Remedial Law May facts outside the information be introduced in a motion to quash?

It is clear from Section 2 of Rule 117, Rules of Court, that a motion to quash may be based on factual and legal grounds, and since extinction of criminal liability and double jeopardy are retained among the grounds for a motion to quash in Section 3 of the new Rule 117, it necessarily follows that facts outside the information itself may be introduced to prove such grounds. What are the different classes of evidence? The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

When is certiorari proper? Certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an aribitrary and despotic manner by reason of passion or personal hostility. What are the requisites of litis pendentia to constitute an abatement or dismissal of an action? In order to constitute a ground for the abatement or dismissal of an action, litis pendentia must exhibit the concurrnece of the following requisites: (a) identity of parties, or at least such as representing the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other. Is contempt subject to a separate action? The contention that a party's complaint for contempt must be the subject of a separate action would nullify contempt proceedings as means of securing obedience to the lawful processes of a court-this theory would reward ingenuity and cunning in revising orders which substantially are the same as the order previously prohibited by the court. Who should be impleaded in an action for recovery of ill-gotten wealth?

All persons whether natural or juridical, who stand to lose in favor of the government under a judgment in such actions for recovery of so-called illegally acquired wealth should be impleaded as defendants to afford them an opportunity to be heard and to defend themselves in the action. When is it necessary to file a separate and distinct action for recovery of ownership or possession of property? The "proper action", the object of which is for the recovery of ownership or possession of the property seized by the sheriff, is and should be an entirely separate and distinct action from that in which execution has issued, if instituted by a stranger to the latter suit. What is an action? An action is a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by the law. The determinative or operative fact which converts a claim into an "action or suit" is the filing of the same with a "court of justice". Filed elsewhere, as with some other body or office not a court of justice, the claim may not be categorized under either term. When is an agreement regarding venue of suits restrictive? When is it permissive? The agreement is restrictive in the sense that the suit may be filed only in the place agreed upon by the parties and merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules. What is the duty of the court when a pleading fails to comply with procedural imperatives? It is a settled rule that a tribunal may at any time take judicial notice of the records of a case pending before it, and satisfy itself that copies of the pleadings filed by the parties are in the numbers required by its rules. The failure of a pleading to comply with such procedural imperative set by the court, leaves the latter the discretion either to reject that pleading or order completion of the number of copies thereof. Where, however, the party whose pleading has been shunted aside offers to show that it has fully complied with the requirements of the rules and that the records kept by the tribunal contain inaccurate entries, the latter body should pause and listen, and give that party a day in court. What is the nature of judicial bonds? Judicial bonds are contractual in nature. They constitute a special class of contracts of guaranty since they are given by virtue of judicial order. Even if the appeal bond is defective, a situation not true in the present case, as long as it is not void and given in good faith and not for the purpose of delay, the trial Court may order its amendment. The appeal should not be dismissed without giving the appellant an opportunity to perfect the bond or to file a new bond. What are the procedural due process requirements in diclipinary cases of students? The imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and

hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross-examination is not, an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. What is the quantum of evidence required in preliminary investigations? The quantum of evidence now required in preliminary investigation is such evidence sufficient to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a well grounded belief that an offense has been committed and that the accused is probably guilty thereof. What is the responsibilty of a government prosecutor in a criminal case? It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. The witnesses, even if they are the complaining witnesses cannot act for the prosecutor in the handling of the case. They have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent the parties to the action. Their only function is to testify. In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else. What are the exceptions to the rule that certiorari will not lie unless a motion for reconsideration is first filed? The rule is that certiorari as a special civil action will not lie unless a motion for reconsideration is filed before the respondent tribunal to allow it an opportunity to correct its imputed errors. There are exceptions to the rule, these are: (1) when the issue raised is purely one of law; (2) where public interest is involved; (3) in cases of emergency; or (4) where special circumstances warrant immediate or more direct action. Does a court have the power to dismiss a petition if it fails to meet procedural requirements? A petition must be sufficient in form and substance before further action may be taken thereon by the court. Lacking such sufficiency, as determined by the court itself, the petition may be dismissed outright. It cannot be over stressed that the court is not obliged to waste its time on inadequate pleadings that can only burden its docket and impair the orderly administration of justice. We ourselves have given

short shrift to many a petition for non-compliance with the procedural requisites, for being unintelligible or clearly without legal basis, or for some other similar shortcoming. When is service by registered mail deemed completed? What is the exception? The general rule is that service by registered mail is complete upon actual receipt thereof by the addressee. The exception is where the addressee does not claim his mail within 5 days from the date of the first notice of the postmaster, in which case the service takes effect upon the expiration of such period. Inasmuch as the exception refers to only constructive and not actual service, such exception must be applied only upon conclusive proof that a first notice was duly sent by the postmaster to the addressee. What would be the best evidence to prove that the notice has been validly sent? A certification from the postmaster would be the best evidence to prove that the notice has been validly sent. The postmaster should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made. Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made. What are the periods provided by law for a defendant in a replevin suit to demand the return of his property? A defendant in a replevin suit, may demand the return of possession of the property replevined by filing a redelivery bond executed to the plaintiff in double the value of the property as stated in the plaintiff's affidavit, within the periods specified in Sections 5 and 6 of Rule 60 of the Rules of Court. Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff' require the return of the property; in Section 6, he may do so, "within five (5) days after the taking of the property by the officer." Both these periods are mandatory in character. What is the purpose of defendant's counterbond? To forestall the possession by the plaintiff of the property our procedural law provides that the defendant must post a counterbond and must furnish the plaintiff with the copy of the undertaking. Again, if only for the purpose of emphasis, this is required to protect the plaintiff, should his action be adjudged meritorious. This procedure was purposely formulated to allow the defendant to continue possessing the property. Not to require him to post any bond would likewise, be counter to the objectives and intent sought by the framers of the law. What is the test to determine the value of the testimony of a witness? Evidence to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself. And by this is meant that it shall be natural, reasonable and probable as to make it easy

to believe. No better test has yet been found to determine the value of the testimony of a witness than its conformity to the knowledge and common experience of mankind. When will the presumption of regularity in the performance of official functions not arise? When there are several related acts supposed to be performed by a public officer or employee in regard to a particular matter, the presumption of regularity in the performance of official functions would not arise and be considered as comprehending all the required acts, if the certification issued by the proper office refers only to some of such acts, particularly in instances wherein proof of whether or not all of them have been performed is available under the law or office regulations to the officer making the certification. What are the factors for the acceptance of the testimony of a witness with regard to the identity of a malefactor? Where considerations of visibility are favorable and the witness does not appear to be biased against the accused, his or her assertions as to the identity of the malefactor should be normally accepted. This is more so when the witness is the victim or his near relative because these witnesses usually strive to remember the faces of the assailants. What is intervention? Intervention is defined as a "proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceedings. Can intervention still prosper after the termination of the main action? No. An intervention has been regarded as "merely collateral or accessory or ancillary to the principal action and not an independent proceeding; an interlocutory proceeding dependent on or subsidiary to, the case between the original parties." (Francisco, Rules of Court, Vol. 1) The main action having ceased to exist, there is no pending proceeding whereon the intervention may be based. Are judgements based on compromise appealable? A judgment based on a compromise is generally not appealable, as enunciated in the case of Serrano et al. vs. Reyes et al. The reason for the rule is that "when both parties enter into an agreement to end a pending litigation and request that a decision be rendered approving said agreement, it is only natural to presume that such action constitutes an implicit, as undeniable as an express, waiver of the right to appeal against said decision.

When does an accused waive his right to object to an information that charges more than one offense? When each one of two offenses committed is punishable by two different laws, they cannot be charged in one information as a complex crime but must be regarded as two separate and distinct offenses, each one to be the subject of separate informations. When duplicity of offenses exists in an information the accused must present his objection by filing a motion to quash the information on the ground of duplicity of offenses. If the accused fails to object and goes to trial under the information which contains a description of more than one offense, the general rule is he thereby waives the objection and may be found guilty of and should be sentenced for, as many offenses as are charged in the information and proved during trial (People v. Medina 59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the offenses with respect to which he was not properly arraigned.

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Joined: Sept 2005 Posts: 453 Re: QNA sa REM Reply #1 on Oct 16, 2006, 3:06pm What is the duty of the fiscal in prosecuting criminal actions? It must be admitted that Section 1, Rule 110 makes it mandatory on the Fiscal to commence criminal actions against all persons who appear to be responsible for an offense, but this does not mean that he

has no discretion at all. He still is called on to determine whether the evidence before him is enough to justify a reasonable belief that a person has committed an offense. It is the prerogative of the Fiscal, on the basis of the evidence gathered by him, in the exercise of such discretion, to charge the accused to the exclusion of others. How should a court consider a motion which does not meet the requirements of Sections 4 and 5 of the Rules of Court? Section 4 of Rule 15 of the Rules of Court requires that notice of motion be served by the movant on all parties concerned at least three (3) days before its hearing. Section 5 of the same Rule provides that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion. A motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper which the clerk has no right to receive and the court has no authority to act upon. Service of copy of a motion containing notice of the time and place of hearing of said motion is a mandatory requirement. Is it the duty of the appellant to prosecute his appeal with reasonable diligence? A rule long familiar to practitioners in this jurisdiction is that it is the duty of the appellant to prosecute his appeal with reasonable diligence. He cannot simply fold his arms and say that it is the duty of the Clerk of Court of First Instance under the provisions of Section 11, Rule 41 of the Rules of Court to transmit the record on appeal to the appellate court. It is appellants duty to make the Clerk act and, if necessary, procure a court order to compel him to act. He cannot idly sit by and wait till this is done. He cannot afterwards wash his hands and say that delay in the transmittal of the record on appeal was not his fault. For indeed, this duty imposed upon him was precisely to spur on the slothful. What is the difference between action and cause of action? A cause of action is the fact or combination of facts which affords a party a right to judicial interference in his behalf. An action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prosecution or redress of a wrong. What are the two elements of a cause of action? The cause of action must always consist of two elements: (1) the plaintiff's primary right and the defendant's corresponding primary duty, whatever may be the subject to which they relate person, character, property or contract; and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged. What is the difference between a right of action and a cause of action? The term right of action is the right to commence and maintain an action. In the law on pleadings, right of action is distinguished from cause of action in that the former is a remedial right belonging to some persons, while the latter is a formal statement of the operative facts that give rise to such remedial

right. The former is a matter of right and depends on the substantive law, while the latter is a matter of statement and is governed by the law of procedure. When does the right of action accrue and become operative? The right of action springs from the cause of action, but does not accrue until all the facts which constitute the cause of action have occurred. When there is an invasion of primary rights, then and not until then does the adjective or remedial law become operative, and under it arise rights of action. There can be no right of action until there has been a wrong a violation of a legal right and it is then given by the adjective law. What is the underlying philosophy of res judicata? The underlying philosophy of the doctrine of res judicata is that parties ought not to be permitted to litigate the same issue more than once; that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such a trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or estate, (Marapao v. Mendoza, 119 SCRA 97, Sy Cao v. CA, 132 SCRA 302). It is to the interest of the public that there should be an end to litigation by the same parties and their privies over a subject once fully and fairly adjudicated. Interest republicae ut sit finis litium. What is the distinction between the failure to file a notice of appeal within the reglementary period and the failure to file a brief within the period granted by the appellate court? The former results in the failure of the appellate court to acquire jurisdiction over the appealed decision resulting in its becoming final and executory upon failure of the appellant to move for reconsideration. The latter simply results in the abandonment of the appeal which could lead to its dismissal upon failure to move for its reconsideration, in which case the appealed decision would also become final and executory but prior thereto, the appellate court shall have obtained jurisdiction of the appealed decision. Will the contradictions between the affidavit and testimony in open court affect the credibility of a witness? The rule has also always been that the contradictions between the contents of an affiants affidavit and his testimony on the witness stand do not always militate against the witness credibility because the Supreme Court has long taken judicial notice that affidavits, which are usually taken ex parte, are often incomplete and inaccurate. Indeed, a sworn statement taken ex parte is generally considered to be inferior to a testimony given in open court as the latter is subject to the test of cross examination. Is an offer of compromise admissible as evidence? An offer of compromise is not an admission that anything is due, and is not admissible in evidence against the person making the offer. However, in criminal cases which are not allowed by law to be

compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. What are the effects of a compromise agreement? It is axiomatic that a compromise agreement once approved by the court has the force of res judicata between the parties and should not be disturbed except for vices of consent or forgery. Being in effect the contract between the parties, a compromise agreement cannot be set aside by the trial court if the parties acted in good faith. In fact, it is immediately executory and not appealable. What is a cause of action and when is a complaint deemed to have a cause of action? A cause of action is defined as an act or omission by which a party violates the right of another. A complaint is deemed to have stated a cause of action provided it has indicated the following: (1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or the omission of the defendant in violation of the said legal right. When is an arrest without a warrant lawful? Under Section 5 of Rule 113 of the Revised Rules on Criminal Procedure, a peace officer or a private person may, without a warrant, arrest a person: (a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. When may a new trial, based on newly discovered evidence, be granted? A motion for new trial upon the ground of newly discovered evidence, is properly granted where there is concurrence of the following requisites, namely: a) the evidence had been discovered after trial; b) the evidence could not have been discovered and produced during trial even with the exercise of reasonable diligence; and c) the evidence is material, and not merely corroborative, cumulative, or impeaching and is of such weight that if admitted, would probably alter the result (Tumang v. Court of Appeals, 172 SCRA 332). What is the "fruit of the poisonous tree" doctrine?

It is an exclusionary rule which states that evidence illegally obtained by the state should not be used to gain other evidence because the illegally obtained evidence taints all evidence subsequently obtained. When is a party guilty of forum shopping? A party is guilty of forum shopping when he repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely, by some other court. What is the doctrine of "res ipsa loquitur"? The doctrine of "res ipsa loquitur" holds a defendant liable where the thing which caused the injury complained of is shown to be under the latters management and the accident is such that, in the ordinary course of things, cannot be expected to happen if those who have its management or control use proper care. It affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. It is not a rule of substantive law and, as such, it does not create an independent ground of liability. Instead, it is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves the plaintiff of, the burden of producing specific proof of negligence. What is a summary hearing? A summary hearing is defined as such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and cross examination. What is the best evidence rule and what are some of its exceptions? The best evidence rule enshrined in the Revised Rules on Evidence provides that when the subject of an inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. This rule is not without exception. Some of the exception are when the original has been lost or destroyed; cannot be produced in court without bad faith on the part of the offeror; or when the original is in the custody or under the control of the party against whom the evidence is offered and the latter fails to produce it after reasonable notice. What is the principle of in pari delicto non oritur actio and what is the exception to this general rule? The principle of in pari delicto non oritur actio denies all recovery to the guilty parties inter se. It applies to cases where the nullity arises from the illegality of the consideration or the purpose of the contract.

When two persons are equally at fault, the law does not relieve them. The exception to this general rule is when the principle is invoked with respect to inexistent contracts. What is probable cause? Probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. It has been explained as a reasonable presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged, as there is a trial for the reception of evidence of the prosecution in support of the charge. What is the equipoise doctrine? The "equipoise doctrine" is the rule which states that when the evidence of the prosecution and the defense are so evenly balanced, the appreciation of such evidence calls for tilting of the scales in favor of the accused. Thus, the evidence for the prosecution must be heavier to overcome the presumption of innocence of the accused. How should the Rules of Court and other procedural rules be interpreted and applied? The Rules of Court must be so interpreted and applied as to achieve, not defeat, substantial justice as expeditiously as possible. Procedural rules should be liberally construed in order to promote their object and assist the parties in obtaining just, speedy and inexpensive determination of every action or proceeding. Where the rigid application of the rules would frustrate substantial justice, or bar the vindication of a legitimate grievance, the courts are justified in exempting a particular case from the operation of the rules. When is a dying declaration admissible as evidence? A dying declaration is admissible when (a) it concerns the cause and the surrounding circumstances of the declarants death; (b) it is made when death appears to be imminent, and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarants death. When is an object "in plain view" for purposes of seizure without a warrant? A: Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether

by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. (Caballes vs. Court of Appeals, G.R. No. 136292, January 15, 2002) Under the Rules of Court, how is the genuineness of a handwriting proved? A: Under Rule 132, Section 22 of the Rules of Court, the genuineness of a handwriting may be proved: 1) by any witness who believes it to be the handwriting of such person because: (a) he has seen the person write; or (b) he has seen writing purporting to be his upon which the witness has acted or been charged; 2) by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party, against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. What is a judicial admission? A: A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary concession of fact by a party or a partys attorney during such judicial proceedings, including admissions in pleadings made by a party. It may occur at any point during the litigation process. An admission in open court is a judicial admission. A judicial admission binds the client even if made by his counsel. What is a summary judgment? A: A summary judgment is one granted upon motion of a party for an expeditious settlement of the case, it appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact posed and, therefore, the movant is entitled to a judgment as a matter of law. A motion for summary judgment is premised on the assumption that the issues presented need not be tried either because these are patently devoid of substance or that there is no genuine issue as to any pertinent fact. It is a method sanctioned by the Rules of Court for the prompt disposition of a civil action where there exists no serious controversy. (Rabaca vs. Velez, 341 SCRA 543 [2000]) What are the requisites of voluntary surrender as a mitigating circumstance in criminal cases? A: The requisites of voluntary surrender are: (a) the offender had not been actually arrested; (b) the offender surrendered himself to a person in authority or to the latters agent; and (c) the surrender was voluntary. For surrender to be voluntary, it must be spontaneous and show the intent of the accused to submit himself unconditionally to the authorities, either: (1) because he acknowledges his guilt; or (2) because he wishes to save them the trouble and expense incidental to his search and capture. What is the rule of res inter alios acta?

A: Under the rule of res inter alios acta, evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time, but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. What is the "plain view doctrine" and what are its requisites? A: Under the plain view doctrine, unlawful objects within the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be presented in evidence. Nonetheless, the seizure of evidence in plain view must comply with the following requirements: (a) a prior valid intrusion in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent; and (d) the plain view justified mere seizure of evidence without further search. What is Law of the Case? A: Law of the case has been defined as the opinion delivered on a former appeal. It is a term applied to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. As a general rule, a decision on a prior appeal of the same case is held to be the law of the case whether that question is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. What is the effect of notarizing a private document? A: Notarization is not an empty, meaningless, and routinary act. It converts a private document into a public instrument, making it admissible in evidence without the necessity of preliminary proof of its authenticity and due execution. (Sicat v. Ariola, Jr., AC No. 5864, 15 April 2005) Link to Post - Back to Top Logged pinkalou Administrator

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Joined: Sept 2005 Posts: 453 2006 bar Questions Reply #2 on Dec 11, 2006, 10:32pm BAR EXAMINATION 2006 REMEDIAL LAW

-I1. 2. 3. 4. 5. - II What court has jurisdiction over an action for specific performance filed by a subdivision homeowner against a subdivision developer? Choose the correct answer. Explain. 2.5% 1. 2. 3. The Housing and Land Use Regulatory Board The Securities and Exchange Commission The Regional Trial Court What is the concept of remedial law? 2% Distinguish between substantive law and remedial law. 2% How are remedial laws implemented in our system of government? 2% Distinguish jurisdiction from venue? 2% What do you mean by (a) real actions; and (b) personal actions? 2%

4. The Commercial Court or the Regional Trial Court designated by the Supreme Court to hear and decide "commercial cases". - III 1. What is forum shopping? 2.5%

2. Honey filed with the Regional Trial Court, Taal, Batangas a complaint for specific performance against Bernie. For lack of a certification against forum shopping, the judge dismissed the complaint. Honey's lawyer filed a motion for reconsideration, attaching thereto an amended complaint with the certification against forum shopping. If you were the judge, how will you resolve the motion? 5% - IV Jojie filed with the Regional Trial Court of Laguna a complaint for damages against Joe. During the pretrial, Jojie and her counsel failed to appear despite notice to both of them. Upon oral motion of Jojie, Joe was declared as in default and Jojie was allowed to present her evidence ex palte. Thereafter, the court rendered its Decision in favor of Jojie. Joe hired Jose as his counsel. What are the remedies available to him? Explain. 5% -VMay Congress enact a law providing that a 5,000 square meter lot, apart of the UST compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of former City Mayor Arsenio Lacson? As compensation to UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the Manila City Hall employees. Explain. 5% - VI Explain each mode of certiorari: a. As a mode of appeal from the Regional Trial Court or the Court of Appeals to the Supreme Court. 2.5% b. As a special civil action from the Regional Trial Court or the Court of Appeals to the Supreme Court. 2.5% c. As a mode of review of the decisions of the National Labor Relations Commission and the Constitutional Commissions. 2.5% - VII Mark filed with the Bureau of Internal Revenue a complaint for refund of taxes paid, but it was not acted upon. So, he filed a similar complaint with the Court of Tax Appeals raffled to one of its Divisions. Mark's complaint was dismissed. Thus, he filed with the Court of Appeals a petition for certiorari under Rule 65. Does the Court of Appeals have jurisdiction over Mark's petition? 2.5 - VIII Does the Court of Appeals have jurisdiction to review the Decisions in criminal and administrative cases of the Ombudsman? 2.5%

- IX 1. What are the requisites for the issuance of (a) a writ of preliminary injunction; and (b) a final writ of injunction? 2.5% 2. -X1. 2. 3. 4. 5. - XI 1. 2. - XII Tina Guerrero filed with the Regional Trial Court of Bifian, Laguna, a complaint for sum of money amounting to P1 Million against Carlos Corro. The complaint alleges, among others, that Carlos borrowed from Tina the said amount as evidenced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was served with summons which was received by Linda, his secretary .However, Carlos failed to file an answer to the complaint within the 15-day reglementary period. Hence, Tina filed with the court a motion to declare Carlos in default and to allow her to present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the complaint, denying under oath the genuineness and due execution of the promissory note; and contending that he has fully paid his loan with interest at 12% per annum. 1. 2. - XIII Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village, Muntinlupa City , of sound and disposing mind, executed a last will and testament in English, a language spoken and written by him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at the City Bank in the , sum of P300 Million. He bequeathed P50 Million each to his 3 sons Was the summons validly served on Carlos? 2.5% If you were the judge, will you grant Tina's motion to declare Carlos in default? 2.5% What is an interlocutory order? What is the difference between a judgment and an opinion of the court? 2.5% Define a temporary restraining order (TRO). 2% Maya Regional Trial Court issue injunction without bond? 2% What is the duration of a TRO issued by the Executive Judge of a Regional Trial Court? 2% Differentiate a TRO from a status quo order. 2% Maya justice of a Division of the Court of Appeals issue a TRO? 2% Distinguish between injunction as an ancillary remedy and injunction as a main action. 2.5%

and P150 Million to his wife. He devised apiece of land worth P100 Million to Susan, his favorite daughter-in-Iaw. He named his best friend, Cancio Vidal, as executor of the will without bond 1. Is Cancio Vidal, after learning of Sergio's death, obliged to file with the proper court a petition for probate of the latter's last will and testament? 2% 2. Supposing the original copy of the last will and testament was lost, can Cancio compel Susan to produce a copy in her possession to be submitted to the probate court? 2% 3. Can the probate court appoint the widow as executor of the will? 2%

4. Can the widow and her children settle extrajudicially among themselves the estate of the deceased? 2% 5. Can the widow and her children initiate a separate petition for partition of the estate pending the probate of the last will and testament by the proper court? 2% - XIV When is bail a matter of right and when is it a matter of discretion ? 5% - XV Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was having an affair with Manuel, their neighbor. She was temporarily living with her sister in Pasig City. For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the incident. Later, he was charged with arson in an Information filed with the Regional Trial Court, Pasig City. During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed arson. Can Leticia testify over the objection of her husband on the ground of martial privilege? 5% - XVI 1. What are the requirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence? 2.5% 2. As counsel of an accused charged with homicide, you are convinced that he can be utilized as a state witness. What procedure will you take? Explain. 2.5% - XVII In 1996, Congress passed Republic Act No.8189, otherwise known as the Voters' Registration Act of 1996, providing for computerization of elections. Pursuant thereto, the COMELEC approved the Voters' Registration and Identification System (VRIS) Project. It issued invitations to pre-qualify and bid for the

project. After the public bidding, Fotokina was declared the winning bidder with a bid of P6 Billion and was issued a Notice of Award. But COMELEC Chairman Gener Go objected to the award on the ground that under the Appropriations Act, the budget for the COMELEC's modernization is only P1 Billion. He announced to the public that the VRIS project has been set aside. Two Commissioners sided with Chairman Go, but the majority voted to uphold the contract. Meanwhile, Fotokina filed with the RTC a petition for mandamus to compel the COMELEC to implement the contract. The Office of the Solicitor General (OSG), representing Chairman Go, opposed the petition on the ground that mandamus does not lie to enforce contractual obligations. During the proceedings, the majority Commissioners filed a manifestation that Chairman Go was not authorized by the COMELEC En Banc to oppose the petition. 1. May the OSG represent Chairman Go before the RTC notwithstanding that his position is contrary to that of the majority? 5%. 2. Is a petition for mandamus an appropriate remedy to enforce contractual obligations? 5%