REMEDIAL LAW BAR EXAMINATION QUESTIONS (2000)

Jurisdiction; Incapable of Pecuniary Estimation

A brings an action in the MTC of Manila against B for the annulment of an extrajudicial
foreclosure sale of real property with an assessed value of P50,000.00 located in Laguna. The
complaint alleged prematurity of the sale for the reason that the mortgage was not yet due.
B timely moved to dismiss the case on the ground that the action should have been brought
in the RTC of Laguna. Decide with reason. (3%)

Suggested Answer:
The motion should be granted. The MTC of Manila has no jurisdiction because the action for the
annulment of the extrajudicial foreclosure is not capable of pecuniary estimation and is
therefore.

Jurisdiction; Incapable of Pecuniary Estimation

A files an action in the Municipal Trial Court against B, the natural son of A’s father, for the
partition of a parcel of land located in Taytay, Rizal with an assessed value of P20,000.00. B
moves to dismiss the action on the ground that the case should have been brought in the RTC
because the action is one that is not capable of pecuniary estimation as it involves primarily a
determination of hereditary rights and not merely the bare right to real property. Resolve the
motion. (2%)

Suggested Answer:
The motion should be granted. The action for partition depends on a determination of the
hereditary rights of A and B, which is not capable of pecuniary estimation. Hence, even though
the assessed value of the land is P20,000.00, the Municipal Trial Court has no jurisdiction.
(Russell v. Vestil, supra)

Actions; Intervention; Requisites

What are the requisites for an intervention by a nonparty in an action pending in court? (5%)

Suggested Answer:
The requisites for intervention are:
a) Legal interest in the matter in a controversy; or
b) Legal interest in the success of either of the parties;
or
a) Legal interest against both; or
b) So situated as to be adversely affected by a distribution or other disposition or property in
the custody of the court or of an officer thereof.
a) Intervention will not unduly delay or prejudice the adjudication of the rights or original
parties;
b) Intervenor’s rights may not be fully protected in a separate proceedings.
(Acenas II v. Court of Appeals, 247 SCRA 773 [1995]; Sec. 1, Rule 19, 1997 Rules of Civil
Procedure.)

Actions; Survives Death of the Defendant

PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against him
which was docketed as Civil Case No. 123. A retainership agreement was executed between
PJ and Atty. ST whereby PJ promised to pay Atty. ST a retainer sum of P24,000.00 a year and
to transfer the ownership of a parcel of land to Atty. ST after presentation of PJ’s evidence. PJ
did not comply with his undertaking. Atty. ST filed a case against PJ which was docketed as
Civil Case No. 456. During the trial of Civil Case No. 456, PJ died.

1) Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in Civil Case No.
456? Explain. (2%)
2) Will your answer be the same with respect to the real property being claimed by Atty. ST
in Civil Case No. 456? Explain (2%)

Suggested Answers:
1) No. Under Sec. 20, Rule 3, 1997 Rules of Civil Procedure, when the action is for recovery
of money arising from contract, express or implied, and the defendant dies before entry of final
judgment in the court in which the action is pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final judgment. A favorable
judgment obtained by the plaintiff shall be enforced in the manner especially provided in the
Rules for prosecuting claims against the estate of a deceased person.
2) Yes, my answer is the same. An action to recover real property in any event survives the
death of the defendant. (Sec. 1, Rule 87, Rules of Court). However, a favorable judgment may
be enforced in accordance with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against the
executor or administrator or successor in interest of the deceased.

Default
Defendant was declared in default by the RTC (RTC). Plaintiff was allowed to present
evidence in support of his complaint. Photocopies of official receipts and original copies of
affidavits were presented in court, identified by plaintiff on the witness stand and marked as
exhibits. Said documents were offered by plaintiff and admitted in evidence by the court on
the basis of which the RTC rendered judgment in favor of the plaintiff, pursuant to the relief
prayed for. Upon receipt of 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 of persons not presented in court. Is the claim of defendant valid? Explain. (3%)

Suggested Answer:
The claim of defendant is not valid because under the 1997 Rules, reception of evidence is not
required. After a defendant is declared in default, the court shall proceed to render judgment
granting the claimant such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence, which may be delegated to the clerk of court. (Sec. 3,
Rule 9)

Alternative Answer:
The claim of defendant is valid, because the court received evidence which it can order in its
own discretion, in which case the evidence of the plaintiff must pass the basic requirements of
admissibility.

Default; Remedies; Substantial Compliance (2000)

For failure of K.J. to file an answer within the reglementary period, the Court, upon motion of
LM, declared KJ in default. In due time, KJ filed an unverified motion to lift the order of
default without an affidavit of merit attached to it. KJ however attached to the motion his
answer under oath, stating in said answer his reasons for his failure to file an answer on time,
as well as his defenses. Will the motion to lift the order of default prosper? Explain. (3%)

Suggested Answer:
Yes, there is substantial compliance with the rule. Although the motion is unverified, the
answer attached to the motion is verified. The answer contains what the motion to lift the
order of default and the affidavit of merit should contain, which are the reasons of movant’s
failure to answer as well as his defenses. (Sec. 3 [b] of Rule 9, 1997 Rules of Civil Procedure; Cf.
Citibank, N.A. v. Court of Appeals, 304 SCRA 679, [1999]; Consul v. Consul, 17 SCRA 667, 671
[1966]; Tolentino v. Carlos, 66 Phil, 1450, 143-144 [1938], Nasser v. Court of Appeals, 191 SCRA
783 [1992]).

Discovery; Modes of Discovery (2000)

Describe briefly at least five (5) modes of discovery under the Rules of Court. (5%)

Suggested Answer:
Five modes of discovery under the Rules of Court are:
1. DEPOSITION. By leave of court after jurisdiction has been obtained over any defendant
or over property which is the subject of the action, or without such leave after an answer has
been served, the testimony of any person, whether a party or not, may be taken, at the
instance of any party, by deposition upon oral examination or written interrogatories. (Sec. 1,
Rule 23, 1997 Rules of Civil Procedure.)

2. INTERROGATORIES TO PARTIES. Under the same conditions specified in section 1 of Rule

23, any party shall file and serve upon any adverse party written interrogatories regarding
material and relevant facts to be answered by the party served. (Sec. 1, Rule 25, 1997 Rules of
Civil Procedure.)
3. ADMISSION BY ADVERSE PARTY. At any time after issues have been joined, a party may
file and serve upon any other party a written request for the admission by the latter of the
genuineness of any material and relevant document or of the truth of any material and relevant
matter of fact.
4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS. Upon motion of any party
showing good cause therefore, a court may order any party to produce and permit the
inspection and copying or photographing of any designated documents, etc. or order any party
to permit entry upon designated land or property for inspecting, measuring, surveying, or
photographing the property or any designated relevant object or operation thereon. (Sec. 1,
Rule 27, 1997 Rule 27 Rules of Civil Procedure.)

Dismissal; Motion to Dismiss; Res Judicata

AB, as mother and in her capacity as legal guardian of her legitimate minor son, CD, brought
action for support against EF, as father of CD and AB’s lawfully wedded husband. EF filed his
answer denying his paternity with counterclaim for damages. Subsequently, AB filed a
manifestation in court that in view of the denial made by EF, it would be futile to pursue the
case against EF. AB agreed to move for the dismissal of the complaint, subject to the
condition that EF will withdraw his counter claim for damages. AB and EF filed a joint motion
to dismiss. The court dismissed the case with prejudice. Later on, minor son CD, represented
by AB, filed another complaint for support against EF. EF filed a motion to dismiss on the
ground of res judicata.
a) Is res judicata a valid ground for dismissal of the second complaint? Explain your answer
(3%)
b) What are the essential requisite of res judicata? (2%)

Suggested Answer:
a) No, res judicata is not a defense in an action for support even if the first case was dismissed
with prejudice on a joint motion to dismiss. The plaintiff’s mother agreed to the dismissal of the
complaint for support in view of the defendant’s answer denying his paternity with a
counterclaim for damages. This was in the nature of a compromise of the right of support which
is prohibited by law. (Art, 2035, Civil Code; De Asis v. Court of Appeals, 303 SCRA 176 [1999]).

(b) The Essential Requisites of Res Judicata are:

1 the judgment or order rendered must be final;
2 the court rendering the same must have jurisdiction of the subject matter and of the
parties;
3 it must be a judgment or order on the merits; and
there must be between the two cases identity of parties, identity of subject matter, and identity
of causes of action. (San Diego v. Cardona, 70 Phil, 281 [1940])
Evidence; Admissibility; Photocopies

If the photocopies of official receipts and photocopies of affidavits were attached to the
position paper submitted by plaintiff in an action for unlawful detainer filed with Municipal
Trial Court on which basis the court rendered judgment in favor of plaintiff? Explain. (2%)

Suggested Answer:
The claim of defendant is valid, because although summary procedure requires merely the
submission of position papers, the evidence submitted with the position paper must be
admissible in evidence. (Sec. 9 of the Revised Rule on Summary Procedure). Photocopies of
official receipts and affidavits are not admissible without proof of loss of the originals. (Sec. 3 of
Rule 130)

Parties; Third Party Claim

JK’s real property is being attached by the sheriff in a civil action for damages against LM. JK
claims that he is not a party to the case; that his property is not involved in said case; and
that he is the sole registered owner of said property. Under the Rules of Court, what must JK
do to prevent the Sheriff from attaching his property? (5%)

Suggested Answer:
If the real property has been attached, the remedy is to file a third-party claim. The third-party
claimant should make an affidavit of his title to the property attached, stating the grounds of
his title thereto, and serve such affidavit upon the sheriff while the latter has possession of the
attached property, and a copy thereof upon the attaching party. (Sec. 14, Rule 57) The third-
party claimant may also intervene or file a separate action to vindicate his claim to the property
involved and secure the necessary reliefs, such as preliminary injunction, which will not be
considered as interference with a court of coordinate jurisdiction.
(Ong v. Tating, 149 SCRA 265, [1987])

Petition for Certiorari

AB mortgaged his property to CD. AB failed to pay his obligation and CD filed an action for
foreclosure of mortgage. After trial, the court issued an Order granting CD’s prayer for
foreclosure of mortgage and ordering AB to pay CD the full amount of the mortgage debt
including interest and other charges not later than 120 days from date of receipt of the Order.
AB received the Order on August 10, 1999. No other proceeding took place thereafter. On
December 20, 1999, AB tendered the full amount adjudged by the court to CD but the latter
refused to accept it on the ground that the amount was tendered beyond the 120-day period
granted by the court. AB filed a motion in the same court praying that CD be directed to
receive the amount tendered by him on the ground that the Order does not comply with the
provisions of Section 2, Rule 68 of the Rules of Court which give AB 120 days from entry of
judgment, and not from date of receipt of the Order. The court denied his motion on the
ground that the Order had already become final and can no longer be amended to conform
with Section 2, Rule 68. Aggrieved, AB files a petition for certiorari against the Court and CD.
Will the petition for certiorari prosper? Explain. (5%)
Suggested Answer:
Yes. The court erred in issuing an Order granting CD’s prayer for foreclosure of mortgage and
ordering AB to pay CD the full amount of the mortgage debt including interest and other
charges not later than 120 days from receipt of the Order. The court should have rendered a
judgment which is appealable. Since no appeal was taken, the judgment became final on
August 25, 1999, which is the date of entry of judgment. (Sec 2, Rule 36) Hence, AB had up to
December 24, 1999 within which to pay the amount due. (Sec. 2, Rule 68) The court gravely
abused its discretion amounting to lack or excess of jurisdiction in denying AB’s motion praying
that CD be directed to receive the amount tendered.

Pleadings; Amendment of Complaint; By Leave of Court; Prescriptive Period

X, an illegitimate child of Y, celebrated her 18th birthday on May 2, 1996. A month before her
birthday, Y died. The legitimate family of Y refused to recognize X as an illegitimate child of Y.
After countless efforts to convince them, X filed on April 25, 2000 an action for recognition
against Z, wife of Y. After Z filed her answer on August 14, 2000, X filed a motion for leave to
file an amended complaint and a motion to admit the said amended complaint impleading
the three (3) legitimate children of Y. The trial court admitted the amended complaint on
August 22, 2000. What is the effect of the admission of the amended complaint? Has the
action of X prescribed? Explain. (5%)

Suggested Answer:
No. The action filed on April 25, 2000 is still within the four-year prescriptive period which
started to run on May 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 date of filing of the original complaint. Amendments impleading new
defendants retroact to the date of the filing of the complaint because they do not constitute a
new cause of action.
(Verzosa v. Court of Appeals, 299 SCRA 100 [1998]).
Note: The four-year period is based on Article 285 of the Civil Code)

Alternative Answer:
Under the 1997 Rules of Civil Procedure, if an additional defendant is impleaded in a later
pleading, the action is commenced with regard to him on the date of the filing of such later
pleading, irrespective of whether the motion for its admission, if necessary, is denied by the
court. (Sec. 5 of Rule 1).

Consequently, the action of X has prescribed with respect to the three (3) legitimate children of
Y who are indispensable parties.
Another Alternative Answer:

Under Article 175 of the Family Code, the action must be brought within the lifetime of X if the
action is based on a record of birth or an admission of filiation in a public document or a private
handwritten instrument signed by Y. In such case, the action of X has not prescribed.

However, if the action is based on the open and continuous possession of the status of an
illegitimate child, the action should have been brought during the lifetime of Y. In such case, the
action of X has prescribed.

Pleadings; Certification Against Forum Shopping

As counsel for A, B, C and D, Atty. XY prepared a complaint for recovery of possession of a
parcel of land against Z. Before filling the complaint, XY discovered that his clients were not
available to sign the certification of non-forum shopping. To avoid further delays in the filing
of the complaint, XY signed the certification and immediately filed the complaint in court. Is
XY justified in signing the certification? Why? (5%)

Suggested Answer:
NO, counsel cannot sign the anti-forum shopping certification because it must be executed by
the “plaintiff or principal party” himself (Sec. 5, Rule 7; Excorpizo v. University of Baguio, 306
SCRA 497, [1999]), since the rule requires personal knowledge by the party executing the
certification, UNLESS counsel gives a good reason why he is not able to secure his clients’
signatures and shows that his clients will be deprived of substantial justice (Ortiz v. Court of
Appeals, 299 SCRA 708, [1998]) or unless he is authorized to sign it by his clients through a
special power of attorney.

Pleadings; Reply; Effect of Non-Filing of Reply

X files a complaint in the RTC for the recovery of a sum of money with damages against Y. Y
files his answer denying liability under the contract of sale and praying for the dismissal of
the complaint on the ground of lack of cause of action because the contract of sale was
superseded by a contract of lease, executed and signed by X and Y two weeks after the
contract of sale was executed. The contract of lease was attached to the answer. X does not
file a reply. What is the effect of the non-filing of a reply? Explain. (3%)

Suggested Answer:
A reply is generally optional. If it is not filed, the new matters alleged in the answer are deemed
controverted. (Sec. 10 of Rule 6). However, since the contract of lease attached to the answer is
the basis of the defense, by not filing a reply denying under oath the genuineness and due
execution of said contract, the plaintiff is deemed to have admitted the genuineness and due
execution thereof. (Secs. 7 and 8 Rule 8; Toribio v. Bidin, 132 SCRA 162 [1985]).
Prejudicial Question; Ejectment vs. Specific Performance
BB files a complaint for ejectment in the MTCon the ground of non-payment of rentals
against JJ. After two days, JJ files in the RTC a complaint against BB for specific performance
to enforce the option to purchase the parcel of land subject of the ejectment case. What is
the effect of JJ’s action on BB’s complaint? Explain. (5%)

Suggested Answer:
There is no effect. The ejectment case involves possession de facto only. The action to enforce
the option to purchase will not suspend the action of ejectment for non-payment of rentals.
(Willman Auto Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).

Arrest; Warrantless Arrests; Objection

FG was arrested without a warrant by policemen while he was walking in a busy street. After
preliminary investigation, he was charged with rape and the corresponding information was
filed in the RTC. On arraignment, he pleaded not guilty. Trial on the merits ensued. The court
rendered judgment convicting him. On appeal, FG claims that the judgment is void because
he was illegally arrested. If you were the Solicitor General, counsel for the People of the
Philippines, how would you refute said claim? (5%)

Suggested Answer:
Any objection to the illegality of the arrest of the accused without a warrant is deemed waived
when he pleaded not guilty at the arraignment without raising the question. T is too late to
complain about a warrantless arrest after trial is commenced and completed and a judgment of
conviction rendered against the accused. (People v. Cabiles, 284 SCRA 199, [1999])

Information; Motion to Quash

BC is charged with illegal possession of firearms under an Information signed by a Provincial
Prosecutor. After arraignment but before pre-trial, BC found out that the Provincial
Prosecutor had no authority to sign and file the information as it was the City Prosecutor who
has such authority. During the pre-trial, BC moves that the case against him be dismissed on
the ground that the Information is defective because the officer signing it lacked the
authority to do so. The Provincial Prosecutor opposes the motion on the ground of estoppel
as BC did not move to quash the Information before arraignment. If you are counsel for BC,
what is your argument to refute the opposition of the Provincial Prosecutor? (5%)

Suggested Answer:
I would argue that since the Provincial Prosecutor had no authority to file the information, the
court did not acquire jurisdiction over the person of the accused and over the subject matter of
the offense charged. (Cudia v. Court of Appeals, 284 SCRA 173 [1999]). Hence, this ground is not
waived if not raised in a motion to quash and could be raised at the pretrial. (Sec. 8, Rule 117,
Rules of Court).
Parties; Prosecution of Offenses
Your friend YY, an orphan, 16 years old, seeks your legal advice. She tells you that ZZ, her
uncle, subjected her to acts of lasciviousness; that when she told her grandparents, they told
her to just keep quiet and not to file charges against ZZ, their son. Feeling very much
aggrieved, she asks you how her uncle ZZ can be made to answer for his crime. a) What would
your advice be? Explain. (3%) b) Suppose the crime committed against YY by her uncle ZZ is
rape, witnessed by your mutual friend XX. But this time, YY was prevailed upon by her
grandparents not to file charges. XX asks you if she can initiate the complaint against ZZ.
Would your answer be the same? Explain. (2%).

Suggested Answer:
(a) I would advise the minor, an orphan of 16
years of age, to file the complaint herself independently of her grandparents, because
she is not incompetent or incapable to doing so upon grounds other than her minority.
(Sec. 5, Rule 110, Rules of Criminal Procedure.)
(b) (b) Since rape is now classified as a Crime Against Persons under the Anti-Rape Law of
1997 (RA 8353), I would advise XX to initiate the complaint against ZZ

Prejudicial Question
CX is charged with estafa in court for failure to remit to MM sums of money collected by him
(CX) for MM in payment for goods purchased from MM, by depositing the amounts in his
(CX’s) personal bank account. CX files a motion to suspend proceedings pending resolution of
a civil case earlier filed in court by CX against MM for accounting and damages involving the
amounts subject of the criminal case. As the prosecutor in the criminal case, briefly discuss
your grounds in support of your opposition to the motion to suspend proceedings. (5%).

Suggested Answer:
1) The civil case filed by CX against MM for accounting and damages does not involve an issue
similar to or intimately related to the issue of estafa raised in the criminal action.
2) The resolution of the issue in the civil case for accounting will not determine whether or not
the criminal action for estafa may proceed. (Sec. 5, Rule 111, Rules of Procedure)

Admissibility; Proof of Filiation; Action of Partition

Linda and spouses Arnulfo and Regina Ceres were co-owners of a parcel of land. Linda died
intestate and without any issue. Ten (10) persons headed by Jocelyn, claiming to be the
collateral relatives of the deceased Linda, filed an action for partition with the RTC praying for
the segregation of Linda’s ½ share, submitting in support of their petition the baptismal
certificates of seven of the petitioners, a family bible belonging to Linda in which the names
of the petitioners have been entered, a photocopy of the birth certificate of Jocelyn, and a
certification of the local civil registrar that its office had been completely razed by fire. The
spouses Ceres refused to partition on the following grounds: 1) the baptismal certificates of
the parish priest are evidence only of the administration of the sacrament of baptism and
they do not prove filiation of the alleged collateral relatives of the deceased; 2) entry in the
family bible is hearsay; 3) the certification of the registrar on non-availability of the records of
birth does not prove filiation: 4) in partition cases where filiation to the deceased is in
dispute, prior and separate judicial declaration of heirship in a settlement of estate
proceedings is necessary; and 5) there is need for publication as real property is involved. As
counsel for Jocelyn and her co-petitioners, argue against the objections of the spouses Ceres
so as to convince the court to allow the partition. Discuss each of the five (5) arguments
briefly but completely. (10%)

Suggested Answer:
(1) The baptismal certificate can show filiation or prove pedigree. It is one of the other means
allowed under the Rules of Court and special laws to show pedigree. (Trinidad v. Court of
Appeals, 289 SCRA 188 [1998]; Heirs of ILgnacio Conti v. Court of Appeals, 300 SCRA 345
[1998]).
(2) Entries in the family bible may be received as evidence of pedigree. (Sec. 40, Rule 130, Rules
of Court).
(3) The certification by the civil registrar of the non-availability of records is needed to justify
the presentation of secondary evidence, which is the photocopy of the birth certificate of
Jocelyn. (Heirs of Ignacio Conti v. Court of Appeals, supra.)
(4) Declaration of heirship in a settlement proceeding is not necessary. It can be made in the
ordinary action for partition wherein the heirs are exercising the right pertaining to the
decedent, their predecessor-ininterest, to ask for partition as co-owners (Id.)
(5) Even if real property is involved, no publication is necessary, because what is sought is the
mere segregation of Linda’s share in the property. (Sec. 1 of Rule 69; Id.)

Privilege Communication; Marital Privilege

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 Romeo. Vida witnessed
the infliction of the injuries on Selmo by Romeo. The public prosecutor called Vida to the
witness stand and offered her testimony as an eyewitness. Counsel for Romeo objected on
the ground of the marital disqualification rule under the Rules of Court. a) Is the objection
valid? (3%) b) Will your answer be the same if Vida’s testimony is offered in a civil case for
recovery of personal property filed by Selmo against Romeo? (2%)

Suggested Answer:
(a) No. While neither the husband nor the wife may testify for or against the other without the
consent of the affected spouse, one exception is if the testimony of the spouse is in a criminal
case for a crime committed by one against the other or the latter’s direct descendants or
ascendants. (Sec, 22, Rule 130). The case falls under this exception because Selma is the direct
descendant of the spouse Vide.
(b) No. The marital disqualification rule applies this time. The exception provided by the rules is
in a civil case by one spouse against the other. The case here involves a case by Selmo for the
recovery of personal property against Vida’s spouse, Romeo.
REMEDIAL LAW BAR EXAMINATION QUESTIONS (2001)