Remedial Law: Arranged by Topic (1997 - 2006)

Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.
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ANSWERS TO BAR
EXAMINATION QUESTIONS
IN
REMEDIAL LAW
ARRANGED BY TOPIC
(1997 2006)
Edited and Arranged by:

version 1987-2003
Silliman University College of
Law Batch 2005
UPDATED BY:
Dondee
The RE-Take 2007
From the ANSWERS TO BAR EXAMINATION

QUESTIONS by the UP LAW COMPLEX & Philippine Law
Schools Association 2006
July 22, 2007

Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 2 of 66
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Questions which are improperly classified under a topic and for some
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for a lot of typographical errors in this work.
The Authors
July 26, 2005
Updated by Dondee
July 22, 2007
TABLE OF CONTENTS
GENERAL PRINCIPLES........................................................................................................................................ 8
Bar by Prior Judgment vs. Conclusiveness of Judgment (1997) .............................................................................. 8
Cause of action vs. Action (1997) ............................................................................................................................ 8
Civil Actions vs. Special Proceedings (1998) ........................................................................................................... 8
Conciliation Proceedings; Katarungang Pambarangay vs. Pre-Trial Conference (1999) ........................................... 8
Family Courts Act (2001) ...................................................................................................................... ................... 8
Interlocutory Order (2006) ............................................................................................................................. .......... 8
Judgment vs. Opinion of the Court (2006)................................................................................................................ 8
Judicial Autonomy & Impartiality (2003) .................................................................................................................. 8
Katarungang Pambarangay; Objective (1999) .......................................................................................................... 9
Liberal Construction; Rules of Court (1998)............................................................................................................. 9
Remedial Law in Phil. System of Govt (2006) .......................................................................................................... 9
Remedial Law vs. Substantive Law (2006) ............................................................................................................... 9
Remedial Law; Concept (2006) ................................................................................................................................ 9
Rights of the Accused; Validity; HIV Test (2005) ...................................................................................................... 9
JURISDICTION....................................................................................................................................................... 10
Jurisdiction (1997)............................................................................................................................. .................... 10
Jurisdiction vs. Venue (2006)................................................................................................................................. 10
Jurisdiction; CTA Division vs. CTA En Banc (2006) ............................................................................................... 10
Jurisdiction; Incapable of Pecuniary Estimation (2000).......................................................................................... 10
Jurisdiction; MTC (2002)............................................................................................................................. ........... 11
Jurisdiction; Office of the Solicitor General (2006)................................................................................................. 11
Jurisdiction; Ombudsman Case Decisions (2006).................................................................................................. 12
Jurisdiction; Probate (2001)................................................................................................................................... 12
Jurisdiction; RTC (2002) ............................................................................................................................. ........... 12
Jurisdiction; Subdivision Homeowner (2006)......................................................................................................... 12
Katarungang Pambarangay; Lupon; Extent of Authority; (2001)............................................................................ 13
CIVIL PROCEDURE ............................................................................................................................. ................. 13

Actions; Cause of Action vs. Action (1999) ............................................................................................................ 13
Actions; Cause of Action; Joinder & Splitting (1998)............................................................................................. 13
Actions; Cause of Action; Joinder of Action (1999)................................................................................................ 13
Actions; Cause of Action; Joinder of Action (2005)................................................................................................ 13
Actions; Cause of Action; Splitting (1999) ............................................................................................................. 14
Actions; Cause of Action; Splitting (2005) ............................................................................................................. 14
Actions; Cause of Actions; Motion to Dismiss; bar by prior judgment (2002) ......................................................... 14
Actions; Counterclaim (2002) ............................................................................................................................. ... 14
Actions; Counterclaim vs. Crossclaim (1999)......................................................................................................... 15
Actions; Cross-Claims; Third Party Claims (1997) ................................................................................................. 15
Actions; Derivative Suit vs. Class Suit (2005)......................................................................................................... 16
Actions; Filing; Civil Actions & Criminal Action (2005)........................................................................................... 16
Actions; Intervention; Requisites (2000) ................................................................................................................ 16
Actions; Real Actions & Personal Actions (2006)................................................................................................... 16
Actions; Survives Death of the Defendant (2000) ................................................................................................... 16
Appeals; Period of Appeal; Fresh Period Rule (2003)............................................................................................. 17
Certiorari; Mode of Certiorari (2006) ...................................................................................................................... 17
Certiorari; Rule 45 vs. Rule 65 (1998) ..................................................................................................................... 17
Certiorari; Rule 45 vs. Rule 65 (2005) ..................................................................................................................... 18
Contempt; Death of a Party; Effect (1998) .............................................................................................................. 18
Default (2000) ............................................................................................................................. ........................... 18
Default (2001) ........................................................................................................................................................ 18
Default; Order of Default; Effects (1999) ................................................................................................................ 18
Default; Remedies; Party Declared in Default (1998) .............................................................................................. 19
Default; Remedies; Party Declared in Default (2006) .............................................................................................. 19
Default; Remedies; Substantial Compliance (2000)................................................................................................ 20
Demurrer to Evidence (2001) ............................................................................................................................. .... 20
Demurrer to Evidence; Civil Case vs. Criminal Case (2003).................................................................................... 20
Discovery; Modes of Discovery (2000)................................................................................................................... 20
Discovery; Modes; Subpoena Duces Tecum (1997) ............................................................................................... 21
Discovery; Production and Inspection of Documents (2002).................................................................................. 21
Dismissal; Motion to Dismiss; Res Judicata (2000)................................................................................................ 21
Evidence; Admissibility; Photocopies (2000) ......................................................................................................... 22
Forum Shopping; Definition (2006) ........................................................................................................................ 22
Forum Shopping; Effects; Lack of Certification (2006) ........................................................................................... 22
Gen. Principles; Questions of Law vs. Questions of Fact (2004) ............................................................................ 22
Judgment; Annulment of Judgment; Grounds (1998)............................................................................................. 22
Judgment; Enforcement; 5-year period (1997) ....................................................................................................... 22
Judgment; Enforcement; Foreign Judgment (2005) ............................................................................................... 22
Judgment; Execution pending Appeal (2002)......................................................................................................... 23
Judgment; Interlocutory Order; Partial Summary Judgments (2004) ...................................................................... 23
Judgment; Judgment on the Pleadings (1999) ....................................................................................................... 23
Judgment; Judgment on the Pleadings (2005) ....................................................................................................... 24
Judgment; Mandamus vs. Quo Warranto (2001)..................................................................................................... 24
Judgment; Soundness; Attachment (2002) ............................................................................................................ 24
Judgments; Enforcement; Examination of Defendant (2002).................................................................................. 24
Jurisdiction; Habeas Corpus; Custody of Minors (2005) ........................................................................................ 25
Jurisdiction; Lack of Jurisdiction; Proper Action of the Court (2004) ..................................................................... 25
Parties; Death of a Party; Effect (1998) .................................................................................................................. 25
Parties; Third Party Claim (2000) ........................................................................................................................... 2 6
Parties; Third-Party Claim (2005) ........................................................................................................................... 2 6
Petition for Certiorari (2000) .................................................................................................................................. 26
Petition for Relief & Action for Annulment (2002)................................................................................................... 27
Petition for Relief; Injunction (2002)....................................................................................................................... 27
Pleadings; Amendment of Complaint; By Leave of Court (2003) ............................................................................ 27
Pleadings; Amendment of Complaint; By Leave of Court; Prescriptive Period (2000)............................................. 27
Pleadings; Amendment of Complaint; Matter of Right (2005) ................................................................................. 28
Pleadings; Amendment of Complaint; To Conform w/ Evidence (2004) .................................................................. 28
Pleadings; Answer; Defense; Specific Denial (2004) .............................................................................................. 28
Pleadings; Certification Against Forum Shopping (2000) ....................................................................................... 29
Pleadings; Counterclaim against the Counsel of the Plaintiff (2004) ...................................................................... 29
Pleadings; Motions; Bill of Particulars (2003)......................................................................................................... 29
Pleadings; Reply; Effect of Non-Filing of Reply (2000) ........................................................................................... 29
Prejudicial Question; Ejectment vs. Specific Performance (2000) .......................................................................... 30
Pre-Trial; Requirements (2001) .............................................................................................................................. 30
Provisional Remedies (1999) ............................................................................................................................. .... 30
Provisional Remedies; Attachment (1999) ............................................................................................................. 30
Provisional Remedies; Attachment vs. Garnishment (1999) ................................................................................... 31
Provisional Remedies; Injunction (2001)................................................................................................................ 31
Provisional Remedies; Injunction (2003)................................................................................................................ 31
Provisional Remedies; Injunctions; Ancillary Remedy vs. Main Action (2006)........................................................ 31
Provisional Remedies; Injunctions; Issuance w/out Bond (2006) ........................................................................... 31
Provisional Remedies; Injunctions; Requisites (2006)............................................................................................ 31
Provisional Remedies; Receivership (2001) ........................................................................................................... 32
Provisional Remedies; Replevin (1999).................................................................................................................. 32
Provisional Remedies; Support Pendente Lite (1999)............................................................................................. 32
Provisional Remedies; Support Pendente Lite (2001)............................................................................................. 32
Provisional Remedies; TRO (2001) ........................................................................................................................ 32
Provisional Remedies; TRO (2006) ........................................................................................................................ 33
Version 1997-2006 Updated by Dondee
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 5 of 66 Provisional Remedies;
TRO vs. Status Quo Order (2006) ....................................................................................... 33 Provisional Remedies; TRO;
CA Justice Dept. (2006)............................................................................................. 33 Provisional Remedies; TRO;
Duration (2006) ......................................................................................................... 33 Reglementary Period;
Supplemental Pleadings (2000) ........................................................................................... 33 Remedies; Appeal to SC;
Appeals to CA (2002) ..................................................................................................... 33 Remedies; Appeal; RTC to CA
(1999)..................................................................................................................... 33 Remedies; Appeal; Rule 45 vs. Rule
65 (1999) ....................................................................................................... 34 Remedies; Void Decision; Proper Remedy
(2004) .................................................................................................. 34 Special Civil Action; Ejectment (1997)
................................................................................................................... 35 Special Civil Action; Ejectment (1998)
................................................................................................................... 35 Special Civil Action; Foreclosure (2003)
................................................................................................................ 35 Special Civil Action; Petition for Certiorari
(2002) .................................................................................................. 35 Special Civil Action; Quo Warranto (2001)
............................................................................................................. 36 Special Civil Actions; Mandamus (2006)
................................................................................................................ 36
Summons............................................................................................................................. ................................. 36
Summons (1999) ............................................................................................................................. ...................... 37
Summons; Substituted Service (2004) ................................................................................................................... 37
Summons; Validity of Service; Effects (2006)......................................................................................................... 37 Venue;
Improper Venue; Compulsory Counterclaim (1998).................................................................................... 38 Venue;
Personal Actions (1997)............................................................................................................................. 38
CRIMINAL PROCEDURE.................................................................................................................................... 38
Acquittal; Effect (2002) ............................................................................................................................. ............. 38
Actions; BP22; Civil Action deemed included (2001).............................................................................................. 39
Actions; BP22; Demurrer to Evidence (2003) ......................................................................................................... 39
Actions; Commencement of an Action; Double Jeopardy (2004)............................................................................ 39
Actions; Discretionary Power of Fiscal (1999)........................................................................................................ 39
Actions; Injunction (1999)...................................................................................................................................... 39
Arrest; Warrantless Arrest; Preliminary Investigation (2004).................................................................................. 40
Arrest; Warrantless Arrests & Searches (1997) ...................................................................................................... 40
Arrest; Warrantless Arrests & Seizures (2003) ....................................................................................................... 40
Arrest; Warrantless Arrests; Objection (2000)........................................................................................................ 41
Bail (2002) .................................................................................................................................................... ......... 41
Bail; Appeal (1998) ................................................................................................................................................ 41
Bail; Application; Venue (2002).............................................................................................................................. 41
Bail; Forms of Bail (1999) ...................................................................................................................................... 41
Bail; Matter of Right (1999) .................................................................................................................................... 41
Bail; Matter of Right vs. Matter of Discretion (1999) ............................................................................................... 41
Bail; Matter of Right vs. Matter of Discretion (2006) ............................................................................................... 42
Bail; Witness Posting Bail (1999) ........................................................................................................................... 4 2
Complaint vs. Information (1999) ........................................................................................................................... 42
Demurrer to Evidence; Contract of Carriage (2004)................................................................................................ 42
Demurrer to Evidence; w/o Leave of Court (1998) .................................................................................................. 42
Dismissal; Failure to Prosecute (2003)................................................................................................................... 43
Dismissal; Provisional Dismissal (2003) ................................................................................................................ 43
Double Jeopardy (2002)............................................................................................................................. ............ 44
Double Jeopardy; Upgrading; Original Charges (2005) .......................................................................................... 44
Extradition (2004) ............................................................................................................................. ..................... 44
Information (2001) ............................................................................................................................. .................... 45
Information; Amendment (2001) ............................................................................................................................ 45
Information; Amendment; Double Jeopardy; Bail (2002) ........................................................................................ 45
Information; Amendment; Supervening Events (1997) ........................................................................................... 45
Information; Bail (2003) ............................................................................................................................. ............ 45
Information; Motion to Quash (2000)...................................................................................................................... 46
Information; Motion to Quash (2005)...................................................................................................................... 46
Information; Motion to Quash; Grounds (1998) ...................................................................................................... 46
Judgment; Promulgation of Judgment (1997) ........................................................................................................ 46
Jurisdiction; Complex Crimes (2003) ..................................................................................................................... 47
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 6 of 66 Jurisdiction; Finality of a
Judgment (2005) ............................................................................................................ 47 Parties; Prosecution of
Offenses (2000)................................................................................................................. 47 Plea of Guilty; to a Lesser
Offense (2002) .............................................................................................................. 47 Prejudicial Question
(1999).................................................................................................................................... 47 Prejudicial Question
(2000)............................................................................................................................. ....... 47 Prejudicial Question;
Suspension of Criminal Action (1999) .................................................................................. 48 Pre-Trial Agreement (2004)
.................................................................................................................................... 48 Pre-Trial; Criminal Case vs. Civil
Case (1997) ........................................................................................................ 48 Provisional Dismissal (2002)
................................................................................................................................. 48 Remedies; Void Judgment (2004)
.......................................................................................................................... 48 Search Warrant; Motion to Quash (2005)
............................................................................................................... 49 Trial; Trial in Absentia; Automatic Review of
Conviction (1998) ............................................................................. 49 Venue (1997)
......................................................................................................................................................... 49
EVIDENCE .............................................................................................................................................. .................. 50

Admissibility (1998)............................................................................................................................. .................. 50
Admissibility (2002)............................................................................................................................................... 50
Admissibility (2004)............................................................................................................................. .................. 50
Admissibility; Admission of Guilt; Requirements (2006) ........................................................................................ 51
Admissibility; Document; Not raised in the Pleading (2004) ................................................................................... 51
Admissibility; Electronic Evidence (2003) .............................................................................................................. 51
Admissibility; Object or Real Evidence (1994)........................................................................................................ 51
Admissibility; Objections (1997) ............................................................................................................................ 51
Admissibility; Offer to Marry; Circumstantial Evidence (1998)................................................................................ 52
Admissibility; Offer to Pay Expenses (1997) .......................................................................................................... 52
Admissibility; Private Document (2005) ................................................................................................................. 52
Admissibility; Proof of Filiation; Action of Partition (2000)..................................................................................... 52
Admissibility; Rules of Evidence (1997)................................................................................................................. 53
Best Evidence Rule (1997) ..................................................................................................................................... 53
Burden of Proof vs. Burden of Evidence (2004) ..................................................................................................... 54
Character Evidence (2002)............................................................................................................................. ........ 54
Confession; Affidavit of Recantation (1998)........................................................................................................... 54
Facts; Legislative Facts vs. Adjudicative Facts (2004) ........................................................................................... 54
Hearsay Evidence (2002) .................................................................................................................................... ... 54
Hearsay Evidence vs. Opinion Evidence (2004) ..................................................................................................... 54
Hearsay; Exception; Dead Man Statute (2001)........................................................................................................ 54
Hearsay; Exception; Dying Declaration (1998) ....................................................................................................... 55
Hearsay; Exception; Res Gestae; Opinion of Ordinary Witness (2005) ................................................................... 55
Hearsay; Exceptions (1999) ................................................................................................................................... 55
Hearsay; Exceptions; Dying Declaration (1999) ..................................................................................................... 55
Hearsay; Inapplicable (2003)............................................................................................................................. ..... 55
Judicial Notice; Evidence (2005)............................................................................................................................ 56
Judicial Notice; Evidence; Foreign Law (1997)....................................................................................................... 56
Memorandum (1996)...................................................................................................................................... ........ 57
Offer of Evidence (1997) ........................................................................................................................................ 57
Offer of Evidence; res inter alios acta (2003).......................................................................................................... 57
Offer of Evidence; Testimonial & Documentary (1994) ........................................................................................... 57
Opinion Rule (1994)............................................................................................................................. .................. 57
Parol Evidence Rule (2001)............................................................................................................................. ....... 58
Preponderance vs. Substantial Evidence (2003) .................................................................................................... 58
Privilege Communication (1998) ............................................................................................................................ 58
Privilege Communication; Marital Privilege (1989) ................................................................................................. 58
Remedy; Lost Documents; Secondary Evidence (1992) ......................................................................................... 60
Testimony; Independent Relevant Statement (1999) .............................................................................................. 60
Witness; Competency of the Witness vs. Credibility of the Witness (2004)............................................................. 60
Witness; Examination of a Child Witness; via Live-Link TV (2005) ......................................................................... 60
Witness; Examination of Witnesses (1997) ............................................................................................................ 60
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 7 of 66 Witness; Examination of
Witnesses (2002) ............................................................................................................ 60 Witness; Utilized as State
Witness; Procedure (2006) ............................................................................................ 60
SPECIAL PROCEEDINGS .................................................................................................................................. 61

Cancellation or Correction; Entries Civil Registry (2005)........................................................................................ 61
Escheat Proceedings (2002) ............................................................................................................................. ..... 61
Extra-judicial Settlement of Estate (2005) .............................................................................................................. 61
Habeas Corpus (1993) ............................................................................................................................. .............. 61
Habeas Corpus (1998) ........................................................................................................................................... 61
Habeas Corpus (2003) ............................................................................................................................. .............. 62
Intestate Proceedings (2002) ................................................................................................................................. 62
Intestate Proceedings; Debts of the Estate (2002).................................................................................................. 62
Judicial Settlement of Estate (2005)....................................................................................................................... 62
Probate of Lost Wills (1999)............................................................................................................................. ...... 62
Probate of Will (2003) ............................................................................................................................................ 63
Probate of Will (2005) ............................................................................................................................................ 63
Probate of Will (2006) ............................................................................................................................................ 63
Probate of Will; Mandatory Nature (2002)............................................................................................................... 63
Settlement of Estate (2001).................................................................................................................................... 64
Settlement of Estate; Administrator (1998)............................................................................................................. 64
Venue; Special Proceedings (1997)........................................................................................................................ 64
SUMMARY PROCEDURE................................................................................................................................... 65
Prohibited Pleadings (2004)................................................................................................................................... 65
MISCELLANEOUS................................................................................................................................................. 65
Administrative Proceedings (2005) ........................................................................................................................ 65
Congress; Law Expropriating Property (2006) ....................................................................................................... 65
RA 3019; Mandatory Suspension (2001) ................................................................................................................ 66
P.D. No. 1508; Sec. 415, Local Government Code of 1991, R.A. 7160.)
GENERAL PRINCIPLES No such prohibition exists in the pre-trial negotiations
Bar by Prior Judgment vs. Conclusiveness of Judgment under the Rules of Court.
(1997)
Distinguish Bar by prior judgment from conclusiveness of Family Courts Act (2001)
judgment a) How should the records of child and family cases in
SUGGESTED ANSWER: the Family Courts or RTC designated by the Supreme
Bar by prior-judgment is the doctrine of res judicata, Court to handle Family Court cases be treated and dealt
which bars a second action when there is identity of with? (3%) b) Under what conditions may the identity
parties, subject matter and cause of action. (Sec. 49[b] of of parties in child and family cases be divulged (2%)
former Rule 39; Sec, 47 [b] of new Rule 39).
SUGGESTED ANSWER:
Conclusiveness of judgment precludes the relitigation a) The records of child and family cases in the Family
of a particular issue in another action between the same Code to handle Family Court cases shall be dealt with
parties on a different cause of action. (Sec. 49 [c] of former utmost confidentiality. (Sec. 12, Family Courts Act of 1997)
Rule 39; sec. 47 [c] of new Rule 39).
b) The identity of parties in child and family cases shall
Cause of action vs. Action (1997) not be divulged unless necessary and with authority of
Distinguish Cause of action from action the judge. (Id.)
SUGGESTED ANSWER:
A CAUSE OF ACTION is an act or omission of one
Interlocutory Order (2006)
party in violation of the legal right or rights of the other
(Maao Sugar Central vs. Barrios, 79 Phil. 606; Sec. 2 of new
What is an interlocutory order? (2%)
SUGGESTED ANSWER:
Rule 2), causing damage to another.
An interlocutory order refers to an order issued between
the commencement and the end of the suit which is not
An ACTION is an ordinary suit in a court of Justice by a final decision of the whole controversy and leaves
which one party prosecutes another for the enforcement something more to be done on its merits
or protection of a right, or the prevention or redress of a (Gallardo et al. v. People, G.R. No. 142030, April 21, 2005;
wrong.(Section 1 of former Rule Investments Inc. v. Court of Appeals, G.R. No. 60036,
2). January 27, 1987 cited in Denso Phils, v. /AC, G.R. No.
75000, Feb. 27, 1987).
Civil Actions vs. Special Proceedings (1998)
Distinguish civil actions from special proceedings. [3%] Judgment vs. Opinion of the Court (2006)
What is the difference between a judgment and an
SUGGESTED ANSWER: opinion of the court? (2.5%)
A CIVIL ACTION is one by which a party sues another SUGGESTED ANSWER:
for the enforcement or protection of a right, or the The judgment or fallo is the final disposition of the Court
prevention or redress of a wrong. (See. 3[a], Rule 1, 1997 Rules which is reflected in the dispositive portion of the decision.
of Civil Procedure), while a SPECIAL PROCEEDING is a A decision is directly prepared by a judge and signed by
remedy by which a party seeks to establish a status, a him, containing clearly and distinctly a statement of the
right or a particular fact. (Sec. facts proved and the law upon which the judgment is based
(Etoya v. Abraham
3[C]. Rule 1,1997 Rules of Civil Procedure.)
Singson, Adm. Matter No. RTJ-91-758, September 26, 1994).
Conciliation Proceedings; Katarungang Pambarangay vs.
Pre-Trial Conference (1999)
What is the difference, if any, between the conciliation An opinion of the court is the informal expression of the
proceedings under the Katarungang Pambarangay Law views of the court and cannot prevail against its final
and the negotiations for an amicable settlement during order. The opinion of the court is contained in the body
the pre-trial conference under the Rules of Court? (2%) of the decision that serves as a guide or enlightenment
to determine the ratio decidendi of the decision. The
SUGGESTED ANSWER: opinion forms no part of the judgment even if combined
The difference between the conciliation proceedings in one instrument, but may be referred to for the
under the Katarungang Pambarangay Law and the purpose of construing the judgment (Contreras v. Felix,
negotiations for an amicable settlement during the pre- G.R. No. L-477, June 30,
trial conference under the Rules of Court is that in the 1947).
former, lawyers are prohibited from appearing for the
parties. Parties must appear in person only except
minors or incompetents who may be assisted by their Judicial Autonomy & Impartiality (2003)
next of kin who are not lawyers. (Formerly Sec. 9,
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 9 of 66 affairs. This is
In rendering a decision, should a court take into distinguished from REMEDIAL LAW which prescribes the
consideration the possible effect of its verdict upon the method of enforcing rights or obtaining redress for their
political stability and economic welfare of the nation? invasion (Bustos v. Lucero,
4% G.R. No. L-2068, October 20, 1948).
SUGGESTED ANSWER:
No, because a court is required to take into consideration Remedial Law; Concept (2006)
only the legal issues and the evidence admitted in the What is the concept of remedial law? (2%)
case. The political stability and economic welfare of the SUGGESTED ANSWER:
nation are extraneous to the case. They can have The concept of Remedial Law lies at the very core of
persuasive influence but they are not the main factors procedural due process, which means a law which hears
that should be considered in deciding a case. A decision before it condemns, which proceeds upon inquiry and
should be based on the law, rules of procedure, justice renders judgment only after trial, and contemplates an
and equity. However, in exceptional cases the court may opportunity to be heard before judgment is rendered
(Albert v. University Publishing,
consider the political stability and economic welfare of
the nation when these are capable of being taken into G.R. No. L-19118, January 30, 1965).
judicial notice of and are relevant to the case.
Remedial Law is that branch of law which prescribes the
method of enforcing the rights or obtaining redress for
Katarungang Pambarangay; Objective (1999)
their invasion (Bustos v. Lucero, G.R. No.
L-2068, October 20, 1948; First Lepanto Ceramics, Inc. v.
What is the object of the Katarungang Pambarangay CA, G.R. No. 110571, March 10, 1994).
Law? (2%)
SUGGESTED ANSWER:
Rights of the Accused; Validity; HIV Test (2005)
The object of the Katarungang Pambarangay Law is to Under Republic Act No. 8353, one may be charged with and
effect an amicable settlement of disputes among family found guilty of qualified rape if he knew on or before the
and barangay members at the barangay level without commission of the crime that he is afflicted with Human
judicial recourse and consequently help relieve the courts Immuno-Deficiency Virus (HIV)/Acquired Immune
of docket congestion. (Preamble of P.D. Deficiency Syndrome (AIDS) or any other sexually
No. 1508, the former and the first Katarungang Pambarangay Law.) transmissible disease and the virus or disease is transmitted to
the victim. Under Section 17(a) of Republic Act No. 8504 the
Liberal Construction; Rules of Court (1998) court may compel the accused to submit himself to a blood test
How shall the Rules of Court be construed? [2%] where blood samples would be extracted from his veins to
SUGGESTED ANSWER: determine whether he has HIV. (8%)
The Rules of Court should be liberally construed in
order to promote their objective of securing a just,
speedy and inexpensive disposition of every action and
proceeding. (Sec. 6, Rule 1 1997 Rules of Civil Procedure.) a) Are the rights of the accused to be presumed innocent
ADDITIONAL ANSWER: of the crime charged, to privacy, and against self-
However, strict observance of the rules is an imperative incrimination violated by such compulsory testing?
necessity when they are considered indispensable to the Explain.
prevention of needless delays and to the orderly and SUGGESTED ANSWER:
speedy dispatch of Judicial business. (Alvero vs. Judge de No. The court may compel the accused to submit
la Rosa, 76 Phil. 428) himself to a blood test to determine whether he has HIV
under Sec. 17(a) of R.A. No, 8054. His rights to be
Remedial Law in Phil. System of Govt (2006) presumed innocent of the crime charged, to privacy and
How are remedial laws implemented in our system of against self-incrimination are not violated by such
government? (2%) compulsory testing. In an action in which the physical
SUGGESTED ANSWER: condition of a party is in controversy, the court may
Remedial laws are implemented in our system of order the accused to submit to a physical examination.
government through the pillars of the judicial system, (Sec. 1, Rule 28, 1997 Rules of Civil Procedure)
including the prosecutory service, our courts of justice (Look for citation of latest case, in 2004)
and quasi judicial agencies.
b) If the result of such test shows that he is HIV positive,
Remedial Law vs. Substantive Law (2006) and the prosecution offers such result in evidence to prove
Distinguish between substantive law and remedial law. the qualifying circumstance under the Information for
qualified rape, should the court reject such result on the
(2%)
ground that it is the fruit of a poisonous tree? Explain.
SUGGESTED ANSWER:
SUBSTANTIVE LAW is that part of the law which
creates, defines and regulates rights concerning life, SUGGESTED ANSWER:
Since the rights of the accused are not violated because
liberty, or property, or the powers of agencies or
the compulsory testing is authorized by the
instrumentalities for the administration of public
law, the result of the testing cannot be considered to be the (e) A petition for the probate of a will involving an estate
fruit of a poisonous tree and can be offered in evidence to valued at 200.000.00 falls within the Jurisdiction of the
prove the qualifying circumstance under the information for Metropolitan Trial Courts in Metro Manila (Sec. 19[4] of
qualified rape under R.A. No. 8353. The fruit, of the poisonous BP 129, as amended).
tree doctrine refers to that rule of evidence that excludes any ADDITIONAL ANSWER:
evidence which may have been derived or acquired from a (b) An application for a writ of preliminary injunction
tainted or polluted source. Such evidence is inadmissible for
may be granted by a Municipal Court in an action of
having emanated from spurious origins. The doctrine,
however, does not apply to the results obtained pursuant to forcible entry and unlawful detainer. (Sec.33 of BP 129;
Sec. 1, Rule 28, 1997 Rules of Civil Procedure, as it does not Day vs. RTC of Zamboanga, 191 SCRA610.
contemplate a search within the moaning of the law. (People v.
Jurisdiction vs. Venue (2006)
Distinguish jurisdiction from venue? (2%)
SUGGESTED ANSWER:
JURISDICTION treats of the power of the Court to
Montilla, G.R. No. 123872, January 30,1998) decide a case on the merits, while VENUE refers to the
place where the suit may be filed. In criminal actions,
JURISDICTION however, venue is jurisdictional. Jurisdiction is a matter of
substantive law; venue, of procedural law. Jurisdiction may
be not be conferred by consent through waiver upon a
Jurisdiction (1997) court, but venue may be waived, except in criminal cases
What courts have jurisdiction over the following cases (Nocum et al. v. Tan,
filed in Metro Manila? a) An action for specific
performance or, in the G.R. No. 145022, September 23, 2005; Santos III v. Northwest
Airlines, G.R. No. 101538, June 23, 1992).
alternative, for damages in the amount of
P180,000.00 b) An action for a writ of injunction. c) An Jurisdiction; CTA Division vs. CTA En Banc (2006)
action for replevin of a motorcycle valued at Mark filed with the Bureau of Internal Revenue a
complaint for refund of taxes paid, but it was not acted
P150,000.00. d) An action for interpleader to determine upon. So, he filed a similar complaint with the Court of
who Tax Appeals raffled to one of its Divisions. Mark's
between the defendants is entitled to receive the complaint was dismissed. Thus, he filed with the Court
amount of P190,000.00 from the plaintiff. e) A petition of Appeals a petition for certiorari under Rule 65. Does
for the probate of a will involving an the Court of Appeals have jurisdiction over Mark's
estate valued at P200,000.00. petition? (2.5%)
SUGGESTED ANSWER:
(a) An action for specific performance or, in the alternative,
SUGGESTED ANSWER:
for damages in the amount of 180,000.00 falls within the No. The procedure is governed by Sec. 11 of R. A. 9282.
jurisdiction of Metropolitan Trial Courts in Metro Manila.
Decisions of a division of the Court of Tax Appeals
Although an action for specific performance is not capable
must be appealed to the Court of Tax Appeals en banc.
of pecuniary estimation, since the alternative demand for
damages is capable of pecuniary estimation, it is within the Further, the CTA now has the same rank as the Court of
jurisdiction of the Metropolitan Trial Courts in Metro Appeals and is no longer considered a quasi-judicial
Manila. (Sec. 33 of BP 129 as amended by RA No. 7691: agency. It is likewise provided in the said law that the
decisions of the CTA en bane are cognizable by the
Supreme Court under Rule 45 of the 1997 Rules of Civil
Cruz us. Tan, 87 Phil. 627]. Procedure.
(b) An action for injunction is not capable of pecuniary
Jurisdiction; Incapable of Pecuniary Estimation (2000)
estimation and hence falls within the jurisdiction of the A brings an action in the MTC of Manila against B for
RTCs.
the annulment of an extrajudicial foreclosure sale of real
property with an assessed value of P50,000.00 located
(c) An action for replevin of a motorcycle valued at
in Laguna. The complaint alleged prematurity of the
150,000.00 falls within the jurisdiction of the sale for the reason that the mortgage was not yet due. B
Metropolitan Trial Courts in Metro Manila (Sec. 33 of timely moved to dismiss the case on the ground that the
BP 129. as amended by RA No. 7691).
action should have been brought in the RTC of Laguna.
(d) An action for interpleader to determine who between Decide with reason. (3%)
SUGGESTED ANSWER:
the defendants is entitled to receive the amount of The motion should be granted. The MTC of Manila has
P190,000.00 falls within the jurisdiction of the no jurisdiction because the action for the annulment of
Metropolitan Trial Courts in Metro Manila. the extrajudicial foreclosure is not capable of pecuniary
(Makati Dev Corp. v. Tanjuatco 27 SCRA 401) estimation and is therefore
under the jurisdiction of the RTCs. (Russell v. Vestil, 304 estimation and, therefore, the action was within the
SCRA 738,[1999]). jurisdiction of RTC. (Russel v. Vestil, 304 SCRA 738 [1999];
Copioso v. Copioso, G.R. No. 149243, October 28,2002;
However, the action for annulment is a personal action Cabutihan v. Landcenter Construction, 383 SCRA 353 [2002]).
and the venue depends on the residence of either A or
ALTERNATIVE ANSWER:
B. Hence, it should be brought in the RTC of the place
If the action affects title to or possession of real
where either of the parties resides.
property then it is a real action and jurisdiction is
determined by the assessed value of the property. It is
Jurisdiction; Incapable of Pecuniary Estimation (2000)
within the jurisdiction therefore of the Metropolitan
A files an action in the Municipal Trial Court against B,
Trial Court.
the natural son of As father, for the partition of a parcel
of land located in Taytay, Rizal with an assessed value of SUGGESTED ANSWER:
P20,000.00. B moves to dismiss the action on the ground (b) The Court could declare B in default because B did not
that the case should have been brought in the RTC obtain a writ of preliminary injunction or a temporary
because the action is one that is not capable of pecuniary restraining order from the RTC prohibiting the judge from
estimation as it involves primarily a determination of proceeding in the case during the pendency of the petition
hereditary rights and not merely the bare right to real for certiorari.
property. Resolve the motion. (2%) (Sec. 7 of Rule 65; Diaz v. Diaz, 331 SCRA 302 [2002].
ALTERNATIVE ANSWER:
SUGGESTED ANSWER: The Court should not declare B in default inasmuch as
The motion should be granted. The action for partition the jurisdiction of MTC was put in issue in the Petition
depends on a determination of the hereditary rights of A For Certiorari filed with the RTC. The MTC should defer
and B, which is not capable of pecuniary estimation. further proceedings pending the result of such petition.
Hence, even though the assessed value of the land is (Eternal Gardens Memorial Park
P20,000.00, the Municipal Trial Court has no jurisdiction. Corporation v. Court of Appeals, 164 SCRA 421 [1988]).
(Russell v.
Vestil, supra) Jurisdiction; MTC (2002)
P sued A and B in one complaint in the RTC-Manila,
Jurisdiction; Incapable of Pecuniary Estimation (2003) the cause of action against A being on an overdue
A filed with the MTC of Manila an action for specific promissory note for P300,000.00 and that against B
performance against B, a resident of Quezon City, to being on an alleged balance of P300,000.00 on the
compel the latter to execute a deed of conveyance purchase price of goods sold on credit. Does the RTC-
covering a parcel of land situated in Quezon City having Manila have jurisdiction over the case? Explain. (3%)
an assessed value of p19,000.00. B received the
summons and a copy of the Complaint on 02 January SUGGESTED ANSWER:
2003. On 10 January 2003, B filed a Motion to Dismiss No, the RTC-Manila has no jurisdiction over the case. A
the Complaint on the ground of lack of jurisdiction and B could not be joined as defendants in one complaint
contending that the subject matter of the suit was because the right to relief against both defendants do not
incapable of pecuniary estimation. The court denied the arise out of the same transaction or series of transactions
motion. In due time, B filed with the RTC a Petition for and there is no common question of law or fact common
Certiorari praying that the said Order be set aside to both. (Rule 3, sec. 6). Hence, separate complaints will
because the MTC had no jurisdiction over the case. 6% have to be files and they would fall under the jurisdiction
On 13 February 2003, A filed with the MTC a motion of the Metropolitan Trial Court. [Flores v. Mallare-
to declare B in default. The motion was opposed by B Philipps,
on the ground that his Petition for Certiorari was still 144 SCRA 377 (1986)].
pending.
Jurisdiction; Office of the Solicitor General (2006)
In 1996, Congress passed Republic Act No. 8189,
(a) Was the denial of the Motion to Dismiss the
otherwise known as the Voter's Registration Act of 1996,
Complaint correct?
providing for computerization of elections. Pursuant
(b) Resolve the Motion to Declare the Defendant in
thereto, the COMELEC approved the Voter's
Default.
SUGGESTED ANSWER:
Registration and Identification System (VRIS) Project. It
(a) The denial of the Motion to Dismiss the Complaint issued invitations to pre-qualify and bid for the project.
was not correct. Although the assessed value of the After the public bidding, Fotokina was declared the
parcel of land involved was P19,000.00, within the winning bidder with a bid of P6 billion and was issued a
jurisdiction of the MTC of Manila, the action filed by A Notice of Award. But COMELEC Chairman Gener Go
for Specific Performance against B to compel the latter objected to the award on the ground that under the
to execute a Deed of Conveyance of said parcel of land Appropriations Act, the budget for the COMELEC's
was not capable of pecuniary modernization is only P1
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 12 of 66 Was the municipal
billion. He announced to the public that the VRIS circuit trial court correct in its ruling? Why? (5%)
project has been set aside. Two Commissioners sided
with Chairman Go, but the majority voted to uphold SUGGESTED ANSWER:
the contract. Yes, the Municipal Circuit Trial Court was correct in
proceeding to hear the case. It has exclusive jurisdiction
Meanwhile, Fotokina filed with the RTC a petition for in all matters of probate, both testate and intestate, where
mandamus compel the COMELEC to implement the the value of the estate does not exceed P100,000.00 (now
contract. The Office of the Solicitor General (OSG), P200,000.00). The value in this case of P95,000.00 is
representing Chairman Go, opposed the petition on the within its jurisdiction. In determining the jurisdictional
ground that mandamus does not lie to enforce contractual amount, excluded are attorneys fees, litigation expenses
obligations. During the proceedings, the majority and costs; these are considered only for determining the
Commissioners filed a manifestation that Chairman Go was filing fees.
not authorized by the COMELEC En Banc to oppose the (B.P.Blg. 129, Sec. 33, as amended)
petition.
Jurisdiction; RTC (2002)
May the OSG represent Chairman Go before the RTC
notwithstanding that his position is contrary to that of
P sued A in the RTC-Manila to recover the following
the majority? (5%) sums: (1) P200,000.00 on an overdue promissory note,
SUGGESTED ANSWER: (2) P80,000.00 on the purchase price of a computer, (3)
Yes, the OSG may represent the COMELEC Chairman P150,000.00 for damages to his car and
before the RTC notwithstanding that his position is (4) P100,000.00 for attorneys fees and litigation
contrary to that of a majority of the Commission members expenses. Can A move to dismiss the case on the ground
in the COMELEC because the OSG is an independent that the court has no jurisdiction over the subject
office; it's hands are not shackled to the cause of its client matter? Explain. (2%)
agency. The primordial concern of the OSG is to see to it SUGGESTED ANSWER:
that the best interest of the government is upheld No, because the RTC-Manila has jurisdiction over the
(COMELEC subject matter. P may sue A in one complaint asserting
v. Quyano-Padilla, September 18, 2002). as many causes of action as he may have and since all the
claims are principally for recovery of money, the
Jurisdiction; Ombudsman Case Decisions (2006) aggregate amount claimed shall be the test of
Does the Court of Appeals have jurisdiction to review jurisdiction. [Rule 2, sec. 5(d)]. The aggregate amount
the Decisions in criminal and administrative cases of the claimed is P450,000.00, exclusive of the amount of
Ombudsman? (2.5%) P100,000.00 for attorneys fees and expenses of
SUGGESTED ANSWER: litigation. Hence, the RTC-Manila has jurisdiction.
The Supreme Court has exclusive appellate jurisdiction over
decisions of the Ombudsman in criminal cases (Sec. 14, R.A. Jurisdiction; Subdivision Homeowner (2006)
6770). In administrative and disciplinary cases, appeals from What court has jurisdiction over an action for specific
the Ombudsman must be taken to the Court of Appeals performance filed by a subdivision homeowner against a
under Rule 43 subdivision developer? Choose the correct answer.
(Lanting v. Ombudsman, G.R. No. 141426, May 6, 2005; Explain.
Fabian v. Desierto, G.R. No. 129742, September 16, 1998; 1 The Housing and Land Use Regulatory Board
Sec. 14, RA. 6770).
2 The Securities and Exchange Commission
Jurisdiction; Probate (2001)
3 The Regional Trial Court
Josefa filed in the Municipal Circuit Trial Court of Alicia 4 The Commercial Court or the Regional Trial
and Mabini, a petition for the probate of the will of her Court designated by the Supreme Court to hear and
husband, Martin, who died in the Municipality of Alicia, decide "commercial cases."
SUGGESTED ANSWER:
the residence of the spouses. The probable value of the An action for specific performance by a subdivision
estate which consisted mainly of a house and lot was homeowner against a subdivision developer is within the
placed at P95,000.00 and in the petition for the allowance jurisdiction of the Housing and Land Use Regulatory Board.
of the will, attorneys fees in the amount of P10,000.00, Sec. 1 of P.D. 1344 provides that the HLURB has
litigation expenses in the amount of P5,000.00 and costs jurisdiction over cases involving specific performance of
were included. Pedro, the next of kin of Martin, filed an contractual and statutory obligations filed by buyers of
opposition to the probate of the will on the ground that subdivision lots and condominium units against the owner,
the total amount included in the relief of the petition is developer, dealer, broker or salesman (Manila Bankers Life
more than P100,000.00, the maximum jurisdictional
amount for municipal circuit trial courts. The court Insurance Corp. v. Eddy Ng Kok Wei, G.R. No. 139791,
overruled the opposition and proceeded to hear the case. December 12, 2003; Kakilala v. Faraon, G.R. No. 143233,
October 18, 2004; Sec. 1, P.D. 1344).
Katarungang Pambarangay; Lupon; Extent of Authority; prejudice to the rights of each necessary party. (Sec. 9 of
(2001) Rule 3)
An amicable settlement was signed before a Lupon
Tagapamayapa on January 3, 2001. On July 6, 2001, the Actions; Cause of Action; Joinder of Action (1999)
prevailing party asked the Lupon to execute the amicable a) What is the rule on joinder of causes of action?
settlement because of the non-compliance by the other (2%)
party of the terms of the agreement. The Lupon b) A secured two loans from B? one for
concerned refused to execute the settlement/agreement. P500,000.00 and the other for P1,000,000.00, payable on
a) Is the Lupon correct in refusing to execute the different dates. Both have fallen due. Is B obliged to file
only one complaint against A for the recovery of both
settlement/agreement? (3%) b) What should be the loans? Explain. (2%)
course of action of the SUGGESTED ANSWER:
prevailing party in such a case? (2%) a. The rule on JOINDER OF CAUSES OF ACTION
SUGGESTED ANSWER: is that a party may in one pleading assert, in the
a) Yes, the Lupon is correct in refusing to execute the alternative or otherwise join as many causes of action as
settlement/agreement because the execution sought is he may have against an opposing party, provided that the
already beyond the period of six months from the date rule on joinder of parties is complied with;
of the settlement within which the Lupon is authorized
to execute. (Sec. 417, Local Government Code of 1.] the joinder shall not include special civil
1991) actions or actions governed by special rules, but may
include causes of action pertaining to different
b) After the six-month period, the prevailing party venues or jurisdictions provided one cause of action
should move to execute the settlement/agreement in falls within the jurisdiction of a RTC and venue lies
the appropriate city or municipal trial court. (Id.) therein; and
2.]
CIVIL PROCEDURE
the aggregate amount claimed shall be the
test of jurisdiction where the claims in all the causes
of action are principally for the recovery of money.
Actions; Cause of Action vs. Action (1999) (Sec. 5, Rule 2 of the 1997 Rules)
Distinguish action from cause of action. (2%)
SUGGESTED ANSWER:
An ACTION is one by which a party sues another for b. No. Joinder is only permissive since the loans are
the enforcement or protection of a right, or the separate loans which may be governed by the different
prevention or redress of a wrong. (Sec. 3(A), Rule ) terms and conditions. The two loans give rise to two
separate causes of action and may be the basis of two
A CAUSE OF ACTION is the act or omission by which separate complaints.
a party violates a right of another. (Sec. 2, Rule 2 of the 1997
Rules) An action must be based on a cause of action. Actions; Cause of Action; Joinder of Action (2005)
(Sec. 1, Rule 2 of the 1997 Rules)
Perry is a resident of Manila, while Ricky and Marvin are
residents of Batangas City. They are the coowners of a
Actions; Cause of Action; Joinder & Splitting (1998) parcel of residential land located in Pasay City with an
Give the effects of the following: assessed value of P100,000.00. Perry borrowed
1 Splitting a single cause of action: and (3%| P100,000.00 from Ricky which he promised to pay on or
2 Non-joinder of a necessary party. [2%] before December 1, 2004. However, Perry failed to pay
SUGGESTED ANSWER:
1. The effect of splitting a single cause of action is found his loan. Perry also rejected Ricky and Marvin's proposal
in the rule as follows: If two or more suits are instituted to partition the property. Ricky filed a complaint against
on the basis of the same cause of action, the filing of Perry and Marvin in the RTC of Pasay City for the
one or a judgment on the merits in any one is available partition of the property. He also incorporated in his
as a ground for the dismissal of the others. (Sec. 4 of Rule complaint his action against Perry for the collection of
2) the latter's P100,000.00 loan, plus interests and attorney's
2. The effect of the non-joinder of a necessary party may fees.
be stated as follows: The court may order the inclusion
of an omitted necessary party if jurisdiction over his
person may be obtained. The failure to comply with the State with reasons whether it was proper for Ricky to
order for his inclusion without justifiable cause to a join his causes of action in his complaint for partition
waiver of the claim against such party. The court may against Perry and Marvin in the RTC of Pasay City. (5%)
proceed with the action but the judgment rendered shall
SUGGESTED ANSWER:
be without
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 14 of 66 Raphael filed a
It was not proper for Ricky to join his causes of action complaint against X Corporation for the payment of
against Perry in his complaint for partition against Perry P100,000.00 for storage charges and other advances for the
and Marvin. The causes of action may be between the goods. X Corporation filed a motion to dismiss the complaint
same parties, Ricky and Perry, with respect to the loan on the ground of res judicata. X Corporation alleged that
but not with respect to the partition which includes Raphael should have incorporated in his complaint for
Marvin. The joinder is between a partition and a sum of interpleader his claim for storage fees and advances and that
money, but PARTITION is a special civil action under for his failure he was barred from interposing his claim.
Rule 69, which cannot be joined with other causes of Raphael replied that he could not have claimed storage fees
action. (See. 5[b], Rule 2,) Also, the causes of action pertain and other advances in his complaint for interpleader because
to different venues and jurisdictions. The case for a sum he was not yet certain as to who was liable therefor. Resolve
of money pertains to the municipal court and cannot be the motion with reasons. (4%)
filed in Pasay City because the plaintiff is from Manila
while Ricky and Marvin are from Batangas
SUGGESTED ANSWER:
City. (Sec. 5, Rule 2,) The motion to dismiss should be granted. Raphael should have
incorporated in his complaint for interpleader his claim for
Actions; Cause of Action; Splitting (1999) storage fees and advances, the amounts of which were
obviously determinable at the time of the filing of the
a) What is the rule against splitting a cause of
complaint. They are part of Raphael's cause of action which he
action and its effect on the respective rights of the may not be split. Hence, when the warehouseman asks the
parties for failure to comply with the same? (2%) court to ascertain who among the defendants are entitled to
the goods, he also has the right to ask who should pay for the
b) A purchased a lot from B for Pl,500,000.00. He storage fees and other related expenses. The filing of the
gave a down payment of P500,000, signed a promissory interpleader is available as a ground for dismissal of the second
note payable thirty days after date, and as a security for case. (Sec. 4, Rule 2,) It is akin to a compulsory counterclaim
the settlement of the obligation, mortgaged the same lot which, if not set up, shall be barred. (Sec. 2, Rule 9, ; Arreza v.
Diaz, G.R.
to B. When the note fell due and A failed to pay, B
commenced suit to recover from A the balance of
P1,000,000.00. After securing a favorable judgment on
his claim, B brought another action against A before the No. 133113, August 30, 2001)
same court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground of Actions; Cause of Actions; Motion to Dismiss; bar by prior
bar by prior judgment. Rule on the motion. (2%) judgment (2002)
Rolando filed a petition for declaration of the nullity of
his marriage to Carmela because of the alleged
SUGGESTED ANSWER: psychological incapacity of the latter.
a. The rule against splitting a cause of action and its
effect are that if two or more suits are instituted on the After trial, the court rendered judgment dismissing the
basis of the same cause of action, the filing of one or a petition on the ground that Rolando failed to prove the
judgment upon the merits in any one is available as a psychological incapacity of his wife. The judgment
ground for the dismissal of the others. (Sec. 4, Rule having become final, Rolando filed another petition,
2) this time on the ground that his marriage to Carmela had
been celebrated without a license. Is the second action
b. The motion to dismiss should be granted. When B barred by the judgment in the first? Why? (2%)
commenced suit to collect on the promissory note, he
waived his right to foreclose the mortgage. B split his SUGGESTED ANSWER:
cause of action. No, the second action is not barred by the judgment in
the first because they are different causes of action. The
Actions; Cause of Action; Splitting (2005) first is for annulment of marriage on the ground of
Raphael, a warehouseman, filed a complaint against V psychological incapacity under Article 36 of the Family
Corporation, X Corporation and Y Corporation to Code, while the second is for declaration of nullity of
compel them to interplead. He alleged therein that the the marriage in view of the absence of a basic
three corporations claimed title and right of possession requirement, which is a marriage license. [Arts, 9 & 35(3),
over the goods deposited in his warehouse and that he Family Code]. They are different causes of action because
was uncertain which of them was entitled to the goods. the evidence required to prove them are not the same.
After due proceedings, judgment was rendered by the [Pagsisihan v. Court of Appeals, 95 SCRA 540
court declaring that X Corporation was entitled to the (1980) and other cases].
goods. The decision became final and executory.
Actions; Counterclaim (2002)
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 15 of 66 case. Is the stand
The plaintiff sued the defendant in the RTC for damages of EE Industries sustainable? Explain. [2%]
allegedly caused by the latters encroachment on the
plaintiffs lot. In his answer, the defendant denied the SUGGESTED ANSWER:
plaintiffs claim and alleged that it was the plaintiff who a) A COUNTERCLAIM is any claim which a
in fact had encroached on his (defendants) land. defending party may have against an opposing party. (Sec.
Accordingly, the defendant counterclaimed against the 6, Rule 6)
plaintiff for damages resulting from the alleged
encroachment on his lot. The plaintiff filed an ex parte b) A counterclaim is distinguished from a CROSS-
motion for extension of time to answer the defendants CLAIM in that a cross-claim is any claim by one party
counterclaim, but the court denied the motion on the against a co-party arising out of the transaction or
ground that it should have been set for hearing. On the occurrence that is the subject matter either of the original
defendants motion, therefore, the court declared the action or of a counterclaim therein. A counterclaim is
plaintiff in default on the counterclaim. Was the plaintiff against an opposing party while a cross-claim is against a
validly declared in default? Why? (5%) co-party. (Sec. 8, Rule 6)
SUGGESTED ANSWER:
No, the plaintiff was not validly declared in default. A c) No, because if no motion to dismiss has been
motion for extension of time to file an answer may be filed, any of the grounds for dismissal provided in the
filed ex parte and need not be set for hearing. Rules may be pleaded as an affirmative defense in the
[Amante vs. Sunga, 64 SCRA 192 (1975)]. answer which may include a counterclaim. This is what
ALTERNATIVE ANSWER: A did by filing an Answer alleging the lack of legal
The general rule is that a counterclaim must be answered capacity of EE Industries to sue because it is not a duly
within ten (10) days from service. (Rule 11, sec. 4). However, registered corporation with a counterclaim for damages.
a counterclaim that raises issues which are deemed The dismissal of the complaint on this ground is without
automatically joined by the allegations of the Complaint prejudice to the prosecution of the counterclaim in the
need not be answered. same action because it is a compulsory counterclaim. (Sec.
[Gojo v. Goyala, 35 SCRA 557 (1970)]. 6 of Rule 16.)
In this case, the defendants counterclaim is a

compulsory counterclaim which arises out or is Actions; Cross-Claims; Third Party Claims (1997)
connected with the transaction and occurrence B and C borrowed P400,000.00 from A. The promissory
constituting the subject matter of the plaintiffs claim. It note was executed by B and C in a Joint and several
raises the same issue of who encroached on whose land. capacity. B, who received the money from A, gave C
Hence, there was no need to answer the counterclaim. P200,000.00. C, in turn, loaned P100,000.00 out of the
P200,000.00 he received to D. a) In an action filed by A
against B and C with the
Actions; Counterclaim vs. Crossclaim (1999) RTC of Quezon City, can B file a cross-claim against C
a) What is a counterclaim? (2%) b) Distinguish a for the amount of P200,000.00? b) Can C file a third
counterclaim from a crossclaim. (2%) party complaint against D for the amount of P
100,000.00?
c) A, who is engaged in tile installation business, SUGGESTED ANSWER:
was sued by EE Industries for breach of contract for
installing different marble tiles in its offices as provided (a) Yes. B can file a cross-claim against C for the amount
in their contract. Without filing any motion to dismiss, of 200,000.00 given to C. A cross-claim is a claim filed
A filed its Answer with Counterclaim theorizing that EE by one party against a co-party arising out of the
Industries has no legal capacity to sue because it is not a transaction or occurrence that is the subject matter of
duly registered corporation. By way of counterclaim, A the original action or a counterclaim therein and may
asked for moral and actual damages as her business include a claim that the party against whom it is asserted
depleted as a result of the withdrawal and cancellation is or may be liable to the cross-claimant for all or part
by her clients of their contracts due to the filing of the of a claim asserted against the cross-claimant. (Sec. 8 Rule
case. The case was dismissed after the trial court found 6)
that EE Industries is not a registered corporation and (b) No, C cannot file a third-party complaint against D
therefore has no legal capacity to sue. However, it set a because the loan of P100,000 has no connection with
date for the reception of evidence on A's counterclaim. the opponent's claim. C could have loaned the money
EE Industries opposed on the ground that the out of other funds in his possession.
counterclaim could no longer be prosecuted in view of ALTERNATIVE ANSWER:
the dismissal of the main Yes, C can file a third-party complaint against D because
the loan of 100,000.00 was taken out of the P200,000
received from B and hence the loan seeks
contribution in respect to his opponent's claim. (Sec. 11 1 Legal interest against both; or
of Rule 6) 2 So situated as to be adversely affected by a
distribution or other disposition or property in the
Actions; Derivative Suit vs. Class Suit (2005) custody of the court or of an officer thereof.
Distinguish a derivative suit from a class suit. 3 Intervention will not unduly delay or prejudice
SUGGESTED ANSWER: the adjudication of the rights or original parties;
A DERIVATIVE SUIT is a suit in equity that is filed by 4 Intervenors rights may not be fully protected
a minority shareholder in behalf of a corporation to in a separate proceedings.
redress wrongs committed against it, for which the (Acenas II v. Court of Appeals, 247 SCRA 773 [1995]; Sec. 1,
directors refuse to sue, the real party in interest being the Rule 19, 1997 Rules of Civil Procedure.)
corporation itself (Lint v. Lim-Yu, G.IL No. 138343,
February 19, 2001), while a CLASS SUIT is filed regarding Actions; Real Actions & Personal Actions (2006)
a controversy of common or general interest in behalf of What do you mean by a) real actions; and b) personal
many persons so numerous that it is impracticable to join action? (2%)
all as parties, a number which the court finds sufficiently SUGGESTED ANSWER:
representative who may sue or defend for the benefit of a. REAL ACTIONS are actions affecting title to or
all. (Sec. 12, Rule 3) It is worth noting that a derivative suit possession of real property or an interest therein
is a representative suit, just like a class suit. (Fortune Motors, Inc. v. CA, G. R. No. 76431, October 16,
1989; Rule 4, Sec. 1).
Actions; Filing; Civil Actions & Criminal Action (2005) b. All other actions are PERSONAL ACTIONS (Rule 4,
Section I) which include those arising from privity of
While cruising on a highway, a taxicab driven by Mans
hit an electric post. As a result thereof, its passenger, contract.
Jovy, suffered serious injuries. Mans was subsequently
charged before the Municipal Trial Court with reckless Actions; Survives Death of the Defendant (2000)
imprudence resulting in serious physical injuries. PJ engaged the services of Atty. ST to represent him in
a civil case filed by OP against him which was docketed
as Civil Case No. 123. A retainership agreement was
Thereafter, Jovy filed a civil action against Lourdes, the executed between PJ and Atty. ST whereby PJ promised
owner of the taxicab, for breach of contract, and Mans to pay Atty. ST a retainer sum of P24,000.00 a year and
for quasi-delict. Lourdes and Mans filed a motion to to transfer the ownership of a parcel of land to Atty. ST
dismiss the civil action on the ground of litis pendentia, after presentation of PJs evidence. PJ did not comply
that is, the pendency of the civil action impliedly with his undertaking. Atty. ST filed a case against PJ
instituted in the criminal action for reckless imprudence which was docketed as Civil Case No. 456. During the
resulting in serious physical injuries. Resolve the motion trial of Civil Case No. 456, PJ died.
with reasons. (4%)
SUGGESTED ANSWER: 1 Is the death of PJ a valid ground to dismiss the
The motion to dismiss should be denied. The action for money claim of Atty. ST in Civil Case No. 456? Explain.
breach of contract against the taxicab owner cannot be (2%)
barred by the criminal action against the taxicab driver, 2 Will your answer be the same with respect to
although the taxicab owner can be held subsidiarily liable the real property being claimed by Atty. ST in Civil Case
in the criminal case, if the driver is insolvent. On the No. 456? Explain (2%)
other hand, the civil action for quasi-delict against the SUGGESTED ANSWER:
driver is an independent civil action under Article 33 of 1 No. Under Sec. 20, Rule 3, 1997 Rules of Civil
the Civil Code and Sec. 3, Rule 111 of the Rules of Procedure, when the action is for recovery of money
Court, which can be filed separately and can proceed arising from contract, express or implied, and the
independently of the criminal action and regardless of defendant dies before entry of final judgment in the court
the result of the latter. (Samson v. Daway, G.R. Nos. in which the action is pending at the time of such death,
160054-55, July 21, it shall not be dismissed but shall instead be allowed to
2004)
continue until entry of final judgment. A favorable
judgment obtained by the plaintiff shall be enforced in
Actions; Intervention; Requisites (2000) the manner especially provided in the Rules for
What are the requisites for an intervention by a non- prosecuting claims against the estate of a deceased
party in an action pending in court? (5%) person.
SUGGESTED ANSWER: 2 Yes, my answer is the same. An action to
The requisites for intervention are: recover real property in any event survives the death of
1 Legal interest in the matter in a controversy; or the defendant. (Sec. 1, Rule 87, Rules of Court).
2 Legal interest in the success of either of the parties; However, a favorable judgment may be enforced
or
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 17 of 66 allow a FRESH
in accordance with Sec. 7(b) Rule 39 (1997 Rules of PERIOD of 15 days within which to file the notice of appeal
Civil Procedure) against the executor or in the RTC, counted from receipt of the order dismissing a
administrator or successor in interest of the motion for a new trial or motion for reconsideration. [Neypes
deceased. et. al. vs.
CA, G.R. No. 141524, September 14, 2005]
Appeals; Period of Appeal; Fresh Period Rule (2003)
Defendant X received an adverse Decision of the RTC in Certiorari; Mode of Certiorari (2006)
an ordinary civil case on 02 January 2003. He filed a Explain each mode of certiorari:
Notice of Appeal on 10 January 2003. On the other hand, 1. As a mode of appeal from the Regional Trial
plaintiff A received the same Decision on 06 January 2003 Court or the Court of Appeals to the Supreme Court.
and, on 19 January 2003, filed a Motion for (2.5%)
SUGGESTED ANSWER:
Reconsideration of the Decision. On 13 January 2003,
Certiorari as a mode of appeal is governed by Rule 45 of
defendant X filed a Motion withdrawing his notice of
the Rules of Court which allows appeal from judgment,
appeal in order to file a Motion for New Trial which he
final order of resolution of the Court of Appeals,
attached. On 20 January 2003, the court denied As
Sandiganbayan, the RTC or other courts whenever
Motion for Reconsideration and Xs Motion to Withdraw
authorized by law to the Supreme Court by verified
Notice of Appeal. Plaintiff A received the Order denying
petition for review raising only questions of law
his Motion for Reconsideration on 03 February 2003 and
distinctly set forth.
filed his Notice of Appeal on 05 February 2003. The
court denied due course to As Notice of Appeal on the
2. As a special civil action from the Regional
ground that he period to appeal had already lapsed. 6%
Trial Court or the Court of Appeals to the Supreme
Court. (2.5%)
SUGGESTED ANSWER:
(a) Is the courts denial of Xs Motion to Withdraw Certiorari as a Special Civil Action is governed by Rule
Notice of Appeal proper? 65 of the Rules of Court when an aggrieved party may
(b) Is the courts denial of due course to As appeal file a verified petition against a decision, final order or
correct? resolution of a tribunal, body or board that has acted
SUGGESTED ANSWER: without or in excess of its jurisdiction or grave abuse of
(a) No, the courts denial of Xs Motion to Withdraw discretion amounting to lack or excess of jurisdiction,
Notice of Appeal is not proper, because the period of when there is no appeal or any other plain, speedy and
appeal of X has not yet expired. From January 2, 2003 adequate remedy in the ordinary course of law.
when X received a copy of the adverse decision up to
January 13, 2003 when he filed his withdrawal of appeal
and Motion for New Trial, only ten (10) days had 3. As a mode of review of the decisions of the
elapsed and he had fifteen (15) days to do so. National Labor Relations Commission and the
Constitutional Commissions. (2.5%)
SUGGESTED ANSWER:
(b) No, the courts denial of due course to As appeal is Certiorari as a mode of review of the decision of the
not correct because the appeal was taken on time. From NLRC is elevated to the Court of Appeals under Rule
January 6, 2003 when A received a copy of the decision 65, as held in the case of St. Martin's Funeral Home v.
up to January 19, 2003 when he filed a Motion for NLRC, G.R. No. 130866, September 16, 1998. Certiorari as
Reconsideration, only twelve (12) days had elapsed. a mode of review from the Commission on Audit
Consequently, he had three (3) days from receipt on (COA) and COMELEC is elevated to the Supreme
February 3, 2003 of the Order denying his Motion for Court within 30 days from notice of the judgment,
Reconsideration within which to appeal. He filed is decision or final order or resolution sought to be
notice of appeal on February 5, 2003, or only two (2) reviewed, as provided for under the Rule 64 of the 1997
days later. Rules of Civil Procedure. In the case of the Civil Service
ALTERNATIVE ANSWER: Commission (CSC), review of its judgments is through
Since As Motion for Reconsideration was filed on petitions for review under Sec. 5 of Rule 43 of the 1997
January 19, 2003 and it was denied on January 20, 2003, Rules of Civil Procedure.
it was clearly not set for hearing with at least three days
notice. Therefore, the motion was pro forma and did Certiorari; Rule 45 vs. Rule 65 (1998)
not interrupt the period of appeal which expired on Differentiate certiorari as an original action from
January 21, 2003 or fifteen (15) days after notice of the certiorari as a mode of appeal. |3%]
decision on January 6, 2003. SUGGESTED ANSWER:
Certiorari as an original action and certiorari as a mode
NOTE: To standardize the appeal periods provided in of appeal may be distinguished as follows:
the Rules and to afford litigants fair opportunity to 1. The first is a special civil action under Rule 65
appeal their cases, the Court deems it practical to of the Rules of Court, while the second is an appeal
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 18 of 66 was issued against
to the Supreme Court from the Court of Appeals, C, who being B's sole heir, acquired the property. Did the
Sandiganbayan and the RTC under Rule failure of counsel X to inform the court of B's death constitute
45. direct contempt? (2%)
1 The first can be filed only on the grounds of lack or
excess of jurisdiction or grave abuse of discretion tantamount toSUGGESTED ANSWER:
lack or excess of jurisdiction, while the second is based on theNo. It is not direct contempt under Sec. 1 of Rule 71,
errors of law of the lower court. but it is indirect contempt within the purview of Sec 3
2 The first should be filed within sixty (60) days fromof Rule 71. The lawyer can also be the subject of
notice of the judgment, order or resolution sought to be assaileddisciplinary action. (Sec. 16, Rule 3)
(Sec. 4. Rule 65), while the second should be filed within fifteen
(15) days from notice of the judgment or final order or resolutionDefault (2000)
appealed from, or of the denial of the petitioner's motion forDefendant was declared in default by the RTC (RTC).
new trial or reconsideration filed in due time after notice of thePlaintiff was allowed to present evidence in support of
judgment. (Sec. 2, Rule 45) his complaint. Photocopies of official receipts and
3 The first cannot generally be availed of as a substituteoriginal copies of affidavits were presented in court,
for a lost appeal under Rules 40, 41, 42, 43 and 45. identified by plaintiff on the witness stand and marked
4 Under the first, the lower court is impleaded as a partyas exhibits. Said documents were offered by plaintiff and
respondent (Sec. 5 of Rule 65), while under the second, the loweradmitted in evidence by the court on the basis of which
court is not imp leaded. the RTC rendered judgment in favor of the plaintiff,
pursuant to the relief prayed for. Upon receipt of the
judgment, defendant appeals to the Court of Appeals
claiming that the judgment is not valid because the RTC
based its judgment on mere photocopies and affidavits
(Sec. 4 of Rule of 45) of persons not presented in court. Is the claim of
defendant valid? Explain. (3%)
Certiorari; Rule 45 vs. Rule 65 (2005)
May the aggrieved party file a petition for certiorari in the SUGGESTED ANSWER:
Supreme Court under Rule 65 of the 1997 Rules of Civil The claim of defendant is not valid because under the
Procedure, instead of filing a petition for review on 1997 Rules, reception of evidence is not required. After
certiorari under Rule 45 thereof for the nullification of a a defendant is declared in default, the court shall proceed
decision of the Court of Appeals in the exercise either of to render judgment granting the claimant such relief as
its original or appellate jurisdiction? Explain. his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence,
SUGGESTED ANSWER: which may be delegated to the clerk of court. (Sec. 3, Rule
To NULLIFY A DECISION of the Court of Appeals 9)
the aggrieved party should file a PETITION FOR ALTERNATIVE ANSWER:
REVIEW ON CERTIORARI in the Supreme Court The claim of defendant is valid, because the court
under Rule 45 of the Rules of Court instead of filing a received evidence which it can order in its own
petition for certiorari under Rule 65 except under very discretion, in which case the evidence of the plaintiff
exceptional circumstances. A long line of decisions of must pass the basic requirements of admissibility.
the Supreme Court, too numerous to mention, holds
that certiorari is not a substitute for a lost appeal. It Default (2001)
should be noted, however, when the Court of Appeals Mario was declared in default but before judgment was
imposes the death penalty, or a lesser penalty for rendered, he decided to file a motion to set aside the
offenses committed on such occasion, appeal by petition order of default. a) What should Mario state in his
for review or ordinary appeal. In cases when the Court motion in order
of Appeals imposes reclusion perpetua, life to justify the setting aside of the order of default? (3%)
imprisonment or a lesser penalty, appeal is by notice of b) In what form should such motion be? (2%)
appeal filed with the Court of Appeals.
SUGGESTED ANSWER:
a) In order to justify the setting aside of the order of
default, Mario should state in his motion that his failure
Contempt; Death of a Party; Effect (1998) to answer was due to fraud, accident, mistake or
A filed a complaint for the recovery of ownership of excusable negligence and that he has a meritorious
land against B who was represented by her counsel X. defense. [Sec. 3(b) of Rule 9,].
In the course of the trial, B died. However, X failed to
notify the court of B's death. The court proceeded to b) The motion should be under oath. (Id.)
hear the case and rendered judgment against B. After
the Judgment became final, a writ of execution Default; Order of Default; Effects (1999)
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 19 of 66 defense (Sec. 3[b], Rule
1 When may a party be declared in default? (2%) 9); and if it is denied, he may move to reconsider, and if
2 What is the effect of an Order of Default? (2%) reconsideration is denied, he may file the special civil action of
3 For failure to seasonably file his Answer despitecertiorari
due for grave abuse of discretion tantamount to lack or
notice, A was declared in default in a case instituted againstexcess
him of the lower court's jurisdiction. (Sec. 1, Rule 65) or
by B. The following day, A's mistress who is working as a clerk
in the sala of the Judge before whom his case is pending,
informed him of the declaration of default. On the same day,
A presented a motion under oath to set aside the order of (b) he may file a petition for certiorari if he has
default on the ground that his failure to answer was due to been illegally declared in default, e.g. during the
fraud and he has a meritorious defense. Thereafter, he went pendency of his motion to dismiss or before the
abroad. After his return a week later, with the case still expiration of the time to answer.
undecided, he received the order declaring him in default. The (Matute vs. Court of Appeals, 26 SCRA 768;
motion to set aside default was opposed by B on the ground Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)
that it was filed before A received notice of his having been
declared in default, citing the rule that the motion to set aside
may be made at anytime after notice but before judgment. 2. AFTER JUDGMENT BUT BEFORE ITS FINALITY, he
Resolve the Motion. (2%) may file a motion for new trial on the grounds of fraud,
accident, mistake, excusable negligence, or a motion for
reconsideration on the ground of excessive damages,
insufficient evidence or the decision or final order being
contrary to law (Sec. 2, Rule 37): and thereafter. If the
SUGGESTED ANSWER: motion is denied, appeal to available under Rules 40 or
1. A party may be declared in default when he 41, whichever to applicable.
fails to answer within the time allowed therefor, and
upon motion of the claiming party with notice to the 3. AFTER FINALITY OF THE JUDGMENT, there are three
defending party, and proof of such failure. ways to assail the judgment, which are:
(Sec. 3, Rule 9) a) a petition for relief under Rule 38 on the
grounds of fraud, accident, mistake or excusable
2. The effect of an Order of Default is that the negligence;
court may proceed to render judgment granting the b) annulment of judgment under Rule 47 for
claimant such relief as his pleading may warrant unless extrinsic fraud or lack of jurisdiction; or c)
the court in its discretion requires the claimant to submit certiorari if the judgment to void on its face
evidence (Id.) The party in default cannot take part in or by the judicial record. (Balangcad vs. Justices of
the trial but shall be entitled to notice of subsequent the Court of Appeals, G.R. No. 83888. February 12,
proceedings. (Sec. 1992, 206 8CRA 171).
3[A])
Default; Remedies; Party Declared in Default (2006)
3. Assuming that the motion to set aside complies Jojie filed with the Regional Trial Court of Laguna a
with the other requirements of the rule, it should be complaint for damages against Joe. During the pretrial,
granted. Although such a motion may be made after Jojie (sic) and her (sic) counsel failed to appear despite
notice but before judgment (Sec. 3[B] of Rule 9), with more notice to both of them. Upon oral motion of Jojie, Joe
reason may it be filed after discovery even before receipt was declared as in default and Jojie was allowed to
of the order of default. present her evidence ex parte. Thereafter, the court
rendered its Decision in favor of Jojie. Joe hired Jose as
his counsel. What are the remedies available to him?
Default; Remedies; Party Declared in Default (1998) Explain. (5%)
What are the available remedies of a party declared In SUGGESTED ANSWER:
default: The remedies available to a party against whom a default
1 Before the rendition of judgment; [1%] decision is rendered are as follows:
2 After judgment but before its finality; and [2%1 1. BEFORE the judgment in default becomes final and
3 After finality of judgment? [2%] executory:
SUGGESTED ANSWER: Motion for Reconsideration under Rule
The available remedies of a party declared in default are 37;
as follows: Motion for New Trial under Rule 37; and
1. BEFORE THE RENDITION OF JUDGMENT Appeal under Rule 41.
(a) he may file a motion under oath to set aside the 2. AFTER the judgment in default becomes final and
order of default on the grounds of fraud, accident, executory:
mistake or excusable negligence and that he has a Petition for Relief under Rule 38;
meritorious Annulment of Judgment under Rule 47;
and
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 20 of 66 Demurrer to
c. Certiorari under Rule 65. Evidence; Civil Case vs. Criminal Case (2003) Compare the
(See Talsan Enterprises, Inc. v. Baliwag Transit, Inc., effects of a denial of demurrer to evidence in a civil case with
G.R. No. 126258, July 8, 1999) those of a denial of demurrer to evidence in a criminal case.
4%
Default; Remedies; Substantial Compliance (2000)
For failure of K.J. to file an answer within the SUGGESTED ANSWER:
reglementary period, the Court, upon motion of LM, In a civil case, the defendant has the right to file a
declared KJ in default. In due time, KJ filed an demurrer to evidence without leave of court. If his
unverified motion to lift the order of default without an demurrer is denied, he has the right to present evidence.
affidavit of merit attached to it. KJ however attached to If his demurrer is granted and on appeal by the plaintiff,
the motion his answer under oath, stating in said answer the appellate court reverses the order and renders
his reasons for his failure to file an answer on time, as judgment for the plaintiff, the defendant loses his right
well as his defenses. Will the motion to lift the order of to present evidence. (Rule 33).
default prosper? Explain. (3%)
In a criminal case, the accused has to obtain leave of
SUGGESTED ANSWER: court to file a demurrer to evidence. If he obtains leave
Yes, there is substantial compliance with the rule. Although of court and his demurrer to evidence is denied, he has
the motion is unverified, the answer attached to the motion the right to present evidence in his defense. If his
is verified. The answer contains what the motion to lift the demurrer to evidence is granted, he is acquitted and the
order of default and the affidavit of merit should contain,
prosecution cannot appeal.
which are the reasons of movants failure to answer as well
as his defenses. (Sec. 3 [b] of Rule 9, 1997 Rules of Civil
If the accused does not obtain leave of court and his
demurrer to evidence is denied, he waives his right to
Procedure; Cf. Citibank, N.A. v. Court of Appeals, 304 SCRA present evidence and the case is decided on the basis of
679, [1999]; Consul v. Consul, 17 SCRA 667, 671 [1966];
the evidence for the prosecution.
Tolentino v. Carlos, 66 Phil, 1450, 143-144 [1938], Nasser v.
Court of Appeals, 191 SCRA 783 [1992]).
The court may also dismiss the action on the ground of
Demurrer to Evidence (2001) insufficiency of the evidence on its own initiative after
Carlos filed a complaint against Pedro in the RTC of giving the prosecution the opportunity to be heard. (Sec.
Ozamis City for the recovery of the ownership of a car. 23 of Rule 119)
Pedro filed his answer within the reglementary period.
After the pre-trial and actual trial, and after Carlos has Discovery; Modes of Discovery (2000)
completed the presentation of his evidence, Pedro Describe briefly at least five (5) modes of discovery
moved for the dismissal of the complaint on the ground under the Rules of Court. (5%)
that under the facts proven and the law applicable to the SUGGESTED ANSWER:
case, Carlos is not entitled to the ownership of the car. Five modes of discovery under the Rules of Court are:
The RTC granted the motion for dismissal. Carlos
appealed the order of dismissal and the appellate court 1 DEPOSITION. By leave of court after
reversed the order of the trial court. Thereafter, Pedro jurisdiction has been obtained over any defendant or
filed a motion with the RTC asking the latter to allow him over property which is the subject of the action, or
to present his evidence. Carlos objected to the without such leave after an answer has been served, the
presentation of evidence by Pedro. Should the RTC grant testimony of any person, whether a party or not, may be
Pedros motion to present his evidence? Why? (5%) taken, at the instance of any party, by deposition upon
oral examination or written interrogatories. (Sec. 1, Rule 23,
1997 Rules of Civil Procedure.)
SUGGESTED ANSWER: 2 INTERROGATORIES TO PARTIES. Under the
No. Pedros motion should be denied. He can no longer same conditions specified in section 1 of Rule 23, any
present evidence. The Rules provide that if the motion party shall file and serve upon any adverse party written
for dismissal is granted by the trial court but on appeal interrogatories regarding material and relevant facts to
the order of dismissal is reversed, he shall be deemed to be answered by the party served. (Sec. 1, Rule 25, 1997 Rules
have waived the right to present evidence. (Sec. 1 of Rule 33, of Civil Procedure.)
Rules of Civil Procedure) 3 ADMISSION BY ADVERSE PARTY. At any time
ALTERNATIVE ANSWER: after issues have been joined, a party may file and serve
No, because when the appellate court reversed the order upon any other party a written request for the admission
of the trial court it should have rendered judgment in by the latter of the genuineness of any material and
favor of Carlos. (Quebral v. Court of Appeals, 252 SCRA 353, relevant document or of the truth of any material and
1996) relevant matter of fact.
(Sec. 1, Rule 26, 1997 Rules of Civil Procedure.)

4. PRODUCTION OR INSPECTION OF DOCUMENTS SUGGESTED ANSWER:
OR THINGS. Upon motion of any party showing good cause (1) Yes, because upon motion of any party showing
therefore, a court may order any party to produce and
good cause, the court in which the action is pending may
permit the inspection and copying or photographing of any
order any party to produce and permit the inspection of
designated documents, etc. or order any party to permit designated documents. (Rule 27). The defendant has the
entry upon designated land or property for inspecting,
right to inspect and verify the original of the promissory
measuring, surveying, or photographing the property or any note so that he could intelligently prepare his answer.
designated relevant object or operation thereon. (Sec. 1, Rule
(2) The defendant is not required to deny under oath
27, 1997 Rule 27 Rules of Civil Procedure.) the genuineness and due execution of the promissory
note, because of the non-compliance by the plaintiff
Discovery; Modes; Subpoena Duces Tecum (1997) with the order for production and inspection of the
In an admiralty case filed by A against Y Shipping Lines original thereof. (Rule 8, sec. 8).
(whose principal offices are in Manila) in the RTC, ALTERNATIVE ANSWER:
Davao City, the court issued a subpoena duces tecum (2) The defendant may file a motion to dismiss the
directing Y, the president of the shipping company, to complaint because of the refusal of the plaintiff to obey
appear and testify at the trial and to bring with him the order of the court for the production and inspection
several documents. of the promissory note. [Rule 29 Sec. 3(c)].
(a) On what valid ground can Y refuse to comply with
the subpoena duces tecum? Dismissal; Motion to Dismiss; Res Judicata (2000)
(b) How can A take the testimony of Y and present the AB, as mother and in her capacity as legal guardian of
documents as exhibits other than through the subpoena her legitimate minor son, CD, brought action for
from the RTC? support against EF, as father of CD and ABs lawfully
SUGGESTED ANSWER: wedded husband. EF filed his answer denying his
(a) Y can refuse to comply with the subpoena duces paternity with counterclaim for damages. Subsequently,
tecum on the ground that he resides more than 50 (now AB filed a manifestation in court that in view of the
100) kilometers from the place where he is to testify, denial made by EF, it would be futile to pursue the case
(Sec. 9 of former Rule 23; Sec. 10 of new Rule 21). against EF. AB agreed to move for the dismissal of the
complaint, subject to the condition that EF will
(b) A can take the testimony of Y and present the withdraw his counter claim for damages. AB and EF
documents as exhibits by taking his deposition through filed a joint motion to dismiss. The court dismissed the
oral examination or written interrogatories. (Rule 24; new case with prejudice. Later on, minor son CD, represented
Rule 23) He may also file a motion for the production or by AB, filed another complaint for support against EF.
inspection of documents. (Rule 27). EF filed a motion to dismiss on the ground of res
ALTERNATIVE ANSWER: judicata. a) Is res judicata a valid ground for dismissal of
(a) The witness can also refuse to comply with the the
subpoena duces tecum on the ground that the second complaint? Explain your answer (3%) b) What
documents are not relevant and there was no tender of are the essential requisite of res judicata? (2%)
fees for one day's attendance and the kilometrage
allowed by the rules. SUGGESTED ANSWER:
(a) No, res judicata is not a defense in an action for
Discovery; Production and Inspection of Documents support even if the first case was dismissed with
(2002) prejudice on a joint motion to dismiss. The plaintiffs
The plaintiff sued the defendant in the RTC to collect on mother agreed to the dismissal of the complaint for
a promissory note, the terms of which were stated in the support in view of the defendants answer denying his
complaint and a photocopy attached to the complaint as paternity with a counterclaim for damages. This was in
an annex. Before answering, the defendant filed a motion the nature of a compromise of the right of support
for an order directing the plaintiff to produce the original which is prohibited by law. (Art, 2035, Civil Code; De
of the note so that the defendant could inspect it and Asis v. Court of Appeals, 303 SCRA 176 [1999]).
verify his signature and the handwritten entries of the
dates and amounts. (b) The Essential Requisites of Res Judicata are:
1 Should the judge grant the defendants motion for 1 the judgment or order rendered must be
production and inspection of the original of the promissory final;
note? Why? (2%) 2 the court rendering the same must have
2 Assuming that an order for production and jurisdiction of the subject matter and of the parties;
inspection was issued but the plaintiff failed to comply with it, 3 it must be a judgment or order on the
how should the defendant plead to the alleged execution of the merits; and
note? (3%)
4. there must be between the two cases
identity of parties, identity of subject matter, and SUGGESTED ANSWER:
identity of causes of action. (San Diego v. A QUESTION OF LAW is when the doubt or difference
Cardona, 70 Phil, 281 [1940]) arises as to what the law is on a certain set of facts, while
a QUESTION OF FACT is when the doubt or difference
Evidence; Admissibility; Photocopies (2000) arises as to the truth or falsehood of alleged facts. (Ramos
If the photocopies of official receipts and photocopies of v. Pepsi-Cola Bottling Co., 19
affidavits were attached to the position paper submitted SCRA 289, [19670]).
by plaintiff in an action for unlawful detainer filed with
Municipal Trial Court on which basis the court rendered Judgment; Annulment of Judgment; Grounds (1998)
judgment in favor of plaintiff? Explain. (2%) What are the grounds for the annulment of a judgment
of the RTC (RTC)? [2%]
SUGGESTED ANSWER: SUGGESTED ANSWER:
The claim of defendant is valid, because although The grounds for annulment of judgment of the RTC
summary procedure requires merely the submission of are Extrinsic Fraud and Lack of Jurisdiction. (Sec, 2, Rule
position papers, the evidence submitted with the 47, 1997 Rules of Civil Procedure.)
position paper must be admissible in evidence. (Sec. 9 of
the Revised Rule on Summary Procedure). Photocopies of official Judgment; Enforcement; 5-year period (1997)
receipts and affidavits are not admissible without proof A, a resident of Dagupan City, secured a favorable
of loss of the originals. (Sec. 3 of Rule 130) judgment in an ejectment case against X, a resident of
Quezon City, from the MTCof Manila. The judgment,
Forum Shopping; Definition (2006) entered on 15 June 1991, had not as yet been executed.
What is forum shopping? (2.5%) a) In July 1996, A decided to enforce the judgment
SUGGESTED ANSWER:
Forum shopping is the act of a party which consists of of the MTCof Manila. What is the procedure to be
filing multiple suits, simultaneously or successively, for followed by A in enforcing the judgment? b) With what
the purpose of obtaining a favorable judgment court should A institute the proceedings?
(Leyson v. Office of the Ombudsman, G.R. No. 134990, April
27, 2000; Yulienco v. CA, G.R. No. 131692, June 10,1999; SUGGESTED ANSWER:
Chemphil Export & Import Corp. v. CA, G.R. Nos. 112438- (a) A can enforce the judgment by another action
39, December 12, 1995). reviving the Judgment because it can no longer be
enforced by motion as the five-year period within which
Forum Shopping; Effects; Lack of Certification (2006)
a judgment may be enforced by motion has already
Honey filed with the Regional Trial Court, Taal,
expired. (Sec. 6 of former and new Rule 39).
Batangas a complaint for specific performance against
Bernie. For lack of certification against forum shopping,
(b) A may institute the proceedings in the RTC in
the judge dismissed the complaint. Honey's lawyer filed
accordance with the rules of venue because the
a motion for reconsideration, attaching thereto an
enforcement of the Judgment is a personal action
amended complaint with the certification against forum
incapable of pecuniary estimation.
shopping. If you were the judge, how will you resolve the ALTERNATIVE ANSWER:
motion? (5%) (b) A may institute the proceeding in a MTCwhich has
SUGGESTED ANSWER: jurisdiction over the area where the real property
If I were the judge, the motion should be denied after hearing
because, as expressly provided in the Rules, failure to comply involved is situated. (Sec. 1 of Rule 4).
with the requirement of forum shopping is not curable by
mere amendment of the complaint or other initiatory pleading, Judgment; Enforcement; Foreign Judgment (2005)
but shall be cause for the dismissal of the case, without Under Article 1144 of the New Civil Code, an action
prejudice, unless otherwise provided (Sec. 5, Rule 7, 1997 Rules of upon a judgment must be brought within 10 years from
Civil Procedure). However, the trial court in the exercise of its the time the right of action accrues. Is this provision
sound discretion, may choose to be liberal and consider the applicable to an action filed in the Philippines to enforce
amendment as substantial compliance a foreign judgment? Explain. (10%)
ALTERNATIVE ANSWER:
(Great Southern Maritime Services Corp. v. Acuna, G.R. No. Article 1144 of the Civil Code which requires that an
140189, February 28,2005; Chan v. RTC of Zamboanga del action upon a judgment (though without distinction)
Norte, G.R. No. 149253, April 15, 2004; Uy v. Land Bank, G.R.
136100, July 24, 2000).
must be brought within 10 years from the time the right
of action accrues, does not apply to an action filed in the
Gen. Principles; Questions of Law vs. Questions of Fact Philippines to enforce a foreign judgment. While we can
(2004) say that where the law does not distinguish, we should
Distinguish Questions of law from Questions of fact. not distinguish, still the law does not evidently
contemplate the inclusion of
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 23 of 66 Judgment;
foreign judgments. A local judgment may be enforced by Interlocutory Order; Partial Summary Judgments (2004) After
motion within five years and by action within the next defendant has served and filed his answer to plaintiffs
five years. (Rule 39) That is not the case with respect tocomplaint for damages before the proper RTC, plaintiff served
foreign judgments which cannot be enforced by mere and filed a motion (with supporting affidavits) for a summary
motion. judgment in his favor upon all of his claims. Defendant served
ALTERNATIVE ANSWER: and filed his opposition (with supporting affidavits) to the
Article 1144 of the Civil Code requires that an action motion. After due hearing, the court issued an order
upon a judgment (though without distinction) must be
brought within 10 years from the time the right of action
accrues. There seems no cogent reason to exclude (1) stating that the court has found no genuine issue as
foreign judgments from the operation of this rule, to any material fact and thus concluded that plaintiff is
subject to the requirements of Rule 39, Sec. 48 of the entitled to judgment in his favor as a matter of law
Rules of Court which establishes certain requisites for except as to the amount of damages recoverable, and (2)
proving the foreign judgment. Pursuant to these accordingly ordering that plaintiff shall have judgment
provisions, an action for the enforcement of the foreign summarily against defendant for such amount as may be
judgment may be brought at any time within 10 years found due plaintiff for damages, to be ascertained by
from the time the right of action accrues. trial on October 7, 2004, at 8:30 o'clock in the morning.
May defendant properly take an appeal from said order?
Or, may defendant properly challenge said order thru a
Judgment; Execution pending Appeal (2002) special civil action for certiorari? Reason. (5%)
The trial court rendered judgment ordering the
defendant to pay the plaintiff moral and exemplary SUGGESTED ANSWER:
damages. The judgment was served on the plaintiff on No, plaintiff may not properly take an appeal from said
October 1, 2001 and on the defendant on October 5, order because it is an interlocutory order, not a final and
2001. On October 8, 2001, the defendant filed a notice appealable order (Sec. 4 of Rule 35). It does not dispose of
of appeal from the judgment, but the following day, the action or proceeding (Sec. 1 of Rule 39).
October 9, 2001, the plaintiff moved for the execution
of the judgment pending appeal. The trial court granted PARTIAL SUMMARY JUDGMENTS are interlocutory.
the motion upon the posting by the plaintiff of a bond There is still something to be done, which is the trial for
to indemnify the defendant for damages it may suffer as the adjudication of damages
a result of the execution. The court gave as a special (Province of Pangasinan v. Court of Appeals, 220 SCRA 726
reason for its order the imminent insolvency of the [1993J; Guevarra v. Court of Appeals, 209 Phil. 241 [1983]) ,
defendant. Is the order of execution pending appeal but the defendant may properly challenge said
correct? Why? (5%) order thru a special civil action for certiorari. (Sec. 1 [c]
and last par. of Rule 41)
SUGGESTED ANSWER:
No, because awards for moral and exemplary damages Judgment; Judgment on the Pleadings (1999)
cannot be the subject of execution pending appeal. The a) What are the grounds for judgment on the
execution of any award for moral and exemplary damages pleadings? (2%)
is dependent on the outcome of the main case. Liabilities b) A's Answer admits the material allegations of
for moral and exemplary damages, as well as the exact B's Complaint. May the court motu proprio render
amounts remain uncertain and indefinite pending resolution judgment on the pleadings? Explain. (2%)
by the Court of Appeals or Supreme Court. [RCPI v. Lantin, c) A brought an action against her husband B for
annulment of their marriage on the ground of
134 SCRA 395 (1985); International School, Inc. v. Court of psychological incapacity, B filed his Answer to the
Appeals, 309 SCRA 474 (1999)]. Complaint admitting all the allegations therein
ALTERNATIVE ANSWER: contained. May A move for judgment on the pleadings?
Yes, because only moral and exemplary damages are Explain. (2%)
awarded in the judgment and they are not dependent on SUGGESTED ANSWER:
other types of damages. a) The grounds for judgment on the pleadings are
where an answer fails to tender an issue, or otherwise
Moreover, the motion for execution was filed while the admits the material allegations of the adverse party's
court had jurisdiction over the case and was in pleading. (Sec. 1, Rule 34).
possession of the original record. b) No, a motion must be filed by the adverse
party. (Sec. 1, Rule 34) The court cannot motu proprio render
It is based on good reason which is the imminent judgment on the pleadings.
insolvency of the defendant. (Rule 39, sec. 2) c) No, because even if B's answer to A's
complaint for annulment of their marriage admits all the
allegations therein contained, the material facts
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 24 of 66 which is
alleged in the complaint must always be proved. tantamount to removal without cause, contrary to the
(Sec. 1 of Rule 34.) fundamental guarantee on non-removal except for cause.
ANOTHER ANSWER: Considering that Pedro continued to occupy the disputed
c. No. The court shall order the prosecutor to investigate position and exercise his functions therein, the proper remedy
whether or not a collusion between the parties exists, and
is quo warranto, not mandamus. {Garces v. Court of
if there is no collusion, to intervene for the State in order
to see to it that the evidence submitted is not fabricated.
Appeals, 259 SCRA 99 (1996)]
(Sec. 3[E], Rule 9) Evidence must have to be presented in
ALTERNATIVE ANSWER:
accordance with the requirements set down by the Yes, the court is correct in its ruling. Mandamus lies
Supreme Court in when the respondent unlawfully excludes another from
Republic vs. Court of Appeals and Molina (268 SCRA 198.) the use and enjoyment of a right or office to which such
other is entitled. (Sec. 2, Rule 65). In this case, Pablo has not
unlawfully excluded Fabian from the Office of Election
Judgment; Judgment on the Pleadings (2005) Registrar. The remedy of Fabian is to file an action of
In a complaint for recovery of real property, the plaintiff quo warranto in his name against Pablo for usurping the
averred, among others, that he is the owner of the said office. (Sec. 5, Rule
property by virtue of a deed of sale executed by the 66)
defendant in his favor. Copy of the deed of sale was
appended to the complaint as Annex "A" thereof. In his Judgment; Soundness; Attachment (2002)
unverified answer, the defendant denied the allegation The plaintiff obtained a writ of preliminary attachment
concerning the sale of the property in question, as well upon a bond of P1 million. The writ was levied on the
as the appended deed of sale, for lack of knowledge or defendants property, but it was discharged upon the
information sufficient to form a belief as to the truth posting by the defendant of a counterbond in the same
thereof. Is it proper for the court to render judgment amount of P1 million. After trial, the court rendered
without trial? Explain. (4%) judgment finding that the plaintiff had no cause of action
against the defendant and that he had sued out the writ
SUGGESTED ANSWER: of attachment maliciously. Accordingly, the court
Defendant cannot deny the sale of the property for lack of dismissed the complaint and ordered the plaintiff and its
knowledge or information sufficient to form a belief as to
surety to pay jointly to the defendant P1.5 million as
the truth thereof. The answer amounts to an admission.
actual damages, P0.5 million as moral damages and P0.5
The defendant must aver or state positively how it is that
he is ignorant of the facts alleged. (Phil, Advertising million as exemplary damages. Evaluate the soundness of
Counselors, Inc. v. Revilla, the judgment from the point of view of procedure. (5%)
G.R. No. L-31869, August 8, 1973; Sec. 10, Rule 8)
Moreover, the genuineness and due execution of the SUGGESTED ANSWER:
deed of sale can only be denied by the defendant under The judgment against the surety is not sound if due
oath and failure to do so is also an admission of the notice was not given to him of the applicant for
deed. (Sec. 8, Rule 8) Hence, a judgment on the pleadings damages. (Rule 57, sec. 20) Moreover, the judgment against
can be rendered by the court without need of a trial. the surety cannot exceed the amount of its counterbond
of P1 million.
Judgment; Mandamus vs. Quo Warranto (2001) Judgments; Enforcement; Examination of Defendant
Petitioner Fabian was appointed Election Registrar of the (2002)
Municipality of Sevilla supposedly to replace the The plaintiff, a Manila resident, sued the defendant, a
respondent Election Registrar Pablo who was transferred resident of Malolos Bulacan, in the RTC-Manila for a
to another municipality without his consent and who sum of money. When the sheriff tried to serve the
refused to accept his aforesaid transfer, much less to summons with a copy of the complaint on the defendant
vacate his position in Bogo town as election registrar, as at his Bulacan residence, the sheriff was told that the
in fact he continued to occupy his aforesaid position and defendant had gone to Manila for business and would
exercise his functions thereto. Petitioner Fabian then not be back until the evening of that day. So, the sheriff
filed a petition for mandamus against Pablo but the trial served the summons, together with a copy of the
court dismissed Fabians petition contending that quo complaint, on the defendants 18year-old daughter, who
warranto is the proper remedy. Is the court correct in its was a college student. For the defendants failure to
ruling? Why? (5%) answer the complaint within the reglementary period,
the trial court, on motion of the plaintiff, declared the
SUGGESTED ANSWER:
defendant in default. A month later, the trial court
Yes, the court is correct in its ruling. Mandamus will not
rendered judgment holding the defendant liable for the
lie. This remedy applies only where petitioners right is
entire amount prayed for in the complaint.
founded clearly in law, not when it is doubtful. Pablo
was transferred without his consent
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 25 of 66 Yes. The MeTC did
A. After the judgment had become final, a writ of not have jurisdiction over the case because the total amount
execution was issued by the court. As the writ was of the demand exclusive of interest, damages of whatever
returned unsatisfied, the plaintiff filed a motion for an kind, attorney's fees, litigation expenses, and costs, was P1M.
order requiring the defendant to appear before it and to Its jurisdictional amount at this time should not exceed
be examined regarding his property and income. How P400.000.00 (Sec. 33 of B.P. Big. 129, as amended by
should the court resolve the motion? (2%)
SUGGESTED ANSWER: R.A. No. 7691).
Jurisdiction; Habeas Corpus; Custody of Minors (2005) The court's order to forward the case to the RTC is not
While Marietta was in her place of work in Makati City, proper. It should merely dismiss the complaint. Under
her estranged husband Carlo barged into her house in Sec. 3 of Rule 16, the court may dismiss the action or
Paranaque City, abducted their six-year old son, claim, deny the motion or order the amendment of the
Percival, and brought the child to his hometown in pleading but not to forward the case to another court.
Baguio City. Despite Marietta's pleas, Carlo refused to
return their child. Marietta, through counsel, filed a
petition for habeas corpus against Carlo in the Court of Parties; Death of a Party; Effect (1998)
Appeals in Manila to compel him to produce their son, A filed a complaint for the recovery of ownership of
before the court and for her to regain custody. She land against B who was represented by her counsel X. In
alleged in the petition that despite her efforts, she could the course of the trial, B died. However, X failed to
no longer locate her son. notify the court of B's death. The court proceeded to
hear the case and rendered judgment against B. After the
In his comment, Carlo alleged that the petition was Judgment became final, a writ of execution was issued
erroneously filed in the Court of Appeals as the same against C, who being B's sole heir, acquired the property.
should have been filed in the Family Court in Baguio If you were counsel of C, what course of action would
City which, under Republic Act No. 8369, has exclusive you take? [3%]
jurisdiction, over the petition. Marietta replied that under
Rule 102 of the Rules of Court, as amended, the petition SUGGESTED ANSWER:
may be filed in the Court of Appeals and if granted, the As counsel of C, I would move to set aside the writ of
writ of habeas corpus shall be enforceable anywhere in execution and the judgment for lack of jurisdiction and
the Philippines. Whose contention is correct? Explain. lack of due process in the same court because the judgment
(5%) is void. If X had notified the court of B's death, the court
SUGGESTED ANSWER: would have ordered the substitution of the deceased by C,
Marietta's contention is correct. The Court of Appeals the sole heir of B. (Sec. 16 of Rule 3) The court acquired no
has concurrent jurisdiction with the family courts and the jurisdiction over C upon whom the trial and the judgment
Supreme Court in petitions for habeas corpus where the are not binding.
custody of minors is at issue, notwithstanding the (Ferreira us. Ibarra Vda. de Gonzales, 104 Phil. 143; Vda. de
provision in the Family Courts AH. (R.A. No. 8369) that la Cruz vs. Court of Appeals, 88 SCRA 695; Lawas us. Court
family courts have exclusive jurisdiction in such cases. of Appeals, 146 SCRA 173.) I could also file an action to
(Thornton v. Thornton, G.R. annul the judgment for lack of jurisdiction because C, as
No. 154598, August, 2004) the successor of B, was deprived of due process and
should have been heard before judgment.
Jurisdiction; Lack of Jurisdiction; Proper Action of the (Rule 47)
Court (2004) ALTERNATIVE ANSWER:
Plaintiff filed a complaint for a sum of money against While there are decisions of the Supreme Court which
defendant with the MeTC-Makati, the total amount of hold that if the lawyer failed to notify the court of his
the demand, exclusive of interest, damages of whatever client's death, the court may proceed even without
kind, attorney's fees, litigation expenses, and costs, being substitution of heirs and the judgment is valid and
P1,000,000. In due time, defendant filed a motion to binding on the heirs of the deceased (Florendo vs.
dismiss the complaint on the ground of the MeTC's lack Coloma, 129 SCRA 30.), as counsel of C, I will assail the
of jurisdiction over the subject matter. After due hearing, judgment and execution for lack of due process.
the MeTC (1) ruled that the court indeed lacked
jurisdiction over the subject matter of the complaint; and
(2) ordered that the case therefore should be forwarded Parties; Death of a Party; Effect (1999)
to the proper RTC immediately. Was the court's ruling What is the effect of the death of a party upon a pending
concerning jurisdiction correct? Was the court's order to action? (2%)
SUGGESTED ANSWER:
forward the case proper? Explain briefly. (5%) 1. When the claim in a pending action is purely
personal, the death of either of the parties extinguishes
SUGGESTED ANSWER:
the claim and the action is dismissed.
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 26 of 66 attached, stating
the grounds of his title thereto, and serve such affidavit upon
1 When the claim is not purely personal and isthe notsheriff while the latter has possession of the attached
thereby extinguished, the party should be substituted byproperty,
his and a copy thereof upon the attaching party. (Sec. 14,
heirs or his executor or administrator. (Sec. 16, Rule 3) Rule 57) The third-party claimant may also intervene or file a
2 If the action is for recovery of money arising separate
from action to vindicate his claim to the property involved
contract, express or implied, and the defendant dies before and secure the necessary reliefs, such as preliminary
entry of final judgment in the court in which the actioninjunction,
was which will not be considered as interference with
pending at the time of such death, it shall not be dismisseda court
but of coordinate jurisdiction.
shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff shall (Ong v. Tating, 149 SCRA 265, [1987])
be enforced in the manner provided in the rules for prosecuting
claims against the estate of a deceased person. (Sec. 20, Parties; Third-Party Claim (2005)
A obtained a money judgment against B. After the
finality of the decision, the court issued a writ of
execution for the enforcement thereof. Conformably
with the said writ, the sheriff levied upon certain
Rule 3) properties under B's name. C filed a third-party claim
over said properties claiming that B had already
Parties; Death of a Party; Effect (1999) transferred the same to him. A moved to deny the third-
When A (buyer) failed to pay the remaining balance of the party claim and to hold B and C jointly and severally
contract price after it became due and demandable, B liable to him for the money judgment alleging that B had
(seller) sued him for collection before the RTC. After transferred said properties to C to defraud him (A).
both parties submitted their respective evidence, A
perished in a plane accident. Consequently, his heirs
brought an action for the settlement of his estate and After due hearing, the court denied the third-party claim
moved for the dismissal of the collection suit. and rendered an amended decision declaring B and C
jointly and severally liable to A for the money judgment.
1 Will you grant the motion? Explain. (2%) Is the ruling of the court correct? Explain. (4%)
2 Will your answer be the same if A died while the case
is already on appeal to the Court of Appeals? Explain. (2%) SUGGESTED ANSWER:
3 In the same case, what is the effect if B died before NO. C has not been properly impleaded as a party
the RTC has rendered judgment? (2%) defendant. He cannot be held liable for the judgment
against A without a trial. In fact, since no bond was filed
SUGGESTED ANSWER: by B, the sheriff is liable to C for damages. C can file a
1 No, because the action will not be dismissed but shall separate action to enforce his third-party claim. It is in
instead be allowed to continue until entry of final judgment. that suit that B can raise the ground of fraud against C.
(Id.) However, the execution may proceed where there is a
2 No. If A died while the case was already on appeal in finding that the claim is fraudulent.
the Court of Appeals, the case will continue because there is (Tanongan v. Samson, G.R. No. 140889, May 9, 2002)
no entry yet of final judgment. (Id.)
3 The effect is the same. The action will not be Petition for Certiorari (2000)
dismissed but will be allowed to continue until entry of final AB mortgaged his property to CD. AB failed to pay his
judgment. (Id.) obligation and CD filed an action for foreclosure of
mortgage. After trial, the court issued an Order granting
CDs prayer for foreclosure of mortgage and ordering
AB to pay CD the full amount of the mortgage debt
including interest and other charges not later than 120
Parties; Third Party Claim (2000) days from date of receipt of the Order. AB received the
JKs real property is being attached by the sheriff in a Order on August 10, 1999. No other proceeding took
civil action for damages against LM. JK claims that he is place thereafter. On December 20, 1999, AB tendered
not a party to the case; that his property is not involved the full amount adjudged by the court to CD but the
in said case; and that he is the sole registered owner of latter refused to accept it on the ground that the amount
said property. Under the Rules of Court, what must JK was tendered beyond the 120-day period granted by the
do to prevent the Sheriff from attaching his property? court. AB filed a motion in the same court praying that
(5%) CD be directed to receive the amount tendered by him
SUGGESTED ANSER: on the ground that the Order does not comply with the
If the real property has been attached, the remedy is to provisions of Section 2, Rule 68 of the Rules of Court
file a third-party claim. The third-party claimant should which give AB 120 days from entry of judgment, and
make an affidavit of his title to the property
not from date of receipt of the Order. The court denied judgment, even if the dismissal is not yet final. [Golez
his motion on the ground that the Order had already v. Leonidas, 107 SCRA 187 (1981)].
become final and can no longer be amended to conform
with Section 2, Rule 68. Aggrieved, AB files a petition Pleadings; Amendment of Complaint; By Leave of Court
for certiorari against the Court and CD. Will the petition (2003)
for certiorari prosper? Explain. (5%) After an answer has been filed, can the plaintiff amend
his complaint, with leave of court, by changing entirely
SUGGESTED ANSWER: the nature of the action? 4%
Yes. The court erred in issuing an Order granting CDs SUGGESTED ANSWER:
prayer for foreclosure of mortgage and ordering AB to Yes, the present rules allow amendments substantially
pay CD the full amount of the mortgage debt including altering the nature of the cause of action. (Sec. 3, Rule 10,
interest and other charges not later than 120 days from 1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo
receipt of the Order. The court should have rendered a v. Court of Appeals, 280 SCRA 870 [1997]).
judgment which is appealable. Since no appeal was taken,
This should only be true, however, when the substantial
the judgment became final on August 25, 1999, which is
change or alteration in the cause of action or defense
the date of entry of judgment. (Sec 2, Rule 36) Hence, AB
shall serve the higher interests of substantial justice and
had up to December 24, 1999 within which to pay the
prevent delay and equally promote the laudable objective
amount due. (Sec. 2, Rule 68) The court gravely abused its
of the rules which is to secure a just, speedy and
discretion amounting to lack or excess of jurisdiction in
inexpensive disposition of every action and proceeding.
denying ABs motion praying that CD be directed to
(Valenzuela v. Court of Appeals, 363 SCRA 779 [2001]).
receive the amount tendered.
Pleadings; Amendment of Complaint; By Leave of Court;

Petition for Relief & Action for Annulment (2002)
Prescriptive Period (2000)
May an order denying the probate of a will still be
X, an illegitimate child of Y, celebrated her 18th birthday
overturned after the period to appeal therefrom has
on May 2, 1996. A month before her birthday, Y died.
lapsed? Why? (3%)
SUGGESTED ANSWER:
The legitimate family of Y refused to recognize X as an
Yes, an order denying the probate of a will may be illegitimate child of Y. After countless efforts to
overturned after the period to appeal therefrom has convince them, X filed on April 25, 2000 an action for
lapsed. A PETITION FOR RELIEF may be filed on recognition against Z, wife of
the grounds of fraud, accident, mistake or excusable Y. After Z filed her answer on August 14, 2000, X filed
negligence within a period of sixty (60) days after the a motion for leave to file an amended complaint and a
petitioner learns of the judgment or final order and not motion to admit the said amended complaint impleading
more than six (6) months after such judgment or final the three (3) legitimate children of Y. The trial court
order was entered [Rule 38, secs. 1 & 3; Soriano v. admitted the amended complaint on August 22, 2000.
Asi, 100 Phil. 785 (1957)]. What is the effect of the admission of the amended
complaint? Has the action of X prescribed? Explain.
An ACTION FOR ANNULMENT may also be filed on (5%)
the ground of extrinsic fraud within four (4) years from SUGGESTED ANSWER:
its discovery, and if based on lack of jurisdiction, before No. The action filed on April 25, 2000 is still within the
four-year prescriptive period which started to run on May
it is barred by laches or estoppel.
(Rule 47, secs. 2 & 3)
2, 1996. The amended complaint impleading the three
legitimate children, though admitted on August 22, 2000
beyond the four-year prescriptive period, retroacts to the
Petition for Relief; Injunction (2002)
date of filing of the original complaint. Amendments
A default judgment was rendered by the RTC ordering
impleading new defendants retroact to the date of the filing
D to pay P a sum of money. The judgment became final, of the complaint because they do not constitute a new
but D filed a petition for relief and obtained a writ of cause of action.
preliminary injunction staying the enforcement of the
judgment. After hearing, the RTC dismissed Ds (Verzosa v. Court of Appeals, 299 SCRA 100 [1998]).
(Note: The four-year period is based on Article 285 of the Civil Code)
petition, whereupon P immediately moved for the ALTERNATIVE ANSWER:
execution of the judgment in his favor. Should Ps Under the 1997 Rules of Civil Procedure, if an additional
motion be granted? Why? (3%) defendant is impleaded in a later pleading, the action is
SUGGESTED ANSWER: commenced with regard to him on the date of the filing
Ps immediate motion for execution of the judgment in of such later pleading, irrespective of whether the
his favor should be granted because the dismissal of Ds motion for its admission, if necessary, is denied by the
petition for relief also dissolves the writ of preliminary court. (Sec. 5 of Rule 1).
injunction staying the enforcement of the
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 28 of 66 The motion to
Consequently, the action of X has prescribed with dismiss should be granted. Jurisdiction must be conferred by
respect to the three (3) legitimate children of Y who are the contents of the original complaint. Amendments are not
indispensable parties. proper and should be denied where the court has no
ANOTHER ALTERNATIVE ANSWER: jurisdiction over the original complaint and the purpose of the
Under Article 175 of the Family Code, the action must amendment is to confer jurisdiction on the court.
be brought within the lifetime of X if the action is based
on a record of birth or an admission of filiation in a (Rosario v. Carandang, G.R. No. L-7076, April 28, 1955)
public document or a private handwritten instrument While a plaintiff is entitled to amend the complaint
signed by Y. In such case, the action of X has not before a responsive pleading is served (Sec. 2, Rule 10,
prescribed. 1997 Rules of Civil Procedure; Remington Industrial Sales
Corporation v. Court of Appeals, G.R. No. 133657, May 29,
However, if the action is based on the open and 2002), still, a complaint cannot be amended to confer
continuous possession of the status of an illegitimate jurisdiction on a court where there was none to begin
child, the action should have been brought during the with.
lifetime of Y. In such case, the action of X has
prescribed. Pleadings; Amendment of Complaint; To Conform w/
Evidence (2004)
Pleadings; Amendment of Complaint; Matter of Right During trial, plaintiff was able to present, without
(2005) objection on the part of defendant in an ejectment case,
On May 12, 2005, the plaintiff filed a complaint in the evidence showing that plaintiff served on defendant a
RTC of Quezon City for the collection of P250,000.00. written demand to vacate the subject property before the
The defendant filed a motion to dismiss the complaint commencement of the suit, a matter not alleged or
on the ground that the court had no jurisdiction over the otherwise set forth in the pleadings on file. May the
action since the claimed amount of P250,000.00 is within corresponding pleading still be amended to conform to
the exclusive jurisdiction of the Metropolitan Trial Court, the evidence? Explain. (5%)
of Quezon City. Before the court could resolve the
motion, the plaintiff, without leave of court, amended his SUGGESTED ANSWER:
complaint to allege a new cause of action consisting in Yes. The corresponding pleading may still be amended
the inclusion of an additional amount of P200,000.00, to conform to the evidence, because the written demand
thereby increasing his total claim to P450,000.000. The to vacate, made prior to the commencement of the
plaintiff thereafter filed his opposition to the motion to ejectment suit, was presented by the plaintiff in evidence
dismiss, claiming that the RTC had jurisdiction, over his without objection on the part of the defendant. Even if
action. Rule on the motion of the defendant with the demand to vacate was jurisdictional, still, the
reasons. (4%) amendment proposed was to conform to the evidence
that was already in the record and not to confer
jurisdiction on the court, which is not allowed. Failure to
SUGGESTED ANSWER: amend, however, does not affect the result of the trial on
The motion to dismiss should be denied. Basic is the rule that these issues. (Sec. 5 of Rule 10).
a motion to dismiss is not a responsive pleading. Under the
Rules, a pleader may amend his pleading as a matter of
right before the other party has served his responsive ALTERNATIVE ANSWER: It depends. In forcible
pleading. (Sec. 2, Rule 10, Rules of Court) The court, in allowing entry, the motion may be allowed at the discretion of the
the amendment, would not be acting without jurisdiction court, the demand having been presented at the trial
because allowing an amendment as a matter of right does not
without objection on the part of the defendant. In
require the exercise of discretion. The court therefore would
not be "acting" and thus, could not have acted without unlawful detainer, however, the demand to vacate is
jurisdiction. It would have been different had the amendments jurisdictional and since the court did not acquire
been made after a responsive pleading had been served. The jurisdiction from the very beginning, the motion to
court then would have been exercising its discretion in conform to the evidence cannot be entertained. The
allowing or disallowing the amendment. It cannot do so amendment cannot be allowed because it will in effect
however, because it would be then acting on an amendment confer jurisdiction when there is otherwise no
of a complaint over which it has no jurisdiction. (Soledad v. jurisdiction.
Mamangun, G.R. No. L-17983,
Pleadings; Answer; Defense; Specific Denial (2004)

May 30, 1963; Gumabay v. Baralin, G.R. No. L-30683, May In his complaint for foreclosure of mortgage to which
31, 1977; Prudence Realty v. CA, G.R. No. 110274, March 21, was duly attached a copy of the mortgage deed, plaintiff
1994) PP alleged inter alia as follows: (1) that defendant DD
ALTERNATIVE ANSWER: duly executed the mortgage deed,
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 29 of 66 he being merely
copy of which is Annex "A" of the complaint and made plaintiffs counsel. Is the counterclaim of DY compulsory or
an integral part thereof; and (2) that to prosecute his not? Should AC's motion to dismiss the counterclaim be
complaint, plaintiff contracted a lawyer, CC, for a fee of granted or not? Reason. (5%)
P50.000. In his answer, defendant alleged, inter alia, that
he had no knowledge of the mortgage deed, and he also SUGGESTED ANSWER:
denied any liability for plaintiffs contracting with a Yes. The counterclaim of DY is compulsory because it is
lawyer for a fee. one which arises out of or is connected with the
transaction or occurrence constituting the subject matter
Does defendant's answer as to plaintiffs allegation no. of the opposing party's claim and does not require for its
1 as well as no. 2 sufficiently raise an issue of fact? adjudication the presence of third parties of whom the
Reason briefly. (5%) court cannot acquire jurisdiction.(Sec. 7 of Rule 6).
SUGGESTED ANSWER:
As to plaintiffs allegation no. 1, defendant does not
sufficiently raise an issue of fact, because he cannot The motion to dismiss of plaintiffs counsel should not be
allege lack of knowledge of the mortgage deed since he granted because bringing in plaintiffs counsel as a
should have personal knowledge as to whether he signed defendant in the counterclaim is authorized by the Rules.
it or not and because he did not deny under oath the Where it is required for the grant of complete relief in the
genuineness and due execution of the mortgage deed, determination of the counterclaim, the court shall order
which is an actionable document. As to plaintiffs the defendant's counsel to be brought in since jurisdiction
allegation no. 2, defendant did not properly deny liability over him can be obtained. (Sec. 12 of Rule 6; Aurelio v.
as to plaintiffs contracting with a lawyer for a fee. He did Court of Appeals, 196 SCRA 674 [1994]). Here, the
not even deny for lack of knowledge. (Sec. 10 of Rule 8). counterclaim was against both the plaintiff and his lawyer
who allegedly maliciously induced the plaintiff to file the
suit.
Pleadings; Certification Against Forum Shopping (2000)
As counsel for A, B, C and D, Atty. XY prepared a ALTERNATIVE ANSWER:
complaint for recovery of possession of a parcel of land The counterclaim should be dismissed because it is not
against Z. Before filling the complaint, XY discovered a compulsory counterclaim. When a lawyer files a case
that his clients were not available to sign the certification for a client, he should not be sued on a counterclaim in
of non-forum shopping. To avoid further delays in the the very same case he has filed as counsel. It should be
filing of the complaint, XY signed the certification and filed in a separate and distinct civil action. (Chavez v.
immediately filed the complaint in court. Is XY justified Sandiganbayan, 193 SCRA 282
in signing the certification? Why? (5%) [1991])
SUGGESTED ANSWER: Pleadings; Motions; Bill of Particulars (2003)

NO, counsel cannot sign the anti-forum shopping 1 When can a bill of particulars be availed of?
certification because it must be executed by the plaintiff 2 What is the effect of non-compliance with the
or principal party himself (Sec. 5, Rule 7; Excorpizo v. order of a bill of particulars? 4%
University of Baguio, 306 SCRA 497, [1999]), since the rule SUGGESTED ANSWER:
requires personal knowledge by the party executing the 1 Before responding to a pleading, a party may
certification, UNLESS counsel gives a good reason why move for a bill or particulars of any matter which is not
he is not able to secure his clients signatures and shows averred with sufficient definiteness or particularity to
that his clients will be deprived of substantial justice enable him properly to prepare his responsive pleading.
(Ortiz v. Court of Appeals, 299 SCRA 708, [1998]) or unless If the pleading is a reply, the motion must be filed within
he is authorized to sign it by his clients through a special ten (10) days from service thereof. (Sec. 1 of Rule 12)
power of attorney. 2 If the order is not complied with, the court may
order the striking out of the pleading or the portions
thereof to which the order was directed or make such
Pleadings; Counterclaim against the Counsel of the other order as it deems just. (Sec. 4 of Rule 12)
Plaintiff (2004)
PX filed a suit for damages against DY. In his answer,
DY incorporated a counterclaim for damages against
PX and AC, counsel for plaintiff in said suit, alleging in Pleadings; Reply; Effect of Non-Filing of Reply (2000)
said counterclaim, inter alia, that AC, as such counsel, X files a complaint in the RTC for the recovery of a sum
maliciously induced PX to bring the suit against DY of money with damages against Y. Y files his answer
despite AC's knowledge of its utter lack of factual and denying liability under the contract of sale and praying
legal basis. In due time, AC filed a motion to dismiss the for the dismissal of the complaint on the ground of lack
counterclaim as against him on the ground that he is not of cause of action because the contract of sale was
a proper party to the case, superseded by a contract of lease,
executed and signed by X and Y two weeks after the Provisional Remedies; Attachment (1999)
contract of sale was executed. The contract of lease was In a case, the property of an incompetent under
attached to the answer. X does not file a reply. What is guardianship was in custodia legis. Can it be attached?
the effect of the non-filing of a reply? Explain. (3%) Explain. (2%)
SUGGESTED ANSWER:
SUGGESTED ANSWER: Although the property of an incompetent under
A reply is generally optional. If it is not filed, the new matters guardianship is in custodia legis, it may be attached as in
alleged in the answer are deemed controverted. (Sec. 10 of Rule fact it is provided that in such case, a copy of the writ of
6). However, since the contract of lease attached to the attachment shall be filed with the proper court and
answer is the basis of the defense, by not filing a reply notice of the attachment served upon the custodian of
denying under oath the genuineness and due execution of such property. (Sec. 7, last par., Rule 57)
said contract, the plaintiff is deemed to have admitted the
genuineness and due execution thereof. (Secs. 7 and 8 Provisional Remedies; Attachment (1999)
May damages be claimed by a party prejudiced by a
Rule 8; Toribio v. Bidin, 132 SCRA 162 [1985]). wrongful attachment even if the judgment is adverse to
him? Explain. (2%)
Prejudicial Question; Ejectment vs. Specific Performance SUGGESTED ANSWER:
(2000) Yes, damages may be claimed by a party prejudiced by a
BB files a complaint for ejectment in the MTCon the wrongful attachment even if the judgment is adverse to
ground of non-payment of rentals against JJ. After two him. This is authorized by the Rules. A claim, for
days, JJ files in the RTC a complaint against BB for damages may be made on account of improper, irregular
specific performance to enforce the option to purchase or excessive attachment, which shall be heard with
the parcel of land subject of the ejectment case. What is notice to the adverse party and his surety or sureties.
the effect of JJs action on BBs complaint? Explain. (Sec. 20, Rule 57; Javellana v. D. O.
(5%) Plaza Enterprises Inc., 32 SCRA 281.)
SUGGESTED ANSWER:
There is no effect. The ejectment case involves Provisional Remedies; Attachment (2001)
possession de facto only. The action to enforce the May a writ of preliminary attachment be issued ex-parte?
option to purchase will not suspend the action of Briefly state the reason(s) for your answer. (3%)
ejectment for non-payment of rentals. (Willman Auto
SUGGESTED ANSWER:
Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).
Yes, an order of attachment may be issued ex-parte or
Pre-Trial; Requirements (2001) upon motion with notice and hearing. (Sec. 2 of Rule 57)
Lilio filed a complaint in the Municipal Trial Court of The reason why the order may be issued ex parte is: that
Lanuza for the recovery of a sum against Juan. The requiring notice to the adverse party and a hearing
latter filed his answer to the complaint serving a copy would defeat the purpose of the provisional remedy and
thereof on Lilio. After the filing of the answer of Juan, enable the adverse party to abscond or dispose of his
whose duty is it to have the case set for pre-trial? Why? property before a writ of attachment issues. (Mindanao
Savings and Loan Association, Inc. v.
(5%)
SUGGESTED ANSWER: Court of Appeals, 172 SCRA 480).
After the filing of the answer of Juan, the PLAINTIFF
has the duty to promptly move ex parte that the case be Provisional Remedies; Attachment (2005)
set for pre-trial. (Sec. 1, Rule18). The reason is that it is the Katy filed an action against Tyrone for collection of the
plaintiff who knows when the last pleading has been filed sum of P1 Million in the RTC, with an ex-parte
and it is the plaintiff who has the duty to prosecute. application for a writ of preliminary attachment. Upon
posting of an attachment bond, the court granted the
ALTERNATIVE ANSWER: application and issued a writ of preliminary attachment.
In the event the plaintiff files a reply, his duty to move Apprehensive that Tyrone might withdraw his savings
that the case be set for pre-trial arises after the reply has deposit with the bank, the sheriff immediately served a
been served and filed. notice of garnishment on the bank to implement the writ
of preliminary attachment. The following day, the sheriff
Provisional Remedies (1999) proceeded to Tyrone's house and served him the
What are the provisional remedies under the rules? (2%) summons, with copies of the complaint containing the
application for writ of preliminary attachment, Katy's
SUGGESTED ANSWER: affidavit, order of attachment, writ of preliminary
The provisional remedies under the rules are preliminary attachment and attachment bond.
attachment, preliminary injunction, receivership, replevin,
and support pendente lite. (Rules
57 to 61, Rules of Court). Within fifteen (15) days from service of the summons,
Tyrone filed a motion to dismiss and to
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 31 of 66 preliminary
dissolve the writ of preliminary attachment on the injunction may cause grave and irreparable injury to the party
following grounds: (i) the court did not acquire enjoined.
jurisdiction over his person because the writ was served
ahead of the summons; (ii) the writ was improperly Provisional Remedies; Injunction (2003)
implemented; and (iii) said writ was improvidently issued Can a suit for injunction be aptly filed with the Supreme
because the obligation in question was already fully paid. Court to stop the President of the Philippines from
Resolve the motion with reasons. (4%) entering into a peace agreement with the National
Democratic Front? (4%)
The motion to dismiss and to dissolve the writ of No, a suit for injunction cannot aptly be filed with the
preliminary attachment should be denied. Supreme Court to stop the President of the Philippines
(1) The fact that the writ of attachment was served ahead from entering into a peace agreement with the National
of the summons did not affect the jurisdiction of the Democratic Front, which is a purely political question.
court over his person. It makes the writ, unenforceable. (Madarang v. Santamaria, 37 Phil. 304 [1917]). The President of
(Sec. 5, Rule. 57) However, all that is needed to be done is the Philippines is immune from suit.
to re-serve the writ. (Onate v.
Abrogar, GM. No. 197393, February 23, 1985)
Provisional Remedies; Injunctions; Ancillary Remedy vs.
(2) The writ was improperly implemented. Serving a Main Action (2006)
notice of garnishment, particularly before summons is Distinguish between injunction as an ancillary remedy
served, is not proper. It should be a copy of the writ of and injunction as a main action. (2.5%)
attachment that should be served on the defendant, and SUGGESTED ANSWER:
a notice that the bank deposits are attached pursuant to Injunction as an ancillary remedy refers to the
the writ. (Sec. 7[d], Rule 57) preliminary injunction which requires the existence of a
pending principal case; while injunction as a main action
(3) The writ was improvidently issued if indeed it can be refers to the principal case itself that prays for the
shown that the obligation was already fully paid. The remedy of permanently restraining the adverse party
writ is only ancillary to the main action. (Sec. 13, Rule 57) from doing or not doing the act complained of.
The alleged payment of the account cannot, serve as a
ground for resolving the improvident issuance of the Provisional Remedies; Injunctions; Issuance w/out Bond
writ, because this matter delves into the merits of the (2006)
case, and requires full-blown trial. Payment, however, May a Regional Trial Court issue injunction without
serves as a ground for a motion to dismiss. bond? (2%)
SUGGESTED ANSWER:
Yes, if the injunction that is issued is a final injunction.
Provisional Remedies; Attachment vs. Garnishment (1999) Generally, however, preliminary injunction cannot issue
without bond unless exempted by the trial court (Sec. 4[b] of
Rule 58).
Distinguish attachment from garnishment. (2%)
SUGGESTED ANSWER:
Attachment and garnishment are distinguished from Provisional Remedies; Injunctions; Requisites (2006)
each other as follows: ATTACHMENT is a provisional What are the requisites for the issuance of (a) a writ of
remedy that effects a levy on property of a party as preliminary injunction; and (b) a final writ of injunction?
security for the satisfaction of any judgment that may be Requisites for the issuance of a:
recovered, while GARNISHMENT is a levy on debts
due the judgment obligor or defendant and other credits, SUGGESTED ANSWER:
including bank deposits, royalties and other personal a. Writ of Preliminary Injunction (Sec. 4, Rule 58 1997 Rules
of Civil Procedure) are
property not capable of manual delivery under a writ of
execution or a writ of attachment. (1) A verified complaint showing;
(2) The existence of a right in esse;
(3) Violation or threat of violation of such right;
Provisional Remedies; Injunction (2001) (4) Damages or injuries sustained or that will be sus-
May a writ of preliminary injunction be issued ex- tained by reason of such violation;
parte? Why? (3%) (5) Notice to all parties of raffle and of hearing;
SUGGESTED ANSWER: (6) Hearing on the application;
No, a writ of preliminary injunction may not be issued (7) Filing of an appropriate bond and service thereof.
ex parte. As provided in the Rules, no preliminary
injunction shall be granted without hearing and prior SUGGESTED ANSWER:
notice to the party or person sought to be enjoined. (Sec. b. While a final writ of injunction may be rendered by
5 of Rule 58) The reason is that a
judgment after trial, showing applicant to be entitled to
the writ (Sec. 9, Rule 58 1997 Rules of Civil Procedure).
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 32 of 66 waived, reserved
or instituted prior to its filing, the accused may be ordered to
Provisional Remedies; Receivership (2001) provide support pendente lite to the child born to the
Joaquin filed a complaint against Jose for the foreclosure offended party allegedly because of the crime. (Sec. 6 of Rule 61.)
of a mortgage of a furniture factory with a large number
of machinery and equipment. During the pendency of the
foreclosure suit, Joaquin learned from reliable sources Provisional Remedies; Support Pendente Lite (2001)
that Jose was quietly and gradually disposing of some of Modesto was accused of seduction by Virginia, a poor,
his machinery and equipment to a businessman friend unemployed young girl, who has a child by Modesto.
who was also engaged in furniture manufacturing such Virginia was in dire need of pecuniary assistance to keep
that from confirmed reports Joaquin gathered, the her child, not to say of herself, alive. The criminal case
machinery and equipment left with Jose were no longer is still pending in court and although the civil liability
sufficient to answer for the latters mortgage aspect of the crime has not been waived or reserved for
indebtedness. In the meantime judgment was rendered a separate civil action, the trial for the case was foreseen
by the court in favor of Joaquin but the same is not yet to take two long years because of the heavily clogged
final. court calendar before the judgment may be rendered. If
you were the lawyer of Virginia, what action should you
take to help Virginia in the meantime especially with the
Knowing what Jose has been doing. If you were Joaquins problem of feeding the child? (5%)
lawyer, what action would you take to preserve whatever
remaining machinery and equipment are left with Jose? SUGGESTED ANSWER:
Why? (5%) To help Virginia in the meantime, her lawyer should
SUGGESTED ANSWER: apply for Support Pendente Lite as provided in the Rules.
To preserve whatever remaining machinery and In criminal actions where the civil liability included
equipment are left with Jose, Joaquins lawyer should file support for the offspring as a consequence of the crime
a verified application for the appointment by the court and the civil aspect thereof has not been waived or
of one or more receivers. The Rules provide that reserved for a separate civil action, the accused may be
receivership is proper in an action by the mortgagee for ordered to provide support pendent elite to the child
the foreclosure of a mortgage when it appears that the born to the offended party. (Sec. 6 of
property is in danger of being wasted or dissipated or Rule 61)
materially injured and that its value is probably
insufficient to discharge the mortgage debt. Provisional Remedies; TRO (2001)
(Sec. 1 of Rule 59). An application for a writ of preliminary injunction with
a prayer for a temporary restraining order is included in
Provisional Remedies; Replevin (1999) a complaint and filed in a multi-sala RTC consisting of
What is Replevin? (2%) Branches 1,2,3 and 4. Being urgent in nature, the
SUGGESTED ANSWER: Executive Judge, who was sitting in Branch 1, upon the
Replevin or delivery of personal property consists in the filing of the aforesaid application immediately raffled the
delivery, by order of the court, of personal property by case in the presence of the judges of Branches 2,3 and 4.
the defendant to the plaintiff, upon the filing of a bond. The case was raffled to Branch 4 and judge thereof
(Calo v. Roldan, 76 Phil. 445 [1946]) immediately issued a temporary restraining order. Is the
temporary restraining order valid? Why? (5%)
Provisional Remedies; Support Pendente Lite (1999)
Before the RTC, A was charged with rape of his 16year SUGGESTED ANSWER:
old daughter. During the pendency of the case, the No. It is only the Executive Judge who can issue
daughter gave birth to a child allegedly as a consequence immediately a temporary restraining order effective only
of the rape. Thereafter, she asked the accused to support for seventy-two (72) hours from issuance. No other Judge
the child, and when he refused, the former filed a has the right or power to issue a temporary restraining
petition for support pendente lite. The accused, order ex parte. The Judge to whom the case is assigned
however, insists that he cannot be made to give such will then conduct a summary hearing to determine
support arguing that there is as yet no finding as to his whether the temporary restraining order shall be
guilt. Would you agree with the trial court if it denied extended, but in no case beyond 20 days, including the
the application for support pendente lite? Explain. (2%) original 72hour period. (Sec. 5 of Rule 58)
SUGGESTED ANSWER: ALTERNATIVE ANSWER:

No. The provisional remedy of support pendente lite The temporary restraining order is not valid because the
may be granted by the RTC in the criminal action for question does not state that the matter is of extreme
rape. In criminal actions where the civil liability includes urgency and the applicant will suffer grave injustice and
support for the offspring as a consequence of the crime irreparable injury. (Sec. 5 of Rule 58)
and the civil aspect thereof has not been
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 33 of 66 Was the motion
Provisional Remedies; TRO (2006) for Reconsideration filed within the reglementary period?
Define a temporary restraining order (TRO). (2%) Explain. (5%)
A temporary restraining order is an order issued to Yes, because the last day of filing a motion for
restrain the opposite party and to maintain the status reconsideration was March 15 if February had 28 days
quo until a hearing for determining the propriety of or March 16 if February had 29 days. Although the
granting a preliminary injunction (Sec. 4[c] and [d], Rule original motion for reconsideration was defective
58,1997 Rules of Civil Procedure). because it lacked a notice of hearing, the defect was
cured on time by its filing on March 15 of a supplemental
Provisional Remedies; TRO vs. Status Quo Order (2006) pleading, provided that motion was set for hearing and
Differentiate a TRO from a status quo order. (2%) served on the adverse party at least three (3) days before
SUGGESTED ANSWER: the date of hearing.(Sec. 4, Rule 15).
A status quo order (SQO) is more in the nature of a ALTERNATIVE ANSWER:
cease and desist order, since it does not direct the doing Since the supplemental pleading was not set for hearing,
or undoing of acts, as in the case of prohibitory or it did not cure the defect of the original motion.
mandatory injunctive relief. A TRO is only good for 20
days if issued by the RTC; 60 days if issued by the CA;
until further notice if issued by the SC. The SQO is Remedies; Appeal to SC; Appeals to CA (2002)
without any prescriptive period and may be issued a) What are the modes of appeal to the Supreme
without a bond. A TRO dies a natural death after the Court? (2%)
allowable period; the SQO does not. A TRO is b) Comment on a proposal to amend Rule 122,
provisional. SQO lasts until revoked. A TRO is not Section 2(b), in relation to Section 3(c), of the Revised
extendible, but the SQO may be subject to agreement Rules of Criminal Procedure to provide for appeal to the
of the parties. Court of Appeals from the decisions of the RTC in
criminal cases, where the penalty imposed is reclusion
Provisional Remedies; TRO; CA Justice Dept. (2006) perpetua or life imprisonment, subject to the right of the
May a justice of a Division of the Court of Appeals issue accused to appeal to the Supreme Court. (3%)
a TRO? (2%)
Yes, a justice of a division of the Court of Appeals may A. The modes of appeal to the Supreme Court are: (a)
issue a TRO, as authorized under Rule 58 and by Section APPEAL BY CERTIORARI on pure questions of law
5, Rule IV of the IRCA which additionally requires that the under Rule 45 through a petition for review on
action shall be submitted on the next working day to the certiorari; and (b) ORDINARY APPEAL in criminal
absent members of the division for the ratification,
cases through a notice of appeal from convictions
modification or recall (Heirs of the
imposing reclusion perpetua or life imprisonment or
late Justice Jose B.L. Reyes v. Court of Appeals, G.R. Nos. where a lesser penalty is involved but for offenses
135425-26, November 14, 2000). committed on the same occasion or which arose out of
the same occurrence that gave rise to the more serious
Provisional Remedies; TRO; Duration (2006)
offense. (Rule 122, sec. 3) Convictions imposing the death
What is the duration of a TRO issued by the Executive
penalty are elevated through automatic review.
Judge of a Regional Trial Court? (2%)
SUGGESTED ANSWER:
In cases of extreme urgency, when the applicant will
suffer grave injustice and irreparable injury, the duration B. There is no constitutional objection to providing in
of a TRO issued ex parte by an Executive Judge of a the Rules of Court for an appeal to the Court of Appeals
Regional Trial Court is 72 hours (2nd par. of Sec. 5, Rule 58 from the decisions of the RTC in criminal cases where
1997 Rules of Civil Procedure). In the exercise of his regular the penalty imposed is reclusion perpetua or life
functions over cases assigned to his sala, an Executive imprisonment subject to the right of the accused to
Judge may issue a TRO for a duration not exceeding a appeal to the Supreme Court, because it does not deprive
total of 20 days. the Supreme Court of the right to exercise ultimate
review of the judgments in such cases.
Reglementary Period; Supplemental Pleadings (2000)
The RTC rendered judgment against ST, copy of which
was received by his counsel on February 28, 2000. On Remedies; Appeal; RTC to CA (1999)
March 10, 2000, ST, through counsel, filed a motion for When is an appeal from the RTC to the Court
reconsideration of the decision with notice to the Clerk of Appeals deemed perfected? (2%}
of Court submitting the motion for the consideration of XXX received a copy of the RTC decision on
the court. On March 15, 2000, realizing that the Motion June 9, 1999; YYY received it on the next day, June 10,
lacked a notice of hearing, STs counsel filed a 1999. XXX filed a Notice of Appeal on June 15, 1999.
supplemental pleading. The parties entered into a compromise on
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 34 of 66 there is no appeal
June 16, 1999. On June 13, 1999, YYY, who did not nor any plain, speedy and adequate remedy in the ordinary
appeal, filed with the RTC a motion for approval of course of law, to be filed within sixty (60) days from notice of
the Compromise Agreement. XXX changed his mind the judgment, order or resolution subject of the petition.
and opposed the motion on the ground that the RTC (Secs. 1 and 4.)
has no more jurisdiction. Rule on the motion
assuming that the records have not yet been ADDITIONAL ANSWER:
forwarded to the CA. (2%) 1) In appeal by certiorari under Rule 45, the petitioner
SUGGESTED ANSWER: and respondent are the original parties to the action and
An appeal from the RTC to the Court of Appeals the lower court is not impleaded. In certiorari, under
is deemed perfected as to the appellant upon the filing of a Rule 65, the lower court is impleaded.
notice of appeal in the RTC in due time or within the
reglementary period of appeal. An appeal by record on appeal 2) In appeal by certiorari, the filing of a motion for
is deemed perfected as to the appellant with respect to the reconsideration is not required, while in the special civil
subject matter thereof upon the approval of the record on action of certiorari, such a motion is generally required.
appeal filed in due time. (Sec. 9, Rule 41)
The contention of XXX that the RTC has no more
jurisdiction over the case is not correct because at the time that SUGGESTED ANSWER:
the motion to approve the compromise had been filed, the b. NO, because as a general rule, certiorari is proper if
period of appeal of YYY had not yet expired. Besides, even if there is no appeal (Sec. 1 of Rule 65.) However, if appeal is
that period had already expired, the records of the case had not not a speedy and adequate remedy, certiorari may be
yet been forwarded to the Court of Appeals. The rules provide resorted to. (Echaus v. Court of Appeals, 199 SCRA 381.)
that in appeals by notice of appeal, the court loses jurisdiction Certiorari is sanctioned, even if appeal is available, on the
over the case upon the perfection of the appeals filed in due basis of a patent, capricious and whimsical exercise of
time and the expiration of the time to appeal of the other discretion by a trial judge as when an appeal will not
parties. promptly relieve petitioner from the injurious effects of
the disputed order
(Vasquez vs. Robilla-Alenio, 271 SCRA 67)
(Sec. 9, third par., Rule 41) Remedies; Void Decision; Proper Remedy (2004)
After plaintiff in an ordinary civil action before the RTC;
The rules also provide that prior to the transmittal of ZZ has completed presentation of his evidence,
the record, the court may, among others, approve defendant without prior leave of court moved for
compromises. (Sec. 9, fifth par., Rule 41) (Note: June 13, the dismissal of plaintiffs complaint for insufficiency of
date of the filing of the motion for approval of the plaintiffs evidence. After due hearing of the motion and
Compromise Agreement, appears to be a clerical error) the opposition thereto, the court issued an order, reading
as follows: The Court hereby grants defendant's motion
to dismiss and accordingly orders the dismissal of
Remedies; Appeal; Rule 45 vs. Rule 65 (1999) plaintiffs complaint, with the costs taxed against him. It
a) Distinguish a petition for certiorari as a mode is so ordered." Is the order of dismissal valid? May
of appeal from a special civil action for certiorari. (2%) plaintiff properly take an appeal? Reason. (5%)
b) May a party resort to certiorari when appeal is SUGGESTED ANSWER:

still available? Explain. (2%) The order or decision is void because it does not state
SUGGESTED ANSWER: findings of fact and of law, as required by Sec. 14, Article
a. A PETITION FOR REVIEW ON CERTIORARI as VIII of the Constitution and Sec. 1, Rule 36. Being void,
a mode of appeal may be distinguished from a special appeal is not available. The proper remedy is certiorari
civil action for certiorari in that the petition for certiorari under Rule 65.
as a mode of appeal is governed by Rule 45 and is filed ANOTHER ANSWER:
from a judgment or final order of the RTC, the Either certiorari or ordinary appeal may be resorted to
Sandiganbayan or the Court of Appeals, within fifteen on the ground that the judgment is void. Appeal, in fact,
(15) days from notice of the judgment appealed from or may be the more expedient remedy.
ALTERNATIVE ANSWER:
of the denial of the motion for new trial or
Yes. The order of dismissal for insufficiency of the
reconsideration filed in due time on questions of law only
plaintiffs evidence is valid upon defendant's motion to
(Secs. 1 and 2); SPECIAL CIVIL ACTION FOR
dismiss even without prior leave of court. (Sec. 1 of Rule
CERTIORARI is governed by Rule 65 and is filed to
33). Yes, plaintiff may properly take an appeal because
annul or modify judgments, orders or resolutions
the dismissal of the complaint is a final and appealable
rendered or issued without or in excess of jurisdiction or
order. However, if the order of dismissal is reversed
with grave abuse of discretion tantamount to lack or
excess of jurisdiction, when
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 35 of 66 summary
on appeal, the plaintiff is deemed to have waived his procedure and since the counterclaim is only permissive, it
right to present evidence. (Id.) cannot be entertained by the Municipal Court. (Revised Rule on
Summary Procedure.)
Special Civil Action; Ejectment (1997)
On 10 January 1990, X leased the warehouse of A under Special Civil Action; Foreclosure (2003)
a lease contract with a period of five years. On 08 June A borrowed from the Development Bank of the
1996, A filed an unlawful detainer case against X without Philippines (DBP) the amount of P1 million secured by
a prior demand for X to vacate the premises. the titled land of his friend B who, however, did not
assume personal liability for the loan. A defaulted and
(a) Can X contest his ejectment on the ground that there DBP filed an action for judicial foreclosure of the real
was no prior demand for him to vacate the premises? estate mortgage impleading A and B as defendants. In
due course, the court rendered judgment directing A to
(b) In case the Municipal Trial Court renders judgment pay the outstanding account of P1.5 million (principal
in favor of A, is the judgment immediately executory? plus interest) to the bank. No appeal was taken by A on
the Decision within the reglementary period. A failed to
SUGGESTED ANSWER: pay the judgment debt within the period specified in the
(a) Yes. X can contest his ejectment on the ground that decision. Consequently, the court ordered the
there was no prior demand to vacate the premises. (Sec. foreclosure sale of the mortgaged land. In that
2 of Rule 70; Casilan vs.Tomassi l0 SCRA 261; Iesaca foreclosure sale, the land was sold to the DBP for P1.2
vs.Cuevas. 125 SCRA 335). million. The sale was subsequently confirmed by the
court, and the confirmation of the sale was registered
(b) Yes, because the judgment of the Municipal Trial with the Registry of Deeds on 05 January 2002.
Court against the defendant X is immediately executory
upon motion unless an appeal has been perfected, a
supersedeas bond has been filed and the periodic On 10 January 2003, the bank filed an ex-parte motion
deposits of current rentals. If any, as determined by the with the court for the issuance of a writ of possession to
judgment will be made with the appellate court. (Sec. 8 of oust B from the land. It also filed a deficiency claim for
former Rule 70; Sec. 19 of new Rule 70). P800,000.00 against A and B. the deficiency claim was
ALTERNATIVE ANSWER: opposed by A and B.
(a) Yes, X can contest his ejectment on the ground that
since he continued enjoying the thing leased for fifteen (a) Resolve the motion for the issuance of a writ of
days after the termination of the lease on January 9, 1995 (b) Resolve the deficiency claim of the bank. 6%
possession.
with the acquiescence of the lessor without a notice to SUGGESTED ANSWER:
the contrary, there was an IMPLIED NEW LEASE.
(Art. 1670. Civil Code). (a) In judicial foreclosure by banks such as DBP, the
mortgagor or debtor whose real property has been sold
Special Civil Action; Ejectment (1998) on foreclosure has the right to redeem the property sold
In an action for unlawful detainer in the Municipal Trial within one year after the sale (or registration of the sale).
Court (MTC), defendant X raised in his Answer the However, the purchaser at the auction sale has the right
defense that plaintiff A is not the real owner of the to obtain a writ of possession after the finality of the
house subject of the suit. X filed a counterclaim against order confirming the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791.
A for the collection of a debt of P80,000 plus accrued The General Banking Law of 2000). The motion for writ of
interest of P15,000 and attorney's fees of P20,000. possession, however, cannot be filed ex parte. There
must be a notice of hearing.
1. Is X's defense tenable? [3%]
2. Does the MTC have jurisdiction over the (b) The deficiency claim of the bank may be enforced
counterclaim? [2%] SUGGESTED ANSWER:: against the mortgage debtor A, but it cannot be enforced
against B, the owner of the mortgaged property, who did
1. No. X's defense is not tenable if the action is filed by not assume personal liability for the loan.
a lessor against a lessee. However, if the right of
possession of the plaintiff depends on his ownership
then the defense is tenable. Special Civil Action; Petition for Certiorari (2002)
The defendant was declared in default in the RTC for
2. The counterclaim is within the jurisdiction of the his failure to file an answer to a complaint for a sum of
Municipal Trial Court which does not exceed P100,000, money. On the basis of the plaintiffs ex parte
because the principal demand is P80,000, exclusive of presentation of evidence, judgment by default was
interest and attorney's fees. (Sec. 33, B.P. Big. 129, as amended.) rendered against the defendant. The default judgment
However, inasmuch as all actions of forcible entry and was served on the defendant on October 1, 2001. On
unlawful detainer are subject to October 10, 2001, he files a verified motion to lift the
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 36 of 66 claiming that its
order of default and to set aside the judgment. In his main office and operations are in Cebu City and not in Manila.
motion, the defendant alleged that, immediately upon Is the contention of Cars Co. correct? Why? (5%)
receipt of the summon, he saw the plaintiff and
confronted him with his receipt evidencing his payment SUGGESTED ANSWER:
and that the plaintiff assured him that he would instruct No. As expressly provided in the Rules, when the
his lawyer to withdraw the complaint. The trial court Solicitor General commences the action for quo
denied the defendants motion because it was not warranto, it may be brought in a RTC in the City of
accompanied by an affidavit of merit. The defendant Manila, as in this case, in the Court of Appeals or in the
filed a special civil action for certiorari under Rule 65 Supreme Court. (Sec. 7 of Rule 66)
challenging the denial order.
A. Is certiorari under Rule 65 the proper remedy? Why? Special Civil Actions; Mandamus (2006)
(2%) In 1996, Congress passed Republic Act No. 8189,
B. Did the trial court abuse its discretion or act without otherwise known as the Voter's Registration Act of 1996,
or in excess of its jurisdiction in denying the defendants providing for computerization of elections. Pursuant
motion to lift the order of default judgment? Why? (3%) thereto, the COMELEC approved the Voter's
Registration and Identification System (VRIS) Project. It
SUGGESTED ANSWER: issued invitations to pre-qualify and bid for the project.
A. The petition for certiorari under Rule 65 filed by the After the public bidding, Fotokina was declared the
defendant is the proper remedy because appeal is not a winning bidder with a bid of P6 billion and was issued a
plain, speedy and adequate remedy in the ordinary Notice of Award. But COMELEC Chairman Gener Go
course of law. In appeal, the defendant in default can objected to the award on the ground that under the
only question the decision in the light of the evidence of Appropriations Act, the budget for the COMELEC's
the plaintiff. The defendant cannot invoke the receipt to modernization is only P1 billion. He announced to the
prove payment of his obligation to the plaintiff. public that the VRIS project has been set aside. Two
Commissioners sided with Chairman Go, but the
ALTERNATIVE ANSWER: majority voted to uphold the contract.
A. Under ordinary circumstances, the proper remedy of
a party wrongly declared in default is either to appeal
from the judgment by default or file a petition for relief Meanwhile, Fotokina filed with the RTC a petition for
from judgment. [Jao, Inc. v. Court of Appeals, mandamus compel the COMELEC to implement the
251 SCRA 391 (1995) contract. The Office of the Solicitor General (OSG),
representing Chairman Go, opposed the petition on the
SUGGESTED ANSWER: ground that mandamus does not lie to enforce contractual
B. Yes, the trial court gravely abused its discretion or acted obligations. During the proceedings, the majority
without or in excess of jurisdiction in denying the defendants Commissioners filed a manifestation that Chairman Go was
motion because it was not accompanied by a separate affidavit
not authorized by the COMELEC En Banc to oppose the
of merit. In his verified motion to lift the order of default and
to set aside the judgment, the defendant alleged that
petition.
immediately upon the receipt of the summons, he saw the Is a petition for mandamus an appropriate remedy to
plaintiff and confronted him with his receipt showing payment enforce contractual obligations? (5%)
and that the plaintiff assured him that he would instruct his SUGGESTED ANSWER:
lawyer to withdraw the complaint. Since the good defense of No, the petition for mandamus is not an appropriate
the defendant was already incorporated in the verified motion, remedy because it is not available to enforce a
there was not need for a separate affidavit of merit. [Capuz contractual obligation. Mandamus is directed only to
ministerial acts, directing or commanding a person to do
a legal duty (COMELEC v. Quijano-Padilla, G.R.
No. 151992, September 18, 2002; Sec. 3, Rule 65).
v. Court of Appeals, 233 SCRA 471 (1994); Mago v. Court of
Appeals, 303 SCRA 600 (1999)]. Summons
Seven years after the entry of judgment, the plaintiff
Special Civil Action; Quo Warranto (2001) filed an action for its revival. Can the defendant
A group of businessmen formed an association in Cebu successfully oppose the revival of the judgment by
City calling itself Cars C. to distribute / sell cars in said contending that it is null and void because the RTC-
city. It did not incorporate itself under the law nor did Manila did not acquire jurisdiction over his person?
it have any government permit or license to conduct its Why? (3%)
business as such. The Solicitor General filed before a SUGGESTED ANSWER:
RTC in Manila a verified petition for quo warranto The RTC-Manila should deny the motion because it is
questioning and seeking to stop the operations of Cars in violation of the rule that no judgment obligor shall be
Co. The latter filed a motion to dismiss the petition on required to appear before a court, for the purpose of
the ground of improper venue examination concerning his property and
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 37 of 66 the ground that the
income, outside the province or city in which such court had no jurisdiction over his person as there was no valid
obligor resides. In this case the judgment obligor resides service of summons on him because the sheriffs return or
in Bulacan. (Rule 39, sec.36). proof of service does not show that the sheriff first made a
genuine attempt to serve the summons on defendant
Summons (1999) personally before serving it thru his wife. Is the motion to
a) What is the effect of absence of summons on dismiss meritorious? What is the purpose of summons and by
the judgment rendered in the case? (2%) whom may it be served? Explain. (5%)
b) When additional defendant is impleaded in the
action, is it necessary that summons be served upon
him? Explain. (2%) SUGGESTED ANSWER:
c) Is summons required to be served upon a The motion to dismiss is not meritorious because the
defendant who was substituted for the deceased? defendant actually received the summons on time from
Explain. (2%) his wife. Service on the wife was sufficient. (Boticano v.
d) A sued XX Corporation (XXC), a corporation Chu, 148 SCRA 541 [1987]). It is the duty of the court to
organized under Philippine laws, for specific look into the sufficiency of the service. The sheriffs
performance when the latter failed to deliver T-shirts to negligence in not stating in his return that he first made a
the former as stipulated in their contract of sale. genuine effort to serve the summons on the defendant,
Summons was served on the corporation's cashier and should not prejudice the plaintiff. (Mapa v. Court of
director. Would you consider service of summons on Appeals, 214 SCRA 417/1992). The purpose of the
either officer sufficient? Explain. (2%) summons is to inform the defendant of the complaint
filed against him and to enable the court to acquire
SUGGESTED ANSWER: jurisdiction over his person. It maybe served by the
a) The effect of the absence of summons on a sheriff or his deputy or any person authorized by the
judgment would make the judgment null and void court.
because the court would not have jurisdiction over the ALTERNATIVE ANSWER:
person of the defendant, but if the defendant voluntarily Yes. The motion to dismiss is meritorious. Substituted
appeared before the court, his appearance is equivalent service cannot be effected unless the sheriffs return
to the service of summons. (Sec. 20, Rule 14) shows that he made a genuine attempt to effect personal
service on the husband.
b) Yes. Summons must be served on an additional Summons; Validity of Service; Effects (2006)
defendant impleaded in the action so that the court can Tina Guerrero filed with filed the Regional Trial Court of
acquire jurisdiction over him, unless he makes a Binan, Laguna, a complaint for sum of money amounting to P1
Million against Carlos Corro. The complaint alleges, among
voluntary appearance. others, that Carlos borrowed from Tina the said amount as
evidenced by a promissory note signed by Carlos and his wife,
c) No. A defendant who was substituted for the jointly and severally. Carlos was served with summons which
deceased need not be served with summons because it was received by Linda, his secretary. However, Carlos failed to
is the court which orders him as the legal representative file an answer to the complaint within the 15-day reglementary
of the deceased to appear and substitute the deceased. period. Hence, Tina filed with the court a motion to declare
(Sec. 16 of Rule 3.) Carlos in default and to allow her to present evidence ex parte.
Five days thereafter, Carlos filed his verified answer to the
d) Summons on a domestic corporation through complaint, denying under oath the genuineness and due
execution of the promissory note and contending that he has
its cashier and director are not valid under the present
fully paid his loan with interest at 12% per annum.
rules. (Sec. 11, Rule 14) They have been removed from
those who can be served with summons for a domestic
corporation. Cashier was substituted by treasurer. (Id.)
Summons; Substituted Service (2004) 1. Was the summons validly served on Carlos?
Summons was issued by the MM RTC and actually (2.5%)
ALTERNATIVE ANSWER:
received on time by defendant from his wife at their
The summons was not validly served on Carlos because it
residence. The sheriff earlier that day had delivered the was served on his secretary and the requirements for
summons to her at said residence because defendant was substituted service have not been followed, such as a
not home at the time. The sheriffs return or proof of showing that efforts have been exerted to serve the same
service filed with the court in sum states that the on Carlos and such attempt has failed despite due diligence
summons, with attached copy of the complaint, was (Manotoc v. CA, G.R.
served on defendant at his residence thru his wife, a
No. 130974, August 16, 2006; AngPing v. CA, G.R. No.
person of suitable age and discretion then residing 126947, July 15, 1999).
therein. Defendant moved to dismiss on ALTERNATIVE ANSWER:
Service of Summons on Carlos was validly served upon 2. The motion to dismiss on the ground of lack of
him if the Return will show that it was done through jurisdiction over the subject matter should be denied. The
Substituted Service because the defendant can not be counterclaim for attorney's fees and expenses of litigation
served personally within a reasonable time despite is a compulsory counterclaim because it necessarily arose
diligent efforts made to serve the summons personally. out of and is connected with the complaint. In an original
Linda, the secretary of defendant Carlos, must likewise action before the RTC, the counterclaim may be
be shown to be a competent person in charge of considered compulsory regardless of the amount. (Sec. 7 of
defendant's office where summons was served (Sec. 7, Rule Rule 6)
14).
Venue; Personal Actions (1997)
2. If you were the judge, will you grant Tina's X, a resident of Angeles City, borrowed P300,000.00
motion to declare Carlos in default? (2.5%) from A, a resident of Pasay City. In the loan agreement,
ALTERNATIVE ANSWER: the parties stipulated that "the parties agree to sue and
If I were the judge, I will not grant Tina's motion to be sued in the City of Manila." a) In case of non-payment
declare Carlos in default because summons was not of the loan, can A file
properly served and anyway, a verified answer to the his complaint to collect the loan from X in Angeles
complaint had already been filed. Moreover, it is better City?
to decide a case on the merits rather than on technicality. b) Suppose the parties did not stipulate in the
loan agreement as to the venue, where can A file his
ALTERNATIVE ANSWER:
complaint against X?
Yes. If it was shown that summons was validly served,
c) Suppose the parties stipulated in their loan
and that the motion to declare Carlos in default was duly
agreement that "venue for all suits arising from this
furnished on Carlos, and after conducting a hearing on
contract shall be the courts in Quezon City," can A file
the same motion.
his complaint against X in Pasay City?
SUGGESTED ANSWER:
Venue; Improper Venue; Compulsory Counterclaim (1998) (a) Yes, because the stipulation in the loan agreement
that "the parties agree to sue and be sued in the City of
A, a resident of Lingayen, Pangasinan sued X, a resident Manila" does not make Manila the "exclusive venue
of San Fernando La Union in the RTC (RTC) of Quezon thereof." (Sec, 4 of Rule 4, as amended by Circular No. 13
City for the collection of a debt of P1 million. X did not 95: Sec. 4 of new Rule 4) Hence, A can file his complaint in
file a motion to dismiss for improper venue but filed his Angeles City where he resides, (Sec, 2 of Rule 4).
answer raising therein improper venue as an affirmative
defense. He also filed a counterclaim for P80,000 against (b) If the parties did not stipulate on the venue, A can
A for attorney's fees and expenses for litigation. X file his complaint either in Angeles City where he
moved for a preliminary hearing on said affirmative resides or in Pasay City where X resides, (Id).
defense. For his part, A filed a motion to dismiss the
counterclaim for lack of jurisdiction. (c) Yes, because the wording of the stipulation does not
make Quezon City the exclusive venue.
(Philbanking v. Tensuan. 230 SCRA 413; Unimasters
1 Rule on the affirmative defense of improper venue. Conglomeration, Inc. v. CA. CR-119657, Feb. 7, 1997)
[3%] ALTERNATIVE ANSWER:
2 Rule on the motion to dismiss the counterclaim on (c) No. If the parties stipulated that the venue "shall be
the ground of lack of jurisdiction over the subject matter. [2%] in the courts in Quezon City", A cannot file his
complaint in Pasay City because the use of the word
SUGGESTED ANSWER: "shall" makes Quezon City the exclusive venue thereof.
1. There is improper venue. The case for a sum of (Hoechst Philippines vs. Torres, 83 SCRA 297).
money, which was filed in Quezon City, is a personal
action. It must be filed in the residence of either the
plaintiff, which is in Pangasinan, or of the defendant, CRIMINAL PROCEDURE
which is in San Fernando, La Union. (Sec. 2 of Rule 4) The
fact that it was not raised in a motion to dismiss does not Acquittal; Effect (2002)
matter because the rule that if improper venue is not Delia sued Victor for personal injuries which she
raised in a motion to dismiss it is deemed waived was allegedly sustained when she was struck by a car driven
removed from the 1997 Rules of Civil Procedure. The by Victor. May the court receive in evidence, over
new Rules provide that if no motion to dismiss has been proper and timely objection by Delia, a certified true
filed, any of the grounds for dismissal may be pleaded as copy of a judgment of acquittal in a criminal prosecution
an affirmative defense in the answer. (Sec. 6 of Rule 16.) charging Victor with hit-and-run driving in connection
with Delias injuries? Why? (3%)
SUGGESTED ANSWER:
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 39 of 66 he filed his
If the judgment of acquittal in the criminal case finds demurrer to evidence without leave of court. (Sec. 23 of Rule 119).
that the act or omission from which the civil liability
may arise does not exist, the court may receive it in
evidence over the objection by Delia. [Rule 111, sec. 2, Actions; Commencement of an Action; Double Jeopardy
last paragraph]. (2004)
ALTERNATIVE ANSWER: SPO1 CNC filed with the MTC in Quezon City (MeTC-
If the judgment of acquittal is based on reasonable QC) a sworn written statement duly subscribed by him,
doubt, the court may receive it in evidence because in charging RGR (an actual resident of Cebu City) with the
such case, the civil action for damages which may be offense of slight physical injuries allegedly inflicted on
instituted requires only a preponderance of the evidence. SPS (an actual resident of Quezon City). The Judge of
(Art. 29, Civil Code).
the branch to which the case was raffled thereupon issued
an order declaring that the case shall be governed by the
Actions; BP22; Civil Action deemed included (2001) Rule on Summary Procedure in criminal cases. Soon
Saturnino filed a criminal action against Alex for the thereafter, the Judge ordered the dismissal of the case for
latters bouncing check. On the date of the hearing after the reason that it was not commenced by information, as
the arraignment, Saturnino manifested to the court that required by said Rule.
he is reserving his right to file a separate civil action. The
court allowed Saturnino to file a civil action separately
and proceeded to hear the criminal case. Alex filed a Sometime later, based on the same facts giving rise to
motion for reconsideration contending that the civil the slight physical injuries case, the City Prosecutor filed
action is deemed included in the criminal case. The court with the same MeTC-QC an information for attempted
reconsidered its order and ruled that Saturnino could not homicide against the same RGR. In due time, before
file a separate action. Is the courts order granting the arraignment, RGR moved to quash the information on
motion for reconsideration correct? Why? (5%) the ground of double jeopardy and after due hearing, the
Judge granted his motion. Was the dismissal of the
complaint for slight physical injuries proper? Was the
SUGGESTED ANSWER:
grant of the motion to quash the attempted homicide
Yes, the courts order granting the motion for
reconsideration is correct. The Rules provide that the information correct? Reason (5%)
criminal action for violation of B.P. Blg. 22 shall be
SUGGESTED ANSWER:
deemed to include the corresponding civil action, and Yes, the dismissal of the complaint for slight physical
that no reservation to file such civil action separately injuries is proper because in Metropolitan Manila and in
shall be allowed. [Sec. 1(b), Rule 111, Revised Rules of Criminal chartered cities, the case has to be commenced only by
Procedure]
information. (Sec. 11, Revised Rule on Summary Procedure).
Actions; BP22; Demurrer to Evidence (2003) No, the grant of the motion to quash the attempted
In an action for violation of Batas Pambansa Big. 22, the homicide information on the ground of double jeopardy
court granted the accuseds demurrer to evidence which was not correct, because there was no valid prosecution
he filed without leave of court. Although he was for slight physical injuries.
acquitted of the crime charged, he, however, was
required by the court to pay the private complainant the Actions; Discretionary Power of Fiscal (1999)
face value of the check. The accused filed a Motion of A filed with the Office of the Fiscal a Complaint for
Reconsideration regarding the order to pay the face estafa against B. After the preliminary investigation, the
value of the check on the following grounds: a) the Fiscal dismissed the Complaint for lack of merit. May
demurrer to evidence applied only too the the Fiscal be compelled by mandamus to file the case in
criminal aspect of the case; and b) at the very least, he court? Explain. (2%)
was entitled to adduce SUGGESTED ANSWER:
controverting evidence on the civil liability. No. The public prosecutor may not be compelled by
Resolve the Motion for Reconsideration. (6%) mandamus to file the case in court because the
SUGGESTED ANSWER: determination of probable cause is within the discretion
(a) The Motion for Reconsideration should be denied. of the prosecutor. The remedy is an appeal to the
The ground that the demurrer to evidence applied only to Secretary of Justice. (Sec. 4 Rule 112.)
the criminal aspect of the case was not correct because the
criminal action for violation of Batas Pambansa Blg. 22 Actions; Injunction (1999)
included the corresponding civil action. (Sec. 1(b) of Rule 111). Will injunction lie to restrain the commencement of a
criminal action? Explain. (2%)
SUGGESTED ANSWER:
(b) The accused was not entitled to adduce As a general rule, injunction will not lie to restrain a
controverting evidence on the civil liability, because criminal prosecution except:
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 40 of 66 without a warrant
a) To afford adequate protection to the of arrest and searched his house without a search warrant. a)
constitutional rights of the accused; b) When necessary Can the gun used by B in shooting A, which was seized during
for the orderly administration of the search of the house of B, be admitted in evidence? b) Is
justice or to avoid oppression or multiplicity of the arrest of B legal? c) Under the circumstances, can B be
actions; c) When double jeopardy is clearly apparent; d) convicted of homicide?
Where the charges are manifestly false and
motivated by the lust for vengeance; e) Where there is

clearly no prima facie case against SUGGESTED ANSWER:
the accused and a motion to quash on that (a) No. The gun seized during the search of the house
ground has been denied. of B without a search warrant is not admissible in
(See cases cited in Roberts, Jr., vs. Court of Appeals, evidence. (Secs. 2 and 3[2], Art. III of Constitution). Moreover,
254 SCRA 307 [1996] and Brocka v. Enrile, 192 SCRA the search was not an incident to a lawful arrest of a
183 [1990].) person under Sec. 12 of Rule 126.
Arrest; Warrantless Arrest; Preliminary Investigation (b) No. A warrantless arrest requires that the crime has
(2004) in fact just been committed and the police arresting has
AX swindled RY in the amount of P10,000 sometime in personal knowledge of facts that the person to be
mid-2003. On the strength of the sworn statement given arrested has committed it. (Sec. 5, Rule 113). Here, the crime
by RY personally to SPO1 Juan Ramos sometime in mid- has not just been committed since a period of two days
2004, and without securing a warrant, the police officer had already lapsed, and the police arresting has no such
arrested AX. Forthwith the police officer filed with the personal knowledge because he was not present when
City Prosecutor of Manila a complaint for estafa the incident happened. (Go vs. Court of Appeals. 206 SCRA 138).
supported by RY"s sworn statement and other
documentary evidence. After due inquest, the prosecutor (c) Yes. The gun is not indispensable in the conviction
filed the requisite information with the MM RTC. No of A because the court may rely on testimonial or other
preliminary investigation was conducted either before or evidence.
after the filing of the information and the accused at no
time asked for such an investigation. However, before Arrest; Warrantless Arrests & Seizures (2003)
arraignment, the accused moved to quash the In a buy-bust operation, the police operatives arrested
information on the ground that the prosecutor suffered the accused and seized from him a sachet of shabu and
from a want of authority to file the information because an unlicensed firearm. The accused was charged in two
of his failure to conduct a preliminary investigation Informations, one for violation of the Dangerous Drug
before filing the information, as required by the Rules of Act, as amended, and another for illegal possession of
Court. Is the warrantless arrest of AX valid? Is he firearms.
entitled to a preliminary investigation before the filing of
the information? Explain. (5%) The accused filed an action for recovery of the firearm
in another court against the police officers with an
SUGGESTED ANSWER: application for the issuance of a writ of replevin. He
No. The warrantless arrest is not valid because the
alleged in his Complaint that he was a military informer
alleged offense has not just been committed. The crime
who had been issued a written authority to carry said
was allegedly committed one year before the arrest. (Sec.
5 (b) of Rule 113).
firearm. The police officers moved to dismiss the
complaint on the ground that the subject firearm was in
custodia legis. The court denied the motion and instead
Yes, he is entitled to a preliminary investigation because
issued the writ of replevin.
he was not lawfully arrested without a warrant (See Sec. 7 of
Rule 112). He can move for a reinvestigation.
(a) Was the seizure of the firearm valid?
ALTERNATIVE ANSWER:
(b) Was the denial of the motion to dismiss proper? 6%
He is not entitled to a preliminary investigation because
SUGGESTED ANSWER:
the penalty for estafa is the sum of P10,000 does not
(a) Yes, the seizure of the firearm was valid because it
exceed 4 years and 2 months. Under Sec. 1, second par.,
was seized in the course of a valid arrest in a buy-bust
Rule 112, a preliminary investigation is not required.
(Note: The penalty is not stated in the question.)
operation. (Sec. 12 and 13 of Rule 126) A search warrant was
not necessary. (People v. Salazar, 266 SCRA 607
[1997]).
Arrest; Warrantless Arrests & Searches (1997)
A was killed by B during a quarrel over a hostess in a (b) The denial of the motion to dismiss was not proper.
nightclub. Two days after the incident, and upon The court had no authority to issue the writ of replevin
complaint of the widow of A, the police arrested B whether the firearm was in custodia legis
or not. The motion to recover the firearm should be filed he could be convicted of the capital offense. (Obosa vs.
in the court where the criminal action is pending. Court of Appeals, 266 SCRA 281.)
ALTERNATIVE ANSWER:
Under Circular No. 2-92, A is entitled to bail because
Arrest; Warrantless Arrests; Objection (2000) he was convicted of homicide and hence the evidence
FG was arrested without a warrant by policemen while of guilt of murder is not strong.
he was walking in a busy street. After preliminary SUGGESTED ANSWER:
investigation, he was charged with rape and the 2. B, who did not appeal, can be benefited by the
corresponding information was filed in the RTC. On decision of the Court of Appeals which is favorable and
arraignment, he pleaded not guilty. Trial on the merits applicable to him. (Sec. 11 [a]. Rule 122, Rules of Criminal
ensued. The court rendered judgment convicting him. Procedure.) The benefit will also apply to C even if his
On appeal, FG claims that the judgment is void because appeal is dismissed because of his escape.
he was illegally arrested. If you were the Solicitor
General, counsel for the People of the Philippines, how Bail; Application; Venue (2002)
would you refute said claim? (5%) If an information was filed in the RTC-Manila charging
D with homicide and he was arrested in Quezon City, in
SUGGESTED ANSWER: what court or courts may he apply for bail? Explain.
Any objection to the illegality of the arrest of the accused (3%)
without a warrant is deemed waived when he pleaded not SUGGESTED ANSWER:
guilty at the arraignment without raising the question. T D may apply for bail in the RTC-Manila where the
is too late to complain about a warrantless arrest after information was filed or in the RTC-Quezon City where
trial is commenced and completed and a judgment of he was arrested, or if no judge, thereof is available, with
conviction rendered against the accused. (People v. any metropolitan trial judge, municipal trial judge or
Cabiles, 284 SCRA 199, municipal circuit trial judge therein. (Rule
[1999]) 114, sec. 17).
Bail (2002) Bail; Forms of Bail (1999)

D was charged with murder, a capital offense. After In what forms may bail be given? (2%)
arraignment, he applied for bail. The trial court ordered SUGGESTED ANSWER:
the prosecution to present its evidence in full on the Bail may be given by a corporate surety, or through a
ground that only on the basis of such presentation could property bond, cash deposit or recognizance.
it determine whether the evidence of Ds guilt was
strong for purposes of bail. Is the ruling correct? Why? Bail; Matter of Right (1999)
(3%) When the accused is entitled as a matter of right to bail,
SUGGESTED ANSWER: may the Court refuse to grant him bail on the ground
No, the prosecution is only required to present as much that there exists a high degree of probability that he will
evidence as is necessary to determine whether the abscond or escape? Explain. (2%)
evidence of Ds guilt is strong for purposes of bail.(Rule SUGGESTED ANSWER:
114, sec. 8). If bail is a matter of right, it cannot be denied on the
ground that there exists a high degree of probability that
Bail; Appeal (1998) the accused will abscond or escape. What the court can
In an information charging them of Murder, policemen do is to increase the amount of the bail. One of the
A, B and C were convicted of Homicide. A appealed guidelines that the judge may use in fixing a reasonable
from the decision but B and C did not. B started serving amount of bail is the probability of the accused
his sentence but C escaped and is at large. In the Court appearing in trial.
of Appeals, A applied for bail but was denied. Finally, the
Court of Appeals rendered a decision acquitting A on the Bail; Matter of Right vs. Matter of Discretion (1999)
ground that the evidence pointed to the NPA as the When is bail a matter of right and when is it a matter of
killers of the victim. discretion? (2%)
1 Was the Court of Appeal's denial of A's application SUGGESTED ANSWER:
for bail proper? [2%] When Bail is a matter of right:
2 Can B and C be benefited by the decision of the All persons in custody shall (a) before or after conviction
Court of Appeals? [3%] by the metropolitan and municipal trial courts, and (b)
SUGGESTED ANSWER: before conviction by the RTC of an offense not
1, Yes, the Court of Appeals properly denied A's punishable by death, reclusion perpetua or life
application for bail. The court had the discretion to do imprisonment, be admitted to bail as a matter of right,
so. Although A was convicted of homicide only, since with sufficient sureties, or be released on recognizance
he was charged with a capital offense, on appeal as prescribed by law or Rule 114. (Sec. 4,
Rule 114, Rules of Court, as amended by Circular No. 12-94.)
When bail is a matter of discretion: SUGGESTED ANSWER:
Upon conviction by the RTC of an offense not In criminal procedure, a complaint is a sworn written
punishable by death, reclusion perpetua or life statement charging a person with an offense, subscribed
imprisonment, on application of the accused. If the by the offended party, any peace officer or other peace
penalty of imprisonment exceeds six years but not more officer charged with the enforcement of the law violated.
than 20 years, bail shall be denied upon a showing by the (Sec. 3, Rule 110, 1985 Rules of Criminal Procedure); while an
prosecution, with notice to the accused, of the following information is an accusation in writing charging a person
or other similar circumstances: with an offense subscribed by the prosecutor and filed
with the court. (Sec. 4, Id.)
1 That the accused is a recidivist, quasi-re-cidivist or
habitual delinquent, or has committed the crime aggravated byDemurrer to Evidence; Contract of Carriage (2004)
the circumstance of reiteration; AX, a Makati-bound paying passenger of PBU, a public
2 That the accused is found to have previously escapedutility bus, died instantly on board the bus on account of
from legal confinement, evaded sentence, or has violated thethe fatal head wounds he sustained as a result of the
conditions of his bail without valid justification; strong impact of the collision between the bus and a
3 That the accused committed the offense while ondump truck that happened while the bus was still
probation, parole, or under conditional pardon; travelling on EDSA towards Makati. The foregoing
4 That the circumstances of the accused or his casefacts, among others, were duly established on evidence-
indicate the probability of flight if released on bail; or in-chief by the plaintiff TY, sole heir of AX, in TYs
5 That there is undue risk that during the pendency ofaction against the subject common carrier for breach of
the appeal, the accused may commit another crime. (Sec. 1, Id.)contract of carriage. After TY had rested his case, the
common carrier filed a demurrer to evidence,
contending that plaintiffs evidence is insufficient
because it did not show (1) that defendant was negligent
and (2) that such negligence was the proximate cause of
the collision. Should the court grant or deny defendant's
Bail; Matter of Right vs. Matter of Discretion (2006) demurrer to evidence? Reason briefly. (5%)
When is bail a matter of right and when is it a matter of
discretion? (5%) SUGGESTED ANSWER:
SUGGESTED ANSWER:
No. The court should not grant defendant's demurrer to
Bail is a matter of right (a) before or after conviction by evidence because the case is for breach of contract of
the inferior courts; (b) before conviction by the RTC of carriage. Proof that the defendant was negligent and that
an offense not punishable by death, reclusion perpetua such negligence was the proximate cause of the collision is
not required. (Articles 1170 and 2201,
or life imprisonment., when the evidence of guilt is not
strong (Sec. 4, Rule 114, 2000 Rules of Criminal Procedure). Civil Code; (Mendoza v. Phil. Airlines, Inc., 90 Phil. 836
[1952]; Batangas Transportation Co. v. Caguimbal, 22
SCRA171 U 968]; Abeto v. PAL, 115 SCRA 489 [1982]; Aboitiz
v. Court of Appeals, 129 SCRA 95 [1984]).
Bail is discretionary: Upon conviction by the RTC of an
offense not punishable by death, reclusion perpetua or Demurrer to Evidence; w/o Leave of Court (1998)
life imprisonment (Sec. 5, Rule 114, 2000 Rules Facing a charge of Murder, X filed a petition for bail. The
of Criminal Procedure).
petition was opposed by the prosecution but after
hearing the court granted bail to X. On the first
Bail; Witness Posting Bail (1999)
scheduled hearing on the merits, the prosecution
May the Court require a witness to post bail? Explain
manifested that it was not adducing additional evidence
your answer. (2%)
SUGGESTED ANSWER:
and that it was resting its case. X filed a demurrer to
Yes. The court may require a witness to post bail if he evidence without leave of court but it was denied by the
is a material witness and bail is needed to secure his court.
appearance. The rules provide that when the court is
satisfied, upon proof or oath, that a material witness will 1. Did the court have the discretion to deny the demurrer
not testify when required, it may, upon motion of either to evidence under the circumstances mentioned above?
party, order the witness to post bail in such sum as may 2. If the answer to the preceding question is in the
(2%)
be deemed proper. Upon refusal to post bail, the court affirmative, can X adduce evidence in his defense after
shall commit him to prison until he complies or is legally the denial of his demurrer to evidence? [1%]
discharged after his testimony is taken. (Sec. 6, Rule 119) 3. Without further proceeding and on the sole basis of
the evidence of the prosecution, can the court legally
convict X for Murder? (2%)
SUGGESTED ANSWER:
Complaint vs. Information (1999)
1. Yes. The Court had the discretion to deny the
Distinguish a Complaint from Information. (2%)
demurrer to the evidence, because although the
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 43 of 66 The trial court
evidence presented by the prosecution at the hearing denied the demurrer to evidence and deemed the accused as
for bail was not strong, without any evidence for the having waived his right to present evidence and submitted the
defense, it could be sufficient for conviction. case for judgment on the basis of the prosecution evidence.
In due time, the court rendered judgment finding the accused
2. No. Because he filed the demurrer to the evidence guilty of the offense charged beyond reasonable doubt and
without leave. (Sec. 15, Rule 119, Rules of Criminal Procedure.) accordingly imposing on him the penalty prescribed therefor.
However, the trial court should inquire as to why the Is the judgment of the trial court valid and proper? Reason.
accused filed the demurrer without leave and whether his (5%)
lawyer knew that the effect of filing it without leave is to
waive the presentation of the evidence for the accused. SUGGESTED ANSWER:
(People vs. Fores, 269 SCRA Yes. The judgment of the trial court is valid. The
62.) accused did not ask for leave to file the demurrer to
evidence. He is deemed to have waived his right to
3. Yes. Without any evidence from the accused, the present evidence. (Sec. 23 of Rule 119; People v. Flores,
prima facie evidence of the prosecution has been 269 SCRA 62 [1997]; Bernardo v. Court of Appeals, 278 SCRA
converted to proof beyond reasonable doubt. 782 [1997]. However, the judgment is not proper or is
ALTERNATIVE ANSWER: erroneous because there was no showing from the
If the evidence of guilt is not strong and beyond proper office like the Firearms Explosive Unit of the
reasonable doubt then the court cannot legally convict X Philippine National Police that the accused has a permit
for murder. to own or possess the firearm, which is fatal to the
conviction of the accused. (Mallari v. Court of Appeals
Demurrer to Evidence; w/o Leave of Court (2001) &People,265 SCRA 456[1996]).
Carlos, the accused in a theft case, filed a demurrer to
evidence without leave of court. The court denied the Dismissal; Failure to Prosecute (2003)
demurrer to evidence and Carlos moved to present his When a criminal case is dismissed on nolle prosequi, can
evidence. The court denied Carlos motion to present it later be refilled? (4%)
evidence and instead judgment on the basis of the SUGGESTED ANSWER:
evidence for the prosecution. Was the court correct in As a general rule, when a criminal case is dismissed on nolle
prosequi before the accused is placed on trial and before he
preventing Carlos from presenting his evidence and
is called on to plead, this is not equivalent to an acquittal
rendering judgment on the basis of the evidence for the
and does not bar a subsequent prosecution for the same
prosecution? Why? (5%) offense. (Galvez
SUGGESTED ANSWER: v. Court of Appeals, 237 SCRA 685 [1994]).
Yes, because the demurrer to the evidence was filed
without leave of court. The Rules provide that when the Dismissal; Provisional Dismissal (2003)
demurrer to evidence is filed without leave of court, the Before the arraignment for the crime of murder, the
accused waives the right to present evidence and submits private complainant executed an Affidavit of Desistance
the case for judgment on the basis of the evidence for stating that she was not sure if the accused was the man
the prosecution. (Sec. 23 of Rule who killed her husband. The public prosecutor filed a
119, Revised Rules of Criminal Procedure) Motion to Quash the Information on the ground that
with private complainants desistance, he did not have
Demurrer to Evidence; w/o Leave of Court (2004) evidence sufficient to convict the accused. On 02 January
The information for illegal possession of firearm filed 2001, the court without further proceedings granted the
against the accused specifically alleged that he had no motion and provisionally dismissed the case. The accused
license or permit to possess the caliber .45 pistol gave his express consent to the provisional dismissal of
mentioned therein. In its evidence-in-chief, the the case. The offended party was notified of the dismissal
prosecution established the fact that the subject firearm but she refused to give her consent.
was lawfully seized by the police from the possession of
the accused, that is, while the pistol was tucked at his
waist in plain view, without the accused being able to Subsequently, the private complainant urged the public
present any license or permit to possess the firearm. The prosecutor to refile the murder charge because the
prosecution on such evidence rested its case and within a accused failed to pay the consideration which he had
period of five days therefrom, the accused filed a promised for the execution of the Affidavit of
demurrer to evidence, in sum contending that the Desistance. The public prosecutor obliged and refiled
prosecution evidence has not established the guilt of the the murder charge against the accused on 01 February
accused beyond reasonable doubt and so prayed that he 2003, the accused filed a Motion to Quash the
be acquitted of the offense charged. Information on the ground that the provisional dismissal
of the case had already become permanent. (6%)
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 44 of 66 was aware that the
a) Was the provisional dismissal of the case proper? b) victim had died two days earlier on account of his stab wounds.
Resolve the Motion to Quash. Because of his guilty plea, Noel was convicted of frustrated
SUGGESTED ANSWER: homicide and meted the corresponding penalty. When the
(a) The provisional dismissal of the case was proper prosecution learned of the victim's death, it filed within fifteen
because the accused gave his express consent thereto (15) days therefrom a motion to amend the information to
and the offended party was notified. It was not upgrade the charge from frustrated homicide to consummated
necessary for the offended party to give her consent homicide. Noel opposed the motion claiming that the
thereto. (Sec. 8 of Rule 117). admission of the amended information would place him in
double jeopardy. Resolve the motion with reasons. (4%)
(b) The motion to quash the information should be
denied because, while the provisional dismissal had
already become permanent, the prescriptive period for SUGGESTED ANSWER:
filing the murder charge had not prescribed. There was The amended information to consummated homicide
no double jeopardy because the first case was dismissed from frustrated homicide does not place the accused in
before the accused had pleaded to the charge. (Sec. 7 of Rule double jeopardy. As provided in the second paragraph of
117). Sec. 7, Rule 117,2000 Rules of Criminal Procedure, the conviction of
the accused shall not be a bar to another prosecution for
Double Jeopardy (2002) an offense which necessarily includes the offense charged
D was charged with slight physical injuries in the MTC. in the former complaint or information when: (a) the
He pleaded not guilty and went to trial. After the graver offense developed due to supervening facts arising
prosecution had presented its evidence, the trial court set from the same act or omission constituting the former
the continuation of the hearing on another date. On the charge; or (b) the facts constituting the graver charge
date scheduled for hearing, the prosecutor failed to became known or were discovered only after a plea was
appear, whereupon the court, on motion of D, dismissed entered in the former complaint or information. Here,
the case. A few minutes later, the prosecutor arrived and when the plea to frustrated homicide was made, neither
opposed the dismissal of the case. The court the court nor the prosecution was aware that the victim
reconsidered its order and directed D to present his had died two days earlier on account of his stab wounds.
evidence. Before the next date of trial came, however, D
moved that the last order be set aside on the ground that
the reinstatement of the case had placed him twice in
jeopardy. Acceding to this motion, the court again Extradition (2004)
dismissed the case. The prosecutor then filed an RP and State XX have a subsisting Extradition Treaty.
information in the RTC, charging D with direct assault Pursuant thereto RP's Secretary of Justice (SOJ) filed a
based on the same facts alleged in the information for Petition for Extradition before the MM RTC alleging
slight physical injuries but with the added allegation that that Juan Kwan is the subject of an arrest warrant duly
D inflicted the injuries out of resentment for what the issued by the proper criminal court of State XX in
complainant had done in the performance of his duties connection with a criminal case for tax evasion and fraud
as chairman of the board of election inspectors. D moved before his return to RP as a balikbayan. Petitioner prays
to quash the second information on the ground that its that Juan be extradited and delivered to the proper
filing had placed him in double jeopardy. How should authorities of State XX for trial, and that to prevent
Ds motion to quash be resolved? (4%) Juan's flight in the interim, a warrant for his immediate
arrest be issued. Before the RTC could act on the
petition for extradition, Juan filed before it an urgent
SUGGESTED ANSWER: motion, in sum praying (1) that SoJ's application for an
Ds motion to quash should be granted on the ground arrest warrant be set for hearing and (2) that Juan be
of double jeopardy because the first offense charged is allowed to post bail in the event the court would issue
necessarily included in the second offense charged. an arrest warrant. Should the court grant or deny Juan's
[Draculan v. Donato, 140 SCRA 425 (1985)]. prayers? Reason. (5%)
ALTERNATIVE ANSWER:
Ds motion to quash should be denied because the two SUGGESTED ANSWER:
dismissals of the case against him were on his motion Under the Extradition Treaty and Law, the application of
(hence with his express consent) and his right to a the Secretary of Justice for a warrant of arrest need not be
speedy trial was not violated. set for hearing, and Juan cannot be allowed to post bail if
the court would issue a warrant of arrest. The provisions in
Double Jeopardy; Upgrading; Original Charges (2005) the Rules of Court on arrest and bail are not basically
For the multiple stab wounds sustained by the victim, applicable.
Noel was charged with frustrated homicide in the RTC. (Government of the United States of America v. Puruganan,
Upon arraignment, he entered a plea of guilty to said 389 SCRA 623 [2002])
crime. Neither the court nor the prosecution
Information (2001) B. Yes, the prosecution can re-file the information for
The prosecution filed an information against Jose for murder in substitution of the information for homicide
slight physical injuries alleging the acts constituting the because no double jeopardy has as yet attached. [Galvez v.
offense but without anymore alleging that it was Court of Appeals, 237
committed after Joses unlawful entry in the SCRA 685 (1994)].
complainants abode. Was the information correctly
prepared by the prosecution? Why? (5%) Information; Amendment; Supervening Events (1997)
A was accused of homicide for the killing of B. During
SUGGESTED ANSWER: the trial, the public prosecutor received a copy of the
No. The aggravating circumstance of unlawful entry in marriage certificate of A and B.
the complainants abode has to be specified in the
information; otherwise, it cannot be considered as (a) Can the public prosecutor move for the amendment
aggravating. (Sec. 8 of Rule 110, Revised Rules of Criminal of the information to charge A with the crime of
Procedure) (b) Suppose instead of moving for the amendment of
parricide?
ALTERNATIVE ANSWER: the information, the public prosecutor presented in
The information prepared by the prosecutor is not evidence the marriage certificate without objection on
correct because the accused should have been charged
the part of the defense, could Abe convicted of
with qualified trespass to dwelling. parricide?
SUGGESTED ANSWER:
Information; Amendment (2001) (a) No. The Information cannot be amended to change
Amando was charged with frustrated homicide. Before the offense charged from homicide to parricide. Firstly,
he entered his plea and upon the advice of his counsel, the marriage is not a supervening fact arising from the
he manifested his willingness to admit having committed act constituting the charge of homicide. (Sec. 7[a] of Rule
the offense of serious physical injuries. The prosecution 117). Secondly, after plea, amendments may be done only
then filed an amended information for serious physical as to matters of form. The amendment is substantial
injuries against Amando. What steps or action should the because it will change the nature of the offense. (Sec. 14
prosecution take so that the amended information of Rule 110; Dionaldo
against Amando which downgrades the nature of the us. Dacuycuy. 108 SCRA 736).
offense could be validly made? Why? (5%)
(b) No. A can be convicted only of homicide not of
parricide which is a graver offense. The accused has the
SUGGESTED ANSWER: constitutional rights of due process and to be informed
In order that the amended information which of the nature and the cause of the accusation against him.
downgrades the nature of the offense could be validly (Secs. 1, 14 (1) and (2} Art. III. 1987
made, the prosecution should file a motion to ask for Constitution),
leave of court with notice to the offended party. (Sec.14 of
Rule 110, Revised Rules of Criminal Procedure). The new rule is for Information; Bail (2003)
the protection of the interest of the offended party and After the requisite proceedings, the Provincial
to prevent possible abuse by the prosecution. Prosecutor filed an Information for homicide against
X. The latter, however, timely filed a Petition for Review
of the Resolution of the Provincial Prosecutor with the
Information; Amendment; Double Jeopardy; Bail (2002) Secretary of Justice who, in due time, issued a Resolution
A. D and E were charged with homicide in one reversing the resolution of the Provincial Prosecutor and
information. Before they could be arraigned, the directing him to withdraw the Information.
prosecution moved to amend the information to
exclude E therefrom. Can the court grant the motion to
amend? Why? (2%) Before the Provincial Prosecutor could comply with the
B. On the facts above stated, suppose the directive of the Secretary of Justice, the court issued a
prosecution, instead of filing a motion to amend, moved warrant of arrest against X.
to withdraw the information altogether and its motion
was granted. Can the prosecution re-file the information The Public Prosecutor filed a Motion to Quash the
although this time for murder? Explain (3%) Warrant of Arrest and to Withdraw the Information,
attaching to it the Resolution of the Secretary of Justice.
SUGGESTED ANSWER: The court denied the motion. (6%) a) Was there a legal
A. Yes, provided notice is given to the offended party basis for the court to deny the
and the court states its reasons for granting the same. motion? b) If you were the counsel for the accused,
(Rule 110, sec. 14).
what remedies, if any, would you pursue?
SUGGESTED ANSWER:
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 46 of 66 possession of an
a. Yes, there is a legal basis for the court to deny the unlicensed .32 caliber gun, punishable by prision correctional
motion to quash the warrant of arrest and to withdraw in its maximum period and a fine of not less than P15.000.00.
the information. The court is not bound by the It is the MTC that has exclusive and original jurisdiction over
Resolution of the Secretary of Justice. (Crespo v. all offenses punishable by imprisonment not exceeding six
Mogul, 151 SCRA 462 [1987]). years. (Sec. 2, R.A. No. 7691, amending B.P. Blg.
b. If I were the counsel for the accused, I would 129)

surrender the accused and apply for bail because the
offense is merely homicide, a non-capital offense. At the Information; Motion to Quash; Grounds (1998)
pre-trial, I would make a stipulation of facts with the 1 Give two (2) grounds to quash an
prosecution which would show that no offense was Information.[2%]
committed. 2 If the Information is not accompanied by a
certification that a preliminary investigation has been
Information; Motion to Quash (2000) conducted. Is the Information void? [3%]
BC is charged with illegal possession of firearms under SUGGESTED ANSWER:
an Information signed by a Provincial Prosecutor. After 1. Two grounds to quash an Information are: a)
arraignment but before pre-trial, BC found out that the That the facts charged do not constitute an offense; and
Provincial Prosecutor had no authority to sign and file
the information as it was the City Prosecutor who has b) That the court trying the case has no
such authority. During the pre-trial, BC moves that the jurisdiction over the offense charged or the person
case against him be dismissed on the ground that the of the accused.
Information is defective because the officer signing it c) That the officer who filed the information had
lacked the authority to do so. The Provincial Prosecutor no authority to do so; d) That it does not conform
opposes the motion on the ground of estoppel as BC did substantially to the prescribed form;
not move to quash the Information before arraignment.
If you are counsel for BC, what is your argument to e) That more than one offense is charged
refute the opposition of the Provincial Prosecutor? (5%) except in those cases in which existing laws
prescribe a single punishment for various offenses;
SUGGESTED ANSWER: f) That the criminal action or liability has

I would argue that since the Provincial Prosecutor had been extinguished;
no authority to file the information, the court did not g) That it contains averments which, if true,
acquire jurisdiction over the person of the accused and would constitute a legal excuse or justification; and
over the subject matter of the offense charged. (Cudia v.
Court of Appeals, 284 SCRA 173 [1999]). Hence, this ground h) That the accused has been previously
is not waived if not raised in a motion to quash and could convicted or in jeopardy of being convicted, or
be raised at the pretrial. (Sec. 8, Rule 117, Rules of Court). acquitted of the offense charged. (Sec. 3,
Rule 117. Rules of Criminal Procedure.)
SUGGESTED ANSWER:
Information; Motion to Quash (2005)
2. No. The certification which is provided in Sec. 4, Rule
Rodolfo is charged with possession of unlicensed 112. Rules of Criminal Procedure, is not an indispensable
firearms in an Information filed in the RTC. It was part of the information. (People vs.
alleged therein that Rodolfo was in possession of two
Lapura, 255 SCRA 85.)
unlicensed firearms: a .45 caliber and-a .32 caliber. Under
Republic Act No. 8294, possession of an unlicensed .45 Judgment; Promulgation of Judgment (1997)
caliber gun is punishable by prision mayor in its X, the accused in a homicide case before the RTC.
minimum period and a fine of P30.000.00, while Dagupan Cay, was personally notified of the
possession of an unlicensed .32 caliber gun is punishable promulgation of judgment in his case set for 10
by prision correctional in its maximum period and a fine December 1996. On said date. X was not present as he
of not less than P15,000.00. As counsel of the accused, had to attend to the trial of another criminal case against
you intend to file a motion to quash the Information. him in Tarlac, Tarlac. The trial court denied the motion
What ground or grounds should you invoke? Explain. of the counsel of X to postpone the promulgation.
(4%)
(a) How shall the court promulgate the judgment in the
SUGGESTED ANSWER:
absence of the accused?
The ground for the motion to quash is that more than
(b) Can the trial court also order the arrest of X?
one offense is charged in the information. (Sec. 3[f], Rule SUGGESTED ANSWER:
117, 2000 Rules of Criminal Procedure) Likewise, the RTC has (a) In the absence of the accused, the promulgation shall
no jurisdiction over the second offense of be made by recording the Judgment in the
criminal docket and a copy thereof served upon the Parties; Prosecution of Offenses (2000)
accused or counsel. (Sec. 6. third par., Rule 120) Your friend YY, an orphan, 16 years old, seeks your legal
advice. She tells you that ZZ, her uncle, subjected her to
(b) No, the trial court cannot order the arrest of X if the acts of lasciviousness; that when she told her
judgment is one of acquittal and, in any event, his failure grandparents, they told her to just keep quiet and not to
to appear was with justifiable cause since he had to file charges against ZZ, their son. Feeling very much
attend to another criminal case against him. aggrieved, she asks you how her uncle ZZ can be made
to answer for his crime. a) What would your advice be?
Jurisdiction; Complex Crimes (2003) Explain. (3%) b) Suppose the crime committed against
In complex crimes, how is the jurisdiction of a court YY by her
determined? 4% uncle ZZ is rape, witnessed by your mutual friend
SUGGESTED ANSWER: XX. But this time, YY was prevailed upon by her
In a complex crime, jurisdiction over the whole complex grandparents not to file charges. XX asks you if she
crime must be lodged with the trial court having can initiate the complaint against ZZ. Would your
jurisdiction to impose the maximum and most serious answer be the same? Explain. (2%).
penalty imposable on an offense forming part of the SUGGESTED ANSWER:
complex crime. (Cuyos v. Garcia, 160 SCRA 302
[1988]). (a) I would advise the minor, an orphan of 16 years of
age, to file the complaint herself independently of her
Jurisdiction; Finality of a Judgment (2005) grandparents, because she is not incompetent or
Mariano was convicted by the RTC for raping Victoria and incapable to doing so upon grounds other than her
meted the penalty of reclusion perpetua. While serving minority. (Sec. 5, Rule 110, Rules of Criminal Procedure.)
sentence at the National Penitentiary, Mariano and Victoria
(b) Since rape is now classified as a Crime Against
were married. Mariano filed a motion in said court for his
release from the penitentiary on his claim that under Republic Persons under the Anti-Rape Law of 1997 (RA 8353), I
Act No. 8353, his marriage to Victoria extinguished the would advise XX to initiate the complaint against ZZ.
criminal action against him for rape, as well as the penalty
imposed on him. However, the court denied the motion on Plea of Guilty; to a Lesser Offense (2002)
the ground that it had lost jurisdiction over the case after its D was charged with theft of an article worth p15,000.00.
decision had become final and executory. (7%) Upon being arraigned, he pleaded not guilty to the
offense charged. Thereafter, before trial commenced, he
asked the court to allow him to change his plea of not
guilty to a plea of guilt but only to estafa involving
a) Is the filing of the court correct? Explain. P5,000.00. Can the court allow D to change his plea?
SUGGESTED ANSWER: Why? (2%)
No. The court can never lose jurisdiction so long as its SUGGESTED ANSWER:
decision has not yet been fully implemented and satisfied. No, because a plea of guilty to a lesser offense may be
Finality of a judgment cannot operate to divest a court of allowed if the lesser offense is necessarily included in
its jurisdiction. The court retains an interest in seeing the the offense charged. (Rule 116, sec. 2). Estafa involving
proper execution and implementation of its judgments, P5,000.00 is not necessarily included in theft of an
and to that extent, may issue such orders necessary and article worth P15,000.00
appropriate for these purposes. (Echegaray v. Secretary of
Justice, G.R. Prejudicial Question (1999)
No. 13205, January 19, 1999) What is a prejudicial question? (2%)
SUGGESTED ANSWER:
b) What remedy/remedies should the counsel of A prejudicial question is an issue involved in a civil
Mariano take to secure his proper and most action which is similar or intimately related to the issue
expeditious release from the National Penitentiary? raised in the criminal action, the resolution of which
Explain. determines whether or not the criminal action may
SUGGESTED ANSWER:
proceed. (Sec. 5 of Rule 111.)
To secure the proper and most expeditious release of ANOTHER ANSWER:
Mariano from the National Penitentiary, his counsel A prejudicial question is one based on a fact distinct and
should file: (a) a petition for habeas corpus for the illegal separate from the crime but so intimately connected with
confinement of Mariano (Rule 102), or (b) a motion in it that it determines the guilt or innocence of the accused.
the court which convicted him, to nullify the execution
of his sentence or the order of his commitment on the
ground that a supervening development had occurred Prejudicial Question (2000)
(Melo v. People, G.R. No. L-3580, March 22, 1950) despite CX is charged with estafa in court for failure to remit to
the finality of the judgment. MM sums of money collected by him (CX) for MM in
payment for goods purchased from MM, by
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 48 of 66 alia, the statement
depositing the amounts in his (CXs) personal bank that the "Defense admitted all the documentary evidence of
account. CX files a motion to suspend proceedings the Prosecution," thus leaving the accused little or no room to
pending resolution of a civil case earlier filed in court by defend himself, and violating his right against self-
CX against MM for accounting and damages involving incrimination. Should the court grant or deny QR's motion?
the amounts subject of the criminal case. As the Reason. (5%)
prosecutor in the criminal case, briefly discuss your
grounds in support of your opposition to the motion to SUGGESTED ANSWER:
suspend proceedings. (5%). The court should deny QR's motion. If in the pretrial
SUGGESTED ANSWER: agreement signed by the accused and his counsel, the
As the prosecutor, I will argue that the motion to accused admits the documentary evidence of the
suspend is not in order for the following reasons: prosecution, it does not violate his right against self-
1 The civil case filed by CX against MM for accounting incrimination. His lawyer cannot file a motion to withdraw.
and damages does not involve an issue similar to or intimately A pre-trial order is not needed. (Bayas v. Sandiganbayan, 391
related to the issue of estafa raised in the criminal action. SCRA 415(2002}). The admission of such documentary
2 The resolution of the issue in the civil case for evidence is allowed by the rule.
accounting will not determine whether or not the criminal (Sec. 2 of Rule 118; People v. Hernandez, 260 SCRA 25
action for estafa may proceed. (Sec. 5, Rule [1996]).
111, Rules of Criminal Procedure.) Pre-Trial; Criminal Case vs. Civil Case (1997)
Give three distinctions between a pre-trial in a criminal
Prejudicial Question; Suspension of Criminal Action case and a pre-trial in a civil case.
(1999) SUGGESTED ANSWER:
A allegedly sold to B a parcel of land which A later also Three distinctions between a pre-trial in a criminal case
sold to X. B brought a civil action for nullification of the and a pre-trial in a civil case are as follows:
second sale and asked that the sale made by A in his 1. The pre-trial in a criminal case is conducted
favor be declared valid. A theorized that he never sold only "where the accused and counsel agree" (Rule 118, Sec.
the property to B and his purported signatures appearing 1): while the pre-trial in a civil case is mandatory. (Sec. 1 of
former Rule 20; Sec, 1 of new Rule
in the first deed of sale were forgeries. Thereafter, an
18).
Information for estafa was filed against A based on the
same double sale that was the subject of the civil action.
2. The pre-trial in a criminal case does not
A filed a "Motion for Suspension of Action" in the
consider the possibility of a compromise, which is one
criminal case, contending that the resolution of the issue
important aspect of the pre-trial in a civil case.
in the civil case would necessarily be determinative of his (Sec. 1 of former Rule 20; Sec. 2 of new Rule 18).
guilt or innocence. Is the suspension of the criminal
action in order? Explain. (2%) 3. In a criminal case, a pre-trial agreement is
required to be reduced to writing and signed by the
SUGGESTED ANSWER:
Yes. The suspension of the criminal action is in order accused and his counsel (See; Rule 118, Sec. 4); while in a civil
because the defense of A in the civil action, that he never case, the agreement may be contained in the pre-trial
sold the property to B and that his purported signatures order. (Sec. 4 of former Rule
20; See 7 of new Rule 78).
in the first deed of sale were forgeries, is a prejudicial
question the resolution of which is determinative of his Provisional Dismissal (2002)
guilt or innocence. If the first sale is null and void, there In a prosecution for robbery against D, the prosecutor
would be no double sale and A would be innocent of the moved for the postponement of the first scheduled
offense of estafa. hearing on the ground that he had lost his records of the
(Ras v. Rasul, 100 SCRA 125.)
case. The court granted the motion but, when the new
Pre-Trial Agreement (2004) date of trial arrived, the prosecutor, alleging that he could
Mayor TM was charged of malversation through not locate his witnesses, moved for the provisional
falsification of official documents. Assisted by Atty. OP dismissal of the case. If Ds counsel does not object, may
as counsel de parte during pre-trial, he signed together the court grant the motion of the prosecutor? Why? (3%)
with Ombudsman Prosecutor TG a "Joint Stipulation of
SUGGESTED ANSWER:
Facts and Documents," which was presented to the No, because a case cannot be provisionally dismissed
Sandiganbayan. Before the court could issue a pre-trial except upon the express consent of the accused and
order but after some delay caused by Atty. OP, he was with notice to the offended party. (Rule 117, sec. 8).
substituted by Atty. QR as defense counsel. Atty. QR
forthwith filed a motion to withdraw the "Joint Remedies; Void Judgment (2004)
Stipulation," alleging that it is prejudicial to the accused AX was charged before the YY RTC with theft of jewelry
because it contains, inter valued at P20.000, punishable with
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 49 of 66 implicated
imprisonment of up to 10 years of prision mayor under (Mantaring v. Roman, A.M. No. RTJ-93-904, February 28, 1996),
the Revised Penal Code. After trial, he was convicted of so long as the search is conducted in the place where the
the offense charged, notwithstanding that the material search warrant will be served. Moreover, describing the shabu
facts duly established during the trial showed that the in an undetermined amount is sufficiently particular. (People
offense committed was estafa, punishable by v. Tee, G.R.
imprisonment of up to eight years of prision mayor Nos. 140546-47, January 20, 2003)
under the said Code. No appeal having been taken
therefrom, said judgment of conviction became final. Is Trial; Trial in Absentia; Automatic Review of Conviction
the judgment of conviction valid? Is the said judgment (1998)
reviewable thru a special civil action for certiorari? 1. What are the requisites of a trial in absentia? [2%]
Reason. (5%) 2. If an accused who was sentenced to death escapes,
SUGGESTED ANSWER: is there still a legal necessity for the Supreme Court
Yes, the judgment of conviction for theft upon an to review the decision of conviction? [3%]
information for theft is valid because the court had SUGGESTED ANSWER:
jurisdiction to render judgment. However, the judgment 1. The requisites of trial in absentia are: (a) the accused
was grossly and blatantly erroneous. The variance has already been arraigned; (b) he has been duly notified
between the evidence and the judgment of conviction is of the trial; and (c) his failure to appear is unjustifiable.
substantial since the evidence is one for estafa while the (Sec. 14 [2], Article III. Constitution;
judgment is one for theft. The elements of the two crimes Parada vs. Veneracion, 269 SCRA 371 [1997].)
are not the same. (Lauro Santos v. People, 181 SCRA 487).
One offense does not necessarily include or is included 2. Yes, there is still a legal necessity for the Supreme Court
(as of 2004 the Court of Appeals has the jurisdiction to such review)
in the other. (Sec. 5 of
Rule 120).
to review the decision of conviction sentencing the
accused to death, because he is entitled to an automatic
review of the death sentence. (Sees.
The judgment of conviction is reviewable by certiorari
even if no appeal had been taken, because the judge 3[e] and 10, Rule 122, Rules of Criminal Procedure; People
committed a grave abuse of discretion tantamount to vs. Espargas, 260 SCRA 539.)
lack or excess of his jurisdiction in convicting the accused
Venue (1997)
of theft and in violating due process and his right to be
Where is the proper venue for the filing of an
informed of the nature and the cause of the accusation
information in the following cases? a) The theft of a car
against him, which make the judgment void. With the
in Pasig City which was
mistake in charging the proper offense, the judge should
brought to Obando, Bulacan, where it was
have directed the filing of the proper information and
cannibalized.
thereafter dismissed the original information. (Sec. 19 of
Rule 119).
b) The theft by X, a bill collector of ABC
Company, with main offices in Makati City, of his
collections from customers in Tagaytay City. In the
Search Warrant; Motion to Quash (2005) contract of employment, X was detailed to the Calamba
Police operatives of the Western Police District, branch office, Laguna, where he was to turn in his
Philippine National Police, applied for a search warrant collections.
in the RTC for the search of the house of Juan Santos c) The malversation of public funds by a
and the seizure of an undetermined amount of shabu. Philippine consul detailed in the Philippine Embassy in
The team arrived at the house of Santos but failed to find London.
SUGGESTED ANSWER:
him there. Instead, the team found Roberto Co. The (a) The proper venue is in Pasig City where the theft of
team conducted a search in the house of Santos in the the car was committed, not in Obando where it was
presence of Roberto Co and barangay officials and cannibalized. Theft is not a continuing offense.
found ten (10) grams of shabu. Roberto Co was charged
(People v Mercado, 65 Phil 665).
in court with illegal possession of ten grams of shabu.
Before his arraignment, Roberto Co filed a motion to (b) If the crime charged is theft, the venue is in Calamba
quash the warrant on the following grounds (a) it was where he did not turn in his collections. If the crime of X
not the accused named in the search warrant; and (b) the is estafa, the essential ingredients of the offense took
warrant does not describe the article to be seized with place in Tagaytay City where he received his collections,
sufficient particularity. Resolve the motion with reasons. in Calamba where he should have turned in his
(4%) collections, and in Makati City where the ABC Company
was based. The information may therefore be filed in
SUGGESTED ANSWER:
Tagaytay City or Calamba or Makati which have
The motion to quash should be denied. The name of the
concurrent territorial Jurisdiction. (Catingub vs. Court of
person in the search warrant is not important. It is not Appeals,
even necessary that a particular person be
121 SCRA 106).
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 50 of 66 Acting on a tip by
an informant, police officers stopped a car being driven by D
(c) The proper court is the Sandiganbayan which has and ordered him to open the trunk. The officers found a bag
jurisdiction over crimes committed by a consul or higher containing several kilos of cocaine. They seized the car and the
official in the diplomatic service. (Sec. 4(c). PD 1606, as cocaine as evidence and placed D under arrest. Without
amended by RA. No. 7975). The Sandiganbayan is a national advising him of his right to remain silent and to have the
court. (Nunez v. Sandiganbayan, 111 SCRA 433 [1982]. It has assistance of an attorney, they questioned him regarding the
only one venue at present, which is in Metro Manila, until cocaine. In reply, D said, I dont know anything about it. It
RA. No. 7975, providing for two other branches in Cebu isnt even my car. D was charged with illegal possession of
and in Cagayan de Oro, is implemented. cocaine, a prohibited drug. Upon motion of D, the court
suppressed the use of cocaine as evidence and dismissed the
Alternative Answers: charges against him. D commenced proceedings against the
(b) The information may be filed either in Calamba or police for the recovery of his car. In his direct examination, D
in Makati City, not in Tagaytay City where no offense testified that he owned the car but had registered it in the name
had as yet been committed, of a friend for convenience. On cross-examination, the
attorney representing the police asked, After your arrest, did
(c) Assuming that the Sandiganbayan has no jurisdiction, you not tell the arresting officers that it wasnt your car? If
the proper venue is the first RTC in which the charge is you were Ds attorney, would you object to the question? Why?
filed (Sec. 15(d). Rule 110). (5%)
EVIDENCE
SUGGESTED ANSWER:
Admissibility (1998) Yes, because his admission made when he was
The barangay captain reported to the police that X was questioned after he was placed under arrest was in
illegally keeping in his house in the barangay an Armalite violation of his constitutional right to be informed of his
M16 rifle. On the strength of that information, the police right to remain silent and to have competent and
conducted a search of the house of X and indeed found independent counsel of his own choice. Hence, it is
said rifle. The police raiders seized the rifle and brought inadmissible in evidence. [Constitution, Art. III, sec. 12;
X to the police station. During the investigation, he R.A. 7438 (1992), sec, 2; People v. Mahinay, 302 SCRA 455].
voluntarily signed a Sworn Statement that he was ALTERNATIVE ANSWER:
possessing said rifle without license or authority to Yes, because the question did not lay the predicate to
possess, and a Waiver of Right to Counsel. During the justify the cross-examination question.
trial of X for illegal possession of firearm, the prosecution
submitted in evidence the rifle. Sworn Statement and Admissibility (2004)
Waiver of Right to Counsel, individually rule on the Sgt. GR of WPD arrested two NPA suspects, Max and
admissibility in evidence of the: Brix, both aged 22, in the act of robbing a grocery in
Ermita. As he handcuffed them he noted a pistol tucked
1. Rifle; [2%] in Max's waist and a dagger hidden under Brix's shirt,
2. Sworn Statement; and [2%1 which he promptly confiscated. At the police
3. Waiver of Right to Counsel of X. [1%] investigation room, Max and Brix orally waived their
SUGGESTED ANSWER: right to counsel and to remain silent. Then under oath,
1. The rifle is not admissible in evidence because it was they freely answered questions asked by the police desk
seized without a proper search warrant. A warrantless officer. Thereafter they signed their sworn statements
search is not justified. There was time to secure a search before the police captain, a lawyer. Max admitted his part
warrant. (People us. Encinada G.R. No. 116720, October 2. 1997 in the robbery, his possession of a pistol and his
and other cases) ownership of the packet of shabu found in his pocket.
Brix admitted his role in the robbery and his possession
2. The sworn statement is not admissible in evidence of a dagger. But they denied being NPA hit men. In due
because it was taken without informing him of his course, proper charges were filed by the City Prosecutor
custodial rights and without the assistance of counsel against both arrestees before the MM RTC. May the
which should be independent and competent and written statements signed and sworn to by Max and Brix
preferably of the choice of the accused. (People us. be admitted by the trial court as evidence for the
Januario, 267 SCRA 608.) prosecution? Reason. (5%)
3. The waiver of his right to counsel is not admissible
because it was made without the assistance of counsel SUGGESTED ANSWER:
of his choice. (People us. Gomez, 270 SCRA 433.) No. The sworn written statements of Max and Brix may
not be admitted in evidence, because they were not
Admissibility (2002) assisted by counsel. Even if the police captain
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 51 of 66 deemed to include
before whom they signed the statements was a lawyer, an electronic document as defined in these Rules. (Sec. 1 of Rule
he was not functioning as a lawyer, nor can he be 3, Rules of Electronic Evidence effective August 1, 2001).
considered as an independent counsel. Waiver of the
right to a lawyer must be done in writing and in the
presence of independent counsel. (People v. Mahinay, 302 An electronic document is admissible in evidence if it
SCRA 455 11999]; People v. Espiritu, 302 SCRA complies with the rules on admissibility prescribed by the
533 [1999]). Rules of Court and related laws and is authenticated in
the manner prescribed by these Rules. (Sec. 2 of Rule 3, Id.).
Admissibility; Admission of Guilt; Requirements (2006) The authenticity of any private electronic document must
What are the requirements in order that an admission be proved by evidence that it had been digitally signed
of guilt of an accused during a custodial investigation and other appropriate security measures have been
be admitted in evidence? (2.5%) applied. (Sec.
SUGGESTED ANSWER: 2 of Rule 5, Id.).
1 The admission must be voluntary.
2 The admission must be in writing. (b) An electronic document shall be regarded as the
3 The admission must be made with the assistance of equivalent of an original document under the Best
competent, independent counsel. Evidence Rule if it is a printout or output readable by
4. The admission must be express (People v. sight or other means, shown to reflect the data
Prinsipe, G.R. No. 135862, May 2, 2002). accurately. (Sec. 1 of Rule 4)
5. In case the accused waives his rights to silence
and to counsel, such waiver must be in writing, executed Admissibility; Object or Real Evidence (1994)
with the assistance of competent, independent counsel. At the trial of Ace for violation of the Dangerous Drugs
Act, the prosecution offers in evidence a photocopy of
the marked P100.00 bills used in the buy-bust
Admissibility; Document; Not raised in the Pleading (2004) operation. Ace objects to the introduction of the
photocopy on the ground that the Best Evidence Rule
In a complaint for a sum of money filed before the MM prohibits the introduction of secondary evidence in lieu
RTC, plaintiff did not mention or even just hint at any of the original. a) Is the photocopy real (object) evidence
demand for payment made on defendant before or
commencing suit. During the trial, plaintiff duly offered documentary evidence? b) Is the photocopy
Exh. "A" in evidence for the stated purpose of proving admissible in evidence?
the making of extrajudicial demand on defendant to pay SUGGESTED ANSWER:
P500.000, the subject of the suit. Exh. "A" was a letter a) The photocopy of the marked bills is real (object)
of demand for defendant to pay said sum of money evidence not documentary evidence, because the
within 10 days from receipt, addressed to and served on marked bills are real evidence.
defendant some two months before suit was begun.
Without objection from defendant, the court admitted b) Yes, the photocopy is admissible in evidence, because
Exh. "A" in evidence. Was the court's admission of Exh. the best evidence rule does not apply to object or real
"A" in evidence erroneous or not? Reason. (5%) evidence.
SUGGESTED ANSWER: Admissibility; Objections (1997)
The court's admission of Exh. "A" in evidence is not What are the two kinds of objections? Explain each
erroneous. It was admitted in evidence without briefly. Given an example of each.
objection on the part of the defendant. It should be SUGGESTED ANSWER:
treated as if it had been raised in the pleadings. The Two kinds of objections are: (1) the evidence being
complaint may be amended to conform to the evidence, presented is not relevant to the issue; and (2) the
but if it is not so amended, it does not affect the result evidence is incompetent or excluded by the law or the
of the trial on this issue. (Sec. 5 of Rule rules, (Sec. 3, Rule 138). An example of the first is when
10). the prosecution offers as evidence the alleged offer of an
Insurance company to pay for the damages suffered by
Admissibility; Electronic Evidence (2003) the victim in a homicide case.
a) State the rule on the admissibility of an electronic (See 1997 No. 14).
evidence. b) When is an electronic evidence regarded as Examples of the second are evidence obtained in
being violation of the Constitutional prohibition against
the equivalent of an original document under the unreasonable searches and seizures and confessions and
Best Evidence Rule? 4% admissions in violation of the rights of a person under
SUGGESTED ANSWER:
custodial Investigation.
(a) Whenever a rule of evidence refers to the term ALTERNATIVE ANSWERS:
writing, document, record, instrument, memorandum
or any other form of writing, such term shall be
1) Specific objections: Example: parol evidence and SUGGESTED ANSWER:
best evidence rule (a) The offer by A to pay the hospitalization expenses of
General Objections: Example: continuing objections B is not admissible in evidence to prove his guilt in both
(Sec. 37 of Rule 132). the civil and criminal cases. (Rule 130,
Sec. 27, fourth par.).
2) The two kinds of objections are: (1) objection to a
question propounded in the course of the oral (b) No. It is irrelevant. The obligation of the insurance
examination of the witness and (2) objection to an offer company is based on the contract of insurance and is not
of evidence in writing. Objection to a question admissible in evidence against the accused because it was
propounded in the course of the oral examination of a not offered by the accused but by the insurance
witness shall be made as soon as the grounds therefor company which is not his agent.
shall become reasonably apparent otherwise, it is
waived. An offer of objection in writing shall be made Admissibility; Private Document (2005)
within three (3) days after notice of the offer, unless a May a private document be offered, and admitted in
different period is allowed by the court. In both evidence both as documentary evidence and as object
instances the grounds for objection must be specified. evidence? Explain.
SUGGESTED ANSWER:
An example of the first is when the witness is being Yes, it can be considered as both documentary and
cross-examined and the cross examination is on a matter object evidence. A private document may be offered and
not relevant. An example of the second is that the admitted in evidence both as documentary evidence and
evidence offered is not the best evidence. as object evidence. A document can also be considered
as an object for purposes of the case. Objects as evidence
Admissibility; Offer to Marry; Circumstantial Evidence are those addressed to the senses of the court. (Sec. 1, Rule
(1998)
130, Rules of Court) Documentary evidence consists of
A was accused of having raped X. Rule on the writings or any material containing letters, words,
admissibility of the following pieces of evidence: numbers, figures, symbols or other modes of written
expressions, offered ns proof of their contents. (Sec. 2,
1 an offer of A to marry X; and (3%]
Rule 130, Rules of Court) Hence, a private document may be
2 a pair of short pants allegedly left by A at the crime presented as object evidence in order to 'establish certain
which the court, over the objection of A, required him to put physical evidence or characteristics that are visible on the
on, and when he did, it fit him well. [2%]
paper and writings that comprise the document.
SUGGESTED ANSWER:
1. A's offer to marry X is admissible in evidence as an
Implied admission of guilt because rape cases are not Admissibility; Proof of Filiation; Action of Partition (2000)
allowed to be compromised. (Sec. 27 of Rule 13O;
People vs. Domingo, 226 SCRA 156.)
Linda and spouses Arnulfo and Regina Ceres were co-
owners of a parcel of land. Linda died intestate and
2. The pair of short pants, which fit the accused well, is without any issue. Ten (10) persons headed by Jocelyn,
circumstantial evidence of his guilt, although standing claiming to be the collateral relatives of the deceased
alone it cannot be the basis of conviction. The accused Linda, filed an action for partition with the RTC praying
cannot object to the court requiring him to put the short for the segregation of Lindas share, submitting in
pants on. It is not part of his right against self- support of their petition the baptismal certificates of
incrimination because it is a mere physical act. seven of the petitioners, a family bible belonging to
Linda in which the names of the petitioners have been
entered, a photocopy of the birth certificate of Jocelyn,
Admissibility; Offer to Pay Expenses (1997) and a certification of the local civil registrar that its office
A, while driving his car, ran over B. A visited B at the had been completely razed by fire. The spouses Ceres
hospital and offered to pay for his hospitalization refused to partition on the following grounds: 1) the
expenses. After the filing of the criminal case against A baptismal certificates of the parish priest are evidence
for serious physical injuries through reckless only of the administration of the sacrament of baptism
imprudence. A's insurance carrier offered to pay for the and they do not prove filiation of the alleged collateral
injuries and damages suffered by B. The offer was relatives of the deceased; 2) entry in the family bible is
rejected because B considered the amount offered as hearsay; 3) the certification of the registrar on non-
inadequate. a) Is the offer by A to pay the hospitalization availability of the records of birth does not prove
filiation: 4) in partition cases where filiation to the
expenses of B admissible in evidence? b) Is the offer by deceased is in dispute, prior and separate judicial
A's insurance carrier to pay for the declaration of heirship in a settlement of estate
injuries and damages of B admissible in proceedings is necessary; and 5) there is need for
evidence? publication as real
property is involved. As counsel for Jocelyn and her co- (c) BEST EVIDENCE RULE: This Rule is adopted
petitioners, argue against the objections of the spouses for the prevention of fraud and is declared to be essential
Ceres so as to convince the court to allow the partition. to the pure administration of justice. (Moran, Vol. 5, p. 12.)
Discuss each of the five (5) arguments briefly but If a party is in possession of such evidence and withholds
completely. (10%) it, the presumption naturally arises that the better
SUGGESTED ANSWER: evidence is withheld for fraudulent purposes. (Francisco.
(1) The baptismal certificate can show filiation or prove Rules of Court, vol. VII. Part I,
pedigree. It is one of the other means allowed under the pp, 121,122)
Rules of Court and special laws to show pedigree.
(Trinidad v. Court of Appeals, 289 SCRA 188 (d) An illegally obtained extrajudicial confession nullifies
[1998]; Heirs of ILgnacio Conti v. Court of Appeals, 300 the intrinsic validity of the confession and renders it
SCRA 345 [1998]). unreliable as evidence of the truth. (Moran, vol. 5, p. 257) it
is the fruit of a poisonous tree.
(2) Entries in the family bible may be received as
evidence of pedigree. (Sec. 40, Rule 130, Rules of Court). (e) The reason for the rule against the admission of an
offer of compromise in civil case as an admission of any
liability is that parties are encouraged to enter into
(3) The certification by the civil registrar of the non-
compromises. Courts should endeavor to persuade the
availability of records is needed to justify the
litigants in a civil case to agree upon some fair
presentation of secondary evidence, which is the
compromise. (Art. 2029, Civil Code). During pre-trial, courts
photocopy of the birth certificate of Jocelyn. (Heirs of
should direct the parties to consider the possibility of an
Ignacio Conti v. Court of Appeals, supra.)
amicable settlement. (Sec. 1[a] of
former Rule 20: Sec. 2 [a] of new Rule 16).
(4) Declaration of heirship in a settlement proceeding
is not necessary. It can be made in the ordinary action
Best Evidence Rule (1997)
for partition wherein the heirs are exercising the right
When A loaned a sum of money to B. A typed a single
pertaining to the decedent, their predecessor-ininterest,
copy of the promissory note, which they both signed A
to ask for partition as co-owners (Id.)
made two photo (xeroxed) copies of the promissory
note, giving one copy to B and retaining the other copy.
(5) Even if real property is involved, no publication is
A entrusted the typewritten copy to his counsel for
necessary, because what is sought is the mere segregation
safekeeping. The copy with A's counsel was destroyed
of Lindas share in the property. (Sec. 1 of
Rule 69; Id.)
when the law office was burned. a) In an action to collect
on the promissory note,
Admissibility; Rules of Evidence (1997)
Give the reasons underlying the adoption of the which is deemed to be the "original" copy for the
following rules of evidence: purpose of the "Best Evidence Rule"? b) Can the
(a) Dead Man Rule photocopies in the hands of the parties be considered
(b) Parol Evidence Rule "duplicate original copies"? c) As counsel for A, how
(c) Best Evidence Rule will you prove the loan given to A and B?
(d) The rule against the admission of illegally obtained
SUGGESTED ANSWER:
extrajudicial confession (a) The copy that was signed and lost is the only
(e) The rule against the admission of an offer of "original" copy for purposes of the Best Evidence Rule.
compromise in civil cases (Sec. 4 [b] of Rule 130).
SUGGESTED ANSWER:
The reasons behind the following rules are as follows:
(a) DEAD MAN RULE: if death has closed the lips of (b) No, They are not duplicate original copies because
one party, the policy of the law is to close the lips of the there are photocopies which were not signed ( Mahilum v.
other. (Goni v. Court ofAppeals, L-77434. September 23, Court of Appeals, 17 SCRA 482), They constitute secondary
1986, 144 SCRA 222). This is to prevent the temptation to evidence. (Sec. 5 of Rule 130).
perjury because death has already sealed the lips of the
party. (c) The loan given by A to B may be proved by secondary
evidence through the xeroxed copies of the promissory
(b) PAROL EVIDENCE RULE: It is designed to note. The rules provide that when the original document
give certainty to a transaction which has been reduced is lost or destroyed, or cannot be produced in court, the
to writing, because written evidence is much more offerer, upon proof of its execution or existence and the
certain and accurate than that which rests on fleeting cause of its unavailability without bad faith on his part,
memory only. (Francisco, Rules of Court Vol. VII, Part I. p. 154) may prove its contents by a copy, or by a recital of its
contents in some authentic document, or by the

Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 54 of 66 that it will be
testimony of witnesses in the order stated. (Sec. 5 of Rule repudiated. (Molina vs. People. 259 SCRA 138.)
130).
Burden of Proof vs. Burden of Evidence (2004) Facts; Legislative Facts vs. Adjudicative Facts (2004)
Distinguish Burden of proof and burden of evidence. Legislative facts and adjudicative facts.
Burden of proof is the duty of a party to present evidence Legislative facts refer to facts mentioned in a statute or
on the facts in issue necessary to establish his claim or in an explanatory note, while adjudicative facts are facts
defense by the amount of evidence required by law. (Sec. 1 found in a court decision.
of Rule 131), while burden of evidence is the duty of a party
to go forward with the evidence to overthrow prima facie Hearsay Evidence (2002)
evidence established against him. (Bautista v. Sarmiento, 138 Romeo is sued for damages for injuries suffered by the
SCRA 587 [1985]). plaintiff in a vehicular accident. Julieta, a witness in
court, testifies that Romeo told her (Julieta) that he
(Romeo) heard Antonio, a witness to the accident, give
Character Evidence (2002) an excited account of the accident immediately after its
D was prosecuted for homicide for allegedly beating up occurrence. Is Julietas testimony admissible against
V to death with an iron pipe. Romeo over proper and timely objection? Why? (5%)
A. May the prosecution introduce evidence that V
had a good reputation for peacefulness and non- SUGGESTED ANSWER:
violence? Why? (2%) No, Julietas testimony is not admissible against Romeo,
B. May D introduce evidence of specific violent because while the excited account of Antonio, a witness
acts by V? Why? (3%) to the accident, was told to Romeo, it was only Romeo
SUGGESTED ANSWER: who told Julieta about it, which makes it hearsay.
A. The prosecution may introduce evidence of the good
or even bad moral character of the victim if it tends to
establish in any reasonable degree the probability or Hearsay Evidence vs. Opinion Evidence (2004)
improbability of the offense charged. [Rule 130, sec. 51 a Hearsay evidence and opinion evidence.
(3)]. In this case, the evidence is not relevant. SUGGESTED ANSWER:
Hearsay evidence consists of testimony that is not based
on personal knowledge of the person testifying, (see Sec.
B. Yes, D may introduce evidence of specific violent 36, Rule 130), while opinion evidence is expert evidence
acts by V. Evidence that one did or did not do a certain based on the personal knowledge skill, experience or
thing at one time is not admissible to prove that he did training of the person testifying (Sec. 49, Id.) and evidence
or did not do the same or a similar thing at another time; of an ordinary witness on limited matters (Sec. 50, Id.).
but it may be received to prove a specific intent or
knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like. (Rule 130, sec. 34). Hearsay; Exception; Dead Man Statute (2001)
Maximo filed an action against Pedro, the administrator
of the estate of deceased Juan, for the recovery of a car
Confession; Affidavit of Recantation (1998) which is part of the latters estate. During the trial,
1 If the accused on the witness stand repeats his earlierMaximo presented witness Mariano who testified that he
uncounseled extrajudicial confession implicating his co-accusedwas present when Maximo and Juan agreed that the latter
in the crime charged, is that testimony admissible in evidencewould pay a rental of P20,000.00 for the use of Maximos
against the latter? [3%] car for one month after which Juan should immediately
2 What is the probative value of a witness' Affidavit ofreturn the car to Maximo. Pedro objected to the
Recantation? [2%] admission of Marianos testimony. If you were the judge,
would you sustain Pedros objection? Why? (5%)
SUGGESTED ANSWER:
1. Yes. The accused can testify by repeating his earlier
uncounseled extrajudicial confession, because he can beSUGGESTED ANSWER:
subjected to cross-examination. No, the testimony is admissible in evidence because
2. On the probative value of an affidavit of recantation,witness Mariano who testified as to what Maximo and
courts look with disfavor upon recantations because theyJuan, the deceased person agreed upon, is not
can easily be secured from witnesses, usually throughdisqualified to testify on the agreement. Those
intimidation or for a monetary consideration, Recanteddisqualified are parties or assignors of parties to a case,
testimony is exceedingly unreliable. There is always theor persons in whose behalf a case is prosecuted, against
probability the administrator or Juans estate, upon a
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 55 of 66 Evidence, expressly
claim or demand against his estate as to any matter of provides that a witness may testify on his impressions of the
fact occurring before Juans death. (Sec. 23 of Rule 130) emotion, behavior, condition or appearance of a person.
Hearsay; Exception; Dying Declaration (1998)

Requisites of Dying Declaration. [2%) Hearsay; Exceptions (1999)
SUGGESTED ANSWER: a) Define hearsay evidence? (2%) b) What are the
The requisites for the admissibility of a dying declaration exceptions to the hearsay rule? (2%)
are: (a) the declaration is made by the deceased under the SUGGESTED ANSWER:
consciousness of his impending death; (b) the deceased was . Hearsay evidence may be defined as evidence
at the time competent as a witness; (c) the declaration that consists of testimony not coming from personal
concerns the cause and surrounding circumstances of the knowledge (Sec. 36, Rule 130, Rules of Court). Hearsay testimony
declarant's death; and (d) the declaration is offered in a is the testimony of a witness as to what he has heard
(criminal) case wherein the declarant's death is the subject other persons say about the facts in issue.
of inquiry. . The exceptions to the hearsay rule are:
(People vs. Santos, 270 SCRA 650.) dying declaration, declaration against interest, act or
ALTERNATIVE ANSWER: declaration about pedigree, family reputation or tradition
The declaration of a dying person, made under the regarding pedigree, common reputation, part of the res
consciousness of an impending death, may be received gestae, entries in the course of business, entries in official
in any case wherein his death is the subject of Inquiry, as records, commercial lists and the like, learned treatises,
evidence of the cause and surrounding circumstances of and testimony or deposition at a former proceeding. (37
such death. (Sec. 37 of Rule 13O.) to 47, Rule 13O, Rules of Court)
Hearsay; Exception; Res Gestae; Opinion of Ordinary

Witness (2005) Hearsay; Exceptions; Dying Declaration (1999)
Dencio barged into the house of Marcela, tied her to a chair
The accused was charged with robbery and homicide.
and robbed her of assorted pieces of jewelry and money.
Dencio then brought Candida, Marcela's maid, to a bedroom
The victim suffered several stab wounds. It appears that
where he raped her. Marcela could hear Candida crying and eleven (11) hours after the crime, while the victim was
pleading: "Huwag! Maawa ka sa akin!" After raping Candida, being brought to the hospital in a jeep, with his brother
Dencio fled from the house with the loot. Candida then untied and a policeman as companions, the victim was asked
Marcela and rushed to the police station about a kilometer certain questions which he answered, pointing to the
away and told Police Officer Roberto Maawa that Dencio had accused as his assailant. His answers were put down in
barged into the house of Marcela, tied the latter to a chair and writing, but since he was a in a critical condition, his
robbed her of her jewelry and money. Candida also related to brother and the policeman signed the statement. Is the
the police officer that despite her pleas, Dencio had raped her. statement admissible as a dying declaration? Explain.
The policeman noticed that Candida was hysterical and on the
verge of collapse. Dencio was charged with robbery with rape.
(2%)
SUGGESTED ANSWER:
During the trial, Candida can no longer be located. (8%)
Yes. The statement is admissible as a dying declaration if
the victim subsequently died and his answers were made
under the consciousness of impending death (Sec. 37 of Rule
130). The fact that he did not sign the statement point to
the accused as his assailant, because he was in critical
a) If the prosecution presents Police Officer Roberto Maawa condition, does not affect its admissibility as a dying
to testify on what Candida had told him, would such declaration. A dying declaration need not be in writing
testimony of the policeman be hearsay? Explain. (People v.
SUGGESTED ANSWER:
No. The testimony of the policeman is not hearsay. It is Viovicente, 286 SCRA 1)
part of the res gestae. It is also an independently relevant
statement. The police officer testified of his own Hearsay; Inapplicable (2003)
personal knowledge, not to the truth of Candida's X was charged with robbery. On the strength of a
statement, i.e., that she told him, despite her pleas, warrant of arrest issued by the court, X was arrested by
Dencio had raped her. (People v. Gaddi,G.R. police operatives. They seized from his person a
No. 74065, February 27,1989)
handgun. A charge for illegal possession of firearm was
also filed against him. In a press conference called by the
b) If the police officer will testify that he noticed Candida to police, X admitted that he had robbed the victim of
be hysterical and on the verge of collapse, would such jewelry valued at P500,000.00.
testimony be considered as opinion, hence, inadmissible?
Explain. The robbery and illegal possession of firearm cases were
SUGGESTED ANSWER:
tried jointly. The prosecution presented in evidence a
No, it cannot be considered as opinion, because he was
newspaper clipping of the report to the reporter who
testifying on what he actually observed. The last
was present during the press conference
paragraph of Sec. 50, Rule 130, Revised Rules of
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 56 of 66 The RTC may not
stating that X admitted the robbery. It likewise presented generally take judicial notice of foreign laws (In re Estate of
a certification of the PNP Firearms and Explosive Johnson, G.R. No. 12767, November 16, 1918; Fluemer v. Hix, G.R.
Office attesting that the accused had no license to carry No. 32636, March 17, 1930), which must be proved like any other
any firearm. The certifying officer, however, was not matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718, March 19,
presented as a witness. Both pieces of evidence were 1910) except in a few instances, the court in the exercise of its
objected to by the defense. (6%) a) Is the newspaper sound judicial discretion, may take notice of foreign laws when
clipping admissible in evidence Philippine courts are evidently familiar with them, such as the
against X? b) Is the certification of the PNP Firearm and Spanish Civil Code, which had taken effect in the Philippines,
and other allied legislation. (Pardo v. Republic, G.R. No. L2248
Explosive Office without the certifying officer January 23, 1950; Delgado v. Republic, G.R. No. L2546, January
.28, 1950)
testifying on it admissible in evidence against X?
SUGGESTED ANSWER:
(a) Yes, the newspaper clipping is admissible in evidence
against X. regardless of the truth or falsity of a statement,
the hearsay rule does not apply and the statement may be 4. Rules and Regulations issued by quasi-
shown where the fact that it is made is relevant. Evidence judicial bodies implementing statutes;
as to the making of such statement is not secondary but SUGGESTED ANSWER:
primary, for the statement itself may constitute a fact in The RTC may take judicial notice of Rules and Regulations
issue or be circumstantially relevant as to the existence of issued by quasi-judicial bodies implementing statutes,
such fact. (Gotesco Investment Corporation vs. Chatto, 210 because they are capable of unquestionable demonstration
(Chattamal v. Collector of Customs, G.R. No. 16347,
November 3,1920), unless the law itself considers such rules
SCRA 18 [1992])
as an integral part of the statute, in which case judicial
(b) Yes, the certification is admissible in evidence against notice becomes mandatory.
X because a written statement signed by an officer having
the custody of an official record or by his deputy that
after diligent search no record or entry of a specified 5. Rape may be committed even in public
tenor is found to exist in the records of his office, places.
SUGGESTED ANSWER:
accompanied by a certificate as above provided, is
The RTC may take judicial notice of the fact that rape
admissible as evidence that the records of his office
may be committed even in public places. The "public
contain no such record or entry.
(Sec. 28 of Rule 132).
setting" of the rape is not an indication of consent.
(People v. Tongson, G.R. No. 91261, February 18, 1991)
The Supreme Court has taken judicial notice of the fact
Judicial Notice; Evidence (2005)
that a man overcome by perversity and beastly passion
Explain briefly whether the RTC may, motu proprio, take
chooses neither the time, place, occasion nor victim.
judicial notice of: (5%) (People v, Barcelona, G.R. No. 82589, October 31,
1. The street name of methamphetamine 1990)
hydro-chloride is shabu.
SUGGESTED ANSWER:
The RTC may motu proprio take judicial notice of the Judicial Notice; Evidence; Foreign Law (1997)
street name of methamphetamine hydrochloride is a) Give three instances when a Philippine court can
shabu, considering the chemical composition of shabu. take judicial notice of a foreign law. b) How do you
(People v. Macasling, GM, No. 90342, May 27, prove a written foreign law? c) Suppose a foreign law
was pleaded as part of the
1993)
defense of defendant but no evidence was presented
2. Ordinances approved by municipalities to prove the existence of said law, what is the
under its territorial jurisdiction; presumption to be taken by the court as to the
SUGGESTED ANSWER: wordings of said law"?
In the absence of statutory authority, the RTC may not take SUGGESTED ANSWER:
judicial notice of ordinances approved by municipalities (a) The three instances when a Philippine court can take
under their territorial jurisdiction, except on appeal from judicial notice of a foreign law are: (1) when the
the municipal trial courts, which took judicial notice of the Philippine courts are evidently familiar with the foreign
ordinance in question. (U.S. v. Blanco, G.R, No. 12435, law (Moran. Vol. 5, p. 34, 1980 edition); (2) when the foreign
November law refers to the law of nations (Sec. 1 of Rule 129) and (3)
9,1917; U.S. v. Hernandez, G.R. No. 9699, August 26, 1915) when it refers to a published treatise, periodical or
pamphlet on the subject of law if the court takes judicial
notice of the fact that the writer thereof is recognized in
3. Foreign laws; his profession or calling as expert on the subject (Sec. 46.
SUGGESTED ANSWER: Rule 130).
(b) A written foreign law may be evidenced by an official
publication thereof or by a copy attested by the officer having Offer of Evidence; res inter alios acta (2003)
the legal custody of the record, or by his deputy, and X and Y were charged with murder. Upon application of
accompanied. If the record is not kept in the Philippines, with the prosecution, Y was discharged from the Information
a certificate that such officer has the custody, if the office in
to be utilized as a state witness. The prosecutor presented
which the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or legation, consul Y as witness but forgot to state the purpose of his
general, consul, vice-consul, or consular agent or by any officer testimony much less offer it in evidence. Y testified that
in the foreign service of the Philippines stationed in the foreign he and X conspired to kill the victim but it was X who
country in which the record is kept, and authenticated by the actually shot the victim. The testimony of Y was the only
seal of his office (Sec. 24, Rule 132, Zalamea v. CA, 228 material evidence establishing the guilt of X. Y was
thoroughly cross-examined by the defense counsel. After
the prosecution rested its case, the defense filed a motion
for demurrer to evidence based on the following
SCRA 23). grounds.
(c) The presumption is that the wordings of the foreign

law are the same as the local law. (Northwest (a) The testimony of Y should be excluded because its
Orient Airlines v. Court of Appeals, 241 SCRA 192; Moran, purpose was not initially stated and it was not formally
Vol. 6. page 34, 1980 edition; Lim v. Collector of Customs, offered in evidence as required by Section 34, Rule 132
36 Phil. 472). This is known as the PROCESSUAL of the Revised Rules of Evidence; and
PRESUMPTION. (b) Ys testimony is not admissible against X pursuant
to the rule on res inter alios acta. Rule on the motion
Memorandum (1996)
for demurrer to evidence on the above grounds. (6%)
X states on direct examination that he once knew the
facts being asked but he cannot recall them now. When SUGGESTED ANSWER:
handed a written record of the facts he testifies that the The demurrer to the evidence should be denied because:
facts are correctly stated, but that he has never seen the a) The testimony of Y should not be excluded
writing before. Is the writing admissible as past
recollection recorded? Explain, because the defense counsel did not object to his
testimony despite the fact that the prosecutor
SUGGESTED ANSWER: forgot to state its purpose or offer it in evidence.
No, because for the written record to be admissible as Moreover, the defense counsel thoroughly cross-
past recollection recorded. It must have been written or examined Y and thus waived the objection.
recorded by X or under his direction at the time when
the fact occurred, or immediately thereafter, or at any b) The res inter alios acta rule does not apply because
other time when the fact was fresh in his memory and he Y testified in open court and was subjected to cross
knew that the same was correctly written or recorded. (Sec. examination.
16 of Rule 132) But in this case X has never seen the writing
before. Offer of Evidence; Testimonial & Documentary (1994)
What is the difference between an offer of testimonial
Offer of Evidence (1997) evidence and an offer of documentary evidence?
A trial court cannot take into consideration in deciding a
case an evidence that has not been "formally offered". SUGGESTED ANSWER:
When are the following pieces of evidence formally An offer of testimonial evidence is made at the time the
offered? witness is called to testify, while an offer of documentary
(a) Testimonial evidence evidence is made after the presentation of a partys
(b) Documentary evidence testimonial evidence. (Sec. 35, Rule 132).
(c) Object evidence
SUGGESTED ANSWER: Opinion Rule (1994)
(a) Testimonial evidence is formally offered at the At Nolans trial for possession and use of the prohibited
time the witness is called to testify. (Rule 132. Sec. 35, first drug, known as shabu:, his girlfriend Kim, testified that
par.).
on a particular day, he would see Nolan very prim and
proper, alert and sharp, but that three days after, he
(b) Documentary evidence is formally offered
after would appear haggard, tired and overly nervous at the
the presentation of the testimonial evidence. (Rule 132,
Sec. 35, second par.). slightest sound he would hear. Nolan objects to the
admissibility of Kims testimony on the ground that Kim
(c) The same is true with object evidence. It is also merely stated her opinion without having been first
offered after the presentation of the testimonial qualified as expert witness. Should you, as judge, exclude
evidence. the testimony of Kim?
Remedial Law Bar Examination Q & A (1997-2006) by:
[email protected] Page 58 of 66
SUGGESTED ANSWER: PREPONDERANCE OF EVIDENCE means that the
No. The testimony of Kim should not be excluded. evidence as a whole adduced by one side is superior to that of
Even though Kim is not an expert witness, Kim may the other. This is applicable in civil cases. (Sec. 1 of Rule 133;
testify on her impressions of the emotion, behavior, Municipality of Moncada v. Cajuigan, 21 Phil, 184 [1912]).
condition or appearance of a person. (Sec. 50, last par., Rule
130).
SUBSTANTIAL EVIDENCE is that amount of
Parol Evidence Rule (2001) relevant evidence which a reasonable mind might accept
Pedro filed a complaint against Lucio for the recovery as adequate to justify a conclusion. This is applicable in
of a sum of money based on a promissory note executed case filed before administrative or quasi-judicial bodies.
by Lucio. In his complaint, Pedro alleged that although (Sec. 5 of Rule 133)
the promissory note says that it is payable within 120
days, the truth is that the note is payable immediately Privilege Communication (1998)
after 90 days but that if Pedro is willing, he may, upon C is the child of the spouses H and W. H sued his wife
request of Lucio give the latter up to 120 days to pay the W for judicial declaration of nullity of marriage under
note. During the hearing, Pedro testified that the truth Article 36 of the Family Code. In the trial, the following
is that the agreement between him and Lucio is for the testified over the objection of W: C, H and D, a doctor
latter to pay immediately after ninety days time. Also, of medicine who used to treat W. Rule on W's
since the original note was with Lucio and the latter objections which are the following:
would not surrender to Pedro the original note which 1. H cannot testify against her because of the rule on
Lucio kept in a place about one days trip from where he marital privilege; [1%]
received the notice to produce the note and in spite of 2. C cannot testify against her because of the doctrine
such notice to produce the same within six hours from on parental privilege; and [2%]
receipt of such notice, Lucio failed to do so. Pedro 3. D cannot testify against her because of the doctrine
presented a copy of the note which was executed at the of privileged communication between patient and
same time as the original and with identical contents. a) physician. [2%]
Over the objection of Lucio, will Pedro be SUGGESTED ANSWER:
1. The rule of marital privilege cannot be invoked in the
annulment case under Rule 36 of the Family Code
allowed to testify as to the true agreement or because it is a civil case filed by one against the other,
contents of the promissory note? Why? (2%) b) Over (Sec. 22 , Rule 130. Rules of Court.)
the objection of Lucio, can Pedro present a
copy of the promissory note and have it admitted 2. The doctrine of parental privilege cannot likewise be
as valid evidence in his favor? Why? (3%) invoked by W as against the testimony of C, their child.
SUGGESTED ANSWER: C may not be compelled to testify but is free to testify
a) Yes, because Pedro has alleged in his complaint that against her. (Sec. 25. Rule 130. Rules of Court; Art. 215, Family
the promissory note does not express the true intent and Code.)
agreement of the parties. This is an exception to the
parol evidence rule. [Sec. 9(b) of Rule 130, Rules of Court] 3. D, as a doctor who used to treat W, is disqualified to
testify against W over her objection as to any advice or
treatment given by him or any information which he
b) Yes, the copy in the possession of Pedro is a duplicate may have acquired in his professional capacity. (Sec. 24 [c],
original and with identical contents. [Sec. 4(b) of Rule 130]. Rule 130. Rules of Court.)
Moreover, the failure of Lucio to produce the original ALTERNATIVE ANSWER:
of the note is excusable because he was not given If the doctor's testimony is pursuant to the requirement
reasonable notice, as requirement under the Rules of establishing the psychological incapacity of W, and he
before secondary evidence may be presented. is the expert called upon to testify for the purpose, then
(Sec. 6 of Rule 130, Rules of Court) it should be allowed.
(Republic vs. Court of Appeals and Molina, 26S SCRA 198.)
Note: The promissory note is an actionable document and the
original or a copy thereof should have been attached to the
complaint. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). In such a Privilege Communication; Marital Privilege (1989)
case, the genuineness and due execution of the note, if not Ody sued spouses Cesar and Baby for a sum of money
denied under oath, would be deemed admitted. and damages. At the trial, Ody called Baby as his first
(Sec. 8 of Rule 9, 1997 Rules of Civil Procedure) witness. Baby objected, joined by Cesar, on the ground
that she may not be compelled to testify against her
Preponderance vs. Substantial Evidence (2003) husband. Ody insisted and contended that after all, she
Distinguish preponderance of evidence from substantial would just be questioned about a conference they had
evidence. 4% with the barangay captain, a
SUGGESTED ANSWER:
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 59 of 66 being used as a
matter which is not confidential in nature. The trial center for sex tourism and child trafficking. The defense
court ruled in favor of Ody. Was the ruling proper? Will counsel for XYZ objected to the testimony of ABC at the trial
your answer be the same if the matters to be testified on of the child prostitution case and the introduction of the
were known to Baby or acquired by her prior to her affidavits she executed against her husband as a violation of
marriage to Cesar? Explain. espousal confidentiality and marital privilege rule. It turned out
SUGGESTED ANSWER: that DEF, the minor daughter of ABC by her first husband
No. Under the Rules on Evidence, a wife cannot be who was a Filipino, was molested by XYZ earlier. Thus, ABC
examined for or against her husband without his had filed for legal separation from XYZ since last year. May
consent, except in civil cases by one against the other, the court admit the testimony and affidavits of the wife, ABC,
or in a criminal case for a crime committed by one against her husband, XYZ, in the criminal case involving child
against the other. Since the case was filed by Ody against prostitution? Reason. (5%)
the spouses Cesar and Baby, Baby cannot be compelled
to testify for or against Cesar without his consent.
(Lezama vs. Rodriguez, 23 SCRA 1166).
The answer would be the same if the matters to be SUGGESTED ANSWER:

testified on were known to Baby or acquired by her prior Yes. The court may admit the testimony and affidavits of the
to her marriage to Cesar, because the marital wife against her husband in the criminal case where it involves
disqualification rule may be invoked with respect to child prostitution of the wife's daughter. It is not covered by
testimony on any fact. It is immaterial whether such the marital privilege rule. One exception thereof is where the
crime is committed by one against the other or the latter's
matters were known to Baby before or after her
direct descendants or ascendants. (Sec. 22, Rule 130). A crime by
marriage to Cesar. the husband against the daughter is a crime against the wife
and directly attacks or vitally impairs the conjugal relation.
Privilege Communication; Marital Privilege (2000) (Ordono v. Daquigan, 62
Vida and Romeo are legally married. Romeo is charged
to court with the crime of serious physical injuries
committed against Selmo, son of Vida, stepson of SCRA 270 [1975]).
Romeo. Vida witnessed the infliction of the injuries on
Selmo by Romeo. The public prosecutor called Vida to Privilege Communication; Marital Privilege (2006)
the witness stand and offered her testimony as an Leticia was estranged from her husband Paul for more
eyewitness. Counsel for Romeo objected on the ground than a year due to his suspicion that she was having an
of the marital disqualification rule under the Rules of affair with Manuel their neighbor. She was temporarily
Court. a) Is the objection valid? (3%) b) Will your answer living with her sister in Pasig City. For unknown reasons,
be the same if Vidas testimony the house of Leticia's sister was burned, killing the latter.
Leticia survived. She saw her husband in the vicinity
is offered in a civil case for recovery of personal during the incident. Later he was charged with arson in
property filed by Selmo against Romeo? (2%) an Information filed with the Regional Trial Court, Pasig
SUGGESTED ANSWER: City. During the trial, the prosecutor called Leticia to the
(a) No. While neither the husband nor the wife may witness stand and offered her testimony to prove that her
testify for or against the other without the consent of husband committed arson. Can Leticia testify over the
the affected spouse, one exception is if the testimony of objection of her husband on the ground of marital
the spouse is in a criminal case for a crime committed privilege? (5%)
by one against the other or the latters direct descendants
or ascendants. (Sec, 22, Rule 130). The case falls under this ALTERNATIVE ANSWER:
exception because Selma is the direct descendant of the No, Leticia cannot testify over the objection of her
spouse Vide. husband, not under marital privilege which is inapplicable
and which can be waived, but she would be barred under
(b) No. The marital disqualification rule applies this Sec. 22 of Rule 130, which prohibits her from testifying and
time. The exception provided by the rules is in a civil which cannot be waived
case by one spouse against the other. The case here (Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005).
ALTERNATIVE ANSWER:
involves a case by Selmo for the recovery of personal
Yes, Leticia may testify over the objection of her
property against Vidas spouse, Romeo.
husband. The disqualification of a witness by reason of
marriage under Sec. 22, Rule 130 of the Revised Rules of
Privilege Communication; Marital Privilege (2004)
Court has its exceptions as where the marital relations
XYZ, an alien, was criminally charged of promoting and
are so strained that there is no more harmony to be
facilitating child prostitution and other sexual abuses
preserved. The acts of Paul eradicate all major aspects of
under Rep. Act No. 7610. The principal witness against
marital life. On the other hand, the State has an interest
him was his Filipina wife, ABC. Earlier, she had
in punishing the guilty and
complained that XYZ's hotel was
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 60 of 66 Witness;
exonerating the innocent, and must have the right to Examination of a Child Witness; via Live-Link TV (2005) When
offer the testimony of Leticia over the objection of her may the trial court order that the testimony of a child be taken
husband (Alvarez v. Ramirez, G.R. No. 143439, by live-link television? Explain.
October 14, 2005).
SUGGESTED ANSWER:
Remedy; Lost Documents; Secondary Evidence (1992) The testimony of a child may be taken by live-link
Ajax Power Corporation, a utility company, sued in the television if there is a substantial likelihood that the child
RTC to enforce a supposed right of way over a property would suffer trauma from testifying in the presence of
owned by Simplicio. At the ensuing trial, Ajax presented the accused, his counsel or the prosecutor as the case may
its retired field auditor who testified that he know for a be. The trauma must of a kind which would impair the
fact that a certain sum of money was periodically paid completeness or truthfulness of the testimony of the
to Simplicio for some time as consideration for a right child. (See Sec. 25,
of way pursuant to a written contract. The original Rule on Examination of a Child Witness).
contract was not presented. Instead, a purported copy,
identified by the retired field auditor as such, was Witness; Examination of Witnesses (1997)
formally offered as part of his testimony. Rejected by a) Aside from asking a witness to explain and
the trial court, it was finally made the subject of an offer supplement his answer in the cross-examination, can the
of proof by Ajax. proponent ask in re-direct examination questions on
matters not dealt with during cross-examination?
Can Ajax validly claim that it had sufficiently met its
burden of proving the existence of the contract b) Aside from asking the witness on matters stated
establishing its right of way? Explain, in his re-direct examination, can the opponent in his re-
SUGGESTED ANSWER: cross-examination ask questions on matters not dealt
No. Ajax had not sufficiently met the burden of proving with during the re-direct?
the existence of the written contract because. It had not c) After plaintiff has formally submitted his
laid the basis for the admission of a purported copy evidence, he realized that he had forgotten to present
thereof as secondary evidence. Ajax should have first what he considered an important evidence. Can he recall
proven the execution of the original document and its a witness?
loss or destruction. (Sec. 5 of Rule 130) SUGGESTED ANSWER:
(a) Yes, on redirect examination, questions on matters
Testimony; Independent Relevant Statement (1999) not dealt with during the cross-examination may be
A overheard B call X a thief. In an action for defamation allowed by the court in its discretion. (Sec. 7 of Rule 132).
filed by X against B, is the testimony of A offered to
prove the fact of utterance i.e., that B called X a thief, (b) Yes, the opponent in his re-cross-examination may
admissible in evidence? Explain. (2%) also ask questions on such other matters as may be
allowed by the court in its discretion. (Sec. 8. Rule 132).
SUGGESTED ANSWER:
Yes. The testimony of A who overheard B call X a thief
is admissible in evidence as an independently relevant (c) Yes, after formally submitting his evidence, the
statement. It is offered in evidence only to prove the tenor plaintiff can recall a witness with leave of court. The
thereof, not to prove the truth of the facts asserted court may grant or withhold leave in its discretion as the
therein. Independently relevant statements include interests of justice may require. (Sec. 9. Rule 132).
statements which are on the very facts in issue or those
which are circumstantial evidence thereof. The hearsay Witness; Examination of Witnesses (2002)
rule does not apply. Is this question on direct examination objectionable:
(See People vs. Gaddi, 170 SCRA 649) What happened on July 12, 1999? Why? (2%)
SUGGESTED ANSWER:
Witness; Competency of the Witness vs. Credibility of the The question is objectionable because it has no basis,
Witness (2004) unless before the question is asked the proper basis is
Distinguish Competency of the witness and credibility of laid.
the witness.
SUGGESTED ANSWER: Witness; Utilized as State Witness; Procedure (2006)
Competency of the witness refers to a witness who can As counsel of an accused charged with homicide, you
perceive, and perceiving, can make known his are convinced that he can be utilized as a state witness.
perception to others (Sec. 20 of Rule 130), while credibility What procedure will you take? (2.5%)
of the witness refers to a witness whose testimony is SUGGESTED ANSWER:
believable. As counsel of an accused charged with homicide, the
procedure that can be followed for the accused to be
utilized as a state witness is to ask the Prosecutor to
recommend that the accused be made a state witness.
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 61 of 66 stipulation in a
It is the Prosecutor who must recommend and move for pending action for partition and shall file a bond with the
the acceptance of the accused as a state witness. The register of deeds in an amount equivalent to the value of the
accused may also apply under the Witness Protection personal property involved as certified to under oath by the
Program. parties concerned. The fact of extra-judicial settlement shall
be published in a newspaper of general circulation once a
week for three consecutive weeks in the province. (Sec. 1, Rule
74, Rules of Court)
SPECIAL PROCEEDINGS
Cancellation or Correction; Entries Civil Registry (2005)
Helen is the daughter of Eliza, a Filipina, and Tony, a Habeas Corpus (1993)
Chinese, who is married to another woman living in Roxanne, a widow, filed a petition for habeas corpus
China. Her birth certificate indicates that Helen is the with the Court of Appeals against Major Amor who is
legitimate child of Tony and Eliza and that she is a allegedly detaining her 18-year old son Bong without
Chinese citizen. Helen wants her birth certificate authority of the law.
corrected by changing her filiation from "legitimate" to
"illegitimate" and her citizenship from "Chinese" to After Major Amor had a filed a return alleging the cause
"Filipino" because her parents were not married. What of detention of Bong, the Court of Appeals promulgated
petition should Helen file and what procedural a resolution remanding the case to the RTC for a full-
requirements must be observed? Explain. (5%) blown trial due to the conflicting facts presented by the
SUGGESTED ANSWER: parties in their pleadings. In directing the remand, the
A petition to change the record of birth by changing the court of Appeals relied on Sec.9(1), in relation to Sec. 21
filiation from "legitimate" to "illegitimate" and of BP 129 conferring upon said Court the authority to
petitioner's citizenship from "Chinese" to "Filipino" try and decide habeas corpus cases concurrently with the
because her parents were not married, does not involve a RTCs. Did the Court of Appeals act correctly in
simple summary correction, which could otherwise be remanding the petition to the RTC? Why?
done under the authority of R.A. No. 9048. A petition
has to be filed in a proceeding under Rule 108 of the SUGGESTED ANSWER:
Rules of Court, which has now been interpreted to be No, because while the CA has original jurisdiction over
adversarial in nature. (Republic v. Valencia, G.R. No. L- habeas corpus concurrent with the RTCs, it has no
32181, March 5, 1986) Procedural requirements include: (a) authority for remanding to the latter original actions
filing a verified petition; (b) naming as parties all persons filed with the former. On the contrary, the CA is
who have or claim any interest which would be affected; specifically given the power to receive evidence and
(c) issuance of an order fixing the time and place of perform any and all acts necessary to resolve factual
hearing; (d) giving reasonable notice to the parties named issues raised in cases falling within its original
in the petition; and (e) publication of the order once a jurisdiction.
week for three consecutive seeks in a newspaper of ALTERNATIVE ANSWER:
general circulation. (Rule 108, Rules of Court) Yes, because there is no prohibition in the law against a
superior court referring a case to a lower court having
concurrent jurisdiction. The Supreme Court has
Escheat Proceedings (2002) referred to the CA or the RTC cases falling within their
Suppose the property of D was declared escheated on concurrent jurisdiction.
July 1, 1990 in escheat proceedings brought by the
Solicitor General. Now, X, who claims to be an heir of Habeas Corpus (1998)
D, filed an action to recover the escheated property. Is A was arrested on the strength of a warrant of arrest
the action viable? Why? (2%) issued by the RTC in connection with an Information
SUGGESTED ANSWER: for Homicide. W, the live-in partner of A filed a petition
No, the action is not viable. The action to recover for habeas corpus against A's jailer and police
escheated property must be filed within five years from investigators with the Court of Appeals.
July 1, 1990 or be forever barred. (Rule 91, sec. 4).
1. Does W have the personality to file the petition for
Extra-judicial Settlement of Estate (2005) habeas
2. Is thecorpus?
petition[2%]
tenable? [3%]
Nestor died intestate in 2003, leaving no debts. How SUGGESTED ANSWER:
may his estate be settled by his heirs who are of legal 1. Yes. W, the live-in partner of A, has the personality
age and have legal capacity? Explain. (2%) to file the petition for habeas corpus because it may be
SUGGESTED ANSWER: filed by "some person in his behalf." (Sec. 3. Rule 102. Rules
If the decedent left no will and no debts, and the heirs of Court.)
are all of age, the parties may, without securing letters of
administration, divide the estate among themselves by
means of a public instrument or by
2. No. The petition is not tenable because the warrant (1) No, because since the claim of X was disallowed,
of arrest was issued by a court which had Jurisdiction to there is no amount against which to offset the claim of
issue it (Sec. 4, Rule 102 Rules of Court) Ds administrator.
Habeas Corpus (2003) (2) Yes, Ds administrator can prosecute the claim in an
Widow A and her two children, both girls, aged 8 and 12 independent proceeding since the claim of X was
years old, reside in Angeles City, Pampanga. A leaves her disallowed. If X had a valid claim and Ds administrator
two daughters in their house at night because she works did not allege any claim against X by way of offset, his
in a brothel as a prostitute. Realizing the danger to the failure to do so would bar his claim forever. (Rule 86, sec.
morals of these two girls, B, the father of the deceased 10).
husband of A, files a petition for habeas corpus against
A for the custody of the girls in the Family Court in Intestate Proceedings; Debts of the Estate (2002)
Angeles City. In said petition, B alleges that he is entitled A, B and C, the only heirs in Ds intestate proceedings,
to the custody of the two girls because their mother is submitted a project of partition to the partition, two lots
living a disgraceful life. The court issues the writ of were assigned to C, who immediately entered into the
habeas corpus. When A learns of the petition and the possession of the lots. Thereafter, C died and
writ, she brings her two children to Cebu City. At the proceedings for the settlement of his estate were filed in
expense of B the sheriff of the said Family Court goes the RTC-Quezon City. Ds administrator then filed a
to Cebu City and serves the writ on A. A files her motion in the probate court (RTC-Manila), praying that
comment on the petition raising the following defenses: one of the lots assigned to C in the project of partition
a) The enforcement of the writ of habeas corpus in be turned over to him to satisfy debts corresponding to
Cs portion. The motion was opposed by the
administrator of Cs estate. How should the RTC-Manila
Cebu City is illegal; and b) B has no personality to resolve the motion of Ds administrator? Explain. (3%)
institute the petition. 6% Resolve the petition in the
light of the above defenses of A. (6%) SUGGESTED ANSWER:
The motion of Ds administrator should be granted.
SUGGESTED ANSWER: The assignment of the two lots to C was premature
(a) The writ of habeas corpus issued by the Family Court in because the debts of the estate had not been fully paid.
Angeles City may not be legally enforced in Cebu City, [Rule 90, sec. 1; Reyes v. Barreto-Datu, 19 SCRA 85
because the writ is enforceable only within the judicial (1967)].
region to which the Family Court belongs, unlike the writ Judicial Settlement of Estate (2005)
granted by the Supreme Court or Court of Appeals which State the rule on venue in judicial settlement of estate
is enforceable anywhere in the Philippines. (Sec. 20 of of deceased persons. (2%)
SUGGESTED ANSWER:
If the decedent is an inhabitant of the Philippines at the
Rule on Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors. (A.M. No. 03-04-04-SC; see time of' his death, whether a citizen or an alien, the venue
also Sec. 4 of Rule 102, Rules of Court.) shall be in the RTC in the province in which he resides at
the time of his death, not in the place where he used to live.
(b) B, the father of the deceased husband of A, has the (Jao v. Court of Appeals,
personality to institute the petition for habeas corpus of G.R. No. 128314, May 29, 2002)
the two minor girls, because the grandparent has the right
of custody as against the mother A who is a prostitute. If he is an inhabitant, of a foreign country, the RTC of
(Sectioins 2 and 13, Id.) any province or city in which he had estate shall be the
venue. The court first taking cognizance of the case shall
Intestate Proceedings (2002) exercise jurisdiction to the exclusion of all other courts.
X filed a claim in the intestate proceedings of D. Ds When the marriage is dissolved by the death of the
administrator denied liability and filed a counterclaim husband or wife, the community property shall be
against X. Xs claim was disallowed. inventoried, administered and liquidated, and the debts
(1) Does the probate court still have jurisdiction to allow thereof paid, in the testate or intestate proceedings of the
the claim of Ds administrator by way of offset? Why? deceased spouse. If both spouses have died, the conjugal
(2%) partnership shall be liquidated in the testate or intestate
(2) Suppose Ds administrator did not allege any claim proceedings of either. (Sees. 1 and 2, Rule 73, Rules of
against X by way of offset, can Ds administrator Court)
prosecute the claim in an independent proceeding/ why/
(3%) Probate of Lost Wills (1999)
SUGGESTED ANSWER: What are the requisites in order that a lost or destroyed
Will may be allowed? (2%)
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 63 of 66 sound and disposing
A's Will was allowed by the Court. No appeal was taken mind, executed a last will and testament in English, a language
from its allowance. Thereafter, Y, who was interested in spoken and written by him proficiently. He disposed of his estate
the estate of A, discovered that the Will was not genuine consisting of a parcel of land in Makati City and cash deposit at the
City Bank in the sum of P 300 Million. He bequeathed P 50 Million
because A's signature was forged by X. A criminal
each to his 3 sons and P 150 Million to his wife. He devised a piece
action for forgery was instituted against X. May the of land worth P100 Million to Susan, his favorite daughter-inlaw. He
due execution of the Will be validly questioned in such named his best friend, Cancio Vidal, as executor of the will without
criminal action? (2%) bond. Is Cancio Vidal, after learning of Sergio's death, obliged to
file with the proper court a petition of probate of the latter's last
SUGGESTED ANSWER: will and testament? (2%)
a. In order that a lost or destroyed will may be allowed,
the following must be complied with:
1 the execution and validity of the same should be
established;
2 the will must have been in existence at the time of SUGGESTED ANSWER:
the death of the testator, or shown to have been Cancio Vidal is obliged to file a petition for probate and
fraudulently or accidentally destroyed in the lifetime of the for accepting or refusing the trust within the statutory
testator without his knowledge; and period of 20 days under Sec. 3, Rule 75, Rules of Court.
3 its provisions are clearly and distinctly proved by
at least two credible witnesses.
Supposing the original copy of the last will and tes-
(Sec. 6, Rule 76 of the Rules of Court) tament was lost, can Cancio compel Susan to produce
a copy in her possession to be submitted to the probate
SUGGESTED ANSWER: court. (2%)
b. No. The allowance of the will from which no appeal SUGGESTED ANSWER:
was taken is conclusive as to its due execution. (Sec. 1 of Yes, Cancio can compel Susan to produce the copy in
Rule 75.) Due execution includes a finding that the will is her possession. A person having custody of the will is
genuine and not a forgery. Accordingly, the due bound to deliver the same to the court of competent
execution of the will cannot again be questioned in a jurisdiction or to the executor, as provided in Sec. 2,
subsequent proceeding, not even in a criminal action for Rule 75, Rules of Court.
forgery of the will.
Can the probate court appoint the widow as executor of
Probate of Will (2003) the will? (2%)
SUGGESTED ANSWER:
A, a resident of Malolos, Bulacan, died leaving an estate
Yes, the probate court can appoint the widow as
located in Manila, worth P200,000.00. In what court,
executor of the will if the executor does not qualify, as
taking into consideration the nature of jurisdiction and
when he is incompetent, refuses the trust, or fails to give
of venue, should the probate proceeding on the estate of
bond (Sec. 6, Rule 78, Rules of Court).
A be instituted? (4%)
SUGGESTED ANSWER:
The probate proceeding on the estate of A should be Can the widow and her children settle extrajudicially
instituted in the Municipal Trial Court of Malolos, among themselves the estate of the deceased? (2%)
Bulacan which has jurisdiction, because the estate is
SUGGESTED ANSWER:
valued at P200,000.00, and is the court of proper venue No, the widow and her children cannot settle the estate
because A was a resident of Malolos at the time of his extrajudicially because of the existence of the Will. No
death. (Sec. 33 of BP 129 as amended by RA will shall pass either real or personal estate unless it is
7691; Sec. 1 of Rule 73). proved and allowed in the proper court
(Sec. 1, Rule 75, Rules of Court).
Probate of Will (2005)
After Lulu's death, her heirs brought her last will to a
Can the widow and her children initiate a separate
lawyer to obtain their respective shares in the estate. petition for partition of the estate pending the probate
The lawyer prepared a deed of partition distributing of the last will and testament by the court? (2%)
Lulu's estate in accordance with the terms of her will. Is
the act of the lawyer correct? Why? (2%) SUGGESTED ANSWER:
SUGGESTED ANSWER: No, the widow and her children cannot file a separate
No. No will, shall pass either real or personal estate petition for partition pending the probate of the will.
unless it is proved and allowed in the proper court. Partition is a mode of settlement of the estate (Sec. 1,
(Sec. 1, Rule 75, Rules of Court) Rule 75, Rules of Court).
Probate of Will (2006) Probate of Will; Mandatory Nature (2002)

Sergio Punzalan, Filipino, 50 years old, married, and
residing at Ayala Alabang Village, Muntinlupa City, of
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 64 of 66 appointed
What should the court do if, in the course of intestate administrator of said estate. S, the surviving spouse, opposed
proceedings, a will is found and it is submitted for the petition and A's application to be appointed the
probate? Explain. (2%) administrator on the ground that he was not the child of her
SUGGESTED ANSWER: deceased husband D. The court, however, appointed A as the
If a will is found in the course of intestate proceedings administrator of said estate. Subsequently, S, claiming to be the
and it is submitted for probate, the intestate proceedings sole heir of D, executed an Affidavit of Adjudication,
will be suspended until the will is probated. Upon the adjudicating unto herself the entire estate of her deceased
probate of the will, the intestate proceedings will be husband D. S then sold the entire estate to X. Was the
terminated. (Rule 82, sec. 1). appointment of A as administrator proper? [2%] Was the
action of S in adjudicating the entire estate of her late husband
Settlement of Estate (2001) to herself legal? [3%]
The rules on special proceedings ordinarily require that
the estate of the deceased should be judicially
administered thru an administrator or executor. What
are the two exceptions to said requirements? (5%) SUGGESTED ANSWER:
1. Yes, unless it is shown that the court gravely-abused its
SUGGESTED ANSWER: discretion in appointing the illegitimate child as
The two exceptions to the requirement are: administrator, instead of the spouse. While the spouse
(a) Where the decedent left no will and no debts and the enjoys preference, it appears that the spouse has neglected
heirs are all of age, or the minors are represented by their to apply for letters of administration within thirty (30) days
judicial or legal representatives duly authorized for the from the death of the decedent. (Sec. 6, Rule 78, Rules of
purpose, the parties may without securing letters of Court;
administration, divide the estate among themselves by Gaspay, Jr. vs. Court of Appeals. 238 SCRA 163.)
means of public instrument filed in the office of the ALTERNATIVE ANSWER:
register of deeds, or should they disagree, they may do so S, the surviving spouse, should have been appointed
in an ordinary action of partition. If there is only one heir, administratrix of the estate, in as much as she enjoys
he may adjudicate to himself the entire estate by means first preference in such appointment under the rules.
of an affidavit filed in the office of the register of deeds. (Sec. 6(a) of Rule 78, Rules of Court.)
The parties or the sole heir shall file simultaneously
SUGGESTED ANSWER:
abound with the register of deeds, in an amount
2. No. An affidavit of self-adjudication is allowed only if
equivalent to the value of the personal property as
the affiant is the sole heir of the. deceased. (Sec. 1, Rule 74,
certified to under oath by the parties and conditioned
Rules of Court). In this case, A also claims to be an heir.
upon the payment of any just claim that may be filed
Moreover, it is not legal because there is already a
later. The fact of the extrajudicial settlement or
pending juridical proceeding for the settlement of the
administration shall be published in a newspaper of
estate.
general circulation in the province once a week for three
consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)
Venue; Special Proceedings (1997)
Give the proper venue for the following special
proceedings: a) A petition to declare as escheated a
(b) Whenever the gross value of the estate of a deceased
parcel of land
person, whether he died testate or intestate, does not
owned by a resident of the Philippines who died
exceed ten thousand pesos, and that fact is made to
intestate and without heirs or persons entitled to
appear to the RTC having jurisdiction or the estate by
the property.
the petition of an interested person and upon hearing,
b) A petition for the appointment of an
which shall be held not less than one
administrator over the land and building left by an
(1) month nor more than three (3) months from the date
American citizen residing in California, who had been
of the last publication of a notice which shall be
declared an incompetent by an American court.
published once a week for three consecutive weeks in a
newspaper of general circulation in the province, and
c) A petition for the adoption of a minor residing
after such other notice to interested persons as the court
in Pampanga.
may direct, the court may proceed summarily, without SUGGESTED ANSWER:
the appointment of an executor or administrator, to (a) The venue of the escheat proceedings of a parcel of
settle the estate. (Sec. 2 of Rule 74, land in this case is the place where the deceased last
Rules of Court) resided. (Sec. 1. Rule 91, Rules of Court).
Settlement of Estate; Administrator (1998)
(b) The venue for the appointment of an administrator
A, claiming to be an illegitimate child of the deceased D, over land and building of an American citizen residing in
instituted an Intestate proceeding to settle the estate of California, declared Incompetent
the latter. He also prayed that he be
Remedial Law Bar Examination Q & A (1997-2006) by: [email protected] Page 65 of 66 composed of
by an American Court, is the RTC of the place where investigators from the Office of the Special Prosecutor and
his property or part thereof is situated. (Sec. 1. Rule 92).
from the Office of the Deputy Ombudsman for the Military
to conduct a joint investigation of the criminal case and the
(c) The venue of a petition for the adoption of a minor administrative case. The team of investigators recommended
residing in Pampanga is the RTC of the place in which to the Ombudsman that AG be preventively suspended for a
the petitioner resides. (Sec. 1. Rule 99) period not exceeding six months on its finding that the
evidence of guilt is strong. The Ombudsman issued the said
order as recommended by the investigators.
SUMMARY PROCEDURE
Prohibited Pleadings (2004) AG moved to reconsider the order on the following
Charged with the offense of slight physical injuries under grounds: (a) the Office of the Special Prosecutor had
an information duly filed with the MeTC in Manila which exclusive authority to conduct a preliminary investigation
in the meantime had duly issued an order declaring that of the criminal case; (b) the order for his preventive
the case shall be governed by the Revised Rule on suspension was premature because he had yet to file his
Summary Procedure, the accused filed with said court a answer to the administrative complaint and submit
motion to quash on the sole ground that the officer who countervailing evidence; and (c) he was a career executive
filed the information had no authority to do so. The service officer and under Presidential Decree No. 807
MeTC denied the motion on the ground that it is a (Civil Service Law), his preventive suspension shall be for
prohibited motion under the said Rule. The accused a maximum period of three months. Resolve with reasons
thereupon filed with the RTC in Manila a petition for the motion of respondent AG. (5%)
certiorari in sum assailing and seeking the nullification of
the MeTC's denial of his motion to quash. The RTC in SUGGESTED ANSWER:
due time issued an order denying due course to the The motion should be denied for the following reasons:
certiorari petition on the ground that it is not allowed by
the said Rule. The accused forthwith filed with said RTC 1 The Office of the Special Prosecutor does not
a motion for reconsideration of its said order. The RTC have exclusive authority to conduct a preliminary
in time denied said motion for reconsideration on the investigation of the criminal case but it participated in the
ground that the same is also a prohibited motion under investigation together with the Deputy Ombudsman for
the said Rule. Were the RTC's orders denying due course the Military who can handle cases of civilians and is not
to the petition as well as denying the motion for limited to the military.
reconsideration correct? Reason. (5%) 2 The order of preventive suspension need not
wait for the answer to the administrative complaint and
the submission of countervailing evidence. (Garcia v. Mojica,
G.R. No. 13903, September 10,
SUGGESTED ANSWER:
The RTC's orders denying due course to the petition for 1999) In Vasquez case, G.R. No. 110801, April 6, 1995, the
certiorari as well as denying the motion for reconsideration court ruled that preventive suspension pursuant to
are both not correct. The petition for certiorari is a Sec. 24 of R.A. No. 6770 (Ombudsman Act of 1989),
prohibited pleading under Section 19(g) of the Revised shall continue until termination of the case but shall
Rule on Summary Procedure and the motion for not exceed six (6) months, except in relation to R.A.
reconsideration, while it is not prohibited motion (Lucas v. No, 3019 and P.D. No. 807. As a career executive
Fabros, AM No. MTJ-99-1226, January
officer, his preventive suspension under the Civil
31, 2000, citing Joven v. Court of Appeals, 212 SCRA 700, 707- Service Law may only be for a maximum period of
708 (1992), should be denied because the petition for three months. The period of the suspension under the
certiorari is a prohibited pleading. Anti-Graft Law shall be the same pursuant to the
equal protection clause. (Garcia v. Mojica, G.R. No.
MISCELLANEOUS
13903, September 10, 1999; Layno v. Sandiganbayan,
Administrative Proceedings (2005) G.R. No. L-65848, May 21, 1985)

Regional Director AG of the Department of Public
Works and Highways was charged with violation of Congress; Law Expropriating Property (2006)
Section 3(e) of Republic Act No. 3019 in the Office of May Congress enact a law providing that a 5, 000 square
the Ombudsman. An administrative charge for gross meter lot, a part of the UST compound in Sampaloc
misconduct arising from the transaction subject matter Manila, be expropriated for the construction of a park in
of said criminal case was filed against him in the same honor of former City Mayor Arsenic Lacson? As
office. The Ombudsman assigned a team compensation to UST, the City
of Manila shall deliver its 5-hectare lot in Sta. Rosa, decree or executive order can mandate that the
Laguna originally intended as a residential subdivision determination of just compensation by the executive or
for the Manila City Hall employees. Explain. (5%) legislative departments can prevail over the court's
SUGGESTED ANSWER: findings (Export Processing Zone Authority v. Dulay,
Yes, Congress may enact a law expropriating property G.R. No. L-59603, April 29,1987; Sees. 5 to 8 Rule 67,1997
provided that it is for public use and with just Rules of Civil Procedure). In addition, compensation must
compensation. In this case, the construction of a park is be paid in money (Esteban v. Onorio, A.M. No. 00-4-166-
for public use (See Sena v. Manila Railroad Co., G.R. No. RTC, June 29, 2001).
15915, September 7, 1921; Reyes v. NHA, GR No. 147511,
March 24, 2003). The planned compensation, however, is
not legally tenable as the determination of just .
compensation is a judicial function. No statute,
RA 3019; Mandatory Suspension (2001)

Governor Pedro Mario of Tarlac was charged with indirect bribery before the Sandiganbayan for accepting a car in
exchange of the award of a series of contracts for medical supplies. The Sandiganbayan, after going over the
information, found the same to be valid and ordered the suspension of Mario. The latter contested the suspension
claiming that under the law (Sec. 13 of R.A. 3019) his suspension is not automatic upon the filing of the information
and his suspension under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of the Decentralization Act of 1967 (R.A. 5185).
The Sandilganbayan overruled Marios contention stating that Marios suspension under the circumstances is
mandatory. Is the courts ruling correct? Why?
SUGGESTED ANSWER:
Yes. Marios suspension is mandatory, although not automatic, (Sec. 13 of R.A. No. 3019 in relation to Sec. 5 of the Decentralization
Act of 1967 (R.A. No. 5185). It is mandatory after the determination of the validity of the information in a pre-suspension
hearing. [Segovia v. Sandiganbayan, 288 SCRA 328 (1988)]. The purpose of suspension is to prevent the accused public
officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with
evidence or from committing further acts of malfeasance while in office.

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Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.

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From the ANSWERS TO BAR EXAMINATION

July 22, 2007

CIVIL PROCEDURE ............................................................................................................................. ................. 13

EVIDENCE .............................................................................................................................................. .................. 50

SPECIAL PROCEEDINGS .................................................................................................................................. 61

In this case, the defendants counterclaim is a

(Sec. 1, Rule 26, 1997 Rules of Civil Procedure.)

Pleadings; Amendment of Complaint; By Leave of Court;

Pleadings; Answer; Defense; Specific Denial (2004)

SUGGESTED ANSWER: Pleadings; Motions; Bill of Particulars (2003)

SUGGESTED ANSWER: ALTERNATIVE ANSWER:

b) May a party resort to certiorari when appeal is SUGGESTED ANSWER:

motivated by the lust for vengeance; e) Where there is

Bail (2002) Bail; Forms of Bail (1999)

b. If I were the counsel for the accused, I would 129)

SUGGESTED ANSWER: f) That the criminal action or liability has

Version 1997-2006 Updated by Dondee

Hearsay; Exception; Dying Declaration (1998)

Hearsay; Exception; Res Gestae; Opinion of Ordinary

(c) The presumption is that the wordings of the foreign

The answer would be the same if the matters to be SUGGESTED ANSWER:

Probate of Will (2006) Probate of Will; Mandatory Nature (2002)

Administrative Proceedings (2005) G.R. No. L-65848, May 21, 1985)

RA 3019; Mandatory Suspension (2001)

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