213 - Remedial Law Suggested Answers (1997-2006), Word

ANSWERS TO BAR
Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.com Page 1 of 66

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 he A!"#ER" T$ BAR E%A&'!AT'$!
(UE"T'$!" )* he UP +A# ,$&P+E% - Phi.i//ine +a0
"1hoo.s Asso1iaion 2002
34.* 225 2007
Remedial Law Bar Examination Q & A (1997-2006
)
by
: sirdondee@gmail.com
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F$R#ARD
This work is not intended for sale or commerce. This work is
freeware. It may be freely copied and distributed. It is primarily
intended for all those who desire to have a deeper understanding of
the issues touched by the Philippine Bar Eaminations and its trend.
It is specially intended for law students from the provinces who!
very often! are recipients of deliberately distorted notes from other
unscrupulous law schools and students. "hare to others this work
and you will be richly rewarded by #od in heaven. It is also very
good karma.
$e would like to seek the indulgence of the reader for some Bar
%uestions which are improperly classified under a topic and for
some topics which are improperly or ignorantly phrased! for the
authors are &ust Bar 'eviewees who have prepared this work while
reviewing for the Bar Eams under time constraints and within their
limited knowledge of the law. $e would like to seek the reader(s
indulgence for a lot of typographical errors in this work.
The Authors
)uly *+! *,,-
.pdated by /ondee
)uly **! *,,0
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TABLE OF CONTENTS
GENERAL PRINCIPLES........................................................................................................................................ 8
Bar by Prior Judgment vs. Conclusiveness of Judgment (1997) .............................................................................. 8
Cause of action vs. Action (1997) ............................................................................................................................ 8
Civil Actions vs. Secial Proceedings (199!) ........................................................................................................... 8
Conciliation Proceedings" #atarungang Pambarangay vs. Pre$%rial Conference (1999) ........................................... 8
&amily Courts Act ('((1) ......................................................................................................................................... 8
)nterlocutory *rder ('((+) ....................................................................................................................................... 8
Judgment vs. *inion of t,e Court ('((+)................................................................................................................ 8
Judicial Autonomy - )martiality ('((.) .................................................................................................................. 8
#atarungang Pambarangay" *b/ective (1999) .......................................................................................................... 9
0iberal Construction" 1ules of Court (199!)............................................................................................................. 9
1emedial 0a2 in P,il. System of 3ov4t ('((+) .......................................................................................................... 9
1emedial 0a2 vs. Substantive 0a2 ('((+) ............................................................................................................... 9
1emedial 0a2" Concet ('((+) ................................................................................................................................ 9
1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7) ...................................................................................................... 9
JURISDICTION....................................................................................................................................................... 10
Jurisdiction (1997)................................................................................................................................................. 10
Jurisdiction vs. 5enue ('((+)................................................................................................................................. 10
Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+) ............................................................................................... 10
Jurisdiction" )ncaable of Pecuniary 9stimation ('((().......................................................................................... 10
Jurisdiction" )ncaable of Pecuniary 9stimation ('((().......................................................................................... 11
Jurisdiction" )ncaable of Pecuniary 9stimation ('((.).......................................................................................... 11
Jurisdiction" :%C ('((')........................................................................................................................................ 11
Jurisdiction" *ffice of t,e Solicitor 3eneral ('((+)................................................................................................. 11
Jurisdiction" *mbudsman Case 8ecisions ('((+).................................................................................................. 12
Jurisdiction" Probate ('((1)................................................................................................................................... 12
Jurisdiction" 1%C ('((') ........................................................................................................................................ 12
Jurisdiction" Subdivision 6omeo2ner ('((+)......................................................................................................... 12
#atarungang Pambarangay" 0uon" 9;tent of Aut,ority" ('((1)............................................................................ 13
CIVIL PROCEDURE .............................................................................................................................................. 13
Actions" Cause of Action vs. Action (1999) ............................................................................................................ 13
Actions" Cause of Action" Joinder - Slitting (199!)............................................................................................. 13
Actions" Cause of Action" Joinder of Action (1999)................................................................................................ 13
Actions" Cause of Action" Joinder of Action ('((7)................................................................................................ 13
Actions" Cause of Action" Slitting (1999) ............................................................................................................. 14
Actions" Cause of Action" Slitting ('((7) ............................................................................................................. 14
Actions" Cause of Actions" :otion to 8ismiss" bar by rior /udgment ('((') .........................................................
14 Actions" Counterclaim ('((') ................................................................................................................................
14 Actions" Counterclaim vs. Crossclaim (1999).........................................................................................................
15 Actions" Cross$Claims" %,ird Party Claims (1997) .................................................................................................
15 Actions" 8erivative Suit vs. Class Suit ('((7).........................................................................................................
16 Actions" &iling" Civil Actions - Criminal Action ('((7)...........................................................................................
16 Actions" )ntervention" 1e<uisites ('((() ................................................................................................................
16 Actions" 1eal Actions - Personal Actions ('((+)...................................................................................................
16 Actions" Survives 8eat, of t,e 8efendant ('((() ...................................................................................................
16 Aeals" Period of Aeal" &res, Period 1ule ('((.).............................................................................................
17 Certiorari" :ode of Certiorari ('((+) ......................................................................................................................
17 Certiorari" 1ule =7 vs. 1ule +7 (199!) .....................................................................................................................
17 Certiorari" 1ule =7 vs. 1ule +7 ('((7) .....................................................................................................................
18 Contemt" 8eat, of a Party" 9ffect (199!) ..............................................................................................................
18 8efault ('((() ........................................................................................................................................................
18 8efault ('((1) ........................................................................................................................................................
18 8efault" *rder of 8efault" 9ffects (1999) ................................................................................................................
18 8efault" 1emedies" Party 8eclared in 8efault (199!) ..............................................................................................
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8efault" 1emedies" Party 8eclared in 8efault ('((+) .............................................................................................. 19
8efault" 1emedies" Substantial Comliance ('((()................................................................................................ 20
8emurrer to 9vidence ('((1) ................................................................................................................................. 20
8emurrer to 9vidence" Civil Case vs. Criminal Case ('((.).................................................................................... 20
8iscovery" :odes of 8iscovery ('((()................................................................................................................... 20
8iscovery" :odes" Suboena 8uces %ecum (1997) ............................................................................................... 21
8iscovery" Production and )nsection of 8ocuments ('((').................................................................................. 21
8ismissal" :otion to 8ismiss" 1es Judicata ('((()................................................................................................ 21
9vidence" Admissibility" P,otocoies ('((() ......................................................................................................... 22
&orum S,oing" 8efinition ('((+) ........................................................................................................................ 22
&orum S,oing" 9ffects" 0ac> of Certification ('((+) ...........................................................................................
22 3en. Princiles" ?uestions of 0a2 vs. ?uestions of &act ('((=) ............................................................................ 22
Judgment" Annulment of Judgment" 3rounds (199!)............................................................................................. 22
Judgment" 9nforcement" 7$year eriod (1997) ....................................................................................................... 22
Judgment" 9nforcement" &oreign Judgment ('((7) ............................................................................................... 22
Judgment" 9;ecution ending Aeal ('((')......................................................................................................... 23
Judgment" )nterlocutory *rder" Partial Summary Judgments ('((=) ......................................................................
23 Judgment" Judgment on t,e Pleadings (1999) ....................................................................................................... 23
Judgment" Judgment on t,e Pleadings ('((7) ....................................................................................................... 24
Judgment" :andamus vs. ?uo @arranto ('((1)..................................................................................................... 24
Judgment" Soundness" Attac,ment ('((') ............................................................................................................ 24
Judgments" 9nforcement" 9;amination of 8efendant ('((').................................................................................. 24
Jurisdiction" 6abeas Corus" Custody of :inors ('((7) ........................................................................................ 25
Jurisdiction" 0ac> of Jurisdiction" Proer Action of t,e Court ('((=) .....................................................................
25 Parties" 8eat, of a Party" 9ffect (199!) .................................................................................................................. 25
Parties" 8eat, of a Party" 9ffect (1999) .................................................................................................................. 25
Parties" 8eat, of a Party" 9ffect (1999) .................................................................................................................. 26
Parties" %,ird Party Claim ('((() ........................................................................................................................... 26
Parties" %,ird$Party Claim ('((7) ........................................................................................................................... 26
Petition for Certiorari ('((() .................................................................................................................................. 26
Petition for 1elief - Action for Annulment ('((')................................................................................................... 27
Petition for 1elief" )n/unction ('((')....................................................................................................................... 27
Pleadings" Amendment of Comlaint" By 0eave of Court ('((.) ............................................................................ 27
Pleadings" Amendment of Comlaint" By 0eave of Court" Prescritive Period ('((()............................................. 27
Pleadings" Amendment of Comlaint" :atter of 1ig,t ('((7) ................................................................................. 28
Pleadings" Amendment of Comlaint" %o Conform 2A 9vidence ('((=) .................................................................. 28
Pleadings" Ans2er" 8efense" Secific 8enial ('((=) .............................................................................................. 28
Pleadings" Certification Against &orum S,oing ('((() ....................................................................................... 29
Pleadings" Counterclaim against t,e Counsel of t,e Plaintiff ('((=) ...................................................................... 29
Pleadings" :otions" Bill of Particulars ('((.)......................................................................................................... 29
Pleadings" 1ely" 9ffect of Bon$&iling of 1ely ('((() ........................................................................................... 29
Pre/udicial ?uestion" 9/ectment vs. Secific Performance ('((() .......................................................................... 30
Pre$%rial" 1e<uirements ('((1) .............................................................................................................................. 30
Provisional 1emedies (1999) ................................................................................................................................. 30
Provisional 1emedies" Attac,ment (1999) ............................................................................................................. 30
Provisional 1emedies" Attac,ment (1999) ............................................................................................................. 30
Provisional 1emedies" Attac,ment ('((1) ............................................................................................................. 30
Provisional 1emedies" Attac,ment ('((7) ............................................................................................................. 30
Provisional 1emedies" Attac,ment vs. 3arnis,ment (1999) ...................................................................................
31 Provisional 1emedies" )n/unction ('((1)................................................................................................................ 31
Provisional 1emedies" )n/unction ('((.)................................................................................................................ 31
Provisional 1emedies" )n/unctions" Ancillary 1emedy vs. :ain Action ('((+)........................................................ 31
Provisional 1emedies" )n/unctions" )ssuance 2Aout Bond ('((+) ........................................................................... 31
Provisional 1emedies" )n/unctions" 1e<uisites ('((+)............................................................................................ 31
Provisional 1emedies" 1eceivers,i ('((1) ........................................................................................................... 32
Provisional 1emedies" 1elevin (1999).................................................................................................................. 32
Provisional 1emedies" Suort Pendente 0ite (1999)............................................................................................. 32
Provisional 1emedies" Suort Pendente 0ite ('((1)............................................................................................. 32
Provisional 1emedies" %1* ('((1) ........................................................................................................................ 32
Provisional 1emedies" %1* ('((+) ........................................................................................................................ 33
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Provisional 1emedies" %1* vs. Status ?uo *rder ('((+)
....................................................................................... 33
Provisional 1emedies" %1*" CA Justice 8et. ('((+)
............................................................................................. 33
Provisional 1emedies" %1*" 8uration ('((+)
......................................................................................................... 33
1eglementary Period" Sulemental Pleadings ('((()
........................................................................................... 33
1emedies" Aeal to SC" Aeals to CA ('((')
..................................................................................................... 33
1emedies" Aeal" 1%C to CA (1999)
..................................................................................................................... 33
1emedies" Aeal" 1ule =7 vs. 1ule +7 (1999)
....................................................................................................... 34
1emedies" 5oid 8ecision" Proer 1emedy ('((=)
.................................................................................................. 34
Secial Civil Action" 9/ectment (1997)
................................................................................................................... 35
Secial Civil Action" 9/ectment (199!)
................................................................................................................... 35
Secial Civil Action" &oreclosure ('((.)
................................................................................................................ 35
Secial Civil Action" Petition for Certiorari ('((')
.................................................................................................. 35
Secial Civil Action" ?uo @arranto ('((1)
............................................................................................................. 36
Secial Civil Actions" :andamus ('((+)
................................................................................................................ 36
Summons
.............................................................................................................................................................. 36
Summons (1999)
................................................................................................................................................... 37
Summons" Substituted Service ('((=)
................................................................................................................... 37
Summons" 5alidity of Service" 9ffects ('((+)
......................................................................................................... 37
5enue" )mroer 5enue" Comulsory Counterclaim (199!)
.................................................................................... 38
5enue" Personal Actions (1997)
............................................................................................................................. 38
CRIMINAL PROCEDURE.................................................................................................................................... 38
Ac<uittal" 9ffect ('((') .......................................................................................................................................... 38
Actions" BP''" Civil Action deemed included ('((1).............................................................................................. 39
Actions" BP''" 8emurrer to 9vidence ('((.) ......................................................................................................... 39
Actions" Commencement of an Action" 8ouble Jeoardy ('((=)............................................................................ 39
Actions" 8iscretionary Po2er of &iscal (1999)........................................................................................................ 39
Actions" )n/unction (1999)...................................................................................................................................... 39
Arrest" @arrantless Arrest" Preliminary )nvestigation ('((=).................................................................................. 40
Arrest" @arrantless Arrests - Searc,es (1997) ...................................................................................................... 40
Arrest" @arrantless Arrests - SeiCures ('((.) ....................................................................................................... 40
Arrest" @arrantless Arrests" *b/ection ('((()........................................................................................................ 41
Bail ('((') ............................................................................................................................................................. 41
Bail" Aeal (199!) ................................................................................................................................................ 41
Bail" Alication" 5enue ('((').............................................................................................................................. 41
Bail" &orms of Bail (1999) ...................................................................................................................................... 41
Bail" :atter of 1ig,t (1999) .................................................................................................................................... 41
Bail" :atter of 1ig,t vs. :atter of 8iscretion (1999) ............................................................................................... 41
Bail" :atter of 1ig,t vs. :atter of 8iscretion ('((+) ............................................................................................... 42
Bail" @itness Posting Bail (1999) ........................................................................................................................... 42
Comlaint vs. )nformation (1999) ........................................................................................................................... 42
8emurrer to 9vidence" Contract of Carriage ('((=)................................................................................................ 42
8emurrer to 9vidence" 2Ao 0eave of Court (199!) .................................................................................................. 42
8emurrer to 9vidence" 2Ao 0eave of Court ('((1) .................................................................................................. 43
8emurrer to 9vidence" 2Ao 0eave of Court ('((=) .................................................................................................. 43
8ismissal" &ailure to Prosecute ('((.)................................................................................................................... 43
8ismissal" Provisional 8ismissal ('((.) ................................................................................................................ 43
8ouble Jeoardy ('((')......................................................................................................................................... 44
8ouble Jeoardy" Dgrading" *riginal C,arges ('((7) .......................................................................................... 44
9;tradition ('((=) .................................................................................................................................................. 44
)nformation ('((1) ................................................................................................................................................. 45
)nformation" Amendment ('((1) ............................................................................................................................ 45
)nformation" Amendment" 8ouble Jeoardy" Bail ('((') ........................................................................................ 45
)nformation" Amendment" Suervening 9vents (1997) ........................................................................................... 45
)nformation" Bail ('((.) ......................................................................................................................................... 45
)nformation" :otion to ?uas, ('((()...................................................................................................................... 46
)nformation" :otion to ?uas, ('((7)...................................................................................................................... 46
)nformation" :otion to ?uas," 3rounds (199!) ......................................................................................................
46 Judgment" Promulgation of Judgment (1997) ........................................................................................................
46 Jurisdiction" Comle; Crimes ('((.) .....................................................................................................................
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Jurisdiction" &inality of a Judgment ('((7)
............................................................................................................ 47
Parties" Prosecution of *ffenses ('((()
................................................................................................................. 47
Plea of 3uilty" to a 0esser *ffense ('((')
.............................................................................................................. 47
Pre/udicial ?uestion (1999)
.................................................................................................................................... 47
Pre/udicial ?uestion ('((()
.................................................................................................................................... 47
Pre/udicial ?uestion" Susension of Criminal Action (1999)
.................................................................................. 48
Pre$%rial Agreement ('((=)
.................................................................................................................................... 48
Pre$%rial" Criminal Case vs. Civil Case (1997)
........................................................................................................ 48
Provisional 8ismissal ('((')
................................................................................................................................. 48
1emedies" 5oid Judgment ('((=)
.......................................................................................................................... 48
Searc, @arrant" :otion to ?uas, ('((7)
............................................................................................................... 49
%rial" %rial in Absentia" Automatic 1evie2 of Conviction (199!)
............................................................................. 49
5enue (1997)
......................................................................................................................................................... 49
EVIDENCE ................................................................................................................................................................ 50
Admissibility (199!)............................................................................................................................................... 50
Admissibility ('((')............................................................................................................................................... 50
Admissibility ('((=)............................................................................................................................................... 50
Admissibility" Admission of 3uilt" 1e<uirements ('((+) ........................................................................................ 51
Admissibility" 8ocument" Bot raised in t,e Pleading ('((=) ...................................................................................
51 Admissibility" 9lectronic 9vidence ('((.) ..............................................................................................................
51 Admissibility" *b/ect or 1eal 9vidence (199=)........................................................................................................
51 Admissibility" *b/ections (1997) ............................................................................................................................
51 Admissibility" *ffer to :arry" Circumstantial 9vidence (199!)................................................................................
52 Admissibility" *ffer to Pay 9;enses (1997) ..........................................................................................................
52 Admissibility" Private 8ocument ('((7) .................................................................................................................
52 Admissibility" Proof of &iliation" Action of Partition ('((().....................................................................................
52 Admissibility" 1ules of 9vidence (1997).................................................................................................................
53 Best 9vidence 1ule (1997) .....................................................................................................................................
53 Burden of Proof vs. Burden of 9vidence ('((=) .....................................................................................................
54 C,aracter 9vidence ('((').....................................................................................................................................
54 Confession" Affidavit of 1ecantation (199!)...........................................................................................................
54 &acts" 0egislative &acts vs. Ad/udicative &acts ('((=) ...........................................................................................
54 6earsay 9vidence ('((') .......................................................................................................................................
54 6earsay 9vidence vs. *inion 9vidence ('((=) .....................................................................................................
54 6earsay" 9;cetion" 8ead :an Statute ('((1)........................................................................................................
54 6earsay" 9;cetion" 8ying 8eclaration (199!) .......................................................................................................
55 6earsay" 9;cetion" 1es 3estae" *inion of *rdinary @itness ('((7)
................................................................... 55 6earsay" 9;cetions (1999)
................................................................................................................................... 55 6earsay" 9;cetions"
8ying 8eclaration (1999) ..................................................................................................... 55 6earsay"
)nalicable ('((.).................................................................................................................................. 55 Judicial
Botice" 9vidence ('((7)............................................................................................................................ 56 Judicial
Botice" 9vidence" &oreign 0a2 (1997)....................................................................................................... 56
:emorandum (199+).............................................................................................................................................. 57
*ffer of 9vidence (1997) ........................................................................................................................................ 57
*ffer of 9vidence" res inter alios acta ('((.).......................................................................................................... 57
*ffer of 9vidence" %estimonial - 8ocumentary (199=) ........................................................................................... 57
*inion 1ule (199=)............................................................................................................................................... 57
Parol 9vidence 1ule ('((1).................................................................................................................................... 58
Preonderance vs. Substantial 9vidence ('((.) .................................................................................................... 58
Privilege Communication (199!) ............................................................................................................................ 58
Privilege Communication" :arital Privilege (19!9) ................................................................................................. 58
Privilege Communication" :arital Privilege ('((() ................................................................................................. 59
Privilege Communication" :arital Privilege ('((=) ................................................................................................. 59
Privilege Communication" :arital Privilege ('((+) ................................................................................................. 59
1emedy" 0ost 8ocuments" Secondary 9vidence (199') ......................................................................................... 60
%estimony" )ndeendent 1elevant Statement (1999) .............................................................................................. 60
@itness" Cometency of t,e @itness vs. Credibility of t,e @itness ('((=)............................................................. 60
@itness" 9;amination of a C,ild @itness" via 0ive$0in> %5 ('((7) ......................................................................... 60
@itness" 9;amination of @itnesses (1997) ............................................................................................................ 60 Version 1997-2006 !dated "# Dondee
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@itness" 9;amination of @itnesses ('((')
............................................................................................................ 60
@itness" DtiliCed as State @itness" Procedure ('((+)
............................................................................................ 60
SPECIAL PROCEEDINGS .................................................................................................................................. 61
Cancellation or Correction" 9ntries Civil 1egistry ('((7)........................................................................................ 61
9sc,eat Proceedings ('((') .................................................................................................................................. 61
9;tra$/udicial Settlement of 9state ('((7) .............................................................................................................. 61
6abeas Corus (199.) ........................................................................................................................................... 61
6abeas Corus (199!) ........................................................................................................................................... 61
6abeas Corus ('((.) ........................................................................................................................................... 62
)ntestate Proceedings ('((') ................................................................................................................................. 62
)ntestate Proceedings" 8ebts of t,e 9state ('((').................................................................................................. 62
Judicial Settlement of 9state ('((7)....................................................................................................................... 62
Probate of 0ost @ills (1999)................................................................................................................................... 62
Probate of @ill ('((.) ............................................................................................................................................ 63
Probate of @ill ('((7) ............................................................................................................................................ 63
Probate of @ill ('((+) ............................................................................................................................................ 63
Probate of @ill" :andatory Bature ('((')............................................................................................................... 63
Settlement of 9state ('((1).................................................................................................................................... 64
Settlement of 9state" Administrator (199!)............................................................................................................. 64
5enue" Secial Proceedings (1997)........................................................................................................................ 64
SUMMARY PROCEDURE................................................................................................................................... 65
Pro,ibited Pleadings ('((=)................................................................................................................................... 65
MISCELLANEOUS................................................................................................................................................. 65
Administrative Proceedings ('((7) ........................................................................................................................ 65
Congress" 0a2 9;roriating Proerty ('((+) ....................................................................................................... 65
1A .(19" :andatory Susension ('((1) ................................................................................................................ 66
)
GENERAL PRINCIPLES
Bar by Prior Judgment vs. Conclusiveness of Judgment
(1997)
Distinguish Bar by prior judgment from
conclusiveness of judgment
SUGGESTED ANSWER:
Bar by prior-judgment is the doctrine of
res judicata, which bars a second action
when there is identity of parties, subject
matter and cause of action. (Sec. 49[b] of
former Rule 39; Sec, 47 [b] of new
Rule 39).
Conclusiveness of judgment precludes
the relitigation of a particular issue in
another action between the same parties
on a diferent cause of action. (Sec. 49 [c]
of former Rule 39; sec. 47 [c] of new Rule 39).
Cause of action vs. Action (1997)
Distinguish Cause of action from
action
SUGGESTED ANSWER:
A CA!" #$ AC%&#' is an act or
omission of one party in violation of the
legal right or rights of the other (Maao
Sugar Central vs. Barrios, 79 Phil. 606; Sec.
2 of new ule 2!, causing damage to
another. An AC%&#' is an ordinary suit in a court
of (ustice by which one party prosecutes
another for the enforcement or protection
of a right, or the prevention or redress of
a wrong.(Section 1 of former Rule
2).
Civil Actions vs. Secial Proceedings (199!)
Distinguish civil actions from special
proceedings. )*+,
SUGGESTED ANSWER:
A C&-&. AC%&#' is one by which a party
sues another for the enforcement or
protection of a right, or the prevention or
redress of a wrong. (See. 3[a], Rule 1, 1997
Rules of i!il "roce#ure), while a !/"C&A.
/0#C""D&'1 is a remedy by which a
party see2s to establish a status, a right
or a particular fact. (Sec.
3[]. Rule 1,1997 Rules of i!il
"roce#ure.)
Conciliation Proceedings" #atarungang Pambarangay vs.
Pre$%rial Conference (1999)
3hat is the diference, if any, between the
conciliation proceedings under the
4atarungang /ambarangay .aw and the
negotiations for an amicable settlement
during the pre-trial conference under the
0ules of Court5 67+8
SUGGESTED ANSWER:
%he diference between the conciliation
proceedings under the 4atarungang
/ambarangay .aw and the negotiations
for an amicable settlement during the
pre-trial conference under the 0ules of
Court is that in the former, lawyers are
prohibited from appearing for the parties.
/arties must appear in person only e9cept
minors or incompetents who may be
assisted by their ne9t of 2in who are not
lawyers. ($ormerl% Sec. 9,
by: sirdondee@gmail.com Page 8 of 66
".&. 'o. 1()*; Sec. 41(, +ocal ,o!ernment o#e
of 1991, R.-. 71.).) 'o such prohibition
e9ists in the pre-trial negotiations under
the 0ules of Court.
&amily Courts Act ('((1)
a8 :ow should the records of child and
family cases in the $amily Courts or 0%C
designated by the !upreme Court to
handle $amily Court cases be treated and
dealt with5 6*+8 b8 nder what
conditions may the identity of parties in
child and family cases be divulged 67+8
SUGGESTED ANSWER:
a8 %he records of child and family cases
in the $amily Code to handle $amily
Court cases shall be dealt with utmost
con;dentiality. (Sec. 12, $amil% ourts -ct of
1997) b8 %he identity of parties in child and
family cases shall not be divulged unless
necessary and with authority of the judge.
(/#.)
)nterlocutory *rder ('((+)
3hat is an interlocutory order5
67+8
SUGGESTED ANSWER:
An interlocutory order refers to an order
issued between the commencement and
the end of the suit which is not a ;nal
decision of the whole controversy and
leaves something more to be done on its
merits
("allar#o et al. v. Peo$le, ".. %o. &'20(0,
)$ril 2&, 200*; +nvest,ents +nc. v. Court of
)$$eals, ".. %o. 600(6, -anuar. 27, &9/7
cite# in 0enso Phils, v. 1)C, ".. %o. 7*000,
2e3. 27, &9/7!.
Judgment vs. *inion of t,e Court ('((+)
3hat is the diference between a
judgment and an opinion of the court5
67.<+8
SUGGESTED ANSWER:
%he judgment or fallo is the ;nal disposition
of the Court which is re=ected in the
dispositive portion of the decision. A
decision is directly prepared by a judge and
signed by him, containing clearly and
distinctly a statement of the facts proved
and the law upon which the judgment is
based (4to.a v. )3raha,
Singson, )#,. Matter %o. 5-69&67*/,
Se$te,3er 26, &99'!.
An opinion of the court is the informal
e9pression of the views of the court and
cannot prevail against its ;nal order. %he
opinion of the court is contained in the
body of the decision that serves as a guide
or enlightenment to determine the ratio
#eci#en#i of the decision. %he opinion
forms no part of the judgment even if
combined in one instrument, but may be
referred to for the purpose of construing
the judgment (Contreras v. 2eli7, ".. %o. 86
'77, -une (0,
&9'7!.
Judicial Autonomy - )martiality ('((.)
)
&n rendering a decision, should a court
ta2e into consideration the possible efect
of its verdict upon the political stability
and economic welfare of the nation5 >+
SUGGESTED ANSWER:
'o, because a court is re?uired to ta2e
into consideration only the legal issues
and the evidence admitted in the case.
%he political stability and economic
welfare of the nation are e9traneous to
the case. %hey can have persuasive
in=uence but they are not the main
factors that should be considered in
deciding a case. A decision should be
based on the law, rules of procedure,
justice and e?uity. :owever, in
e9ceptional cases the court may consider
the political stability and economic
welfare of the nation when these are
capable of being ta2en into judicial notice
of and are relevant to the case.
#atarungang Pambarangay" *b/ective (1999)
3hat is the object of the
4atarungang /ambarangay .aw5 67+8
SUGGESTED ANSWER:
%he object of the 4atarungang
/ambarangay .aw is to efect an amicable
settlement of disputes among family and
barangay members at the barangay level
without judicial recourse and
conse?uently help relieve the courts of
doc2et congestion. ("reamble of ".&.
'o. 1()*, t0e former an# t0e 1rst 2atarun3an3
"ambaran3a% +aw.)
0iberal Construction" 1ules of Court (199!)
:ow shall the 0ules of Court be construed5 )7+,
SUGGESTED ANSWER:
%he 0ules of Court should be liberally
construed in order to promote their
objective of securing a just, speedy and
ine9pensive disposition of every action
and proceeding. (Sec. ., Rule 1 1997 Rules of
i!il "roce#ure.)
ADDITIONAL ANSWER:
:owever, strict observance of the rules is
an imperative necessity when they are
considered indispensable to the
prevention of needless delays and to the
orderly and speedy dispatch of (udicial
business. ()lvero vs. -u#ge #e la osa, 76
Phil. '2/!
1emedial 0a2 in P,il. System of 3ov4t ('((+)
:ow are remedial laws implemented in
our system of government5 67+8
SUGGESTED ANSWER:
0emedial laws are implemented in our
system of government through the pillars
of the judicial system, including the
prosecutory service, our courts of justice
and ?uasi judicial agencies.
1emedial 0a2 vs. Substantive 0a2 ('((+)
Distinguish between substantive law and
remedial law. 67+8
SUGGESTED ANSWER:
!B!%A'%&-" .A3 is that part of the
law which creates, de;nes and regulates
rights concerning life, liberty, or property,
or the powers of agencies or
instrumentalities for the administration of
public
by: sirdondee@gmail.com Page 9 of 66 afairs. %his is
distinguished from 0"@"D&A. .A3 which
prescribes the method of enforcing rights or
obtaining redress for their invasion (Bustos v.
8ucero, ".. %o. 86206/, 9cto3er 20,
&9'/!.
1emedial 0a2" Concet ('((+)
3hat is the concept of remedial law5
67+8
SUGGESTED ANSWER:
%he concept of 0emedial .aw lies at the
very core of procedural due process, which
means a law which hears before it
condemns, which proceeds upon in?uiry
and renders judgment only after trial, and
contemplates an opportunity to be heard
before judgment is rendered ()l3ert v.
:niversit. Pu3lishing,
".. %o. 86&9&&/, -anuar. (0,
&96*!.
0emedial .aw is that branch of law which
prescribes the method of enforcing the
rights or obtaining redress for their
invasion (Bustos v. 8ucero, ".. %o.
86206/, 9cto3er 20, &9'/; 2irst 8e$anto
Cera,ics, +nc. v. C), ".. %o. &&0*7&,
March &0, &99'!.
1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7)
nder 0epublic Act 'o. A*<*, one may be
charged with and found guilty of ?uali;ed rape
if he 2new on or before the commission of the
crime that he is aBicted with :uman &mmuno-
De;ciency -irus 6:&-8CAc?uired &mmune
De;ciency !yndrome 6A&D!8 or any other
se9ually transmissible disease and the virus or
disease is transmitted to the victim. nder
!ection DE6a8 of 0epublic Act 'o. A<F> the
court may compel the accused to submit
himself to a blood test where blood samples
would be e9tracted from his veins to determine
whether he has :&-. 6A+8
a! )re the rights of the accuse# to 3e
$resu,e# innocent of the cri,e charge#,
to $rivac., an# against self6incri,ination
violate# 3. such co,$ulsor. testing;
47$lain.
SUGGESTED ANSWER:
'o. %he court may compel the accused to
submit himself to a blood test to
determine whether he has :&- under !ec.
DE6a8 of 0.A. 'o, AF<>. :is rights to be
presumed innocent of the crime charged,
to privacy and against self-incrimination
are not violated by such compulsory
testing. &n an action in which the physical
condition of a party is in controversy, the
court may order the accused to submit to
a physical e9amination. (Sec. 1, Rule 2*,
1997 Rules of i!il "roce#ure)
(+oo4 for citation of latest case, in
2))4)
3! +f the result of such test shows that
he is <+= $ositive, an# the $rosecution
o>ers such result in evi#ence to $rove the
?ualif.ing circu,stance un#er the
+nfor,ation for ?uali@e# ra$e, shoul# the
court reAect such result on the groun# that
it is the fruit of a $oisonous tree; 47$lain.
SUGGESTED ANSWER:
!ince the rights of the accused are not
violated because the compulsory testing
is authoriGed by the
)
law, the result of the testing cannot be
considered to be the fruit of a poisonous tree
and can be ofered in evidence to prove the
?ualifying circumstance under the information
for ?uali;ed rape under 0.A. 'o. A*<*. %he
fruit, of the poisonous tree doctrine refers to
that rule of evidence that e9cludes any
evidence which may have been derived or
ac?uired from a tainted or polluted source.
!uch evidence is inadmissible for having
emanated from spurious origins. %he doctrine,
however, does not apply to the results obtained
pursuant to !ec. D, 0ule 7A, DHHE 0ules of Civil
/rocedure, as it does not contemplate a search
within the moaning of the law. (Peo$le v. Montilla, ".. %o. &2(/72, -anuar.
(0,&99/!
JURISDICTION
Jurisdiction (1997)
3hat courts have jurisdiction over the
following cases ;led in @etro @anila5 a8
An action for speci;c performance or, in
the
alternative, for damages in the amount of
/DAF,FFF.FF b8 An action for a writ of
injunction. c8 An action for replevin of a
motorcycle valued at
/D<F,FFF.FF. d8 An action for
interpleader to determine who
between the defendants is entitled to receive
the amount of /DHF,FFF.FF from the plaintif.
e8 A petition for the probate of a will
involving an estate valued at
/7FF,FFF.FF.
SUGGESTED ANSWER:
6a8 An action for speci;c performance or, in
the alternative, for damages in the amount
of DAF,FFF.FF falls within the jurisdiction of
@etropolitan %rial Courts in @etro @anila.
Although an action for speci;c performance
is not capable of pecuniary estimation,
since the alternative demand for damages is
capable of pecuniary estimation, it is within
the jurisdiction of the @etropolitan %rial
Courts in @etro @anila. (Sec. (( of BP &29 as
a,en#e# 3. ) %o. 769&B
CruC us. 5an, /7 Phil. 627D.
6b8 An action for injunction is not capable
of pecuniary estimation and hence falls
within the jurisdiction of the 0%Cs.
6c8 An action for replevin of a motorcycle
valued at D<F,FFF.FF falls within the
jurisdiction of the @etropolitan %rial
Courts in @etro @anila (Sec. (( of
BP &29. as a,en#e# 3. ) %o.
769&!.
6d8 An action for interpleader to
determine who between the defendants is
entitled to receive the amount of
/DHF,FFF.FF falls within the jurisdiction
of the @etropolitan %rial Courts in @etro
@anila.
(MaEati 0ev Cor$. v. 5anAuatco 27 SC)
'0&!
6e8 A petition for the probate of a will
involving an estate valued at 7FF.FFF.FF
falls within the (urisdiction of the
@etropolitan %rial Courts in @etro @anila
(Sec. &9F'D of BP &29, as a,en#e#!.
ADDITIONAL ANSWER:
6b8 An application for a writ of
preliminary injunction may be granted by
a @unicipal Court in an action of forcible
entry and unlawful detainer. (Sec.(( of BP
&29;
0a. vs. 5C of Ga,3oanga, &9&
SC)6&0.
Jurisdiction vs. 5enue ('((+)
Distinguish jurisdiction from venue5
67+8
SUGGESTED ANSWER:
(0&!D&C%&#' treats of the power of the
Court to decide a case on the merits, while
-"'" refers to the place where the suit
may be ;led. &n criminal actions, however,
venue is jurisdictional. (urisdiction is a
matter of substantive lawI venue, of
procedural law. (urisdiction may be not be
conferred by consent through waiver upon
a court, but venue may be waived, e9cept in
criminal cases (%ocu, et al. v. 5an,
".. %o. &'*022, Se$te,3er 2(, 200*;
Santos +++ v. %orthwest )irlines, ".. %o.
&0&*(/, -une 2(, &992!.
Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+)
@ar2 ;led with the Bureau of &nternal
0evenue a complaint for refund of ta9es
paid, but it was not acted upon. !o, he
;led a similar complaint with the Court of
%a9 Appeals raBed to one of its Divisions.
@ar2Js complaint was dismissed. %hus,
he ;led with the Court of Appeals a
petition for certiorari under 0ule K<.
Does the Court of Appeals have
jurisdiction over @ar2Js petition5 67.<+8
SUGGESTED ANSWER:
'o. %he procedure is governed by !ec. DD
of 0. A. H7A7. Decisions of a division of
the Court of %a9 Appeals must be
appealed to the Court of %a9 Appeals en
banc. $urther, the C%A now has the same
ran2 as the Court of Appeals and is no
longer considered a ?uasi-judicial agency.
&t is li2ewise provided in the said law that
the decisions of the C%A en bane are
cogniGable by the !upreme Court under
0ule >< of the DHHE 0ules of Civil
/rocedure.
Jurisdiction" )ncaable of Pecuniary 9stimation ('((()
A brings an action in the @%C of @anila
against B for the annulment of an
e9trajudicial foreclosure sale of real
property with an assessed value of
/<F,FFF.FF located in .aguna. %he
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 0%C of .aguna.
Decide with reason. 6*+8
SUGGESTED ANSWER:
%he motion should be granted. %he @%C
of @anila has no jurisdiction because the
action for the annulment of the
e9trajudicial foreclosure is not capable of
pecuniary estimation and is therefore
)
under the jurisdiction of the 0%Cs.
(ussell v. =estil, (0' SC) 7(/,F&999D!.
:owever, the action for annulment is a
personal action and the venue depends
on the residence of either A or B. :ence,
it should be brought in the 0%C of the
place where either of the parties resides.
Jurisdiction" )ncaable of Pecuniary 9stimation ('((()
A ;les an action in the @unicipal %rial
Court against B, the natural son of ALs
father, for the partition of a parcel of land
located in %aytay, 0iGal with an assessed
value of /7F,FFF.FF. B moves to dismiss
the action on the ground that the case
should have been brought in the 0%C
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. 0esolve the motion.
67+8
SUGGESTED ANSWER:
%he motion should be granted. %he action
for partition depends on a determination
of the hereditary rights of A and B, which
is not capable of pecuniary estimation.
:ence, even though the assessed value of
the land is /7F,FFF.FF, the @unicipal %rial
Court has no jurisdiction. (ussell v.
=estil, su$ra!
Jurisdiction" )ncaable of Pecuniary 9stimation ('((.)
A ;led with the @%C of @anila an action
for speci;c performance against B, a
resident of MueGon City, to compel the
latter to e9ecute a deed of conveyance
covering a parcel of land situated in
MueGon City having an assessed value of
pDH,FFF.FF. B received the summons and
a copy of the Complaint on F7 (anuary
7FF*. #n DF (anuary 7FF*, B ;led a
@otion to Dismiss the Complaint on the
ground of lac2 of jurisdiction contending
that the subject matter of the suit was
incapable of pecuniary estimation. %he
court denied the motion. &n due time, B
;led with the 0%C a /etition for
Certiorari praying that the said #rder be
set aside because the @%C had no
jurisdiction over the case. K+ #n D*
$ebruary 7FF*, A ;led with the @%C a
motion to declare B in default. %he
motion was opposed by B on the ground
that his /etition for Certiorari was still
pending.
6a8 3as the denial of the @otion to
Dismiss the Complaint correct5
6b8 0esolve the @otion to Declare the
Defendant in Default.
SUGGESTED ANSWER:
6a8 %he denial of the @otion to Dismiss
the Complaint was not correct. Although
the assessed value of the parcel of land
involved was /DH,FFF.FF, within the
jurisdiction of the @%C of @anila, the
action ;led by A for !peci;c /erformance
against B to compel the latter to e9ecute a
Deed of Conveyance of said parcel of land
was not capable of pecuniary
estimation and, therefore, the action was
within the jurisdiction of 0%C. (ussel v.
=estil, (0' SC) 7(/ F&999D; Co$ioso v.
Co$ioso, ".. %o. &'92'(, 9cto3er 2/,2002;
Ca3utihan v. 8an#center Construction, (/(
SC) (*( F2002D!. ALTERNATIE ANSWER:
&f the action afects title to or possession
of real property then it is a real action
and jurisdiction is determined by the
assessed value of the property. &t is
within the jurisdiction therefore of the
@etropolitan %rial Court.
SUGGESTED ANSWER:
6b8 %he Court could declare B in default
because B did not obtain a writ of
preliminary injunction or a temporary
restraining order from the 0%C prohibiting
the judge from proceeding in the case during
the pendency of the petition for certiorari.
(Sec. 7 of ule 6*; 0iaC v. 0iaC, ((& SC) (02
F2002D.
ALTERNATIE ANSWER:
%he Court should not declare B in default
inasmuch as the jurisdiction of @%C was
put in issue in the /etition $or Certiorari
;led with the 0%C. %he @%C should defer
further proceedings pending the result of
such petition. (4ternal "ar#ens Me,orial
ParE
Cor$oration v. Court of )$$eals, &6' SC) '2&
F&9//D!.
Jurisdiction" :%C ('((')
/ sued A and B in one complaint in the
0%C-@anila, the cause of action against A
being on an overdue promissory note for
/*FF,FFF.FF and that against B being on
an alleged balance of /*FF,FFF.FF on the
purchase price of goods sold on credit.
Does the 0%C-@anila have jurisdiction
over the case5 "9plain. 6*+8
SUGGESTED ANSWER:
'o, the 0%C-@anila has no jurisdiction
over the case. A and B could not be joined
as defendants in one complaint because
the right to relief against both defendants
do not arise out of the same transaction or
series of transactions and there is no
common ?uestion of law or fact common
to both. (Rule 3, sec. .). :ence, separate
complaints will have to be ;les and they
would fall under the jurisdiction of the
@etropolitan %rial Court. F2lores v.
Mallare6Phili$$s,
&'' SC) (77 (&9/6!D.
Jurisdiction" *ffice of t,e Solicitor 3eneral ('((+)
&n DHHK, Congress passed 0epublic Act
'o. ADAH, otherwise 2nown as the -oterJs
0egistration Act of DHHK, providing for
computeriGation of elections. /ursuant
thereto, the C#@"."C approved the
-oterJs 0egistration and &denti;cation
!ystem 6-0&!8 /roject. &t issued
invitations to pre-?ualify and bid for the
project. After the public bidding, $oto2ina
was declared the winning bidder with a
bid of /K billion and was issued a 'otice
of Award. But C#@"."C Chairman 1ener
1o objected to the award on the ground
that under the Appropriations Act, the
budget for the C#@"."CJs moderniGation
is only /D
)
billion. :e announced to the public that
the -0&! project has been set aside. %wo
Commissioners sided with Chairman 1o,
but the majority voted to uphold the
contract.
@eanwhile, $oto2ina ;led with the 0%C a
petition for mandamus compel the C#@"."C
to implement the contract. %he #fice of the
!olicitor 1eneral 6#!18, representing
Chairman 1o, opposed the petition on the
ground that mandamus does not lie to
enforce contractual obligations. During the
proceedings, the majority Commissioners
;led a manifestation that Chairman 1o was
not authoriGed by the C#@"."C "n Banc to
oppose the petition.
Ma. the 9S" re$resent Chair,an "o
3efore the 5C notwithstan#ing that his
$osition is contrar. to that of the
,aAorit.; (*H!
SUGGESTED ANSWER:
Nes, the #!1 may represent the C#@"."C
Chairman before the 0%C notwithstanding
that his position is contrary to that of a
majority of the Commission members in the
C#@"."C because the #!1 is an
independent oficeI itJs hands are not
shac2led to the cause of its client agency.
%he primordial concern of the #!1 is to see
to it that the best interest of the government
is upheld (C9M484C
v. Iu.ano6Pa#illa, Se$te,3er &/,
2002!.
Jurisdiction" *mbudsman Case 8ecisions ('((+)
Does the Court of Appeals have
jurisdiction to review the Decisions in
criminal and administrative cases of the
#mbudsman5 67.<+8
SUGGESTED ANSWER:
%he !upreme Court has e9clusive appellate
jurisdiction over decisions of the
#mbudsman in criminal cases (Sec. 14, R.-.
.77)). &n administrative and disciplinary
cases, appeals from the #mbudsman must be
ta2en to the Court of Appeals under 0ule >*
(8anting v. 9,3u#s,an, ".. %o. &'&'26,
Ma. 6, 200*; 2a3ian v. 0esierto, ".. %o.
&297'2, Se$te,3er &6, &99/; Sec. &', ).
6770!.
Jurisdiction" Probate ('((1)
(osefa ;led in the @unicipal Circuit %rial
Court of Alicia and @abini, a petition for
the probate of the will of her husband,
@artin, who died in the @unicipality of
Alicia, the residence of the spouses. %he
probable value of the estate which
consisted mainly of a house and lot was
placed at /H<,FFF.FF and in the petition
for the allowance of the will, attorneyLs
fees in the amount of /DF,FFF.FF,
litigation e9penses in the amount of
/<,FFF.FF and costs were included. /edro,
the ne9t of 2in of @artin, ;led an
opposition to the probate of the will on
the ground that the total amount included
in the relief of the petition is more than
/DFF,FFF.FF, the ma9imum jurisdictional
amount for municipal circuit trial courts.
%he court overruled the opposition and
proceeded to hear the case.
by: sirdondee@gmail.com Page 12 of 66 3as the
municipal circuit trial court correct in its
ruling5 3hy5 6<+8
SUGGESTED ANSWER:
Nes, the @unicipal Circuit %rial Court was
correct in proceeding to hear the case. &t
has e9clusive jurisdiction in all matters of
probate, both testate and intestate, where
the value of the estate does not e9ceed
/DFF,FFF.FF 6now /7FF,FFF.FF8. %he
value in this case of /H<,FFF.FF is within
its jurisdiction. &n determining the
jurisdictional amount, e9cluded are
attorneyLs fees, litigation e9penses and
costsI these are considered only for
determining the ;ling fees.
(5.".5l3. 129, Sec. 33, as
amen#e#)
Jurisdiction" 1%C ('((')
/ sued A in the 0%C-@anila to recover the
following sumsO 6D8 /7FF,FFF.FF on an
overdue promissory note, 678 /AF,FFF.FF
on the purchase price of a computer, 6*8
/D<F,FFF.FF for damages to his car and
6>8 /DFF,FFF.FF for attorneyLs fees and
litigation e9penses. Can A move to
dismiss the case on the ground that the
court has no jurisdiction over the subject
matter5 "9plain. 67+8
SUGGESTED ANSWER:
'o, because the 0%C-@anila has
jurisdiction over the subject matter. /
may sue A in one complaint asserting as
many causes of action as he may have and
since all the claims are principally for
recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
[Rule 2, sec. ((#)]. %he aggregate amount
claimed is /><F,FFF.FF, e9clusive of the
amount of /DFF,FFF.FF for attorneyLs fees
and e9penses of litigation. :ence, the
0%C-@anila has jurisdiction.
Jurisdiction" Subdivision 6omeo2ner ('((+)
3hat court has jurisdiction over an action
for speci;c performance ;led by a
subdivision homeowner against a
subdivision developer5 Choose the correct
answer. "9plain. 1 %he :ousing and .and se
0egulatory Board
2 %he !ecurities and "9change
Commission
3 %he 0egional %rial Court
4 %he Commercial Court or the
0egional %rial Court designated by
the !upreme Court to hear and
decide Pcommercial cases.P
SUGGESTED ANSWER:
An action for speci;c performance by a
subdivision homeowner against a
subdivision developer is within the
jurisdiction of the :ousing and .and se
0egulatory Board. !ec. D of /.D. D*>>
provides that the :.0B has jurisdiction
over cases involving speci;c performance of
contractual and statutory obligations ;led by
buyers of subdivision lots and condominium
units against the owner, developer, dealer,
bro2er or salesman (Manila BanEers 8ife
+nsurance Cor$. v. 4##. %g JoE Kei, "..
%o. &(979&, 0ece,3er &2, 200(; JaEilala v.
2araon, ".. %o. &'(2((, 9cto3er &/, 200';
Sec. &, P.0. &(''!.
)
#atarungang Pambarangay" 0uon" 9;tent of Aut,ority"
('((1)
An amicable settlement was signed before
a .upon %agapamayapa on (anuary *,
7FFD. #n (uly K, 7FFD, the prevailing party
as2ed the .upon to e9ecute the amicable
settlement because of the non-compliance
by the other party of the terms of the
agreement. %he .upon concerned refused
to e9ecute the settlementCagreement. a8 &s
the .upon correct in refusing to e9ecute
the
settlementCagreement5 6*+8 b8 3hat
should be the course of action of the
prevailing party in such a case5
67+8
SUGGESTED ANSWER:
a8 Nes, the .upon is correct in refusing to
e9ecute the settlementCagreement
because the e9ecution sought is already
beyond the period of si9 months from the
date of the settlement within which the
.upon is authoriGed to e9ecute. (Sec. 417,
+ocal ,o!ernment o#e of
1991)
b8 After the si9-month period, the
prevailing party should move to e9ecute
the settlementCagreement in the
appropriate city or municipal trial court.
6&d.8
CIVIL PROCEDURE
Actions" Cause of Action vs. Action (1999)
Distinguish action from cause of action.
67+8
SUGGESTED ANSWER:
An AC%&#' is one by which a party sues
another for the enforcement or
protection of a right, or the prevention or
redress of a wrong. (Sec. 3(-), Rule )
A CA!" #$ AC%&#' is the act or
omission by which a party violates a right
of another. (Sec. 2, Rule 2 of t0e 1997 Rules)
)n action ,ust 3e 3ase# on a cause of
action. (Sec. 1, Rule 2 of t0e 1997 Rules)
Actions" Cause of Action" Joinder - Slitting (199!)
1ive the efects of the followingO
1 !plitting a single cause of actionO and
6*+Q
2 'on-joinder of a necessary party. )7+,
SUGGESTED ANSWER:
D. %he efect of splitting a single cause of
action is found in the rule as followsO &f
two or more suits are instituted on the
basis of the same cause of action, the
;ling of one or a judgment on the merits
in any one is available as a ground for the
dismissal of the others. (Sec. 4 of Rule 2)
7. %he efect of the non-joinder of a
necessary party may be stated as followsO
%he court may order the inclusion of an
omitted necessary party if jurisdiction
over his person may be obtained. %he
failure to comply with the order for his
inclusion without justi;able cause to a
waiver of the claim against such party.
%he court may proceed with the action
but the judgment rendered shall be
without
prejudice to the rights of each necessary
party. (Sec. 9 of Rule 3)
Actions" Cause of Action" Joinder of Action (1999)
a8 3hat is the rule on joinder of
causes of action5 67+8
b8 A secured two loans from B5 one
for /<FF,FFF.FF and the other for
/D,FFF,FFF.FF, payable on diferent dates.
Both have fallen due. &s B obliged to ;le
only one complaint against A for the
recovery of both loans5 "9plain. 67+8
SUGGESTED ANSWER:
a. %he rule on (#&'D"0 #$ CA!"!
#$ AC%&#' is that a party may in one
pleading assert, in the alternative or
otherwise join as many causes of action as
he may have against an opposing party,
provided that the rule on joinder of
parties is complied withI
D., the joinder shall not include
special civil actions or actions
governed by special rules, but may
include causes of action pertaining to
diferent venues or jurisdictions
provided one cause of action falls
within the jurisdiction of a 0%C and
venue lies thereinI and
7., the aggregate amount claimed
shall be the test of jurisdiction where
the claims in all the causes of action
are principally for the recovery of
money. (Sec. (, Rule 2 of t0e 1997 Rules)
b. 'o. (oinder is only permissive since
the loans are separate loans which may
be governed by the diferent terms and
conditions. %he two loans give rise to two
separate causes of action and may be the
basis of two separate complaints.
Actions" Cause of Action" Joinder of Action ('((7)
/erry is a resident of @anila, while 0ic2y
and @arvin are residents of Batangas City.
%hey are the coowners of a parcel of
residential land located in /asay City with
an assessed value of /DFF,FFF.FF. /erry
borrowed /DFF,FFF.FF from 0ic2y which
he promised to pay on or before December
D, 7FF>. :owever, /erry failed to pay his
loan. /erry also rejected 0ic2y and
@arvinJs proposal to partition the
property. 0ic2y ;led a complaint against
/erry and @arvin in the 0%C of /asay City
for the partition of the property. :e also
incorporated in his complaint his action
against /erry for the collection of the
latterJs /DFF,FFF.FF loan, plus interests
and attorneyJs fees.
!tate with reasons whether it was proper
for 0ic2y to join his causes of action in
his complaint for partition against /erry
and @arvin in the 0%C of /asay City. 6<+8
SUGGESTED ANSWER:
)
&t was not proper for 0ic2y to join his
causes of action against /erry in his
complaint for partition against /erry and
@arvin. %he causes of action may be
between the same parties, 0ic2y and
/erry, with respect to the loan but not
with respect to the partition which
includes @arvin. %he joinder is between a
partition and a sum of money, but
/A0%&%&#' is a special civil action under
0ule KH, which cannot be joined with
other causes of action. (See. ([b], Rule 2,)
Also, the causes of action pertain to
diferent venues and jurisdictions. %he
case for a sum of money pertains to the
municipal court and cannot be ;led in
/asay City because the plaintif is from
@anila while 0ic2y and @arvin are from
Batangas
it%. (Sec. (, Rule 2,)
Actions" Cause of Action" Slitting (1999)
a8 3hat is the rule against splitting a
cause of action and its efect on the
respective rights of the parties for failure
to comply with the same5 67+8
b8 A purchased a lot from B for
/l,<FF,FFF.FF. :e gave a down payment
of /<FF,FFF, signed a promissory note
payable thirty days after date, and as a
security for the settlement of the
obligation, mortgaged the same lot to B.
3hen the note fell due and A failed to pay,
B commenced suit to recover from A the
balance of /D,FFF,FFF.FF. After securing
a favorable judgment on his claim, B
brought another action against A before
the same court to foreclose the mortgage.
A now ;les a motion to dismiss the second
action on the ground of bar by prior
judgment. 0ule on the motion. 67+8
SUGGESTED ANSWER:
a. %he rule against splitting a cause of
action and its efect are that if two or
more suits are instituted on the basis of
the same cause of action, the ;ling of one
or a judgment upon the merits in any one
is available as a ground for the dismissal
of the others. (Sec. 4, Rule
2)
b. %he motion to dismiss should be
granted. 3hen B commenced suit to
collect on the promissory note, he waived
his right to foreclose the mortgage. B
split his cause of action.
Actions" Cause of Action" Slitting ('((7)
0aphael, a warehouseman, ;led a
complaint against - Corporation, R
Corporation and N Corporation to compel
them to interplead. :e alleged therein
that the three corporations claimed title
and right of possession over the goods
deposited in his warehouse and that he
was uncertain which of them was entitled
to the goods. After due proceedings,
judgment was rendered by the court
declaring that R Corporation was entitled
to the goods. %he decision became ;nal
and e9ecutory.
by: sirdondee@gmail.com Page 14 of 66 0aphael ;led
a complaint against R Corporation for the
payment of /DFF,FFF.FF for storage charges
and other advances for the goods. R
Corporation ;led a motion to dismiss the
complaint on the ground of res judicata. R
Corporation alleged that 0aphael should have
incorporated in his complaint for interpleader
his claim for storage fees and advances and
that for his failure he was barred from
interposing his claim. 0aphael replied that he
could not have claimed storage fees and other
advances in his complaint for interpleader
because he was not yet certain as to who was
liable therefor. 0esolve the motion with
reasons. 6>+8
SUGGESTED ANSWER:
%he motion to dismiss should be granted.
0aphael should have incorporated in his
complaint for interpleader his claim for
storage fees and advances, the amounts of
which were obviously determinable at the time
of the ;ling of the complaint. %hey are part of
0aphaelJs cause of action which he may not be
split. :ence, when the warehouseman as2s the
court to ascertain who among the defendants
are entitled to the goods, he also has the right
to as2 who should pay for the storage fees and
other related e9penses. %he ;ling of the
interpleader is available as a ground for
dismissal of the second case. (Sec. 4, Rule 2,) &t
is a2in to a compulsory counterclaim which, if
not set up, shall be barred. (Sec. 2, ule 9, ;
)rreCa v. 0iaC, "..
%o. &((&&(, )ugust (0,
200&!
Actions" Cause of Actions" :otion to 8ismiss" bar by
rior /udgment ('((')
0olando ;led a petition for declaration of
the nullity of his marriage to Carmela
because of the alleged psychological
incapacity of the latter.
After trial, the court rendered judgment
dismissing the petition on the ground
that 0olando failed to prove the
psychological incapacity of his wife. %he
judgment having become ;nal, 0olando
;led another petition, this time on the
ground that his marriage to Carmela had
been celebrated without a license. &s the
second action barred by the judgment in
the ;rst5 3hy5 67+8
SUGGESTED ANSWER:
'o, the second action is not barred by the
judgment in the ;rst because they are
diferent causes of action. %he ;rst is for
annulment of marriage on the ground of
psychological incapacity under Article *K
of the $amily Code, while the second is
for declaration of nullity of the marriage
in view of the absence of a basic
re?uirement, which is a marriage license.
)-rts, 9 6 3((3), $amil% o#e]. %hey are
diferent causes of action because the
evidence re?uired to prove them are not
the same. FPagsisihan v. Court of )$$eals,
9* SC) *'0
(&9/0! an# other casesD.
Actions" Counterclaim ('((')
)
%he plaintif sued the defendant in the
0%C for damages allegedly caused by the
latterLs encroachment on the plaintifLs lot.
&n his answer, the defendant denied the
plaintifLs claim and alleged that it was the
plaintif who in fact had encroached on his
6defendantLs8 land. Accordingly, the
defendant counterclaimed against the
plaintif for damages resulting from the
alleged encroachment on his lot. %he
plaintif ;led an e9 parte motion for
e9tension of time to answer the
defendantLs counterclaim, but the court
denied the motion on the ground that it
should have been set for hearing. #n the
defendantLs motion, therefore, the court
declared the plaintif in default on the
counterclaim. 3as the plaintif validly
declared in default5 3hy5 6<+8
SUGGESTED ANSWER:
'o, the plaintif was not validly declared
in default. A motion for e9tension of time
to ;le an answer may be ;led e9 parte
and need not be set for hearing.
F),ante vs. Sunga, 6' SC) &92
(&97*!D.
ALTERNATIE ANSWER:
%he general rule is that a counterclaim
must be answered within ten 6DF8 days
from service. (Rule 11, sec. 4). :owever, a
counterclaim that raises issues which are
deemed automatically joined by the
allegations of the Complaint need not be
answered.
F"oAo v. "o.ala, (* SC) **7
(&970!D.
&n this case, the defendantLs counterclaim
is a compulsory counterclaim which arises
out or is connected with the transaction
and occurrence constituting the subject
matter of the plaintifLs claim. &t raises the
same issue of who encroached on whose
land. :ence, there was no need to answer
the counterclaim.
Actions" Counterclaim vs. Crossclaim (1999)
a8 3hat is a counterclaim5 67+8 b8
Distinguish a counterclaim from a
crossclaim. 67+8
c8 A, who is engaged in tile
installation business, was sued by ""
&ndustries for breach of contract for
installing diferent marble tiles in its
ofices as provided in their contract.
3ithout ;ling any motion to dismiss, A
;led its Answer with Counterclaim
theoriGing that "" &ndustries has no legal
capacity to sue because it is not a duly
registered corporation. By way of
counterclaim, A as2ed for moral and
actual damages as her business depleted
as a result of the withdrawal and
cancellation by her clients of their
contracts due to the ;ling of the case. %he
case was dismissed after the trial court
found that "" &ndustries is not a
registered corporation and therefore has
no legal capacity to sue. :owever, it set a
date for the reception of evidence on AJs
counterclaim. "" &ndustries opposed on
the ground that the counterclaim could no
longer be prosecuted in view of the
dismissal of the main
by: sirdondee@gmail.com Page 15 of 66 case. &s the
stand of "" &ndustries sustainable5 "9plain.
)7+,
SUGGESTED ANSWER:
a) A C#'%"0C.A&@ is any claim
which a defending party may have against
an opposing party. (Sec. ., Rule .)
b) A counterclaim is distinguished
from a C0#!!C.A&@ in that a cross-claim
is any claim by one party against a co-
party arising out of the transaction or
occurrence that is the subject matter
either of the original action or of a
counterclaim therein. A counterclaim is
against an opposing party while a cross-
claim is against a co-party. (Sec. *, Rule .)
c) 'o, because if no motion to dismiss
has been ;led, any of the grounds for
dismissal provided in the 0ules may be
pleaded as an afirmative defense in the
answer which may include a
counterclaim. %his is what A did by ;ling
an Answer alleging the lac2 of legal
capacity of "" &ndustries to sue because
it is not a duly registered corporation with
a counterclaim for damages. %he
dismissal of the complaint on this ground
is without prejudice to the prosecution of
the counterclaim in the same action
because it is a compulsory counterclaim.
(Sec. . of Rule 1..)
Actions" Cross$Claims" %,ird Party Claims (1997)
B and C borrowed />FF,FFF.FF from A.
%he promissory note was e9ecuted by B
and C in a (oint and several capacity. B,
who received the money from A, gave C
/7FF,FFF.FF. C, in turn, loaned
/DFF,FFF.FF out of the /7FF,FFF.FF he
received to D. a8 &n an action ;led by A
against B and C with the
0%C of MueGon City, can B ;le a cross-
claim against C for the amount of
/7FF,FFF.FF5 b8 Can C ;le a third party
complaint against D for the amount of /
DFF,FFF.FF5
SUGGESTED ANSWER:
6a8 Nes. B can ;le a cross-claim against C
for the amount of 7FF,FFF.FF given to C.
A cross-claim is a claim ;led by one party
against a co-party arising out of the
transaction or occurrence that is the
subject matter of the original action or a
counterclaim therein and may include a
claim that the party against whom it is
asserted is or may be liable to the cross-
claimant for all or part of a claim
asserted against the cross-claimant. (Sec.
* Rule .)
6b8 'o, C cannot ;le a third-party
complaint against D because the loan of
/DFF,FFF has no connection with the
opponentJs claim. C could have loaned
the money out of other funds in his
possession.
ALTERNATIE ANSWER:
Nes, C can ;le a third-party complaint
against D because the loan of DFF,FFF.FF
was ta2en out of the /7FF,FFF received
from B and hence the loan see2s
)
contribution in respect to his opponentJs
claim. (Sec. 11 of Rule .)
Actions" 8erivative Suit vs. Class Suit ('((7)
Distinguish a derivative suit from a class
suit.
SUGGESTED ANSWER:
A D"0&-A%&-" !&% is a suit in e?uity
that is ;led by a minority shareholder in
behalf of a corporation to redress wrongs
committed against it, for which the
directors refuse to sue, the real party in
interest being the corporation itself (8int
v. 8i,6Lu, ".+8 %o. &(/('(, 2e3ruar. &9,
200&!, while a C.A!! !&% is ;led
regarding a controversy of common or
general interest in behalf of many persons
so numerous that it is impracticable to
join all as parties, a number which the
court ;nds suficiently representative who
may sue or defend for the bene;t of all.
(Sec. 12, Rule 3) &t is worth noting that a
derivative suit is a representative suit,
just li2e a class suit.
Actions" &iling" Civil Actions - Criminal Action ('((7)
3hile cruising on a highway, a ta9icab
driven by @ans hit an electric post. As a
result thereof, its passenger, (ovy,
sufered serious injuries. @ans was
subse?uently charged before the
@unicipal %rial Court with rec2less
imprudence resulting in serious physical
injuries.
%hereafter, (ovy ;led a civil action against
.ourdes, the owner of the ta9icab, for
breach of contract, and @ans for ?uasi-
delict. .ourdes and @ans ;led a motion to
dismiss the civil action on the ground of
litis pendentia, that is, the pendency of
the civil action impliedly instituted in the
criminal action for rec2less imprudence
resulting in serious physical injuries.
0esolve the motion with reasons. 6>+8
SUGGESTED ANSWER:
%he motion to dismiss should be denied.
%he action for breach of contract against
the ta9icab owner cannot be barred by
the criminal action against the ta9icab
driver, although the ta9icab owner can be
held subsidiarily liable in the criminal
case, if the driver is insolvent. #n the
other hand, the civil action for ?uasi-
delict against the driver is an
independent civil action under Article **
of the Civil Code and !ec. *, 0ule DDD of
the 0ules of Court, which can be ;led
separately and can proceed
independently of the criminal action and
regardless of the result of the latter.
(Sa,son v. 0awa., ".. %os. &600*'6**, -ul.
2&,
200'!
Actions" )ntervention" 1e<uisites ('((()
3hat are the re?uisites for an
intervention by a nonparty in an action
pending in court5 6<+8
SUGGESTED ANSWER:
%he re?uisites for intervention
areO 1 .egal interest in the matter in a
controversyI or
2 .egal interest in the success of either
of the partiesI or
1 .egal interest against bothI or
2 !o situated as to be adversely
afected by a distribution or other
disposition or property in the
custody of the court or of an oficer
thereof.
3 &ntervention will not unduly delay
or prejudice the adjudication of the
rights or original partiesI
4 &ntervenorLs rights may not be fully
protected in a separate
proceedings.
()cenas ++ v. Court of )$$eals, 2'7 SC)
77( F&99*D; Sec. &, ule &9, &997 ules of
Civil Proce#ure.!
Actions" 1eal Actions - Personal Actions ('((+)
3hat do you mean by a8 real actionsI and
b8 personal action5 67+8
SUGGESTED ANSWER:
a. 0"A. AC%&#'! are actions afecting
title to or possession of real property or
an interest therein (2ortune Motors, +nc. v. C), ". . %o. 76'(&,
9cto3er &6, &9/9; ule ', Sec. &!.
b. All other actions are /"0!#'A.
AC%&#'! (Rule 4, Section /) which include
those arising from privity of contract.
Actions" Survives 8eat, of t,e 8efendant ('((()
/( engaged the services of Atty. !% to
represent him in a civil case ;led by #/
against him which was doc2eted as Civil
Case 'o. D7*. A retainership agreement
was e9ecuted between /( and Atty. !%
whereby /( promised to pay Atty. !% a
retainer sum of /7>,FFF.FF a year and to
transfer the ownership of a parcel of land
to Atty. !% after presentation of /(Ls
evidence. /( did not comply with his
underta2ing. Atty. !% ;led a case against
/( which was doc2eted as Civil Case 'o.
><K. During the trial of Civil Case 'o.
><K, /( died.
1 &s the death of /( a valid ground to
dismiss the money claim of Atty.
!% in Civil Case 'o. ><K5 "9plain.
67+8
2 3ill your answer be the same with
respect to the real property being
claimed by Atty. !% in Civil Case
'o. ><K5 "9plain 67+8
SUGGESTED ANSWER:
1 'o. nder !ec. 7F, 0ule *, DHHE
0ules of Civil /rocedure, when the
action is for recovery of money
arising from contract, e9press or
implied, and the defendant dies
before entry of ;nal 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 ;nal judgment. A favorable
judgment obtained by the plaintif
shall be enforced in the manner
especially provided in the 0ules for
prosecuting claims against the
estate of a deceased person.
2 Nes, my answer is the same. An
action to recover real property in
any event survives the death of the
defendant. 6!ec. D, 0ule AE, 0ules
of Court8. :owever, a favorable
judgment may be enforced
)
in accordance with !ec. E6b8 0ule *H
6DHHE 0ules of Civil /rocedure8
against the e9ecutor or administrator
or successor in interest of the
deceased.
Aeals" Period of Aeal" &res, Period 1ule ('((.)
Defendant R received an adverse Decision
of the 0%C in an ordinary civil case on F7
(anuary 7FF*. :e ;led a 'otice of Appeal
on DF (anuary 7FF*. #n the other hand,
plaintif A received the same Decision on
FK (anuary 7FF* and, on DH (anuary 7FF*,
;led a @otion for 0econsideration of the
Decision. #n D* (anuary 7FF*, defendant R
;led a @otion withdrawing his notice of
appeal in order to ;le a @otion for 'ew
%rial which he attached. #n 7F (anuary
7FF*, the court denied ALs @otion for
0econsideration and RLs @otion to
3ithdraw 'otice of Appeal. /laintif A
received the #rder denying his @otion for
0econsideration on F* $ebruary 7FF* and
;led his 'otice of Appeal on F< $ebruary
7FF*. %he court denied due course to ALs
'otice of Appeal on the ground that he
period to appeal had already lapsed. K+
6a8 &s the courtLs denial of RLs @otion to
3ithdraw 'otice of Appeal proper5
6b8 &s the courtLs denial of due course to
ALs appeal correct5
SUGGESTED ANSWER:
6a8 'o, the courtLs denial of RLs @otion to
3ithdraw 'otice of Appeal is not proper,
because the period of appeal of R has not
yet e9pired. $rom (anuary 7, 7FF* when
R received a copy of the adverse decision
up to (anuary D*, 7FF* when he ;led his
withdrawal of appeal and @otion for 'ew
%rial, only ten 6DF8 days had elapsed and
he had ;fteen 6D<8 days to do so.
6b8 'o, the courtLs denial of due course to
ALs appeal is not correct because the
appeal was ta2en on time. $rom (anuary
K, 7FF* when A received a copy of the
decision up to (anuary DH, 7FF* when he
;led a @otion for 0econsideration, only
twelve 6D78 days had elapsed.
Conse?uently, he had three 6*8 days from
receipt on $ebruary *, 7FF* of the #rder
denying his @otion for 0econsideration
within which to appeal. :e ;led is notice
of appeal on $ebruary <, 7FF*, or only
two 678 days later.
ALTERNATIE ANSWER:
!ince ALs @otion for 0econsideration was
;led on (anuary DH, 7FF* and it was
denied on (anuary 7F, 7FF*, it was clearly
not set for hearing with at least three
daysL notice. %herefore, the motion was
pro forma and did not interrupt the
period of appeal which e9pired on
(anuary 7D, 7FF* or ;fteen 6D<8 days
after notice of the decision on (anuary K,
7FF*.
=*%9> %o standardiGe the appeal periods
provided in the 0ules and to aford
litigants fair opportunity to appeal their
cases, the Court deems it practical to
by: sirdondee@gmail.com Page 17 of 66 allow a
24S< P4+90 of &* #a.s within which to
;le the notice of appeal in the 0%C, counted
from receipt of the order dismissing a motion
for a new trial or motion for reconsideration.
F%e.$es et. al. vs. C), ".. %o. &'&*2', Se$te,3er &',
200*D
Certiorari" :ode of Certiorari ('((+)
"9plain each mode of certiorariO
&. )s a ,o#e of a$$eal fro, the
egional 5rial Court or the Court of
)$$eals to the Su$re,e Court. (2.*H!
SUGGESTED ANSWER:
Certiorari as a mode of appeal is
governed by 0ule >< of the 0ules of Court
which allows appeal from judgment, ;nal
order of resolution of the Court of
Appeals, !andiganbayan, the 0%C or
other courts whenever authoriGed by law
to the !upreme Court by veri;ed petition
for review raising only ?uestions of law
distinctly set forth.
2. )s a s$ecial civil action fro, the
egional 5rial Court or the Court of
)$$eals to the Su$re,e Court. (2.*H!
SUGGESTED ANSWER:
Certiorari as a !pecial Civil Action is
governed by 0ule K< of the 0ules of Court
when an aggrieved party may ;le a
veri;ed petition against a decision, ;nal
order or resolution of a tribunal, body or
board that has acted without or in e9cess
of its jurisdiction or grave abuse of
discretion amounting to lac2 or e9cess of
jurisdiction, when there is no appeal or
any other plain, speedy and ade?uate
remedy in the ordinary course of law.
(. )s a ,o#e of review of the
#ecisions of the %ational 8a3or
elations Co,,ission an# the
Constitutional Co,,issions. (2.*H!
SUGGESTED ANSWER:
Certiorari as a mode of review of the
decision of the '.0C is elevated to the
Court of Appeals under 0ule K<, as held
in the case of St. MartinMs 2uneral <o,e v.
%8C, ".. %o. &(0/66, Se$te,3er &6,
&99/. Certiorari as a mode of review from
the Commission on Audit 6C#A8 and
C#@"."C is elevated to the !upreme
Court within *F days from notice of the
judgment, decision or ;nal order or
resolution sought to be reviewed, as
provided for under the 0ule K> of the
DHHE 0ules of Civil /rocedure. &n the case
of the Civil !ervice Commission 6C!C8,
review of its judgments is through
petitions for review under !ec. < of 0ule
>* of the DHHE 0ules of Civil /rocedure.
Certiorari" 1ule ?7 vs. 1ule +7 (199!)
Diferentiate certiorari as an original
action from certiorari as a mode of
appeal. Q*+,
SUGGESTED ANSWER:
Certiorari as an original action and
certiorari as a mode of appeal may be
distinguished as followsO D. %he ;rst is a special civil action
under 0ule K< of the 0ules of Court,
while the second is an appeal
)
to the !upreme Court from the Court
of Appeals, !andiganbayan and the
0%C under 0ule ><.
1 %he ;rst can be ;led only on the grounds
of lac2 or e9cess of jurisdiction or grave
abuse of discretion tantamount to lac2 or
e9cess of jurisdiction, while the second is
based on the errors of law of the lower
court.
2 %he ;rst should be ;led within si9ty 6KF8
days from notice of the judgment, order
or resolution sought to be assailed (Sec.
4. Rule .(), while the second should be
;led within ;fteen 6D<8 days from notice
of the judgment or ;nal order or
resolution appealed from, or of the denial
of the petitionerJs motion for new trial or
reconsideration ;led in due time after
notice of the judgment. (Sec. 2, Rule 4()
3 %he ;rst cannot generally be availed of
as a substitute for a lost appeal under
0ules >F, >D, >7, >* and ><.
4 nder the ;rst, the lower court is
impleaded as a party respondent (Sec. (
of Rule .(), while under the second, the
lower court is not imp leaded.
(Sec. 4 of Rule of 4()
Certiorari" 1ule ?7 vs. 1ule +7 ('((7)
@ay the aggrieved party ;le a petition for
certiorari in the !upreme Court under
0ule K< of the DHHE 0ules of Civil
/rocedure, instead of ;ling a petition for
review on certiorari under 0ule >< thereof
for the nulli;cation of a decision of the
Court of Appeals in the e9ercise either of
its original or appellate jurisdiction5
"9plain.
SUGGESTED ANSWER:
%o '..&$N A D"C&!&#' of the Court of
Appeals the aggrieved party should ;le a
/"%&%&#' $#0 0"-&"3 #' C"0%&#0A0&
in the !upreme Court under 0ule >< of
the 0ules of Court instead of ;ling a
petition for certiorari under 0ule K<
e9cept under very e9ceptional
circumstances. A long line of decisions of
the !upreme Court, too numerous to
mention, holds that certiorari is not a
substitute for a lost appeal. &t should be
noted, however, when the Court of
Appeals imposes the death penalty, or a
lesser penalty for ofenses committed on
such occasion, appeal by petition for
review or ordinary appeal. &n cases when
the Court of Appeals imposes reclusion
perpetua, life imprisonment or a lesser
penalty, appeal is by notice of appeal ;led
with the Court of Appeals.
Contemt" 8eat, of a Party" 9ffect (199!)
A ;led a complaint for the recovery of
ownership of land against B who was
represented by her counsel R. &n the
course of the trial, B died. :owever, R
failed to notify the court of BJs death. %he
court proceeded to hear the case and
rendered judgment against B. After the
(udgment became ;nal, a writ of
e9ecution
by: sirdondee@gmail.com Page 18 of 66 was issued
against C, who being BJs sole heir, ac?uired
the property. Did the failure of counsel R to
inform the court of BJs death constitute direct
contempt5 67+8
SUGGESTED ANSWER:
'o. &t is not direct contempt under !ec. D
of 0ule ED, but it is indirect contempt
within the purview of !ec * of 0ule ED.
%he lawyer can also be the subject of
disciplinary action. (Sec. 1., Rule 3)
8efault ('((()
Defendant was declared in default by the
0%C 60%C8. /laintif was allowed to
present evidence in support of his
complaint. /hotocopies of oficial receipts
and original copies of afidavits were
presented in court, identi;ed by plaintif
on the witness stand and mar2ed as
e9hibits. !aid documents were ofered by
plaintif and admitted in evidence by the
court on the basis of which the 0%C
rendered judgment in favor of the
plaintif, pursuant to the relief prayed for.
pon receipt of the judgment, defendant
appeals to the Court of Appeals claiming
that the judgment is not valid because the
0%C based its judgment on mere
photocopies and afidavits of persons not
presented in court. &s the claim of
defendant valid5 "9plain. 6*+8
SUGGESTED ANSWER:
%he claim of defendant is not valid
because under the DHHE 0ules, reception
of evidence is not re?uired. 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 re?uires the claimant to
submit evidence, which may be delegated
to the cler2 of court. (Sec. 3, Rule 9)
ALTERNATIE ANSWER:
%he 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 plaintif must pass the
basic re?uirements of admissibility.
8efault ('((1)
@ario was declared in default but before
judgment was rendered, he decided to
;le a motion to set aside the order of
default. a8 3hat should @ario state in his
motion in order
to justify the setting aside of the order of
default5 6*+8 b8 &n what form should
such motion be5 67+8
SUGGESTED ANSWER:
a8 &n order to justify the setting aside of
the order of default, @ario should state in
his motion that his failure to answer was
due to fraud, accident, mista2e or
e9cusable negligence and that he has a
meritorious defense. [Sec. 3(b) of Rule 9,].
b8 %he motion should be under oath.
6&d.8
8efault" *rder of 8efault" 9ffects (1999)
)
1 3hen may a party be declared in
default5 67+8
2 3hat is the efect of an #rder of
Default5 67+8
3 $or failure to seasonably ;le his Answer
despite due notice, A was declared in
default in a case instituted against him
by B. %he following day, AJs mistress
who is wor2ing as a cler2 in the sala of
the (udge before whom his case is
pending, informed him of the
declaration of default. #n the same day,
A presented a motion under oath to set
aside the order of default on the ground
that his failure to answer was due to
fraud and he has a meritorious defense.
%hereafter, he went abroad. After his
return a wee2 later, with the case still
undecided, he received the order
declaring him in default. %he motion to
set aside default was opposed by B on
the ground that it was ;led 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. 0esolve the @otion. 67+8
SUGGESTED ANSWER:
D. A party may be declared in default
when he fails to answer within the time
allowed therefor, and upon motion of the
claiming party with notice to the
defending party, and proof of such
failure.
(Sec. 3, Rule 9)
2. %he efect of an #rder of Default is
that the court may proceed to render
judgment granting the claimant such
relief as his pleading may warrant unless
the court in its discretion re?uires the
claimant to submit evidence 6&d.8 %he
party in default cannot ta2e part in the
trial but shall be entitled to notice of
subse?uent proceedings. (Sec.
3[-])
*. Assuming that the motion to set
aside complies with the other
re?uirements of the rule, it should be
granted. Although such a motion may be
made after notice but before judgment
(Sec. 3[5] of Rule 9), with more reason may
it be ;led after discovery even before
receipt of the order of default.
8efault" 1emedies" Party 8eclared in 8efault (199!)
3hat are the available remedies of a
party declared &n defaultO
1 Before the rendition of judgmentI
)D+,
2 After judgment but before its ;nalityI
and )7+D
3 After ;nality of judgment5 )7+,
SUGGESTED ANSWER:
%he available remedies of a party
declared in default are as followsO
D. BEFORE THE RENDITION OF JUDGMENT
6a8 he may ;le a motion under oath
to set aside the order of default on
the grounds of fraud, accident,
mista2e or e9cusable negligence and
that he has a meritorious
by: sirdondee@gmail.com Page 19 of 66 defense (Sec.
3[b], Rule 9); and if it is denied, he may move to
reconsider, and if reconsideration is denied, he
may ;le the special civil action of certiorari for
grave abuse of discretion tantamount to lac2
or e9cess of the lower courtJs jurisdiction. (Sec.
1, Rule .() or
6b8 he may ;le a petition for
certiorari if he has been illegally
declared in default, e.g. during the
pendency of his motion to dismiss or
before the e9piration of the time to
answer.
(Matute vs. Court of )$$eals, 26
SC) 76/; )costa69falia vs.
Sun#ia,, /* SC) '&2.!
7. AFTER JUDGMENT BUT BEFORE ITS FINALITY, he
may ;le a motion for new trial on the
grounds of fraud, accident, mista2e,
e9cusable negligence, or a motion for
reconsideration on the ground of
e9cessive damages, insuficient evidence
or the decision or ;nal order being
contrary to law (Sec. 2, Rule 37)O and
thereafter. &f the motion is denied, appeal
to available under 0ules >F or >D,
whichever to applicable.
*. AFTER FINALITY OF THE JUDGMENT, there are
three ways to assail the judgment, which
areO a8 a petition for relief under 0ule
*A on the grounds of fraud, accident,
mista2e or e9cusable negligenceI
b8 annulment of judgment under 0ule
>E for e9trinsic fraud or lac2 of
jurisdictionI or c! certiorari if the
judgment to void on its face
or by the judicial record. (Balangca#
vs. -ustices of the Court of )$$eals,
".. %o. /(///. 2e3ruar. &2, &992,
206 /C) &7&!.
8efault" 1emedies" Party 8eclared in 8efault ('((+)
(ojie ;led with the 0egional %rial Court of
.aguna a complaint for damages against
(oe. During the pretrial, (ojie 6sic8 and
her 6sic8 counsel failed to appear despite
notice to both of them. pon oral motion
of (ojie, (oe was declared as in default
and (ojie was allowed to present her
evidence e9 parte. %hereafter, the court
rendered its Decision in favor of (ojie. (oe
hired (ose as his counsel. 3hat are the
remedies available to him5 "9plain. 6<+8
SUGGESTED ANSWER:
%he remedies available to a party against
whom a default decision is rendered are
as followsO D. B"$#0" the judgment in default
becomes ;nal and e9ecutoryO
1 @otion for 0econsideration
under 0ule *EI
2 @otion for 'ew %rial under
0ule *EI and
3 Appeal under 0ule >D.
7. A$%"0 the judgment in default
becomes ;nal and e9ecutoryO
1 /etition for 0elief under 0ule
*AI
2 Annulment of (udgment under
0ule >EI and
)
c. Certiorari under 0ule K<.
(See 5alsan 4nter$rises, +nc. v. Baliwag 5ransit,
+nc., ".. %o. &262*/, -ul. /,
&999!
8efault" 1emedies" Substantial Comliance ('((()
$or failure of 4.(. to ;le an answer within
the reglementary period, the Court, upon
motion of .@, declared 4( in default. &n
due time, 4( ;led an unveri;ed motion to
lift the order of default without an
afidavit of merit attached to it. 4(
however attached to the motion his
answer under oath, stating in said answer
his reasons for his failure to ;le an
answer on time, as well as his defenses.
3ill the motion to lift the order of default
prosper5 "9plain. 6*+8
SUGGESTED ANSWER:
Nes, there is substantial compliance with the
rule. Although the motion is unveri;ed, the
answer attached to the motion is veri;ed.
%he answer contains what the motion to lift
the order of default and the afidavit of
merit should contain, which are the reasons
of movantLs failure to answer as well as his
defenses. (Sec. ( F3D of ule 9, &997 ules of
Civil
Proce#ure; Cf. Citi3anE, %.). v. Court of
)$$eals, (0' SC) 679, F&999D; Consul v.
Consul, &7 SC) 667, 67& F&966D; 5olentino
v. Carlos, 66 Phil, &'*0, &'(6&'' F&9(/D,
%asser v. Court of )$$eals, &9& SC) 7/(
F&992D!.
8emurrer to 9vidence ('((1)
Carlos ;led a complaint against /edro in
the 0%C of #Gamis City for the recovery of
the ownership of a car. /edro ;led his
answer within the reglementary period.
After the pre-trial and actual trial, and
after Carlos has completed the
presentation of his evidence, /edro moved
for the dismissal of the complaint on the
ground that under the facts proven and
the law applicable to the case, Carlos is
not entitled to the ownership of the car.
%he 0%C granted the motion for dismissal.
Carlos appealed the order of dismissal and
the appellate court reversed the order of
the trial court. %hereafter, /edro ;led a
motion with the 0%C as2ing the latter to
allow him to present his evidence. Carlos
objected to the presentation of evidence
by /edro. !hould the 0%C grant /edroLs
motion to present his evidence5 3hy5
6<+8
SUGGESTED ANSWER:
'o. /edroLs motion should be denied. :e
can no longer present evidence. %he
0ules provide that if the motion for
dismissal is granted by the trial court but
on appeal the order of dismissal is
reversed, he shall be deemed to have
waived the right to present evidence.
(Sec. 1 of Rule 33, Rules of i!il "roce#ure)
ALTERNATIE ANSWER:
'o, because when the appellate court
reversed the order of the trial court it
should have rendered judgment in favor
of Carlos. (7uebral !. ourt of -88eals, 2(2
SR- 3(3, 199.)
by: sirdondee@gmail.com Page 20 of 66 8emurrer to
9vidence" Civil Case vs. Criminal Case ('((.) Compare the
efects of a denial of demurrer to evidence in
a civil case with those of a denial of demurrer
to evidence in a criminal case. >+
SUGGESTED ANSWER:
&n a civil case, the defendant has the right
to ;le a demurrer to evidence without
leave of court. &f his demurrer is denied,
he has the right to present evidence. &f
his demurrer is granted and on appeal by
the plaintif, the appellate court reverses
the order and renders judgment for the
plaintif, the defendant loses his right to
present evidence. 60ule **8.
&n a criminal case, the accused has to
obtain leave of court to ;le a demurrer to
evidence. &f he obtains leave of court and
his demurrer to evidence is denied, he
has the right to present evidence in his
defense. &f his demurrer to evidence is
granted, he is ac?uitted and the
prosecution cannot appeal.
&f the accused does not obtain leave of
court and his demurrer to evidence is
denied, he waives his right to present
evidence and the case is decided on the
basis of the evidence for the prosecution.
%he court may also dismiss the action on
the ground of insuficiency of the
evidence on its own initiative after giving
the prosecution the opportunity to be
heard. (Sec. 23 of Rule 119)
8iscovery" :odes of 8iscovery ('((()
Describe brie=y at least ;ve 6<8 modes of
discovery under the 0ules of Court. 6<+8
SUGGESTED ANSWER:
$ive modes of discovery under the 0ules
of Court areO
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 ta2en, at the
instance of any party, by deposition
upon oral e9amination or written
interrogatories. (Sec. 1, Rule 23, 1997
Rules of i!il "roce#ure.)
2 INTERROGATORIES TO PARTIES. nder
the same conditions speci;ed in
section D of 0ule 7*, any party
shall ;le and serve upon any
adverse party written
interrogatories regarding material
and relevant facts to be answered
by the party served. 6Sec. 1, Rule 2(,
1997 Rules of i!il "roce#ure.)
3 ADMISSION BY ADVERSE PARTY. At any
time after issues have been joined,
a party may ;le and serve upon any
other party a written re?uest for
the admission by the latter of the
genuineness of any material and
relevant document or of the truth
of any material and relevant matter
of fact.
(Sec. 1, Rule 2., 1997 Rules of i!il
"roce#ure.)
)
>. PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS. pon 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 i!il
"roce#ure.)
8iscovery" :odes" Suboena 8uces %ecum (1997)
&n an admiralty case ;led by A against N
!hipping .ines 6whose principal ofices
are in @anila8 in the 0%C, Davao City, the
court issued a subpoena duces tecum
directing N, the president of the shipping
company, to appear and testify at the trial
and to bring with him several documents.
6a8 #n what valid ground can N refuse to
comply with the subpoena duces tecum5
6b8 :ow can A ta2e the testimony of N
and present the documents as e9hibits
other than through the subpoena from
the 0%C5
SUGGESTED ANSWER:
6a8 N can refuse to comply with the
subpoena duces tecum on the ground
that he resides more than <F 6now DFF8
2ilometers from the place where he is to
testify, (Sec. 9 of former Rule 23; Sec. 1) of
new Rule 21). 6b8 A can ta2e the testimony of N and
present the documents as e9hibits by
ta2ing his deposition through oral
e9amination or written interrogatories.
(Rule 24; new Rule 23) :e may also ;le a
motion for the production or inspection of
documents. (Rule 27).
ALTERNATIE ANSWER:
6a8 %he witness can also refuse to comply
with the subpoena duces tecum on the
ground that the documents are not
relevant and there was no tender of fees
for one dayJs attendance and the
2ilometrage allowed by the rules.
8iscovery" Production and )nsection of 8ocuments
('((')
%he plaintif sued the defendant in the
0%C to collect on a promissory note, the
terms of which were stated in the
complaint and a photocopy attached to
the complaint as an anne9. Before
answering, the defendant ;led a motion
for an order directing the plaintif to
produce the original of the note so that
the defendant could inspect it and verify
his signature and the handwritten entries
of the dates and amounts.
1 !hould the judge grant the defendantLs
motion for production and inspection of
the original of the promissory note5
3hy5 67+8
2 Assuming that an order for production
and inspection was issued but the
plaintif failed to comply with it, how
should the defendant plead to the
alleged e9ecution of the note5 6*+8
SUGGESTED ANSWER:
6D8 Nes, because upon motion of any party
showing good cause, the court in which
the action is pending may order any party
to produce and permit the inspection of
designated documents. (Rule 27). %he
defendant has the right to inspect and
verify the original of the promissory note
so that he could intelligently prepare his
answer.
678 %he defendant is not re?uired to deny
under oath the genuineness and due
e9ecution of the promissory note,
because of the non-compliance by the
plaintif with the order for production
and inspection of the original thereof.
(Rule *, sec. *).
ALTERNATIE ANSWER:
678 %he defendant may ;le a motion to
dismiss the complaint because of the
refusal of the plaintif to obey the order
of the court for the production and
inspection of the promissory note. [Rule
29 Sec. 3(c)].
8ismissal" :otion to 8ismiss" 1es Judicata ('((()
AB, as mother and in her capacity as legal
guardian of her legitimate minor son, CD,
brought action for support against "$, as
father of CD and ABLs lawfully wedded
husband. "$ ;led his answer denying his
paternity with counterclaim for damages.
!ubse?uently, AB ;led a manifestation in
court that in view of the denial made by
"$, it would be futile to pursue the case
against "$. AB agreed to move for the
dismissal of the complaint, subject to the
condition that "$ will withdraw his
counter claim for damages. AB and "$
;led a joint motion to dismiss. %he court
dismissed the case with prejudice. .ater
on, minor son CD, represented by AB,
;led another complaint for support
against "$. "$ ;led a motion to dismiss on
the ground of res judicata. a8 &s res
judicata a valid ground for dismissal of
the
second complaint5 "9plain your answer
6*+8 b8 3hat are the essential re?uisite
of res judicata5 67+8
SUGGESTED ANSWER:
6a8 'o, res judicata is not a defense in an
action for support even if the ;rst case
was dismissed with prejudice on a joint
motion to dismiss. %he plaintifLs mother
agreed to the dismissal of the complaint
for support in view of the defendantLs
answer denying his paternity with a
counterclaim for damages. %his was in
the nature of a compromise of the right of
support which is prohibited by law. ()rt,
20(*, Civil Co#e; 0e
)sis v. Court of )$$eals, (0( SC) &76
F&999D!.
6b8 %he "ssential 0e?uisites of 0es (udicata
areO 1 the judgment or order rendered
must be ;nalI
2 the court rendering the same
must have jurisdiction of the
subject matter and of the
partiesI
3 it must be a judgment or order
on the meritsI and
)
>. there must be between the two
cases identity of parties, identity of
subject matter, and identity of causes
of action. (San 0iego v.
Car#ona, 70 Phil, 2/&
F&9'0D!
9vidence" Admissibility" P,otocoies ('((()
&f the photocopies of oficial receipts and
photocopies of afidavits were attached to
the position paper submitted by plaintif in
an action for unlawful detainer ;led with
@unicipal %rial Court on which basis the
court rendered judgment in favor of
plaintif5 "9plain. 67+8
SUGGESTED ANSWER:
%he claim of defendant is valid, because
although summary procedure re?uires
merely the submission of position papers,
the evidence submitted with the position
paper must be admissible in evidence.
(Sec. 9 of t0e Re!ise# Rule on Summar%
"roce#ure). /hotocopies of oficial receipts
and afidavits are not admissible without
proof of loss of the originals. (Sec. 3 of Rule
13))
&orum S,oing" 8efinition ('((+)
3hat is forum shopping5 67.<+8
SUGGESTED ANSWER:
$orum shopping is the act of a party
which consists of ;ling multiple suits,
simultaneously or successively, for the
purpose of obtaining a favorable
judgment
(8e.son v. 9>ice of the 9,3u#s,an, "..
%o. &('990, )$ril 27, 2000; Lulienco v. C),
".. %o. &(&692, -une &0,&999; Che,$hil
47$ort N +,$ort Cor$. v. C), ".. %os.
&&2'(/6(9, 0ece,3er &2, &99*!.
&orum S,oing" 9ffects" 0ac@ of Certification ('((+)
:oney ;led with the 0egional %rial Court,
%aal, Batangas a complaint for speci;c
performance against Bernie. $or lac2 of
certi;cation against forum shopping, the
judge dismissed the complaint. :oneyJs
lawyer ;led a motion for reconsideration,
attaching thereto an amended complaint
with the certi;cation against forum
shopping. &f you were the judge, how will
you resolve the motion5 6<+8
SUGGESTED ANSWER:
&f & were the judge, the motion should be
denied after hearing because, as e9pressly
provided in the 0ules, failure to comply with
the re?uirement of forum shopping is not
curable by mere amendment of the complaint
or other initiatory pleading, but shall be cause
for the dismissal of the case, without
prejudice, unless otherwise provided (Sec. (,
Rule 7, 1997 Rules of i!il "roce#ure). :owever, the
trial court in the e9ercise of its sound
discretion, may choose to be liberal and
consider the amendment as substantial
compliance
("reat Southern Mariti,e Services Cor$. v.
)cuna, ".. %o. &'0&/9, 2e3ruar. 2/,200*;
Chan v. 5C of Ga,3oanga #el %orte, "..
%o. &'92*(, )$ril &*, 200'; :. v. 8an# BanE,
".. &(6&00, -ul. 2', 2000!.
3en. Princiles" Auestions of 0a2 vs. Auestions of &act
('((?)
Distinguish Muestions of law from Muestions of
fact.
SUGGESTED ANSWER:
A QUESTION OF LAW is when the doubt or
diference arises as to what the law is on
a certain set of facts, while a QUESTION OF
FACT is when the doubt or diference
arises as to the truth or falsehood of
alleged facts. (a,os v. Pe$si6Cola Bottling
Co., &9
SC) 2/9, F&9670D!.
Judgment" Annulment of Judgment" 3rounds (199!)
3hat are the grounds for the annulment
of a judgment of the 0%C 60%C85 )7+,
SUGGESTED ANSWER:
%he grounds for annulment of judgment
of the 0%C are "9trinsic $raud and .ac2
of (urisdiction. (Sec, 2, Rule 47, 1997
Rules of i!il "roce#ure.)
Judgment" 9nforcement" 7$year eriod (1997)
A, a resident of Dagupan City, secured a
favorable judgment in an ejectment case
against R, a resident of MueGon City, from
the @%Cof @anila. %he judgment, entered
on D< (une DHHD, had not as yet been
e9ecuted. a8 &n (uly DHHK, A decided to
enforce the judgment
of the @%Cof @anila. 3hat is the
procedure to be followed by A in enforcing
the judgment5 b8 3ith what court should
A institute the proceedings5
SUGGESTED ANSWER:
6a8 A can enforce the judgment by
another action reviving the (udgment
because it can no longer be enforced by
motion as the ;ve-year period within
which a judgment may be enforced by
motion has already e9pired. (Sec. . of
former an# new Rule 39).
6b8 A may institute the proceedings in the
0%C in accordance with the rules of
venue because the enforcement of the
(udgment is a personal action incapable
of pecuniary estimation.
ALTERNATIE ANSWER:
6b8 A may institute the proceeding in a
@%Cwhich has jurisdiction over the area
where the real property involved is
situated. (Sec. 1 of Rule 4).
Judgment" 9nforcement" &oreign Judgment ('((7)
nder Article DD>> of the 'ew Civil Code,
an action upon a judgment must be
brought within DF years from the time the
right of action accrues. &s this provision
applicable to an action ;led in the
/hilippines to enforce a foreign judgment5
"9plain. 6DF+8
ALTERNATIE ANSWER:
Article DD>> of the Civil Code which
re?uires that an action upon a judgment
6though without distinction8 must be
brought within DF years from the time the
right of action accrues, does not apply to
an action ;led in the /hilippines to
enforce a foreign judgment. 3hile we can
say that where the law does not
distinguish, we should not distinguish,
still the law does not evidently
contemplate the inclusion of
)
foreign judgments. A local judgment may
be enforced by motion within ;ve years
and by action within the ne9t ;ve years.
(Rule 39) %hat is not the case with respect
to foreign judgments which cannot be
enforced by mere motion.
ALTERNATIE ANSWER:
Article DD>> of the Civil Code re?uires
that an action upon a judgment 6though
without distinction8 must be brought
within DF years from the time the right of
action accrues. %here seems no cogent
reason to e9clude foreign judgments from
the operation of this rule, subject to the
re?uirements of 0ule *H, !ec. >A of the
0ules of Court which establishes certain
re?uisites for proving the foreign
judgment. /ursuant to these provisions,
an action for the enforcement of the
foreign judgment may be brought at any
time within DF years from the time the
right of action accrues.
Judgment" 9;ecution ending Aeal ('((')
%he trial court rendered judgment
ordering the defendant to pay the plaintif
moral and e9emplary damages. %he
judgment was served on the plaintif on
#ctober D, 7FFD and on the defendant on
#ctober <, 7FFD. #n #ctober A, 7FFD, the
defendant ;led a notice of appeal from
the judgment, but the following day,
#ctober H, 7FFD, the plaintif moved for
the e9ecution of the judgment pending
appeal. %he trial court granted the motion
upon the posting by the plaintif of a bond
to indemnify the defendant for damages it
may sufer as a result of the e9ecution.
%he court gave as a special reason for its
order the imminent insolvency of the
defendant. &s the order of e9ecution
pending appeal correct5 3hy5 6<+8
SUGGESTED ANSWER:
'o, because awards for moral and
e9emplary damages cannot be the subject of
e9ecution pending appeal. %he e9ecution of
any award for moral and e9emplary
damages is dependent on the outcome of the
main case. .iabilities for moral and
e9emplary damages, as well as the e9act
amounts remain uncertain and inde;nite
pending resolution by the Court of Appeals
or !upreme Court. FCP+ v. 8antin,
&(' SC) (9* (&9/*!; +nternational School,
+nc. v. Court of )$$eals, (09 SC) '7'
(&999!D.
ALTERNATIE ANSWER:
Nes, because only moral and e9emplary
damages are awarded in the judgment
and they are not dependent on other
types of damages.
@oreover, the motion for e9ecution was
;led while the court had jurisdiction over
the case and was in possession of the
original record.
&t is based on good reason which is the
imminent insolvency of the defendant.
60ule *H, sec. 78
by: sirdondee@gmail.com Page 23 of 66 Judgment"
)nterlocutory *rder" Partial Summary Judgments ('((?) After
defendant has served and ;led his answer to
plaintifs complaint for damages before the
proper 0%C, plaintif served and ;led a motion
6with supporting afidavits8 for a summary
judgment in his favor upon all of his claims.
Defendant served and ;led his opposition
6with supporting afidavits8 to the motion.
After due hearing, the court issued an order
6D8 stating that the court has found no
genuine issue as to any material fact and
thus concluded that plaintif is entitled to
judgment in his favor as a matter of law
e9cept as to the amount of damages
recoverable, and 678 accordingly ordering
that plaintif shall have judgment
summarily against defendant for such
amount as may be found due plaintif for
damages, to be ascertained by trial on
#ctober E, 7FF>, at AO*F oJcloc2 in the
morning. @ay defendant properly ta2e an
appeal from said order5 #r, may
defendant properly challenge said order
thru a special civil action for certiorari5
0eason. 6<+8
SUGGESTED ANSWER:
'o, plaintif may not properly ta2e an
appeal from said order because it is an
interlocutory order, not a ;nal and
appealable order (Sec. 4 of Rule 3(). &t does
not dispose of the action or proceeding
6Sec. 1 of Rule 398.
/A0%&A. !@@A0N (D1@"'%! are
interlocutory. %here is still something to be
done, which is the trial for the adjudication
of damages
(Province of Pangasinan v. Court of )$$eals,
220 SC) 726 F&99(-; "uevarra v. Court of
)$$eals, 209 Phil. 2'& F&9/(D!, but the
defendant may properly challenge said
order thru a special civil action for
certiorari. (Sec. 1 [c] an# last 8ar. of Rule 41)
Judgment" Judgment on t,e Pleadings (1999)
a8 3hat are the grounds for judgment
on the pleadings5 67+8
b8 AJs Answer admits the material
allegations of BJs Complaint. @ay the
court motu 8ro8rio render judgment on
the pleadings5 "9plain. 67+8
c8 A brought an action against her
husband B for annulment of their
marriage on the ground of psychological
incapacity, B ;led his Answer to the
Complaint admitting all the allegations
therein contained. @ay A move for
judgment on the pleadings5 "9plain. 67+8
SUGGESTED ANSWER:
a8 %he grounds for judgment on the
pleadings are where an answer fails to
tender an issue, or otherwise admits the
material allegations of the adverse partyJs
pleading. (Sec. 1, Rule 34).
b8 'o, a motion must be ;led by the
adverse party. (Sec. 1, Rule 34) %he court
cannot motu 8ro8rio render judgment on
the pleadings.
c8 'o, because even if BJs answer to
AJs complaint for annulment of their
marriage admits all the allegations
therein contained, the material facts
)
alleged in the complaint must always be
proved.
(Sec. 1 of Rule 34.)
ANOT!ER ANSWER:
c. 'o. %he court shall order the prosecutor
to investigate whether or not a collusion
between the parties e9ists, and if there is no
collusion, to intervene for the !tate in order
to see to it that the evidence submitted is
not fabricated. (Sec. 3[9], Rule 9) "vidence
must have to be presented in accordance
with the re?uirements set down by the
!upreme Court in
e$u3lic vs. Court of )$$eals an# Molina
(26/ SC) &9/.!
Judgment" Judgment on t,e Pleadings ('((7)
&n a complaint for recovery of real
property, the plaintif averred, among
others, that he is the owner of the said
property by virtue of a deed of sale
e9ecuted by the defendant in his favor.
Copy of the deed of sale was appended to
the complaint as Anne9 PAP thereof. &n his
unveri;ed answer, the defendant denied
the allegation concerning the sale of the
property in ?uestion, as well as the
appended deed of sale, for lac2 of
2nowledge or information suficient to
form a belief as to the truth thereof. &s it
proper for the court to render judgment
without trial5 "9plain. 6>+8
SUGGESTED ANSWER:
Defendant cannot deny the sale of the
property for lac2 of 2nowledge or
information suficient to form a belief as to
the truth thereof. %he answer amounts to an
admission. %he defendant must aver or state
positively how it is that he is ignorant of the
facts alleged. (Phil, )#vertising Counselors,
+nc. v. evilla,
".. %o. 86(&/69, )ugust /, &97(; Sec. &0, ule /!
@oreover, the genuineness and due
e9ecution of the deed of sale can only be
denied by the defendant under oath and
failure to do so is also an admission of the
deed. (Sec. *, Rule *) :ence, a judgment on
the pleadings can be rendered by the
court without need of a trial.
Judgment" :andamus vs. Auo Barranto ('((1)
/etitioner $abian was appointed "lection
0egistrar of the @unicipality of !evilla
supposedly to replace the respondent
"lection 0egistrar /ablo who was
transferred to another municipality
without his consent and who refused to
accept his aforesaid transfer, much less to
vacate his position in Bogo town as
election registrar, as in fact he continued
to occupy his aforesaid position and
e9ercise his functions thereto. /etitioner
$abian then ;led a petition for mandamus
against /ablo but the trial court dismissed
$abianLs petition contending that ?uo
warranto is the proper remedy. &s the
court correct in its ruling5 3hy5 6<+8
SUGGESTED ANSWER:
Nes, the court is correct in its ruling.
@andamus will not lie. %his remedy
applies only where petitionerLs right is
founded clearly in law, not when it is
doubtful. /ablo was transferred without
his consent
by: sirdondee@gmail.com Page 24 of 66 which is
tantamount to removal without cause,
contrary to the fundamental guarantee on
non-removal e9cept for cause. Considering
that /edro continued to occupy the disputed
position and e9ercise his functions therein,
the proper remedy is ?uo warranto, not
mandamus. O"arces v. Court of
)$$eals, 2*9 SC) 99
(&996!D
ALTERNATIE ANSWER:
Nes, the court is correct in its ruling.
@andamus lies when the respondent
unlawfully e9cludes another from the use
and enjoyment of a right or ofice to
which such other is entitled. (Sec. 2, Rule
.(). &n this case, /ablo has not unlawfully
e9cluded $abian from the #fice of
"lection 0egistrar. %he remedy of $abian
is to ;le an action of ?uo warranto in his
name against /ablo for usurping the
ofice. (Sec. (, Rule
..)
Judgment" Soundness" Attac,ment ('((')
%he plaintif obtained a writ of preliminary
attachment upon a bond of /D million. %he
writ was levied on the defendantLs
property, but it was discharged upon the
posting by the defendant of a counterbond
in the same amount of /D million. After
trial, the court rendered judgment ;nding
that the plaintif had no cause of action
against the defendant and that he had
sued out the writ of attachment
maliciously. Accordingly, the court
dismissed the complaint and ordered the
plaintif and its surety to pay jointly to the
defendant /D.< million as actual damages,
/F.< million as moral damages and /F.<
million as e9emplary damages. "valuate
the soundness of the judgment from the
point of view of procedure. 6<+8
SUGGESTED ANSWER:
%he judgment against the surety is not
sound if due notice was not given to him
of the applicant for damages. (Rule (7, sec.
2)) @oreover, the judgment against the
surety cannot e9ceed the amount of its
counterbond of /D million.
Judgments" 9nforcement" 9;amination of 8efendant
('((')
%he plaintif, a @anila resident, sued the
defendant, a resident of @alolos Bulacan,
in the 0%C-@anila for a sum of money.
3hen the sherif tried to serve the
summons with a copy of the complaint on
the defendant at his Bulacan residence,
the sherif was told that the defendant
had gone to @anila for business and
would not be bac2 until the evening of
that day. !o, the sherif served the
summons, together with a copy of the
complaint, on the defendantLs DAyear-old
daughter, who was a college student. $or
the defendantLs failure to answer the
complaint within the reglementary
period, the trial court, on motion of the
plaintif, declared the defendant in
default. A month later, the trial court
rendered judgment holding the defendant
liable for the entire amount prayed for in
the complaint.
)
A. After the judgment had become ;nal, a
writ of e9ecution was issued by the court.
As the writ was returned unsatis;ed, the
plaintif ;led a motion for an order
re?uiring the defendant to appear before
it and to be e9amined regarding his
property and income. :ow should the
court resolve the motion5 67+8
SUGGESTED ANSWER:
Jurisdiction" 6abeas Corus" Custody of :inors ('((7)
3hile @arietta was in her place of wor2
in @a2ati City, her estranged husband
Carlo barged into her house in /arana?ue
City, abducted their si9-year old son,
/ercival, and brought the child to his
hometown in Baguio City. Despite
@ariettaJs pleas, Carlo refused to return
their child. @arietta, through counsel,
;led a petition for habeas corpus against
Carlo in the Court of Appeals in @anila to
compel him to produce their son, before
the court and for her to regain custody.
!he alleged in the petition that despite
her eforts, she could no longer locate her
son.
&n his comment, Carlo alleged that the
petition was erroneously ;led in the Court
of Appeals as the same should have been
;led in the $amily Court in Baguio City
which, under 0epublic Act 'o. A*KH, has
e9clusive jurisdiction, over the petition.
@arietta replied that under 0ule DF7 of
the 0ules of Court, as amended, the
petition may be ;led in the Court of
Appeals and if granted, the writ of habeas
corpus shall be enforceable anywhere in
the /hilippines. 3hose contention is
correct5 "9plain. 6<+8
SUGGESTED ANSWER:
@ariettaJs contention is correct. %he
Court of Appeals has concurrent
jurisdiction with the family courts and the
!upreme Court in petitions for habeas
corpus where the custody of minors is at
issue, notwithstanding the provision in the
$amily Courts A:. (R.-. 'o. *3.9) that
family courts have e9clusive jurisdiction in
such cases. (5hornton v. 5hornton, "..
%o. &*'*9/, )ugust, 200'!
Jurisdiction" 0ac@ of Jurisdiction" Proer Action of t,e
Court ('((?)
/laintif ;led a complaint for a sum of
money against defendant with the @e%C-
@a2ati, the total amount of the demand,
e9clusive of interest, damages of
whatever 2ind, attorneyJs fees, litigation
e9penses, and costs, being /D,FFF,FFF. &n
due time, defendant ;led a motion to
dismiss the complaint on the ground of
the @e%CJs lac2 of jurisdiction over the
subject matter. After due hearing, the
@e%C 6D8 ruled that the court indeed
lac2ed jurisdiction over the subject matter
of the complaintI and 678 ordered that the
case therefore should be forwarded to the
proper 0%C immediately. 3as the courtJs
ruling concerning jurisdiction correct5
3as the courtJs order to forward the case
proper5 "9plain brie=y. 6<+8
SUGGESTED ANSWER:
by: sirdondee@gmail.com Page 25 of 66 Nes. %he
@e%C did not have jurisdiction over the case
because the total amount of the demand
e9clusive of interest, damages of whatever
2ind, attorneyJs fees, litigation e9penses, and
costs, was /D@. &ts jurisdictional amount at
this time should not e9ceed />FF.FFF.FF (Sec.
33 of 5.". 5i3. 129, as amen#e# b%
R.-. 'o. 7.91).
%he courtJs order to forward the case to
the 0%C is not proper. &t should merely
dismiss the complaint. nder !ec. * of
0ule DK, the court may dismiss the action
or claim, deny the motion or order the
amendment of the pleading but not to
forward the case to another court.
Parties" 8eat, of a Party" 9ffect (199!)
A ;led a complaint for the recovery of
ownership of land against B who was
represented by her counsel R. &n the
course of the trial, B died. :owever, R
failed to notify the court of BJs death. %he
court proceeded to hear the case and
rendered judgment against B. After the
(udgment became ;nal, a writ of
e9ecution was issued against C, who
being BJs sole heir, ac?uired the property.
&f you were counsel of C, what course of
action would you ta2e5 )*+,
SUGGESTED ANSWER:
As counsel of C, & would move to set aside
the writ of e9ecution and the judgment for
lac2 of jurisdiction and lac2 of due process
in the same court because the judgment is
void. &f R had noti;ed the court of BJs
death, the court would have ordered the
substitution of the deceased by C, the sole
heir of B. (Sec. 1. of Rule 3) %he court
ac?uired no jurisdiction over C upon whom
the trial and the judgment are not binding.
(2erreira us. +3arra =#a. #e "onCales, &0'
Phil. &'(; =#a. #e la CruC vs. Court of
)$$eals, // SC) 69*; 8awas us. Court of
)$$eals, &'6 SC) &7(.! & could also ;le
an action to annul the judgment for lac2
of jurisdiction because C, as the
successor of B, was deprived of due
process and should have been heard
before judgment.
(Rule 47)
ALTERNATIE ANSWER:
3hile there are decisions of the !upreme
Court which hold that if the lawyer failed
to notify the court of his clientJs death,
the court may proceed even without
substitution of heirs and the judgment is
valid and binding on the heirs of the
deceased (2loren#o vs. Colo,a, &29 SC)
(0.!, as counsel of C, & will assail the
judgment and e9ecution for lac2 of due
process.
Parties" 8eat, of a Party" 9ffect (1999)
3hat is the efect of the death of a party
upon a pending action5 67+8
SUGGESTED ANSWER:
D. 3hen the claim in a pending action
is purely personal, the death of either of
the parties e9tinguishes the claim and the
action is dismissed.
)
1 3hen the claim is not purely personal
and is not thereby e9tinguished, the
party should be substituted by his heirs
or his e9ecutor or administrator. (Sec. 1.,
Rule 3)
2 &f the action is for recovery of money
arising from contract, e9press or
implied, and the defendant dies before
entry of ;nal judgment in the court in
which the action was pending at the
time of such death, it shall not be
dismissed but shall instead be allowed
to continue until entry of ;nal judgment.
A favorable judgment obtained by the
plaintif shall be enforced in the manner
provided in the rules for prosecuting
claims against the estate of a deceased
person. (Sec. 2),
Rule 3)
Parties" 8eat, of a Party" 9ffect (1999)
3hen A 6buyer8 failed to pay the remaining
balance of the contract price after it
became due and demandable, B 6seller8
sued him for collection before the 0%C.
After both parties submitted their
respective evidence, A perished in a plane
accident. Conse?uently, his heirs brought
an action for the settlement of his estate
and moved for the dismissal of the
collection suit.
1 3ill you grant the motion5 "9plain.
67+8
2 3ill your answer be the same if A died
while the case is already on appeal to
the Court of Appeals5 "9plain. 67+8
3 &n the same case, what is the efect if B
died before the 0%C has rendered
judgment5 67+8
SUGGESTED ANSWER:
1 'o, because the action will not be
dismissed but shall instead be allowed
to continue until entry of ;nal
judgment. 6&d.8
2 'o. &f A died while the case was already
on appeal in the Court of Appeals, the
case will continue because there is no
entry yet of ;nal judgment. 6&d.8
3 %he efect is the same. %he action will
not be dismissed but will be allowed to
continue until entry of ;nal judgment.
6&d.8
Parties" %,ird Party Claim ('((()
(4Ls real property is being attached by the
sherif in a civil action for damages
against .@. (4 claims that he is not a
party to the caseI that his property is not
involved in said caseI and that he is the
sole registered owner of said property.
nder the 0ules of Court, what must (4
do to prevent the !herif from attaching
his property5 6<+8
SUGGESTED ANSER:
&f the real property has been attached,
the remedy is to ;le a third-party claim.
%he third-party claimant should ma2e an
afidavit of his title to the property
by: sirdondee@gmail.com Page 26 of 66 attached,
stating the grounds of his title thereto, and
serve such afidavit upon the sherif while the
latter has possession of the attached property,
and a copy thereof upon the attaching party.
(Sec. 14, Rule (7) %he third-party claimant may
also intervene or ;le 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.
(9ng v. 5ating, &'9 SC) 26*,
F&9/7D!
Parties" %,ird$Party Claim ('((7)
A obtained a money judgment against B.
After the ;nality of the decision, the court
issued a writ of e9ecution for the
enforcement thereof. Conformably with
the said writ, the sherif levied upon
certain properties under BJs name. C ;led
a third-party claim over said properties
claiming that B had already transferred
the same to him. A moved to deny the
third-party claim and to hold B and C
jointly and severally liable to him for the
money judgment alleging that B had
transferred said properties to C to
defraud him 6A8.
After due hearing, the court denied the
third-party claim and rendered an
amended decision declaring B and C
jointly and severally liable to A for the
money judgment. &s the ruling of the
court correct5 "9plain. 6>+8
SUGGESTED ANSWER:
'#. C has not been properly impleaded as
a party defendant. :e cannot be held
liable for the judgment against A without
a trial. &n fact, since no bond was ;led by
B, the sherif is liable to C for damages. C
can ;le a separate action to enforce his
third-party claim. &t is in that suit that B
can raise the ground of fraud against C.
:owever, the e9ecution may proceed
where there is a ;nding that the claim is
fraudulent.
(5anongan v. Sa,son, ".. %o. &'0//9, Ma. 9,
2002!
Petition for Certiorari ('((()
AB mortgaged his property to CD. AB
failed to pay his obligation and CD ;led
an action for foreclosure of mortgage.
After trial, the court issued an #rder
granting CDLs 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 D7F days from date of receipt of
the #rder. AB received the #rder on
August DF, DHHH. 'o other proceeding
too2 place thereafter. #n December 7F,
DHHH, 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 D7F-
day period granted by the court. AB ;led
a motion in the same court praying that
CD be directed to receive the amount
tendered by him on the ground that the
#rder does not comply with the provisions
of !ection 7, 0ule KA of the 0ules of Court
which give AB D7F days from entry of
judgment, and
)
not from date of receipt of the #rder. %he
court denied his motion on the ground
that the #rder had already become ;nal
and can no longer be amended to
conform with !ection 7, 0ule KA.
Aggrieved, AB ;les a petition for
certiorari against the Court and CD. 3ill
the petition for certiorari prosper5
"9plain. 6<+8
SUGGESTED ANSWER:
Nes. %he court erred in issuing an #rder
granting CDLs 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
D7F days from receipt of the #rder. %he
court should have rendered a judgment
which is appealable. !ince no appeal was
ta2en, the judgment became ;nal on
August 7<, DHHH, which is the date of entry
of judgment. (Sec 2, Rule 3.) :ence, AB had
up to December 7>, DHHH within which to
pay the amount due. (Sec. 2, Rule .*) %he
court gravely abused its discretion
amounting to lac2 or e9cess of jurisdiction
in denying ABLs motion praying that CD be
directed to receive the amount tendered.
Petition for 1elief - Action for Annulment ('((')
@ay an order denying the probate of a
will still be overturned after the period to
appeal therefrom has lapsed5 3hy5 6*+8
SUGGESTED ANSWER:
Nes, an order denying the probate of a
will may be overturned after the period to
appeal therefrom has lapsed. A /"%&%&#'
$#0 0".&"$ may be ;led on the grounds
of fraud, accident, mista2e or e9cusable
negligence within a period of si9ty 6KF8
days after the petitioner learns of the
judgment or ;nal order and not more
than si9 6K8 months after such judgment
or ;nal order was entered Fule (/, secs.
& N (; Soriano v.
)si, &00 Phil. 7/* (&9*7!D.
An AC%&#' $#0 A''.@"'% may also
be ;led on the ground of e9trinsic fraud
within four 6>8 years from its discovery,
and if based on lac2 of jurisdiction, before
it is barred by laches or estoppel.
(Rule 47, secs. 2 6 3)
Petition for 1elief" )n/unction ('((')
A default judgment was rendered by the
0%C ordering D to pay / a sum of money.
%he judgment became ;nal, but D ;led a
petition for relief and obtained a writ of
preliminary injunction staying the
enforcement of the judgment. After
hearing, the 0%C dismissed DLs petition,
whereupon / immediately moved for the
e9ecution of the judgment in his favor.
!hould /Ls motion be granted5 3hy5 6*+8
SUGGESTED ANSWER:
/Ls immediate motion for e9ecution of the
judgment in his favor should be granted
because the dismissal of DLs petition for
relief also dissolves the writ of
preliminary injunction staying the
enforcement of the
judgment, even if the dismissal is not yet ;nal.
F"oleC v. 8eoni#as, &07 SC) &/7
(&9/&!D.
Pleadings" Amendment of Comlaint" By 0eave of Court
('((.)
After an answer has been ;led, can the
plaintif amend his complaint, with leave
of court, by changing entirely the nature
of the action5 >+
SUGGESTED ANSWER:
Nes, the present rules allow amendments
substantially altering the nature of the
cause of action. (Sec. 3, Rule 1), 1977 Rules
of i!il "roce#ure; <eirs of Marcelino Pago3o
v. Court of )$$eals, 2/0 SC) /70
F&997D!.
%his should only be true, however, when
the substantial change or alteration in the
cause of action or defense shall serve the
higher interests of substantial justice and
prevent delay and e?ually promote the
laudable objective of the rules which is to
secure a just, speedy and ine9pensive
disposition of every action and
proceeding. 6-alenGuela v. Court of
Appeals, *K* !C0A EEH )7FFD,8.
Pleadings" Amendment of Comlaint" By 0eave of Court"
Prescritive Period ('((()
R, an illegitimate child of N, celebrated
her DAth birthday on @ay 7, DHHK. A
month before her birthday, N died. %he
legitimate family of N refused to
recogniGe R as an illegitimate child of N.
After countless eforts to convince them,
R ;led on April 7<, 7FFF an action for
recognition against S, wife of
N. After S ;led her answer on August D>,
7FFF, R ;led a motion for leave to ;le an
amended complaint and a motion to admit
the said amended complaint impleading
the three 6*8 legitimate children of N. %he
trial court admitted the amended
complaint on August 77, 7FFF. 3hat is
the efect of the admission of the
amended complaint5 :as the action of R
prescribed5 "9plain. 6<+8
SUGGESTED ANSWER:
'o. %he action ;led on April 7<, 7FFF is still
within the four-year prescriptive period
which started to run on @ay 7, DHHK. %he
amended complaint impleading the three
legitimate children, though admitted on
August 77, 7FFF beyond the four-year
prescriptive period, retroacts to the date of
;ling of the original complaint.
Amendments impleading new defendants
retroact to the date of the ;ling of the
complaint because they do not constitute a
new cause of action.
(=erCosa v. Court of )$$eals, 299 SC) &00
F&99/D!.
6'oteO %he four-year period is based on Article 7A< of the
Civil Code8 ALTERNATIE ANSWER:
nder the DHHE 0ules of Civil /rocedure,
if an additional defendant is impleaded in
a later pleading, the action is commenced
with regard to him on the date of the
;ling of such later pleading, irrespective
of whether the motion for its admission, if
necessary, is denied by the court. (Sec. (
of Rule 1).
)
Conse?uently, the action of R has
prescribed with respect to the three 6*8
legitimate children of N who are
indispensable parties.
ANOT!ER ALTERNATIE ANSWER:
nder Article DE< of the $amily Code, the
action must be brought within the lifetime
of R if the action is based on a record of
birth or an admission of ;liation in a
public document or a private handwritten
instrument signed by N. &n such case, the
action of R has not prescribed.
:owever, 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 N. &n such case, the action of R
has prescribed.
Pleadings" Amendment of Comlaint" :atter of 1ig,t
('((7)
#n @ay D7, 7FF<, the plaintif ;led a
complaint in the 0%C of MueGon City for
the collection of /7<F,FFF.FF. %he
defendant ;led a motion to dismiss the
complaint on the ground that the court
had no jurisdiction over the action since
the claimed amount of /7<F,FFF.FF is
within the e9clusive jurisdiction of the
@etropolitan %rial Court, of MueGon City.
Before the court could resolve the motion,
the plaintif, without leave of court,
amended his complaint to allege a new
cause of action consisting in the inclusion
of an additional amount of /7FF,FFF.FF,
thereby increasing his total claim to
/><F,FFF.FFF. %he plaintif thereafter
;led his opposition to the motion to
dismiss, claiming that the 0%C had
jurisdiction, over his action. 0ule on the
motion of the defendant with reasons.
6>+8
SUGGESTED ANSWER:
%he motion to dismiss should be denied. Basic
is the rule that a motion to dismiss is not a
responsive pleading. :n#er the ules, a
$lea#er ,a. a,en# his $lea#ing as a
,atter of right 3efore the other $art. has
serve# his res$onsive $lea#ing. (Sec. 2,
Rule 1), Rules of ourt) %he court, in allowing
the amendment, would not be acting without
jurisdiction because allowing an amendment
as a matter of right does not re?uire the
e9ercise of discretion. %he court therefore
would not be PactingP and thus, could not have
acted without jurisdiction. &t would have been
diferent had the amendments been made
after a responsive pleading had been served.
%he court then would have been e9ercising its
discretion in allowing or disallowing the
amendment. &t cannot do so however, because
it would be then acting on an amendment of a
complaint over which it has no jurisdiction.
(Sole#a# v. Ma,angun, ".. %o. 86&79/(,
Ma. (0, &96(; "u,a3a. v. Baralin, ".. %o.
86(06/(, Ma. (&, &977; Pru#ence ealt. v.
C), ".. %o. &&027', March 2&, &99'!
ALTERNATIE ANSWER:
by: sirdondee@gmail.com Page 28 of 66 %he motion to
dismiss should be granted. (urisdiction must
be conferred by the contents of the original
complaint. Amendments are not proper and
should be denied where the court has no
jurisdiction over the original complaint and
the purpose of the amendment is to confer
jurisdiction on the court.
(osario v. Caran#ang, ".. %o. 867076, )$ril 2/,
&9**! 3hile a plaintif is entitled to amend the
complaint before a responsive pleading is
served (Sec. 2, Rule 1),
1997 Rules of i!il "roce#ure; e,ington
+n#ustrial Sales Cor$oration v. Court of
)$$eals, ".. %o. &((6*7, Ma. 29, 2002),
still, a complaint cannot be amended to
confer jurisdiction on a court where there
was none to begin with.
Pleadings" Amendment of Comlaint" %o Conform 2C
9vidence ('((?)
During trial, plaintif was able to present,
without objection on the part of defendant
in an ejectment case, evidence showing
that plaintif served on defendant a
written demand to vacate the subject
property before the commencement of the
suit, a matter not alleged or otherwise set
forth in the pleadings on ;le. @ay the
corresponding pleading still be amended
to conform to the evidence5 "9plain. 6<+8
SUGGESTED ANSWER:
Nes. %he corresponding pleading may still
be amended to conform to the evidence,
because the written demand to vacate,
made prior to the commencement of the
ejectment suit, was presented by the
plaintif in evidence without objection on
the part of the defendant. "ven if the
demand to vacate was jurisdictional, still,
the 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. $ailure to
amend, however, does not afect the result
of the trial on these issues. 6!ec. < of 0ule
DF8.
A.%"0'A%&-" A'!3"0O &t depends. &n
forcible entry, the motion may be allowed
at the discretion of the court, the demand
having been presented at the trial without
objection on the part of the defendant. &n
unlawful detainer, however, the demand
to vacate is jurisdictional and since the
court did not ac?uire jurisdiction from the
very beginning, the motion to conform to
the evidence cannot be entertained. %he
amendment cannot be allowed because it
will in efect confer jurisdiction when
there is otherwise no jurisdiction.
Pleadings" Ans2er" 8efense" Secific 8enial ('((?)
&n his complaint for foreclosure of
mortgage to which was duly attached a
copy of the mortgage deed, plaintif //
alleged inter alia as followsO 6D8 that
defendant DD duly e9ecuted the
mortgage deed,
)
copy of which is Anne9 PAP of the
complaint and made an integral part
thereofI and 678 that to prosecute his
complaint, plaintif contracted a lawyer,
CC, for a fee of /<F.FFF. &n his answer,
defendant alleged, inter alia, that he had
no 2nowledge of the mortgage deed, and
he also denied any liability for plaintifs
contracting with a lawyer for a fee.
Does defendantJs answer as to plaintifLs
allegation no. D as well as no. 7
suficiently raise an issue of fact5 0eason
brie=y. 6<+8
SUGGESTED ANSWER:
As to plaintifs allegation no. D, defendant
does not suficiently raise an issue of fact,
because he cannot allege lac2 of
2nowledge of the mortgage deed since he
should have personal 2nowledge as to
whether he signed it or not and because
he did not deny under oath the
genuineness and due e9ecution of the
mortgage deed, which is an actionable
document. As to plaintifLs allegation no.
7, defendant did not properly deny
liability as to plaintifs contracting with a
lawyer for a fee. :e did not even deny for
lac2 of 2nowledge. (Sec. 1) of Rule *).
Pleadings" Certification Against &orum S,oing ('((()
As counsel for A, B, C and D, Atty. RN
prepared a complaint for recovery of
possession of a parcel of land against S.
Before ;lling the complaint, RN
discovered that his clients were not
available to sign the certi;cation of non-
forum shopping. %o avoid further delays
in the ;ling of the complaint, RN signed
the certi;cation and immediately ;led the
complaint in court. &s RN justi;ed in
signing the certi;cation5 3hy5 6<+8
SUGGESTED ANSWER:
'#, counsel cannot sign the anti-forum
shopping certi;cation because it must be
e9ecuted by the Tplaintif or principal
partyU himself (Sec. *, ule 7; 47cor$iCo v.
:niversit. of Baguio, (06 SC) '97, F&999D!,
since the rule re?uires personal
2nowledge by the party e9ecuting the
certi;cation, '."!! counsel gives a
good reason why he is not able to secure
his clientsL signatures and shows that his
clients will be deprived of substantial
justice (9rtiC v. Court of )$$eals, 299 SC)
70/, F&99/D! or unless he is authoriGed to
sign it by his clients through a special
power of attorney.
Pleadings" Counterclaim against t,e Counsel of t,e
Plaintiff ('((?)
/R ;led a suit for damages against DN. &n
his answer, DN incorporated a
counterclaim for damages against /R and
AC, counsel for plaintif in said suit,
alleging in said counterclaim, inter alia,
that AC, as such counsel, maliciously
induced /R to bring the suit against DN
despite ACJs 2nowledge of its utter lac2 of
factual and legal basis. &n due time, AC
;led a motion to dismiss the counterclaim
as against him on the ground that he is
not a proper party to the case,
by: sirdondee@gmail.com Page 29 of 66 he being
merely plaintifs counsel. &s the counterclaim
of DN compulsory or not5 !hould ACJs
motion to dismiss the counterclaim be
granted or not5 0eason. 6<+8
SUGGESTED ANSWER:
Nes. %he counterclaim of DN is compulsory
because it is one which arises out of or is
connected with the transaction or
occurrence constituting the subject matter
of the opposing partyJs claim and does not
re?uire for its adjudication the presence of
third parties of whom the court cannot
ac?uire jurisdiction.(Sec. 7 of Rule .).
%he motion to dismiss of plaintifs counsel
should not be granted because bringing in
plaintifs counsel as a defendant in the
counterclaim is authoriGed by the 0ules.
3here it is re?uired for the grant of
complete relief in the determination of the
counterclaim, the court shall order the
defendantJs counsel to be brought in since
jurisdiction over him can be obtained.
(Sec. &2 of ule 6; )urelio v. Court of
)$$eals, &96 SC) 67' F&99'D!. :ere, the
counterclaim was against both the plaintif
and his lawyer who allegedly maliciously
induced the plaintif to ;le the suit.
ALTERNATIE ANSWER:
%he counterclaim should be dismissed
because it is not a compulsory
counterclaim. 3hen a lawyer ;les a case
for a client, he should not be sued on a
counterclaim in the very same case he
has ;led as counsel. &t should be ;led in a
separate and distinct civil action. (ChaveC
v. San#igan3a.an, &9( SC) 2/2
F&99&D!
Pleadings" :otions" Bill of Particulars ('((.)
1 3hen can a bill of particulars be
availed of5
2 3hat is the efect of non-
compliance with the order of a bill
of particulars5 >+
SUGGESTED ANSWER:
1 Before responding to a pleading, a
party may move for a bill or
particulars of any matter which is
not averred with suficient
de;niteness or particularity to
enable him properly to prepare his
responsive pleading. &f the
pleading is a reply, the motion
must be ;led within ten 6DF8 days
from service thereof. (Sec. 1 of Rule
12)
2 &f the order is not complied with,
the court may order the stri2ing
out of the pleading or the portions
thereof to which the order was
directed or ma2e such other order
as it deems just. (Sec. 4 of Rule 12)
Pleadings" 1ely" 9ffect of =on$&iling of 1ely ('((()
R ;les a complaint in the 0%C for the
recovery of a sum of money with damages
against N. N ;les his answer denying
liability under the contract of sale and
praying for the dismissal of the complaint
on the ground of lac2 of cause of action
because the contract of sale was
superseded by a contract of lease,
)
e9ecuted and signed by R and N two
wee2s after the contract of sale was
e9ecuted. %he contract of lease was
attached to the answer. R does not ;le a
reply. 3hat is the efect of the non-;ling
of a reply5 "9plain. 6*+8
SUGGESTED ANSWER:
A reply is generally optional. &f it is not ;led,
the new matters alleged in the answer are
deemed controverted. (Sec. 1) of Rule .).
:owever, since the contract of lease
attached to the answer is the basis of the
defense, by not ;ling a reply denying under
oath the genuineness and due e9ecution of
said contract, the plaintif is deemed to have
admitted the genuineness and due e9ecution
thereof. (Secs. 7 an# /
ule /; 5ori3io v. Bi#in, &(2 SC) &62
F&9/*D!.
Pre/udicial Auestion" 9/ectment vs. Secific Performance
('((()
BB ;les a complaint for ejectment in the
@%Con the ground of non-payment of
rentals against ((. After two days, (( ;les
in the 0%C a complaint against BB for
speci;c performance to enforce the
option to purchase the parcel of land
subject of the ejectment case. 3hat is the
efect of ((Ls action on BBLs complaint5
"9plain. 6<+8
SUGGESTED ANSWER:
%here is no efect. %he ejectment case
involves possession de facto only. %he
action to enforce the option to purchase
will not suspend the action of ejectment
for non-payment of rentals. (Kill,an )uto
Su$$l. Cor$. v. Court of )$$eals, 20/ SC) &0/
F&992D!.
Pre$%rial" 1e<uirements ('((1)
.ilio ;led a complaint in the @unicipal
%rial Court of .anuGa for the recovery of
a sum against (uan. %he latter ;led his
answer to the complaint serving a copy
thereof on .ilio. After the ;ling of the
answer of (uan, whose duty is it to have
the case set for pre-trial5 3hy5 6<+8
SUGGESTED ANSWER:
After the ;ling of the answer of (uan, the
/.A&'%&$$ has the duty to promptly move
e9 parte that the case be set for pre-trial.
(Sec. 1, Rule1*). %he reason is that it is the
plaintif who 2nows when the last
pleading has been ;led and it is the
plaintif who has the duty to prosecute.
ALTERNATIE ANSWER:
&n the event the plaintif ;les a reply, his
duty to move that the case be set for pre-
trial arises after the reply has been
served and ;led.
Provisional 1emedies (1999)
3hat are the provisional remedies under
the rules5 67+8
SUGGESTED ANSWER:
%he provisional remedies under the rules
are preliminary attachment, preliminary
injunction, receivership, replevin, and
support pendente lite. (Rules
(7 to .1, Rules of ourt).
Provisional 1emedies" Attac,ment (1999)
&n a case, the property of an incompetent
under guardianship was in custodia legis.
Can it be attached5 "9plain. 67+8
SUGGESTED ANSWER:
Although the property of an incompetent
under guardianship is in custodia legis, it
may be attached as in fact it is provided
that in such case, a copy of the writ of
attachment shall be ;led with the proper
court and notice of the attachment served
upon the custodian of such property. (Sec.
7, last 8ar., Rule (7)
Provisional 1emedies" Attac,ment (1999)
@ay damages be claimed by a party
prejudiced by a wrongful attachment
even if the judgment is adverse to him5
"9plain. 67+8
SUGGESTED ANSWER:
Nes, damages may be claimed by a party
prejudiced by a wrongful attachment
even if the judgment is adverse to him.
%his is authoriGed by the 0ules. A claim,
for damages may be made on account of
improper, irregular or e9cessive
attachment, which shall be heard with
notice to the adverse party and his surety
or sureties. (Sec. 20, ule *7; -avellana v.
0. 9.
PlaCa 4nter$rises +nc., (2 SC)
2/&.!
Provisional 1emedies" Attac,ment ('((1)
@ay a writ of preliminary attachment be
issued e9-parte5 Brie=y state the
reason6s8 for your answer. 6*+8
SUGGESTED ANSWER:
Nes, an order of attachment may be
issued e9-parte or upon motion with
notice and hearing. (Sec. 2 of Rule (7) %he
reason why the order may be issued e9
parte isO that re?uiring notice to the
adverse party and a hearing would defeat
the purpose of the provisional remedy
and enable the adverse party to abscond
or dispose of his property before a writ of
attachment issues. (Min#anao Savings an#
8oan )ssociation, +nc. v.
Court of )$$eals, &72 SC)
'/0!.
Provisional 1emedies" Attac,ment ('((7)
4aty ;led an action against %yrone for
collection of the sum of /D @illion in the
0%C, with an e9-parte application for a
writ of preliminary attachment. pon
posting of an attachment bond, the court
granted the application and issued a writ
of preliminary attachment. Apprehensive
that %yrone might withdraw his savings
deposit with the ban2, the sherif
immediately served a notice of
garnishment on the ban2 to implement the
writ of preliminary attachment. %he
following day, the sherif proceeded to
%yroneJs house and served him the
summons, with copies of the complaint
containing the application for writ of
preliminary attachment, 4atyJs afidavit,
order of attachment, writ of preliminary
attachment and attachment bond.
3ithin ;fteen 6D<8 days from service of
the summons, %yrone ;led a motion to
dismiss and to Version 1997-2006 !dated "# Dondee
)
dissolve the writ of preliminary
attachment on the following groundsO 6i8
the court did not ac?uire jurisdiction over
his person because the writ was served
ahead of the summonsI 6ii8 the writ was
improperly implementedI and 6iii8 said
writ was improvidently issued because the
obligation in ?uestion was already fully
paid. 0esolve the motion with reasons.
6>+8
SUGGESTED ANSWER:
%he motion to dismiss and to dissolve the
writ of preliminary attachment should be
denied. 6D8 %he fact that the writ of attachment
was served ahead of the summons did not
afect the jurisdiction of the court over his
person. &t ma2es the writ, unenforceable.
(Sec. (, Rule. (7) :owever, all that is
needed to be done is to re-serve the writ.
(9nate v.
)3rogar, "M. %o. &97(9(, 2e3ruar. 2(,
&9/*!
678 %he writ was improperly implemented.
!erving a notice of garnishment,
particularly before summons is served, is
not proper. &t should be a copy of the writ
of attachment that should be served on
the defendant, and a notice that the ban2
deposits are attached pursuant to the
writ. (Sec. 7[#], Rule (7)
6*8 %he writ was improvidently issued if
indeed it can be shown that the obligation
was already fully paid. %he writ is only
ancillary to the main action. (Sec. 13, Rule
(7) %he alleged payment of the account
cannot, serve as a ground for resolving
the improvident issuance of the writ,
because this matter delves into the merits
of the case, and re?uires full-blown trial.
/ayment, however, serves as a ground for
a motion to dismiss.
Provisional 1emedies" Attac,ment vs. 3arnis,ment
(1999)
Distinguish attachment from garnishment.
67+8
SUGGESTED ANSWER:
Attachment and garnishment are
distinguished from each other as followsO
A%%AC:@"'% is a provisional remedy
that efects a levy on property of a party
as security for the satisfaction of any
judgment that may be recovered, while
1A0'&!:@"'% is a levy on debts due the
judgment obligor or defendant and other
credits, including ban2 deposits, royalties
and other personal property not capable
of manual delivery under a writ of
e9ecution or a writ of attachment.
Provisional 1emedies" )n/unction ('((1)
@ay a writ of preliminary injunction be
issued e9-parte5 3hy5 6*+8
SUGGESTED ANSWER:
'o, a writ of preliminary injunction may
not be issued e9 parte. As provided in the
0ules, no preliminary injunction shall be
granted without hearing and prior notice
to the party or person sought to be
enjoined. (Sec. ( of Rule (*) %he reason is
that a
by: sirdondee@gmail.com Page 31 of 66 preliminary
injunction may cause grave and irreparable
injury to the party enjoined.
Provisional 1emedies" )n/unction ('((.)
Can a suit for injunction be aptly ;led
with the !upreme Court to stop the
/resident of the /hilippines from entering
into a peace agreement with the 'ational
Democratic $ront5 6>+8
SUGGESTED ANSWER:
'o, a suit for injunction cannot aptly be
;led with the !upreme Court to stop the
/resident of the /hilippines from entering
into a peace agreement with the 'ational
Democratic $ront, which is a purely
political ?uestion. (:a#aran3 !. Santamaria,
37 "0il. 3)4 [1917]). %he /resident of the
/hilippines is immune from suit.
Provisional 1emedies" )n/unctions" Ancillary 1emedy vs.
:ain Action ('((+)
Distinguish between injunction as an
ancillary remedy and injunction as a
main action. 67.<+8
SUGGESTED ANSWER:
&njunction as an ancillary remedy refers
to the preliminary injunction which
re?uires the e9istence of a pending
principal caseI while injunction as a main
action refers to the principal case itself
that prays for the remedy of permanently
restraining the adverse party from doing
or not doing the act complained of.
Provisional 1emedies" )n/unctions" )ssuance 2Cout Bond
('((+)
@ay a 0egional %rial Court issue
injunction without bond5 67+8
SUGGESTED ANSWER:
Nes, if the injunction that is issued is a ;nal
injunction. 1enerally, however, preliminary
injunction cannot issue without bond unless
e9empted by the trial court (Sec. 4[b] of Rule
(*).
Provisional 1emedies" )n/unctions" 1e<uisites ('((+)
3hat are the re?uisites for the issuance
of 6a8 a writ of preliminary injunctionI and
6b8 a ;nal writ of injunction5 0e?uisites
for the issuance of aO
SUGGESTED ANSWER:
a. 3rit of /reliminary &njunction (Sec. 4,
Rule (* 1997 Rules of i!il "roce#ure) are V
6D8 A veri;ed complaint
showingI 678 %he e9istence of a right
in esseI 6*8 -iolation or threat of violation of
such rightI 6>8 Damages or injuries sustained or
that will be sustained by reason of such
violationI 6<8 'otice to all parties of raBe and
of hearingI 6K8 :earing on the
applicationI 6E8 $iling of an appropriate bond and
service thereof.
SUGGESTED ANSWER:
b. 3hile a ;nal writ of injunction may be
rendered by judgment after trial,
showing applicant to be entitled to the
writ (Sec. 9, Rule (* 1997 Rules of i!il
"roce#ure).
)
Provisional 1emedies" 1eceivers,i ('((1)
(oa?uin ;led a complaint against (ose for
the foreclosure of a mortgage of a
furniture factory with a large number of
machinery and e?uipment. During the
pendency of the foreclosure suit, (oa?uin
learned from reliable sources that (ose
was ?uietly and gradually disposing of
some of his machinery and e?uipment to a
businessman friend who was also engaged
in furniture manufacturing such that from
con;rmed reports (oa?uin gathered, the
machinery and e?uipment left with (ose
were no longer suficient to answer for the
latterLs mortgage indebtedness. &n the
meantime judgment was rendered by the
court in favor of (oa?uin but the same is
not yet ;nal.
4nowing what (ose has been doing. &f you
were (oa?uinLs lawyer, what action would
you ta2e to preserve whatever remaining
machinery and e?uipment are left with
(ose5 3hy5 6<+8
SUGGESTED ANSWER:
%o preserve whatever remaining
machinery and e?uipment are left with
(ose, (oa?uinLs lawyer should ;le a
veri;ed application for the appointment
by the court of one or more receivers. %he
0ules provide that receivership is proper
in an action by the mortgagee for the
foreclosure of a mortgage when it appears
that the property is in danger of being
wasted or dissipated or materially injured
and that its value is probably insuficient
to discharge the mortgage debt.
(Sec. 1 of Rule (9).
Provisional 1emedies" 1elevin (1999)
3hat is 0eplevin5 67+8
SUGGESTED ANSWER:
0eplevin or delivery of personal property
consists in the delivery, by order of the
court, of personal property by the
defendant to the plaintif, upon the ;ling
of a bond. (Calo v. ol#an, 76 Phil. ''*
F&9'6D!
Provisional 1emedies" Suort Pendente 0ite (1999)
Before the 0%C, A was charged with rape
of his DKyear old daughter. During the
pendency of the case, the daughter gave
birth to a child allegedly as a
conse?uence of the rape. %hereafter, she
as2ed the accused to support the child,
and when he refused, the former ;led a
petition for support pendente lite. %he
accused, however, insists that he cannot
be made to give such support arguing
that there is as yet no ;nding as to his
guilt. 3ould you agree with the trial court
if it denied the application for support
pendente lite5 "9plain. 67+8
SUGGESTED ANSWER:
'o. %he provisional remedy of support
pendente lite may be granted by the 0%C
in the criminal action for rape. &n criminal
actions where the civil liability includes
support for the ofspring as a
conse?uence of the crime and the civil
aspect thereof has not been
by: sirdondee@gmail.com Page 32 of 66 waived,
reserved or instituted prior to its ;ling, the
accused may be ordered to provide support
pendente lite to the child born to the
ofended party allegedly because of the
crime. (Sec. . of Rule .1.)
Provisional 1emedies" Suort Pendente 0ite ('((1)
@odesto was accused of seduction by
-irginia, a poor, unemployed young girl,
who has a child by @odesto. -irginia was
in dire need of pecuniary assistance to
2eep her child, not to say of herself, alive.
%he criminal case is still pending in court
and although the civil liability aspect of
the crime has not been waived or
reserved for a separate civil action, the
trial for the case was foreseen to ta2e two
long years because of the heavily clogged
court calendar before the judgment may
be rendered. &f you were the lawyer of
-irginia, what action should you ta2e to
help -irginia in the meantime especially
with the problem of feeding the child5
6<+8
SUGGESTED ANSWER:
%o help -irginia in the meantime, her
lawyer should apply for Su88ort
"en#ente +ite as provided in the 0ules. &n
criminal actions where the civil liability
included support for the ofspring as a
conse?uence of the crime and the civil
aspect thereof has not been waived or
reserved for a separate civil action, the
accused may be ordered to provide
support pendent elite to the child born to
the ofended party. (Sec. . of
Rule .1)
Provisional 1emedies" %1* ('((1)
An application for a writ of preliminary
injunction with a prayer for a temporary
restraining order is included in a
complaint and ;led in a multi-sala 0%C
consisting of Branches D,7,* and >. Being
urgent in nature, the "9ecutive (udge,
who was sitting in Branch D, upon the
;ling of the aforesaid application
immediately raBed the case in the
presence of the judges of Branches 7,*
and >. %he case was raBed to Branch >
and judge thereof immediately issued a
temporary restraining order. &s the
temporary restraining order valid5 3hy5
6<+8
SUGGESTED ANSWER:
'o. &t is only the "9ecutive (udge who can
issue immediately a temporary restraining
order efective only for seventy-two 6E78
hours from issuance. 'o other (udge has
the right or power to issue a temporary
restraining order e9 parte. %he (udge to
whom the case is assigned will then
conduct a summary hearing to determine
whether the temporary restraining order
shall be e9tended, but in no case beyond
7F days, including the original E7hour
period. (Sec. ( of Rule (*)
ALTERNATIE ANSWER:
%he temporary restraining order is not
valid because the ?uestion does not state
that the matter is of e9treme urgency and
the applicant will sufer grave injustice
and irreparable injury. (Sec. ( of Rule (*)
)
Provisional 1emedies" %1* ('((+)
De;ne a temporary restraining order 6%0#8.
67+8
SUGGESTED ANSWER:
A temporary restraining order is an order
issued to restrain the opposite party and
to maintain the status ?uo until a hearing
for determining the propriety of granting
a preliminary injunction (Sec. 4[c] an# [#],
Rule (*,1997 Rules of i!il "roce#ure).
Provisional 1emedies" %1* vs. Status Auo *rder ('((+)
Diferentiate a %0# from a status ?uo order.
67+8
SUGGESTED ANSWER:
A status ?uo order 6!M#8 is more in the
nature of a cease and desist order, since
it does not direct the doing or undoing of
acts, as in the case of prohibitory or
mandatory injunctive relief. A %0# is only
good for 7F days if issued by the 0%CI KF
days if issued by the CAI until further
notice if issued by the !C. %he !M# is
without any prescriptive period and may
be issued without a bond. A %0# dies a
natural death after the allowable periodI
the !M# does not. A %0# is provisional.
!M# lasts until revo2ed. A %0# is not
e9tendible, but the !M# may be subject
to agreement of the parties.
Provisional 1emedies" %1*" CA Justice 8et. ('((+)
@ay a justice of a Division of the Court of
Appeals issue a %0#5 67+8
SUGGESTED ANSWER:
Nes, a justice of a division of the Court of
Appeals may issue a %0#, as authoriGed
under 0ule <A and by !ection <, 0ule &- of
the &0CA which additionally re?uires that
the action shall be submitted on the ne9t
wor2ing day to the absent members of the
division for the rati;cation, modi;cation or
recall (<eirs of the
late -ustice -ose B.8. e.es v. Court of
)$$eals, ".. %os. &(*'2*626, %ove,3er &',
2000!.
Provisional 1emedies" %1*" 8uration ('((+)
3hat is the duration of a %0# issued by
the "9ecutive (udge of a 0egional %rial
Court5 67+8
SUGGESTED ANSWER:
&n cases of e9treme urgency, when the
applicant will sufer grave injustice and
irreparable injury, the duration of a %0#
issued e9 parte by an "9ecutive (udge of a
0egional %rial Court is E7 hours (2n# 8ar.
of Sec. (, Rule (* 1997 Rules of i!il "roce#ure).
&n the e9ercise of his regular functions
over cases assigned to his sala, an
"9ecutive (udge may issue a %0# for a
duration not e9ceeding a total of 7F days.
1eglementary Period" Sulemental Pleadings ('((()
%he 0%C rendered judgment against !%,
copy of which was received by his
counsel on $ebruary 7A, 7FFF. #n @arch
DF, 7FFF, !%, through counsel, ;led a
motion for reconsideration of the decision
with notice to the Cler2 of Court
submitting the motion for the
consideration of the court. #n @arch D<,
7FFF, realiGing that the @otion lac2ed a
notice of hearing, !%Ls counsel ;led a
supplemental pleading.
by: sirdondee@gmail.com Page 33 of 66 3as the
motion for 0econsideration ;led within the
reglementary period5 "9plain. 6<+8
SUGGESTED ANSWER:
Nes, because the last day of ;ling a
motion for reconsideration was @arch D<
if $ebruary had 7A days or @arch DK if
$ebruary had 7H days. Although the
original motion for reconsideration was
defective because it lac2ed a notice of
hearing, the defect was cured on time by
its ;ling on @arch D< of a supplemental
pleading, provided that motion was set
for hearing and served on the adverse
party at least three 6*8 days before the
date of hearing.(Sec. 4, Rule 1().
ALTERNATIE ANSWER:
!ince the supplemental pleading was not
set for hearing, it did not cure the defect
of the original motion.
1emedies" Aeal to SC" Aeals to CA ('((')
a8 3hat are the modes of appeal to
the !upreme Court5 67+8
b8 Comment on a proposal to amend
0ule D77, !ection 76b8, in relation to
!ection *6c8, of the 0evised 0ules of
Criminal /rocedure to provide for appeal
to the Court of Appeals from the decisions
of the 0%C in criminal cases, where the
penalty imposed is reclusion perpetua or
life imprisonment, subject to the right of
the accused to appeal to the !upreme
Court. 6*+8
SUGGESTED ANSWER:
A. %he modes of appeal to the !upreme
Court areO 6a8 A//"A. BN C"0%&#0A0&
on pure ?uestions of law under 0ule ><
through a petition for review on
certiorariI and 6b8 #0D&'A0N A//"A. in
criminal cases through a notice of appeal
from convictions imposing reclusion
perpetua or life imprisonment or where a
lesser penalty is involved but for ofenses
committed on the same occasion or which
arose out of the same occurrence that
gave rise to the more serious ofense.
(Rule 122, sec. 3) Convictions imposing the
death penalty are elevated through
automatic review.
B. %here is no constitutional objection to
providing in the 0ules of Court for an
appeal to the Court of Appeals from the
decisions of the 0%C in criminal cases
where the penalty imposed is reclusion
perpetua or life imprisonment subject to
the right of the accused to appeal to the
!upreme Court, because it does not
deprive the !upreme Court of the right to
e9ercise ultimate review of the judgments
in such cases.
1emedies" Aeal" 1%C to CA (1999)
1 3hen is an appeal from the 0%C to
the Court of Appeals deemed
perfected5 67+W
2 RRR received a copy of the 0%C
decision on (une H, DHHHI NNN
received it on the ne9t day, (une
DF, DHHH. RRR ;led a 'otice of
Appeal on (une D<, DHHH. %he
parties entered into a compromise
on
)
(une DK, DHHH. #n (une D*, DHHH, NNN,
who did not appeal, ;led with the 0%C
a motion for approval of the
Compromise Agreement. RRR changed
his mind and opposed the motion on
the ground that the 0%C has no more
jurisdiction. 0ule on the motion
assuming that the records have not yet
been forwarded to the CA. 67+8
SUGGESTED ANSWER:
1 An appeal from the 0%C to the Court
of Appeals is deemed perfected as to the
appellant upon the ;ling of a notice of
appeal in the 0%C in due time or within
the reglementary period of appeal. An
appeal by record on appeal is deemed
perfected as to the appellant with
respect to the subject matter thereof
upon the approval of the record on
appeal ;led in due time. (Sec. 9, Rule 41)
2 %he contention of RRR that the 0%C
has no more jurisdiction over the case is
not correct because at the time that the
motion to approve the compromise had
been ;led, the period of appeal of NNN
had not yet e9pired. Besides, even if
that period had already e9pired, the
records of the case had not yet been
forwarded to the Court of Appeals. %he
rules provide that in appeals by notice
of appeal, the court loses jurisdiction
over the case upon the perfection of the
appeals ;led in due time and the
e9piration of the time to appeal of the
other parties.
(Sec. 9, t0ir# 8ar., Rule
41)
%he rules also provide that prior to the
transmittal of the record, the court may,
among others, approve compromises.
(Sec. 9, 1ft0 8ar., Rule 41) 6'oteO (une D*,
the date of the ;ling of the motion for
approval of the Compromise Agreement,
appears to be a clerical error8
1emedies" Aeal" 1ule ?7 vs. 1ule +7 (1999)
a8 Distinguish a petition for certiorari
as a mode of appeal from a special civil
action for certiorari. 67+8
b8 @ay a party resort to certiorari
when appeal is still available5 "9plain.
67+8
SUGGESTED ANSWER:
a. A /"%&%&#' $#0 0"-&"3 #'
C"0%&#0A0& as a mode of appeal may be
distinguished from a special civil action
for certiorari in that the petition for
certiorari as a mode of appeal is governed
by 0ule >< and is ;led from a judgment or
;nal order of the 0%C, the !andiganbayan
or the Court of Appeals, within ;fteen 6D<8
days from notice of the judgment
appealed from or of the denial of the
motion for new trial or reconsideration
;led in due time on ?uestions of law only
(Secs. 1 an# 2)I !/"C&A. C&-&. AC%&#'
$#0 C"0%&#0A0& is governed by 0ule K<
and is ;led to annul or modify judgments,
orders or resolutions rendered or issued
without or in e9cess of jurisdiction or with
grave abuse of discretion tantamount to
lac2 or e9cess of jurisdiction, when
by: sirdondee@gmail.com Page 34 of 66 there is no
appeal nor any plain, speedy and ade?uate
remedy in the ordinary course of law, to be
;led within si9ty 6KF8 days from notice of the
judgment, order or resolution subject of the
petition. 6!ecs. D and >.8
ADDITIONAL ANSWER:
D8 &n appeal by certiorari under 0ule ><,
the petitioner and respondent are the
original parties to the action and the
lower court is not impleaded. &n
certiorari, under 0ule K<, the lower court
is impleaded.
78 &n appeal by certiorari, the ;ling of a
motion for reconsideration is not
re?uired, while in the special civil action
of certiorari, such a motion is generally
re?uired.
SUGGESTED ANSWER:
b. '#, because as a general rule,
certiorari is proper if there is no appeal
(Sec. 1 of Rule .(.) :owever, if appeal is
not a speedy and ade?uate remedy,
certiorari may be resorted to. (4chaus v.
Court of )$$eals, &99 SC) (/&.!
Certiorari is sanctioned, even if appeal is
available, on the basis of a patent,
capricious and whimsical e9ercise of
discretion by a trial judge as when an
appeal will not promptly relieve petitioner
from the injurious efects of the disputed
order
(=as?ueC vs. o3illa6)lenio, 27& SC)
67!
1emedies" 5oid 8ecision" Proer 1emedy ('((?)
After plaintif in an ordinary civil action
before the 0%CI SS has completed
presentation of his evidence, defendant
without prior leave of court moved for
dismissal of plaintifs complaint for
insuficiency of plaintifLs evidence. After
due hearing of the motion and the
opposition thereto, the court issued an
order, reading as followsO %he Court
hereby grants defendantJs motion to
dismiss and accordingly orders the
dismissal of plaintifLs complaint, with the
costs ta9ed against him. &t is so ordered.P
&s the order of dismissal valid5 @ay
plaintif properly ta2e an appeal5 0eason.
6<+8
SUGGESTED ANSWER:
%he order or decision is void because it
does not state ;ndings of fact and of law,
as re?uired by !ec. D>, Article -&&& of the
Constitution and !ec. D, 0ule *K. Being
void, appeal is not available. %he proper
remedy is certiorari under 0ule K<.
ANOT!ER ANSWER:
"ither certiorari or ordinary appeal may
be resorted to on the ground that the
judgment is void. Appeal, in fact, may be
the more e9pedient remedy.
ALTERNATIE ANSWER:
Nes. %he order of dismissal for
insuficiency of the plaintifs evidence is
valid upon defendantJs motion to dismiss
even without prior leave of court. (Sec. 1
of Rule 33). Nes, plaintif may properly ta2e
an appeal because the dismissal of the
complaint is a ;nal and appealable order.
:owever, if the order of dismissal is
reversed
)
on appeal, the plaintif is deemed to have
waived his right to present evidence.
6&d.8
Secial Civil Action" 9/ectment (1997)
#n DF (anuary DHHF, R leased the
warehouse of A under a lease contract
with a period of ;ve years. #n FA (une
DHHK, A ;led an unlawful detainer case
against R without a prior demand for R to
vacate the premises.
6a8 Can R contest his ejectment on the
ground that there was no prior demand
for him to vacate the premises5
6b8 &n case the @unicipal %rial Court
renders judgment in favor of A, is the
judgment immediately e9ecutory5
SUGGESTED ANSWER:
6a8 Nes. R can contest his ejectment on the
ground that there was no prior demand to
vacate the premises. 6Sec. 2 of ule 70;
Casilan vs.5o,assi l0 SC) 26&; +esaca
vs.Cuevas. &2* SC) ((*8.
6b8 Nes, because the judgment of the
@unicipal %rial Court against the
defendant R is immediately e9ecutory
upon motion unless an appeal has been
perfected, a supersedeas bond has been
;led and the periodic deposits of current
rentals. &f any, as determined by the
judgment will be made with the appellate
court. (Sec. * of former Rule 7); Sec. 19 of new
Rule 7)).
ALTERNATIE ANSWER:
6a8 Nes, R can contest his ejectment on the
ground that since he continued enjoying
the thing leased for ;fteen days after the
termination of the lease on (anuary H,
DHH< with the ac?uiescence of the lessor
without a notice to the contrary, there
was an &@/.&"D '"3 ."A!". (-rt. 1.7).
i!il o#e).
Secial Civil Action" 9/ectment (199!)
&n an action for unlawful detainer in the
@unicipal %rial Court 6@%C8, defendant R
raised in his Answer the defense that
plaintif A is not the real owner of the
house subject of the suit. R ;led a
counterclaim against A for the collection
of a debt of /AF,FFF plus accrued interest
of /D<,FFF and attorneyJs fees of
/7F,FFF.
D. &s RJs defense tenable5
)*+, 7. Does the @%C have jurisdiction over
the counterclaim5 )7+, SUGGESTED
ANSWER:O
D. 'o. RJs defense is not tenable if the
action is ;led by a lessor against a lessee.
:owever, if the right of possession of the
plaintif depends on his ownership then
the defense is tenable.
7. %he counterclaim is within the
jurisdiction of the @unicipal %rial Court
which does not e9ceed /DFF,FFF, because
the principal demand is /AF,FFF,
e9clusive of interest and attorneyJs fees.
(Sec. 33, 5.". 5i3. 129, as amen#e#.) :owever,
inasmuch as all actions of forcible entry
and unlawful detainer are subject to
by: sirdondee@gmail.com Page 35 of 66 summary
procedure and since the counterclaim is only
permissive, it cannot be entertained by the
@unicipal Court. (Re!ise# Rule on Summar%
"roce#ure.)
Secial Civil Action" &oreclosure ('((.)
A borrowed from the Development Ban2
of the /hilippines 6DB/8 the amount of /D
million secured by the titled land of his
friend B who, however, did not assume
personal liability for the loan. A defaulted
and DB/ ;led an action for judicial
foreclosure of the real estate mortgage
impleading A and B as defendants. &n due
course, the court rendered judgment
directing A to pay the outstanding account
of /D.< million 6principal plus interest8 to
the ban2. 'o appeal was ta2en by A on
the Decision within the reglementary
period. A failed to pay the judgment debt
within the period speci;ed in the decision.
Conse?uently, the court ordered the
foreclosure sale of the mortgaged land. &n
that foreclosure sale, the land was sold to
the DB/ for /D.7 million. %he sale was
subse?uently con;rmed by the court, and
the con;rmation of the sale was
registered with the 0egistry of Deeds on
F< (anuary 7FF7.
#n DF (anuary 7FF*, the ban2 ;led an e9-
parte motion with the court for the
issuance of a writ of possession to oust B
from the land. &t also ;led a de;ciency
claim for /AFF,FFF.FF against A and B.
the de;ciency claim was opposed by A
and B.
6a8 0esolve the motion for the issuance of
a writ of possession. 6b8 0esolve the de;ciency claim of
the ban2. K+
SUGGESTED ANSWER:
6a8 &n judicial foreclosure by ban2s such
as DB/, the mortgagor or debtor whose
real property has been sold on
foreclosure has the right to redeem the
property sold within one year after the
sale 6or registration of the sale8. :owever,
the purchaser at the auction sale has the
right to obtain a writ of possession after
the ;nality of the order con;rming the
sale. (Sec. 3 of Rule .*; Sec. 47 of R- *791. ;0e
,eneral 5an4in3 +aw of 2)))). %he motion for
writ of possession, however, cannot be
;led e9 parte. %here must be a notice of
hearing.
6b8 %he de;ciency claim of the ban2 may
be enforced against the mortgage debtor
A, but it cannot be enforced against B,
the owner of the mortgaged property,
who did not assume personal liability for
the loan.
Secial Civil Action" Petition for Certiorari ('((')
%he defendant was declared in default in
the 0%C for his failure to ;le an answer to
a complaint for a sum of money. #n the
basis of the plaintifLs e9 parte
presentation of evidence, judgment by
default was rendered against the
defendant. %he default judgment was
served on the defendant on #ctober D,
7FFD. #n #ctober DF, 7FFD, he ;les a
veri;ed motion to lift the
)
order of default and to set aside the
judgment. &n his motion, the defendant
alleged that, immediately upon receipt of
the summon, he saw the plaintif and
confronted him with his receipt
evidencing his payment and that the
plaintif assured him that he would
instruct his lawyer to withdraw the
complaint. %he trial court denied the
defendantLs motion because it was not
accompanied by an afidavit of merit. %he
defendant ;led a special civil action for
certiorari under 0ule K< challenging the
denial order.
A. &s certiorari under 0ule K< the proper
remedy5 3hy5 67+8
B. Did the trial court abuse its discretion
or act without or in e9cess of its
jurisdiction in denying the defendantLs
motion to lift the order of default
judgment5 3hy5 6*+8
SUGGESTED ANSWER:
A. %he petition for certiorari under 0ule
K< ;led by the defendant is the proper
remedy because appeal is not a plain,
speedy and ade?uate remedy in the
ordinary course of law. &n appeal, the
defendant in default can only ?uestion
the decision in the light of the evidence of
the plaintif. %he defendant cannot invo2e
the receipt to prove payment of his
obligation to the plaintif.
ALTERNATIE ANSWER:
A. nder ordinary circumstances, the
proper remedy of a party wrongly
declared in default is either to appeal
from the judgment by default or ;le a
petition for relief from judgment. F-ao,
+nc. v. Court of )$$eals,
2*& SC) (9& (&99*!
SUGGESTED ANSWER:
B. Nes, the trial court gravely abused its
discretion or acted without or in e9cess of
jurisdiction in denying the defendantLs motion
because it was not accompanied by a separate
afidavit of merit. &n his veri;ed motion to lift
the order of default and to set aside the
judgment, the defendant alleged that
immediately upon the receipt of the summons,
he saw the plaintif and confronted him with
his receipt showing payment and that the
plaintif assured him that he would instruct his
lawyer to withdraw the complaint. !ince the
good defense of the defendant was already
incorporated in the veri;ed motion, there was
not need for a separate afidavit of merit.
FCa$uC
v. Court of )$$eals, 2(( SC) '7& (&99'!;
Mago v. Court of )$$eals, (0( SC) 600
(&999!D.
Secial Civil Action" Auo Barranto ('((1)
A group of businessmen formed an
association in Cebu City calling itself
Cars C. to distribute C sell cars in said
city. &t did not incorporate itself under the
law nor did it have any government
permit or license to conduct its business
as such. %he !olicitor 1eneral ;led before
a 0%C in @anila a veri;ed petition for
?uo warranto ?uestioning and see2ing to
stop the operations of Cars Co. %he latter
;led a motion to dismiss the petition on
the ground of improper venue
by: sirdondee@gmail.com Page 36 of 66 claiming that
its main ofice and operations are in Cebu
City and not in @anila. &s the contention of
Cars Co. correct5 3hy5 6<+8
SUGGESTED ANSWER:
'o. As e9pressly provided in the 0ules,
when the !olicitor 1eneral commences
the action for ?uo warranto, it may be
brought in a 0%C in the City of @anila, as
in this case, in the Court of Appeals or in
the !upreme Court. (Sec. 7 of Rule ..)
Secial Civil Actions" :andamus ('((+)
&n DHHK, Congress passed 0epublic Act
'o. ADAH, otherwise 2nown as the -oterJs
0egistration Act of DHHK, providing for
computeriGation of elections. /ursuant
thereto, the C#@"."C approved the
-oterJs 0egistration and &denti;cation
!ystem 6-0&!8 /roject. &t issued
invitations to pre-?ualify and bid for the
project. After the public bidding, $oto2ina
was declared the winning bidder with a
bid of /K billion and was issued a 'otice
of Award. But C#@"."C Chairman 1ener
1o objected to the award on the ground
that under the Appropriations Act, the
budget for the C#@"."CJs moderniGation
is only /D billion. :e announced to the
public that the -0&! project has been set
aside. %wo Commissioners sided with
Chairman 1o, but the majority voted to
uphold the contract.
@eanwhile, $oto2ina ;led with the 0%C a
petition for mandamus compel the C#@"."C
to implement the contract. %he #fice of the
!olicitor 1eneral 6#!18, representing
Chairman 1o, opposed the petition on the
ground that mandamus does not lie to
enforce contractual obligations. During the
proceedings, the majority Commissioners
;led a manifestation that Chairman 1o was
not authoriGed by the C#@"."C "n Banc to
oppose the petition.
+s a $etition for ,an#a,us an
a$$ro$riate re,e#. to enforce
contractual o3ligations; (*H!
SUGGESTED ANSWER:
'o, the petition for mandamus is not an
appropriate remedy because it is not
available to enforce a contractual
obligation. @andamus is directed only to
ministerial acts, directing or commanding
a person to do a legal duty (C9M484C v.
IuiAano6Pa#illa, "..
%o. &*&992, Se$te,3er &/, 2002; Sec. (,
ule 6*!.
Summons
!even years after the entry of judgment,
the plaintif ;led an action for its revival.
Can the defendant successfully oppose
the revival of the judgment by contending
that it is null and void because the 0%C-
@anila did not ac?uire jurisdiction over
his person5 3hy5 6*+8
SUGGESTED ANSWER:
%he 0%C-@anila should deny the motion
because it is in violation of the rule that
no judgment obligor shall be re?uired to
appear before a court, for the purpose of
e9amination concerning his property and
)
income, outside the province or city in
which such obligor resides. &n this case
the judgment obligor resides in Bulacan.
(Rule 39, sec.3.).
Summons (1999)
a8 3hat is the efect of absence of
summons on the judgment rendered in
the case5 67+8 b8 3hen additional defendant is
impleaded in the action, is it necessary
that summons be served upon him5
"9plain. 67+8
c8 &s summons re?uired to be served
upon a defendant who was substituted for
the deceased5 "9plain. 67+8
d8 A sued RR Corporation 6RRC8, a
corporation organiGed under /hilippine
laws, for speci;c performance when the
latter failed to deliver %-shirts to the
former as stipulated in their contract of
sale. !ummons was served on the
corporationJs cashier and director. 3ould
you consider service of summons on either
oficer suficient5 "9plain. 67+8
SUGGESTED ANSWER:
a8 %he efect of the absence of
summons on a judgment would ma2e the
judgment null and void because the court
would not have jurisdiction over the
person of the defendant, but if the
defendant voluntarily appeared before the
court, his appearance is e?uivalent to the
service of summons. (Sec. 2), Rule 14)
b8 Nes. !ummons must be served on
an additional defendant impleaded in the
action so that the court can ac?uire
jurisdiction over him, unless he ma2es a
voluntary appearance.
c8 'o. A defendant who was
substituted for the deceased need not be
served with summons because it is the
court which orders him as the legal
representative of the deceased to appear
and substitute the deceased. (Sec. 1. of
Rule 3.)
d8 !ummons on a domestic
corporation through its cashier and
director are not valid under the present
rules. (Sec. 11, Rule 14) %hey have been
removed from those who can be served
with summons for a domestic corporation.
Cashier was substituted by treasurer. 6&d.8
Summons" Substituted Service ('((?)
!ummons was issued by the @@ 0%C and
actually received on time by defendant
from his wife at their residence. %he
sherif earlier that day had delivered the
summons to her at said residence because
defendant was not home at the time. %he
sherifs return or proof of service ;led
with the court in sum states that the
summons, with attached copy of the
complaint, was served on defendant at his
residence thru his wife, a person of
suitable age and discretion then residing
therein. Defendant moved to dismiss on
by: sirdondee@gmail.com Page 37 of 66 the ground
that the court had no jurisdiction over his
person as there was no valid service of
summons on him because the sherifs return
or proof of service does not show that the
sherif ;rst made a genuine attempt to serve
the summons on defendant personally before
serving it thru his wife. &s the motion to
dismiss meritorious5 3hat is the purpose of
summons and by whom may it be served5
"9plain. 6<+8
SUGGESTED ANSWER:
%he motion to dismiss is not meritorious
because the defendant actually received
the summons on time from his wife.
!ervice on the wife was suficient.
(Boticano v. Chu, &'/ SC) *'& F&9/7D!. &t is
the duty of the court to loo2 into the
suficiency of the service. %he sherifs
negligence in not stating in his return that
he ;rst made a genuine efort to serve the
summons on the defendant, should not
prejudice the plaintif. (Ma$a v. Court of
)$$eals, 2&' SC) '&71&992!. %he purpose
of the summons is to inform the defendant
of the complaint ;led against him and to
enable the court to ac?uire jurisdiction
over his person. &t maybe served by the
sherif or his deputy or any person
authoriGed by the court.
ALTERNATIE ANSWER:
Nes. %he motion to dismiss is meritorious.
!ubstituted service cannot be efected
unless the sherifs return shows that he
made a genuine attempt to efect personal
service on the husband.
Summons" 5alidity of Service" 9ffects ('((+)
%ina 1uerrero ;led with ;led the 0egional
%rial Court of Binan, .aguna, a complaint for
sum of money amounting to /D @illion against
Carlos Corro. %he complaint alleges, among
others, that Carlos borrowed from %ina the
said amount as evidenced by a promissory note
signed by Carlos and his wife, jointly and
severally. Carlos was served with summons
which was received by .inda, his secretary.
:owever, Carlos failed to ;le an answer to the
complaint within the D<-day reglementary
period. :ence, %ina ;led with the court a
motion to declare Carlos in default and to
allow her to present evidence e9 parte. $ive
days thereafter, Carlos ;led his veri;ed answer
to the complaint, denying under oath the
genuineness and due e9ecution of the
promissory note and contending that he has
fully paid his loan with interest at D7+ per
annum.
&. Kas the su,,ons vali#l. serve#
on Carlos; (2.*H!
ALTERNATIE ANSWER:
%he summons was not validly served on
Carlos because it was served on his
secretary and the re?uirements for
substituted service have not been followed,
such as a showing that eforts have been
e9erted to serve the same on Carlos and
such attempt has failed despite due
diligence (Manotoc v. C), "..
%o. &(097', )ugust &6, 2006; )ngPing v.
C), ".. %o. &269'7, -ul. &*, &999!.
ALTERNATIE ANSWER:
)
!ervice of !ummons on Carlos was validly
served upon him if the 0eturn will show
that it was done through !ubstituted
!ervice because the defendant can not be
served personally within a reasonable
time despite diligent eforts made to
serve the summons personally. .inda, the
secretary of defendant Carlos, must
li2ewise be shown to be a competent
person in charge of defendantJs ofice
where summons was served (Sec. 7, Rule
14).
2. +f .ou were the Au#ge, will .ou
grant 5inaMs ,otion to #eclare Carlos in
#efault; (2.*H!
ALTERNATIE ANSWER:
&f & were the judge, & will not grant %inaJs
motion to declare Carlos in default
because summons was not properly
served and anyway, a veri;ed answer to
the complaint had already been ;led.
@oreover, it is better to decide a case on
the merits rather than on technicality.
ALTERNATIE ANSWER:
Nes. &f it was shown that summons was
validly served, and that the motion to
declare Carlos in default was duly
furnished on Carlos, and after conducting
a hearing on the same motion.
5enue" )mroer 5enue" Comulsory Counterclaim (199!)
A, a resident of .ingayen, /angasinan
sued R, a resident of !an $ernando .a
nion in the 0%C 60%C8 of MueGon City
for the collection of a debt of /D million. R
did not ;le a motion to dismiss for
improper venue but ;led his answer
raising therein improper venue as an
afirmative defense. :e also ;led a
counterclaim for /AF,FFF against A for
attorneyJs fees and e9penses for
litigation. R moved for a preliminary
hearing on said afirmative defense. $or
his part, A ;led a motion to dismiss the
counterclaim for lac2 of jurisdiction.
1 0ule on the afirmative defense of
improper venue. )*+,
2 0ule on the motion to dismiss the
counterclaim on the ground of lac2 of
jurisdiction over the subject matter.
)7+,
SUGGESTED ANSWER:
D. %here is improper venue. %he case for
a sum of money, which was ;led in
MueGon City, is a personal action. &t must
be ;led in the residence of either the
plaintif, which is in /angasinan, or of the
defendant, which is in !an $ernando, .a
nion. (Sec. 2 of Rule 4) %he fact that it was
not raised in a motion to dismiss does not
matter because the rule that if improper
venue is not raised in a motion to dismiss
it is deemed waived was removed from
the DHHE 0ules of Civil /rocedure. %he
new 0ules provide that if no motion to
dismiss has been ;led, any of the grounds
for dismissal may be pleaded as an
afirmative defense in the answer. (Sec. .
of Rule 1..)
7. %he motion to dismiss on the ground of
lac2 of jurisdiction over the subject matter
should be denied. %he counterclaim for
attorneyJs fees and e9penses of litigation is
a compulsory counterclaim because it
necessarily arose out of and is connected
with the complaint. &n an original action
before the 0%C, the counterclaim may be
considered compulsory regardless of the
amount. (Sec. 7 of Rule .)
5enue" Personal Actions (1997)
R, a resident of Angeles City, borrowed
/*FF,FFF.FF from A, a resident of /asay
City. &n the loan agreement, the parties
stipulated that Pthe parties agree to sue
and be sued in the City of @anila.P a8 &n
case of non-payment of the loan, can A
;le
his complaint to collect the loan from
R in Angeles City5
b8 !uppose the parties did not
stipulate in the loan agreement as to the
venue, where can A ;le his complaint
against R5
c8 !uppose the parties stipulated in
their loan agreement that Pvenue for all
suits arising from this contract shall be
the courts in MueGon City,P can A ;le his
complaint against R in /asay City5
SUGGESTED ANSWER:
6a8 Nes, because the stipulation in the
loan agreement that Pthe parties agree to
sue and be sued in the City of @anilaP
does not ma2e @anila the Pe9clusive
venue thereof.P (Sec, 4 of Rule 4, as amen#e#
b% ircular 'o. 13
9(< Sec. 4 of new Rule 4) :ence, A can ;le
his complaint in Angeles City where he
resides, (Sec, 2 of Rule 4).
6b8 &f the parties did not stipulate on the
venue, A can ;le his complaint either in
Angeles City where he resides or in /asay
City where R resides, 6&d8.
6c8 Nes, because the wording of the
stipulation does not ma2e MueGon City the
e9clusive venue. (Phil3anEing v. 5ensuan. 2(0 SC) '&(;
:ni,asters Conglo,eration, +nc. v. C). C6
&&96*7, 2e3. 7, &997!
ALTERNATIE ANSWER:
6c8 'o. &f the parties stipulated that the
venue Pshall be in the courts in MueGon
CityP, A cannot ;le his complaint in /asay
City because the use of the word PshallP
ma2es MueGon City the e9clusive venue
thereof. (<oechst Phili$$ines vs. 5orres, /(
SC) 297!.
CRIMINAL PROCEDURE
Ac<uittal" 9ffect ('((')
Delia sued -ictor for personal injuries
which she allegedly sustained when she
was struc2 by a car driven by -ictor. @ay
the court receive in evidence, over proper
and timely objection by Delia, a certi;ed
true copy of a judgment of ac?uittal in a
criminal prosecution charging -ictor with
hit-and-run driving in connection with
DeliaLs injuries5 3hy5 6*+8
SUGGESTED ANSWER:
)
&f the judgment of ac?uittal in the
criminal case ;nds that the act or
omission from which the civil liability
may arise does not e9ist, the court may
receive it in evidence over the objection
by Delia. [Rule 111, sec. 2,
last 8ara3ra80].
ALTERNATIE ANSWER:
&f the judgment of ac?uittal is based on
reasonable doubt, the court may receive it
in evidence because in such case, the civil
action for damages which may be
instituted re?uires only a preponderance
of the evidence. (-rt. 29, i!il o#e).
Actions" BP''" Civil Action deemed included ('((1)
!aturnino ;led a criminal action against
Ale9 for the latterLs bouncing chec2. #n
the date of the hearing after the
arraignment, !aturnino manifested to the
court that he is reserving his right to ;le a
separate civil action. %he court allowed
!aturnino to ;le a civil action separately
and proceeded to hear the criminal case.
Ale9 ;led a motion for reconsideration
contending that the civil action is deemed
included in the criminal case. %he court
reconsidered its order and ruled that
!aturnino could not ;le a separate action.
&s the courtLs order granting the motion
for reconsideration correct5 3hy5 6<+8
SUGGESTED ANSWER:
Nes, the courtLs order granting the motion
for reconsideration is correct. %he 0ules
provide that the criminal action for
violation of B./. Blg. 77 shall be deemed
to include the corresponding civil action,
and that no reservation to ;le such civil
action separately shall be allowed. [Sec.
1(b), Rule 111, Re!ise# Rules of riminal
"roce#ure]
Actions" BP''" 8emurrer to 9vidence ('((.)
&n an action for violation of Batas
/ambansa Big. 77, the court granted the
accusedLs demurrer to evidence which he
;led without leave of court. Although he
was ac?uitted of the crime charged, he,
however, was re?uired by the court to pay
the private complainant the face value of
the chec2. %he accused ;led a @otion of
0econsideration regarding the order to
pay the face value of the chec2 on the
following groundsO a8 the demurrer to
evidence applied only too the
criminal aspect of the caseI and b8 at the
very least, he was entitled to adduce
controverting evidence on the civil
liability. 0esolve the @otion for
0econsideration. 6K+8
SUGGESTED ANSWER:
6a8 %he @otion for 0econsideration should
be denied. %he ground that the demurrer
to evidence applied only to the criminal
aspect of the case was not correct because
the criminal action for violation of Batas
/ambansa Blg. 77 included the
corresponding civil action. (Sec. 1(b) of Rule
111).
6b8 %he accused was not entitled to
adduce controverting evidence on the
civil liability, because
by: sirdondee@gmail.com Page 39 of 66 he ;led his
demurrer to evidence without leave of court.
(Sec. 23 of Rule 119).
Actions" Commencement of an Action" 8ouble Jeoardy
('((?)
!/#D C'C ;led with the @%C in MueGon
City 6@e%C-MC8 a sworn written statement
duly subscribed by him, charging 010 6an
actual resident of Cebu City8 with the
ofense of slight physical injuries allegedly
in=icted on !/! 6an actual resident of
MueGon City8. %he (udge of the branch to
which the case was raBed thereupon
issued an order declaring that the case
shall be governed by the 0ule on !ummary
/rocedure in criminal cases. !oon
thereafter, the (udge ordered the dismissal
of the case for the reason that it was not
commenced by information, as re?uired by
said 0ule.
!ometime later, based on the same facts
giving rise to the slight physical injuries
case, the City /rosecutor ;led with the
same @e%C-MC an information for
attempted homicide against the same
010. &n due time, before arraignment,
010 moved to ?uash the information on
the ground of double jeopardy and after
due hearing, the (udge granted his
motion. 3as the dismissal of the
complaint for slight physical injuries
proper5 3as the grant of the motion to
?uash the attempted homicide
information correct5 0eason 6<+8
SUGGESTED ANSWER:
Nes, the dismissal of the complaint for
slight physical injuries is proper because
in @etropolitan @anila and in chartered
cities, the case has to be commenced only
by information. (Sec. 11, Re!ise# Rule on
Summar% "roce#ure).
'o, the grant of the motion to ?uash the
attempted homicide information on the
ground of double jeopardy was not
correct, because there was no valid
prosecution for slight physical injuries.
Actions" 8iscretionary Po2er of &iscal (1999)
A ;led with the #fice of the $iscal a
Complaint for estafa against B. After the
preliminary investigation, the $iscal
dismissed the Complaint for lac2 of
merit. @ay the $iscal be compelled by
mandamus to ;le the case in court5
"9plain. 67+8
SUGGESTED ANSWER:
'o. %he public prosecutor may not be
compelled by mandamus to ;le the case in
court because the determination of
probable cause is within the discretion of
the prosecutor. %he remedy is an appeal
to the !ecretary of (ustice. (Sec. 4 Rule
112.)
Actions" )n/unction (1999)
3ill injunction lie to restrain the
commencement of a criminal action5
"9plain. 67+8
SUGGESTED ANSWER:
As a general rule, injunction will not lie
to restrain a criminal prosecution e9ceptO
)
a8 %o aford ade?uate protection to the
constitutional rights of the accusedI b8
3hen necessary for the orderly
administration of justice or to avoid oppression or multiplicity
of actionsI c8 3hen double jeopardy is
clearly apparentI d8 3here the charges
are manifestly false and
motivated by the lust for vengeanceI e8
3here there is clearly no prima facie
case against the accused and a motion to ?uash on that
ground has been denied.
(See cases cite# in o3erts, -r., vs. Court
of )$$eals, 2*' SC) (07 F&996D an#
BrocEa v. 4nrile, &92 SC) &/( F&990D.!
Arrest" Barrantless Arrest" Preliminary )nvestigation
('((?)
AR swindled 0N in the amount of /DF,FFF
sometime in mid-7FF*. #n the strength of
the sworn statement given by 0N
personally to !/#D (uan 0amos sometime
in mid-7FF>, and without securing a
warrant, the police oficer arrested AR.
$orthwith the police oficer ;led with the
City /rosecutor of @anila a complaint for
estafa supported by 0NPs sworn statement
and other documentary evidence. After
due in?uest, the prosecutor ;led the
re?uisite information with the @@ 0%C.
'o preliminary investigation was
conducted either before or after the ;ling
of the information and the accused at no
time as2ed for such an investigation.
:owever, before arraignment, the
accused moved to ?uash the information
on the ground that the prosecutor
sufered from a want of authority to ;le
the information because of his failure to
conduct a preliminary investigation before
;ling the information, as re?uired by the
0ules of Court. &s the warrantless arrest
of AR valid5 &s he entitled to a preliminary
investigation before the ;ling of the
information5 "9plain. 6<+8
SUGGESTED ANSWER:
'o. %he warrantless arrest is not valid
because the alleged ofense has not just
been committed. %he crime was allegedly
committed one year before the arrest.
(Sec. ( (b) of Rule 113).
Nes, he is entitled to a preliminary
investigation because he was not lawfully
arrested without a warrant (See Sec. 7 of
Rule 112). :e can move for a
reinvestigation.
ALTERNATIE ANSWER:
:e is not entitled to a preliminary
investigation because the penalty for
estafa is the sum of /DF,FFF does not
e9ceed > years and 7 months. nder !ec.
D, second par., 0ule DD7, a preliminary
investigation is not re?uired. ('ote< ;0e
8enalt% is not state# in t0e =uestion.)
Arrest" Barrantless Arrests - Searc,es (1997)
A was 2illed by B during a ?uarrel over a
hostess in a nightclub. %wo days after the
incident, and upon complaint of the
widow of A, the police arrested B
by: sirdondee@gmail.com Page 40 of 66 without a
warrant of arrest and searched his house
without a search warrant. a8 Can the gun
used by B in shooting A, which was seiGed
during the search of the house of B, be
admitted in evidence5 b8 &s the arrest of B
legal5 c8 nder the circumstances, can B be
convicted of homicide5
SUGGESTED ANSWER:
6a8 'o. %he gun seiGed during the search
of the house of B without a search
warrant is not admissible in evidence.
(Secs. 2 an# 3[2], -rt. /// of onstitution).
@oreover, the search was not an incident
to a lawful arrest of a person under !ec.
D7 of 0ule D7K. 6b8 'o. A warrantless arrest re?uires that
the crime has in fact just been committed
and the police arresting has personal
2nowledge of facts that the person to be
arrested has committed it. (Sec. (, Rule
113). :ere, the crime has not just been
committed since a period of two days had
already lapsed, and the police arresting
has no such personal 2nowledge because
he was not present when the incident
happened. (,o !s. ourt of -88eals. 2). SR-
13*).
6c8 Nes. %he gun is not indispensable in
the conviction of A because the court may
rely on testimonial or other evidence.
Arrest" Barrantless Arrests - SeiDures ('((.)
&n a buy-bust operation, the police
operatives arrested the accused and
seiGed from him a sachet of shabu and an
unlicensed ;rearm. %he accused was
charged in two &nformations, one for
violation of the TDangerous Drug ActU, as
amended, and another for illegal
possession of ;rearms.
%he accused ;led an action for recovery
of the ;rearm in another court against
the police oficers with an application for
the issuance of a writ of replevin. :e
alleged in his Complaint that he was a
military informer who had been issued a
written authority to carry said ;rearm.
%he police oficers moved to dismiss the
complaint on the ground that the subject
;rearm was in custodia legis. %he court
denied the motion and instead issued the
writ of replevin.
6a8 3as the seiGure of the
;rearm valid5 6b8 3as the denial of the motion to
dismiss proper5 K+
SUGGESTED ANSWER:
6a8 Nes, the seiGure of the ;rearm was
valid because it was seiGed in the course
of a valid arrest in a buy-bust operation.
(Sec. 12 an# 13 of Rule 12.) A search warrant
was not necessary. (Peo$le v. SalaCar, 266
SC) 607
F&997D!.
6b8 %he denial of the motion to dismiss
was not proper. %he court had no
authority to issue the writ of replevin
whether the ;rearm was in custodia legis
)
or not. %he motion to recover the ;rearm
should be ;led in the court where the
criminal action is pending.
Arrest" Barrantless Arrests" *b/ection ('((()
$1 was arrested without a warrant by
policemen while he was wal2ing in a busy
street. After preliminary investigation, he
was charged with rape and the
corresponding information was ;led in the
0%C. #n arraignment, he pleaded not
guilty. %rial on the merits ensued. %he
court rendered judgment convicting him.
#n appeal, $1 claims that the judgment is
void because he was illegally arrested. &f
you were the !olicitor 1eneral, counsel
for the /eople of the /hilippines, how
would you refute said claim5 6<+8
SUGGESTED ANSWER:
Any objection to the illegality of the arrest
of the accused without a warrant is
deemed waived when he pleaded not
guilty at the arraignment without raising
the ?uestion. % is too late to complain
about a warrantless arrest after trial is
commenced and completed and a
judgment of conviction rendered against
the accused. (Peo$le v. Ca3iles, 2/' SC)
&99,
F&999D!
Bail ('((')
D was charged with murder, a capital
ofense. After arraignment, he applied for
bail. %he trial court ordered the
prosecution to present its evidence in full
on the ground that only on the basis of
such presentation could it determine
whether the evidence of DLs guilt was
strong for purposes of bail. &s the ruling
correct5 3hy5 6*+8
SUGGESTED ANSWER:
'o, the prosecution is only re?uired to
present as much evidence as is necessary
to determine whether the evidence of DLs
guilt is strong for purposes of bail.(Rule
114, sec. *).
Bail" Aeal (199!)
&n an information charging them of
@urder, policemen A, B and C were
convicted of :omicide. A appealed from
the decision but B and C did not. B started
serving his sentence but C escaped and is
at large. &n the Court of Appeals, A
applied for bail but was denied. $inally,
the Court of Appeals rendered a decision
ac?uitting A on the ground that the
evidence pointed to the '/A as the 2illers
of the victim.
1 3as the Court of AppealJs denial of
AJs application for bail proper5 )7+,
2 Can B and C be bene;ted by the
decision of the Court of Appeals5 )*+,
SUGGESTED ANSWER:
D, Nes, the Court of Appeals properly
denied AJs application for bail. %he court
had the discretion to do so. Although A
was convicted of homicide only, since he
was charged with a capital ofense, on
appeal
he could be convicted of the capital
ofense. (93osa vs. Court of )$$eals, 266
SC) 2/&.!
ALTERNATIE ANSWER:
nder Circular 'o. 7-H7, A is entitled to
bail because he was convicted of
homicide and hence the evidence of guilt
of murder is not strong.
SUGGESTED ANSWER:
7. B, who did not appeal, can be
bene;ted by the decision of the Court of
Appeals which is favorable and
applicable to him. (Sec. 11 [a]. Rule 122,
Rules of riminal "roce#ure.) %he bene;t will
also apply to C even if his appeal is
dismissed because of his escape.
Bail" Alication" 5enue ('((')
&f an information was ;led in the 0%C-
@anila charging D with homicide and he
was arrested in MueGon City, in what
court or courts may he apply for bail5
"9plain. 6*+8
SUGGESTED ANSWER:
D may apply for bail in the 0%C-@anila
where the information was ;led or in the
0%C-MueGon City where he was arrested,
or if no judge, thereof is available, with
any metropolitan trial judge, municipal
trial judge or municipal circuit trial judge
therein. (Rule
114, sec. 17).
Bail" &orms of Bail (1999)
&n what forms may bail be given5
67+8
SUGGESTED ANSWER:
Bail may be given by a corporate surety,
or through a property bond, cash deposit
or recogniGance.
Bail" :atter of 1ig,t (1999)
3hen the accused is entitled as a matter
of right to bail, may the Court refuse to
grant him bail on the ground that there
e9ists a high degree of probability that he
will abscond or escape5 "9plain. 67+8
SUGGESTED ANSWER:
&f bail is a matter of right, it cannot be
denied on the ground that there e9ists a
high degree of probability that the
accused will abscond or escape. 3hat the
court can do is to increase the amount of
the bail. #ne of the guidelines that the
judge may use in ;9ing a reasonable
amount of bail is the probability of the
accused appearing in trial.
Bail" :atter of 1ig,t vs. :atter of 8iscretion (1999)
3hen is bail a matter of right and when
is it a matter of discretion5 67+8
SUGGESTED ANSWER:
Khen Bail is a ,atter of
rightB
All persons in custody shall 6a8 before or
after conviction by the metropolitan and
municipal trial courts, and 6b8 before
conviction by the 0%C of an ofense not
punishable by death, reclusion perpetua
or life imprisonment, be admitted to bail
as a matter of right, with suficient
sureties, or be released on recogniGance
as prescribed by law or 0ule DD>. (Sec. 4,
Rule 114, Rules of ourt, as amen#e# b% ircular
'o. 12>94.)
)
Khen 3ail is a ,atter of
#iscretionB
pon conviction by the 0%C of an ofense
not punishable by death, reclusion
perpetua or life imprisonment, on
application of the accused. &f the penalty
of imprisonment e9ceeds si9 years but not
more than 7F years, bail shall be denied
upon a showing by the prosecution, with
notice to the accused, of the following or
other similar circumstancesO
1 %hat the accused is a recidivist, ?uasi-re-
cidivist or habitual delin?uent, or has
committed the crime aggravated by the
circumstance of reiterationI
2 %hat the accused is found to have
previously escaped from legal
con;nement, evaded sentence, or has
violated the conditions of his bail without
valid justi;cationI
3 %hat the accused committed the ofense
while on probation, parole, or under
conditional pardonI
4 %hat the circumstances of the accused or
his case indicate the probability of =ight
if released on bailI or
! %hat there is undue ris2 that during the
pendency of the appeal, the accused may
commit another crime. 6!ec. D, &d.8
Bail" :atter of 1ig,t vs. :atter of 8iscretion ('((+)
3hen is bail a matter of right and when
is it a matter of discretion5 6<+8
SUGGESTED ANSWER:
Bail is a matter of right 6a8 before or after
conviction by the inferior courtsI 6b8
before conviction by the 0%C of an
ofense not punishable by death,
reclusion perpetua or life imprisonment.,
when the evidence of guilt is not strong
(Sec. 4, Rule 114, 2))) Rules of riminal
"roce#ure).
Bail is discretionaryO pon conviction by
the 0%C of an ofense not punishable by
death, reclusion perpetua or life
imprisonment (Sec. (, Rule 114, 2))) Rules
of riminal "roce#ure).
Bail" Bitness Posting Bail (1999)
@ay the Court re?uire a witness to post
bail5 "9plain your answer. 67+8
SUGGESTED ANSWER:
Nes. %he court may re?uire a witness to
post bail if he is a material witness and
bail is needed to secure his appearance.
%he rules provide that when the court is
satis;ed, upon proof or oath, that a
material witness will not testify when
re?uired, it may, upon motion of either
party, order the witness to post bail in
such sum as may be deemed proper.
pon refusal to post bail, the court shall
commit him to prison until he complies or
is legally discharged after his testimony
is ta2en. (Sec. ., Rule 119)
Comlaint vs. )nformation (1999)
Distinguish a Complaint from &nformation.
67+8
SUGGESTED ANSWER:
&n criminal procedure, a complaint is a
sworn written statement charging a
person with an ofense, subscribed by the
ofended party, any peace oficer or other
peace oficer charged with the
enforcement of the law violated. (Sec. 3,
Rule 11), 19*( Rules of riminal "roce#ure);
while an information is an accusation in
writing charging a person with an ofense
subscribed by the prosecutor and ;led
with the court. (Sec. 4, /#.)
8emurrer to 9vidence" Contract of Carriage ('((?)
AR, a @a2ati-bound paying passenger of
/B, a public utility bus, died instantly on
board the bus on account of the fatal head
wounds he sustained as a result of the
strong impact of the collision between the
bus and a dump truc2 that happened
while the bus was still travelling on "D!A
towards @a2ati. %he foregoing facts,
among others, were duly established on
evidence-in-chief by the plaintif %N, sole
heir of AR, in %NLs action against the
subject common carrier for breach of
contract of carriage. After %N had rested
his case, the common carrier ;led a
demurrer to evidence, contending that
plaintifLs evidence is insuficient because
it did not show 6D8 that defendant was
negligent and 678 that such negligence
was the pro9imate cause of the collision.
!hould the court grant or deny
defendantJs demurrer to evidence5
0eason brie=y. 6<+8
SUGGESTED ANSWER:
'o. %he court should not grant defendantJs
demurrer to evidence because the case is
for breach of contract of carriage. /roof
that the defendant was negligent and that
such negligence was the pro9imate cause of
the collision is not re?uired. ()rticles &&70
an# 220&,
Civil Co#e; (Men#oCa v. Phil. )irlines, +nc.,
90 Phil. /(6 F&9*2D; Batangas
5rans$ortation Co. v. Cagui,3al, 22
SC)&7& : 96/D; )3eto v. P)8, &&* SC)
'/9 F&9/2D; )3oitiC v. Court of )$$eals, &29
SC) 9* F&9/'D!.
8emurrer to 9vidence" 2Co 0eave of Court (199!)
$acing a charge of @urder, R ;led a
petition for bail. %he petition was opposed
by the prosecution but after hearing the
court granted bail to R. #n the ;rst
scheduled hearing on the merits, the
prosecution manifested that it was not
adducing additional evidence and that it
was resting its case. R ;led a demurrer to
evidence without leave of court but it was
denied by the court.
D. Did the court have the discretion to
deny the demurrer to evidence under the
circumstances mentioned above5 67+8
7. &f the answer to the preceding ?uestion
is in the afirmative, can R adduce
evidence in his defense after the denial of
his demurrer to evidence5 )D+,
*. 3ithout further proceeding and on
the sole basis of the evidence of the
prosecution, can the court legally convict
R for @urder5 67+8
SUGGESTED ANSWER:
D. Nes. %he Court had the discretion to
deny the demurrer to the evidence,
because although the Version 1997-2006 !dated "# Dondee
)
evidence presented by the prosecution at
the hearing for bail was not strong,
without any evidence for the defense, it
could be suficient for conviction.
7. 'o. Because he ;led the demurrer to
the evidence without leave. (Sec. 1(, Rule
119, Rules of riminal "roce#ure.) :owever,
the trial court should in?uire as to why
the accused ;led the demurrer without
leave and whether his lawyer 2new that
the efect of ;ling it without leave is to
waive the presentation of the evidence for
the accused. (Peo$le vs. 2ores, 269 SC)
62.!
*. Nes. 3ithout any evidence from the
accused, the prima facie evidence of the
prosecution has been converted to proof
beyond reasonable doubt.
ALTERNATIE ANSWER:
&f the evidence of guilt is not strong and
beyond reasonable doubt then the court
cannot legally convict R for murder.
8emurrer to 9vidence" 2Co 0eave of Court ('((1)
Carlos, the accused in a theft case, ;led a
demurrer to evidence without leave of
court. %he court denied the demurrer to
evidence and Carlos moved to present his
evidence. %he court denied CarlosL
motion to present evidence and instead
judgment on the basis of the evidence for
the prosecution. 3as the court correct in
preventing Carlos from presenting his
evidence and rendering judgment on the
basis of the evidence for the prosecution5
3hy5 6<+8
SUGGESTED ANSWER:
Nes, because the demurrer to the
evidence was ;led without leave of court.
%he 0ules provide that when the
demurrer to evidence is ;led without
leave of court, the accused waives the
right to present evidence and submits the
case for judgment on the basis of the
evidence for the prosecution. (Sec. 23 of
Rule
119, Re!ise# Rules of riminal
"roce#ure)
8emurrer to 9vidence" 2Co 0eave of Court ('((?)
%he information for illegal possession of
;rearm ;led against the accused
speci;cally alleged that he had no license
or permit to possess the caliber .>< pistol
mentioned therein. &n its evidence-in-chief,
the prosecution established the fact that
the subject ;rearm was lawfully seiGed by
the police from the possession of the
accused, that is, while the pistol was
tuc2ed at his waist in plain view, without
the accused being able to present any
license or permit to possess the ;rearm.
%he prosecution on such evidence rested
its case and within a period of ;ve days
therefrom, the accused ;led a demurrer to
evidence, in sum contending that the
prosecution evidence has not established
the guilt of the accused beyond reasonable
doubt and so prayed that he be ac?uitted
of the ofense charged.
by: sirdondee@gmail.com Page 43 of 66 %he trial
court denied the demurrer to evidence and
deemed the accused as having waived his
right to present evidence and submitted the
case for judgment on the basis of the
prosecution evidence. &n due time, the court
rendered judgment ;nding the accused guilty
of the ofense charged beyond reasonable
doubt and accordingly imposing on him the
penalty prescribed therefor. &s the judgment
of the trial court valid and proper5 0eason.
6<+8
SUGGESTED ANSWER:
Nes. %he judgment of the trial court is
valid. %he accused did not as2 for leave to
;le the demurrer to evidence. :e is
deemed to have waived his right to
present evidence. (Sec. 2( of ule &&9;
Peo$le v. 2lores,
269 SC) 62 F&997D; Bernar#o v. Court of
)$$eals, 27/ SC) 7/2 F&997D. :owever,
the judgment is not proper or is erroneous
because there was no showing from the
proper ofice li2e the $irearms "9plosive
nit of the /hilippine 'ational /olice that
the accused has a permit to own or
possess the ;rearm, which is fatal to the
conviction of the accused. (Mallari v. Court
of )$$eals NPeo$le,26* SC) '*6F&996D!.
8ismissal" &ailure to Prosecute ('((.)
3hen a criminal case is dismissed on
nolle 8rose=ui, can it later be re;lled5
6>+8
SUGGESTED ANSWER:
As a general rule, when a criminal case is
dismissed on nolle 8rose=ui before the
accused is placed on trial and before he is
called on to plead, this is not e?uivalent to
an ac?uittal and does not bar a subse?uent
prosecution for the same ofense. ("alveC
v. Court of )$$eals, 2(7 SC) 6/*
F&99'D!.
8ismissal" Provisional 8ismissal ('((.)
Before the arraignment for the crime of
murder, the private complainant e9ecuted
an Afidavit of Desistance stating that she
was not sure if the accused was the man
who 2illed her husband. %he public
prosecutor ;led a @otion to Muash the
&nformation on the ground that with
private complainantLs desistance, he did
not have evidence suficient to convict the
accused. #n F7 (anuary 7FFD, the court
without further proceedings granted the
motion and provisionally dismissed the
case. %he accused gave his e9press
consent to the provisional dismissal of the
case. %he ofended party was noti;ed of
the dismissal but she refused to give her
consent.
!ubse?uently, the private complainant
urged the public prosecutor to re;le the
murder charge because the accused failed
to pay the consideration which he had
promised for the e9ecution of the Afidavit
of Desistance. %he public prosecutor
obliged and re;led the murder charge
against the accused on FD $ebruary 7FF*,
the accused ;led a @otion to Muash the
&nformation on the ground that the
provisional dismissal of the case had
already become permanent. 6K+8
)
a8 3as the provisional dismissal of the
case proper5 b8 0esolve the @otion to
Muash.
SUGGESTED ANSWER:
6a8 %he provisional dismissal of the case
was proper because the accused gave his
e9press consent thereto and the ofended
party was noti;ed. &t was not necessary
for the ofended party to give her consent
thereto. (Sec. * of Rule 117).
6b8 %he motion to ?uash the information
should be denied because, while the
provisional dismissal had already become
permanent, the prescriptive period for
;ling the murder charge had not
prescribed. %here was no double jeopardy
because the ;rst case was dismissed
before the accused had pleaded to the
charge. (Sec. 7 of Rule 117).
8ouble Jeoardy ('((')
D was charged with slight physical
injuries in the @%C. :e pleaded not guilty
and went to trial. After the prosecution
had presented its evidence, the trial court
set the continuation of the hearing on
another date. #n the date scheduled for
hearing, the prosecutor failed to appear,
whereupon the court, on motion of D,
dismissed the case. A few minutes later,
the prosecutor arrived and opposed the
dismissal of the case. %he court
reconsidered its order and directed D to
present his evidence. Before the ne9t 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 dismissed the
case. %he prosecutor then ;led an
information in the 0%C, charging D with
direct assault based on the same facts
alleged in the information for slight
physical injuries but with the added
allegation that D in=icted the injuries out
of resentment for what the complainant
had done in the performance of his duties
as chairman of the board of election
inspectors. D moved to ?uash the second
information on the ground that its ;ling
had placed him in double jeopardy. :ow
should DLs motion to ?uash be resolved5
6>+8
SUGGESTED ANSWER:
DLs motion to ?uash should be granted on
the ground of double jeopardy because
the ;rst ofense charged is necessarily
included in the second ofense charged.
F0raculan v. 0onato, &'0 SC) '2* (&9/*!D.
ALTERNATIE ANSWER:
DLs motion to ?uash should be denied
because the two dismissals of the case
against him were on his motion 6hence
with his e9press consent8 and his right to
a speedy trial was not violated.
8ouble Jeoardy" Egrading" *riginal C,arges ('((7)
$or the multiple stab wounds sustained
by the victim, 'oel was charged with
frustrated homicide in the 0%C. pon
arraignment, he entered a plea of guilty
to said crime. 'either the court nor the
prosecution
by: sirdondee@gmail.com Page 44 of 66 was aware
that the victim had died two days earlier on
account of his stab wounds. Because of his
guilty plea, 'oel was convicted of frustrated
homicide and meted the corresponding
penalty. 3hen the prosecution learned of the
victimJs death, it ;led within ;fteen 6D<8 days
therefrom a motion to amend the information
to upgrade the charge from frustrated
homicide to consummated homicide. 'oel
opposed the motion claiming that the
admission of the amended information would
place him in double jeopardy. 0esolve the
motion with reasons. 6>+8
SUGGESTED ANSWER:
%he amended information to
consummated homicide from frustrated
homicide does not place the accused in
double jeopardy. As provided in the second
paragraph of Sec. 7, Rule 117,2))) Rules of
riminal "roce#ure, the conviction of the
accused shall not be a bar to another
prosecution for an ofense which
necessarily includes the ofense charged
in the former complaint or information
whenO 6a8 the graver ofense developed
due to supervening facts arising from the
same act or omission constituting the
former chargeI or 6b8 the facts
constituting the graver charge became
2nown or were discovered only after a
plea was entered in the former complaint
or information. :ere, when the plea to
frustrated homicide was made, neither the
court nor the prosecution was aware that
the victim had died two days earlier on
account of his stab wounds.
9;tradition ('((?)
0/ and !tate RR have a subsisting
"9tradition %reaty. /ursuant thereto 0/Js
!ecretary of (ustice 6!#(8 ;led a /etition
for "9tradition before the @@ 0%C
alleging that (uan 4wan is the subject of
an arrest warrant duly issued by the
proper criminal court of !tate RR in
connection with a criminal case for ta9
evasion and fraud before his return to 0/
as a bali2bayan. /etitioner prays that (uan
be e9tradited and delivered to the proper
authorities of !tate RR for trial, and that
to prevent (uanJs =ight in the interim, a
warrant for his immediate arrest be
issued. Before the 0%C could act on the
petition for e9tradition, (uan ;led before
it an urgent motion, in sum praying 6D8
that !o(Js application for an arrest
warrant be set for hearing and 678 that
(uan be allowed to post bail in the event
the court would issue an arrest warrant.
!hould the court grant or deny (uanJs
prayers5 0eason. 6<+8
SUGGESTED ANSWER:
nder the "9tradition %reaty and .aw, the
application of the !ecretary of (ustice for a
warrant of arrest need not be set for
hearing, and (uan cannot be allowed to post
bail if the court would issue a warrant of
arrest. %he provisions in the 0ules of Court
on arrest and bail are not basically
applicable.
("overn,ent of the :nite# States of ),erica
v. Puruganan, (/9 SC) 62( F2002D!
)
)nformation ('((1)
%he prosecution ;led an information
against (ose for slight physical injuries
alleging the acts constituting the ofense
but without anymore alleging that it was
committed after (oseLs unlawful entry in
the complainantLs abode. 3as the
information correctly prepared by the
prosecution5 3hy5 6<+8
SUGGESTED ANSWER:
'o. %he aggravating circumstance of
unlawful entry in the complainantLs
abode has to be speci;ed in the
informationI otherwise, it cannot be
considered as aggravating. (Sec. * of Rule
11), Re!ise# Rules of riminal
"roce#ure)
ALTERNATIE ANSWER:
%he information prepared by the
prosecutor is not correct because the
accused should have been charged with
?uali;ed trespass to dwelling.
)nformation" Amendment ('((1)
Amando was charged with frustrated
homicide. Before he entered his plea and
upon the advice of his counsel, he
manifested his willingness to admit
having committed the ofense of serious
physical injuries. %he prosecution then
;led an amended information for serious
physical injuries against Amando. 3hat
steps or action should the prosecution
ta2e so that the amended information
against Amando which downgrades the
nature of the ofense could be validly
made5 3hy5 6<+8
SUGGESTED ANSWER:
&n order that the amended information
which downgrades the nature of the
ofense could be validly made, the
prosecution should ;le a motion to as2 for
leave of court with notice to the ofended
party. (Sec.14 of Rule 11), Re!ise# Rules of
riminal "roce#ure). %he new rule is for the
protection of the interest of the ofended
party and to prevent possible abuse by the
prosecution.
)nformation" Amendment" 8ouble Jeoardy" Bail ('((')
A. D and " were charged with
homicide in one information. Before they
could be arraigned, the prosecution
moved to amend the information to
e9clude " therefrom. Can the court grant
the motion to amend5 3hy5 67+8
B. #n the facts above stated, suppose
the prosecution, instead of ;ling a motion
to amend, moved to withdraw the
information altogether and its motion was
granted. Can the prosecution re-;le the
information although this time for
murder5 "9plain 6*+8
SUGGESTED ANSWER:
A. Nes, provided notice is given to the
ofended party and the court states its
reasons for granting the same. (Rule 11),
sec. 14).
B. Nes, the prosecution can re-;le the
information for murder in substitution of
the information for homicide because no
double jeopardy has as yet attached.
F"alveC v. Court of )$$eals, 2(7 SC) 6/* (&99'!D.
)nformation" Amendment" Suervening 9vents (1997)
A was accused of homicide for the 2illing
of B. During the trial, the public
prosecutor received a copy of the
marriage certi;cate of A and B.
6a8 Can the public prosecutor move for
the amendment of the information to
charge A with the crime of parricide5
6b8 !uppose instead of moving for the
amendment of the information, the
public prosecutor presented in evidence
the marriage certi;cate without objection
on the part of the defense, could Abe
convicted of parricide5
SUGGESTED ANSWER:
6a8 'o. %he &nformation cannot be
amended to change the ofense charged
from homicide to parricide. $irstly, the
marriage is not a supervening fact arising
from the act constituting the charge of
homicide. (Sec. 7[a] of Rule 117). !econdly,
after plea, amendments may be done only
as to matters of form. %he amendment is
substantial because it will change the
nature of the ofense. (Sec. &' of ule &&0;
0ional#o
us. 0acu.cu.. &0/ SC) 7(6!.
6b8 'o. A can be convicted only of
homicide not of parricide which is a
graver ofense. %he accused has the
constitutional rights of due process and to
be informed of the nature and the cause
of the accusation against him. (Secs. 1, 14
(1) an# (2? -rt. ///. 19*7
onstitution),
)nformation" Bail ('((.)
After the re?uisite proceedings, the
/rovincial /rosecutor ;led an &nformation
for homicide against R. %he latter, however, timely ;led a
/etition for 0eview of the 0esolution of the
/rovincial /rosecutor with the !ecretary
of (ustice who, in due time, issued a
0esolution reversing the resolution of the
/rovincial /rosecutor and directing him to
withdraw the &nformation.
Before the /rovincial /rosecutor could
comply with the directive of the
!ecretary of (ustice, the court issued a
warrant of arrest against R.
%he /ublic /rosecutor ;led a @otion to
Muash the 3arrant of Arrest and to
3ithdraw the &nformation, attaching to it
the 0esolution of the !ecretary of (ustice.
%he court denied the motion. 6K+8 a8 3as
there a legal basis for the court to deny
the
motion5 b8 &f you were the counsel for the
accused, what remedies, if any, would
you pursue5
SUGGESTED ANSWER:
)
a. Nes, there is a legal basis for the court
to deny the motion to ?uash the warrant
of arrest and to withdraw the information.
%he court is not bound by the 0esolution
of the !ecretary of (ustice. (Cres$o v.
Mogul, &*& SC) '62
F&9/7D!.
b. &f & were the counsel for the accused, &
would surrender the accused and apply
for bail because the ofense is merely
homicide, a non-capital ofense. At the
pre-trial, & would ma2e a stipulation of
facts with the prosecution which would
show that no ofense was committed.
)nformation" :otion to Auas, ('((()
BC is charged with illegal possession of
;rearms under an &nformation signed by a
/rovincial /rosecutor. After arraignment
but before pre-trial, BC found out that the
/rovincial /rosecutor had no authority to
sign and ;le the information as it was the
City /rosecutor who has such authority.
During the pre-trial, BC moves that the
case against him be dismissed on the
ground that the &nformation is defective
because the oficer signing it lac2ed the
authority to do so. %he /rovincial
/rosecutor opposes the motion on the
ground of estoppel as BC did not move to
?uash the &nformation before
arraignment. &f you are counsel for BC,
what is your argument to refute the
opposition of the /rovincial /rosecutor5
6<+8
SUGGESTED ANSWER:
& would argue that since the /rovincial
/rosecutor had no authority to ;le the
information, the court did not ac?uire
jurisdiction over the person of the accused
and over the subject matter of the ofense
charged. (Cu#ia v. Court of )$$eals, 2/'
SC) &7( F&999D!. :ence, this ground is
not waived if not raised in a motion to
?uash and could be raised at the pretrial.
(Sec. *, Rule 117, Rules of ourt).
)nformation" :otion to Auas, ('((7)
0odolfo is charged with possession of
unlicensed ;rearms in an &nformation
;led in the 0%C. &t was alleged therein
that 0odolfo was in possession of two
unlicensed ;rearmsO a .>< caliber and-a .
*7 caliber. nder 0epublic Act 'o. A7H>,
possession of an unlicensed .>< caliber
gun is punishable by prision mayor in its
minimum period and a ;ne of /*F.FFF.FF,
while possession of an unlicensed .*7
caliber gun is punishable by prision
correctional in its ma9imum period and a
;ne of not less than /D<,FFF.FF. As
counsel of the accused, you intend to ;le a
motion to ?uash the &nformation. 3hat
ground or grounds should you invo2e5
"9plain. 6>+8
SUGGESTED ANSWER:
%he ground for the motion to ?uash is
that more than one ofense is charged in
the information. (Sec. 3[f], Rule 117, 2)))
Rules of riminal "roce#ure) .i2ewise, the
0%C has no jurisdiction over the second
ofense of
by: sirdondee@gmail.com Page 46 of 66 possession of
an unlicensed .*7 caliber gun, punishable by
prision correctional in its ma9imum period and
a ;ne of not less than /D<.FFF.FF. &t is the
@%C that has e9clusive and original
jurisdiction over all ofenses punishable by
imprisonment not e9ceeding si9 years. (Sec. 2,
R.-. 'o. 7.91, amen#in3 5.". 5l3.
129)
)nformation" :otion to Auas," 3rounds (199!)
1 1ive two 678 grounds to ?uash an
&nformation.)7+,
2 &f the &nformation is not
accompanied by a certi;cation that
a preliminary investigation has been
conducted. &s the &nformation void5
)*+,
SUGGESTED ANSWER:
D. %wo grounds to ?uash an
&nformation areO a8 %hat the facts
charged do not constitute an ofenseI and
b8 %hat the court trying the case
has no jurisdiction over the ofense
charged or the person of the accused.
c8 %hat the oficer who ;led the
information had no authority to do soI
d8 %hat it does not conform
substantially to the prescribed formI
e8 %hat more than one ofense is
charged e9cept in those cases in
which e9isting laws prescribe a single
punishment for various ofensesI
f8 %hat the criminal action or
liability has been e9tinguishedI
g8 %hat it contains averments
which, if true, would constitute a legal
e9cuse or justi;cationI and
h8 %hat the accused has been
previously convicted or in jeopardy of
being convicted, or ac?uitted of the
ofense charged. (Sec. 3,
Rule 117. Rules of riminal
"roce#ure.)
SUGGESTED ANSWER:
7. 'o. %he certi;cation which is provided
in !ec. >, 0ule DD7. 0ules of Criminal
/rocedure, is not an indispensable part of
the information. (Peo$le vs.
8a$ura, 2** SC) /*.!
Judgment" Promulgation of Judgment (1997)
R, the accused in a homicide case before
the 0%C. Dagupan Cay, was personally
noti;ed of the promulgation of judgment
in his case set for DF December DHHK. #n
said date. R was not present as he had to
attend to the trial of another criminal case
against him in %arlac, %arlac. %he trial
court denied the motion of the counsel of
R to postpone the promulgation.
6a8 :ow shall the court promulgate the
judgment in the absence of the accused5
6b8 Can the trial court also order the
arrest of R5
SUGGESTED ANSWER:
6a8 &n the absence of the accused, the
promulgation shall be made by recording
the (udgment in the Version 1997-2006 !dated "# Dondee
)
criminal doc2et and a copy thereof
served upon the accused or counsel. (Sec.
.. t0ir# 8ar., Rule 12))
6b8 'o, the trial court cannot order the
arrest of R if the judgment is one of
ac?uittal and, in any event, his failure to
appear was with justi;able cause since
he had to attend to another criminal case
against him.
Jurisdiction" Comle; Crimes ('((.)
&n comple9 crimes, how is the
jurisdiction of a court determined5 >+
SUGGESTED ANSWER:
&n a comple9 crime, jurisdiction over the
whole comple9 crime must be lodged with
the trial court having jurisdiction to
impose the ma9imum and most serious
penalty imposable on an ofense forming
part of the comple9 crime. (Cu.os v.
"arcia, &60 SC) (02
F&9//D!.
Jurisdiction" &inality of a Judgment ('((7)
@ariano was convicted by the 0%C for raping
-ictoria and meted the penalty of reclusion
perpetua. 3hile serving sentence at the
'ational /enitentiary, @ariano and -ictoria
were married. @ariano ;led a motion in said
court for his release from the penitentiary on
his claim that under 0epublic Act 'o. A*<*,
his marriage to -ictoria e9tinguished the
criminal action against him for rape, as well as
the penalty imposed on him. :owever, the
court denied the motion on the ground that it
had lost jurisdiction over the case after its
decision had become ;nal and e9ecutory. 6E+8
a! +s the @ling of the court correct;
47$lain.
SUGGESTED ANSWER:
'o. %he court can never lose jurisdiction
so long as its decision has not yet been
fully implemented and satis;ed. $inality of
a judgment cannot operate to divest a
court of its jurisdiction. %he court retains
an interest in seeing the proper e9ecution
and implementation of its judgments, and
to that e9tent, may issue such orders
necessary and appropriate for these
purposes. (4chegara. v. Secretar. of -ustice,
"..
%o. &(20*, -anuar. &9,
&999!
3! Khat re,e#.1re,e#ies shoul# the
counsel of Mariano taEe to secure his
$ro$er an# ,ost e7$e#itious release
fro, the %ational Penitentiar.; 47$lain.
SUGGESTED ANSWER:
%o secure the proper and most
e9peditious release of @ariano from the
'ational /enitentiary, his counsel should
;leO 6a8 a petition for habeas corpus for
the illegal con;nement of @ariano 60ule
DF78, or 6b8 a motion in the court which
convicted him, to nullify the e9ecution of
his sentence or the order of his
commitment on the ground that a
supervening development had occurred
(Melo v. Peo$le, ".. %o. 86(*/0, March 22,
&9*0! despite the ;nality of the judgment.
Parties" Prosecution of *ffenses ('((()
Nour friend NN, an orphan, DK years old,
see2s your legal advice. !he tells you that
SS, her uncle, subjected her to acts of
lasciviousnessI that when she told her
grandparents, they told her to just 2eep
?uiet and not to ;le charges against SS,
their son. $eeling very much aggrieved,
she as2s you how her uncle SS can be
made to answer for his crime. a8 3hat
would your advice be5 "9plain. 6*+8 b8
!uppose the crime committed against NN
by her
uncle SS is rape, witnessed by your
mutual friend RR. But this time, NN
was prevailed upon by her
grandparents not to ;le charges. RR
as2s you if she can initiate the
complaint against SS. 3ould your
answer be the same5 "9plain. 67+8.
SUGGESTED ANSWER:
6a8 & would advise the minor, an orphan of
DK years of age, to ;le the complaint
herself independently of her
grandparents, because she is not
incompetent or incapable to doing so
upon grounds other than her minority.
(Sec. (, Rule 11), Rules of riminal "roce#ure.)
6b8 !ince rape is now classi;ed as a
Crime Against /ersons under the Anti-
0ape .aw of DHHE (R- *3(3), & would
advise RR to initiate the complaint
against SS.
Plea of 3uilty" to a 0esser *ffense ('((')
D was charged with theft of an article
worth pD<,FFF.FF. pon being arraigned,
he pleaded not guilty to the ofense
charged. %hereafter, before trial
commenced, he as2ed the court to allow
him to change his plea of not guilty to a
plea of guilt but only to estafa involving
/<,FFF.FF. Can the court allow D to
change his plea5 3hy5 67+8
SUGGESTED ANSWER:
'o, because a plea of guilty to a lesser
ofense may be allowed if the lesser
ofense is necessarily included in the
ofense charged. (Rule 11., sec. 2). "stafa
involving /<,FFF.FF is not necessarily
included in theft of an article worth
/D<,FFF.FF
Pre/udicial Auestion (1999)
3hat is a prejudicial ?uestion5
67+8
SUGGESTED ANSWER:
A prejudicial ?uestion is an issue involved
in a civil action which is similar or
intimately related to the issue raised in
the criminal action, the resolution of
which determines whether or not the
criminal action may proceed. (Sec. ( of
Rule 111.)
ANOT!ER ANSWER:
A prejudicial ?uestion is one based on a
fact distinct and separate from the crime
but so intimately connected with it that it
determines the guilt or innocence of the
accused.
Pre/udicial Auestion ('((()
CR is charged with estafa in court for
failure to remit to @@ sums of money
collected by him 6CR8 for @@ in payment
for goods purchased from @@, by
)
depositing the amounts in his 6CRLs8
personal ban2 account. CR ;les a motion
to suspend proceedings pending
resolution of a civil case earlier ;led in
court by CR against @@ for accounting
and damages involving the amounts
subject of the criminal case. As the
prosecutor in the criminal case, brie=y
discuss your grounds in support of your
opposition to the motion to suspend
proceedings. 6<+8.
SUGGESTED ANSWER:
As the prosecutor, & will argue that the
motion to suspend is not in order for the
following reasonsO 1 %he civil case ;led by CR against @@
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 %he resolution of the issue in the civil
case for accounting will not determine
whether or not the criminal action for
estafa may proceed. (Sec. (, Rule
111, Rules of riminal
"roce#ure.)
Pre/udicial Auestion" Susension of Criminal Action
(1999)
A allegedly sold to B a parcel of land
which A later also sold to R. B brought a
civil action for nulli;cation of the second
sale and as2ed that the sale made by A in
his favor be declared valid. A theoriGed
that he never sold the property to B and
his purported signatures appearing in the
;rst deed of sale were forgeries.
%hereafter, an &nformation for estafa was
;led against A based on the same double
sale that was the subject of the civil
action. A ;led a P@otion for !uspension of
ActionP in the criminal case, contending
that the resolution of the issue in the civil
case would necessarily be determinative
of his guilt or innocence. &s the
suspension of the criminal action in
order5 "9plain. 67+8
SUGGESTED ANSWER:
Nes. %he suspension of the criminal action
is in order because the defense of A in the
civil action, that he never sold the
property to B and that his purported
signatures in the ;rst deed of sale were
forgeries, is a prejudicial ?uestion the
resolution of which is determinative of his
guilt or innocence. &f the ;rst sale is null
and void, there would be no double sale
and A would be innocent of the ofense of
estafa.
(as v. asul, &00 SC) &2*.!
Pre$%rial Agreement ('((?)
@ayor %@ was charged of malversation
through falsi;cation of oficial documents.
Assisted by Atty. #/ as counsel de parte
during pre-trial, he signed together with
#mbudsman /rosecutor %1 a P(oint
!tipulation of $acts and Documents,P
which was presented to the
!andiganbayan. Before the court could
issue a pre-trial order but after some
delay caused by Atty. #/, he was
substituted by Atty. M0 as defense
counsel. Atty. M0 forthwith ;led a motion
to withdraw the P(oint !tipulation,P
alleging that it is prejudicial to the
accused because it contains, inter
by: sirdondee@gmail.com Page 48 of 66 alia, the
statement that the PDefense admitted all the
documentary evidence of the /rosecution,P
thus leaving the accused little or no room to
defend himself, and violating his right against
self-incrimination. !hould the court grant or
deny M0Js motion5 0eason. 6<+8
SUGGESTED ANSWER:
%he court should deny M0Js motion. &f in the
pretrial agreement signed by the accused
and his counsel, the accused admits the
documentary evidence of the prosecution, it
does not violate his right against self-
incrimination. :is lawyer cannot ;le a
motion to withdraw. A pre-trial order is not
needed. (Ba.as v. San#igan3a.an, (9& SC)
'&*(2002P!. %he admission of such
documentary evidence is allowed by the
rule.
(Sec. 2 of ule &&/; Peo$le v. <ernan#eC,
260 SC) 2* F&996D!.
Pre$%rial" Criminal Case vs. Civil Case (1997)
1ive three distinctions between a pre-trial
in a criminal case and a pre-trial in a civil
case.
SUGGESTED ANSWER:
%hree distinctions between a pre-trial in
a criminal case and a pre-trial in a civil
case are as followsO 1. %he pre-trial in a criminal case is
conducted only Pwhere the accused and
counsel agreeP (Rule 11*, Sec. 1)O while the
pre-trial in a civil case is mandatory. (Sec.
1 of former Rule 2); Sec, 1 of new Rule
1*).
7. %he pre-trial in a criminal case
does not consider the possibility of a
compromise, which is one important
aspect of the pre-trial in a civil case.
(Sec. 1 of former Rule 2); Sec. 2 of new
Rule 1*).
3. &n a criminal case, a pre-trial
agreement is re?uired to be reduced to
writing and signed by the accused and his
counsel (See; Rule 11*, Sec. 4)I while in a
civil case, the agreement may be
contained in the pre-trial order. (Sec. 4 of
former Rule
2); See 7 of new Rule
7*).
Provisional 8ismissal ('((')
&n a prosecution for robbery against D, the
prosecutor moved for the postponement of
the ;rst scheduled hearing on the ground
that he had lost his records of the case.
%he court granted the motion but, when
the new date of trial arrived, the
prosecutor, alleging that he could not
locate his witnesses, moved for the
provisional dismissal of the case. &f DLs
counsel does not object, may the court
grant the motion of the prosecutor5 3hy5
6*+8
SUGGESTED ANSWER:
'o, because a case cannot be
provisionally dismissed e9cept upon the
e9press consent of the accused and with
notice to the ofended party. (Rule 117,
sec. *).
1emedies" 5oid Judgment ('((?)
AR was charged before the NN 0%C with
theft of jewelry valued at /7F.FFF,
punishable with
)
imprisonment of up to DF years of prision
mayor under the 0evised /enal Code.
After trial, he was convicted of the ofense
charged, notwithstanding that the
material facts duly established during the
trial showed that the ofense committed
was estafa, punishable by imprisonment
of up to eight years of prision mayor
under the said Code. 'o appeal having
been ta2en therefrom, said judgment of
conviction became ;nal. &s the judgment
of conviction valid5 &s the said judgment
reviewable thru a special civil action for
certiorari5 0eason. 6<+8
SUGGESTED ANSWER:
Nes, the judgment of conviction for theft
upon an information for theft is valid
because the court had jurisdiction to
render judgment. :owever, the judgment
was grossly and blatantly erroneous. %he
variance between the evidence and the
judgment of conviction is substantial since
the evidence is one for estafa while the
judgment is one for theft. %he elements of
the two crimes are not the same. (8auro
Santos v. Peo$le, &/& SC) '/7!. #ne
ofense does not necessarily include or is
included in the other. (Sec. ( of
Rule 12)).
%he judgment of conviction is reviewable
by certiorari even if no appeal had been
ta2en, because the judge committed a
grave abuse of discretion tantamount to
lac2 or e9cess of his jurisdiction in
convicting the accused of theft and in
violating due process and his right to be
informed of the nature and the cause of
the accusation against him, which ma2e
the judgment void. 3ith the mista2e in
charging the proper ofense, the judge
should have directed the ;ling of the
proper information and thereafter
dismissed the original information. (Sec. 19
of Rule 119).
Searc, Barrant" :otion to Auas, ('((7)
/olice operatives of the 3estern /olice
District, /hilippine 'ational /olice,
applied for a search warrant in the 0%C
for the search of the house of (uan !antos
and the seiGure of an undetermined
amount of shabu. %he team arrived at the
house of !antos but failed to ;nd him
there. &nstead, the team found 0oberto
Co. %he team conducted a search in the
house of !antos in the presence of
0oberto Co and barangay oficials and
found ten 6DF8 grams of shabu. 0oberto
Co was charged in court with illegal
possession of ten grams of shabu. Before
his arraignment, 0oberto Co ;led a
motion to ?uash the warrant on the
following grounds 6a8 it was not the
accused named in the search warrantI
and 6b8 the warrant does not describe the
article to be seiGed with suficient
particularity. 0esolve the motion with
reasons. 6>+8
SUGGESTED ANSWER:
%he motion to ?uash should be denied.
%he name of the person in the search
warrant is not important. &t is not even
necessary that a particular person be
by: sirdondee@gmail.com Page 49 of 66 implicated
(Mantaring v. o,an, ).M. %o. 5-69(690',
2e3ruar. 2/, &996!, so long as the search is
conducted in the place where the search
warrant will be served. @oreover, describing
the shabu in an undetermined amount is
suficiently particular. (Peo$le v. 5ee, ".. %os. &'0*'66'7, -anuar. 20,
200(!
%rial" %rial in Absentia" Automatic 1evie2 of Conviction
(199!)
1" 3hat are the re?uisites of a trial in
absentia5 )7+,
2" &f an accused who was sentenced to
death escapes, is there still a legal
necessity for the !upreme Court to
review the decision of conviction5
)*+,
SUGGESTED ANSWER:
D. %he re?uisites of trial in absentia areO
6a8 the accused has already been
arraignedI 6b8 he has been duly noti;ed of
the trialI and 6c8 his failure to appear is
unjusti;able. (Sec. &' F2D, )rticle +++.
Constitution;
Para#a vs. =eneracion, 269 SC) (7&
F&997D.!
7. Nes, there is still a legal necessity for
the !upreme Court (as of 2))4 t0e ourt of
-88eals 0as t0e @uris#iction to suc0 re!iew)
to review the decision of conviction
sentencing the accused to death, because
he is entitled to an automatic review of the
death sentence. (Sees.
(FeD an# &0, ule &22, ules of Cri,inal
Proce#ure; Peo$le vs. 4s$argas, 260 SC)
*(9.!
5enue (1997)
3here is the proper venue for the ;ling of
an information in the following cases5 a8
%he theft of a car in /asig City which was
brought to #bando, Bulacan, where it
was cannibaliGed.
b8 %he theft by R, a bill collector of
ABC Company, with main ofices in @a2ati
City, of his collections from customers in
%agaytay City. &n the contract of
employment, R was detailed to the
Calamba branch ofice, .aguna, where he
was to turn in his collections.
c8 %he malversation of public funds
by a /hilippine consul detailed in the
/hilippine "mbassy in .ondon.
SUGGESTED ANSWER:
6a8 %he proper venue is in /asig City
where the theft of the car was
committed, not in #bando where it was
cannibaliGed. %heft is not a continuing
ofense.
(Peo$le v Merca#o, 6* Phil
66*!.
6b8 &f the crime charged is theft, the venue
is in Calamba where he did not turn in his
collections. &f the crime of R is estafa, the
essential ingredients of the ofense too2
place in %agaytay City where he received
his collections, in Calamba where he
should have turned in his collections, and
in @a2ati City where the ABC Company
was based. %he information may therefore
be ;led in %agaytay City or Calamba or
@a2ati which have concurrent territorial
(urisdiction. (Catingu3 vs. Court of )$$eals,
&2& SC) &06!.
)
6c8 %he proper court is the !andiganbayan
which has jurisdiction over crimes
committed by a consul or higher oficial in
the diplomatic service. (Sec. '(c!. P0 &606,
as a,en#e# 3. ). %o. 797*!. %he
!andiganbayan is a national court. (%uneC
v. San#igan3a.an, &&& SC) '(( F&9/2D. &t
has only one venue at present, which is in
@etro @anila, until 0A. 'o. EHE<,
providing for two other branches in Cebu
and in Cagayan de #ro, is implemented.
A"#$%&'#()$ A&*+$%*:
6b8 %he information may be ;led either in
Calamba or in @a2ati City, not in
%agaytay City where no ofense had as
yet been committed,
6c8 Assuming that the !andiganbayan has
no jurisdiction, the proper venue is the
;rst 0%C in which the charge is ;led (Sec.
1((#). Rule 11)).
EVIDENCE
Admissibility (199!)
%he barangay captain reported to the
police that R was illegally 2eeping in his
house in the barangay an Armalite @DK
ri=e. #n the strength of that information,
the police conducted a search of the house
of R and indeed found said ri=e. %he police
raiders seiGed the ri=e and brought R to
the police station. During the
investigation, he voluntarily signed a
!worn !tatement that he was possessing
said ri=e without license or authority to
possess, and a 3aiver of 0ight to Counsel.
During the trial of R for illegal possession
of ;rearm, the prosecution submitted in
evidence the ri=e. !worn !tatement and
3aiver of 0ight to Counsel, individually
rule on the admissibility in evidence of
theO
D. 0i=eI
)7+, 7. !worn !tatementI and
)7+D *. 3aiver of 0ight to Counsel of
R. )D+,
SUGGESTED ANSWER:
D. %he ri=e is not admissible in evidence
because it was seiGed without a proper
search warrant. A warrantless search is
not justi;ed. %here was time to secure a
search warrant. (Peole us. 9ncinada 3.1. Bo. 11+7'(E
*ctober '. 1997 and ot,er cases)
7. %he sworn statement is not admissible
in evidence because it was ta2en without
informing him of his custodial rights and
without the assistance of counsel which
should be independent and competent
and preferably of the choice of the
accused. (Peole us. JanuarioE '+7 SC1A +(!.)
*. %he waiver of his right to counsel is
not admissible because it was made
without the assistance of counsel of his
choice. (Peole us. 3omeCE '7( SC1A =...)
Admissibility ('((')
by: sirdondee@gmail.com Page 50 of 66 Acting on a tip
by an informant, police oficers stopped a car
being driven by D and ordered him to open the
trun2. %he oficers found a bag containing
several 2ilos of cocaine. %hey seiGed the car
and the cocaine as evidence and placed D
under arrest. 3ithout advising him of his right
to remain silent and to have the assistance of
an attorney, they ?uestioned him regarding
the cocaine. &n reply, D said, T& donLt 2now
anything about it. &t isnLt even my car.U D was
charged with illegal possession of cocaine, a
prohibited drug. pon motion of D, the court
suppressed the use of cocaine as evidence and
dismissed the charges against him. D
commenced proceedings against the police for
the recovery of his car. &n his direct
e9amination, D testi;ed that he owned the car
but had registered it in the name of a friend
for convenience. #n cross-e9amination, the
attorney representing the police as2ed, TAfter
your arrest, did you not tell the arresting
oficers that it wasnLt your car5U &f you were
DLs attorney, would you object to the ?uestion5
3hy5 6<+8
SUGGESTED ANSWER:
Nes, because his admission made when he
was ?uestioned after he was placed under
arrest was in violation of his
constitutional right to be informed of his
right to remain silent and to have
competent and independent counsel of his
own choice. :ence, it is inadmissible in
evidence. FConstitutionE Art. )))E sec. 1'"
1.A. 7=.! (199')E secE '" Peole v. :a,inayE .(' SC1A =77G.
ALTERNATIE ANSWER:
Nes, because the ?uestion did not lay the
predicate to justify the cross-e9amination
?uestion.
Admissibility ('((?)
!gt. 10 of 3/D arrested two '/A
suspects, @a9 and Bri9, both aged 77, in
the act of robbing a grocery in "rmita. As
he handcufed them he noted a pistol
tuc2ed in @a9Js waist and a dagger
hidden under Bri9Js shirt, which he
promptly con;scated. At the police
investigation room, @a9 and Bri9 orally
waived their right to counsel and to
remain silent. %hen under oath, they
freely answered ?uestions as2ed by the
police des2 oficer. %hereafter they signed
their sworn statements before the police
captain, a lawyer. @a9 admitted his part
in the robbery, his possession of a pistol
and his ownership of the pac2et of shabu
found in his poc2et. Bri9 admitted his role
in the robbery and his possession of a
dagger. But they denied being '/A hit
men. &n due course, proper charges were
;led by the City /rosecutor against both
arrestees before the @@ 0%C. @ay the
written statements signed and sworn to
by @a9 and Bri9 be admitted by the trial
court as evidence for the prosecution5
0eason. 6<+8
SUGGESTED ANSWER:
'o. %he sworn written statements of @a9
and Bri9 may not be admitted in
evidence, because they were not assisted
by counsel. "ven if the police captain
)
before whom they signed the statements
was a lawyer, he was not functioning as a
lawyer, nor can he be considered as an
independent counsel. 3aiver of the right
to a lawyer must be done in writing and in
the presence of independent counsel.
(Peole v. :a,inayE .(' SC1A =77 11999G" Peole v. 9sirituE .('
SC1A
7.. F1999G).
Admissibility" Admission of 3uilt" 1e<uirements ('((+)
3hat are the re?uirements in order that
an admission of guilt of an accused
during a custodial investigation be
admitted in evidence5 67.<+8
SUGGESTED ANSWER:
1 %he admission must be voluntary.
2 %he admission must be in writing.
3 %he admission must be made with the
assistance of competent, independent
counsel.
>. %he admission must be e9press
(Peo$le v. Prinsi$e, ".. %o. &(*/62, Ma. 2,
2002!. <. &n case the accused waives his
rights to silence and to counsel, such
waiver must be in writing, e9ecuted with
the assistance of competent, independent
counsel.
Admissibility" 8ocument" =ot raised in t,e Pleading
('((?)
&n a complaint for a sum of money ;led
before the @@ 0%C, plaintif did not
mention or even just hint at any demand
for payment made on defendant before
commencing suit. During the trial,
plaintif duly ofered "9h. PAP in evidence
for the stated purpose of proving the
ma2ing of e9trajudicial demand on
defendant to pay /<FF.FFF, the subject of
the suit. "9h. PAP was a letter of demand
for defendant to pay said sum of money
within DF days from receipt, addressed to
and served on defendant some two
months before suit was begun. 3ithout
objection from defendant, the court
admitted "9h. PAP in evidence. 3as the
courtJs admission of "9h. PAP in evidence
erroneous or not5 0eason. 6<+8
SUGGESTED ANSWER:
%he courtJs admission of "9h. PAP in
evidence is not erroneous. &t was
admitted in evidence without objection on
the part of the defendant. &t should be
treated as if it had been raised in the
pleadings. %he complaint may be
amended to conform to the evidence, but
if it is not so amended, it does not afect
the result of the trial on this issue. (Sec. (
of Rule
1)).
Admissibility" 9lectronic 9vidence ('((.)
a8 !tate the rule on the admissibility of an
electronic evidence. b8 3hen is an electronic
evidence regarded as being
the e?uivalent of an original document under
the Best "vidence 0ule5 >+
SUGGESTED ANSWER:
6a8 3henever a rule of evidence refers to
the term writing, document, record,
instrument, memorandum or any other
form of writing, such term shall be
by: sirdondee@gmail.com Page 51 of 66 deemed to
include an electronic document as de;ned in
these 0ules. (Sec. 1 of Rule 3, Rules of 9lectronic
9!i#ence eAecti!e -u3ust 1, 2))1).
An electronic document is admissible in
evidence if it complies with the rules on
admissibility prescribed by the 0ules of
Court and related laws and is
authenticated in the manner prescribed
by these 0ules. (Sec. 2 of Rule 3, /#.). %he
authenticity of any private electronic
document must be proved by evidence
that it had been digitally signed and other
appropriate security measures have been
applied. (Sec.
2 of Rule (, /#.).
6b8 An electronic document shall be
regarded as the e?uivalent of an original
document under the Best "vidence 0ule if
it is a printout or output readable by sight
or other means, shown to re=ect the data
accurately. (Sec. 1 of Rule 4)
Admissibility" *b/ect or 1eal 9vidence (199?)
At the trial of Ace for violation of the
Dangerous Drugs Act, the prosecution
ofers in evidence a photocopy of the
mar2ed /DFF.FF bills used in the Tbuy-
bustU operation. Ace objects to the
introduction of the photocopy on the
ground that the Best "vidence 0ule
prohibits the introduction of secondary
evidence in lieu of the original. a8 &s the
photocopy real 6object8 evidence or
documentary evidence5 b8 &s the
photocopy admissible in evidence5
SUGGESTED ANSWER:
a8 %he photocopy of the mar2ed bills is
real 6object8 evidence not documentary
evidence, because the mar2ed bills are
real evidence.
b8 Nes, the photocopy is admissible in
evidence, because the best evidence rule
does not apply to object or real evidence.
Admissibility" *b/ections (1997)
3hat are the two 2inds of objections5
"9plain each brie=y. 1iven an e9ample of
each.
SUGGESTED ANSWER:
%wo 2inds of objections areO 6D8 the
evidence being presented is not relevant
to the issueI and 678 the evidence is
incompetent or e9cluded by the law or the
rules, (Sec. 3, Rule 13*). An e9ample of
the ;rst is when the prosecution ofers as
evidence the alleged ofer of an &nsurance
company to pay for the damages sufered
by the victim in a homicide case.
(See 1997 'o. 14).
"9amples of the second are evidence
obtained in violation of the Constitutional
prohibition against unreasonable
searches and seiGures and confessions
and admissions in violation of the rights
of a person under custodial &nvestigation.
ALTERNATIE ANSWERS:
)
D8 !peci;c objectionsO "9ampleO parol
evidence and best evidence rule
1eneral #bjectionsO "9ampleO continuing
objections 6!ec. *E of 0ule D*78.
78 %he two 2inds of objections areO 6D8
objection to a ?uestion propounded in the
course of the oral e9amination of the
witness and 678 objection to an ofer of
evidence in writing. #bjection to a
?uestion propounded in the course of the
oral e9amination of a witness shall be
made as soon as the grounds therefor
shall become reasonably apparent
otherwise, it is waived. An ofer of
objection in writing shall be made within
three 6*8 days after notice of the ofer,
unless a diferent period is allowed by the
court. &n both instances the grounds for
objection must be speci;ed. An e9ample
of the ;rst is when the witness is being
cross-e9amined and the cross
e9amination is on a matter not relevant.
An e9ample of the second is that the
evidence ofered is not the best evidence.
Admissibility" *ffer to :arry" Circumstantial 9vidence
(199!)
A was accused of having raped R. 0ule on
the admissibility of the following pieces
of evidenceO
1 an ofer of A to marry RI and 6*+,
2 a pair of short pants allegedly left by A
at the crime which the court, over the
objection of A, re?uired him to put on,
and when he did, it ;t him well. )7+,
SUGGESTED ANSWER:
D. AJs ofer to marry R is admissible in
evidence as an &mplied admission of guilt
because rape cases are not allowed to be
compromised. (Sec. 27 of ule &(9;
Peo$le vs. 0o,ingo, 226 SC)
&*6.!
7. %he pair of short pants, which ;t the
accused well, is circumstantial evidence
of his guilt, although standing alone it
cannot be the basis of conviction. %he
accused cannot object to the court
re?uiring him to put the short pants on.
&t is not part of his right against self-
incrimination because it is a mere
physical act.
Admissibility" *ffer to Pay 9;enses (1997)
A, while driving his car, ran over B. A
visited B at the hospital and ofered to pay
for his hospitaliGation e9penses. After the
;ling of the criminal case against A for
serious physical injuries through rec2less
imprudence. AJs insurance carrier ofered
to pay for the injuries and damages
sufered by B. %he ofer was rejected
because B considered the amount ofered
as inade?uate. a8 &s the ofer by A to pay
the hospitaliGation
e9penses of B admissible in evidence5 b8
&s the ofer by AJs insurance carrier to
pay for the injuries and damages of B admissible in
evidence5
SUGGESTED ANSWER:
6a8 %he ofer by A to pay the
hospitaliGation e9penses of B is not
admissible in evidence to prove his guilt
in both the civil and criminal cases. (Rule
13),
Sec. 27, fourt0 8ar.).
6b8 'o. &t is irrelevant. %he obligation of
the insurance company is based on the
contract of insurance and is not
admissible in evidence against the
accused because it was not ofered by the
accused but by the insurance company
which is not his agent.
Admissibility" Private 8ocument ('((7)
@ay a private document be ofered, and
admitted in evidence both as
documentary evidence and as object
evidence5 "9plain.
SUGGESTED ANSWER:
Nes, it can be considered as both
documentary and object evidence. A
private document may be ofered and
admitted in evidence both as
documentary evidence and as object
evidence. A document can also be
considered as an object for purposes of
the case. #bjects as evidence are those
addressed to the senses of the court. (Sec.
1, Rule 13), Rules of ourt) Documentary
evidence consists of writings or any
material containing letters, words,
numbers, ;gures, symbols or other modes
of written e9pressions, ofered ns proof of
their contents. 6Sec. 2, Rule 13), Rules of
ourt) :ence, a private document may be
presented as object evidence in order to
Jestablish certain physical evidence or
characteristics that are visible on the
paper and writings that comprise the
document.
Admissibility" Proof of &iliation" Action of Partition ('((()
.inda and spouses Arnulfo and 0egina
Ceres were co-owners of a parcel of land.
.inda died intestate and without any
issue. %en 6DF8 persons headed by (ocelyn,
claiming to be the collateral relatives of
the deceased .inda, ;led an action for
partition with the 0%C praying for the
segregation of .indaLs X share,
submitting in support of their petition the
baptismal certi;cates of seven of the
petitioners, a family bible belonging to
.inda in which the names of the
petitioners have been entered, a
photocopy of the birth certi;cate of
(ocelyn, and a certi;cation of the local
civil registrar that its ofice had been
completely raGed by ;re. %he spouses
Ceres refused to partition on the following
groundsO D8 the baptismal certi;cates of
the parish priest are evidence only of the
administration of the sacrament of
baptism and they do not prove ;liation of
the alleged collateral relatives of the
deceasedI 78 entry in the family bible is
hearsayI *8 the certi;cation of the
registrar on non-availability of the records
of birth does not prove ;liationO >8 in
partition cases where ;liation to the
deceased is in dispute, prior and separate
judicial declaration of heirship in a
settlement of estate proceedings is
necessaryI and <8 there is need for
publication as real
)
property is involved. As counsel for
(ocelyn 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 ;ve 6<8
arguments brie=y but completely. 6DF+8
SUGGESTED ANSWER:
6D8 %he baptismal certi;cate can show
;liation or prove pedigree. &t is one of the
other means allowed under the 0ules of
Court and special laws to show pedigree.
(5rini#a# v. Court of )$$eals, 2/9 SC) &// F&99/D; <eirs of +8gnacio Conti v. Court of
)$$eals, (00 SC) ('* F&99/D!.
678 "ntries in the family bible may be received as
evidence of pedigree. (Sec. '0, ule &(0,
ules of Court!.
6*8 %he certi;cation 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 certi;cate of (ocelyn. (<eirs of
+gnacio Conti v. Court of )$$eals,
su$ra.!
6>8 Declaration of heirship in a
settlement proceeding is not necessary.
&t can be made in the ordinary action for
partition wherein the heirs are e9ercising
the right pertaining to the decedent,
their predecessor-ininterest, to as2 for
partition as co-owners 6&d.8
6<8 "ven if real property is involved, no
publication is necessary, because what is
sought is the mere segregation of .indaLs
share in the property. (Sec. 1 of
Rule .9; /#.)
Admissibility" 1ules of 9vidence (1997)
1ive the reasons underlying the adoption
of the following rules of evidenceO
6a8 Dead @an
0ule 6b8 /arol "vidence
0ule 6c8 Best "vidence
0ule 6d8 %he rule against the admission of
illegally obtained e9trajudicial confession
6e8 %he rule against the admission of an
ofer of compromise in civil cases
SUGGESTED ANSWER:
%he reasons behind the following rules are as
followsO 6a8 04)0 M)% :84O if death has
closed the lips of one party, the policy of
the law is to close the lips of the other.
("oni v. Court of)$$eals, 8677'('.
Se$te,3er 2(, &9/6, &'' SC) 222!. %his is
to prevent the temptation to perjury
because death has already sealed the lips
of the party.
6b8 P)98 4=+04%C4 :84O &t is
designed to give certainty to a
transaction which has been reduced to
writing, because written evidence is
much more certain and accurate than
that which rests on =eeting memory only.
($rancisco, Rules of ourt Bol. B//, "art /. 8.
1(4)
6c8 B4S5 4=+04%C4 :84O %his 0ule is
adopted for the prevention of fraud and is
declared to be essential to the pure
administration of justice. (:oran, Bol. (, 8.
12.) &f a party is in possession of such
evidence and withholds it, the
presumption naturally arises that the
better evidence is withheld for fraudulent
purposes. ($rancisco. Rules of ourt, !ol. B//.
"art /,
88, 121,122)
6d8 An illegally obtained e9trajudicial
confession nulli;es the intrinsic validity of
the confession and renders it unreliable
as evidence of the truth. (:oran, !ol. (, 8.
2(7) it is the fruit of a poisonous tree.
6e8 %he reason for the rule against the
admission of an ofer of compromise in
civil case as an admission of any liability is
that parties are encouraged to enter into
compromises. Courts should endeavor to
persuade the litigants in a civil case to
agree upon some fair compromise. (-rt.
2)29, i!il o#e). During pre-trial, courts
should direct the parties to consider the
possibility of an amicable settlement. (Sec.
1[a] of
former Rule 2)< Sec. 2 [a] of new
Rule 1.).
Best 9vidence 1ule (1997)
3hen A loaned a sum of money to B. A
typed a single copy of the promissory
note, which they both signed A made two
photo 69ero9ed8 copies of the promissory
note, giving one copy to B and retaining
the other copy. A entrusted the
typewritten copy to his counsel for
safe2eeping. %he copy with AJs counsel
was destroyed when the law ofice was
burned. a8 &n an action to collect on the
promissory note,
which is deemed to be the PoriginalP copy
for the purpose of the PBest "vidence
0uleP5 b8 Can the photocopies in the
hands of the parties be considered
Pduplicate original copiesP5 c8 As counsel
for A, how will you prove the loan given
to A and B5
SUGGESTED ANSWER:
6a8 %he copy that was signed and lost is
the only PoriginalP copy for purposes of
the Best "vidence 0ule. (Sec. 4 [b] of Rule
13)).
6b8 'o, %hey are not duplicate original
copies because there are photocopies
which were not signed 6:a,ilum v. Court of
AealsE 17 SC1A =!'8, %hey constitute
secondary evidence. (Sec. ( of Rule 13)).
6c8 %he loan given by A to B may be
proved by secondary evidence through the
9ero9ed copies of the promissory note.
%he rules provide that when the original
document is lost or destroyed, or cannot
be produced in court, the oferer, upon
proof of its e9ecution or e9istence and the
cause of its unavailability without bad
faith on his part, may prove its contents
by a copy, or by a recital of its contents in
some authentic document, or by the
)
testimony of witnesses in the order
stated. (Sec. ( of Rule 13)).
Burden of Proof vs. Burden of 9vidence ('((?)
Distinguish Burden of proof and burden of
evidence.
SUGGESTED ANSWER:
Burden of proof is the duty of a party to
present evidence on the facts in issue
necessary to establish his claim or defense
by the amount of evidence re?uired by law.
(Sec. 1 of Rule 131), while burden of evidence
is the duty of a party to go forward with
the evidence to overthrow prima facie
evidence established against him. (Bautista v.
SarmientoE 1.! SC1A 7!7 F19!7G).
C,aracter 9vidence ('((')
D was prosecuted for homicide for
allegedly beating up - to death with an
iron pipe. A. @ay the prosecution introduce
evidence that - had a good reputation for
peacefulness and nonviolence5 3hy5
67+8
B. @ay D introduce evidence of
speci;c violent acts by -5 3hy5 6*+8
SUGGESTED ANSWER:
A. %he 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 improbability of the ofense
charged. [Rule 13), sec. (1 a (3)]. &n this
case, the evidence is not relevant.
B. Nes, D may introduce evidence of
speci;c violent acts by -. "vidence that
one did or did not do a certain thing at
one time is not admissible to prove that
he did or did not do the same or a similar
thing at another timeI but it may be
received to prove a speci;c intent or
2nowledge, identity, plan, system,
scheme, habit, custom or usage, and the
li2e. (Rule 13), sec. 34).
Confession" Affidavit of 1ecantation (199!)
1 &f the accused on the witness stand
repeats his earlier uncounseled
e9trajudicial confession implicating his
co-accused in the crime charged, is that
testimony admissible in evidence against
the latter5 )*+,
2 3hat is the probative value of a witnessJ
Afidavit of 0ecantation5 )7+,
SUGGESTED ANSWER:
1" Nes. %he accused can testify by repeating
his earlier uncounseled e9trajudicial
confession, because he can be subjected to
cross-e9amination.
2" #n the probative value of an afidavit of
recantation, courts loo2 with disfavor upon
recantations because they can easily be
secured from witnesses, usually through
intimidation or for a monetary
consideration, 0ecanted testimony is
e9ceedingly unreliable. %here is always the
probability
by: sirdondee@gmail.com Page 54 of 66 that it will be
repudiated. (:olina vs. Peole. '79 SC1A 1.!.)
&acts" 0egislative &acts vs. Ad/udicative &acts ('((?)
.egislative facts and adjudicative
facts.
SUGGESTED ANSWER:
.egislative facts refer to facts mentioned
in a statute or in an e9planatory note,
while adjudicative facts are facts found in
a court decision.
6earsay 9vidence ('((')
0omeo is sued for damages for injuries
sufered by the plaintif in a vehicular
accident. (ulieta, a witness in court,
testi;es that 0omeo told her 6(ulieta8 that
he 60omeo8 heard Antonio, a witness to
the accident, give an e9cited account of
the accident immediately after its
occurrence. &s (ulietaLs testimony
admissible against 0omeo over proper
and timely objection5 3hy5 6<+8
SUGGESTED ANSWER:
'o, (ulietaLs testimony is not admissible
against 0omeo, because while the e9cited
account of Antonio, a witness to the
accident, was told to 0omeo, it was only
0omeo who told (ulieta about it, which
ma2es it hearsay.
6earsay 9vidence vs. *inion 9vidence ('((?)
:earsay evidence and opinion
evidence.
SUGGESTED ANSWER:
:earsay evidence consists of testimony
that is not based on personal 2nowledge
of the person testifying, (see Sec. 3., Rule
13)), while opinion evidence is e9pert
evidence based on the personal
2nowledge s2ill, e9perience or training of
the person testifying (Sec. 49, /#.) and
evidence of an ordinary witness on
limited matters (Sec. (), /#.).
6earsay" 9;cetion" 8ead :an Statute ('((1)
@a9imo ;led an action against /edro, the
administrator of the estate of deceased
(uan, for the recovery of a car which is
part of the latterLs estate. During the trial,
@a9imo presented witness @ariano who
testi;ed that he was present when @a9imo
and (uan agreed that the latter would pay
a rental of /7F,FFF.FF for the use of
@a9imoLs car for one month after which
(uan should immediately return the car to
@a9imo. /edro objected to the admission
of @arianoLs testimony. &f you were the
judge, would you sustain /edroLs
objection5 3hy5 6<+8
SUGGESTED ANSWER:
'o, the testimony is admissible in
evidence because witness @ariano who
testi;ed as to what @a9imo and (uan, the
deceased person agreed upon, is not
dis?uali;ed to testify on the agreement.
%hose dis?uali;ed are parties or assignors
of parties to a case, or persons in whose
behalf a case is prosecuted, against the
administrator or (uanLs estate, upon a
)
claim or demand against his estate as to
any matter of fact occurring before
(uanLs death. (Sec. 23 of Rule 13))
6earsay" 9;cetion" 8ying 8eclaration (199!)
0e?uisites of Dying Declaration.
)7+8
SUGGESTED ANSWER:
%he re?uisites for the admissibility of a
dying declaration areO 6a8 the declaration is
made by the deceased under the
consciousness of his impending deathI 6b8
the deceased was at the time competent as
a witnessI 6c8 the declaration concerns the
cause and surrounding circumstances of the
declarantJs deathI and 6d8 the declaration is
ofered in a 6criminal8 case wherein the
declarantJs death is the subject of in?uiry.
(People vs. Santos, 270 SCRA
650.)
ALTERNATIE ANSWER:
%he declaration of a dying person, made
under the consciousness of an impending
death, may be received in any case
wherein his death is the subject of &n?uiry,
as evidence of the cause and surrounding
circumstances of such death. (Sec. 37 of
Rule 13C.)
6earsay" 9;cetion" 1es 3estae" *inion of *rdinary
Bitness ('((7)
Dencio barged into the house of @arcela, tied
her to a chair and robbed her of assorted
pieces of jewelry and money. Dencio then
brought Candida, @arcelaJs maid, to a
bedroom where he raped her. @arcela could
hear Candida crying and pleadingO P:uwagY
@aawa 2a sa a2inYP After raping Candida,
Dencio =ed from the house with the loot.
Candida then untied @arcela and rushed to
the police station about a 2ilometer away and
told /olice #ficer 0oberto @aawa that Dencio
had barged into the house of @arcela, tied the
latter to a chair and robbed her of her jewelry
and money. Candida also related to the police
oficer that despite her pleas, Dencio had
raped her. %he policeman noticed that
Candida was hysterical and on the verge of
collapse. Dencio was charged with robbery
with rape. During the trial, Candida can no
longer be located. 6A+8
a! +f the $rosecution $resents Police 9>icer
o3erto Maawa to testif. on what Can#i#a
ha# tol# hi,, woul# such testi,on. of the
$olice,an 3e hearsa.; 47$lain.
SUGGESTED ANSWER:
'o. %he testimony of the policeman is not
hearsay. &t is part of the res gestae. &t is
also an independently relevant statement.
%he police oficer testi;ed of his own
personal 2nowledge, not to the truth of
CandidaJs statement, i.e., that she told
him, despite her pleas, Dencio had raped
her. (Peo$le v. "a##i,"..
%o. 7'06*, 2e3ruar.
27,&9/9!
3! +f the $olice o>icer will testif. that he
notice# Can#i#a to 3e h.sterical an# on the
verge of colla$se, woul# such testi,on. 3e
consi#ere# as o$inion, hence, ina#,issi3le;
47$lain.
SUGGESTED ANSWER:
'o, it cannot be considered as opinion,
because he was testifying on what he
actually observed. %he last paragraph of
!ec. <F, 0ule D*F, 0evised 0ules of
by: sirdondee@gmail.com Page 55 of 66 "vidence,
e9pressly provides that a witness may testify
on his impressions of the emotion, behavior,
condition or appearance of a person.
6earsay" 9;cetions (1999)
a8 De;ne hearsay evidence5 67+8 b8
3hat are the e9ceptions to the hearsay
rule5 67+8
SUGGESTED ANSWER:
1" :earsay evidence may be de;ned
as evidence that consists of
testimony not coming from
personal 2nowledge (Sec. 3., Rule
13), Rules of ourt). :earsay
testimony is the testimony of a
witness as to what he has heard
other persons say about the facts in
issue.
2" %he e9ceptions to the hearsay
rule areO dying declaration,
declaration against interest, act or
declaration about pedigree, family
reputation or tradition regarding
pedigree, common reputation, part
of the res 3estae, entries in the
course of business, entries in
oficial records, commercial lists
and the li2e, learned treatises, and
testimony or deposition at a former
proceeding. (37 to 47, Rule 13C, Rules
of ourt)
6earsay" 9;cetions" 8ying 8eclaration (1999)
%he accused was charged with robbery
and homicide. %he victim sufered several
stab wounds. &t appears that eleven 6DD8
hours after the crime, while the victim
was being brought to the hospital in a
jeep, with his brother and a policeman as
companions, the victim was as2ed certain
?uestions which he answered, pointing to
the accused as his assailant. :is answers
were put down in writing, but since he
was a in a critical condition, his brother
and the policeman signed the statement.
&s the statement admissible as a dying
declaration5 "9plain. 67+8
SUGGESTED ANSWER:
Nes. %he statement is admissible as a
dying declaration if the victim
subse?uently died and his answers were
made under the consciousness of
impending death (Sec. 37 of Rule 13)). %he
fact that he did not sign the statement
point to the accused as his assailant,
because he was in critical condition, does
not afect its admissibility as a dying
declaration. A dying declaration need not
be in writing (Peo$le v.
=iovicente, 2/6 SC) &!
6earsay" )nalicable ('((.)
R was charged with robbery. #n the
strength of a warrant of arrest issued by
the court, R was arrested by police
operatives. %hey seiGed from his person a
handgun. A charge for illegal possession
of ;rearm was also ;led against him. &n a
press conference called by the police, R
admitted that he had robbed the victim of
jewelry valued at /<FF,FFF.FF.
%he robbery and illegal possession of
;rearm cases were tried jointly. %he
prosecution presented in evidence a
newspaper clipping of the report to the
reporter who was present during the
press conference
)
stating that R admitted the robbery. &t
li2ewise presented a certi;cation of the
/'/ $irearms and "9plosive #fice
attesting that the accused had no license
to carry any ;rearm. %he certifying
oficer, however, was not presented as a
witness. Both pieces of evidence were
objected to by the defense. 6K+8 a8 &s the
newspaper clipping admissible in
evidence
against R5 b8 &s the certi;cation of the
/'/ $irearm and
"9plosive #fice without the certifying oficer
testifying on it admissible in evidence
against R5
SUGGESTED ANSWER:
6a8 Nes, the newspaper clipping is
admissible in evidence against R. regardless
of the truth or falsity of a statement, the
hearsay rule does not apply and the
statement may be shown where the fact that
it is made is relevant. "vidence as to the
ma2ing of such statement is not secondary
but primary, for the statement itself may
constitute a fact in issue or be
circumstantially relevant as to the e9istence
of such fact. ("otesco +nvest,ent Cor$oration
vs. Chatto, 2&0
SC) &/ F&992D!
6b8 Nes, the certi;cation is admissible in
evidence against R because a written
statement signed by an oficer having the
custody of an oficial record or by his
deputy that after diligent search no record
or entry of a speci;ed tenor is found to
e9ist in the records of his ofice,
accompanied by a certi;cate as above
provided, is admissible as evidence that
the records of his ofice contain no such
record or entry.
(Sec. 2* of Rule 132).
Judicial =otice" 9vidence ('((7)
"9plain brie=y whether the 0%C may,
motu 8ro8rio, ta2e judicial notice ofO
6<+8 &. 5he street na,e of
,etha,$heta,ine h.#ro6chlori#e is
sha3u.
SUGGESTED ANSWER:
%he 0%C may motu 8ro8rio ta2e judicial
notice of the street name of
methamphetamine hydrochloride is
shabu, considering the chemical
composition of shabu. (Peo$le v. Macasling,
"M, %o. 90('2, Ma. 27,
&99(!
2. 9r#inances a$$rove# 3.
,unici$alities un#er its territorial
Auris#iction;
SUGGESTED ANSWER:
&n the absence of statutory authority, the
0%C may not ta2e judicial notice of
ordinances approved by municipalities
under their territorial jurisdiction, e9cept on
appeal from the municipal trial courts,
which too2 judicial notice of the ordinance
in ?uestion. (:.S. v. Blanco, "., %o. &2'(*,
%ove,3er
9,&9&7; :.S. v. <ernan#eC, ".. %o. 9699,
)ugust 26, &9&*!
(. 2oreign laws;
SUGGESTED ANSWER:
by: sirdondee@gmail.com Page 56 of 66 %he 0%C may
not generally ta2e judicial notice of foreign
laws (+n re 4state of -ohnson, ".. %o. &2767,
%ove,3er &6, &9&/; 2lue,er v. <i7, ".. %o.
(26(6, March &7, &9(0!, which must be proved
li2e any other matter of fact (S. -oe 8ieng v. S.
Iuia, ".. %o. '7&/, March &9, &9&0! e9cept in
a few instances, the court in the e9ercise of its
sound judicial discretion, may ta2e notice of
foreign laws when /hilippine courts are
evidently familiar with them, such as the
!panish Civil Code, which had ta2en efect in
the /hilippines, and other allied legislation.
(Par#o v. e$u3lic, ".. %o. 822'/ -anuar. 2(,
&9*0; 0elga#o v. e$u3lic, ".. %o. 82*'6,
-anuar. .2/, &9*0!
'. ules an# egulations issue#
3. ?uasi6Au#icial 3o#ies
i,$le,enting statutes;
SUGGESTED ANSWER:
%he 0%C may ta2e judicial notice of 0ules
and 0egulations issued by ?uasi-judicial
bodies implementing statutes, because they
are capable of un?uestionable
demonstration (Chatta,al v. Collector of
Custo,s, ".. %o. &6('7, %ove,3er (,&920!,
unless the law itself considers such rules as
an integral part of the statute, in which
case judicial notice becomes mandatory.
*. a$e ,a. 3e co,,itte# even in
$u3lic $laces.
SUGGESTED ANSWER:
%he 0%C may ta2e judicial notice of the
fact that rape may be committed even in
public places. %he Ppublic settingP of the
rape is not an indication of consent.
(Peo$le v. 5ongson, ".. %o. 9&26&, 2e3ruar. &/,
&99&! %he !upreme Court has ta2en judicial
notice of the fact that a man overcome by
perversity and beastly passion chooses
neither the time, place, occasion nor
victim. (Peo$le v, Barcelona, ".. %o.
/2*/9, 9cto3er (&,
&990!
Judicial =otice" 9vidence" &oreign 0a2 (1997)
a8 1ive three instances when a /hilippine
court can ta2e judicial notice of a foreign law. b8
:ow do you prove a written foreign law5
c8 !uppose a foreign law was pleaded as
part of the
defense of defendant but no evidence
was presented to prove the e9istence
of said law, what is the presumption to
be ta2en by the court as to the
wordings of said lawP5
SUGGESTED ANSWER:
6a8 %he three instances when a /hilippine
court can ta2e judicial notice of a foreign
law areO 6D8 when the /hilippine courts
are evidently familiar with the foreign law
(:oran. Bol. (, 8. 34, 19*) e#ition); 678 when
the foreign law refers to the law of
nations (Sec. 1 of Rule 129) and 6*8 when it
refers to a published treatise, periodical
or pamphlet on the subject of law if the
court ta2es judicial notice of the fact that
the writer thereof is recogniGed in his
profession or calling as e9pert on the
subject (Sec. 4.. Rule 13)).
)
6b8 A written foreign law may be evidenced by
an oficial publication thereof or by a copy
attested by the oficer having the legal custody
of the record, or by his deputy, and
accompanied. &f the record is not 2ept in the
/hilippines, with a certi;cate that such oficer
has the custody, if the ofice in which the
record is 2ept is in a foreign country, the
certi;cate may be made by a secretary of the
embassy or legation, consul general, consul,
vice-consul, or consular agent or by any oficer
in the foreign service of the /hilippines
stationed in the foreign country in which the
record is 2ept, and authenticated by the seal
of his ofice (Sec. 2', ule &(2, Gala,ea v. C),
22/
SC) 2(!.
6c8 %he presumption is that the wordings
of the foreign law are the same as the
local law. (%orthwest 9rient )irlines v. Court of )$$eals, 2'&
SC) &92; Moran, =ol. 6. $age (', &9/0
e#ition; 8i, v. Collector of Custo,s, (6
Phil. '72!. %his is 2nown as the
/0#C"!!A. /0"!@/%&#'.
:emorandum (199+)
R states on direct e9amination that he
once 2new the facts being as2ed but he
cannot recall them now. 3hen handed a
written record of the facts he testi;es that
the facts are correctly stated, but that he
has never seen the writing before. &s the
writing admissible as past recollection
recorded5 "9plain,
SUGGESTED ANSWER:
'o, because for the written record to be
admissible as past recollection recorded.
&t must have been written or recorded by
R or under his direction at the time when
the fact occurred, or immediately
thereafter, or at any other time when the
fact was fresh in his memory and he 2new
that the same was correctly written or
recorded. (Sec. 1. of Rule 132) But in this
case R has never seen the writing before.
*ffer of 9vidence (1997)
A trial court cannot ta2e into
consideration in deciding a case an
evidence that has not been Pformally
oferedP. 3hen are the following pieces of
evidence formally ofered5
6a8 %estimonial
evidence 6b8 Documentary
evidence 6c8 #bject
evidence
SUGGESTED ANSWER:
6a8 %estimonial evidence is formally
ofered at the time the witness is called to testify. (Rule
132. Sec. 3(, 1rst 8ar.).
6b8 Documentary evidence is formally
ofered after the presentation of the testimonial
evidence. (Rule 132, Sec. 3(, secon# 8ar.).
6c8 %he same is true with object evidence.
&t is also ofered after the presentation of
the testimonial evidence.
*ffer of 9vidence" res inter alios acta ('((.)
R and N were charged with murder. pon
application of the prosecution, N was
discharged from the &nformation to be
utiliGed as a state witness. %he prosecutor
presented N as witness but forgot to state
the purpose of his testimony much less
ofer it in evidence. N testi;ed that he and
R conspired to 2ill the victim but it was R
who actually shot the victim. %he
testimony of N was the only material
evidence establishing the guilt of R. N was
thoroughly cross-e9amined by the defense
counsel. After the prosecution rested its
case, the defense ;led a motion for
demurrer to evidence based on the
following grounds.
6a8 %he testimony of N should be e9cluded
because its purpose was not initially
stated and it was not formally ofered in
evidence as re?uired by !ection *>, 0ule
D*7 of the 0evised 0ules of "videnceI and
6b8 NLs testimony is not admissible against
R pursuant to the rule on Tres inter alios
actaU. 0ule on the motion for demurrer to
evidence on the above grounds. 6K+8
SUGGESTED ANSWER:
%he demurrer to the evidence should be
denied becauseO a8 %he testimony of N
should not be e9cluded
because the defense counsel did not
object to his testimony despite the
fact that the prosecutor forgot to state
its purpose or ofer it in evidence.
@oreover, the defense counsel
thoroughly cross-e9amined N and thus
waived the objection.
b8 %he res inter alios acta rule does
not apply because N testi;ed in open
court and was subjected to cross
e9amination.
*ffer of 9vidence" %estimonial - 8ocumentary (199?)
3hat is the diference between an ofer of
testimonial evidence and an ofer of
documentary evidence5
SUGGESTED ANSWER:
An ofer of testimonial evidence is made
at the time the witness is called to testify,
while an ofer of documentary evidence is
made after the presentation of a partyLs
testimonial evidence. (Sec. 3(, Rule 132).
*inion 1ule (199?)
At 'olanLs trial for possession and use of
the prohibited drug, 2nown as TshabuO,
his girlfriend 4im, testi;ed that on a
particular day, he would see 'olan very
prim and proper, alert and sharp, but that
three days after, he would appear
haggard, tired and overly nervous at the
slightest sound he would hear. 'olan
objects to the admissibility of 4imLs
testimony on the ground that 4im merely
stated her opinion without having been
;rst ?uali;ed as e9pert witness. !hould
you, as judge, e9clude the testimony of
4im5
)
SUGGESTED ANSWER:
'o. %he testimony of 4im should not be
e9cluded. "ven though 4im is not an
e9pert witness, 4im may testify on her
impressions of the emotion, behavior,
condition or appearance of a person. (Sec.
(), last 8ar., Rule 13)).
Parol 9vidence 1ule ('((1)
/edro ;led a complaint against .ucio for
the recovery of a sum of money based on
a promissory note e9ecuted by .ucio. &n
his complaint, /edro alleged that
although the promissory note says that it
is payable within D7F days, the truth is
that the note is payable immediately after
HF days but that if /edro is willing, he
may, upon re?uest of .ucio give the latter
up to D7F days to pay the note. During the
hearing, /edro testi;ed that the truth is
that the agreement between him and
.ucio is for the latter to pay immediately
after ninety dayLs time. Also, since the
original note was with .ucio and the
latter would not surrender to /edro the
original note which .ucio 2ept in a place
about one dayLs trip from where he
received the notice to produce the note
and in spite of such notice to produce the
same within si9 hours from receipt of
such notice, .ucio failed to do so. /edro
presented a copy of the note which was
e9ecuted at the same time as the original
and with identical contents. a8 #ver the
objection of .ucio, will /edro be
allowed to testify as to the true agreement or
contents of the promissory note5 3hy5
67+8 b8 #ver the objection of .ucio, can
/edro present a copy of the promissory note and have it
admitted as valid evidence in his favor5 3hy5
6*+8
SUGGESTED ANSWER:
a8 Nes, because /edro has alleged in his
complaint that the promissory note does
not e9press the true intent and
agreement of the parties. %his is an
e9ception to the parol evidence rule. [Sec.
9(b) of Rule 13), Rules of ourt]
b8 Nes, the copy in the possession of
/edro is a duplicate original and with
identical contents. [Sec. 4(b) of Rule 13)].
@oreover, the failure of .ucio to produce
the original of the note is e9cusable
because he was not given reasonable
notice, as re?uirement under the 0ules
before secondary evidence may be
presented.
(Sec. . of Rule 13), Rules of
ourt)
=ote> The prom!!or" #o$e ! %# %&$o#%'(e )o&*me#$ %#)
$he or+#%( or % &op" $hereo, !ho*() h%-e 'ee# %$$%&he) $o
$he &omp(%#$. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). I#
!*&h % &%!e. $he +e#*#e#e!! %#) )*e e/e&*$o# o, $he #o$e.
, #o$ )e#e) *#)er o%$h. 0o*() 'e )eeme) %)m$$e).
(Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)
Preonderance vs. Substantial 9vidence ('((.)
Distinguish preponderance of evidence
from substantial evidence. >+
SUGGESTED ANSWER:
/0"/#'D"0A'C" #$ "-&D"'C" means
that the evidence as a whole adduced by one
side is superior to that of the other. %his is
applicable in civil cases. (Sec. & of ule &((;
Munici$alit. of Monca#a v. CaAuigan, 2& Phil,
&/' F&9&2D!.
!B!%A'%&A. "-&D"'C" is that amount
of relevant evidence which a reasonable
mind might accept as ade?uate to justify
a conclusion. %his is applicable in case
;led before administrative or ?uasi-
judicial bodies. (Sec. ( of Rule 133)
Privilege Communication (199!)
C is the child of the spouses : and 3. :
sued his wife 3 for judicial declaration of
nullity of marriage under Article *K of
the $amily Code. &n the trial, the
following testi;ed over the objection of
3O C, : and D, a doctor of medicine who
used to treat 3. 0ule on 3Js objections
which are the followingO
1" : cannot testify against her because
of the rule on marital privilegeI )D+,
2" C cannot testify against her because
of the doctrine on parental privilegeI
and )7+,
3" D cannot testify against her because
of the doctrine of privileged
communication between patient and
physician. )7+,
SUGGESTED ANSWER:
D. %he rule of marital privilege cannot be
invo2ed in the annulment case under
0ule *K of the $amily Code because it is
a civil case ;led by one against the other,
(Sec. 22 , Rule 13). Rules of
ourt.)
7. %he doctrine of parental privilege
cannot li2ewise be invo2ed by 3 as
against the testimony of C, their child. C
may not be compelled to testify but is
free to testify against her. (Sec. 2(. Rule
13). Rules of ourt; -rt. 21(, $amil% o#e.)
*. D, as a doctor who used to treat 3, is
dis?uali;ed to testify against 3 over her
objection as to any advice or treatment
given by him or any information which he
may have ac?uired in his professional
capacity. (Sec. 24 [c], Rule 13). Rules of
ourt.)
ALTERNATIE ANSWER:
&f the doctorJs testimony is pursuant to the
re?uirement of establishing the
psychological incapacity of 3, and he is
the e9pert called upon to testify for the
purpose, then it should be allowed.
(e$u3lic vs. Court of )$$eals an# Molina,
26S SC) &9/.!
Privilege Communication" :arital Privilege (19!9)
#dy sued spouses Cesar and Baby for a
sum of money and damages. At the trial,
#dy called Baby as his ;rst witness. Baby
objected, joined by Cesar, on the ground
that she may not be compelled to testify
against her husband. #dy insisted and
contended that after all, she would just be
?uestioned about a conference they had
with the barangay captain, a
)
matter which is not con;dential in
nature. %he trial court ruled in favor of
#dy. 3as the ruling proper5 3ill your
answer be the same if the matters to be
testi;ed on were 2nown to Baby or
ac?uired by her prior to her marriage to
Cesar5 "9plain.
SUGGESTED ANSWER:
'o. nder the 0ules on "vidence, a wife
cannot be e9amined for or against her
husband without his consent, e9cept in
civil cases by one against the other, or in
a criminal case for a crime committed by
one against the other. !ince the case was
;led by #dy against the spouses Cesar
and Baby, Baby cannot be compelled to
testify for or against Cesar without his
consent. (8eCa,a vs. o#rigueC, 2( SC)
&&66!.
%he answer would be the same if the
matters to be testi;ed on were 2nown to
Baby or ac?uired by her prior to her
marriage to Cesar, because the marital
dis?uali;cation rule may be invo2ed with
respect to testimony on any fact. &t is
immaterial whether such matters were
2nown to Baby before or after her
marriage to Cesar.
Privilege Communication" :arital Privilege ('((()
-ida and 0omeo are legally married.
0omeo is charged to court with the crime
of serious physical injuries committed
against !elmo, son of -ida, stepson of
0omeo. -ida witnessed the in=iction of
the injuries on !elmo by 0omeo. %he
public prosecutor called -ida to the
witness stand and ofered her testimony
as an eyewitness. Counsel for 0omeo
objected on the ground of the marital
dis?uali;cation rule under the 0ules of
Court. a8 &s the objection valid5 6*+8 b8
3ill your answer be the same if -idaLs
testimony
is ofered in a civil case for recovery of
personal property ;led by !elmo against 0omeo5
67+8
SUGGESTED ANSWER:
6a8 'o. 3hile neither the husband nor the
wife may testify for or against the other
without the consent of the afected
spouse, one e9ception is if the testimony
of the spouse is in a criminal case for a
crime committed by one against the other
or the latterLs direct descendants or
ascendants. (Sec, 22, Rule 13)). %he case
falls under this e9ception because !elma
is the direct descendant of the spouse
-ide.
6b8 'o. %he marital dis?uali;cation rule
applies this time. %he e9ception provided
by the rules is in a civil case by one
spouse against the other. %he case here
involves a case by !elmo for the recovery
of personal property against -idaLs
spouse, 0omeo.
Privilege Communication" :arital Privilege ('((?)
RNS, an alien, was criminally charged of
promoting and facilitating child
prostitution and other se9ual abuses
under 0ep. Act 'o. EKDF. %he principal
witness against him was his $ilipina wife,
ABC. "arlier, she had complained that
RNSJs hotel was
by: sirdondee@gmail.com Page 59 of 66 being used as
a center for se9 tourism and child trafic2ing.
%he defense counsel for RNS objected to the
testimony of ABC at the trial of the child
prostitution case and the introduction of the
afidavits she e9ecuted against her husband as
a violation of espousal con;dentiality and
marital privilege rule. &t turned out that D"$,
the minor daughter of ABC by her ;rst
husband who was a $ilipino, was molested by
RNS earlier. %hus, ABC had ;led for legal
separation from RNS since last year. @ay the
court admit the testimony and afidavits of the
wife, ABC, against her husband, RNS, in the
criminal case involving child prostitution5
0eason. 6<+8
SUGGESTED ANSWER:
Nes. %he court may admit the testimony and
afidavits of the wife against her husband in
the criminal case where it involves child
prostitution of the wifeJs daughter. &t is not
covered by the marital privilege rule. #ne
e9ception thereof is where the crime is
committed by one against the other or the
latterJs direct descendants or ascendants. (Sec.
22, Rule 13)). A crime by the husband against
the daughter is a crime against the wife and
directly attac2s or vitally impairs the conjugal
relation. (9r#ono v. 0a?uigan, 62
SC) 270 F&97*D!.
Privilege Communication" :arital Privilege ('((+)
.eticia was estranged from her husband
/aul for more than a year due to his
suspicion that she was having an afair
with @anuel their neighbor. !he was
temporarily living with her sister in /asig
City. $or un2nown reasons, the house of
.eticiaJs sister was burned, 2illing the
latter. .eticia survived. !he saw her
husband in the vicinity during the
incident. .ater he was charged with arson
in an &nformation ;led with the 0egional
%rial Court, /asig City. During the trial,
the prosecutor called .eticia to the
witness stand and ofered her testimony
to prove that her husband committed
arson. Can .eticia testify over the
objection of her husband on the ground of
marital privilege5 6<+8
ALTERNATIE ANSWER:
'o, .eticia cannot testify over the objection
of her husband, not under marital privilege
which is inapplicable and which can be
waived, but she would be barred under !ec.
77 of 0ule D*F, which prohibits her from
testifying and which cannot be waived
()lvareC v. a,ireC, ".. %o. &'('(9, 9cto3er &',
200*!.
ALTERNATIE ANSWER:
Nes, .eticia may testify over the objection
of her husband. %he dis?uali;cation of a
witness by reason of marriage under !ec.
77, 0ule D*F of the 0evised 0ules of
Court has its e9ceptions as where the
marital relations are so strained that
there is no more harmony to be
preserved. %he acts of /aul eradicate all
major aspects of marital life. #n the other
hand, the !tate has an interest in
punishing the guilty and
)
e9onerating the innocent, and must have
the right to ofer the testimony of .eticia
over the objection of her husband ()lvareC
v. a,ireC, ".. %o. &'('(9, 9cto3er &', 200*!.
1emedy" 0ost 8ocuments" Secondary 9vidence (199')
Aja9 /ower Corporation, a utility
company, sued in the 0%C to enforce a
supposed right of way over a property
owned by !implicio. At the ensuing trial,
Aja9 presented its retired ;eld auditor
who testi;ed that he 2now for a fact that
a certain sum of money was periodically
paid to !implicio for some time as
consideration for a right of way pursuant
to a written contract. %he original
contract was not presented. &nstead, a
purported copy, identi;ed by the retired
;eld auditor as such, was formally ofered
as part of his testimony. 0ejected by the
trial court, it was ;nally made the subject
of an ofer of proof by Aja9.
Can Aja9 validly claim that it had
suficiently met its burden of proving the
e9istence of the contract establishing its
right of way5 "9plain,
SUGGESTED ANSWER:
'o. Aja9 had not suficiently met the
burden of proving the e9istence of the
written contract because. &t had not laid
the basis for the admission of a purported
copy thereof as secondary evidence. Aja9
should have ;rst proven the e9ecution of
the original document and its loss or
destruction. (Sec. ( of Rule 13))
%estimony" )ndeendent 1elevant Statement (1999)
A overheard B call R a thief. &n an action
for defamation ;led by R against B, is the
testimony of A ofered to prove the fact of
utterance i.e., that B called R a thief,
admissible in evidence5 "9plain. 67+8
SUGGESTED ANSWER:
Nes. %he testimony of A who overheard B
call R a thief is admissible in evidence as
an independently relevant statement. &t is
ofered in evidence only to prove the tenor
thereof, not to prove the truth of the facts
asserted therein. &ndependently relevant
statements include statements which are
on the very facts in issue or those which
are circumstantial evidence thereof. %he
hearsay rule does not apply.
(See Peo$le vs. "a##i, &70 SC)
6'9!
Bitness" Cometency of t,e Bitness vs. Credibility of
t,e Bitness ('((?)
Distinguish Competency of the witness
and credibility of the witness.
SUGGESTED ANSWER:
Competency of the witness refers to a
witness who can perceive, and
perceiving, can ma2e 2nown his
perception to others (Sec. 2) of Rule 13)),
while credibility of the witness refers to a
witness whose testimony is believable.
by: sirdondee@gmail.com Page 60 of 66 Bitness"
9;amination of a C,ild Bitness" via 0ive$0in@ %5 ('((7)
3hen may the trial court order that the
testimony of a child be ta2en by live-lin2
television5 "9plain.
SUGGESTED ANSWER:
%he testimony of a child may be ta2en by
live-lin2 television if there is a substantial
li2elihood that the child would sufer
trauma from testifying in the presence of
the accused, his counsel or the prosecutor
as the case may be. %he trauma must of a
2ind which would impair the completeness
or truthfulness of the testimony of the
child. (See Sec. 2(,
Rule on 9Damination of a 0il#
Eitness).
Bitness" 9;amination of Bitnesses (1997)
a8 Aside from as2ing a witness to
e9plain and supplement his answer in the
cross-e9amination, can the proponent as2
in re-direct e9amination ?uestions on
matters not dealt with during cross-
e9amination5
b8 Aside from as2ing the witness on
matters stated in his re-direct
e9amination, can the opponent in his re-
cross-e9amination as2 ?uestions on
matters not dealt with during the re-
direct5
c8 After plaintif has formally
submitted his evidence, he realiGed that
he had forgotten to present what he
considered an important evidence. Can he
recall a witness5
SUGGESTED ANSWER:
6a8 Nes, on redirect e9amination,
?uestions on matters not dealt with
during the cross-e9amination may be
allowed by the court in its discretion.
(Sec. 7 of Rule 132). 6b8 Nes, the opponent in his re-cross-
e9amination may also as2 ?uestions on
such other matters as may be allowed by
the court in its discretion. (Sec. *. Rule
132).
6c8 Nes, after formally submitting his
evidence, the plaintif can recall a
witness with leave of court. %he court
may grant or withhold leave in its
discretion as the interests of justice may
re?uire. (Sec. 9. Rule 132).
Bitness" 9;amination of Bitnesses ('((')
&s this ?uestion on direct e9amination
objectionableO T3hat happened on (uly
D7, DHHHU5 3hy5 67+8
SUGGESTED ANSWER:
%he ?uestion is objectionable because it
has no basis, unless before the ?uestion
is as2ed the proper basis is laid.
Bitness" EtiliDed as State Bitness" Procedure ('((+)
As counsel of an accused charged with
homicide, you are convinced that he can
be utiliGed as a state witness. 3hat
procedure will you ta2e5 67.<+8
SUGGESTED ANSWER:
As counsel of an accused charged with
homicide, the procedure that can be
followed for the accused to be utiliGed as
a state witness is to as2 the /rosecutor to
recommend that the accused be made a
state witness.
)
&t is the /rosecutor who must recommend
and move for the acceptance of the
accused as a state witness. %he accused
may also apply under the 3itness
/rotection /rogram.
SPECIAL PROCEEDINGS
Cancellation or Correction" 9ntries Civil 1egistry ('((7)
:elen is the daughter of "liGa, a $ilipina,
and %ony, a Chinese, who is married to
another woman living in China. :er birth
certi;cate indicates that :elen is the
legitimate child of %ony and "liGa and that
she is a Chinese citiGen. :elen wants her
birth certi;cate corrected by changing
her ;liation from PlegitimateP to
PillegitimateP and her citiGenship from
PChineseP to P$ilipinoP because her
parents were not married. 3hat petition
should :elen ;le and what procedural
re?uirements must be observed5 "9plain.
6<+8
SUGGESTED ANSWER:
A petition to change the record of birth by
changing the ;liation from PlegitimateP to
PillegitimateP and petitionerJs citiGenship
from PChineseP to P$ilipinoP because her
parents were not married, does not
involve a simple summary correction,
which could otherwise be done under the
authority of 0.A. 'o. HF>A. A petition has
to be ;led in a proceeding under 0ule DFA
of the 0ules of Court, which has now been
interpreted to be adversarial in nature.
(e$u3lic v. =alencia, ".. %o. 86(2&/&,
March *, &9/6! /rocedural re?uirements
includeO 6a8 ;ling a veri;ed petitionI 6b8
naming as parties all persons who have or
claim any interest which would be
afectedI 6c8 issuance of an order ;9ing the
time and place of hearingI 6d8 giving
reasonable notice to the parties named in
the petitionI and 6e8 publication of the
order once a wee2 for three consecutive
see2s in a newspaper of general
circulation. (Rule 1)*, Rules of ourt)
9sc,eat Proceedings ('((')
!uppose the property of D was declared
escheated on (uly D, DHHF in escheat
proceedings brought by the !olicitor
1eneral. 'ow, R, who claims to be an heir
of D, ;led an action to recover the
escheated property. &s the action viable5
3hy5 67+8
SUGGESTED ANSWER:
'o, the action is not viable. %he action to
recover escheated property must be ;led
within ;ve years from (uly D, DHHF or be
forever barred. (Rule 91, sec. 4).
9;tra$/udicial Settlement of 9state ('((7)
'estor died intestate in 7FF*, leaving no
debts. :ow may his estate be settled by
his heirs who are of legal age and have
legal capacity5 "9plain. 67+8
SUGGESTED ANSWER:
&f the decedent left no will and no debts,
and the heirs are all of age, the parties
may, without securing letters of
administration, divide the estate among
themselves by means of a public
instrument or by
by: sirdondee@gmail.com Page 61 of 66 stipulation in
a pending action for partition and shall ;le a
bond with the register of deeds in an amount
e?uivalent to the value of the personal
property involved as certi;ed to under oath
by the parties concerned. %he fact of e9tra-
judicial settlement shall be published in a
newspaper of general circulation once a wee2
for three consecutive wee2s in the province.
(Sec. 1, Rule 74, Rules of ourt)
6abeas Corus (199.)
0o9anne, a widow, ;led a petition for
habeas corpus with the Court of Appeals
against @ajor Amor who is allegedly
detaining her DA-year old son Bong
without authority of the law.
After @ajor Amor had a ;led a return
alleging the cause of detention of Bong,
the Court of Appeals promulgated a
resolution remanding the case to the 0%C
for a full-blown trial due to the con=icting
facts presented by the parties in their
pleadings. &n directing the remand, the
court of Appeals relied on !ec.H6D8, in
relation to !ec. 7D of B/ D7H conferring
upon said Court the authority to try and
decide habeas corpus cases concurrently
with the 0%Cs. Did the Court of Appeals
act correctly in remanding the petition to
the 0%C5 3hy5
SUGGESTED ANSWER:
'o, because while the CA has original
jurisdiction over habeas corpus
concurrent with the 0%Cs, it has no
authority for remanding to the latter
original actions ;led with the former. #n
the contrary, the CA is speci;cally given
the power to receive evidence and
perform any and all acts necessary to
resolve factual issues raised in cases
falling within its original jurisdiction.
ALTERNATIE ANSWER:
Nes, because there is no prohibition in the
law against a superior court referring a
case to a lower court having concurrent
jurisdiction. %he !upreme Court has
referred to the CA or the 0%C cases
falling within their concurrent
jurisdiction.
6abeas Corus (199!)
A was arrested on the strength of a
warrant of arrest issued by the 0%C in
connection with an &nformation for
:omicide. 3, the live-in partner of A ;led
a petition for habeas corpus against AJs
jailer and police investigators with the
Court of Appeals.
D. Does 3 have the personality to ;le
the petition for habeas corpus5 )7+, 7. &s the petition tenable5
)*+,
SUGGESTED ANSWER:
D. Nes. 3, the live-in partner of A, has
the personality to ;le the petition for
habeas corpus because it may be ;led by
Psome person in his behalf.P (Sec. 3. Rule
1)2. Rules of ourt.)
)
7. 'o. %he petition is not tenable because
the warrant of arrest was issued by a
court which had (urisdiction to issue it
(Sec. 4, Rule 1)2 Rules of ourt)
6abeas Corus ('((.)
3idow A and her two children, both girls,
aged A and D7 years old, reside in Angeles
City, /ampanga. A leaves her two
daughters in their house at night because
she wor2s in a brothel as a prostitute.
0ealiGing the danger to the morals of
these two girls, B, the father of the
deceased husband of A, ;les a petition for
habeas corpus against A for the custody
of the girls in the $amily Court in Angeles
City. &n said petition, B alleges that he is
entitled to the custody of the two girls
because their mother is living a
disgraceful life. %he court issues the writ
of habeas corpus. 3hen A learns of the
petition and the writ, she brings her two
children to Cebu City. At the e9pense of B
the sherif of the said $amily Court goes
to Cebu City and serves the writ on A. A
;les her comment on the petition raising
the following defensesO a8 %he
enforcement of the writ of habeas corpus
in
Cebu City is illegalI and b8 B has no
personality to institute the petition. K+
0esolve the petition in the light of the
above defenses of A. 6K+8
SUGGESTED ANSWER:
6a8 %he writ of habeas corpus issued by the
$amily Court in Angeles City may not be
legally enforced in Cebu City, because the
writ is enforceable only within the judicial
region to which the $amily Court belongs,
unli2e the writ granted by the !upreme
Court or Court of Appeals which is
enforceable anywhere in the /hilippines.
(Sec. 20 of
ule on Custo#. of Minors an# Krit of
<a3eas Cor$us in elation to Custo#. of
Minors. ().M. %o. 0(60'60'6SC; see also Sec.
' of ule &02, ules of Court.!
6b8 B, the father of the deceased husband
of A, has the personality to institute the
petition for habeas corpus of the two
minor girls, because the grandparent has
the right of custody as against the mother
A who is a prostitute. (Sectioins 2 an# 13, /#.)
)ntestate Proceedings ('((')
R ;led a claim in the intestate
proceedings of D. DLs administrator
denied liability and ;led a counterclaim
against R. RLs claim was disallowed.
6D8 Does the probate court still have
jurisdiction to allow the claim of DLs
administrator by way of ofset5 3hy5
67+8
678 !uppose DLs administrator did not
allege any claim against R by way of
ofset, can DLs administrator prosecute the
claim in an independent proceedingC whyC
6*+8
SUGGESTED ANSWER:
6D8 'o, because since the claim of R was
disallowed, there is no amount against
which to ofset the claim of DLs
administrator.
678 Nes, DLs administrator can prosecute
the claim in an independent proceeding
since the claim of R was disallowed. &f R
had a valid claim and DLs administrator
did not allege any claim against R by way
of ofset, his failure to do so would bar his
claim forever. (Rule *., sec. 1)).
)ntestate Proceedings" 8ebts of t,e 9state ('((')
A, B and C, the only heirs in DLs intestate
proceedings, submitted a project of
partition to the partition, two lots were
assigned to C, who immediately entered
into the possession of the lots. %hereafter,
C died and proceedings for the settlement
of his estate were ;led in the 0%C-MueGon
City. DLs administrator then ;led a motion
in the probate court 60%C-@anila8,
praying that one of the lots assigned to C
in the project of partition be turned over
to him to satisfy debts corresponding to
CLs portion. %he motion was opposed by
the administrator of CLs estate. :ow
should the 0%C-@anila resolve the motion
of DLs administrator5 "9plain. 6*+8
SUGGESTED ANSWER:
%he motion of DLs administrator should
be granted. %he assignment of the two
lots to C was premature because the
debts of the estate had not been fully
paid. Fule 90, sec. &; e.es v. Barreto6
0atu, &9 SC) /*
(&967!D.
Judicial Settlement of 9state ('((7)
!tate the rule on venue in judicial
settlement of estate of deceased persons.
67+8
SUGGESTED ANSWER:
&f the decedent is an inhabitant of the
/hilippines at the time ofJ his death,
whether a citiGen or an alien, the venue
shall be in the 0%C in the province in which
he resides at the time of his death, not in
the place where he used to live. (-ao v. Court
of )$$eals,
".. %o. &2/(&', Ma. 29,
2002!
&f he is an inhabitant, of a foreign country,
the 0%C of any province or city in which
he had estate shall be the venue. %he
court ;rst ta2ing cogniGance of the case
shall e9ercise jurisdiction to the e9clusion
of all other courts. 3hen the marriage is
dissolved by the death of the husband or
wife, the community property shall be
inventoried, administered and li?uidated,
and the debts thereof paid, in the testate
or intestate proceedings of the deceased
spouse. &f both spouses have died, the
conjugal partnership shall be li?uidated in
the testate or intestate proceedings of
either. (Sees. & an# 2, ule 7(, ules of
Court!
Probate of 0ost Bills (1999)
3hat are the re?uisites in order that a
lost or destroyed 3ill may be allowed5
67+8
)
AJs 3ill was allowed by the Court. 'o
appeal was ta2en from its allowance.
%hereafter, N, who was interested in the
estate of A, discovered that the 3ill was
not genuine because AJs signature was
forged by R. A criminal action for forgery
was instituted against R. @ay the due
e9ecution of the 3ill be validly
?uestioned in such criminal action5 67+8
SUGGESTED ANSWER:
a. &n order that a lost or destroyed will
may be allowed, the following must be
complied withO 1 the e9ecution and validity of the
same should be establishedI
2 the will must have been in e9istence
at the time of the death of the
testator, or shown to have been
fraudulently or accidentally
destroyed in the lifetime of the
testator without his 2nowledgeI and
3 its provisions are clearly and
distinctly proved by at least two
credible witnesses.
(Sec. ., Rule 7. of t0e Rules of
ourt)
SUGGESTED ANSWER:
b. 'o. %he allowance of the will from
which no appeal was ta2en is conclusive
as to its due e9ecution. (Sec. 1 of Rule 7(.)
Due e9ecution includes a ;nding that the
will is genuine and not a forgery.
Accordingly, the due e9ecution of the will
cannot again be ?uestioned in a
subse?uent proceeding, not even in a
criminal action for forgery of the will.
Probate of Bill ('((.)
A, a resident of @alolos, Bulacan, died
leaving an estate located in @anila, worth
/7FF,FFF.FF. &n what court, ta2ing into
consideration the nature of jurisdiction
and of venue, should the probate
proceeding on the estate of A be
instituted5 6>+8
SUGGESTED ANSWER:
%he probate proceeding on the estate of
A should be instituted in the @unicipal
%rial Court of @alolos, Bulacan which has
jurisdiction, because the estate is valued
at /7FF,FFF.FF, and is the court of proper
venue because A was a resident of
@alolos at the time of his death. (Sec. ((
of BP &29 as a,en#e# 3. )
769&; Sec. & of ule 7(!.
Probate of Bill ('((7)
After .uluJs death, her heirs brought her
last will to a lawyer to obtain their
respective shares in the estate. %he
lawyer prepared a deed of partition
distributing .uluJs estate in accordance
with the terms of her will. &s the act of
the lawyer correct5 3hy5 67+8
SUGGESTED ANSWER:
'o. 'o will, shall pass either real or
personal estate unless it is proved and
allowed in the proper court.
(Sec. 1, Rule 7(, Rules of
ourt)
Probate of Bill ('((+)
!ergio /unGalan, $ilipino, <F years old,
married, and residing at Ayala Alabang
-illage, @untinlupa City, of
by: sirdondee@gmail.com Page 63 of 66 sound and
disposing mind, e9ecuted a last will and testament
in "nglish, a language spo2en and written by him
pro;ciently. :e disposed of his estate consisting of
a parcel of land in @a2ati City and cash deposit at
the City Ban2 in the sum of / *FF @illion. :e
be?ueathed / <F @illion each to his * sons and /
D<F @illion to his wife. :e devised a piece of land
worth /DFF @illion to !usan, his favorite daughter-
inlaw. :e named his best friend, Cancio -idal, as
e9ecutor of the will without bond. +s Cancio =i#al,
after learning of SergioMs #eath, o3lige# to @le
with the $ro$er court a $etition of $ro3ate of the
latterMs last will an# testa,ent; (2H!
SUGGESTED ANSWER:
Cancio -idal is obliged to ;le a petition
for probate and for accepting or refusing
the trust within the statutory period of 7F
days under !ec. *, 0ule E<, 0ules of
Court.
Su$$osing the original co$. of the last
will an# testa,ent was lost, can Cancio
co,$el Susan to $ro#uce a co$. in her
$ossession to 3e su3,itte# to the
$ro3ate court. (2H!
SUGGESTED ANSWER:
Nes, Cancio can compel !usan to produce
the copy in her possession. A person
having custody of the will is bound to
deliver the same to the court of
competent jurisdiction or to the e9ecutor,
as provided in !ec. 7, 0ule E<, 0ules of
Court.
Can the $ro3ate court a$$oint the wi#ow
as e7ecutor of the will; (2H!
SUGGESTED ANSWER:
Nes, the probate court can appoint the
widow as e9ecutor of the will if the
e9ecutor does not ?ualify, as when he is
incompetent, refuses the trust, or fails to
give bond (Sec. ., Rule 7*, Rules of ourt).
Can the wi#ow an# her chil#ren settle
e7traAu#iciall. a,ong the,selves the
estate of the #ecease#; (2H!
SUGGESTED ANSWER:
'o, the widow and her children cannot
settle the estate e9trajudicially because
of the e9istence of the 3ill. 'o will shall
pass either real or personal estate unless
it is proved and allowed in the proper
court
(Sec. 1, Rule 7(, Rules of
ourt).
Can the wi#ow an# her chil#ren initiate
a se$arate $etition for $artition of the
estate $en#ing the $ro3ate of the last
will an# testa,ent 3. the court; (2H!
SUGGESTED ANSWER:
'o, the widow and her children cannot
;le a separate petition for partition
pending the probate of the will. /artition
is a mode of settlement of the estate (Sec.
1,
Rule 7(, Rules of ourt).
Probate of Bill" :andatory =ature ('((')
)
3hat should the court do if, in the course
of intestate proceedings, a will is found
and it is submitted for probate5 "9plain.
67+8
SUGGESTED ANSWER:
&f a will is found in the course of intestate
proceedings and it is submitted for
probate, the intestate proceedings will be
suspended until the will is probated. pon
the probate of the will, the intestate
proceedings will be terminated. (Rule *2,
sec. 1).
Settlement of 9state ('((1)
%he rules on special proceedings
ordinarily re?uire that the estate of the
deceased should be judicially
administered thru an administrator or
e9ecutor. 3hat are the two e9ceptions to
said re?uirements5 6<+8
SUGGESTED ANSWER:
%he two e9ceptions to the re?uirement
areO 6a8 3here the decedent left no will and no
debts and the heirs are all of age, or the
minors are represented by their judicial or
legal representatives duly authoriGed for
the purpose, the parties may without
securing letters of administration, divide
the estate among themselves by means of
public instrument ;led in the ofice of the
register of deeds, or should they disagree,
they may do so in an ordinary action of
partition. &f there is only one heir, he may
adjudicate to himself the entire estate by
means of an afidavit ;led in the ofice of
the register of deeds. %he parties or the
sole heir shall ;le simultaneously abound
with the register of deeds, in an amount
e?uivalent to the value of the personal
property as certi;ed to under oath by the
parties and conditioned upon the payment
of any just claim that may be ;led later.
%he fact of the e9trajudicial settlement or
administration shall be published in a
newspaper of general circulation in the
province once a wee2 for three
consecutive wee2s. (Sec. 1 of Rule 74, Rules
of ourt)
6b8 3henever the gross value of the
estate of a deceased person, whether he
died testate or intestate, does not e9ceed
ten thousand pesos, and that fact is made
to appear to the 0%C having jurisdiction
or the estate by the petition of an
interested person and upon hearing,
which shall be held not less than one
6D8 month nor more than three 6*8 months
from the date of the last publication of a
notice which shall be published once a
wee2 for three consecutive wee2s in a
newspaper of general circulation in the
province, and after such other notice to
interested persons as the court may
direct, the court may proceed summarily,
without the appointment of an e9ecutor or
administrator, to settle the estate. (Sec. 2
of Rule 74,
Rules of ourt)
Settlement of 9state" Administrator (199!)
A, claiming to be an illegitimate child of
the deceased D, instituted an &ntestate
proceeding to settle the estate of the
latter. :e also prayed that he be
by: sirdondee@gmail.com Page 64 of 66 appointed
administrator of said estate. !, the surviving
spouse, opposed the petition and AJs
application to be appointed the administrator
on the ground that he was not the child of her
deceased husband D. %he court, however,
appointed A as the administrator of said
estate. !ubse?uently, !, claiming to be the sole
heir of D, e9ecuted an Afidavit of
Adjudication, adjudicating unto herself the
entire estate of her deceased husband D. !
then sold the entire estate to R. 3as the
appointment of A as administrator proper5
)7+, 3as the action of ! in adjudicating the
entire estate of her late husband to herself
legal5 )*+,
SUGGESTED ANSWER:
D. Nes, unless it is shown that the court
gravely-abused its discretion in appointing
the illegitimate child as administrator,
instead of the spouse. 3hile the spouse
enjoys preference, it appears that the
spouse has neglected to apply for letters of
administration within thirty 6*F8 days from
the death of the decedent. (Sec. 6, ule 7/,
ules of Court;
"as$a., -r. vs. Court of )$$eals. 2(/ SC)
&6(.!
ALTERNATIE ANSWER:
!, the surviving spouse, should have been
appointed administratri9 of the estate, in
as much as she enjoys ;rst preference in
such appointment under the rules.
(Sec. .(a) of Rule 7*, Rules of
ourt.)
SUGGESTED ANSWER:
7. 'o. An afidavit of self-adjudication is
allowed only if the afiant is the sole heir
of the. deceased. (Sec. 1, Rule 74, Rules of
ourt). &n this case, A also claims to be an
heir. @oreover, it is not legal because
there is already a pending juridical
proceeding for the settlement of the
estate.
5enue" Secial Proceedings (1997)
1ive the proper venue for the following
special proceedingsO a8 A petition to
declare as escheated a parcel of land
owned by a resident of the /hilippines
who died intestate and without heirs
or persons entitled to the property.
b8 A petition for the appointment of an
administrator over the land and building
left by an American citiGen residing in
California, who had been declared an
incompetent by an American court.
c8 A petition for the adoption of a
minor residing in /ampanga.
SUGGESTED ANSWER:
6a8 %he venue of the escheat proceedings
of a parcel of land in this case is the
place where the deceased last resided.
(Sec. 1. Rule 91, Rules of ourt).
6b8 %he venue for the appointment of an
administrator over land and building of an
American citiGen residing in California,
declared &ncompetent
)
by an American Court, is the 0%C of the
place where his property or part thereof
is situated. (Sec. 1. Rule 92).
6c8 %he venue of a petition for the
adoption of a minor residing in
/ampanga is the 0%C of the place in
which the petitioner resides. (Sec. 1. Rule
99)
SUMMARY PROCEDURE
Pro,ibited Pleadings ('((?)
Charged with the ofense of slight physical
injuries under an information duly ;led
with the @e%C in @anila which in the
meantime had duly issued an order
declaring that the case shall be governed
by the 0evised 0ule on !ummary
/rocedure, the accused ;led with said
court a motion to ?uash on the sole
ground that the oficer who ;led the
information had no authority to do so. %he
@e%C denied the motion on the ground
that it is a prohibited motion under the
said 0ule. %he accused thereupon ;led
with the 0%C in @anila a petition for
certiorari in sum assailing and see2ing the
nulli;cation of the @e%CJs denial of his
motion to ?uash. %he 0%C in due time
issued an order denying due course to the
certiorari petition on the ground that it is
not allowed by the said 0ule. %he accused
forthwith ;led with said 0%C a motion for
reconsideration of its said order. %he 0%C
in time denied said motion for
reconsideration on the ground that the
same is also a prohibited motion under the
said 0ule. 3ere the 0%CJs orders denying
due course to the petition as well as
denying the motion for reconsideration
correct5 0eason. 6<+8
SUGGESTED ANSWER:
%he 0%CJs orders denying due course to the
petition for certiorari as well as denying the
motion for reconsideration are both not
correct. %he petition for certiorari is a
prohibited pleading under !ection DH6g8 of
the 0evised 0ule on !ummary /rocedure
and the motion for reconsideration, while it
is not prohibited motion (8ucas v. 2a3ros, )M
%o. M5-6996&226, -anuar.
(&, 2000, citing -oven v. Court of )$$eals,
2&2 SC) 700, 707670/ (&992!, should be
denied because the petition for certiorari
is a prohibited pleading.
MISCELLANEOUS
Administrative Proceedings ('((7)
0egional Director A1 of the Department
of /ublic 3or2s and :ighways was
charged with violation of !ection *6e8 of
0epublic Act 'o. *FDH in the #fice of the
#mbudsman. An administrative charge
for gross misconduct arising from the
transaction subject matter of said
criminal case was ;led against him in the
same ofice. %he #mbudsman assigned a
team
by: sirdondee@gmail.com Page 65 of 66 composed of
investigators from the #fice of the !pecial
/rosecutor and from the #fice of the Deputy
#mbudsman for the @ilitary to conduct a joint
investigation of the criminal case and the
administrative case. %he team of investigators
recommended to the #mbudsman that A1 be
preventively suspended for a period not
e9ceeding si9 months on its ;nding that the
evidence of guilt is strong. %he #mbudsman
issued the said order as recommended by the
investigators.
A1 moved to reconsider the order on the
following groundsO 6a8 the #fice of the
!pecial /rosecutor had e9clusive authority
to conduct a preliminary investigation of
the criminal caseI 6b8 the order for his
preventive suspension was premature
because he had yet to ;le his answer to
the administrative complaint and submit
countervailing evidenceI and 6c8 he was a
career e9ecutive service oficer and under
/residential Decree 'o. AFE 6Civil !ervice
.aw8, his preventive suspension shall be
for a ma9imum period of three months.
0esolve with reasons the motion of
respondent A1. 6<+8
SUGGESTED ANSWER:
%he motion should be denied for the
following reasonsO
1 %he #fice of the !pecial /rosecutor
does not have e9clusive authority to
conduct a preliminary investigation
of the criminal case but it
participated in the investigation
together with the Deputy
#mbudsman for the @ilitary who
can handle cases of civilians and is
not limited to the military.
2 %he order of preventive suspension
need not wait for the answer to the
administrative complaint and the
submission of countervailing
evidence. (,arcia !. :o@ica, ,.R. 'o.
139)3, Se8tember 1),
1999) &n Bas=ueF case, ,.R. 'o. 11)*)1, -8ril
., 199(, the court ruled that preventive
suspension pursuant to !ec. 7> of 0.A.
'o. KEEF 6#mbudsman Act of DHAH8,
shall continue until termination of the
case but shall not e9ceed si9 6K8
months, e9cept in relation to 0.A. 'o,
*FDH and /.D. 'o. AFE. As a career
e9ecutive oficer, his preventive
suspension under the Civil !ervice .aw
may only be for a ma9imum period of
three months. %he period of the
suspension under the Anti-1raft .aw
shall be the same pursuant to the e?ual
protection clause. ("arcia v. MoAica, "..
%o. &(90(, Se$te,3er &0, &999; 8a.no v.
San#igan3a.an,
".. %o. 866*/'/, Ma. 2&,
&9/*!
Congress" 0a2 9;roriating Proerty ('((+)
@ay Congress enact a law providing that a
<, FFF s?uare meter lot, a part of the !%
compound in !ampaloc @anila, be
e9propriated for the construction of a par2
in honor of former City @ayor Arsenic
.acson5 As compensation to !%, the City
)
by
Page
66
of
66
of @anila shall deliver its <-hectare lot in
!ta. 0osa, .aguna originally intended as
a residential subdivision for the @anila
City :all employees. "9plain. 6<+8
SUGGESTED ANSWER:
Nes, Congress may enact a law
e9propriating property provided that it is
for public use and with just compensation.
&n this case, the construction of a par2 is
for public use (See Sena v. Manila ailroa#
Co., ".. %o. &*9&*, Se$te,3er 7, &92&;
e.es v. %<), " %o. &'7*&&, March 2',
200(!. %he planned compensation,
however, is not legally tenable as the
determination of just compensation is a
judicial function. 'o statute,
1A .(19" :andatory Susension ('((1)
decree or e9ecutive order can mandate
that the determination of just
compensation by the e9ecutive or
legislative departments can prevail over
the courtJs ;ndings (47$ort Processing
Gone )uthorit. v. 0ula.,
".. %o. 86*960(, )$ril 29,&9/7; Sees. * to /
ule 67,&997 ules of Civil Proce#ure!. &n
addition, compensation must be paid in
money (4ste3an v. 9norio, ).M. %o. 006'6
&6665C, -une 29, 200&!.
.
1overnor /edro @ario of %arlac was charged with indirect bribery before the
!andiganbayan for accepting a car in e9change of the award of a series of contracts for
medical supplies. %he !andiganbayan, after going over the information, found the same
to be valid and ordered the suspension of @ario. %he latter contested the suspension
claiming that under the law 6!ec. D* of 0.A. *FDH8 his suspension is not automatic upon
the ;ling of the information and his suspension under !ec. D*, 0.A. *FDH is in con=ict
with !ec. < of the DecentraliGation Act of DHKE 60.A. <DA<8. %he !andilganbayan
overruled @arioLs contention stating that @arioLs suspension under the circumstances is
mandatory. &s the courtLs ruling correct5 3hy5
SUGGESTED ANSWER:
Nes. @arioLs suspension is mandatory, although not automatic, (Sec. 13 of R.-. 'o. 3)19 in
relation to Sec. ( of t0e &ecentraliFation -ct of 19.7 (R.-. 'o. (1*(). &t is mandatory after the
determination of the validity of the information in a pre-suspension hearing. FSegovia v.
San#igan3a.an, 2// SC) (2/ (&9//!D. %he purpose of suspension is to prevent the
accused public oficer from frustrating or hampering his prosecution by intimidating or
in=uencing witnesses or tampering with evidence or from committing further acts of
malfeasance while in ofice.

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