also filed a disbarment case against Atty. Kuripot. In his comment on the disbarment case, Atty. Kuripot insisted that he did not violate the Code of Professional Responsibility, since his obligation to the bank was personal in nature and had no relation to his being a lawyer. a) Is Atty. Kuripot correct? Explain your answer. (3%) b) Explain whether Atty. Kuripot should be held administratively liable for his refusal to settle his credit card bill. (3%) - IV You had just taken your oath as a lawyer. The secretary to the president of a big university offered to get you as the official notary public of the school. She explained that a lot of students lose their Identification Cards and are required to secure an affidavit of loss before they can be issued a new one. She claimed that this would be very lucrative for you, as more than 30 students lose their Identification Cards every month. However, the secretary wants you to give her one-half of your earnings therefrom. Will you agree to the arrangement? Explain. (5%)

-VJudge Horacio would usually go to the cockpits on Saturdays for relaxation, as the owner of the cockpit is a friend of his. He also goes to the casino once a week to accompany his wife who loves to play the slot machines. Because of this, Judge Horacio was administratively charged.

When asked to explain, he said that although he goes to these places, he only watches and does not place any bets. Is his explanation tenable? Explain. (5%) - VI A business man is looking for a new retainer. He approached you and asked for your schedule of fees or charges. He informed you of the professional fees he is presently paying his retainer, which is actually lower than your rates. He said that if your rates are lower, he would engage your services. Will you lower your rates in order to get the client? Explain. (5%) - VII (1.) Judge Segotier is a member of Phi Nu Phi Fraternity. Atty. Nonato filed a motion to disqualify Judge Segotier on the ground that the counsel for the opposing party is also a member of the Phi Nu Phi Fraternity. Judge Segotier denied the motion. Comment on his ruling. (5%)

(2.) In an intestate proceeding, a petition for the issuance of letters of administration in favor of a Regional Trial Court Judge was filed by one of the heirs. Another heir opposed the petition on the ground that the judge is disqualified to become an administrator of the estate as he is the brotherin-law of the deceased. Rule on the petition. (5%)

- VIII -

Due to the number of cases handled by Atty. Cesar, he failed to file a notice of change of address with the Court of Appeals. Hence, he was not able to file an appellants brief and consequently, the case was dismissed. Aggrieved, Atty. Cesar filed a motion for reconsideration of the resolution dismissing the appeal and to set aside the entry of judgment on the ground that he already indicated in his Urgent Motion for Extension of Time to File Appeal Brief his new address and that his failure to file a notice of change of address is an excusable negligence. Will the motion prosper? Explain. (5%)

- IX Darius is charged with the crime of murder. He sought Atty. Francias help and assured the latter that he did not commit the crime. Atty. Francia agreed to represent him in court. During the trial, the prosecution presented several witnesses whose testimonies convinced Atty. Francia that her client is guilty. She confronted his client who eventually admitted that he indeed committed the crime. In view of his admission, Atty. Francia decided to withdraw from the case. Should Atty. Francia be allowed to do so? Explain. (5%)

-XAtty. Yabang was suspended as a member of the Bar for a period of one (1) year. During the period of suspension, he was permitted by his law firm to continue working in their office, drafting and preparing pleadings and other legal documents but was not allowed to come into direct contact with the firms clients. Atty. Yabang was subsequently sued for illegal practice of law. Would the case prosper? Explain. (5%)

- XI Atty. Japzon, a former partner of XXX law firm, is representing Kapuso Corporation in a civil case against Kapamilya Corporation whose legal counsel is XXX law firm. Atty. Japzon claims that she never handled the case of Kapamilya Corporation when she was still with XXX law firm. Is there a conflict of interest? Explain. (5%)

- XII Pending before the sala of Judge Magbag is the case of CDG versus JQT. The legal counsel of JQT is Atty. Ocsing who happens to be the brother of Atty. Ferreras, a friend of Judge Magbag. While the case was still being heard, Atty. Ferreras and his wife celebrated their wedding anniversary. They invited their friends and family to a dinner party at their house in Forbes Park. Judge Magbag attended the party and was seen conversing with Atty. Ocsing while they were eating at the same table. Comment on the propriety of Judge Magbags act. (5%)

- XIII Gerry Cruz is the owner of a 1,000-square meter lot covered by Transfer Certificate of Title No. 12345 located in Sampaloc, Metro Manila. Gerry decided to sell the property but did not have the time to look for a buyer. He then designated his brother, Jon, to look for a buyer and negotiate the sale. Jon met Angelo Santos who expressed his interest to

buy the lot. Angelo agreed to pay P1 Million for the property on September 26, 2005. a) Draft the Special Power of Attorney to be executed by Gerry Cruz, as principal, in favor of his brother Jon, as agent, authorizing the latter to sell the property in favor of Angelo Santos. (7%) b) Draft the Deed of Sale of Real Property. (7%) - XIV Draft a withdrawal of counsel without conformity of client. (6%) - XV Draft a Notice of Appeal. (6%) - XVI Draft a Certification of Non-Forum Shopping. (6%) NOTHING FOLLOWS.