Page 1 of 181

ANSWERS TO BAR
EXAMINATION QUESTIONS
IN
REMEDIAL LAW
ARRANGED BY TOPIC



(1987 2004)





Edited and Arranged by:


Silliman University
College of Law Batch 2005



From the ANSWERS TO BAR EXAMINATION QUESTIONS
by the UP LAW COMPLEX


July 26, 2005
Page 2 of 181



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 Examinations 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. Share to others this work and you will be richly
rewarded by God in heaven. It is also very good karma.
We would like to seek the indulgence of the reader for some Bar
Questions which are improperly classified under a topic and for some
topics which are improperly or ignorantly phrased, for the authors are
just Bar Reviewees who have prepared this work while reviewing for the
Bar Exams under time constraints and within their limited knowledge of
the law. We would like to seek the readers indulgence for a lot of
typographical errors in this work.

The Authors
July 26, 2005





Page 3 of 181



TABLE OF CONTENTS




General principles ............................................................................................... 9
Jurisdiction.......................................................................................................... 11
Civil Procedure................................................................................................... 22
Summary Procedure......................................................................................... 95
Criminal Procedure ......................................................................................... 103
Special Proceedings....................................................................................... 142
Evidence............................................................................................................ 153



Page 4 of 181

DETAILED TABLE OF CONTENTS


General principles ............................................................................................... 9
Family Courts Act ............................................................................................... 9
General principles............................................................................................... 9
hierarchy of courts......................................................................................... 10
Jurisdiction.......................................................................................................... 11
accion publiciana .............................................................................................. 16
incapable of pecuniary estimation..................................................................... 17
libel ................................................................................................................... 17
payment of docket fees..................................................................................... 18
probate ............................................................................................................. 18
replevin............................................................................................................. 19
unlawful detainer............................................................................................... 19
Katarungang pambarangay.................................................................................... 20
RA 3019; mandatory suspension ........................................................................... 21
Civil Procedure................................................................................................... 22
Civil action; claims that survive; money claims ................................................. 22
actionable documents....................................................................................... 23
actions that survive........................................................................................... 24
money claims .............................................................................................. 25
amendment of complaint .................................................................................. 25
amendment of complaint to conform to evidence........................................ 25
amendment of compromise agreement ............................................................ 26
amendment of pleadings .................................................................................. 27
annulment of judgment; rule 45 vs rule 65........................................................ 28
appeals ............................................................................................................. 29
bill of particulars................................................................................................ 30
cause of action.................................................................................................. 30
joinder.......................................................................................................... 30
parties.......................................................................................................... 31
splitting a cause of action ............................................................................ 31
certification against forum shopping ................................................................. 32
class suit ........................................................................................................... 32
common cause of action; party in default ......................................................... 33
compulsory counterclaim.................................................................................. 33
concurrent jurisdiction....................................................................................... 34
counterclaim..................................................................................................... 35
cross-claims/ 3
rd
party claims............................................................................ 36
cross-claims/third party claims.......................................................................... 36
death
death of a party; effect................................................................................. 37
death of defendant; effect............................................................................ 37
default ............................................................................................................... 38
default; remedies .............................................................................................. 40
demurrer to evidence........................................................................................ 40
dismissal by the plaintiff .................................................................................... 41
dismissal of action; effect on counterclaim ....................................................... 42
dismissal without prejudice ............................................................................... 42
effect of failure to answer.................................................................................. 43
error of judgment vs error of jurisdiction ........................................................... 43
execution of judgments
Page 5 of 181
execution of judgments; 5-year period ........................................................ 43
execution of judgments; effect of death of losing party................................ 44
execution of judgments; examination of defendant ..................................... 44
Execution of judgments; rights of pledgee................................................... 45
execution of judgments; writ of execution.................................................... 45
execution pending appeal............................................................................ 47
failure to tender an issue .................................................................................. 48
filing of pleadings; periods ................................................................................ 48
forum shopping................................................................................................. 48
intervention ....................................................................................................... 49
joinder of action; joinder of parties.................................................................... 50
judgment on the merits; contents...................................................................... 50
judgment on the pleadings................................................................................ 51
kinds of civil actions .......................................................................................... 52
mandamus........................................................................................................ 52
modes of discovery........................................................................................... 53
motion execution pending appeal ..................................................................... 54
motion for recon; extension of time................................................................... 55
motion to dismiss
motion to dismiss; bar by prior judgment ..................................................... 55
motion to dismiss; condition precedent ....................................................... 55
motion to dismiss; no cause of action.......................................................... 56
motion to dismiss; res judicata .................................................................... 57
motions; 3-day notice rule................................................................................. 58
new-trial; grounds ............................................................................................. 59
partial summary judgment; when appealable ................................................... 59
permissive counterclaim................................................................................... 60
permissive joinder of parties ............................................................................. 61
petition for certiorari .......................................................................................... 61
petition for relief; injunction ............................................................................... 62
pleadings .......................................................................................................... 62
pleadings; reply ........................................................................................... 63
pleadings; verification.................................................................................. 63
prejudicial question........................................................................................... 63
pre-trial ............................................................................................................. 64
pre-trial; effect of absence of parties ........................................................... 64
procedure in CA; reception of evidence............................................................ 65
provisional remedies......................................................................................... 65
attachment................................................................................................... 67
attachment; injunction ................................................................................. 69
injunction ..................................................................................................... 69
preliminary attachments .............................................................................. 70
receivership................................................................................................. 70
special civil action; replevin vs foreclosure.................................................. 71
support ........................................................................................................ 71
TRO............................................................................................................. 72
real parties in interest ....................................................................................... 73
remedies........................................................................................................... 73
remedies; appeal ......................................................................................... 75
remedies; decisions of SC division.............................................................. 76
remedies; final and executory judgments .................................................... 76
remedies; modes of appeal ......................................................................... 77
remedies; period.......................................................................................... 78
remedies; petition for relief .......................................................................... 79
remedies; petition for review........................................................................ 79
remedies; Rule 45; Rule 65......................................................................... 80
reply.................................................................................................................. 80
Page 6 of 181
Rule 45 vs Rule 65 .......................................................................................... 80
Rule 65; motion for recon ................................................................................. 82
Special Civil Action
ejectment ................................................................................................... 82
foreclosure................................................................................................. 83
petition for certiorari ................................................................................... 84
quo warranto.............................................................................................. 85
contempt.................................................................................................... 85
interpleader................................................................................................ 86
interpleader; declaratory relief .............................................................. 86
subpoena.......................................................................................................... 87
summary judgment ........................................................................................... 87
summary judgments; judgment on the pleadings.............................................. 88
summons .......................................................................................................... 88
summons; extraterritorial service............................................................... 90
Summons; voluntary appearance.............................................................. 90
summons; waiver of improper service ....................................................... 91
supplemental pleadings .................................................................................... 91
third party claim................................................................................................ 91
totality rule ........................................................................................................ 93
venue
venue; compulsory counterclaim............................................................... 93
venue; legal capacity to sue ...................................................................... 93
venue; personal actions............................................................................. 94
Summary Procedure......................................................................................... 95
coverage........................................................................................................... 95
ejectment .......................................................................................................... 95
ejectment; execution pending appeal ........................................................ 97
ejectment; issues of ownership.................................................................. 97
ejectment; jurisdiction and remedies ......................................................... 98
ejectment; motion for execution................................................................. 98
ejectment; supersedeas bond.................................................................... 99
immediately executory ...................................................................................... 99
motion for recon.............................................................................................. 100
motion to dismiss............................................................................................ 100
motion to quash .............................................................................................. 101
procedure in criminal cases ............................................................................ 101
prohibited motion/ pleadings; remedies .......................................................... 101
violation of municipal ordinance...................................................................... 102
Criminal Procedure ......................................................................................... 103
acquittal; effect................................................................................................ 103
allegations of aggravating circumstances ....................................................... 103
amendment and substitution of information.................................................... 103
amendment of information.............................................................................. 104
amendment of information; double jeopary; bail; change of plea............. 104
amendment of information; supervening events...................................... 105
bail .................................................................................................................. 105
bail; appeal .............................................................................................. 109
bail; reduction .......................................................................................... 109
bail; where to apply.................................................................................. 110
BP 22
BP22; civil action deemed included......................................................... 110
BP22; demurrer to evidence.................................................................... 110
civil liability...................................................................................................... 111
complaint/information; discretionary power of fiscal; injunction....................... 111
complex crimes; jurisdiction............................................................................ 112
corpus delicti................................................................................................... 112
Page 7 of 181
court martial; jurisdiction................................................................................. 112
demurrer to evidence...................................................................................... 112
dismissal; failure to prosecute......................................................................... 115
double jeopardy .............................................................................................. 116
double jeopardy; provisional dismissal; bail ............................................. 118
effect of death of accused............................................................................... 119
effect of filing of information............................................................................ 120
effect of plea of guilty...................................................................................... 120
enjoinment of criminal cases; when allowed................................................... 122
filing of information; effect ............................................................................... 122
insufficient information; remedies/ effects....................................................... 123
jurisdiction over BP22 cases........................................................................... 124
modification of judgment ................................................................................. 124
motion to quash .............................................................................................. 125
motion to quash; prel. inves..................................................................... 125
multiplicity of offenses; remedies.................................................................... 125
prejudicial question......................................................................................... 126
prel. inves.; jurisdiction of MTC....................................................................... 127
prescription of offense .................................................................................... 128
pre-trial ........................................................................................................... 129
pre-trial agreement; approval by court ..................................................... 129
promulgation of judgment ............................................................................... 130
prosecution of offenses; who should file......................................................... 130
provisional dismissal ....................................................................................... 131
remedies
remedies; appeal ..................................................................................... 131
remedies; appeal/petition for review........................................................ 132
remedies; unjust judgment....................................................................... 132
rights of the accused....................................................................................... 133
valid waiver.............................................................................................. 134
searches and seizures.................................................................................... 134
speedy trial ..................................................................................................... 135
state witness; qualifications ............................................................................ 135
searches and seizures; Terry search.............................................................. 136
third-party claims; intervention........................................................................ 136
trial in absentia; automatic review of conviction.............................................. 136
venue.............................................................................................................. 137
warrant of arrest; bail ...................................................................................... 137
warrantless arrests and searches................................................................... 138
warrantless arrests; objection.................................................................. 140
warrantless arrests; prel. inves. ............................................................... 140
when an offense necessarily includes another; remedies............................... 141
who should file complaint for adultery............................................................. 141
withdrawal of information................................................................................ 142
Special Proceedings....................................................................................... 142
change of name.............................................................................................. 142
claims against the estate ................................................................................ 143
correction of entries ........................................................................................ 143
habeas corpus ................................................................................................ 144
habeas corpus; jurisdiction ...................................................................... 145
habeas corpus; preliminary citation ......................................................... 146
habeas corpus; proper party.................................................................... 146
partition........................................................................................................... 146
probate of wills................................................................................................ 147
probate; jurisdiction ................................................................................. 147
probate; lost wills ..................................................................................... 148
probate; mandatory character.................................................................. 148
Page 8 of 181
settlement of estate ........................................................................................ 149
administrator............................................................................................ 151
issues on ownership................................................................................ 151
issues on ownership................................................................................ 152
modes...................................................................................................... 152
venue.............................................................................................................. 153
Evidence............................................................................................................ 153
admissibility .................................................................................................... 153
admissibility of DNA................................................................................. 154
admissibility of evidence.......................................................................... 155
admissibility; anti-wire tapping act ........................................................... 156
admissibility; objections ........................................................................... 156
admission of evidence not alleged in the complaint................................. 157
admissions/confessions.................................................................................. 157
authentic documents....................................................................................... 157
best evidence rule........................................................................................... 157
best evidence rule; parol evidence rule ................................................... 158
character evidence ......................................................................................... 159
confession; affidavit of recantation.................................................................. 159
cross-examination........................................................................................... 160
dead man statute............................................................................................ 160
dying declaration............................................................................................. 161
effect of an offer of compromise ..................................................................... 163
electronic evidence......................................................................................... 164
equipoise doctrine........................................................................................... 164
examination of witnesses................................................................................ 164
formal offer of evidence .................................................................................. 165
res inter alios acta ..................................................................................... 166
formal offer vs offer of proof ...................................................................... 167
hearsay evidence............................................................................................ 167
hearsay exceptions ................................................................................... 167
impeachment of witnesses ............................................................................. 169
judicial notice; foreign law............................................................................... 170
kinds; admissibility.......................................................................................... 171
lost documents; secondary evidence.............................................................. 171
marital disqualification rule ............................................................................. 171
marital privilege; parental privilege; privileged communication.................. 173
memorandum.................................................................................................. 174
offer to marry; circumstantial evidence ........................................................... 174
offer to pay expenses; effect........................................................................... 174
offfer of testimonial and documentary............................................................. 175
opinion rule ..................................................................................................... 175
parol evidence rule ......................................................................................... 175
preponderance vs substantial evidence.......................................................... 176
qualifications of witnesses .............................................................................. 176
qualifications of witnesses; weight of evidence ......................................... 177
res gestae; dying declaration.......................................................................... 177
res inter alios rule ........................................................................................... 179
right to cross examine..................................................................................... 179
rules of admissibility........................................................................................ 180
suppression of evidence; presentation of informant........................................ 180
tender of excluded evidence........................................................................... 181


Page 9 of 181

General principles/ Jurisdiction
Family Courts Act
2001 No. XIV
a) How should the records of child and family cases in the Family Courts
or Regional Trial Court designated by the Supreme Court to handle Family Court
cases be treated and dealt with? (3%)
b) Under what conditions may the identity of parties in child and family
cases be divulged (2%)
SUGGESTED ANSWER:
a) The records of child and family cases in the Family Code to handle
Family Court cases shall be dealt with utmost confidentiality. (Sec. 12, Family Courts
Act of 1997)
b) The identity of parties in child and family cases shall not be divulged
unless necessary and with authority of the judge. (Id.)
General principles
1996 No. 1:
3) Can civil and criminal cases be adjudicated without trial? Explain?
Answer;
3) Civil cases may be adjudicated without trial, such as In the following
rules:
a) Summary Judgment.
b) Judgment on the Pleadings.
c) Summary procedure.
d) Sec. 3 of Rule 17.
Criminal cases as a rule may not be adjudicated without trial. Some
exceptions are the following:
a) Plea of guilty.
b) Motion to quash on the ground of double jeopardy or extinction of
criminal action or liability.
c) Motion to dismiss on the ground of violation of the right to a speedy trial.
General principles
1997 No. 17;
Distinguish:
(a) Bar by prior judgment from conclusiveness of judgment
(b) Cause of action from action Answer;
(a) 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 different cause of action. (Sec. 49 [c] of former Rule 39; sec. 47 [c] of
new Rule 39).
Page 10 of 181
(b) A cause of action 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 Rule 2), causing damage to another
An action is an ordinary suit in a court of Justice 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),
General principles
1998 No I.
1. Distinguish civil actions from special proceedings. [3%]
2. How shall the Rules of Court be construed? [2%] SUGGESTED
ANSWER:
1. A civil action 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 Civil Procedure), while a special proceeding is a remedy by which a
party seeks to establish a status, a right or a particular feet. (Sec. 3[C]. Rule 1,1997
Rules of Civil Procedure.)
2. The Rules of Court should be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action and
proceeding. (Sec. 6, Rule 1 1997 Rules of Civil Procedure.)
ADDITIONAL ANSWER:
However, 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 Judicial business. (Alvero vs. Judge de la Rosa, 76 Phil. 428
and other cases.)
General principles
2003 No. I.
In rendering a decision, should a court take into consideration the possible
effect of its verdict upon the political stability and economic welfare of the nation?
4%
SUGGESTED ANSWER:
No, because a court is required to take into consideration only the legal
issues and the evidence admitted in the case. The political stability and economic
welfare of the nation are extraneous to the case. They can have persuasive
influence 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 equity.
However, in exceptional cases the court may consider the political stability and
economic welfare of the nation when these are capable of being taken into judicial
notice of and are relevant to the case.
General principles; hierarchy of courts
1996 No. 1:
2) What is meant by "hierarchy of courts"?
Answer;
2} By "hierarchy of courts" is meant that while the Supreme Court, the Court
of Appeals and the Regional Trial Courts have concurrent original jurisdiction to
issue writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus,
such concurrence does not accord litigants unrestrained freedom of choice of the
court to which application therefor may be directed. The application should be filed
Page 11 of 181
with the court of lower level unless the importance of the issue involved deserves
the action of the court of higher level. (Uy vs. Contreras, 237 SCRA 167)
(NOTE: The rules and cases are cited merely for reference purposes)
Jurisdiction
1987 No (1)
A leased his commercial land and building in Malate, Manila to B, a resident
of Malolos, Bulacan. The contract of lease provided that in the event A violates the
contract, B may file suit in Manila, As residence, and if B violates the contract, A
may sue B in Malolos. B violated the contract, entitling A to sue for ejectment.
If you were the lawyer of A, where and which court can you lawfully file the
action for ejectment? Explain.
Answer:
I can lawfully file the action for ejectment either in the MetroTC of Manila or in
the MTC of Malolos. Metropolitan and Municipal Trial Courts have exclusive original
jurisdiction over the cases of forcible entry and unlawful detainer or ejectment cases.
The stipulation in the lease contract that if B violates the contract A may sue B in
Malolos is valid, because the location of the real property in such cases determines
the venue of the action and not jurisdiction over the subject matter. However, since
the agreement as to the venue is merely permissive, as shown by the use of the
word may, the action may also be filed in Manila where the real property is located.
(Villanueva vs. Masqueda, 155 SCRA 904)
Jurisdiction
1988 (2)
Norma is the owner of Love and Peace Enterprises, a sole proprietorship
engaged in the manufacture of bullets, with a work force of 100 employees whom
top employee, Evelyn, supervises. Norma, however, soon to lost confidence in
Evelyn, and to force her to resign, refused to pay her salaries and other economic
benefits required by law. Instead of resigning, however, Evelyn decided to fight
back.
On the strength of Art. 1701 of the Civil Code, as follows:
ART 1701. Neither capital nor labor shall act oppressively against the other,
or impair the interest or convenience of the public in relation to Art. 212 thereof as
follows:
ART 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the latter
for damages.
Evelyn went to the RTC on a complaint for actual, exemplary and moral
damages. Norma moved to dismiss the complaint for lack of jurisdiction alleging that
it is the labor arbiters who are vested with the jurisdiction. Evelyn opposed the
motion on the ground that her complaint is based on tort and hence, purely civil in
character.
2.a) decide the incident with reason.
2.b) what is jurisdiction and how does it differ from cause of action? How are
they acquired? Explain.
Answer:
2.a) Motion to dismiss granted. Under the Labor Code, the labor arbiters have
jurisdiction over all claims for damages sought to be recovered by an employee
Page 12 of 181
arising from an illegal dismissal or forced resignation. (Atlas Fertilizer Corp. vs.
Navarro, 149 SCRA 432; Primero vs. IAC, Dec. 14, 1987)
2.b) Jurisdiction is the authority to hear and determine cause, the right to act
in a case. It is given by law and in the manner prescribed by law; whereas cause of
action is an act or omission of one party in violation of the legal rights of the other.
Jurisdiction
1992 No. I:
In a suit to recover a sum of money, plaintiff filed his complaint with the
Regional Trial Court instead of with the Municipal Trial Court which has jurisdiction
over the case because of the amount involved. The defendant did not file a motion
to dismiss. Neither did the Regional Trial Court dismiss the case on its own initiative.
At the pre-trial hearing, defendant tried to have the case settled. With the effective
help of the presiding judge, he was able to forge with the plaintiff a compromise
agreement which stipulated that he would pay in twelve (12) equal monthly
installments starting the first day of the following month, each to become due without
need of any demand. Failure to pay any installment when due will render the entire
amount enforceable by writ of execution. Judgment was rendered on the basis of the
compromise agreement and was then served on the parties.
Defendant failed to pay the first installment as it fell due. Plaintiff thereupon
sought execution which was granted, and the corresponding writ of execution was
issued. Defendant filed in due form a motion to set aside the writ of execution upon
the contention that the court had no power to order the issuance of the writ of
execution because it has no jurisdiction over the nature of the action, an issue that
can be raised at any stage of the case. The court granted the defendant's motion
and accordingly set aside the writ of execution.
Did the court act correctly? Why?
Suggested Answer:
Yes. the court acted correctly, because jurisdiction over the subject matter or
nature of an action cannot be conferred by agreement of the parties. Whenever it
appears that the court has no jurisdiction over the subject matter, it shall dismiss the
action. (Sec, 2 of Rule 9)
Another Acceptable Answer:
Inasmuch as the defendant did not file a motion to dismiss and the parties
submitted a compromise agreement on the basis of which Judgment was rendered,
the defendant is estopped to raise the question of jurisdiction. (Tijam vs.
Sibonghanoy, 23 SCRA 29 and other cases)
Jurisdiction
1993 No (17)
Menez Duque filed an action against Fuji, Inc. before the Regional Trial Court
for recovery of actual. Moral and exemplary damages resulting from his alleged
unfounded and unjust dismissal from his job.
Fuji, Inc. filed an answer asserting that Menez dismissal was for just and
valid cause.
After trial, the RTC rendered a decision sustaining Menez claim and ordering
Fuji, Inc. to pay him actual, moral and exemplary damages. Fuji, Inc. appealed to the
Court of Appeals where it insisted that Menez dismissal was for valid and just
cause.
Page 13 of 181
Without resolving the assigned error, the Court of Appeals set aside the
appealed decision and dismissed the case on the ground that it is the Labor Arbiter,
not he ordinary courts, which has jurisdiction to entertain the claim for damages.
Pursuant to RA No. 6715, claims for actual, moral, exemplary and other
forms of damages arising from employer-employee relations falls within the original
and exclusive jurisdiction of Labor Arbiters. Considering, however, that the lack of
jurisdiction of the trial court was assigned as error in the appellants brief, did the
Court of Appeals act properly in its decision? Why?
Answer:
Yes, because the fact that the lack of jurisdiction of the trial court was not
assigned as error in the appellants brief should not prevent the Court of Appeals
from taking up that issue, as the lack of jurisdiction of the lower court is apparent
from the face of the record. It is fundamental that a court of justice could only validly
act upon a cause of action or subject matter of a case over which it has jurisdiction.
Said jurisdiction is one conferred by law and cannot be acquired through, or waived
by, any act or omission of the parties.
Alternative Answer:
Fuji, Inc. is estopped from raising the question of jurisdiction, inasmuch as it
filed an answer asserting Menezs dismissal was for just and valid cause and in its
appeal to the Court of Appeals, it insisted on that defense.
Jurisdiction
1994 No (2)
How is jurisdiction acquired by a court over the person of:
1. the plaintiff in a special action for mandamus?
2. The defendant in action for unlawful detainer?
3. A non resident defendant who is not found in the Philippines, in an action
for compulsory acknowledgment of his natural child?
Answer:
1. Jurisdiction is acquired over the plaintiff in a special civil action for
mandamus by the commencement or filing of the action.
Alternative Answer:
1. Such jurisdiction is acquired by the filing of the action and the payment of
the prescribed docket fees.
2. Jurisdiction is acquired over the person of the defendant in an action for
unlawful detainer by the proper service of summons on him or by his voluntary
appearance.
3. Jurisdiction cannot be acquired over the person of a non-resident
defendant who is not found in the Philippines in an action for compulsory
acknowledgment of his natural child because he is outside the jurisdiction of the
court.
Alternative Answer:
Such jurisdiction can be acquired by the voluntary appearance of non-resident
defendant who is not found in the Philippines.
Jurisdiction
1997 No. 1:
Page 14 of 181
What courts have jurisdiction over the following cases filed in Metro Manila?
(a) An action for specific performance or, in the alternative, for damages in
the amount of P180,000.00
(b) An action lor a writ of injunction.
(c) An action for replevin of a motorcycle valued at P150,000.00.
(d) An action for interpleader to determine who between the defendants is
entitled to receive the amount of P190,000.00 from the plaintiff.
(e) A petition for the probate of a will involving an estate valued at
P200,000.00.
Answer;
(a) An action for specific performance or, in the alternative, for damages in
the amount of 180,000.00 falls within the jurisdiction of Metropolitan Trial Courts in
Metro Manila. Although an action for specific 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 Metropolitan Trial Courts in
Metro Manila. (Sec. 33 of BP 129 as amended by RA No. 7691: Cruz us. Tan, 87
Phil. 627],
(b) An action for injunction is not capable of pecuniary estimation and hence
falls within the jurisdiction of the Regional Trial Courts.
(c) An action for replevin of a motorcycle valued at 150,000.00 falls within the
jurisdiction of the Metropolitan Trial Courts in Metro Manila (Sec. 33 of BP 129. as
amended by RA No. 7691).
(d) An action for interpleader to determine who between the defendants is
entitled to receive the amount of P190,000.00 falls within the jurisdiction of the
Metropolitan Trial Courts in MetroManila. (Id.;Makati Dev Corp. v. Tanjuatco 27
SCRA 401)
(e) A petition for the probate of a will involving an estate valued at 200.000.00
falls within the Jurisdiction of the Metropolitan Trial Courts in Metro Manila (Id.: Sec.
19[4] of BP 129, as amended).
Additional Answer;
(b) An application for a writ of preliminary injunction may be granted by a
Municipal Court in an action of forcible entry and unlawful detainer. (Sec.33 of BP
129; Day vs. RTC of Zamboanga, 191 SCRA610).
Jurisdiction
2002 No. V.
A. P sued A and B in one complaint in the RTC-Manila, the cause of
action against A being on an overdue promissory note for P300,000.00 and that
against B being on an alleged balance of P300,000.00 on the purchase price of
goods sold on credit. Does the RTC-Manila have jurisdiction over the case? Explain.
(3%)
B. P sued A in the RTC-Manila to recover the following sums: (1)
P200,000.00 on an overdue promissory note, (2) P80,000.00 on the purchase price
of a computer, (3) P150,000.00 for damages to his car and (4) P100,000.00 for
attorneys fees and litigation expenses. Can A move to dismiss the case on the
ground that the court has no jurisdiction over the subject matter? Explain. (2%)
SUGGESTED ANSWER:
Page 15 of 181
A. No, the RTC-Manila 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 question of law or fact common to both. (Rule 3, sec. 6). Hence,
separate complaints will have to be files and they would fall under the jurisdiction of
the Metropolitan Trial Court. [Flores v. Mallare-Philipps, 144 SCRA 377 (1986)].
B. No, because the RTC-Manila has jurisdiction over the subject matter. P
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. 5(d)]. The aggregate amount
claimed is P450,000.00, exclusive of the amount of P100,000.00 for attorneys fees
and expenses of litigation. Hence, the RTC-Manila has jurisdiction.
Jurisdiction
2003 No. II.
A filed with the Metropolitan Trial Court of Manila an action for specific
performance against B, a resident of Quezon City, to compel the latter to execute a
deed of conveyance covering a parcel of land situated in Quezon City having an
assessed value of p19,000.00. B received the summons and a copy of the
Complaint on 02 January 2003. On 10 January 2003, B filed a Motion to Dismiss the
Complaint on the ground of lack of jurisdiction contending that the subject matter of
the suit was incapable of pecuniary estimation. The court denied the motion. In due
time, B filed with the Regional Trial Court a Petition for Certiorari praying that the
said Order be set aside because the Metropolitan Trial Court had no jurisdiction over
the case. 6%
On 13 February 2003, A filed with the Metropolitan Trial Court a motion to
declare B in default. The motion was opposed by B on the ground that his Petition
for Certiorari was still pending.
(a) Was the denial of the Motion to Dismiss the Complaint correct?
(b) Resolve the Motion to Declare the Defendant in Default.
SUGGESTED ANSWER:
(a) The denial of the Motion to Dismiss the Complaint was not correct.
Although the assessed value of the parcel of land involved was P19,000.00, within
the jurisdiction of the Metropolitan Trial Court of Manila, the action filed by A for
Specific Performance against B to compel the latter to execute a Deed of
Conveyance of said parcel of land was not capable of pecuniary estimation and,
therefore, the action was within the jurisdiction of Regional Trial Court. (Russel v.
Vestil, 304 SCRA 738 [1999]; Copioso v. Copioso, G.R. No. 149243, October
28,2002; Cabutihan v. Landcenter Construction, 383 SCRA 353 [2002]).
ALTERNATIVE ANSWER:
If the action affects title to or possession of real property then it is a real
action and jurisdiction is determined by the assessed value of the property. It is
within the jurisdiction therefore of the Metropolitan Trial Court.
SUGGESTED ANSWER:
(b) The Court could declare B in default because B did not obtain a writ of
preliminary injunction or a temporary restraining order from the Regional Trial Court
prohibiting the judge from proceeding in the case during the pendency of the petition
for certiorari. (Sec. 7 of Rule 65; Diaz v. Diaz, 331 SCRA 302 [2002].
ALTERNATIVE ANSWER:
Page 16 of 181
The Court should not declare B in default inasmuch as the jurisdiction of
Metropolitan Trial Court was put in issue in the Petition For Certiorari filed with the
Regional Trial Court. The Metropolitan Trial Court should defer further proceedings
pending the result of such petition. (Eternal Gardens Memorial Park Corporation v.
Court of Appeals, 164 SCRA 421 [1988]).
Jurisdiction
2004 NO. IV
B. Plaintiff filed a complaint for a sum of money against defendant with the
MeTC-Makati, the total amount of the demand, exclusive of interest, damages of
whatever kind, attorneys fees, litigation expenses, and costs, being P1,000,000. In
due time, defendant filed a motion to dismiss the complaint on the ground of the
MeTCs lack of jurisdiction over the subject matter. After due hearing, the MeTC (1)
ruled that the court indeed lacked jurisdiction over the subject matter of the
complaint; and (2) ordered that the case therefore should be forwarded to the proper
Regional Trial Court immediately.
Was the courts ruling concerning jurisdiction correct? Was the courts order
to forward the case proper? Explain briefly. (5%)
Jurisdiction; accion publiciana
1992 No. XIV:
While Alfredo was abroad, a parcel of land belonging to him was intruded into
and occupied by Rodrigo on January 1, 1991. When Alfredo returned on February 1.
1991, he immediately demanded that Rodrigo vacate the property. When the
demand went unheeded, Alfredo prepared a complaint alleging: that he is the owner
of the property which Rodrigo has intruded into and is occupying; that the intrusion,
done with strategy and stealth, has caused him actual damages of P30,000.00; and
he. therefore, is praying the court to restore him to the possession of the property, to
award him damages, and to further grant him such other reliefs as may be proper in
the premises. The complaint was filed on March 1, 1991 with the Regional Trial
Court which eventually rendered a decision declaring Alfredo to be the owner of the
land, awarding him damages of P5,000.00, and ordering that possession of the
property be restored to him. Rodrigo appealed to the Court of Appeals where he
questioned the jurisdiction of the Regional Trial Court, pertinently contending that it
was the Municipal Trial Court which had original and exclusive jurisdiction over the
case because (1) it was a forcible entry case, having been filed within one year from
the alleged intrusion; (2) the intrusion was allegedly done through strategy and
stealth which are hallmarks of a forcible entry case; and (3) the declaration of
ownership was uncalled for since Alfredo did not ask for it.
As counsel for Alfredo, what points will you raise and advance to rebut the
arguments of Rodrigo and to justify the jurisdiction, as well as the decision of the
Regional Trial Court?
Suggested Answer;
As counsel for Alfredo, I would raise the point that the action was not one of
forcible entry, but an accion publiciana or a plenary action for recovery of
possession dejure which is within the jurisdiction of the Regional Trial Court.
Moreover, the claim of actual damages in the amount of P30,000.00, is not within
the jurisdiction of the Municipal Trial Court. If it were an action of forcible entry, the
damages that could be claimed would be the reasonable compensation for the use
and occupation of the land and the amount thereof could exceed Twenty Thousand
Pesos. But damages other than the reasonable compensation for the use and
Page 17 of 181
occupation of the premises are not recoverable in an action of forcible entry, (Reyes
us. Court of Appeals. 38 SCRA 138)
With respect to the declaration of ownership, I would argue that it was correct
inasmuch as Rodrigo did not question the ownership of Alfredo.
Jurisdiction; incapable of pecuniary estimation
2000 No. XVIII-a
(a) A brings an action in the Metropolitan Trial Court of Manila against B
for the annulment of an extrajudicial foreclosure sale of real property with an
assessed value of P50,000.00 located in Laguna. The complaint alleged prematurity
of the sale for the reason that the mortgage was not yet due. B timely moved to
dismiss the case on the ground that the action should have been brought in the
Regional Trial Court of Laguna. Decide with reason. (3%)
SUGGESTED ANSWER:
(a) The motion should be granted. The Metropolitan Trial Court of Manila
has no jurisdiction because the action for the annulment of the extrajudicial
foreclosure is not capable of pecuniary estimation and is therefore under the
jurisdiction of the Regional Trial Courts. (Russell v. Vestil, 304 SCRA 738,[1999]).
However, the action for annulment is a personal action and the venue
depends on the residence of either A or B. Hence, it should be brought in the
Regional Trial Court of the place where either of the parties resides.
Jurisdiction; incapable of pecuniary estimation
2000 No. XVIII-b
(b) A files an action in the Municipal Trial Court against B, the natural son
of As father, for the partition of a parcel of land located in Taytay, Rizal with an
assessed value of P20,000.00. B moves to dismiss the action on the ground that the
case should have been brought in the Regional Trial Court because the action is
one that is not capable of pecuntary estimation as it involves primarily a
determination of hereditary rights and not merely the bare right to real property.
Resolve the motion. (2%)
SUGGESTED ANSWER:
(b). The motion should be granted. The action for partition depends on a
determination of the hereditary rights of A and B, which is not capable of pecuniary
estimation. Hence, even though the assessed value of the land is P20,000.00, the
Municipal Trial Court has no jurisdiction. (Russell v. Vestil, supra)
Jurisdiction; libel
1995 No. 6
Mario, a resident of Quezon City, sued for libel the editor, publisher and
columnist of Ang Bagong Filipino, a newspaper of general circulation, with principal
office at
Binondo, Manila. He claimed that because his reputation had been badly
besmirched by the offensive article he suffered damages estimated at 1 Million. The
case was filed before the Regional Trial Court of Quezon City.
The accused moved to quash the Information on the ground that the RTC
had no jurisdiction to try the case considering that under Sec. 2 of RA 7691
Metropolitan Trial Courts exercise exclusive original jurisdiction over all offenses
punishable with imprisonment not exceeding six (6) years (of which libel is one)
irrespective of the amount of fine, accessory or other penalties or civil liability arising
from the offense. The accused also claimed that the offensive article was printed
Page 18 of 181
and first published in Manila so that the case should have been filed with the
Metropolitan Trial Court of Manila.
Decide. Discuss fully. Answer:
The motion to quash should be granted on two grounds, namely:
1. Since the libelous article was printed and first published in Manila, the
Regional Trial Court of Quezon City has no Jurisdiction over the offense. (Art. 360,
RPC as amended; Agbayani vs. Sayo, 89 SCRA 699; Soriano us. IAC, 167 SCRA
222)
2. Since the penalty provided by law for libel does not exceed six (6) years,
the Metropolitan Trial Court of Manila has exclusive jurisdiction.
Alternative Answer:
Art. 360, RPC as amended, expressly vests the RTC with jurisdiction over
libel cases. This special provision should prevail over RA. 7691.
Jurisdiction; payment of docket fees
1991 No. V:
A complaint filed for recovery of possession of real property also prayed for
moral and exemplary damages the amounts of which have been left to the court's
discretion, and for actual damages the amount of which shall be proven at the trial.
The docket fees for the action involving the real property have been paid, but not
those for the related damages, the amounts of which have not been specified.
1. (a) Did the court acquire jurisdiction over the action?
Answer:
1. (a) Yes, because the docket fees for the action involving the real property
have been paid.
(b) May the action be dismissed?
Answer;
(b) No, because the court has acquired jurisdiction over the action, However,
the claim for damages, as to which no amounts were specified may be expunged, or
the plaintiff may be allowed to amend the complaint so as to specify the amount of
damages and to pay the requisite fees within the prescriptive period. (Tacay v. RTC,
180 SCRA 433)
2. Is the rule on the payment of docket fees in ordinary civil actions the same
as that for the claim of damages which are impliedly instituted in criminal cases?
Answer:
2, No, because in criminal cases, docket fees are required to be paid only if
the complaint or information filed in Court for trial alleges the amount of damages
other than actual. (Sec. 1 of Rule 111 as amended)
Jurisdiction; probate
2001 No. II.
Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition
for the probate of the will of her husband, Martin, who died in the Municipality of
Alicia, the residence of the spouses. The probable value of the estate which
consisted mainly of a house and lot was placed at P95,000.00 and in the petition for
the allowance of the will, attorneys fees in the amount of P10,000.00, litigation
expenses in the amount of P5,000.00 and costs were included. Pedro, the next of
kin of Martin, filed an opposition to the probate of the will on the ground that the total
Page 19 of 181
amount included in the relief of the petition is more than P100,000.00, the maximum
jurisdictional amount for municipal circuit trial courts. The court overruled the
opposition and proceeded to hear the case.
Was the municipal circuit trial court correct in its ruling? Why? (5%)
SUGGESTED ANSWER:
Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the
case. It has exclusive jurisdiction in all matters of probate, both testate and intestate,
where the value of the estate does not exceed P100,000.00 (now (P200,000.00).
The value in this case of P95,000.00 is within its jurisdiction. In determining the
jurisdictional amount, excluded are attorneys fees, litigation expenses and costs;
these are considered only for determining the filing fees. (B.P.Blg. 129, Sec. 33, as
amended)
Jurisdiction; replevin
1988 (5)
5.b) Capt. Basaya and 24 sailors are the crew of F/b Caribbean, a fishing boat
chartered and operated since 1977 by Tuna Inc. In 1985, Tuna Inc. transferred its
operation to a sister corporation, Eastship Corp.
On June 28,1986, Capt. Basaya and his crew informed Eastship that they
would not sail unless their economic demands, which they had presented previously
to Tuna Inc., were granted. Eastship on July 8, 1986 filed with the NLRC in Cebu a
petition to declare the strike of Capt. Basaya and his crew illegal. In turn, the crew
filed on August 8, 1986 a complaint for unfair labor practice against Tuna Inc. and
Eastship.
On July 9, 1986, a day after the filing of the illegal strike complaint, Tuna Inc
also sought the remedy of replevin before the RTC praying that Capt. Basaya and
his crew be ordered to deliver the possession of the vessel to it as their possession
was in violation of its rights.
Which court or tribunal has jurisdiction over the issue of possession of the
vessel? Explain.
Answer:
5.b) The RTC has jurisdiction over the issue of possession of the vessel. The
replevin case is not involved in the labor dispute. The question of who has the better
right of possession is outside the competence of labor tribunals and within the
jurisdiction of civil courts. (Basaya, Jr. Vs. Militante, Dec.11, 1987)
Jurisdiction; unlawful detainer
1988 (1)
Luis is the owner of a 5-door apartment unit 3 doors of which he has leased to
Fe, Garry and Marilou for a monthly rental of P250 per door. Fe, Garry and Marilou
have been his tenants for close to 30 years at that rate. He occupies the fourth door
as his own residence. The fifth door is vacant. Alleging that he needs to repossess
all 3 doors for the use of his son, Fern, who had recently gotten married, and who
does not allegedly have a residence of his own, he sued, after the requisite letters to
vacate, Fe, Garry and Marilou before the MetroTC for unlawful detainer. Fe, Garry
and Marilou answered the complaint and set up the defense that ejectment was not
proper because the fifth door was available for Ferns residence. At the trial, they
likewise endeavored to prove that Fern in fact has a residence of his own and that
the suit was Luis mere strategy to force them to agree to a rental hike of P1,500 a
door, in violation of the rental laws. The trial judge, however, decreed ejectment. On
appeal to the RTC, Fe, Garry and Marilou alleged that the decision was null and
Page 20 of 181
void, for lack of jurisdiction, there having been no prior confrontation among the
parties before the lupong tagapayapa pursuant to PD1508. Luis countered that the
jurisdictional question not having been raised below, it cannot be raise for the first
time on appeal.
1.a) Can Fe, Garry and Marilou validly challenge the jurisdiction of the MTC?
Explain.
1.b) What is the effect of Luis failure to resort to the conciliation process
before the lupong tagapayapa provided for in PD1508? Explain.
Answer:
1.a) No, because lack of prior confrontation among the parties before the
lupong tagapaya pursuant to PD1508 does not affect the jurisdiction of the MTC
over the action for unlawful detainer. (It is presumed that the complaint was filed
within one year from the demand to vacate.) (Rayales vs. IAC, 127 SCRA 470)
Moreover, by answering the complaint and setting up the defense without
objecting to the jurisdiction of the court, they are estopped from raising the question
of jurisdiction. (Tijam vs, Sibonghanoy, 23 SCRA 29)
1.b) Luis failure to resort to the conciliation process affects the sufficiency of
his cause of action and makes his complaint subject to dismissal on the ground of
lack of cause of action or prematurity. (Rayales vs. IAC, supra)
Katarungang pambarangay
2001 No. V.
An amicable settlement was signed before a Lupon Tagapamayapa on
January 3, 2001. On July 6, 2001, the prevailing party asked the Lupon to execute
the amicable settlement because of the non-compliance by the other party of the
terms of the agreement. The Lupon concerned refused to execute the
settlement/agreement.
a) Is the Lupon correct in refusing to execute the settlement/agreement?
(3%)
b) What should be the course of action of the prevailing party in such a
case? (2%)
SUGGESTED ANSWER:
a) Yes, the Lupon is correct in refusing to execute the
settlement/agreement because the execution sought is already beyond the period of
six months from the date of the settlement within which the Lupon is authorized to
execute. (Sec. 417, Local Government Code of 1991)
b) After the six-month period, the prevailing party should move to execute
the settlement/agreement in the appropriate city or municipal trial court. (Id.)
Katarungang Pambarangay Law
1995 No. 14:
Alice, a resident of Valenzuela, Metro Manila, filed with the Metropolitan Trial
Court thereat a complaint for damages against her next-door neighbor Rosa for
P100,000.00 with prayer for preliminary attachment. She alleged that Rosa intrigued
against her honor by spreading unsavory rumors about her among their co-workers
at the Phoenix Knitwear factory located at Valenzuela.
After pre-trial the court motu proprio referred the case for amicable settlement
between the parties to the Lupon Tagapayapa of Barangay 2, Zone 3. of Valenzuela
where the factory is located. Rosa questioned the order contending that the court
Page 21 of 181
had no authority to do so as both parties had already gone through pre-trial where
amicable settlement was foreclosed and the parties were already going to trial.
1. Comment on Rosa's contention. Explain.
2. Rosa also opposed the referral to the Lupon Tagapayapa of Barangay 2,
Zone 3, claiming that the venue was wrong as the proper Lupon was that of
Barangay 1, Zone 5, where she and Alice reside.
Is Rosa's opposition valid? Explain.
3. Suppose that the Lupon of Barangay 2, Zone 3, is successful in forging
an amicable settlement between Alice and Rosa, is the compromise immediately
executory? Explain.
4. How, when and by whom shall the compromise agreement be enforced?
Explain.
Answer;
1. Rosa is not correct. The Local Government Code provides that in non-
criminal cases not falling within the authority of the Lupon, the court may at any time
before trial refer the case to the Lupon concerned for amicable settlement. (Sec.
408)
2. No, because the law also provides that the venue of disputes arising at
the workplace of the contending parties shall be brought in the barangay where such
workplace is located. {Sec. 409[d])
3. No, because any compromise settlement shall be submitted to the court
which referred the case for approval. (Sec. 416).
4. Upon approval thereof, it shall have the force and effect of a Judgment of
the court and shall be enforced in accordance with Section 6, Rule 39.
Katarungang Pambarangay Law
1999 No. I
a. What is the object of the Katarungang Pambarangay Law? (2%)
b. What is the difference, if any, between the conciliation proceedings
under the Katarungang Pambarangay Law and the negotiations for an amicable
settlement during the pre-trial conference under the Rules of Court? (2%)
SUGGESTED ANSWER:
a. The object of the Katarungang Pambarangay Law is to effect an
amicable settlement of disputes among family and barangay members at the
barangay level without judicial recourse and consequently help relieve the courts of
docket congestion. (Preamble of P.D. No. 1508, the former and the first
Katarungang Pambarangay Law.)
b. The difference between the conciliation proceedings under the
Katarungang Pambarangay Law and the negotiations for an amicable settlement
during the pre-trial conference under the Rules of Court is that in the former, lawyers
are prohibited from appearing for the parties. Parties must appear in person only
except minors or incompetents who may be assisted by their next of kin who are not
lawyers. (Formerly Sec. 9, P.D. No. 1508; Sec. 415, Local Government Code of
1991, R.A. 7160.) Ho such prohibition exists in the pre-trial negotiations under the
Rules of Court.
RA 3019; mandatory suspension
2001 No. XIX
Page 22 of 181
Governor Pedro Mario of Tarlac was charged with indirect bribery before the
Sandiganbayan for accepting a car in exchange of the award of a series of contracts
for medial supplies. The Sandiganbayan, after going over the information, found the
same to be valid and ordered the suspension of Mario. The latter contested the
suspension claiming that under the law (Sec. 13 of R.A. 3019) his suspension is not
automatic upon the filing of the information and his suspension under Sec. 13, R.A.
3019 is in conflict with Sec. 5 of the Decentralization Act of 1967 (R.A. 5185). The
Sandilganbayan overruled Marios contention stating that Marios suspension under
the circumstances is mandatory.
Is the courts ruling correct? Why?
SUGGESTED ANSWER:
Yes. Marios suspension is mandatory, although not automatic, (Sec. 13 of
R.A. No. 3019 in relation to Sec. 5 of the Decentralization Act of 1967 (R.A. No.
5185). It is mandatory after the determination of the validity of the information in a
pre-suspension hearing. [Segovia v. Sandiganbayan, 288 SCRA 328 (1988) and
other cases]. The purpose of suspension is to prevent the accused public officer
from frustrating or hampering his prosecution by intimidating or influencing
witnesses or tampering with evidence or from committing further acts of
malfeasance while in office. (Id.)
Civil Procedure
Civil action; claims that survive; money claims
1991 No. X:
A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a
promissory note in the sum of P50,000.00, for liquidated damages of P5,000.00 and
attorney's fees of P5,000.00. After he filed his answer, Y died, but his lawyer did not
file a motion to dismiss. In the meantime, Y's widow filed with the above court a
special proceeding for the settlement of the intestate estate of Y. The widow, Z. was
appointed the administratrix of the estate. A filed in the civil case a motion to have Y
substituted by the administratrix; the latter did not object. The court granted the
motion. Trial on the merits was had. In due course, the court rendered a decision in
favor of A, At the time it was rendered, the period to file claims in the intestate estate
of Y had already lapsed. The administratrix. X, did not appeal from the decision; and
after it became final, A moved for the execution of judgment. Z opposed the motion
contending that the decision is void because the claim does not survive. The case
should have been dismissed upon the death of Y since upon his death, the court lost
jurisdiction over the case.
(a) Rule on the issue.
Answer;
(a) Since Y died before final judgment in the RTC, the action for money
should have been dismissed and prosecuted as a money claim against his estate.
However, since the widow, Z, who was appointed administratrix of the estate, did not
object to the trial on the merits and did not appeal from the decision, she is deemed
to have waived the right to have the claim litigated in the estate proceedings.
Moreover, she is estopped from questioning the court's jurisdiction. Hence, the
decision is valid. (Sec. 21 of Rule 3; Ignacio v. Pambusco, 20 SCRA 126; Echaus v.
Blanco. 179 SCRA 704)
(b) If the opposition is without merit, can the writ of execution be validly
issued?
Answer:
Page 23 of 181
(b) No, because a judgment for money cannot be enforced by a writ of
execution against the estate of the deceased which is in custodio legis. (Sec. 7 of
Rule 39; Paredes v. Moya, 61 SCRA 527)
(c) If it cannot be issued, what is the remedy of A?
Answer;
(c) His remedy is to file a money claim against the estate of Y based on the
judgment. Although the period for filing money claims has already lapsed, the same
may be allowed before an order of distribution is entered. (Secs. 2 and 5 of Rule 86;
Echaus v. Blanco, supra)
Civil procedure; actionable documents
1987 No (9)
A filed a suit against B and C for the recovery of the personal property which,
according to the complaint, had been sold to him by the defendants father during
latters lifetime under a document entitled Bill of Sale. The substance of the bill was
pleaded in the complaint and a copy thereof was attached to the complaint as
exhibit. B and C filed an answer which disclaimed knowledge or information bout the
Bill of Sale and averred that the signature thereon allegedly belonging to their father
appears to be a forgery. At the trial of the case, B and C commenced, through
counsel and by means of an expert witness, to adduce evidence to prove that the
sellers signature was a forgery. A objected, saying that the genuineness and due
execution of the Bill of Sale was deemed admitted because the answer was
unverified, as a matter of law, inasmuch as the verification was made only on the
express basis of best information and belief.
Resolve the objections with reasons.
Answer:
Objection overruled. B and C do not have to deny specifically under oath the
genuineness and due execution of the Bill of Sale since they do not appear to be a
party thereto, the same having been allegedly executed by their deceased father.
(Sec. 8 of Rule 8). Their answer disclaiming knowledge or information bout the Bill of
Sale and averring that the signature thereon appears to be a forgery is sufficient to
put in issue the genuineness and due execution of said document.
Civil procedure; actionable documents
1990 (7)
In his answer to the complaint, Mario alleged that he does not owe Norma any
sum of money, and that he executed the promissory note only to enable Norma to
show the same to her husband to explain the disappearance of the amount from the
conjugal funds as Norma lost the same in the casino. The answer is not verified. At
the trial, the lawyer of Norma objected to the testimony of Mario as to his
accommodation story because, as the answer is not verified, he is deemed to have
admitted the genuineness and due execution of the promissory note.
Decide on the objection with reason.
Answer:
Objection overruled. A verified answer is necessary in denying the
genuineness and due execution of the promissory note on which the action is based.
However, the defense of Mario does not dispute the genuineness or due execution
of the promissory note. His defense of want of consideration, that he executed the
promissory not only to enable Norma to explain the loss of the conjugal funds does
not require a verified answer. (Sec. 8 of Rule 8).
Page 24 of 181
Civil procedure; actionable documents
1991 No. VII:
In an action for collection of P2,000,000.00. plaintiff bank alleged that
defendant Oriental Textile Mills. Inc., for valuable consideration, executed in favor of
the bank a promissory note for said amount. Defendant filed an answer to the
complaint denying liability and alleging that Jesus Lim had no authority to negotiate
and obtain a loan in its behalf, nor to sign the promissory note. The answer was not
verified. During the trial, defendant sought to introduce evidence to show that Jesus
Lim was not authorized to enter into the transaction and to sign the promissory note
for and in behalf of the defendant corporation. Plaintiff objected to such evidence,
claiming that Lim's authority had been admitted by defendant's failure to verify the
answer.
(a) The judge sustained the objection. Was the ruling correct?
Answer:
(a) Yes. If a copy of the promissory note had been attached to the complaint
or set forth therein, the failure of defendant to deny specifically under oath the due
execution of the promissory note, or to verify the allegation in its answer that Jesus
Lim had no authority to obtain a loan or to sign the promissory note, constitutes an
admission of the due execution thereof. Hence, defendant's evidence was properly
objected to by plaintiff. [Secs. 7 and 8 of Rule 8; Imperial Textile Mills, Inc. v. CA,
182 SCRA 584)
(b) Supposing that no objection was made, trial proceeded, and judgment
was thereafter rendered in favor of the plaintiff. The latter filed a motion for
execution pending appeal and forthwith filed a bond in a sum double the amount
adjudged. May the court grant the motion solely on the ground that a bond was
filed?
Answer;
(b) No, the mere filing of the bond is not a sufficient good reason for
execution pending appeal. (Roxas v. CA, 157 SCRA 370) Since no objection was
made by plaintiff to defendant's evidence of lack of authority of Jesus Lim, the same
was admissible and constituted a good defense to plaintiffs action.
Civil procedure; actions that survive
2000 No. I-c
c) PJ engaged the services of Atty. ST to represent him in a civil case
filed by OP against him which was docketed as Civil Case No. 123. A retainership
agreement was executed between PJ and Atty. ST whereby PJ promised to pay
Atty. ST a retainer sum of P24,000.00 a year and to transfer the ownership of a
parcel of land to Atty. ST after presentation of PJs evidence. PJ did not comply with
his undertaking. Atty. ST filed a case against PJ which was docketed as Civil Case
No. 456. During the trial of Civil Case No. 456, PJ died.
i) Is the death of PJ a valid ground to dismiss the money claim of Atty. ST
in Civil Case No. 456? Explain. (2%)
ii) Will your answer be the same with respect to the real property being
claimed by Atty. ST in Civil Case No. 456? Explain (2%)
SUGGESTED ANSWER:
(c) (i) No. Under Sec. 20, Rule 3, 1997 Rules of Civil Procedure, when the
action is for recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the action is
Page 25 of 181
pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by
the plaintiff shall be enforced in the manner especially provided in the Rules for
prosecuting claims against the estate of a deceased person.
(ii) Yes, my answer is the same. An action to recover real property in any
event survives the death of the defendant. (Sec. 1, Rule 87, Rules of Court).
However, a favorable judgment may be enforced in accordance with Sec. 7(b) Rule
39 (1997 Rules of Civil Procedure) against the executor or administrator or
successor in interest of the deceased.
Civil procedure; actions that survive; money claims
1992 No. IV:
After termination of trial on the merits, and as the trial Judge was about to
finish his decision dismissing plaintiffs suit for payment of a purported P369.000.00
loan, the defendant died. His counsel accordingly filed with the court a notice of
defendant's death. Simultaneously, he moved that plaintiffs suit be dismissed, to be
thereafter pursued as a money claim in the proceeding for the settlement of
defendant's estate. The judge denied the motion to dismiss on the ground that there
is no need for any further proceeding since he is going to dismiss the case anyway
in a forthcoming decision. Three (3) days later, the decision dismissing the case was
promulgated.
Did the judge act correctly? Explain your answer.
Suggested Answer:
No, because in an action for the recovery of money, if the defendant dies
before a final judgment is rendered by the Regional Trial Court, the action shall be
dismissed and prosecuted as a money claim. (Sec. 21 of Rule 3) The fact that the
judge was ready to render a decision dismissing the case does not prevent the
application of the rule.
Another Acceptable Answer:
Yes, the Judge acted correctly in deciding the case, because the defendant
died after termination of the trial on the merits. To dismiss the case and require the
parties to present their evidence all over again before the probate court would cause
unnecessary expense and delay. The plaintiff may appeal from the decision and if
the judgment is reversed, the judgment entered would then be filed as a proven
money claim with the probate court.
Civil procedure; amendment of complaint
2003 No. III.
After an answer has been filed, can the plaintiff amend his complaint, with
leave of court, by changing entirely the nature of the action? 4%
SUGGESTED ANSWER:
Yes, the present rules allow amendments substantially altering the nature of
the cause of action. (Sec. 3, Rule 10, 1977 Rules of Civil Procedure; Heirs of
Marcelino Pagobo v. Court of Appeals, 280 SCRA 870 [1997]).
This 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 equally promote the laudable objective of the rules
which is to secure a just, speedy and inexpensive disposition of every action and
proceeding. (Valenzuela v. Court of Appeals, 363 SCRA 779 [2001]).
Civil procedure; amendment of complaint to conform to evidence
Page 26 of 181
1992 No. XII;
A complaint was filed by the counsel for Superior Sales (an entity without a
distinct juridical personality) against Mr. Garcia on a money claim for goods
delivered. Mr. Garcia did not file a motion to dismiss. Eventually, trial was held and
his liability was established through several Invoices, each of which uniformly
showed on its face that Mr. Tan is the proprietor of Superior Sales. After Superior
Sales had rested its case, Mr. Garcia filed a motion to dismiss on the ground that,
since there is actually no person properly suing as plaintiff, no relief can be granted
by the court. On the other hand, the counsel for Superior Sales filed a motion to
amend the complaint to make it conform to the evidence, that the real party plaintiff
is Mr. Tan. The court denied said motion on the ground that it was filed too late and
instead, dismissed the case.
Did the court act correctly? Explain.
Suggested Answer:
No, the court erred in denying the motion to amend the complaint and
dismissing the case.
The mistake in the name of the plaintiff (which should have been Mr. Tan
instead of Superior Sales which had no juridical personality) was cured by the
presentation of evidence (without objection) that Mr. Tan is the proprietor of Superior
Sales. Hence the amendment of the complaint to conform to the evidence was
proper, and even if no amendment was made, it would not affect the result of the
trial on the issue of the real party in interest. (Sec, 5 of Rule 10)
Civil procedure; amendment of complaint to conform to evidence
2004 NO. IV
A. During trial, plaintiff was able to present, without objection on the part of
defendant in an ejectment case, evidence showing that plaintiff 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 file.
May the corresponding pleading still be amended to conform to the evidence?
Explain. (5%)
Civil procedure; amendment of compromise agreement
1987 No (14)
A and B entered into a compromise to settle a dispute between them pending
in the RTC. Upon their joint motion, the compromise settlement was approved in an
order which also required the parties to comply faithfully with the terms thereof. Ten
(10) days after notice of the order approving the compromise settlement, A moved
for amendment of the agreement and for the corresponding order amending the
previous approval on the ground that a stipulation in the compromise settlement did
not reflect the true agreement between him and B. B opposed the motion on the
argument that the order approving the compromise agreement was immediately final
and executory because appeal therefrom was not available inasmuch as approval of
the settlement was by joint motion and the order did not in any way vary the terms
thereof.
(a) If you were the trial judge, would you approve the amendment? Explain.
(b) Suppose the judge were to grant the amendment despite your opposition,
what remedy as counsel for B would you invoke and in what forum?
Answer:
(a) No. If A can prove at the hearing of his motion to amend the compromise
Page 27 of 181
agreement that the questioned stipulation therein did not reflect the true agreement
between him and B, and substantially affected the compromise agreement, I would
set aside. I would not approve the amendment without the consent of B.
(b) I will appeal from said order granting the amendment despite my
opposition to the CA on both questions of fact and law or to the SC on question of
law only. While a judgment on compromise is not appealable, an order denying the
motion to set aside the compromise on the ground of fraud, mistake or duress is
appealable. (Reyes vs. Ugarte, 75 Phil. 505). In this case, the judge approved an
amendment to the compromise agreement despite my opposition, and hence the
amendment to the judgment on compromise is appealable.
Another Alternative Answer:
(a) No, because the judgment is already final and executory and beyond
amendment.
Civil procedure; amendment of pleadings
1993 No (4)
In an action for reconveyance of a parcel of land filed in the RTC, the
defendant, through his lawyer, filed and answer therein admitting the averment in
the complaint that the land was acquired by the plaintiff through inheritance from his
parents, the former owners thereof.
Subsequently, the defendant changed his lawyer and with leave of court,
amended the answer. In the amended answer, the abovementioned admission no
longer appears, instead, the alleged ownership of the land by the plaintiff was
denied coupled with the allegation that the defendant is the owner of the land for the
reason that he bought the same form the plaintiffs parents during their lifetime.
After trial, the RTC rendered a decision upholding the defendants ownership
of the land.
On appeal, the plaintiff contended that the defendant is bound by the
admission contained in his original answer.
Is the contention of plaintiff correct? Why?
Answer:
No, because pleadings that have been amended disappear from the record,
lose their status as pleadings and cease to be judicial admissions. While they may
nonetheless be utilized as against the pleader as extrajudicial admissions, they
must, in order to have such effect, be formally offered in evidence.
Alternative Answer:
Yes, because an admission in the original pleadings does cease to be a
judicial admission simply because it was deleted in an amended pleading. The
original answer, although replaced by an amended answer does not cease to be
part of a judicial record, not having been expunged therefrom.
Civil procedure; amendment of pleadings
1994 No (15)
Michele sued Juliet for reinvindication for the recovery of land. After the
hearing but previous to the rendition of judgment, Michelle amended her complaint
making the principal action one for rescission of contract. Juliet objected.
If you were the judge, would you allow the amendment?
Answer:
Page 28 of 181
No. I would not allow the amendment because the amendment of the
complaint from recovery of land to one for rescission of contract is a substantial
change in the cause of action which may not be done after the trial and previous to
the rendition of judgment.
Civil procedure; amendment of pleadings
2000 No. XVII.
X, an illegitimate child of Y, celebrated her 18th birthday on May 2, 1996. A
month before her birthday, Y died. The legitimate family of Y refused to recognize X
as an illegitimate child of Y. After countless efforts to convince them, X filed on April
25, 2000 an action for recognition against Z, wife of Y. After Z filed her answer on
August 14, 2000, X filed a motion for leave to file an amended complaint and a
motion to admit the said amended complaint impleading the three (3) legitimate
children of Y. The trial court admitted the amended complaint on August 22, 2000.
What is the effect of the admission of the amended complaint? Has the action of X
prescribed? Explain. (5%)
SUGGESTED ANSWER:
No. The action filed on April 25, 2000 is still within the four-year prescriptive
period which started to run on May 2, 1996. The amended complaint impleading the
three legitimate children, though admitted on August 22, 2000 beyond the four-year
prescriptive period, retroacts to the date of filing of the original complaint.
Amendments impleading new defendants retroact to the date of the filing of the
complaint because they do not constitute a new cause of action. (Verzosa v. Court
of Appeals, 299 SCRA 100 [1998]).
(Note: The four-year period is based on Article 285 of the Civil Code)
ALTERNATIVE ANSWER:
Under the 1997 Rules of Civil Procedure, if an additional defendant is
impleaded in a later pleading, the action is commenced with regard to him on the
date of the filing of such later pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court. (Sec. 5 of Rule 1).
Consequently, the action of X has prescribed with respect to the three (3)
legitimate children of Y who are indispensable parties.
ANOTHER ALTERNATIVE ANSWER:
Under Article 175 of the Family Code, the action must be brought within the
lifetime of X if the action is based on a record of birth or an admission of filiation in a
public document or a private handwritten instrument signed by Y. In such case, the
action of X has not prescribed.
However, if the action is based on the open and continuous possession of the
status of an illegitimate child, the action should have been brought during the lifetime
of Y. In such case, the action of X has prescribed.
Civil procedure; annulment of judgment; rule 45 vs rule 65
1998 No IX.
1. What are the grounds for the annulment of a judgment of the Regional
Trial Court (RTC)? [2%]
2. Differentiate certiorari as an original action from certiorari as a mode of
appeal. |3%]
SUGGESTED ANSWER:
Page 29 of 181
1. The grounds for annulment of judgment of the Regional Trial Court are
extrinsic fraud and lack of jurisdiction. (Sec, 2, Rule 47, 1997 Rules of Civil
Procedure.)
2. Certiorari as an original action and certiorari as a mode of appeal may
be distinguished as follows:
(a) The first is a special civil action under Rule 65 of the Rules of Court, while
the second is an appeal to the Supreme Court from the Court of Appeals,
Sandiganbayan and the Regional Trial Court under Rule 45.
(b) The first can be filed only on the grounds of lack or excess of jurisdiction
or grave abuse of discretion tantamount to lack or excess of jurisdiction, while the
second is based on the errors of law of the lower court.
c) The first should be filed within sixty (60) days from notice of the judgment,
order or resolution sought to be assailed (Sec. 4. Rule 65), while the second should
be filed within fifteen (15) days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioner's motion for new trial or
reconsideration filed in due time after notice of the judgment. (Sec. 2, Rule 45, 1997
Rules of Civil Procedure.)
(d) The first cannot generally be availed of as a substitute for a lost appeal
under Rules 40, 41, 42, 43 and 45.
(e) Under the first, the lower court is impleaded as a party respondent (Sec.
5 of Rule 65), while under the second, the lower court is not imp leaded. (Sec. 4 of
Rule of 45)
Civil procedure; appeals
2003 No. IV.
Defendant X received an adverse Decision of the Regional Trial Court in an
ordinary civil case on 02 January 2003. He filed a Notice of Appeal on 10 January
2003. On the other hand, plaintiff A received the same Decision on 06 January 2003
and, on 19 January 2003, filed a Motion for Reconsideration of the Decision. On 13
January 2003, defendant X filed a Motion withdrawing his notice of appeal in order
to file a Motion for New Trial which he attached. On 20 January 2003, the court
denied As Motion for Reconsideration and Xs Motion to Withdraw Notice of Appeal.
Plaintiff A received the Order denying his Motion for Reconsideration on 03 February
2003 and filed his Notice of Appeal on 05 February 2003. The court denied due
course to As Notice of Appeal on the ground that he period to appeal had already
lapsed. 6%
(a) Is the courts denial of Xs Motion to Withdraw Notice of Appeal proper?
(b) Is the courts denial of due course to As appeal correct?
SUGGESTED ANSWER:
(a) No, the courts denial of Xs Motion to Withdraw Notice of Appeal is not
proper, because the period of appeal of X has not yet expired. From January 2,
2003 when X received a copy of the adverse decision up to January 13, 2003 when
he filed his withdrawal of appeal and Motion for New Trial, only ten (10) days had
elapsed and he had fifteen (15) days to do so.
(b) No, the courts denial of due course to As appeal is not correct
because the appeal was taken on time. From January 6, 2003 when A received a
copy of the decision up to January 19, 2003 when he filed a Motion for
Reconsideration, only twelve (12) days had elapsed. Consequently, he had three (3)
days from receipt on February 3, 2003 of the Order denying his Motion for
Page 30 of 181
Reconsideration within which to appeal. He filed is notice of appeal on February 5,
2003, or only two (2) days later.
ALTERNATIVE ANSWER:
Since As Motion for Reconsideration was filed on January 19, 2003 and it
was denied on January 20,2003, it was clearly not se for hearing with at least three
days notice. Therefore, the motion was pro forma and did not interrupt the period of
appeal which expired on January 21, 2003 or fifteen (15) days after notice of the
decision on January 6, 2003.
Civil procedure; bill of particulars
2003 No. VII.
(a) When can a bill of particulars be availed of?
(b) What is the effect of non-compliance with the order of a bill of
particulars? 4%
SUGGESTED ANSWER:
(a) Before responding to a pleading, a party may move for a bill or
particulars of any matter which is not averred with sufficient definiteness or
particularity to enable him properly to prepare his responsive pleading. If the
pleading is a reply, the motion must be filed within ten (10) days from service
thereof. (Sec. 1 of Rule 12)
(b) If the order is not complied with, the court may order the striking our of
the pleading or the portions thereof to which the order was directed or make such
other order as it deems just. (Sec. 4 of Rule 12)
Civil procedure; cause of action
1999 No. II
a. Distinguish action from cause of action. (2%)
SUGGESTED ANSWER:
a. An action 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(A), second
par., Rule 1 of the 1997 Rules of Civil Procedure.) A cause of action is the act or
omission by which a party violates a right of another. (Sec. 2, Rule 2 of the 1997
Rules) An action must be based on a cause of action. (Sec. 1, Rule 2 of the 1997
Rules)
Civil procedure; cause of action; joinder
1999 No. IV
a. What is the rule on joinder of causes of action?
(2%)
b. A secured two loans from B? one for P500,000.00 and the other for
P1,000,000.00, payable on different dates. Both have fallen due. Is B obliged to file
only one complaint against A for the recovery of both loans? Explain. (2%)
SUGGESTED ANSWER:
a. The rule on joinder of causes of action 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 with;the joinder shall not include special civil actions or actions governed
by special rules, but may include causes of action pertaining to different venues or
jurisdictions provided one cause of action falls within the jurisdiction of a Regional
Page 31 of 181
Trial Court and venue lies therein; and 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. 5, Rule 2 of the 1997 Rules)
b. No. Joinder is only permissive since the loans are separate loans
which may be governed by the different terms and conditions. The two loans give
rise to two separate causes of action and may be the basis of two separate
complaints.
Civil procedure; cause of action; parties
1998 No III
Give the effects of the following:
1. Splitting a single cause of action: and (3%|
2. Non-joinder of a necessary party. [2%] SUGGESTED ANSWER:
1. The effect of splitting a single cause of action is found in the rule as
follows: If two or more suits are Instituted on the basis of the same cause of action,
the filing 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, 1997 Rules of Civil Procedure.)
2. The effect of the non-joinder of a necessary party may be stated as
follows: The court may order the inclusion of an omitted necessary party if
jurisdiction over his person may be obtained. The failure to comply with the order for
his inclusion without justifiable cause to a waiver of the claim against such party.
The 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, 1997 Rules of Civil
Procedure.)
Civil procedure; cause of action; splitting a cause of action
1996 No. 3;
1) The complaint alleged that the defendant acted in bad faith, arbitrarily,
illegally, wrongfully, and in violation of law. However, it did not contain any
averment of facts showing that defendant's acts were done in the manner alleged.
Does the complaint state a cause of action? Explain.
2) X brought an action against Y for the annulment of the sale of certain
shares of stock. After the case was decided in favor of X, he filed another action for
the recovery of the dividends that had already accrued when the first action was
filed.
Is the second action for the recovery of the dividends proper?
Answer:
1) No, because it does not state the ultimate facts constituting the plaintiffs
cause of action. The allegations that the defendant acted in bad faith, arbitrarily,
illegally, wrongfully and in violation of the law are mere conclusions of fact or
conclusions of law, [Remitere vs. Vda. De Yulo, 16 SCRA 251)
Alternative Answer:
Yes, if the complaint alleges ultimate facts and states that the acts were done
in bad faith, arbitrarily, illegally, wrongfully and in violation of the law. The rule allows
malice, intent, knowledge or other condition of the mind to be averred generally,
(Sec. 5 of Rule 8)
2) No, because the recovery of the dividends is part of the cause of action for
the annulment of the sale of certain shares of stock and should have been claimed
in the first action. The second action constituted splitting a single cause of action.
Page 32 of 181
Civil procedure; cause of action; splitting a cause of action
1999 No. III
a. What is the rule against splitting a cause of action and its effect on the
respective rights of the parties for failure to comply with the same? (2%)
b. A purchased a lot from B for Pl,500,000.00. He gave a down payment
of P500,000, 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. When the
note fell due and A failed to pay, B commenced suit to recover from A the balance of
P1,000,000.00. After securing a favorable judgment on his claim, B brought another
action against A before the same court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground of bar by prior judgment. Rule
on the motion. (2%)
SUGGESTED ANSWER:
a. The rule against splitting a cause of action and its effect are that if two or
more suits are instituted on the basis of the same cause of action, the filing 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 of the 1997 Rules)
b. The motion to dismiss should be granted. When B commenced suit to
collect on the promissory note, he waived his right to foreclose the mortgage. B
split his cause of action.
Civil procedure; certification against forum shopping
2000 No. II.
As counsel for A, B, C and D, Atty. XY prepared a complaint for recovery of
possession of a parcel of land against Z. Before filling the complaint, XY discovered
that his clients were not available to sign the certification of non-forum shopping. To
avoid further delays in the filing of the complaint, XY signed the certification and
immediately filed the complaint in court. Is XY justified in signing the certification?
Why? (5%)
SUGGESTED ANSWER:
No. counsel cannot sign the anti-forum shopping certification because it must
be executed by the plaintiff or principal party himself (Sec. 5, Rule 7. 1997 Rules of
Civil Procedure; Excorpizo v. University of Baguio, 306 SCRA 497, [1999]), since the
rule requires personal knowledge by the party executing the certification, unless
counsel gives a good reason why he is not able to secure his clients signatures and
shows that his clients will be deprived of substantial justice (Ortiz v. Court of
Appeals, 299 SCRA 708, [1998]) or unless he is authorized to sign it by his clients
through a special power of attorney.
Civil procedure; class suit
1991 No IV:
An airplane carrying 200 passengers crashed somewhere in the jungles of
Agusan. All the passengers and crew perished. Twenty (20) relatives of the fatalities
filed for themselves and in behalf of the relatives of all those who perished in the
mishap a class suit for damages totalling P5 Million against the airline. The propriety
of the class suit is questioned by the defendant. Resolve the issue.
Answer:
A class suit is not proper in this case because there is no common or general
interest in the subject matter of the controversy. Each of the plaintiffs has a separate
claim for damages. (Newsweek v. IAC, 142 SCRA 171; Administrative Matter No.
Page 33 of 181
88-1-646-0 on Request of Plaintiffs, heirs of passengers of the Dona Paz, March 3,
1988.)
Civil procedure; class suit
1994 No (14)
Four hundred residents of Barrio Ramos initiated a class action suit through
Albert, a former mayor of the town, to recover damages sustained due to their
exposure to toxic waste and fumes emitted by the cooking gas plant of Top Fuel
Gas Corporation located in the town.
Is the class suit proper?
Answer:
No. The class suit is not proper. Each plaintiff suffered separate and distinct
damages from their exposure to the toxic waste and fumes emitted by the cooking
gas plant. Each of them has to prove his or her damages.
Civil procedure; common cause of action; party in default
1995 No. 8:
Jose, Lito and Luis executed a promissory note in favor of Teresita Comparza
which reads: "For value received we promise jointly and severally to pay Teresita
Comparza the sum of P300,000.00 on or before 31 December 1994." All three
signed the note.
Despite demands after due date no payment was made on the note
prompting Teresita to sue the three promissors. Summonses together with copies of
the complaint were served on all of them but only Lito answered. Upon Tereslta's
motion, Jose and Luis were declared in default.
1. Against whom and upon what basis should the court try the case
considering that only Lito of the three defendants filed an answer and a default order
was issued against Jose and Luis? Discuss fully.
2. Considering that a defaulted defendant cannot participate in the trial, can
Lito present Luis on the witness stand to testify after the latter was defaulted?
Discuss fully.
3. Suppose Lito dies and the case is dismissed as against him, what is the
effect of his answer as far as his solidary co-debtors Jose and Luis are concerned?
Discuss fully.
Answer:
1. Since the complaint states a common cause of action against the three
defendants, the court shall try the case against all upon the answer filed by Lito and
render judgment upon the evidence presented. (Sec. 4, Rule 18) In this case, the
answer of Lito inures to the benefit of Jose and Luis, unless the defense of Lito is
personal to him alone.
2. There is no provision in the Rules disqualifying parties declared In default
from taking the witness stand for non-disqualified parties. A party declared in default
loses his standing in court, but this must be understood to mean only the forfeiture of
one's rights as a party litigant. He is not disqualified to be a witness or a deponent in
a case. (Cavili vs. Florendo, 154 SCRA 610)
3. If Lito dies after he has presented evidence, the same inures to the benefit
of Jose and Luis. But if Lito dies before he has presented evidence, Jose and Luis
cannot present such evidence.
Civil procedure; compulsory counterclaim
Page 34 of 181
1994 No (16)
Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be
reimbursed of the value of improvements she had introduced on the same land and
the payment of damages she had sustained. Should Lea file a separate action
against Aya for that purpose?
Answer:
No. Leas claim cannot be made in a separate action. It is a compulsory
counterclaim in the suit filed by Aya against Lea for the recovery of the land. A
compulsory counterclaim is one which arises out of or is necessarily connected with
the transaction or occurrence that is the subject-matter of the opposing partys claim
and does not require the presence of third parties of whom the court cannot acquire
jurisdiction. If Leas claim is not set up in the suit filed by Aya, the claim is barred.
(Sec. 4, Rule 9)
Alternative Answer:
If Ayas action for recovery of land is one of forcible entry or unlawful detainer,
Leas claim cannot be filed as a counterclaim but should be filed in a separate
action.
Civil procedure; compulsory counterclaim
1996 No. 6:
3) Plaintiff filed a complaint against defendant for recovery of possession of
real property with the Regional Trial Court of Manila. Defendant filed an answer with
affirmative defenses and interposed a counterclaim for damages and attorney's fees
arising from the filing of the complaint. When plaintiff failed to file an answer on the
counterclaim, defendant moved to declare him in default. Notwithstanding notice of
the motion, plaintiff did not file an opposition.
As judge, how would you resolve the motion to declare plaintiff in default?
Explain.
Answer:
3) I would deny the motion. A compulsory counterclaim for damages and
attorney's fees arising from the filing of the complaint raises issues which are
inseparable from those of the complaint and does not require an answer. [Navorro
us. Bella, 102 Phil. 1019) (not in regalado; modified)
Civil procedure; compulsory counterclaim
2004 NO. IX
A. PX filed a suit for damages against DY. In his answer, DY incorporated a
counterclaim for damages against PX and AC, counsel for plaintiff in said suit,
alleging in said counterclaim, inter alia, that AC, as such counsel, maliciously
induced PX to bring the suit against DY despite ACs knowledge of its utter lack of
factual and legal basis. In due time, AC filed a motion to dismiss the counterclaim
as against him on the ground that he is not a proper party to the case, he being
merely plaintiffs counsel.
Is the counterclaim of DY compulsory or not? Should ACs motion to dismiss
the counterclaim be granted or not? Reason. (5%)
Civil procedure; concurrent jurisdiction
1991 No. IX:
(b) Enforcing a writ of execution issued by the Pasig Regional Trial Court in
a civil action, the sheriff attached several pieces of machinery and equipment found
Page 35 of 181
in defendant's place of business. Antonio Sadalay filed with the sheriff an affidavit of
third-party claim stating that the attached properties belong to him, not to the
defendant. If Sadalay decides to file a separate action in the Regional Trial Court in
Makati to vindicate his claim, may he validly obtain a writ of injunction from the
Makati RTC to enjoin the sale in execution of the levied properties?
Answer:
(b) Yes, because a judgment rendered in his favor by the Makati court
declaring him to be the owner of the properties levied on would not constitute
interference with the powers or processes of the Pasig Court which rendered the
judgment to enforce the execution. If that is so, an interlocutory order such as the
writ of preliminary injunction against the sheriff, upon a claim and prima facie
showing of ownership, cannot be considered as such interference. (Abiera v. CA, 45
SCRA 314; Sy v. Discaya, 161 SCRA 378)
Civil procedure; counterclaim
1999 No. VII
a. What is a counterclaim? (2%)
b. Distinguish a counterclaim from a crossclaim. (2%)
c. A, who is engaged in tile installation business, was sued by EE
Industries for breach of contract for installing different marble tiles in its offices as
provided in their contract. Without filing any motion to dismiss, A filed its Answer
with Counterclaim theorizing that EE Industries has no legal capacity to sue because
it is not a duly registered corporation. By way of counterclaim, A asked 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 filing of the case. The case
was dismissed after the trial court found that EE Industries is not a registered
corporation and therefore has no legal capacity to sue. However, it set a date for the
reception of evidence on A's counterclaim. EE Industries opposed on the ground
that the counterclaim could no longer be prosecuted in view of the dismissal of the
main case. Is the stand of EE Industries sustainable? Explain. [2%]
SUGGESTED ANSWER:
a. A counterclaim is any claim which a defending party may have against
an opposing party. (Sec. 6, Rule 6 of the 1997 Rules)
b. A counterclaim is distinguished from a cross-claim 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. 8, Rule 6 of the 1997 Rules)
c. No, because if no motion to dismiss has been filed, any of the grounds
for dismissal provided in the Rules may be pleaded as an affirmative defense in the
answer which may include a counterclaim. This is what A did by filing an Answer
alleging the lack of legal capacity of EE Industries to sue because it is not a duly
registered corporation with a counterclaim for damages. The 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. 6 of Rule 16.)
Civil procedure; counterclaim
2002 No. II.A
A. The plaintiff sued the defendant in the RTC for damages allegedly
caused by the latters encroachment on the plaintiffs lot. In his answer, the
defendant denied the plaintiffs claim and alleged that it was the plaintiff who in fact
Page 36 of 181
had encroached on his (defendants) land. Accordingly, the defendant
counterclaimed against the plaintiff for damages resulting from the alleged
encroachment on his lot. The plaintiff filed an ex parte motion for extension of time to
answer the defendants counterclaim, but the court denied the motion on the ground
that it should have been set for hearing. On the defendants motion, therefore, the
court declared the plaintiff in default on the counterclaim. Was the plaintiff validly
declared in default? Why? (5%)
SUGGESTED ANSWER:
A. No, the plaintiff was not validly declared in default. A motion for
extension of time to file an answer may be filed ex parte and need not be set for
hearing. [Amante vs. Sunga, 64 SCRA 192 (1975)].
ALTERNATIVE ANSWER:
A. The general rule is that a counterclaim must be answered within ten
(10) days from service. (Rule 11, sec. 4). However, a counterclaim that raises
issues which are deemed automatically joined by the allegations of the Complaint
need not be answered. [Gojo v. Goyala, 35 SCRA 557 (1970)].
In this case, the defendants counterclaim is a compulsory counterclaim
which arises out or is connected with the transaction and occurrence constituting the
subject matter of the plaintiffs claim. It raises the same issue of who encroached on
whose land. Hence, there was no need to answer the counterclaim.
Civil procedure; cross-claims
1996 No. 6:
1) A assembles an owner-type Jeep for B who in turn rents it to X. Due to
faulty brakes, X figures in a vehicular accident causing him severe injuries. X files an
action for damages against A and B.
May B file a third-party complaint against A for indemnity? Explain,
Answer:
1) No, because what B should file is a crossclaim against his co-defendant A,
Civil procedure; cross-claims/third party claims
1997 No. 2:
B and C borrowed P400,000.00 fromA. The promissory note was executed by
B and C in a Joint and several capacity. B, who received the money from A, gave C
P200,000.00. C, in turn, loaned P100,000.00 out of the P200,000.00 he received to
D.
(a) In an action filed by A against B and C with the Regional Trial Court of
Quezon City, can B file a cross-claim against C for the amount of P200,000.00?
(b) Can C file a third party complaint against D for the amount of P
100,000.00?
Answer:
(a) Yes. B can file a cross-claim against C for the amount of 200,000.00
given to C. A cross-claim is a claim filed 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. 7 of former Rule 6; Sec. 8 of new Rule 6. Rules of
Court).
Page 37 of 181
(b) No, C cannot file a third-parly complaint against D because the loan of
P100,000 has no connection with the opponent's claim. C could have loaned the
money out of other funds in his possession.
Alternative Answer;
(b) X Yes, C can file a third-party complaint against D because the loan of
100,000.00 was taken out of the P200,000 received from B and hence the loan
seeks contribution in respect to his opponent's claim. (Sec. 12 of former Rule 6; Sec.
11 of new Rule 6)
Civil procedure; death of a party; effect
1999 No. XVI
a. What is the effect of the death of a party upon a pending action? (2%)
b. When A (buyer) failed to pay the remaining balance of the contract price
after it became due and demand-able, B (seller) sued him for collection before the
RTC. After both parties submitted their respective evidence, A perished in a plane
accident. Consequently, his heirs brought an action for the settlement of his estate
and moved for the dismissal of the collection suit.
1. Will you grant the motion? Explain. (2%)
2. Will your answer be the same if A died while the case is already on
appeal to the Court of Appeals? Explain. (2%)
3. In the same case, what is the effect if B died before the RTC has
rendered judgment? (2%)
SUGGESTED ANSWER:
a. When the claim in a pending action is purely personal, the death of either
of the parties extinguishes the claim and the action is dismissed. When the claim is
not purely personal and is not thereby extinguished, the party should be substituted
by his heirs or his executor or administrator. (Sec. 16, Rule 3, 1997 Rules) If the
action is for recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by
the plaintiff shall be enforced in the manner provided in the rules for prosecuting
claims against the estate of a deceased person. (Sec. 20, Rule 3, 1997 Rules)
b. 1. No, because the action will not be dismissed but shall instead be
allowed to continue until entry of final judgment. (Id.)
2. No. If 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 final judgment. (Id.)
3. The effect is the same. The action will not be dismissed but will be
allowed to continue until entry of final judgment. (Id.)
Civil procedure; death of defendant; effect
1998 No VI.
A filed a complaint for the recovery of ownership of land against B who was
represented by her counsel X. In the course of the trial, B died. However, X failed to
notify the court of B's death. The court proceeded to hear the case and rendered
judgment against B. After the Judgment became final, a writ of execution was issued
against C, who being B's sole heir, acquired the property.
1. If you were counsel of C, what course of action would you take? [3%]
Page 38 of 181
2. Did the failure of counsel X to inform the court of B's death constitute
direct contempt? (2%)
SUGGESTED ANSWER:
1. As counsel of C, I would more to set aside the writ of execution and the
judgment for lack of jurisdiction and lack of due process in the same court because
the judgment to void. If X had notified the court of B's death, the court would have
ordered the substitution of the deceased by C, the sole heir of B. (Sec. 16 of Rule 3)
The court acquired no jurisdiction over C upon whom the trial and the judgment are
not binding. (Ferreira us. Ibarra Vda. de Gonzales, 104 Phil. 143; Vda. de la Cruz vs.
Court of Appeals, 88 SCRA 695; Lawas us. Court of Appeals, 146 SCRA 173.) I
could also file an action to annul the judgment for lack of jurisdiction because C, as
the successor of B, was deprived of due process and should have been heard
before judgment. (Rule 47, 1997 Rules of Civil Procedure.)
ALTERNATIVE ANSWER:
1. While there are decisions of the Supreme Court which hold that if the
lawyer failed to notify the court of his client's death, the court may proceed even
without substitution of heirs and the judgment is valid and binding on the heirs of the
deceased (Florendo vs. Coloma, 129 SCRA 304 and other cases.), as counsel of C,
I will assail the judgment and execution for lack of due process.
SUGGESTED ANSWER:
2. No. It is not direct contempt under Sec. 1 of Rule 71, but it is indirect
contempt within the purview of Sec 3 of Rule 71. The lawyer can also be the subject
of disciplinary action. (Sec. 16, Rule 3, 1997 Rules of Civil Procedure.)
Civil procedure; default
1999 No. V
a. When may a party be declared in default? (2%)
b. What is the effect of an Order of Default? (2%)
c. For failure to seasonably file his Answer despite due notice, A was
declared in default in a case instituted against him by B, The following day, A's
mistress who is working as a clerk in the sala of the Judge before whom his case is
pending, informed him of the declaration of default. On the same day, A presented a
motion under oath to set aside the order of default on the ground that his failure to
answer was due to fraud and he has a meritorious defense. Thereafter, he went
abroad. After his return a week later, with the case still undecided, he received the
order declaring him in default. The motion to set aside default was opposed by B on
the ground that it was filed before A received notice of his having been declared in
default, citing the rule that the motion to set aside may be made at anytime after
notice but before judgment. Resolve the Motion. (2%)
SUGGESTED ANSWER:
a. 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 of the 1997 Rules)
b. The effect of an Order 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 requires the claimant to submit evidence (Id.) The party in
default cannot take part in the trial but shall be entitled to notice of subsequent
proceedings. (Sec. 3[A]. Rule 9 of the 1997 Rules)
Page 39 of 181
c. Assuming that the motion to set aside complies with the other requirements
of the rule, it should be granted. Although such a motion may be made after notice
but before judgment (Sec. 3[B] of Rule 9), with more reason may it be filed after
discovery even before receipt of the order of default.
Civil procedure; default
2000 No. XII.
Defendant was declared in default by the Regional Trial Court (RTC). Plaintiff
was allowed to present evidence in support of his complaint. Photocopies of official
receipts and original copies of affidavits were presented in court, identified by
plaintiff on the witness stand and marked as exhibits. Said documents were offered
by plaintiff and admitted in evidence by the court on the basis of which the RTC
rendered judgment in favor of the plaintiff, pursuant to the relief prayed for. Upon
receipt of the judgment, defendant appeals to the Court of Appeals claiming that the
judgment is not valid because the RTC based its judgment on mere photocopies and
affidavits of persons not presented in court.
(a) Is the claim of defendant valid? Explain. (3%)
(b) Will your answer be the same if the photocopies of official receipts and
photocopies of affidavits were attached to the position paper submitted by plaintiff in
an action for unlawful detainer filed with Municipal Trial Court on which basis the
court rendered judgment in favor of plaintiff? Explain. (2%)
SUGGESTED ANSWER:
(a) The claim of defendant is not valid because under the 1997 Rules,
reception of evidence is not required. After a defendant is declared in default, the
court shall proceed to render judgment granting the claimant such relief as his
pleading may warrant, unless the court in its discretion requires the claimant to
submit evidence, which may be delegated to the clerk of court. (Sec. 3, Rule 9, 1997
Rules of Civil Procedure)
ALTERNATIVE ANSWER:
The claim of defendant is valid, because the court received evidence which it
can order in its own discretion, in which case the evidence of the plaintiff must pass
the basic requirements of admissibility.
SUGGESTED ANSWER:
(b) The claim of defendant is valid, because although summary procedure
requires merely the submission of position papers, the evidence submitted with the
position paper must be admissible in evidence. (Sec. 9 of the Revised Rule on
Summary Procedure). Photocopies of official receipts and affidavits are not
admissible without proof of loss of the originals. (Sec. 3 of Rule 130)
Civil Procedure; default
2001 No. XX
Mario was declared in default but before judgment was rendered, he decided
to file a motion to set aside the order of default.
a) What should Mario state in his motion in order to justify the setting
aside of the order of default? (3%)
b) In what form should such motion be? (2%)
SUGGESTED ANSWER:
a) In order to justify the setting aside of the order of default, Mario should
state in his motion that his failure to answer was due to fraud, accident, mistake or
Page 40 of 181
excusable negligence and that he has a meritorious defense. [Sec. 3(b) of Rule 9,
1997 Rules of Civil Procedure].
b) The motion should be under oath. (Id.)
Civil procedure; default; remedies
2000 No. I-b
b) For failure of K.J. to file an answer within the reglementary period, the
Court, upon motion of LM, declared KJ in default. In due time, KJ filed an unverified
motion to lift the order of default without an affidavit of merit attached to it. KJ
however attached to the motion his answer under oath, stating in said answer his
reasons for his failure to file an answer on time, as well as his defenses. Will the
motion to lift the order of default prosper? Explain. (3%)
SUGGESTED ANSWER:
(b) Yes, there is substantial compliance with the rule. Although the motion
is unverified, the answer attached to the motion is verified. The answer contains
what the motion to lift the order of default and the affidavit of merit should contain,
which are the reasons of movants failure to answer as well as his defenses. (Sec. 3
[b] of Rule 9, 1997 Rules of Civil Procedure; Cf. Citibank, N.A. v. Court of Appeals,
304 SCRA 679, [1999]; Consul v. Consul, 17 SCRA 667, 671 [1966]; Tolentino v.
Carlos, 66 Phil, 1450, 143-144 [1938], Nasser v. Court of Appeals, 191 SCRA 783
[1992]).
Civil procedure; demurrer to evidence
2001 No. XVIII
Carlos filed a complaint against Pedro in the Regional Trial Court of Ozamis
City for the recovery of the ownership of a car. Pedro filed his answer within the
reglementary period. After the pre-trial and actual trial, and after Carlos has
completed the presentation of his evidence, Pedro 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. The Regional Trial Court
granted the motion for dismissal. Carlos appealed the order of dismissal and the
appellate court reversed the order of the trial court. Thereafter, Pedro filed a motion
with the Regional Trial Court asking the latter to allow him to present his evidence.
Carlos objected to the presentation of evidence by Pedro.
Should the Regional Trial Court grant Pedros motion to present his
evidence? Why? (5%)
SUGGESTED ANSWER:
No. Pedros motion should be denied. He can no longer present evidence.
The Rules 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 Civil Procedure)
ALTERNATIVE ANSWER
No, because when the appellate court reversed the order of the trial court it
should have rendered judgment in favor of Carlos. (Quebral v. Court of Appeals, 252
SCRA 353, 1996)
Civil procedure; demurrer to evidence
2003 No. V.
Compare the effects of a denial of demurrer to evidence in a civil case with
those of a denial of demurrer to evidence in a criminal case. 4%
Page 41 of 181
SUGGESTED ANSWER:
In a civil case, the defendant has the right to file a demurrer to evidence
without leave of court. If his demurrer is denied, he has the right to present
evidence. If his demurrer is granted and on appeal by the plaintiff, the appellate
court reverses the order and renders judgment for the plaintiff, the defendant loses
his right to present evidence. (Rule 33).
In a criminal case, the accused has to obtain leave of court to file a demurrer
to evidence. If he obtains leave of court and his demurrer to evidence is denied, he
has the right to present evidence in his defense. If his demurrer to evidence is
granted, he is acquitted and the prosecution cannot appeal is granted, he is
acquitted and the prosecution cannot appeal.
If 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.
The court may also dismiss the action on the ground of insufficiency of the
evidence on its own initiative after giving the prosecution the opportunity to be
heard. (Sec. 23 of Rule 119)
Civil procedure; demurrer to evidence
2004 NO. VIII
A. AX, a Makati-bound paying passenger of PBU, 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 truck that
happened while the bus was still travelling on EDSA towards Makati. The foregoing
facts, among others, were duly established on evidence-in-chief by the plaintiff TY,
sole heir of AX, in TYs action against the subject common carrier for breach of
contract of carriage. After TY had rested his case, the common carrier filed a
demurrer to evidence, contending that plaintiffs evidence is insufficient because it
did not show (1) that defendant was negligent and (2) that such negligence was the
proximate cause of the collision.
Should the court grant or deny defendants demurrer to evidence? Reason
briefly. (5%)
Civil procedure; dismissal by the plaintiff
1989 (4)
4.1) Before any answer on motion for summary judgment could be filed by the
defendant, the plaintiff filed notice of dismissal of his complaint. The trial court simply
noted the dismissal. Is the case considered dismissed?
Answer:
Yes, because the rule merely requires the filing of a notice of dismissal and
does not require the order of the court dismissing the case. (Sec.1 of Rule 7)
Civil procedure; dismissal by the plaintiff
1996 No 8:
2) X filed an action for reconveyance against Y. Y forthwith filed his answer
and served it on X. A week later, X filed a motion to withdraw the action since he
could not avail the services of counsel. The court dismissed the complaint based on
failure to prosecute. A month after, X instituted the very same action against Y. Y
moved to dismiss the case invoking res judicata. He alleged that dismissal of the
first case had the effect of an adjudication upon the merits since the court's order
Page 42 of 181
had no condition that it was without prejudice. The court dismissed the subsequent
case on the ground of res judicata.
Was the trial court correct? Explain.
Answer;
2) No, because the dismissal of the complaint on motion of X is without
prejudice under Sec. 2 of Rule 17. The Court erred in dismissing the complaint for
failure to prosecute for an unreasonable length of time under Sec. 3 of Rule 17.
Civil procedure; dismissal of action; effect on counterclaim
1996 No. 5:
3) X filed an action for damages against Y arising from the latter's tortious
act. Y filed his answer with a counterclaim for damages suffered and expenses
incurred on account of X's suit. Thereafter, X moved to dismiss the case since he
lost interest in the case. Y did not object. The court dismissed the action without
prejudice. Y moved the court to set the reception of his evidence to prove his
counterclaim.
If you were the judge, how would you resolve the motion? Explain.
Answer;
3) I would deny the motion. Inasmuch as Y's counterclaim for damages
incurred on account of X's suit cannot remain pending for independent adjudication,
Y should have objected to the dismissal of the complaint. His failure to object
deprived him of the right to present evidence to prove his counterclaim. (Sec. 2 of
Rule 17; Ynatorio vs. Lira, 12 SCRA 369) (alex: rule is otherwise)
Civil procedure; dismissal of actions
1989 (5)
5.2) Agustin, a 21-year old son of the spouses Edgardo and Gloria, was a
paying passenger who suffered serious physical injuries when the bus he was riding
fell off a cliff due to the recklessness of its driver. The bus belonged to the Inter-City
Transit.
The spouses, together with Agustin, sued for damages. After Inter-City filed
its answer, Agustin, in consideration of P10,000, executed a Release of Claim. On
the basis thereof, Inter-City filed a motion to dismiss alleging that the claim had
already been paid and released.
Plaintiff-spouses opposed the motion and asserted that there son was totally
dependent upon them for support; that his hospitalization and other medical
expenses were shouldered by them; that they were not even consulted on the
Release of Claim; and, that the Released of Claim could not operate as a valid
ground for dismissal because it did not have the conformity of all the parties since
only their son, Agustin signed it. Decide the motion to dismiss.
Answer:
Motion to dismiss is granted. The contract of carriage is between Agustin,
who was of legal age, and Intr-City Transit. Hence, the Release of Claim executed
by him is valid. (Baliwag Transit vs. CA, January 31, 1989).
Another Acceptable Answer:
Motion to dismiss is granted only with respect to Agustin. The parents of
Agustin have a cause of action against Inter-City to the extent of the expenses
incurred by them due to the recklessness of the driver.
Civil procedure; dismissal without prejudice
Page 43 of 181
1989 (4)
4.2) Lawrence filed a complaint against Grace to collect a loan of P50,000.
Later, because of their intimate relationship in the past, Lawrence filed a notice of
dismissal of his complaint. Subsequently, the two had a serious misunderstanding
so that Lawrence again filed a complaint against Grace to collect another loan of
P100,000. Lawrence and Grace reconciled after which, the former withdraw his
complaint before the latter could file her answer or a motion for summary judgment.
Was the dismissal of the second complaint with or without prejudice? Explain.
Answer:
The dismissal of the second complain is without prejudice because it is based
on another claim of P100,000. If the dismissal was based on the same claim of
P50,000 it would be with prejudice.
Civil procedure; effect of failure to answer
1989 (17)
17.2) Distinguish between the effects of the failure to file an answer in civil
case governed by the Summary Rules and in civil case governed by the regular
provisions of the Rules of Court.
Answer:
Under Summary Procedure Rules, upon the failure to file an answer in a civil
case, the court, motu propio or upon the motion of the plaintiff, shall render judgment
as may be warranted by the facts alleged in the complaint and limited to what is
prayed for therein except as to the amount of damages which the court may reduce
in its discretion. (Sec.5)
Under the regular procedure, upon the failure to file an answer, the court
shall, upon the motion of the plaintiff and proof of such failure, declare the defendant
in default. Thereupon, the court shall proceed to receive the plaintiffs evidence and
render judgment granting him such relief as the complaint and the facts proven may
warrant. Such judgment shall not exceed the amount or different in kind from that
prayed for. (Sec.1 and 5 of Rule 18).
Civil procedure; error of judgment vs error of jurisdiction
1989 (10)
10.1) Distinguish between error of judgment and error of jurisdiction.
Answer:
An error of judgment is one which the court may commit in the exercise of its
jurisdiction. Such an error does not deprive the court of jurisdiction and is correctible
only by appeal; whereas an error of jurisdiction is one where the court acts without
or in excess of its jurisdiction. Such an error renders an order or judgment void or
voidable and is correctible by the special civil action of certiorari. (De la Cruz vs.
Moir, 36 Phil. 213; Cochingyan vs. Cloribel, 76 SCRA 361).
Civil procedure; execution of judgments; 5-year period
1997 No. 16:
A. a resident of Dagupan City, secured a favorable judgment in an ejectment
case against X, a resident of Quezon City, from the Metropolitan Trial Court of
Manila. The judgment, entered on 15 June 1991. had not as yet been executed.
(a) In July 1996, A decided to enforce the judgment of the Metropolitan Trial
Court of Manila. What is the procedure to be followed by A in enforcing the
judgment?
Page 44 of 181
(b) With what court should A institute the proceedings? Answer:
(a) A can enforce the judgment by another action reviving the Judgment
because it can no longer be enforced by motion as the five-year period within which
a judgment may be enforced by motion has already expired. (Sec. 6 of former and
new Rule 39).
(b) A may institute the proceedings in the Regional Trial Court in accordance
with the rules of venue because the enforcement of the Judgment is a personal
action Incapable of pecuniary estimation.
Alternative Answer:
(b) A may institute the proceeding in a Metropolitan Trial Court which has
jurisdiction over the area where the real property involved is situated. (Sec. 1 of Rule
4).
Civil procedure; execution of judgments; effect of death of losing party
1992 No. V:
(a) Plaintiff sued to recover an unpaid loan and was awarded P333.000.00 by
the Regional Trial Court of Manila. Defendant did not appeal within the period
allowed by law. He died six days after the lapse of the period to appeal. Forthwith, a
petition for the settlement of his estate was properly filed with the Regional Trial
Court of Pampanga where an Inventory of all his assets was filed and correspond -
ingly approved. Thereafter, plaintiff filed a motion for execution with the Manila court,
contending therein that the motion was legally justified because the defendant died
after the Judgment In the Manila court had become final. Resolve the motion and
state your reasons.
Suggested Answer:
a] Motion for execution denied.
Although the defendant died after the Judgment had become final and
executory, it cannot be enforced by a writ of execution against the estate of the
deceased which is in custodia legts. The Judgment should be filed as a proven
money claim with the Regional Trial Court of Pampanga. (Paredes v. Moya, 61
SCRA 527)
b) Under the same set of facts as (a), a writ of execution was issued by the
Manila court upon proper motion three days after the lapse of the period to appeal.
The corresponding levy on execution was duly effected on defendant's parcel of land
worth P666,000.00 a day before the defendant died. Would it be proper, on motion,
to lift the levy on defendant's property? State the reasons for your answer.
Suggested Answer:
b) No, since the levy on execution was duly effected on defendant's parcel of
land a day before the defendant died, it was valid. The land may be sold for the
satisfaction of the judgment and the surplus shall be accounted for by the sheriff to
the corresponding executor or administrator. [Sec. 7-C of Rule 39)
Civil procedure; execution of judgments; examination of defendant
2002 No. I.
The plaintiff, a Manila resident, sued the defendant, a resident of Malolos
Bulacan, in the RTC-Manila for a sum of money. When the sheriff tried to serve the
summons with a copy of the complaint on the defendant at his Bulacan residence,
the sheriff was told that the defendant had gone to Manila for business and would
not be back until the evening of that day. So, the sheriff served the summons,
together with a copy of the complaint, on the defendants 18-year-old daughter, who
Page 45 of 181
was a college student. For the defendants failure to answer the complaint within the
reglementary period, the trial court, on motion of the plaintiff, 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 final, a writ of execution was issued by
the court. As the writ was returned unsatisfied, the plaintiff filed a motion for an order
requiring the defendant to appear before it and to be examined regarding his
property and income. How should the court resolve the motion? (2%)
Civil procedure; Execution of judgments; rights of pledgee
1987 No (3)
A obtained a judgment for money against B. The sheriff enforcing the
corresponding writ went to C who, is the pledgee of a ring B had given as a security
for a loan and insisted on taking possession of the ring for the purpose of eventually
selling it at the execution sale to satisfy the judgment debt of B to A.
Has C the obligation to surrender the ring to the sheriff? Explain.
Answer:
No. C has no obligation to surrender the ring to the sheriff because C has the
right to retain the ring in his possession until the loan is paid. (Art. 2098 Civil Code).
If the sheriff should take possession of the ring, C may file a third-party claim.
Civil procedure; execution of judgments; writ of execution
1987 No (13)
A obtained a judgment against B for the payment of money. For failure to
appeal, the judgment became final on July 5, 1975. Writs of execution were returned
unsatisfied, for the sheriff was unable to find property of B subject to execution. On
June 30, 1984, A located some property of B. Whereupon A immediately filed in July
1984 a motion for the issuance of an alias writ of execution.
If you were the judge, will you grant the writ? Why?
Answer:
No, because a motion for the issuance of an alias writ of execution may be
granted only within five (5) years from the entry of the judgment on July 5, 1975. It
will be necessary for A to file an action to enforce or revive the judgment before the
lapse of ten (10) years.
Civil procedure; execution of judgments; writ of execution
1988 (6)
Writ of execution were returned unsatisfied by the sheriff on the execution of a
final judgment rendered in favor of A for a sum of money against B on June 5, 1983.
On June 30, 1988, A found some property in the name of B so that he immediately
filed on July 1, 1988 a motion for an issuance of an alias writ of execution.
6.a) As the judge, will you grant the writ? Explain.
6.b) May a judgment in a civil case be executed pending appeal? Explain.
Answer:
6.a) The answer depends on when the judgment was entered. If the final
judgment was entered on June 5, 1983, I will not grant the writ because more than 5
years had elapsed from the date of entry of the judgment or from the date it became
final and executory. However, if the final judgment rendered on June 5, 1983 was
entered or became final and executory after July 1, 1983, I would grant the writ.
Page 46 of 181
(Sec.6 of Rule 39)
Alternative Answer:
6.a) Since the question did not specify the date when the judgment was
entered, which date of the reckoning of the 5-year period within which judgment may
be executed by motion, the motion may be granted on the assumption that the entry
of judgment was made after July 1, 1983. In this case, the 5-year period from entry
of judgment has not yet elapsed. Hence, the judgment ccan still be executed by
mere motion.
Committees Recommendation:
As the facts of the case given used the word rendered and not entered, the
examinees should not be blamed.
6.b) Yes, upon good reasons to be stated in a special order. (Sec.2 of Rule
39). The motion for execution pending appeal should be filed before the perfection of
an appeal. (Delgado vs. IAC, 14 SCRA 258)
Other Answer:
6.b) (1) the motion for execution pending appeal may be granted upon good
reasons by the appellate court. (Phil. British Assurance Co. vs. IAC, 150 SCRA
520).
(2) A judgment in an action for injunction, receivership and accounting is
executory pending appeal, unless otherwise granted by the court. (Sec.4 of Rule 39)
(3) A judgment rendered against the defendant in an action for forcible entry
or illegal detainer is immediately executory. (Sec.8 of Rule 70)
Civil procedure; execution of judgments; writ of execution
1993 No (15)
As the decision of the Regional Trial Court became final and executory n
November 15, 1987, plaintiff, the prevailing party, filed a motion for a writ of
execution. The writ of execution was issued on December 1, 1987.
Pursuant to the writ, the sheriff levied upon the house and lot of defendant
and scheduled the sale thereof for public auction on January 26, 1988. The auction
sale was repeatedly postponed upon request of defendant who, in the meantime,
was making partial payment to plaintiff.
The last scheduled auction sale was on November 3,1992 but the same did
not materialize because of the request of the defendant which was granted by
plaintiff on account of the partial payment made by defendant on the date.
As there still remained an unpaid balance as of July 15, 1993, plaintiff filed a
motion for the issuance of alias writ of execution of that date. Defendant opposed
the motion on the ground that more than five years had lapsed form the finality of the
decision such that plaintiffs remedy is to file a new action for revival of judgment.
Should the motion for issuance of an alias writ of execution be granted?
Explain.
Answer:
Yes, because the running of the five-year period from the date the decision
became final and executory on November 15,1987, within which the judgment could
be executed on motion, was interrupted or suspended by the agreement of the
parties to suspend enforcement of the judgment on account of partial payments
made by defendant.
Alternative Answer:
Page 47 of 181
Since there was already a levy on execution, there was no need for an alias
writ of execution.
Civil procedure; execution of judgments; writ of execution
1995 No. 5:
1. The lifetime of a writ of execution is sixty (60) days from its receipt by the
officer required to enforce it. Suppose on the 60th day of the life of the writ the
sheriff levied on the property of the judgment debtor and sold it only a month after. Is
the sale valid? Explain.
2. A writ of execution was served by a sheriff upon defendant so that plaintiff
may be placed in possession of the property held by the former. The defendant
refused to vacate and surrender the premises to plaintiff. Can defendant be held for
indirect contempt for disobedience of, or resistance to a lawful writ issued by the
court? Explain.
3. Suppose that by virtue of an execution of the judgment in an ejectment
case defendant was successfully ousted from the property in litigation and plaintiff
was lawfully placed in possession thereof, but seven (7) years later defendant re-
entered the property and forcibly took over possession, can plaintiff move that
defendant be declared in indirect contempt? Explain.
Answer;
1. The writ of execution may be levied at any time up to and including the
last day of the writ. After the writ has been levied on the property within the lifetime
of the writ, it may be sold thereafter. (Alagar vs. Pio de Roda, 29 Phil. 129)
Alternative Answer;
The property may even be sold beyond the five-year period within which the
judgment may be executed on motion, but not beyond the ten-year period of
prescription of judgments. [Government vs. Echaus, 71 Phil. 318; Jalandoni vs.
Philippine National Bank, 105 SCRA 102)
2. No, because it is the sheriff who must enforce the writ of execution for
the delivery of property by ousting therefrom the person against whom the judgment
is rendered and placing the judgment creditor in possession. (Sec. 13, Rule 39).
The writ of possession was directed to the Sheriff who was to deliver the property to
the plaintiff. The writ did not command the plaintiff to do anything, hence he could
not be held guilty of indirect contempt. (Barrete vs. Amila, 230 SCRA 219)
3. Yes, because the defendant violated Sec. 3(b) of Rule 71 when after
being ousted from the property in litigation and the plaintiff was lawfully placed in
possession, he re-enters the property and forcibly took over possession.
Civil procedure; execution pending appeal
2002 No. III B
B. The trial court rendered judgment ordering the defendant to pay the
plaintiff moral and exemplary damages. The judgment was served on the plaintiff on
October 1, 2001 and on the defendant on October 5, 2001. On October 8, 2001, the
defendant filed a notice of appeal from the judgment, but the following day, October
9, 2001, the plaintiff moved for the execution of the judgment pending appeal. The
trial court granted the motion upon the posting by the plaintiff of a bond to indemnify
the defendant for damages it may suffer as a result of the execution. The court gave
as a special reason for its order the imminent insolvency of the defendant.
Is the order of execution pending appeal correct? Why? (5%)
SUGGESTED ANSWER:
Page 48 of 181
B. No, because awards for moral and exemplary damages cannot be the
subject of execution pending appeal. The execution of any award for moral and
exemplary damages is dependent on the outcome of the main case. Liabilities for
moral and exemplary damages, as well as the exact amounts remain uncertain and
indefinite pending resolution by the Court of Appeals or Supreme Court. [RCPI v.
Lantin, 134 SCRA 395 (1985); International School, Inc. v. Court of Appeals, 309
SCRA 474 (1999)].
ALTERNATIVE ANSWER:
B.Yes, because only moral and exemplary damages are awarded in the
judgment and they are not dependent on other types of damages.
Moreover, the motion for execution was filed while the court had jurisdiction
over the case and was in possession of the original record.
It is based on good reason which is the imminent insolvency of the defendant.
(Rule 39, sec. 2)
Civil procedure; failure to tender an issue
2004 NO. VI
B. In his complaint for foreclosure of mortgage to which was duly attached a
copy of the mortgage deed, plaintiff PP alleged inter alia as follows: (1) that
defendant DD duly executed the mortgage deed, copy of which is Annex A of the
complaint and made an integral part thereof; and (2) that to prosecute his complaint,
plaintiff contracted a lawyer, CC, for a fee of P50,000. In his answer, defendant
alleged, inter alia, that he had no knowledge of the mortgage deed, and he also
denied any liability for plaintiffs contracting with a lawyer for a fee.
Does defendants answer as to plaintiffs allegation no. 1 as well as no. 2
sufficiently raise an issue of fact? Reason briefly. (5%)
Civil procedure; filing of pleadings; periods
1991 No. VIII:
The defendant in a civil action received a note of the judgment of the
Municipal Trial Court on 10 December.
(a) What is his last day for appealing?
Answer:
(a) Dec. 26, since the last day. Dec, 25 is a holiday.
(b) Can he validly move for extension of the period for filing a motion for
reconsideration of the decision in view of the Christmas holidays?
Answer;
(b) No. a motion for extension of time to file a motion for reconsideration is
not allowed. (Habaluyas Ent. v. Jopson, 142 SCRA 208)
(c) In this case, when will the appeal be deemed perfected?
Answer:
(c) The appeal will be deemed perfected upon the expiration of the last day to
appeal by any party. (Sec. 23 of Interim Rules)
Civil procedure; forum shopping
1996 No. 1:
1) What is forum-shopping? What are the sanctions imposed for its violation?
Answer;
Page 49 of 181
1) Forum-shopping is the filing of multiple petitions, complaints or other
initiatory pleadings involving the same issues in the Supreme Court, the Court of
Appeals or other tribunals or agencies, with the result that said courts, tribunals or
agencies have to resolve the same issues.
Any violation thereof shall be a cause for the dismissal of the complaint,
petition, application or other initiatory pleading, upon motion and after hearing.
However, any clearly, wilful and deliberate forum shopping by any party and his
counsel through the filing of multiple complaints or other initiatory pleadings to obtain
favorable action shall be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the submission of false certification
or non-compliance with the undertakings therein shall constitute indirect contempt of
court, without prejudice to disciplinary proceedings against the counsel and the filing
of a criminal action against the guilty party, (Circular Nos. 28-91 and 04-94)
Civil procedure; intervention
1991 No. IX:
Enforcing a writ of execution issued by the Pasig Regional Trial Court in a
civil action, the sheriff attached several pieces of machinery and equipment found in
defendant's place of business. Antonio Sadalay filed with the sheriff an affidavit of
third-party claim stating that the attached properties belong to him, not to the
defendant.
(a) Can Sadalay intervene in the case and ask the Pasig RTC to resolve his
third-party claim?
Answer:
(a) No, Sadalay may not intervene in the case because intervention is
allowed only before or during the trial of the case. In this case there is already a
final and executory judgment. (Sec 1 of Rule 12; Bayer Phils. v. Agana. 63 SCRA
355) However, he may ask the Pasig RTC to resolve preliminarily whether the sheriff
acted rightly or wrongly in levying execution on the properties in question. (Ong v
Tating, 149 SCRA 265)
Civil procedure; intervention
2000 No. VI.
What are the requisites for an intervention by a non-party in an action
pending in court? (5%)
SUGGESTED ANSWER:
The requisites for intervention are:
(1) Legal interest in the matter in a controversy; or
(2) Legal interest in the success of either of the parties; or
(3) Legal interest against both; or
(4) So situated as to be adversely affected by a distribution or other
disposition or property in the custody of the court or of an officer thereof.
(5) Intervention will not unduly delay or prejudice the adjudication of the
rights or original parties;
(6) Intervenors rights may not be fully protected in a separate
proceedings.
(Acenas II v. Court of Appeals, 247 SCRA 773 [1995]; Sec. 1, Rule 19, 1997
Rules of Civil Procedure.)
Page 50 of 181
Civil procedure; joinder of action; joinder of parties
1996 No. 4:
1) Distinguish joinder of causes of action from joinder of parties.
2) The complaint filed before the Regional Trial Court of Manila states two
(2) causes of action, one for recission of contract and the other for the recovery of
One Hundred Thousand Pesos (P100,000.00), both of which arose out of the same
transaction.
Is the joinder of the two (2) causes of action proper? Explain.
3) A filed an action against B. driver of the truck, C, owner of said truck, and
D, insurer of the truck, for damages when the truck rammed his car. A and D
entered into a compromise agreement upon an amount lower than that sued upon
by A against all three defendants. Accordingly, the court dismissed the case against
D. B and C moved to dismiss the case against them on the ground that, being
indispensable parties under a common cause of action, non-inclusion of D would not
make the case prosper.
Are the defendants indispensable parties? How would you resolve the
motion.
Answer;
1) Joinder of causes of action may be made in the same complaint by one
party against another; or by or against several parties. In cases of joinder of causes
of action by one party against another, the totality of the demand determines the
jurisdiction of the court.
But in cases of joinder of causes of action by or against several parties, the
right to relief must arise out of the same transaction or series of transactions and
there must be a common question of fact or law. If these requisites are present, the
totality of the demand determines the Jurisdiction of the court. (Sec. 6 of Rule 3;
Flores vs. Mallare-Phillips, 144 SCRA 377)
2) Yes, since the first cause of action for rescission of contract falls within the
Jurisdiction of the Regional Trial Court of Manila, because the subject is not capable
of pecuniary estimation, and the second cause of action for recovery of P100,000.00
is with in the jurisdiction of a lower court and arose out of the same transaction, both
may be joined in the complaint filed with the Regional Trial Court. [Sec. 5 of Rule 2)
3} I would deny the motion. D is not an indispensable party. The liability of the
insurer D is based on the contract of insurance whereas the liability of B and C is
based on quasi-delict. Hence, the plaintiff does not have a common cause of action
against all the defendants and the dismissal of the complaint against D will not affect
the complaint against B and C. (Inson us. Court of Appeals, 239 SCRA 58)
Civil procedure; judgment on the merits; contents
2004 NO. V
A. After plaintiff in an ordinary civil action before the ZZ Regional Trial Court
has completed presentation of his evidence, defendant without prior leave of court
moved for dismissal of plaintiffs complaint for insufficiency of plaintiffs evidence.
After due hearing of the motion and the opposition thereto, the court issued an
order, reading as follows: The Court hereby grants defendants motion to dismiss
and accordingly orders the dismissal of plaintiffs complaint, with the costs taxed
against him. It is so ordered.
Is the order of dismissal valid? May plaintiff properly take an appeal?
Reason. (5%)
Page 51 of 181
Civil procedure; judgment on the pleadings
1993 No (1)
In an action for recovery of a sum of money, the plaintiff averred in the
complaint that on January 15, 1990, the defendant obtained a loam from the plaintiff
in the sum of P100,000.00 which he promised to pay to the latter on or before July
15, 1990 plus interest thereon at the rate of 18% per annum from January 15, 1990
until fully paid and that the aforesaid loan has long been overdue but, despite
repeated demands, the defendant failed and refused, and still fails and refuses to
pay to the plaintiff the aforesaid sum of P100,000.00 and the accrued interest.
Answering the complaint, the defendant denied the aforequoted averments
and gave the reason for the denial his lack of knowledge or information sufficient to
form a belief as to the truth of said averments.
What is the effect of such denial? With such form of denial, what course of
action may be availed of by the plaintiff? Explain.
Answer:
The denial of the averments of the complaint claiming lack of knowledge or
information sufficient to form a belief as to the truth of said averments is not a
sufficient specific denial. The allegation in the complaint, that the defendant obtained
a loan from the plaintiff and failed and refused to pay the same, is so plainly and
necessarily within the defendants knowledge that his claim of ignorance must be
palpably not true.
Since the answer tenders no issue or otherwise admits the material
allegations of the complaint, the plaintiff may properly file a motion for judgment on
the pleadings. (Rule 19).
Civil procedure; judgment on the pleadings
1999 No. VIII
a. What are the grounds for judgment on the pleadings? (2%)
b. A's Answer admits the material allegations of B's Complaint. May the
court motu proprio render judgment on the pleadings? Explain. (2%)
c. A brought an action against her husband B for annulment of their
marriage on the ground of psychological incapacity, B filed his Answer to the
Complaint admitting all the allegations therein contained. May A move for judgment
on the pleadings? Explain. (2%)
SUGGESTED ANSWER:
a. The grounds for judgment on the pleadings are where an answer fails to
tender an issue, or otherwise admits the material allegations of the adverse party's
pleading. (Sec. 1, Rule 34 of the 1997 Rules of Civil Procedure).
b. No, a motion must be filed by the adverse party. (Sec. 1, Rule 34 of the
1997 Rules) The court cannot motu proprio render judgment on the pleadings.
c. No, because even if B's answer to A's complaint for annulment of their
marriage admits all the allegations therein contained, the material facts alleged in
the complaint must always be proved. (Sec. 1 of Rule 34.)
ANOTHER ANSWER:
c. No. The court shall order the prosecutor to investigate whether or not a
collusion between the parties exists, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not fabricated. (Sec. 3[E],
Rule 9 of the 1997 Rules) Evidence must have to be presented in accordance with
Page 52 of 181
the requirements set down by the Supreme Court in Republic vs. Court of Appeals
and Molina (268 SCRA 198.)
Civil procedure; kinds of civil actions
1994 No (1)
Distinguish:
1.a) an action in rem from an action quasi in rem.
1.b) An action quasi in rem from an action in personam.
1.c) An action in personam from a personal action.
1.d) An action in rem from a real action.
1.e) A personal action from a local action.
Answer:
1.a) An action in rem is an action against all who might be minded to make an
objection of any sort against the right sought to be established, while an action quasi
in rem is an action against an individual although the purpose of the suit is to subject
his interest in a particular property to the obligation or lien burdening the property.
The judgment rendered in actions in rem binds the whole world, while the
judgment rendered in actions quasi in rem is conclusive only between the parties.
1.b) An action quasi in rem, as stated, is an action against a person over a
particular property or claims relating thereto, while an action in personam is an
action to establish a claim against a person with a judgment that binds him
personally.
1.c) An action in personam, as stated, is an action against a person on the
basis of his personal liability while a personal action is an action where the plaintiff
seeks the recovery of personal property, the enforcement or resolution of a contract
or the recovery of damages.
1.d) An action in rem is as stated above, while a real action is an action
affecting title to real property or for the recovery of possession, or for partition or
condemnation of, or foreclosure of a mortgage on, real property. (Rule 4, sec. 2a).
1.e) A personal action is as stated above, while a local action is that which
must be brought in a particular place.
Plaintiff in a personal action may file it in the place where he resides or where
the defendant resides, while in a local action, plaintiff has no choice except to file the
action in the place where the property is located.
Civil procedure; mandamus
2001 No. III.
Petitioner Fabian was appointed Election Registrar of the Municipality of
Sevilla supposedly to replace the respondent Election Registrar Pablo 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 exercise his
functions thereto. Petitioner Fabian then filed a petition for mandamus against Pablo
but the trial court dismissed Fabians petition contending that quo warranto is the
proper remedy.
Is the court correct in its ruling? Why? (5%)
SUGGESTED ANSWER:
Page 53 of 181
Yes, the court is correct in its ruling. Mandamus will not lie. This remedy
applies only where petitioners right is founded clearly in law, not when it is doubtful.
Pablo was transferred without his consent which is tantamount to removal without
cause, contrary to the fundamental guarantee on non-removal except for cause.
Considering that Pedro continued to occupy the disputed position and exercise his
functions therein, the proper remedy is quo warranto, not mandamus. {Garces v.
Court of Appeals, 259 SCRA 99 (1996)]
ALTERNATIVE ANSWER:
Yes, the court is correct in its ruling. Mandamus lies when the respondent
unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled. (Sec. 2, Rule 65) In this case, Pablo has not unlawfully
excluded Fabian from the Office of Election Registrar. The remedy of Fabian is to
file an action of quo warranto in his name against Pablo for usurping the office. (Sec.
5, Rule 66)
Civil procedure; modes of discovery
2000 No. V.
Describe briefly at least five (5) modes of discovery under the Rules of Court.
(5%)
SUGGESTED ANSWER:
Five modes of discovery under the Rules of Court are:
(1) Deposition. By leave of court after jurisdiction has been obtained over
any defendant or over property which is the subject of the action, or without such
leave after an answer has been served, the testimony of any person, whether a
party or not, may be taken, at the instance of any party, by deposition upon oral
examination or written interrogatories. (Sec. 1, Rule 23, 1997 Rules of Civil
Procedure.)
(2) Interrogatories to parties. Under the same conditions specified in
section 1 of Rule 23, any party shall file and serve upon any adverse party written
interrogatories regarding material and relevant facts to be answered by the party
served. (Sec. 1, Rule 25, 1997 Rules of Civil Procedure.)
(3) Admission by adverse party. At any time after issues have been joined,
a party may file and serve upon any other party a written request for the admission
by the latter of the genuineness of any material and relevant document or of the
truth of any material and relevant matter of fact. (Sec. 1, Rule 26, 1997 Rules of Civil
Procedure.)
(4) Production or inspection of documents or things. Upon motion of any
party showing good cause therefore, a court may order any party to produce and
permit the inspection and copying or photographing of any designated documents,
etc. or order any party to permit entry upon designated land or property for
inspecting, measuring, surveying, or photographing the property or any designated
relevant object or operation thereon. (Sec. 1, Rule 27, 1997 Rule 27 Rules of Civil
Procedure.)
Civil procedure; modes of discovery; production and inspection of documents
2002 No. II B
B. The plaintiff sued the defendant in the RTC to collect on a promissory
note, the terms of which were stated in the complaint and a photocopy attached to
the complaint as an annex. Before answering, the defendant filed a motion for an
order directing the plaintiff to produce the original of the note so that the defendant
Page 54 of 181
could inspect it and verify his signature and the handwritten entries of the dates and
amounts.
(1) Should the judge grant the defendants motion for production and
inspection of the original of the promissory note? Why? (2%)
(2) Assuming that an order for production and inspection was issued but
the plaintiff failed to comply with it, how should the defendant plead to the alleged
execution of the note? (3%)
SUGGESTED ANSWER:
B. (1) Yes, 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). The defendant has the right to
inspect and verify the original of the promissory note so that he could intelligently
prepare his answer.
(2) The defendant is not required to deny under oath the genuineness and
due execution of the promissory note, because of the non-compliance by the plaintiff
with the order for production and inspection of the original thereof. (Rule 8, sec. 8).
ALTERNATIVE ANSWER:
B.(2) The defendant may file a motion to dismiss the complaint because of
the refusal of the plaintiff to obey the order of the court for the production and
inspection of the promissory note. [Rule 29 Sec. 3(c)].
Civil procedure; motion execution pending appeal
1990 (10)
In the same case, the trial court rendered judgment against Mario which was
received by defendants lawyer on September 3, 1990 and by plaintiffs lawyer on
September 5, 1990. Mario filed his notice of appeal on September 18, 1990. On
September 19, 1990, Norma filed a motion for execution pending appeal alleging
that the appeal is dilatory and that Mario has no valid defenses; besides, Norma is
already destitute and needs the money very badly. Mario opposed the motion for
execution pending appeal on the ground that since his appeal had been perfected
on September 18, 1990, the trial court can no longer act on the said motion.
Decide with reasons.
Answer:
The motion for execution pending appeal filed by Norma was timely because
it was filed before the perfection of the appeal of Mario. The appeal was perfected
upon the expiration of the last day to appeal by any party. (Sec. 23 of Interim Rules).
Hence , the appeal was perfected on September 20, 1990, which was the last day to
appeal by Norma because her lawyer received copy of the decision on September 5,
1990. (Balgado vs. IAC 147 SCRA 258)
Civil procedure; motion for execution pending appeal; period
1989 (6)
6.2) In a decision rendered by the RTC, plaintiffs Jose, Benigno and Nicolas
were ordered to surrender the possession of the fishpond subject matter of the
litigation in favor of the defendant Yolando. Counsel for the plaintiffs received the
decision on July 23, 1987, and appealed from it on the following day, July 24, 1987.
Counsel for the defendant received the decision earlier on July 20, 1987, and filed a
motion for execution pending appeal on July 25, 1987, which the trial court granted.
Plaintiffs went to the CA questioning the order granting the execution of
judgment. The appellate court nullified the order on the ground that motion for
Page 55 of 181
execution pending appeal was filed July 25, 1987, or after the appeal had already
been perfected. Is the decision of the CA proper? Explain.
Answer:
No. The time within which the prevailing party may file a motion for execution
pending appeal is before the perfection of the appeal. An appeal is perfected upon
the expiration of the last day of appeal by any party. The appeal of the plaintiffs,
which was filed on July 24, 1987, was perfected only on August 8, 1987, which was
the last day to appeal by the defendant. Hence the motion for execution pending
appeal filed on July 25, 1987 was filed on time. (Sec.23 of Interim Rules; Delgado
vs. IAC, 147 SCRA 258).
Civil procedure; motion for recon; extension of time
1988 (5)
5.a) The RTC of Manila rendered a judgment for the plaintiff Antonio and
against defendant Benjamin. Defendant Benjamin received the decision on July 15,
1988. On July 25, 1988, Benjamin filed a motion for extension of time for 10 days
from July 20, 1988, within which to file a motion for reconsideration. The court failed
to act on the motion for extension but Benjamin filed on August 5, 1988 his motion
for reconsideration within the 10-day extension prayed for.
Antonio, on August 15, 1988, filed a motion for the issuance of a writ of
execution alleging that the judgment had already become final and executory.
Rule on the motion with reasons.
Answer:
5.a) Motion for execution is granted. A motion for extension of time within
which to fuile a motion for reconsideration is not allowed, except in the Supreme
Court. (Habaluyas Enterprises vs. Japson 142 SCRA 208). Hence, the decision
became final and executory on July 30, 1988.
Civil procedure; motion to dismiss; bar by prior judgment
2002 No. VI.
B. Rolando filed 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 Rolando failed to prove the psychological incapacity of his wife. The judgment
having become final, Rolando filed another petition, this time on the ground that his
marriage to Carmela had been celebrated without a license. Is the second action
barred by the judgment in the first? Why? (2%)
SUGGESTED ANSWER:
B. No, the second action is not barred by the judgment in the first because
they are different causes of action. The first is for annulment of marriage on the
ground of psychological incapacity under Article 36 of the Family Code, while the
second is for declaration of nullity of the marriage in view of the absence of a basic
requirement, which is a marriage license. [Arts, 9 & 35(3), Family Code]. They are
different causes of action because the evidence required to prove them are not the
same. [Pagsisihan v. Court of Appeals, 95 SCRA 540 (1980) and other cases].
Civil procedure; motion to dismiss; condition precedent
1987 No (5)
A and B, brothers and both residents of Marikina, Metro Manila had opposing
and exclusive claims of ownership over a parcel of land located in Morong, Rizal.
Page 56 of 181
They consulted with their uncle and requested him to try to amicably settle their
dispute. The uncle failed, despite earnest efforts of all concerned to arrive at a
compromise. A thereupon filed suit for title and ownership without, however, bringing
the dispute to the Lupong Tagapayapa, for settlement and without alleging in the
complaint that previous earnest efforts towards a compromise had been exerted by
him but failed. B moved to dismiss on the ground of failure of the complaint to state
a cause of action in that (a) it did not aver that A had previously taken earnest but
futile efforts towards a compromise and (b) it did not allege that proceedings for
settlement had been filed by the plaintiff before the Lupon but no settlement
reached, both of which, according to B are conditions precedent to a cause of action
in favor of A.
If you were the counsel for A, what steps would you take and what arguments
will you advance to meet the motion to dismiss based on the asserted.
(a) failure to exert efforts at a compromise; and
(b) failure to observe the Katarungang Pambarangay Law?
Explain.
Answer:
As counsel of A, I would file an opposition to Bs motion to dismiss by
submitting an affidavit of their uncle, or presenting him as a witness, to show that
earnest efforts were made by all concerned to arrive at a compromise, but without
success. I would also argue that prior recourse to barangay conciliation would have
been futile in view of the failure of the uncle to amicably settle the dispute.
It is not necessary for me to amend the complaint to allege earnest but futile
efforts towards a compromise and prior recourse to barangay conciliation, because if
the defendant does not raise these grounds in a motion to dismiss or answer, they
are deemed waived. (Sec. 2 of Rule 9; Ebel vs. Amin, 135 SCRA 438)
However, Bs motion to dismiss is well-founded because A and B are both
residents of Marikina and prior recourse to the barangay conciliation is a pre-
condition to the filing of As complaint. (Tavora vs. Veloso, 117 SCRA 613)
Another Alternative Answer:
I would amend my complaint to allege that earnest efforts towards a
compromise have been made but without success, inasmuch as this is a condition
precedent to the existence of a cause of action. (Mendoza vs. CA, 19 SCRA 756)
Civil procedure; motion to dismiss; no cause of action
1996 No 8:
1) Plaintiff filed a complaint for damages against defendant with the court.
Defendant moved to dismiss the complaint on the ground that it states no cause of
action. The court, after hearing, issued an order deferring the resolution of the
motion to dismiss until the trial since the ground therefore does not appear to be
indubitable.
Do you agree with the ruling of the court? Explain.
Answer;
1) No, because whether or not the complaint states a cause of action is
clear from the allegations of the complaint and deferring the resolution of the motion
to dismiss because the ground therefore is not indubitable is not proper. (Foster
Parents Plan vs. Demetriou, 142 SCRA 505)
Civil procedure; motion to dismiss; no cause of action
Page 57 of 181
1999 No. II
b. A sued B to recover P500,000 based on a promissory note due and
payable on December 5, 1998. The Complaint was filed on November 30,1998, and
summons was served on B on December 7, 1998. B interposes a motion to dismiss
on the ground that the Complaint states no cause of action. If you were the judge,
how would you rule on the motion? (2%)
SUGGESTED ANSWER:
b. If I were the judge, I would grant the motion on the ground that the
complaint states no cause of action. When the complaint was filed, the promissory
note was not yet due and payable and hence the complaint was filed prematurely.
This defect was not cured by the service of the summons on the defendant after the
date when the promissory note became due and payable.
Civil Procedure; motion to dismiss; res judicata
1987 No (12)
A, the surviving husband of B, executed in favor of C a deed entitled
Contract of Sale a Retro over a certain of land registered under the Torrens
System in which the owner is described as A, married to B. Subsequently, A sued
C for reformation of the contract, alleging that what was agreed upon was really a
mortgage and not a sale a retro. As complaint was dismissed for failure to
prosecute, however, and the dismissal became final.
A year later, the children of A and B sued C for the annulment of the contract
of sale a retro, alleging that the subject land was acquired by their parents during
their marriage, hence, their father had no right to include in the sale the childrens
interest in the property as heirs of their mother, such children not having consented
to the sale.
C moved to dismiss the complaint on the ground of bar by former judgment.
Resolve the motion to dismiss. Explain.
Answer:
Motion to dismiss denied. There is no bar by former judgment because there
is no identity of causes of action. The cause of action of the children of A and B is
different from the cause of action of A. A had no right to sell the parcel of land
inasmuch as the same was conjugal property of A and B. A could legally sell only his
conjugal share of said property and could not legally sell the conjugal share of his
deceased wife which inherited by their children without their consent.
Civil procedure; motion to dismiss; res judicata
1989 (6)
6.1) Evelyn filed a complaint for a sum of money against Joan but the
complaint was later dismissed for failure to prosecute within a reasonable length of
time. Thereafter, Evelyn filed another case based on the same facts against Joan.
Joan moved to dismiss the same on the ground that the cause of action is barred by
prior judgment (res judicata). Evelyn opposed the motion claiming that res judicata
has not set in since Joan was not served with summons and the complaint in the
first case was earlier dismissed, so that the trial court never acquired jurisdiction
over her person and consequently, over the case. How would you decide the motion
of Joan? Explain.
Answer:
The motion to dismiss is denied. One of the essential requisites of res judicata
is jurisdiction over the parties. Inasmuch as Joan was not served with the summons
Page 58 of 181
in the first case which was earlier dismissed, the court did not acquire jurisdiction
over her person and, hence, the dismissal was without prejudice to the filing of
another action against her. (Republic Planters Bank vs. Molina, Sept. 28, 1988)
Civil procedure; motion to dismiss; res judicata
2000 No. IV.
AB, as mother and in her capacity as legal guardian of her legitimate minor
son, CD, brought action for support against EF, as father of CD and ABs lawfully
wedded husband. EF filed his answer denying his paternity with counterclaim for
damages. Subsequently, AB filed a manifestation in court that in view of the denial
made by EF, it would be futile to pursue the case against EF. AB agreed to move for
the dismissal of the complaint, subject to the condition that EF will withdraw his
counter claim for damages. AB and EF filed a joint motion to dismiss. The court
dismissed the case with prejudice. Later on, minor son CD, represented by AB, filed
another complaint for support against EF. EF filed a motion to dismiss on the ground
of res judicata.
A. Is res judicata a valid ground for dismissal of the second complaint?
Explain your answer (3%)
B. What are the essential requisite of res judicata? (2%)
SUGGESTED ANSWER:
(a) No, res judicata is not a defense in an action for support even if the first
case was dismissed with prejudice on a joint motion to dismiss. The plaintiffs
mother agreed to the dismissal of the complaint for support in view of the
defendants answer denying his paternity with a counterclaim for damages. This was
in the nature of a compromise of the right of support which is prohibited by law. (Art,
2035, Civil Code; De Asis v. Court of Appeals, 303 SCRA 176 [1999]).
(b) The essential requisites of res judicata are:
(1) the judgment or order rendered must be final;
(2) the court rendering the same must have jurisdiction of the subject
matter and of the parties;
(3) it must be a judgment or order on the merits; and
(4) there must be between the two cased identity of parties, identity of
subject matter, and identity of causes of action. (San Diego v. Cardona, 70 Phil, 281
[1940])
Civil procedure; motions; 3-day notice rule
1992 No, XV:
In a civil case, plaintiff filed on April 19. 1991, an ex parte motion for
execution of judgment. Upon receiving it. the presiding judge examined the record
and issued on the same day an order granting the motion since, as stated in his
order, "the judgment is now final and executory because the sheriff's return shows
that the decision was properly served upon the defendant on April 3, 1991, and no
appeal was perfected on time." The defendant then filed a motion to set aside the
order of execution, contending that the order is void on two grounds: (1) It violates
the rule on three-day notice for motions; and (2) the date of service, April 3. 1991,
entered in the sheriffs return is a typographical error because service was actually
made on April 8, 1991, so that when the court ordered execution on April 19,1991,
the decision was not yet final and executory.
At the hearing of the motion, the defendant cited several cases on the need
to notify the adverse party before a contentious motion can be resolved. He further
Page 59 of 181
argued that the sheriff's return, being hearsay, has to be confirmed by the sheriff on
the witness stand when an entry therein is assailed, because in that situation the
proponent of the return has the burden of proving Its correctness. This cannot be
done unless the sheriff testifies in court and is correspondingly subjected to cross-
examination. The sheriff was not presented in court as a witness.
Decide the motion to set aside the order of execution, with reasons.
Suggested Answer;
Motion to set aside order of execution denied.
A motion for execution of a final and executory Judgment is not a contentious
motion that requires a three-day notice before resolution. Such a motion may be
granted ex parte. [Far Eastern Surety & Insurance Co. vs. Hernandez, 67 SCRA
256)
The sheriffs return is a public document made in the performance of a duty by
a public officer and is prima facie evidence of the facts stated therein. [Sec. 23 of
Rule 132) Hence there was no need for the sheriff to testify unless defendant had
presented evidence contradicting the sheriff's return.
Civil procedure; new-trial; grounds
1998 No XVIII
Give the requisites of:
1. Newly Discovered Evidence; and [3%]
SUGGESTED ANSWER;
1. The requisites of newly discovered evidence are: (a) the evidence was
discovered after the trial; (b) such evidence could not have been discovered and
produced at the trial with reasonable diligence; and (c) that it is material, not merely
cumulative, corrobarative or impeaching, and is of such weight that, if admitted, will
probably change the judgment. (Commissioner of Internal Revenue vs. A. Soriano
Corporation, 267 SCRA 313.)
ALTERNATIVE ANSWER:
New and material evidence has been discovered which the accused could
not with reasonable diligence have discovered and produced at the trial, and which if
introduced and admitted, would probably change the judgment. (Sec. 2[b] of Rule
121.)
Civil procedure; partial summary judgment; when appealable
1987 No (2)
After joinder of issues, the plaintiff moved fro partial summary judgment,
specifically on two of the five causes of action asserted in the complaint. Despite
opposition by the defendant who contended that the remedy of summary of
judgment was not available because there were genuine issues of fact which could
not justifiably be resolved by affidavits and counter-affidavits, the court rendered a
partial summary of judgment as prayed for. The defendant moved for
reconsideration ten days after notice of the decision, but the motion was denied. In
the same order of denial, the court set for pre-trial conference the three other causes
of action and the defendants counter-claims.
Can the defendant appeal the partial summary of judgment without awaiting
the judgment in the three remaining causes of action? If he can, when? If he cannot,
what is his remedy? Explain.
Answer:
Page 60 of 181
The partial summary judgment is final and appealable without awaiting the
judgment in the three remaining causes of action, if the following requisites are
present:
(1) The two causes of action are separate and independent causes of action
and the defendants counterclaim does not arise out of the transaction or occurrence
which is the subject matter of said causes of action. In which case, judgment may be
rendered pursuant to the rule of judgment at various stages. (Sec. 5 of Rule 36)
(2) The affidavits, depositions and admissions submitted by the plaintiff show
that, except as to the amount of damages, there is no genuine issue as to any
material fact and the plaintiff is entitled to a judgment as a matter of law (sec. 3 of
Rule 34).
The defendant may appeal within the remaining period or six days from notice
of the decision, since nine days had elapsed when he moved for reconsideration ten
days after notice thereof.
Another Alternative Answer:
The partial summary judgment is interlocutory and hence not immediately
appealable, if the three other causes of action are related to the two other causes of
action subject of the partial summary judgment and the defendants counterclaim
arises out of the same transaction or occurrence which is the subject matter of the
two causes of action. In such case, the partial summary judgment does not fully
adjudicate the case and a trial is necessary (Sec. 4 of Rule 34). Moreover, there
may be genuine issue of facts that remain to be tried. Guevarra vs. CA, 124 SCRA
297).
The defendant may wait for the final judgment to be rendered on all the
causes of action and the counterclaim and appeal therefrom within 15 days from
notice thereof. In the event the court orders execution of its partial summary
judgment, the defendant may file a petition for certiorari to set aside said order.
Civil procedure; permissive counterclaim
1996 No. 5:
1) A filed an action against B for recovery of possession of apiece of land. B
in his answer specifically denied A's claim and interposed as counterclaim the
amount of P150,000.00, arising from another transaction, consisting of the price of
the car he sold and delivered to A and which the latter failed to pay.
Is B's counterclaim allowed under the rules? Explain.
Answer;
1) B's counterclaim is a permissive counterclaim inasmuch as it arises out of
another transaction that is the subject-matter of A's complaint. It is allowed if it is
within the jurisdiction of the court. (Sec. 8 of Rule 6)
Alternative Answer:
The question does not state in what court A filed the action. If the assessed
value of the property does not exceed P20,000.00, the action may be filed in a
Municipal Trial Court, in which case the counterclaim of P150,000.00 may not be
allowed inasmuch as it is not within its jurisdiction.
If the assessed value does not exceed P50,000.00, the action may be filed in
a Metropolitan Trial Court, in which case the counterclaim of P150,000.00 may be
allowed inasmuch as it is within its jurisdiction. (Sec. 33 of BP 129 as amended by
RA No. 7691)
Page 61 of 181
If the assessed value exceeds P50,000.00, the action may be filed in a
Regional Trial Court. If filed in Metro Manila, the counterclaim of P150,000.00 may
not be allowed, but if filed outside Metro Manila, it may be allowed. (Sec. 19 of BP
129 as amended by RA 7691)
Civil procedure; permissive joinder of parties
1989 (1)
1.2) Marissa brought an action against Dely and Inday in one complaint
before the RTC of Manila. As her first cause of action, Marissa alleges that Dely
purchased from her on various occasions truck tires worth P12,000 but refused to
pay the said amount despite several demands. As her second cause of action,
Marissa alleges that Inday likewise purchased from her on several occasions truck
tires worth P10,000 but refused to pay the said amount despite repeated demands.
The total amount of Marissas demands against the two is P22,000. Both Dely and
Inday now separately move to dismiss the complaint on the ground that the RTC has
no jurisdiction over the case. How would you resolve these motions? Explain.
Answer:
I would grant said motions to dismiss, because the totality rule is subject to
the rule on permissive joinder of parties. In this case, there is misjoinder of parties
defendant inasmuch as the claims against the two defendants are separate and
distinct from each other and cannot be joined in a single complaint. Neither claims
falls within the jurisdiction of the RTC. (Flores vs. Mallare-Philipps, 142 SCRA 377).
Civil procedure; petition for certiorari
2000 No. XV.
AB mortgaged his property to CD. AB failed to pay his obligation and CD filed
an action for foreclosure of mortgage. After trial, the court issued an Order granting
CDs prayer for foreclosure of mortgage and ordering AB to pay CD the full amount
of the mortgage debt including interest and other charges not later than 120 days
from date of receipt of the Order. AB received the Order on August 10, 1999. No
other proceeding took place thereafter. On December 20, 1999, AB tendered the full
amount adjudged by the court to CD but the latter refused to accept it on the ground
that the amount was tendered beyond the 120-day period granted by the court. AB
filed a motion in the same court praying that CD be directed to receive the amount
tendered by him on the ground that the Order does not comply with the provisions of
Section 2, Rule 68 of the Rules of Court which give AB 120 days from entry of
judgment, and not from date of receipt of the Order. The court denied his motion on
the ground that the Order had already become final and can no longer be amended
to conform with Section 2, Rule 68. Aggrieved, AB files a petition for certiorari
against the Court and CD. Will the petition for certiorari prosper? Explain. (5%)
SUGGESTED ANSWER:
Yes. The court erred in issuing an Order granting CDs prayer for foreclosure
of mortgage and ordering AB to pay CD the full amount of the mortgage debt
including interest and other charges not later than 120 days from receipt of the
Order. The court should have rendered a judgment which is appealable. Since no
appeal was taken, the judgment became final on August 25, 1999, which is the date
of entry of judgment. (Sec 2, Rule 36, 1997 Rules of Civil Procedure) Hence, AB
had up to December 24, 1999 within which to pay the amount due. (Sec. 2, Rule 68,
1997 Rules of Civil Procedure) The court gravely abused its discretion amounting to
lack or excess of jurisdiction in denying ABs motion praying that CD be directed to
receive the amount tendered.
Civil procedure; petition for certiorari; motion for recon
Page 62 of 181
1996 No. 10:
1) Is the failure to file a motion for reconsideration in the lower court as a
condition precedent for the granting of the writ of certiorari or prohibition always
fatal? Explain.
Answer:
1) No, because there are exceptions, such as the following:
a) The question of jurisdiction was squarely raised before and decided by
the respondent court.
b) Public interest Is involved
c) Case of urgency
d) Order is patent nullity
e) Issue is purely of Jaw
f) Deprivation of right to due process (Cochingyan vs. Cloribel 76 SCRA
361; Palea us. PAL, 111 SCRA 215)
Civil procedure; petition for relief
2002 No. VII.
A. May an order denying the probate of a will still be overturned after the
period to appeal therefrom has lapsed? Why? (3%)
SUGGESTED ANSWER:
A. Yes, an order denying the probate of a will may be overturned after the
period to appeal therefrom has lapsed. A petition for relief may be filed on the
grounds of fraud, accident, mistake or excusable negligence within a period of sixty
(60) days after the petitioner learns of the judgment or final order and not more than
six (6) months after such judgment or final order was entered [Rule 38, secs. 1 & 3;
Soriano v. Asi, 100 Phil. 785 (1957)]. An action for annulment may also be filed on
the ground of extrinsic fraud within four (4) years from its discovery, and if based on
lack of jurisdiction, before it is barred by laches or estoppel. (Rule 47, secs. 2 & 3)
Civil procedure; petition for relief; injunction
2002 No. VI.
A. A default judgment was rendered by the RTC ordering D to pay P a
sum of money. The judgment became final, but D filed a petition for relief and
obtained a writ of preliminary injunction staying the enforcement of the judgment.
After hearing, the RTC dismissed Ds petition, whereupon P immediately moved for
the execution of the judgment in his favor. Should Ps motion be granted? Why?
(3%)
SUGGESTED ANSWER:
A. Ps immediate motion for execution of the judgment in his favor should
be granted because the dismissal of Ds petition for relief also dissolves the writ of
preliminary injunction staying the enforcement of the judgment, even if the dismissal
is not yet final. [Golez v. Leonidas, 107 SCRA 187 (1981)].
Civil procedure; pleadings
1992 No III:
Is a "motion to dismiss with counterclaim" sanctioned by the Rules of Court?
a) If your answer is YES, state your reasons.
Page 63 of 181
b) If your answer is NO, give your reasons and state what the defendant
should instead file in court to preserve his counterclaim while maintaining the ground
asserted in his motion to dismiss as an issue that should be the subject of a
preliminary hearing.
Suggested Answer:
No, because a counterclaim is contained in an answer and not in a motion to
dismiss.
What the defendant should do is to plead the ground of his motion to dismiss
(except improper venue) as an affirmative defense in his answer, together with his
counterclaim, and ask for a preliminary hearing on his affirmative defense as if a
motion to dismiss had been filed. (Sec. 5 of Rule 16)
Civil procedure; pleadings; reply
1996 No. 5:
2) A sued B for damages. B in his answer alleged as new matter the issue
of prescription. No reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the new matter set
up by B? Explain.
Answer;
2) No, because if no reply is filed, all the new matters alleged in the answer
are deemed controverted. (Sec. 11 of Rule 6)
Civil procedure; pleadings; verification
1996 No. 2;
1) What pleadings are allowed by the rules?
2) What pleadings must be verified?
3) What is the significance of a lawyer's signature in the pleadings?
Answer;
1) The pleadings allowed by the rules are the complaint, the answer, the
counterclaim, the crossclaim, the reply, the third-party (fourth-party etc.) complaint.
(Sec. 2 of Rule 6)
2) Those required by law to be verified, such as:
a) Forcible Entry and Unlawful Detainer. (Sec. 1 of Rule 70)
b) Denial of genuineness and due execution of a written instrument which is
the basis of an action or defense. (Sec. 8 of Rule 8)
c) Denial of allegations of usury. (Sec. 1 of Rule 9)
d) Petitions for certiorari, prohibition and mandamus. (Rule 65)
e) Pleadings in Summary Procedure.
3) The signature of a lawyer constitutes a certification by him that he has read
the pleading; that to the best of his knowledge, information and belief there Is good
ground to support it; and that it is not interposed for delay. (Sec. 5 of Rule 7)
Civil procedure; prejudicial question
2000 No. XIV.
BB files a complaint for ejectment in the Metropolitan Trial Court on the
ground of non-payment of rentals against JJ. After two days, JJ files in the Regional
Trial Court a complaint against BB for specific performance to enforce the option to
Page 64 of 181
purchase the parcel of land subject of the ejectment case. What is the effect of JJs
action on Bs complaint? Explain. (5%)
SUGGESTED ANSWER;
There is no effect. The ejectment case involves possession de facto only.
The action to enforce the option to purchase will not suspend the action of ejectment
for non-payment of rentals. (Willman Auto Supply Corp. v. Court of Appeals, 208
SCRA 108 [1992]).
Civil procedure; pre-trial
1989 (3)
3.1) Is pre-trial mandatory in all trial courts? Explain.
Answer:
Pre-trial is mandatory in all trial courts in civil cases. (Sec.1 of Rule 30).
However, in criminal cases, pre-trial may be held only when the accused and his
counsel agree. (Sec.1 of Rule 118).
In summary procedure, a preliminary conference is held in both civil and
criminal cases. (Sec.6 and 13)
3.2) May a party who is present at the pre-trial of a civil case and assisted by
counsel still be declared non-suited or as in default? Explain.
Answer:
No, because the only ground to declare a party non-suited or considered as in
default at the pre-trial is failure to appear thereat. (Sec.2 of Rule 20)
Other Acceptable Answers:
(1) A party who refuses to obey an order of the court under the rules on
depositions and discovery may be declared non-suited or as in default. (Sec.3(c) of
Rule 29)
(2) A plaintiff who fails to prosecute may be declared non-suited or as in
default. (Sec.3 of Rule 17)
(3) Under Circular 1-89 on mandatory continuous trial, failure to file a pre-trial
brief is a ground to be declared non-suited or as in default.
Civil procedure; pre-trial
2001 No. VI.
Lilio filed a complaint in the Municipal Trial Court of Lanuza for the recovery
of a sum against Juan. The latter filed his answer to the complaint serving a copy
thereof on Lilio.
After the filing of the answer of Juan, whose duty is it to have the case set for
pre-trial? Why? (5%)
SUGGESTED ANSWER:
After the filing of the answer of Juan, the PLAINTIFF has the duty to promptly
move ex parte that the case be set for pre-trial. (Sec. 1, Rule18, 1997 Rules of Civil
Procedure). The reason is that it is the plaintiff who knows when the last pleading
has been filed and it is the plaintiff who has the duty to prosecute.
ALTERNATIVE ANSWER:
In the event the plaintiff files a reply, his duty to move that the case be set for
pre-trial arises after the reply has been served and filed.
Civil procedure; pre-trial; effect of absence of parties
Page 65 of 181
1992 No. VI:
At a pre-trial hearing in the Regional Trial Court of which the plaintiff and the
defendant, as well as their respective attorneys of record were duly notified, only
plaintiffs attorney appeared but without the requisite power of attorney authorizing
htm to fully and effectively represent plaintiff at the pre-trial hearing. Because of the
absence of the defendant and his counsel, plaintiffs attorney moved in open court to
have the defendant declared as in default.
Under the circumstances, what should the court do? Discuss fully.
Suggested Answer:
The court should deny the motion to have the defendant declared as in
default and dismiss the action on the ground that only the plaintiffs attorney
appeared but without the requisite power of attorney to fully and effectively represent
plaintiff at the pre-trial hearing. [Home Insurance Company us. U.S. Lines Co.. 21
SCRA 865)
Another Acceptable Answer:
Considering the fact that plaintiffs attorney appeared, the court should make
the dismissal without prejudice, or reset the pre-trial hearing with notice to the
parties.
Civil procedure; procedure in CA; reception of evidence
1987 No (6)
An appellant in a civil case pending in the CA filed a motion for the reception
of specified evidence for the purpose of clarifying facts already in the record in order
that the court would be better able to resolve relevant factual issues raised in the
appeal.
Will the motion prosper? Why?
Answer:
No. The CA may receive evidence in appealed cases only when a motion for
new trial on the ground of newly discovered evidence is granted by it.
Civil procedure; provisional remedies
1996 No. 9:
1) What is the purpose of provisional remedies?
2) A sold five thousand piculs of sugar to B, payable on demand. Upon
delivery of the sugar to B, however, the latter did not pay its purchase price. After
the lapse of some time from the date of delivery of the sugar to B. A brought an
action for the recission of the contract of sale and as incident of this action, asked for
the manual delivery (replevin) of the sugar to him.
May the remedy of replevin prayed for by A be granted? Explain.
3) ABC Cattle Corporation is the holder of a pasture lease agreement since
1990 covering 1,000 hectares of pasture land surrounded with fences. In 1992, D
was issued a pasture lease agreement covering 930 hectares of land adjacent to
ABC's. A relocation survey showed that the boundaries of D's land extended 580
hectares into ABC's pasture land. Thereupon, D removed ABC's fence and started
to set up his own boundary fence 580 hectares into ABC's pasture area. As ABC
persistently blocked D's advances into its property, D filed a complaint with
preliminary injunction to enj oin ABC from restricting him in the exercise of his lease
rights.
If you were the judge, would you issue a preliminary injunction? Explain.
Page 66 of 181
4) In a case for sum of money, the trial court granted ex-parte the prayer for
issuance of a writ of preliminary attachment. The writ was immediately implemented
by the sheriff. The defendant filed a motion to discharge the writ of preliminary
attachment on the ground that it was issued and implemented prior to service of
summons. Plaintiffs opposed arguing that under the Rules of Court, the writ can be
applied for and granted at the commencement of the action or at any time thereafter.
In any event, plaintiff argues that the summons which was eventually served cured
whatever irregularities that might have attended the enforcement of the writ.
How would you rule on the conflicting contentions of the parties?
Answer:
1) The purpose of provisional remedies is to preserve or protect the rights or
interests of the parties during the pendency of the principal action. (Calo us. Roldan,
76 Phil. 445)
2) Yes, because A is entitled to recover possession of the sugar upon the
filing of the necessary affidavit and bond in double the value of the property.
Alternative Answer:
No, because A must state in his affidavit that he is the owner of the property
claimed or entitled to the possession thereof. Upon delivery of the sugar to B,
ownership thereof was transferred to him. The failure of B to pay the purchase price
did not affect the transfer of ownership. Since A is not the owner of the sugar,
replevin should not be granted.
3) No, because a preliminary injunction may not be issued to take property
out of the possession and control of one party and place it in the control of another
whose right has not been clearly established.
4) The issuance of the writ of preliminary attachment ex-parte was valid but
the implementation thereof was not effective without the service of summons. The
subsequent service of summons did not cure the irregularities that attended the
enforcement of the writ. The writ of attachment should be re-served after the service
of summons. (Davao Light and Power Co., Inc. Vs. Court of Appeals, 204 SCRA
343; Onate vs. Abrogar, 241 SCRA 659)
Civil procedure; provisional remedies
1999 No. XV
a. What are the provisional remedies under the rules? (2%)
b. Distinguish attachment from garnishment. (2%)
c. What is replevin? (2%)
d. In a case, the property of an incompetent under guardianship was in
custodia legis. Can it be attached? Explain. (2%)
e. May damages be claimed by a party prejudiced by a wrongful
attachment even if the judgment is adverse to him? Explain. (2%)
f. Before the RTC, A was charged with rape of his 16-year old daughter.
During the pendency of the case, the daughter gave birth to a child allegedly as a
consequence of the rape. Thereafter, she asked the accused to support the child,
and when he refused, the former filed a petition for support pendente lite. The
accused, however, insists that he cannot be made to give such support arguing that
there is as yet no finding as to his guilt. Would you agree with the trial court if it
denied the application for support pendente lite? Explain. (2%)
SUGGESTED ANSWER:
Page 67 of 181
a. The provisional remedies under the rules are preliminary attachment,
preliminary injunction, receivership, replevin, and support pendente lite. (Rules 57 to
61, Rules of Court).
b. Attachment and garnishment are distinguished from each other as
follows: Attachment is a provisional remedy that effects a levy on property of a party
as security for the satisfaction of any judgment that may be recovered, while
garnishment is a levy on debts due the judgment obligor or defendant and other
credits, including bank deposits, royalties and other personal property not capable of
manual delivery under a writ of execution or a writ of attachment.
c. Replevin or delivery of personal property consists in the delivery, by
order of the court, of personal property by the defendant to the plaintiff, upon the
filing of a bond. (Calo v. Roldan, 76 Phil. 445 [1946])
d. 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 filed with the proper court and notice of the
attachment served upon the custodian of such property. (Sec. 7, last par., Rule 57,
1997 Rules of Civil Procedure.)
e. Yes, damages may be claimed by a party prejudiced by a wrongful
attachment even if the judgment is adverse to him. This is authorized by the Rules.
A claim, for damages may be made on account of improper, irregular or excessive
attachment, which shall be heard with notice to the adverse party and his surety or
sureties. (Sec. 20, Rule 57, 1997 Rules of Civil Procedure; Javellana v. D. O. Plaza
Enterprises Inc., 32 SCRA 281.)
f. No. The provisional remedy of support pen-dente lite may be granted by the
RTC in the criminal action for rape. In criminal actions where the civil liability
includes support for the offspring as a consequence of the crime and the civil aspect
thereof has not been waived, reserved or instituted prior to its filing, the accused
may be ordered to provide support pendente lite to the child born to the offended
party allegedly because of the crime. (Sec. 6 of Rule 61.)
Civil procedure; provisional remedies; attachment
1990 (6)
On June 18, 1989, Mario executed a promissory not for P50,000.00 payable
to Norma not later that June 18, 1990. Mario defaulted in the payment of the
promissory note and a collection suit was filed against him before the RTC of
Quezon City.
After the complaint had been filed, Norma discovers that Marios petition for
the issuance of an immigrant visa was approved by the US Embassy, and that Mario
had been disposing of all his properties.
What remedy may be availed of by Norma to protect her interest? Explain
your answer.
Answer:
Norma should file a verified application for the issuance of a writ of
preliminary attachment on the ground that Mario is about to depart from the
Philippines and had been disposing of all his properties with the intent to defraud his
creditors. (Sec. 1(a) and (e) of Rule 57).
Civil procedure; provisional remedies; attachment
1991 No. VI:
Page 68 of 181
Upon failure of X to pay the promissory note for P 100,000.00 which he
executed in favor of Y, the latter filed a complaint for a sum of money with
application for the issuance of a writ of preliminary attachment alleging therein that X
is about to dispose of his properties in fraud of his creditors.
(a) May the court issue the writ immediately upon the filing of the complaint
and before service of summons?
Answer;
(a) Yes, because Sec. 1 of Rule 57 provides that a writ of preliminary
attachment may be obtained at the commence-ment of the action.
Another Answer;
In the case of Sievert v. CA, 168 SCRA692, it was ruled that a hearing on the
application for a writ of preliminary attachment may not be held without prior service
of summons.
(b) If service of summons is indispensable before the writ may be issued, is
hearing on the application necessary?
Answer;
(b) No, because a writ of preliminary attachment may be issued ex-parte.
(Toledo v. Judge Burgos, 164 SCRA 513; Cosiquien v. CA. 188 SCRA 619}
(c) If the writ was issued and X filed a motion to quash the attachment, may
the motion be granted ex-parte?
Answer:
(c) No, because whether the basis of the motion to quash the attachment is a
cash deposit or counterbond on the ground that the same was improperly or
irregularly issued, a hearing is necessary. (Secs. 12 and 13 of Rule 57; Mindanao
Savings & Loan Association v. CA, 172 SCRA 480)
Civil procedure; provisional remedies; attachment
1993 No (14)
On May 2, 1992, Precision, Inc. filed a verified complaint for recovery of a
sum of money against Summa, Inc. The complaint contained an ex-parte application
for a writ of preliminary attachment.
On May 3, 1993, the trial court issued an order granting the ex-parte
application and fixing the attachment bond at P2 Million.
On May 8, 1992, the attachment bond having been submitted by Precision,
Inc. the writ of preliminary attachment was issued.
On May 9,1992, summons together with a copy of the complaint, the writ of
preliminary attachment and a copy of the attachment bond, was served on Summa,
Inc., and pursuant to the writ, the sheriff attached properties belonging to Summan,
Inc.
On July 6, 1992, Summa, Inc. filed a motion to discharge the attachment for
alleged lack of jurisdiction to issue the same because, at the time the order of
attachment and the writ of preliminary attachment were issued (on May 3, and 8,
1992, respectively), the court has not yet acquired jurisdiction over the person of
Summa, Inc. It argued that a writ of preliminary attachment may not issue ex-parte
against a defendant before acquisition of jurisdiction over the latters person by
service of summons or his voluntary submission to the courts authority.
Should the motion be granted? Why?
Page 69 of 181
Answer:
No. because a writ of preliminary attachment may be issued ex-parte against
a defendant before acquisition of jurisdiction over the latters person by service of
summons or his voluntary submission the Courts authority. Sec. 1 of Rule 57
provides that the remedy may be granted at the commencement of the action or at
any time thereafter. However, the writ does not bind and affect the defendant until
and unless jurisdiction over his person is eventually obtained by the court. Hence,
when the summons, together with a copy of the complaint, the writ of preliminary
attachment and a copy of the attachment bond, was served on the defendant, the
sheriff validly attached properties belonging to Summa, Inc.
Civil procedure; provisional remedies; attachment
2002 No. III A
A. The plaintiff obtained a writ of preliminary attachment upon a bond of
P1 million. The writ was levied on the defendants property, but it was discharged
upon the posting by the defendant of a counterbond in the same amount of P1
million. After trial, the court rendered judgment finding that the plaintiff 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 plaintiff
and its surety to pay jointly to the defendant P1.5 million as actual damages, P0.5
million as moral damages and P0.5 million as exemplary damages.
Evaluate the soundness of the judgment from the point of view of procedure.
(5%)
SUGGESTED ANSWER:
A. The judgment against the surety is not sound if due notice was not
given to him of the applicant for damages. (Rule 57, sec. 20)
Moreover, the judgment against the surety cannot exceed the amount of its
counterbond of P1 million.
Civil procedure; provisional remedies; attachment; injunction
2001 No. XII.
a) May a writ of preliminary attachment be issued ex-parte? Briefly state
the reason(s) for your answer. (3%)
b) May a writ of preliminary injunction be issued ex-parte? Why? (3%)
SUGGESTED ANSWER:
a) Yes, an order of attachment may be issued ex-parte or upon motion
with notice and hearing. (Sec. 2 of Rule 57, Rules of Civil Procedure) The reason
why the order may be issued ex parte is: that requiring 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. (Mindanao Savings and Loan Association, Inc. v. Court of Appeals, 172
SCRA 480).
b) No, a writ of preliminary injunction may not be issued ex parte. As
provided in the Rules, no preliminary injunction shall be granted without hearing and
prior notice to the party or person sought to be enjoined. (Sec. 5 of Rule 58, 1997
Rules of Civil Procedure) The reason is that a preliminary injunction may cause
grave and irreparable injury to the party enjoined.
Civil procedure; provisional remedies; injunction
2003 No. XI.
Page 70 of 181
Can a suit for injunction be aptly filed with the Supreme Court to stop the
President of the Philippines from entering into a peace agreement with the National
Democratic Front? (4%)
SUGGESTED ANSWER:
No, a suit for injunction cannot aptly be filed with the Supreme Court to stop
the President of the Philippines from entering into a peace agreement with the
National Democratic Front, which is a purely political question. (Madarang v.
Santamaria, 37 Phil. 304 [1917]). The President of the Philippines is immune from
suit.
Civil procedure; provisional remedies; preliminary attachments
1988 (7)
C, with D as bondsman, secured the attachment of the properties of
defendant, X, who by filing a counterbond, had the attachment dissolved.
Defendant X after judgment rendered in his favor now holds D liable on his
bond for the damages he (X) suffered for the unwarranted suit and the wrongful and
malicious attachment.
D moves to dismiss the damage suit on the ground that the dissolution of the
attachment rendered the attachment bond void and ineffective under Sec.12 of Rule
57, which provides that upon the filing of the counterbond, the attachment is
discharged or dissolved.
(a) Decide the case with reason.
(b) Who may issue an order of attachment and what are the contents of such
order?
Answer:
(a) If the claim for damages was made in the same action before the
judgment became final and executory, I would deny the motion to dismiss the claim
for damages, because the dissolution of the attachment by the filing of a
counterbond does not invalidate the attachment bond, which remains liable for
damages suffered by reason of the wrongful attachment. (Calderon vs. IAC, Nov.
11, 1987).
However, if the claim for damages was made in a separate action (which the
question seems to imply because of the word damage suit), I would grant the
motion to dismiss, because such a claim can only be made in the same action. (Sec.
20 of Rule 57; Pioneer Insurance and Surety vs. Hontanosas, 78 SCRA 447).
(b) An order of attachment may be granted by the judge of any court in which
the action is pending, or by a Justice of the CA or the SC, and must require the
sheriff or other proper officer of the province to attach all the property of the party
against whom it is issued within the province not exempt from execution, or so much
thereof as may be sufficient to satisfy the applicants demand, the amount of which
must be stated in the order, unless such party makes deposits or gives bond as
herein after provided in an amount sufficient to satisfy such demand, besides costs,
or in an amount equal to the value of the property which is about to be attached.
Several order may be issued at the same time to the sheriffs or other proper officers
of different provinces. (Sec. 2 of Rule 57)
Civil procedure; provisional remedies; receivership
2001 No. XIII.
Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a
furniture factory with a large number of machinery and equipment. During the
Page 71 of 181
pendency of the foreclosure suit, Joaquin learned from reliable sources that Jose
was quietly and gradually disposing of some of his machinery and equipment to a
businessman friend who was also engaged in furniture manufacturing such that from
confirmed reports Joaquin gathered, the machinery and equipment left with Jose
were no longer sufficient to answer for the latters mortgage indebtedness. In the
meantime judgment was rendered by the court in favor of Joaquin but the same is
not yet final.
Knowing what Jose has been doing. If you were Joaquins lawyer, what
action would you take to preserve whatever remaining machinery and equipment are
left with Jose? Why? (5%)
SUGGESTED ANSWER:
To preserve whatever remaining machinery and equipment are left with Jose,
Joaquins lawyer should file a verified application for the appointment by the court of
one or more receivers. The Rules 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 insufficient to discharge the mortgage debt. (Sec. 1 of Rule 59, 1997 Rules
of Civil Procedure).
Civil procedure; provisional remedies; special civil action; replevin vs
foreclosure
1989 (8)
8.1) Mia obtained a loan to buy machineries for her garment business. She
executed a chattel mortgage over said machineries. Due to business reverses, she
defaulted in the payment of her obligation. Mario, the mortgagee, sought the delivery
of the machineries so that they can be sold at the foreclosure sale but Mia refused,
contending that it would result in the stoppage of her business. Mario seeks your
advice regarding his problem. What is legal opinion on the matter?
Answer:
I would advise Mario either to file an action for the recovery of said
machineries with an application for a writ of replevin or delivery of personal property
upon the filing of the bond double the value thereof as a preliminary step to an
extrajudicial foreclosure, or to file an action of judicial foreclosure of chattel
mortgage. (Northern Motors vs. Herrera, 49 SCRA 392; Rule 60; Sec.8 of Rule 68).
Inasmuch as Mia executed a chattel mortgage over said machineries, she would be
estopped from opposing the writ of replevin on the ground that only personal
property may be subject thereof. (Makati Leasing and Finance Corp. vs. Wearever
Textile Mills, Inc., 122 SCRA 296)
Civil procedure; provisional remedies; support
2001 No. X.
Modesto was accused of seduction by Virginia, a poor, unemployed young
girl, who has a child by Modesto. Virginia was in dire need of pecuniary assistance
to keep her child, not to say of herself, alive. The 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 take two
long years because of the heavily clogged court calendar before the judgment may
be rendered.
If you were the lawyer of Virginia, what action should you take to help Virginia
in the meantime especially with the problem of feeding the child? (5%)
SUGGESTED ANSWER:
Page 72 of 181
To help Virginia in the meantime, her lawyer should apply for support
pendente lite as provided in the Rules. In criminal actions where the civil liability
included support for the offspring as a consequence 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 offended party.
(Sec. 6 of Rule 61, 1997 Rules of Civil Procedure)
Civil procedure; provisional remedies; TRO
1988 (19)
(a) What is a Temporary Restraining Order (TRO)?
(b) How does it differ from a writ of preliminary injunction?
(c) What is the duration of a TRO issued by (I) RTC, (ii) CA, and (iii) the SC?
Answer:
(a) A Temporary Restraining Order is the order to maintain the subject of the
controversy in status quo until hearing for the application for preliminary injunction
can be held. (Board of Transportation vs. Castro 125 SCRA 410)
(b) A Writ of Preliminary Injunction cannot be granted without notice to the
defendant or adverse party, whereas a TRO maybe issued if it shall appear from the
facts shown by affidavits or by the verified complaint that great and irreparable injury
would result to the applicant before the matter can br heard on notice. (BP 224)
A writ of preliminary injunction requires a bond to be filed by the applicant.
(Sec. 4 of Rule 58), whereas a TRO does not.
(c) Duration of TRO issued by:
(1) RTC - 20 days (BP 224)
(2) CA - 20 days (Delbros Corp. vs. IAC, April 12, 1988)
(c) SC - no time limit
Civil procedure; provisional remedies; TRO
1989 (8)
8.2) What is the life span of a TRO issued by the trial court? May this life span
be extended? Explain fully.
Answer:
The life span of a restraining order is twenty (20) days. This life span may not
be extended.
A preliminary injunction may no longer be granted without notice to the
adverse party. However, if it appears that great or irreparable injury would result to
the applicant before his application for preliminary injunction could be heard on
notice, the judge may issue a TRO with a limited life span of 20 days from date of
issue. If no preliminary injunction is granted within said period, the TRO would
automatically expire on the 20
th
day. If before the expiration of the 20-day period, the
application for preliminary injunction is denied, the TRO would also be deemed
automatically vacated. (Sec.5 of Rule 5 as amended by BP 224; Dionisio vs. CFI of
South Coatabato, 124 SCRA 222).
Civil Procedure; provisional remedies; TRO
2001 No. IX.
An application for a writ of preliminary injunction with a prayer for a temporary
restraining order is included in a complaint and filed in a multi-sala Regional Trial
Page 73 of 181
Court consisting of Branches 1,2,3 and 4. Being urgent in nature, the Executive
Judge, who was sitting in Branch 1, upon the filing of the aforesaid application
immediately raffled the case in the presence of the judges of Branches 2,3 and 4.
The case was raffled to Branch 4 and judge thereof immediately issued a temporary
restraining order.
Is the temporary restraining order valid? Why? (5%)
SUGGESTED ANSWER:
No. It is only the Executive Judge who can issue immediately a temporary
restraining order effective only for seventy-two (72) hours from issuance. No other
Judge has the right or power to issue a temporary restraining order ex parte. The
Judge to whom the case is assigned will then conduct a summary hearting to
determine whether the temporary restraining order shall be extended, but in no case
beyond 20 days, including the original 72-hour period. (Sec. 5 of Rule 58, 1997
Rules of Civil Procedure)
ALTERNATIVE ANSWER:
The temporary restraining order is not valid because the question does not
state that the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury. (Sec. 5 of Rule 58, 1997 Rules of Civil Procedure)
Civil procedure; real parties in interest
1989 (5)
5.1) Isagani drove the car of his father, Pedro, and left it in the parking area of
the Fairview motel where he was a guest. Isagani entrusted the key of the car to a
security guard hired by the Prime Resort Company, the owner/operator of the motel.
Emilio, pretending to be the brother of Isagani, got the key from the security guard
and drove the car away. The car was never recovered. Later, Pedro sued Prime
Resort for the value of the carnapped vehicle plus damages. Prime Resort sets up
the defense that Pedro has no interest in the case, hence, has no cause of action,
as he was not the guest of the motel but his son, Isagani. Is the defense tenable?
Explain.
Answer:
No, because Pedro is the owner of the car which was carnapped due to the
fault or negligence of the security guard of the owner/operator of the motel in which
his son, Pedro, was a guest. Hence, Pedro is a real party in interest. (Dilson
Enterprises vs. IAC, Feb.27, 1989).
Civil procedure; remedies
1988 (3)
Defendant Xanthe filed a motion to dismiss plaintiff Yogis complaint before
the RTC.
3.a) The court grants the motion to dismiss.
Explain the remedies or procedure to be resorted to or to be pursued by
plaintiff to have the order of dismissal reversed and corrected finally.
3.b) The court denies the motion to dismiss.
3.b.1) May Xanthe appeal the denial? Reasons.
3.b.2) How and on what ground or grounds may defendant Xanthe may bring
the denial of his motion to dismiss to the appellate court? Explain.
Answer:
Page 74 of 181
3.a) The remedy is to appeal to the CA from the order of dismissal within 15
days from notice thereof by filing a notice of appeal with the RTC and serving a copy
thereof on the adverse party.
However, if only a question of law is involved, the remedy is to file a petition
for review on certiorari with the SC within 15 days from notice of the order or the
denial of his motion for reconsideration and serving a copy thereof on the RTC and
on the adverse party. (Laxamana vs. CA, 143 SCRA 643)
3.b.1) No, because the order of denial is merely interlocutory, and only final
judgments or orders are subject to appeal.
3.b.2) Defendant X may bring the denial of his motion to dismiss to the
appellate (superior) courts by filing a petition for certiorari on the ground of lack or
excess of jurisdiction or grave abuse of discretion. (Newsweek vs. IAC, 142 SCRA
171)
Civil procedure; remedies
1996 No. 6:
2) X sued Y for breach of contract with damages. After Y filed his answer,
the parties amicably settled. The court rendered judgment based on said
compromise. Within the period to perfect the appeal, Y filed a motion for new trial
under Rule 37 alleging vitiation of his consent due to mistake and prayed that the
agreement be set aside.
Resolve the motion.
Answer:
2) A judgment by compromise is not appealable. Hence a motion for new trial
is not proper. Y should file a motion to set aside the agreement on the ground of
mistake. (Reyes vs. Ugarte, 75 Phil. 505), or he could file a petition for relief under
Rule 38 of the Rules of Court or file a new action to annul the agreement within the
prescriptive period (Saminiada vs. Mata, 92 Phil. 426). (not in regalado)
Civil procedure; remedies
1998 No V.
What are the available remedies of a party declared In default:
1. Before the rendition of judgment; [1%]
2. After judgment but before its finality; and [2%1
3. After finality of judgment? [2%] SUGGESTED ANSWER;
The available remedies of a party declared in default are as follows:
1. Before the rendition of judgment (a) he may file a motion under oath to
set aside the order of default on the grounds of fraud, accident, mistake or
excusable negligence and that he has a meritorious defense (Sec. 3[b], Rule 9,
1997 Rules of Civil Procedure); and if it is denied, he may move to reconsider, and if
reconsideration is denied, he may file the special civil action of certiorari for grave
abuse of discretion tantamount to lack or excess of the lower court's jurisdiction.
(Sec. 1, Rule 65, Rules of Court) or (b) he may file 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 expiration of the time to answer. (Matute vs. Court of Appeals, 26
SCRA 768; Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)
2. After judgment but before its finality, he may file a motion for new trial on
the grounds of fraud, accident, mistake, excusable negligence, or a motion for
reconsideration on the ground of excessive damages, insufficient evidence or the
Page 75 of 181
decision or final order being contrary to law (Sec. 2, Rule 37. 1907 Rules of Civil
Procedure): and thereafter. If the motion to denied, appeal to available under Rules
40 or 41, whichever to applicable.
3. After finality of the judgment, there are three ways to assail the judgment,
which are: (a) a petition for relief under Rule 38 on the grounds of fraud, accident,
mistake or excusable negligence; (b) annulment of judgment under Rule 47 for
extrinsic fraud or lack of jurisdiction; or (c) certiorari if the judgment to void on its
face or by the judicial record. (Balangcad vs. Justices of the Court of Appeals, G.R.
No. 83888. February 12, 1992, 206 8CRA 171 and other cases).
Civil procedure; remedies; appeal
1991 No. III;
On 3 January 1991, the Mayon Corp. filed a complaint for foreclosure of real
estate mortgage against one of its sales agents. A, who was discovered to have
Incurred a shortage in his accounts. The mortgage was executed to guarantee
faithful compliance with his duties and responsibilities as a sales agent. Impleaded
in the complaint as co-defendants were A's co-mortgagors, B and C.
Acting on defendants' motion to dismiss, the court dismissed the complaint in
an Order dated 15 February 1991, a copy of which was received by Mayon Corp. on
18 February 1991. On 15 March 1991, and definitely within a reasonable period from
receipt of the dismissal order, Mayon Corp. filed with the Supreme Court a special
civil action for certiorari under Rule 65 of the Rules of Court alleging therein that the
trial court acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction in granting the motion to dismiss.
(a) Should the Supreme Court give due course to the petition?
Answer:
(a) No, because the proper remedy was an appeal from the order of
dismissal. The special civil action of certiorari cannot take the place of a lost appeal.
(Limpot v CA, 170 SCRA 367)
Civil procedure; remedies; appeal
1999 No. IX
a. When is an appeal from the Regional Trial Court to the Court of
Appeals deemed perfected? (2%}
b, XXX received a copy of the RTC decision on June 9, 1999; YYY
received it on the next day, June 10, 1999. XXX filed a Notice of Appeal on June 15,
1999. The parties entered into a compromise on June 16, 1999. On June 13, 1999,
YYY, who did not appeal, filed with the RTC a motion for approval of the
Compromise Agreement. XXX changed his mind and opposed the motion on the
ground that the RTC has no more jurisdiction. Rule on the motion assuming that
the records have not yet been forwarded to the CA. (2%)
SUGGESTED ANSWER:
a. An appeal from the Regional Trial Court to the Court of Appeals is
deemed perfected as to the appellant upon the filing of a notice of appeal in the
Regional Trial Court 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 filed in due
time. (Sec. 9, Rule 41 of the 1997 Rules)
b. The contention of XXX that the RTC has no more jurisdiction over the
case is not correct because at the time that the motion to approve the compromise
Page 76 of 181
had been filed, the period of appeal of YYY had not yet expired. Besides, even if that
period had already expired, the records of the case had not yet been forwarded to
the Court of Appeals. The rules provide that in appeals by notice of appeal, the
court loses jurisdiction over the case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the other parties. (Sec. 9, third par.,
Rule 41 of the 1997 Rules)
Thie rules also provide that prior to the transmittal of the record, the court
may, among others, approve compromises. (Sec. 9, fifth par., Rule 41 of the 1997
Rules) (Note: June 13, the date of the filing of the motion for approval of the
Compromise Agreement, appears to be a clerical error)
Civil procedure; remedies; appeal to SC; appeals to CA
2002 No. XV.
A. What are the modes of appeal to the Supreme Court/ (2%)
B. Comment on a proposal to amend Rule 122, Section 2(b), in relation to
Section 3(c), of the Revised Rules of Criminal Procedure to provide for appeal to the
Court of Appeals from the decisions of the Regional Trial Court in criminal cases,
where the penalty imposed is reclusion perpetua or life imprisonment, subject to the
right of the accused to appeal to the Supreme Court. (3%)
SUGGESTED ANSWER:
A. The modes of appeal to the Supreme Court are: (a) appeal by certiorari
on pure questions of law under Rule 45 through a petition for review on certiorari;
and (b) ordinary appeal in criminal cases through a notice of appeal from convictions
imposing reclusion perpetuator life imprisonment or where a lesser penalty is
involved but for offenses committed on the same occasion or which arose out of the
same occurrence that gave rise to the more serious offense. (Rule 122, sec. 3)
Convictions imposing the death penalty are elevated through automatic review.
B. There is no constitutional objection to providing in the Rules of Court
for an appeal to the Court of Appeals from the decisions of the RTC in criminal
cases where the penalty imposed is reclusion perpetua or life imprisonment subject
to the right of the accused to appeal to the Supreme Court, because it does not
deprive the Supreme Court of the right to exercise ultimate review of the judgments
in such cases.
Civil procedure; remedies; decisions of SC division
1990 (20)
After the First Division of the Supreme Court decided a case, the losing party
sought a reconsideration from the Supreme Court en banc.
Is the action taken by the said losing party proper? Explain your answer.
Answer:
No, because the Supreme Court en banc is not an appellate court to which
decisions or resolutions of a division may be appealed. However, a motion for
reconsideration may be considered by the Supreme Court en banc if three members
of the Division are of the opinion that the same merits the attention of the Court en
banc and a majority of the Court en banc decides to consider it. (Circular No. 2.89,
Feb. 7, 1989)
Civil procedure; remedies; fianl and executory judgments
1995 No. 4:
1. May a judgment which has become final and executory still be
questioned, attacked or set aside? If so, how? If not, why not? Discuss fully.
Page 77 of 181
2. A decision of the Regional Trial Court adverse to Delia was received by
her counsel on 13 January 1994. As Delia was leaving for Canada she forthwith
Instructed her counsel to appeal because according to her she was prevented from
fully presenting her case in court through fraudulent acts of the prevailing party.
When Delia returned from abroad on 1 August 1994 she discovered that her case
was not appealed as her counsel had died a day after she left. Moreover, the other
party has filed a motion for issuance of a writ of execution which remains pending in
court.
As the new counsel of Delia, what course or courses of action will you pursue
to protect her interest? Discuss fully.
Answer:
I. There are three ways by which a final and executory judgment may be
attacked or set aside, namely:
a) By petition for relief from judgment under Rule 38 on the grounds of fraud,
accident, mistake or excusable negligence within sixty days from learning of the
judgment and not more than six months from its entry;
b) By direct action to annul or enjoin the enforcement of the Judgment when
the defect is not apparent on its face or from the recitals contained in thejudgment;
c) By direct action, such as certiorari or by a collateral attack against the
judgment which is void on its face or when the nullity of the judgment is apparent by
virtue of its own recitals. (Macabingkil vs. People's Homestte and Housing
Corporation. 72 SCRA 326)
2. I would file an action for annulment of the judgment with the Court of
Appeals on the ground of extrinsic and collateral fraud because my client was
prevented from fully presenting her case in court through fraudulent acts of the
prevailing party. (Sec. 9(2), BP 129)
Alternative Answer;
I would file a petition for relief under Rule 38 on the ground that my client's
failure to appeal on time was due to the death of her lawyer one day after she left for
Canada.
Civil procedure; remedies; modes of appeal
1992 No. XI:
By sheer coincidence, Atty. Lopez was on the same day, June 30, 1991,
served with adverse decisions of the Court of Appeals and the Regional Trial Court.
In each case, he filed a motion for reconsideration simultaneously on July 10, 1991.
He received notices of the denial of his two motions for reconsideration on August
15, 1991.
If Atty. Lopez decides to appeal in each of the two cases
(a) What mode of appeal should he pursue in each case?
Suggested Answer:
(1) From the Court of Appeals to Supreme Court - appeal by certiorari under
Rule 45,
(2) From the Regional Trial Court to Court of Appeals -ordinary appeal on
questions of fact and law.
(3) From the Regional Trial Court to Supreme Court -appeal by certiorari on
questions of law only.
(b) How would he perfect each appeal?
Page 78 of 181
Suggested Answer:
(1) From Court of Appeals to Supreme Court, by filing a petition for review on
certiorari with the Supreme Court and serving a copy on the Court of Appeals and
the adverse party.
(2) From Regional Trial Court to Court of Appeals, by filing a notice of appeal
with Regional Trial Court and serving a copy on the adverse party.
(3) From Regional Trial Court to Supreme Court, by filing a petition for review
on certiorari with Supreme Court and serving a copy on the lower court and the
adverse party.
(c) Within what time should each appeal be perfected?
Suggested Answer:
(1) From Court of Appeals to Supreme Court, on or before August 30, 1991,
or fifteen days from notice of the denial of the motion for reconsideration. (Sec. 1 of
Rule 45)
(2) From Regional Trial Court to Court of Appeals, on or before August 21,
1991, or the remaining period of 6 days counted from notice of denial, since from
June 30 to July 10, nine days had elapsed. (De Las Alas vs. Court of Appeals, 83
SCRA 200)
(3) From Regional Trial Court to Supreme Court, on or before August 30,
1991, as in appeal from Court of Appeals to Supreme Court, (RA 5440)
Civil procedure; remedies; modes of appeal
1994 No (5)
State the steps for bringing up to the Supreme Court:
1. a decision of the Municipal Trial Court of Manila in a ejectment case.
2. A decision of the Board of Assessment Appeals of the Province of Rizal.
3. A decision of the Regional Trial Court, Quezon City, in a case originally
filed with said court and where the appeal involves a pure question of law.
Answer:
1. To bring up a decision of the Municipal; Trial Court of Manila in an
ejectment case to the Supreme Court, it must first be appealed to the Regional Trial
Court by notice of appeal, and the decision of the Regional Trial Court may be
appealed to the Court of Appeals through a petition for review, after which the
decision of the Court of Appeals may be elevated to the Supreme Court through a
petition for review on certiorari. The decision of the Regional Trial Court may be
appealed directly to the Supreme Court on questions of law only through a petition
for review on certiorari.
2. To bring up a decision of the Board of Assessment Appeals of the
Province of Rizal to the Supreme Court, it must first be brought to the Central Board
of Assessment Appeals, after which the decision of the CBAA may be brought to the
Supreme Court in a special civil action for certiorari.
3. To bring up to the Supreme Court a decision of the Regional Trial Court,
Quezon City, in a case originally filed with said court and where the appeal involves
a pure question of law, a petition for review on certiorari should be filed.
Civil procedure; remedies; period
1998 No VII
Page 79 of 181
The Regional Trial Court (RFC) affirmed the appealed decision of the
Municipal Trial Court (MTC). You are the counsel of the defeated party and he tells
you to appeal the RTC's decision.
1. What mode of appeal will you adopt? [2%]
2. Within what time and in what court should you file your appeal? [3%]
SUGGESTED ANSWER:
1. The mode of appeal is by petition for review under Rule 42, 1997 Rules
of Civil Procedure.
2, The period of appeal is within fifteen [15] days from notice of the
decision subject of the appeal or of the denial of a motion for new trial or
reconsideration filed in due time. The appeal shall be filed in the Court of
Appeals. (Sec.1, Rule 42, 1997 Rules of Civil Procedure.)
Civil procedure; remedies; petition for relief
1990 (11)
A money judgment against Ernesto in favor of Geraldine was rendered by the
RTC of Binan, Laguna. The decision was received by Atty. Maco, counsel for
Ernesto, on March 4, 1990. Atty. Maco did not inform Ernesto about the judgment.
On March 10, 1990, Atty. Maco migrated with his entire family to California, USA.
Entry of judgment was made on March 20, 1990. Ernesto learned of the decision
only on June 17, 1990 when the court sheriff arrived at his residence to levy on his
properties. You are consulted by Ernesto on July 31, 1990.
Assuming Ernesto has a meritorious case, what legal remedies you may avail
of in order to protect his interest? Explain your answer.
Answer:
I will file a petition for relief from judgment with the RTC of Bian, Laguna.
Such a petition should be filed within 60 days after the petitioner learns of the
judgment and not more than 6 months after its entry. (Sec.3 of Rule 38). Since the
entry of judgment was made on March 20, 1990, the period of 6 months had not yet
expired on July 31, 1990 when I was consulted by Ernesto.
While the period of 60 days is ordinarily counted from notice to the lawyer,
this case may be an exception because of the gross irresponsibility of Atty. Maco
who did not inform Ernesto about the judgment and migrated to California. Hence,
the said period should be counted from July 17, 1990 when Ernesto actually learned
of the judgment. (PHHC vs. Tiongco, 12 SCRA 471).
Another Acceptable Answer:
Inasmuch as the petition for relief from judgment is no longer available
because of the lapse of the period of 60 days counted from March 4, 1990 when the
decision was received by Atty. Maco, counsel for Ernesto, and notice to the lawyer is
notice to the client (Olivares vs Leola, 97 Phil, 253), the only available remedy is for
Ernesto to file an action for damages and disbarment proceedings against Atty.
Maco (Sanchez vs. Tupas, 158 SCRA 459).
Civil procedure; remedies; petition for review
1990 (5)
Suppose that instead of filing a motion for reconsideration with the RTC, Juan
filed a notice of appeal with the RTC stating that he is appealing to the CA on the
ground that the judgment is contrary to law and the facts of the case.
As a lawyer for Maria, on what procedural ground will you oppose the appeal?
Page 80 of 181
Explain your answer.
Answer:
I would oppose the appeal on the ground that the proper procedure is the
filing of petition for review with the CA. (Sec. 22 of BP 129). The filing of a notice of
appeal is proper if the case was originally filed with the RTC.
Civil procedure; remedies; Rule 45; Rule 65
1990 (9)
(a) Suppose the motion to dismiss in the preceding problem is granted, what
is the remedy of Norma?
(b) If the motion to dismiss is denied, what is the recourse of Mario?
Explain your answers.
Answer:
(a) The remedy of Norma from the order of dismissal is an appeal by certiorari
under Rule 45 of the Rules of Court.
Another Acceptable Answer:
(a) Another remedy is for Norma to file a motion for reconsideration with the
request to have another served on Mario.
Answer:
(b) The recourse of Mario from the order of denial is not an immediate appeal
because the order is interlocutory. However, since the issue raised is lack of
jurisdiction over his person, he may file a petition for certiorari under Rule 65 of the
Rules of Court. (Newsweek vs. IAC, 142 SCRA 171)
Civil procedure; reply
2000 No. I-a
a) X files a complaint in the Regional Trial Court for the recovery of a sum
of money with damages against Y. Y files his answer denying liability under the
contract of sale and praying for the dismissal of the complaint on the ground of lack
of cause of action because the contract of sale was superseded by a contract of
lease, executed and signed by X and Y two weeks after the contract of sale was
executed. The contract of lease was attached to the answer. X does not file a reply.
What is the effect of the non-filing of a reply? Explain. (3%)
SUGGESTED ANSWER:
(a) A reply is generally optional. If it is not filed, the new matters alleged in
the answer are deemed controverted. (Sec. 10 of Rule 6, 1997 Rules of Civil
Procedure). However, since the contract of lease attached to the answer is the basis
of the defense, by not filing a reply denying under oath the genuineness and due
execution of said contract, the plaintiff is deemed to have admitted the genuineness
and due execution thereof. (Secs. 7 and 8 Rule 8, 1997 Rules of Civil Procedure;
Toribio v. Bidin, 132 SCRA 162 [1985]).
Civil procedure; Rule 45 vs Rule 65
1999 No. X
a. Distinguish a petition for certiorari as a mode of appeal from a special
civil action for certiorari. (2%)
b. May a party resort to certiorari when appeal is still available? Explain.
(2%)
Page 81 of 181
SUGGESTED ANSWER:
a. A petition for review on certiorari 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 Rule 45 and is filed from a judgment or final
order of the Regional Trial Court, the Sandiganbayan or the Court of Appeals, within
fifteen (15) days from notice of the judgment appealed from or of the denial of the
motion for new trial or reconsideration filed in due time on questions of law only
(Secs. 1 and 2); special civil action for certiorari is governed by Rule 65 and is filed
to annul or modify judgments, orders or resolutions rendered or issued without or in
excess of jurisdiction or with grave abuse of discretion tantamount to lack or excess
of jurisdiction, when there is no appeal nor any plain, speedy and adequate remedy
in the ordinary course of law, to be filed within sixty (60) days from notice of the
judgment, order or resolution subject of the petition. (Secs. 1 and 4.)
ADDITIONAL ANSWER;
1) In appeal by certiorari under Rule 45, the petitioner and respondent are the
original parties to the action and the lower court is not impleaded. In certiorari, under
Rule 65, the lower court is impleaded.
2) In appeal by certiorari, the filing of a motion for reconsideration is not
required, while in the special civil action of certiorari, such a motion is generally
required.
SUGGESTED ANSWER:
b. No, because as a general rule, certiorari is proper if there is no appeal.
(Sec. 1 of Rule 65.) However, if appeal is not a speedy and adequate remedy,
certiorari may be resorted to. (Echaus v. Court of Appeals, 199 SCRA 381.)
Certiorari is sanctioned, even if appeal is available, on the basis of a patent,
capricious and whimsical exercise of discretion by a trial judge as when an appeal
will not promptly relieve petitioner from the injurious effects of the disputed order
(Vasquez vs. Robilla-Alenio, 271 SCRA 67)
Civil procedure; Rule 45 vs Rule 65
1988 (12)
12.a) What are the contents of a petition for review by certiorari under Rule 45
of the Rules of Court from a judgment of the CA to the SC?
12.b) When must this petition for review under paragraph (a) hereof be filed?
How does this period differ from that required for filing the requisite petition in a
special civil action for certiorari?
12.c) State the three (3) grounds upon which the SC may dismiss the petition
under paragraph (a) herein-above.
Answer:
12.a) The petition shall contain a concise statement of the matters involved,
the assignment of errors made by the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the
judgment sought to be reviewed, together with the twelve (12) copies of the record
on appeal, if any, and of the petitioners brief as filed in the CA. A verified statement
of the date when notice of judgment and denial of the motion for reconsideration, if
any, were received shall accompany the petition. (Sec. 2 of Rule 45)
12.b) Within 15 days from notice of judgment or denial of the motion for
reconsideration. (Sec. 1 of Rule 45)
There is no reglementary period for filing a petition for certiorari as a special
Page 82 of 181
civil action. Only a reasonable period is required.
12.c) The 3 grounds are that the appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised are too unsubstantial to require
consideration. (Sec. 3 of Rule 45)
Civil procedure; Rule 45 vs Rule 65
1991 No. III;
(b) Distinguish certiorari as a special civil action under Rule 65 from
certiorari as a mode of appeal under Rule 45 of the Rules of Court.
Answer:
(b) Certiorari as a special civil action is within the jurisdiction of the Supreme
Court, the Court of Appeals and the Regional Trial Courts, whereas certiorari as a
mode of appeal is within the Jurisdiction only of the Supreme Court.
The grounds for certiorari under Rule 65 are lack or excess of Jurisdiction or
grave abuse of discretion, whereas the grounds for certiorari under Rule 45 are
errors of law.
The court or judge should be joined as indispensable party defendant in
certiorarl under Sec. 5 of Rule 65, but need not be Joined in certiorari under Rule
45. (MWSS v. CA, 143 SCRA 623; Philippine Global Communications, inc. v.
Relova, 145 SCRA 385)
Civil procedure; Rule 65; motion for recon
1989 (10)
10.2) well-settled is the rule that before a petition for certiorari under Rule 65
of the Rules of Court may be filed a motion for reconsideration must be filed to give
an opportunity to the judge to correct an error, if any. An omission to comply with
this procedural requirement justifies the denial of the writ applied for. When may a
motion for reconsideration be dispensed with?
Answer:
A motion for reconsideration may be dispensed with in the following cases:
(1) Where the question of jurisdiction has been squarely raised, argued
before, submitted to, and met and decided by the respondent court;
(2) Where the questioned order is a patent nullity;
(3) Where there is a deprivation of the fundamental right to due process.
(Cochingyan vs. Cloribel)
Another Acceptable Answer:
(1) Where the issue is purely of law;
(2) Where public interest is involved;
(3) In cases of urgency. (PALEA vs. PAL, 111 SCRA 215)
Civil procedure; special civil action; ejectment
1997 No. 5:
On 10 January 1990, X leased the warehouse of A under a lease contract
with a period of five years. On 08 June 1996, A filed an unlawful detainer case
against X without a prior demand for X to vacate the premises.
(a) Can X contest his ejectment on the ground that there was no prior
demand for him to vacate the premises?
Page 83 of 181
(b) In case the Municipal Trial Court renders judgment in favor of A, is the
judgment immediately executory?
Answer:
(a) Yes. X can contest his ejectment on the ground that there was no prior
demand to vacate the premises. (Sec. 2 of Rule 70; Casilan vs.Tomassi l0 SCRA
261; Iesaca vs.Cuevas. 125 SCRA 335).
(b) Yes, because the judgment of the Municipal Trial Court against the
defendant X is immediately executory upon motion unless an appeal has been
perfected, a supersedeas bond has been filed and the periodic deposits of current
rentals. If any, as determined by the judgment will be made with the appellate court.
(Sec. 8 of former Rule 70; Sec. 19 of new Rule 70).
Alternative Answer:
(a) Yes, X can contest his ejectment on the ground that since he continued
enjoying the thing leased for fifteen days after the termination of the lease on
January 9,1995 with the acquiescence of the lessor without a notice to the contrary,
there was an implied new lease. (Art. 1670. Civil Code).
Civil procedure; special civil action; ejectment
1998 No II
In an action for unlawful detainer in the Municipal Trial Court (MTC),
defendant X raised in his Answer the defense that plaintiff A is not the real owner of
the house subject of the suit. X filed a counterclaim against A for the collection of a
debt of P80,000 plus accrued interest of P15,000 and attorney's fees of P20,000.
1. Is X's defense tenable? [3%]
2. Does the MTC have jurisdiction over the counterclaim? [2%]
SUGGESTED ANSWER:
1. No. X's defense is not tenable if the action is filed by a lessor against a
lessee. However, if the right of possession of the plaintiff depends on his ownership
then the defense is tenable.
2. The counterclaim is within the jurisdiction of the Municipal Trial Court
which does not exceed P100,000, because the principal demand is P80,000,
exclusive of interest and attorney's fees. (Sec. 33, B.P. Big. 129, as amended.)
However. Inasmuch as all actions of forcible entry and unlawful detainer are subject
to summary procedure and since the counterclaim is only permissive, it cannot be
entertained by the Municipal Court. (Sees. 1AU) and 3(A) of Revised Rule on
Summary Procedure.)
Civil procedure; special civil action; foreclosure
2003 No. VI.
A borrowed from the Development Bank of the Philippines (DBP) the amount
of P1 million secured by the titled land of his friend B who, however, did not assume
personal liability for the loan. A defaulted and DBP filed an action for judicial
foreclosure of the real estate mortgage impleading A and B as defendants. In due
course, the court rendered judgment directing A to pay the outstanding account of
P1.5 million (principal plus interest) to the bank. No appeal was taken by A on the
Decision within the reglementary period. A failed to pay the judgment debt within the
period specified in the decision. Consequently, the court ordered the foreclosure
sale of the mortgaged land. In that foreclosure sale, the land was sold to the DBP for
P1.2 million. The sale was subsequently confirmed by the court, and the
Page 84 of 181
confirmation of the sale was registered with the Registry of Deeds on 05 January
2002.
On 10 January 2003, the bank filed an ex-parte motion with the court for the
issuance of a writ of possession to oust B from the land. It also filed a deficiency
claim for P800,000.00 against A and B. the deficiency claim was opposed by A and
B.
(a) Resolve the motion for the issuance of a writ of possession.
(b) Resolve the deficiency claim of the bank. 6%
SUGGESTED ANSWER:
(a) In judicial foreclosure by banks such as DBP, 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 (or registration of the sale). However, the
purchaser at the auction sale has the right to obtain a writ of possession after the
finality of the order confirming the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791. The
General Banking Law of 2000). The motion for writ of possession, however, cannot
be filed ex parte. There must be a notice of hearing.
(b) The deficiency claim of the bank 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.
Civil procedure; special civil action; petition for certiorari
1991 No. III;
(c) May a special civil action for certiorari prosper in case of a denial of a
motion to dismiss or a motion to quash? If so, in what instance or instances?
Answer:
(c) Yes, if it can be shown that the trial court acted without or in excess of
jurisdiction or with grave abuse of discretion, since the order of denial is interlocutory
and not immediately appealable. (Manalo v. Mariano, 69 SCRA 800; Tacas v.
Cariaso, 72 SCRA 171; Newsweek v. IAC, 142 SCRA 171)
Civil procedure; special civil action; petition for certiorari
2002 No. IV.
The defendant was declared in default in the RTC for his failure to file an
answer to a complaint for a sum of money. On the basis of the plaintiffs ex parte
presentation of evidence, judgment by default was rendered against the defendant.
The default judgment was served on the defendant on October 1, 2001. on October
10, 2001, he files a verified motion to lift the order of default and to set aside the
judgment. In his motion, the defendant alleged that, immediately upon receipt of the
summon, he saw the plaintiff and confronted him with his receipt evidencing his
payment and that the plaintiff assured him that he would instruct his lawyer to
withdraw the complaint. The trial court denied the defendants motion because it was
not accompanied by an affidavit of merit. The defendant filed a special civil action for
certiorari under Rule 65 challenging the denial order.
A. Is certiorari under Rule 65 the proper remedy? Why? (2%)
B. Did the trial court abuse its discretion or act without or in excess of its
jurisdiction in denying the defendants motion to lift the order of default judgment?
Why? (3%)
SUGGESTED ANSWER:
Page 85 of 181
A. The petition for certiorari under Rule 65 filed by the defendant is the
proper remedy because appeal is not a plain, speedy and adequate remedy in the
ordinary course of law. In appeal, the defendant in default can only question the
decision in the light of the evidence of the plaintiff. The defendant cannot invoke the
receipt to prove payment of his obligation to the plaintiff.
ALTERNATIVE ANSWER:
A.Under ordinary circumstances, the proper remedy of a party wrongly
declared in default is either to appeal from the judgment by default or file a petition
for relief from judgment. [Jao, Inc. v. Court of Appeals, 251 SCRA 391 (1995)
SUGGESTED ANSWER:
B. Yes, the trial court gravely abused its discretion or acted without or in
excess of jurisdiction in denying the defendants motion because it was not
accompanied by a separate affidavit of merit. In his verified 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 plaintiff and confronted him with his receipt
showing payment and that the plaintiff assured him that he would instruct his lawyer
to withdraw the complaint. Since the good defense of the defendant was already
incorporated in the verified motion, there was not need for a separate affidavit of
merit. [Capuz v. Court of Appeals, 233 SCRA 471 (1994); Mago v. Court of Appeals,
303 SCRA 600 (1999)].
Civil procedure; special civil action; quo warranto
2001 No. XI.
A group of businessmen formed an association in Cebu City calling itself
Cars C. to distribute / sell cars in said city. It did not incorporate itself under the law
nor did it have any government permit or license to conduct its business as such.
The Solicitor General filed before a Regional Trial Court in Manila a verified petition
for quo warranto questioning and seeking to stop the operations of Cars Co. The
latter filed a motion to dismiss the petition on the ground of improper venue claiming
that its main office and operations are in Cebu city and not in Manila.
Is the contention of Cars Co. correct? Why? (5%)
SUGGESTED ANSWER:
No. As expressly provided in the Rules, when the Solicitor General
commences the action for quo warranto, it may be brought in a Regional Trial Court
in the City of Manila, as in this case, in the Court of Appeals or in the Supreme
Court. (Sec. 7 of Rule 66, 1997 Rules of Civil Procedure)
Civil procedure; special civil action;contempt
1993 No (13)
In an action for injunction and damages, the plaintiff applied for a temporary
restraining order or (TRO) and preliminary injunction. Upon filing the complaint, the
court issued a TRO and set the application for preliminary injunction for hearing.
As the 20-day lifetime (January 3-23,1993) of the TRO was about to expire,
the court issued and order dated Jan 21,1993 extending the effectivity of the TRO
for another twenty days (January 24,1993 to February 13,1993).
On March 5,1993, the court, after hearing, denied the application for
preliminary injunction.
Supposing that on January 28,1993, the defendant committed an act in
violation of the TRO, is he guilty of indirect contempt?Explain..
Answer:
Page 86 of 181
No. because in order to constitute indirect contempt, the writ disobeyed must
be lawful. In this case, the court had no authority to extend the effectivity of the TRO
for another twenty days. Consequently, the defendant did not commit indirect
contempt by committing an act on January 28,1993 in violation of TRO. The
extension was null and void.
Civil procedure; special civil actions; interpleader
1988 (8)
LTA, Inc. Is the lessee of the building own by Mr. Tenorio paying rental of
P10,000 a month. The owner died on May 10, 1988 and since then, LTA has not
paid the monthly rentals, now amounting to P40,000, because two women are both
claiming to be widows of Tenorio and are demanding the rental payments.
What legal action may LTAs counsel may take, before what court, and
against whom to protect LTAs interest. Explain.
Answer:
LTAs counsel should file a complaint for interpleader against the two women
claiming to be widows of Tenorio before the RTC so that said court may determine
who is entitled to the rental payments. The RTC has jurisdiction because the amount
involved is P40,000.
Another Answer:
Consignation and deposit should be included because it involves rentals
(although this is not an ejectment case) to protect LTAs interest.
Civil procedure; special civil actions; interpleader
1996 No. 10:
3) A lost the cashier's check she purchased from XYZ Bank. Upon being
notified of the loss, XYZ Bank immediately issued a "STOP PAYMENT" order. Here
comes B trying to encash that same cashier's check but XYZ Bank refused payment.
As precautionary measure, what remedy may XYZ Bank avail of with respect
to the conflicting claims of A and b over the cashier's check? Explain.
Answer:
3) XYZ Bank may file a complaint for interpleader so that the court may
resolve the conflicting claims of A and B over the cashier's check.
Civil procedure; special civil actions; interpleader; declaratory relief
1998 No VIII.
1. What is an action for interpleader? [2%|
2. A student files action for declaratory relief against his school to
determine whether he deserves to graduate with Latin honors. Is this action
tenable? [3%]
SUGGESTED ANSWER:
1. An action for interpleader is a special civil action which is filed whenever
conflicting claims upon the same subject matter are or may be made against a
person who claims no interest whatever in the subject matter, or an interest which in
whole or in part is not disputed by the claimants, in which case, he may bring the
action against the conflicting claimants to compel them to interplead and litigate their
several claims among themselves. (Sec 1, Rule 62,1997 Rules of Civil Procedure.)
2. No. The action for declaratory relief is not tenable. Whether the student
deserves to graduate with Latin honors does not fall within the matters subject to
Page 87 of 181
declaratory relief, namely, a deed, will contract or other written instrument, or a
statute, executive order or regulation, ordinance, or any other governmental
regulation. (Sec. 1 of Rule 63, 1997 Rules of Civil Procedure.)
Civil procedure; subpoena
1997 No 4;
In an admiralty case filed by A against Y Shipping Lines (whose principal
offices are in Manila) in the Regional Trial Court, Davao City, the court issued a
subpoena duces tecum directing Y, the president of the shipping company, to
appear and testify at the trial and to bring with him several documents.
(a) On what valid ground can Y refuse to comply with the subpoena duces
tecum?
(b) How can A take the testimony of Y and present the documents as
exhibits other than through the subpoena from the Regional Trial Court?
Answer:
(a) Y can refuse to comply with the subpoena duces tecum on the ground
that he resides more than 50 (now 100} kilometers from the place where he is to
testify, (Sec. 9 of former Rule 23; Sec. 10 of new Rule 21).
(b) A can take the testimony of Y and present the documents as exhibits by
taking his deposition through oral examination or written interrogatories. (Rule 24;
new Rule 23) He may also file a motion for the production or inspection of
documents. (Rule 27).
Alternative Answer;
(a) The 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 day's attendance and the kilometrage allowed by the rules.
Civil procedure; summary judgment
1996 No. 7;
3) A's motion for summary judgment was granted by the Regional Trial Court
but reversed by the Court of Appeals on the ground that A made no effort to adduce
testimonial evidence in addition to his affidavits to prove absence of any genuine
issue as to any material fact.
Is the decision of the Court of Appeals correct? Explain.
Answer:
3) No, because testimonial evidence is not required to prove the absence of
any genuine issue as to any material fact. This is shown by the pleadings,
depositions and admissions together with the affidavits. (Sec. 3 of Rule 34)
Civil procedure; summary judgments
2004 NO. VII
A. After defendant has served and filed his answer to plaintiffs complaint for
damages before the proper Regional Trial Court, plaintiff served and filed a motion
(with supporting affidavits) for a summary judgment in his favor upon all of his
claims. Defendant served and filed his opposition (with supporting affidavits) to the
motion. After due hearing, the court issued an order (1) stating that the court has
found no genuine issue as to any material fact and thus concluded that plaintiff is
entitled to judgment in his favor as a matter of law except as to the amount of
damages recoverable, and (2) accordingly ordering that plaintiff shall have judgment
summarily against defendant for such amount as may be found due plaintiff for
Page 88 of 181
damages, to be ascertained by trial on October 7, 2004, at 8:30 oclock in the
morning.
May defendant properly take an appeal from said order? Or, may defendant
properly challenge said order thru a special civil action for certiorari? Reason. (5%)
Civil procedure; summary judgments; judgment on the pleadings
1989 (9)
What do you understand by a Summary Judgment? How is it distinguished
from a Judgment on the Pleadings?
Answer:
A summary judgment is one rendered by a Court without a trial on motion of
either a claimant or a defending party, with at least 10 days notice before the time
specified for the hearing, when the pleadings, supporting affidavits made on
personal knowledge which are not rebutted by opposing affidavits, depositions or
admissions, show that, except as to the amount of damages, there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.
It is distinguished from a judgment on the pleadings in that the latter is based
on the pleadings alone. A judgment may be rendered when the answer to the
complain, counterclaim, cross-claim or third party complaint fails to tender an issue
or otherwise admits the material allegations of the adverse partys pleading. (Rules
19 and 34).
Civil procedure; summons
1989 (2)
2.1) Are the rules on summons under Rule 14 of the Rules of Court applicable
equally in actions before the RTCs as well as in the MetroTCs, MTCs and MCTCs?
Answer:
Yes, because the procedure to be observed in the MetroTCs, MTCs and
MCTCs is the same as that observed in the RTCs, and Rule 5 which conveyed
procedure in inferior courts including summons, was repealed. (Sec.8 of Interim
Rules).
2.2) When is extra-territorial service of summons proper?
Answer:
Extra-territorial service of summons is proper when the defendant does not
reside and is not found in the Philippines and the action affects the personal status
of the plaintiff or relates to, or the subject of which is, property within the Philippines,
in which the defendant has or claims a lien or interest, actual or contingent, or in
which the relief demanded consists, wholly or in part, in excluding the defendant
from any interest therein, or the property of the defendant has been attached within
the Philippines. (Sec.17 of Rule 14). It is also proper when the defendant ordinarily
resides within the Philippines, but is temporarily out of it. (Sec.18 of Rule 14)
Civil procedure; summons
1999 No. VI
a. What is the effect of absence of summons on the judgment rendered in
the case? (2%)
b. When additional defendant is impleaded in the action, is it necessary
that summons be served upon him? Explain. (2%)
Page 89 of 181
c. Is summons required to be served upon a defendant who was
substituted for the deceased? Explain. (2%)
d. A sued XX Corporation (XXC), a corporation organized under Philippine
laws, for specific performance when the latter failed to deliver T-shirts to the former
as stipulated in their contract of sale. Summons was served on the corporation's
cashier and director. Would you consider service of summons on either officer
sufficient? Explain. (2%)
SUGGESTED ANSWER;
a. The effect of the absence of summons on a judgment would make 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 equivalent to the service of summons. (Sec. 20, Rule 14, 1997
Rules)
b. Yes. Summons must be served on an additional defendant impleaded in
the action so that the court can acquire jurisdiction over him, unless he makes a
voluntary appearance.
c. No. 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. 16 of
Rule 3.)
d. Summons on a domestic corporation through its cashier and director
are not valid under the present rules. (Sec. 11, Rule 14, Rules of Court.) They
have been removed from those who can be served with summons for a domestic
corporation. Cashier was substituted by treasurer. (Id.)
Civil procedure; summons
B. Seven years after the entry of judgment, the plaintiff filed 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 RTC-Manila did not acquire
jurisdiction over his person? Why? (3%)
SUGGESTED ANSWER:
A. The RTC-Manila should deny the motion because it is in violation of the
rule that no judgment obligor shall be required to appear before a court, for the
purpose of examination concerning his property and income, outside the province or
city in which such obligor resides. In this case the judgment obligor resides in
Bulacan. (Rule 39, sec.36).
B. Yes, because the sheriff did not exert sufficient effort to serve
summons personally on the defendant within a reasonable time and hence the RTC-
Manila did not acquire jurisdiction over his person. [Rule 14, sec. 6 & 7; De Guzman
v. Court of Appeals, 271 SCRA 728 (1997)].
ALTERNATIVE ANSWER:
B. No, the defendant is deemed to have waived the lack of jurisdiction over
his person because he did not raise this issue: 1) in opposing the motion to declare
him in default; 2) in motion for reconsideration of or appeal from the judgment by
default; and 3) in opposing the motion requiring him to appear and be examined
regarding his property.
Civil procedure; summons
2004 NO. III
Page 90 of 181
A. Summons was issued by the MM Regional Trial Court and actually
received on time by defendant from his wife at their residence. The sheriff earlier
that day had delivered the summons to her at said residence because defendant
was not home at the time. The sheriffs return or proof of service filed 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 the ground that the court had no
jurisdiction over his person as there was no valid service of summons on him
because the sheriffs return or proof of service does not show that the sheriff first
made a genuine attempt to serve the summons on defendant personally before
serving it thru his wife.
Is the motion to dismiss meritorious? What is the purpose of summons and
by whom may it be served? Explain. (5%)
Civil procedure; summons; extraterritorial service
1993 No (7)
In its complaint before the RTC, Singer (Phil.), Inc. alleged that it is a
corporation organized and existing under Philippine laws; that another corporation,
with the corporate name Singer, Inc. and organized under the law of the United
Sates, had incurred obligations to several foreign creditors whom it refuses to pay,
that although Singer (Phil.) Inc. is a corporation separate and distinct form Singer,
Inc. and that Signer (Phil) Inc. had no participation or liability whatsoever regarding
the transactions between Singer, Inc. and the creditors have been demanding form
Singer (Phil. ) Inc., the payment of the obligations to them (creditors of Singer, Inc.
Singer (Phil.) therefore, prayed for injunctive relief against the creditors
(whom it impleaded as the defendants in the action) by way of enjoining the latter
form making further demands on it for payment of the obligations of Singer, Inc. to
hem (creditors).
The defendants are non-residents and without business addresses in the
Philippines but in the U.S. Consequently, Singer (Phils.) asked for leave of court to
effect extraterritorial service f summons pursuant to Sec. 17, Rule 14 of the Rules of
Court. The trial court granted the motion.
The defendants filed special appearances and questioned the jurisdiction of
the court over their persons. They contended that the curt cannot acquire jurisdiciton
over their persons because the action does not fall under any of the situations
authorizing extraterritorial service of summons.
Is extraterritorial service of summons proper? Why?
Answer:
No. because it is only when the action affects the personal status of the
plaintiff, or any property in the Philippines in which defendants have or claim and
interest, or which the plaintiff has attached, that extraterritorial service of summons
is proper. (Sec. 17 of Rule 14). In this case, the action is purely an action for
injunction, which is a personal action as well as an action in personam and not an
action in rem or quasi in rem. Hence, personal or substituted service of summons is
necessary in order to confer jurisdiction on the court. Extraterritorial service of
summons on defendants will not confer on the court jurisdiction or power to compel
them to obey its orders.
Civil procedure; Summons; voluntary appearance
1987 No (4)
A filed before the RTC in Makati, Metro Manila, an action for damages
Page 91 of 181
against B for a tort allegedly committed by B while B was on a vacation in the
Philippines when he temporarily lived at the residence of his brother in Makati. The
summon was served on Bs brother. Bs lawyer filed a motion to dismiss on behalf of
B and asserted that B was not a resident of and could not be found in the Philippines
so that the court cannot acquire jurisdiction over his person. The motion also alleged
that anyway the action has prescribed, they further asserted a claim for litigation
expenses. Assume that Bs lawyer had been authorized by B to represent him.
If you were the judge, will you dismiss the case on the ground of the court
lack of jurisdiction over the person of B? Explain.
Answer:
No. Although substituted service of summons on Bs brother was not valid
inasmuch as B was not a resident of the Philippines, the motion to dismiss filed by
Bs lawyer constituted a voluntary appearance, inasmuch as it does not only
question the jurisdiction of the court over his person, but also alleged prescription
and a claim for litigation expenses. (Note: The claim for litigation expenses may
properly be made in a counterclaim)
Civil procedure; summons; waiver of improper service
1990 (8)
While the trial was ongoing, the lawyer of Mario discovered that there was
improper service of summons, the summons having been sent by registered mail.
He filed a motion to dismiss on the ground that the court had not acquired
jurisdiction over the person of Mario.
Should the said motion be granted? Explain your answer.
Answer:
No, because by filing his answer and going to trial without previous objection
to the lack of jurisdiction over his person, Mario is deemed to have waived the defect
of improper service of summons. (Sec. 23 of Rule 14).
Civil procedure; supplemental pleadings
2000 No. III.
The Regional Trial Court rendered judgment against ST, copy of which was
received by his counsel on February 28, 2000. On March 10, 2000. ST, through
counsel, filed a motion for reconsideration of the decision with notice to the Clerk of
Court submitting the motion for the consideration of the court. On March 15, 2000,
realizing that the Motion lacked a notice of hearing, STs counsel filed a
supplemental pleading. Was the motion for Reconsideration filed within the
reglementary period? Explain. (5%)
SUGGESTED ANSWER:
Yes, because the last day of filing a motion for reconsideration was March 15
if February had 28 days or March 16 if February had 29 days. Although the original
motion for reconsideration was defective because it lacked a notice of hearing, the
defect was cured on time by its filing on March 15 of a supplemental pleading,
provided that motion was set for hearing and served on the adverse party at least
three (3) days before the date of hearing. (Sec. 4, Rule 15, 1997 Rules of Civil
Procedure).
ALTERNATIVE ANSWER:
Since the supplemental pleading was not set for hearing, it did not cure the
defect of the original motion.
Civil procedure; third party claim
Page 92 of 181
2000 No. XVI.
JKs real property is being attached by the sheriff in a civil action for damages
against LM. JK claims that he is not a party to the case; that his property is not
involved in said case; and that he is the sole registered owner of said property.
Under the Rules of Court, what must JK do to prevent the Sheriff from attaching his
property? (5%)
SUGGESTED ANSER:
If the real property has been attached, the remedy is to file a third-party claim.
The third-party claimant should make an affidavit of his title to the property attached,
stating the grounds of his title thereto, and serve such affidavit upon the sheriff while
the latter has possession of the attached property, and a copy thereof upon the
attaching party. (Sec. 14, Rule 57, 1997 Rules of Civil Procedure.) The third-party
claimant may also intervene or file a separate action to vindicate his claim to the
property involved and secure the necessary reliefs, such as preliminary injunction,
which will not be considered as interference with a court of coordinate jurisdiction.
(Ong v. Tating, 149 SCRA 265, [1987])
Civil procedure; third party claims
1993 No (8)
Its decisions in Civil Case No. 93-1000 entitled Beta Inc. vs. Jaime dela
Cruz having become final and executory, the RTC of Manila issued a writ of
execution for its enforcement. The sheriff levied upon certain chattels and scheduled
the auction sale thereof.
However, Jacinto Santamaria filed a third party claim with the sheriff asserting
that the chattels levied upon by the latter belong to him and no to the judgment
debtor ( Jaime dela Cruz). Because the judgment creditor (Beta, Inc.) posted an
indemnity bond in favor of the sheriff, the latter refused to release the chattels and
threatened to proceed with the auction sale.
Consequently, Jacinto Santamaria filed an action against Beta Inc., and the
sheriff in the RTC of Bulacan docketed as Civil Case No. 93-487, laying claim to the
levied chattels and seeking to enjoin the sheriff from proceeding with the auction
sale thereof. As prayed for, the Court in Civil Case No. 93-487, laying claim to the
levied chattels and seeking to enjoin the sheriff from proceeding with the auction
sale thereof. As prayed for, the Court in Civil Case No. 93-487 issued a temporary
retraining order, followed by a writ of preliminary injunction, by way of enjoining the
sheriff from implementing the writ of execution issued in Civil Case No. 93-1000
against the levied chattels pending determination of Jacinto Santamarias claim
thereto.
Beta. Inc. and the sheriff filed a motion to dismiss Civil Case No. 93-487 on
the ground that the court has no power to interfere with the judgment of the RTC of
Manila, a coordinate court.
How would the motion to dismiss be resolved? Explain.
Answer:
The motion to dismiss should be denied. A third party claimant has the right to
vindicate his claim to the property by any proper action. It is the RTC of Bulacan
which has the jurisdiction to determine the ownership of the property subject of the
third-party claim. Obviously, a judgment rendered in favor of the third party claimant
would not constitute interference with the powers or processes of the RTC of Manila.
If that be so and it is so because the property, being that of a stranger, is not subject
to levy on execution then an interlocutory order such as a preliminary injunction
upon a claim and prima facie showing of ownership by the claimant cannot be
Page 93 of 181
considered as such interference either. Moreover, the writ is issued against the
sheriff, not against the court.
Civil procedure; totality rule
1989 (1)
1.1) What do you understand by the totality rule in determining the
jurisdiction of courts in civil cases? Explain.
Answer:
Under the totality rule, where there are several claims or causes of action
between the same or different parties embodied in the same complaint, the amount
of the demands shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different
transactions. (Sec.33 of BP129; Sec.11 of Interim Rules)
Civil procedure; venue; compulsory counterclaim
1998 No IV.
A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando La
Union in the Regional Trial Court (RTC) of Quezon City for the collection of a debt of
P1 million.
X did not file a motion to dismiss for improper venue but filed his answer
raising therein improper venue as an affirmative defense. He also filed a
counterclaim for P80,000 against A for attorney's fees and expenses for litigation. X
moved for a preliminary hearing on said affirmative defense. For his part, A filed a
motion to dismis the counterclaim for lack of jurisdiction.
1, Rule on the affirmative defense of improper venue. [3%]
2. Rule on the motion to dismiss the counterclaim on the ground of lack of
jurisdiction over the subject matter. [2%]
SUGGESTED ANSWER:
1. There is improper venue. The case for a sum of money, which was filed
in Quezon City, is a personal action. It must be filed in the residence of either the
plaintiff, which is in Pangasinan, or of the defendant, which is in San Fernando, La
Union, (Sec. 2 of Rule 4. 1997 Rules of Civil Procedure.) The 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 1997 Rules of Civil Procedure. The new Rules provide that if no motion to
dismiss has been filed, any of the grounds for dismissal may be pleaded as an
affirmative defense in the answer. (Sec. 6 of Rule 16.)
2. The motion to dismiss on the ground of lack of jurisdiction over the
subject matter should be denied. The counterclaim for attorney's fees and expenses
of litigation is a compulsory counterclaim because It necessarily arose out of and is
connected with the complaint. In an original action before the Regional Trial Court,
the counterclaim may be considered compulsory regardless of the amount. (Sec. 7
of Rule 6, 1997 Rules of Civil Procedure.)
Civil procedure; venue; legal capacity to sue
1988 (4)
4.a) A complaint entitled A as attorney-in-fact for X, plaintiff, versus B,
defendant was filed to recover a car in the possession of B. As power of attorney
expressly authorized him (A) to sue for the recovery of the car.
B files a motion to dismiss the complaint for lack of capacity to sue.
Page 94 of 181
Decide the motion. Explain.
4.b) A and B, both residents of Batangas, entered into a contract of lease over
a parcel of land belonging to B, located in Calapan, Mindoro.
A filed a complaint before the RTC, Batangas for the rescission of the lease
contract of the land in Mindoro.
B filed a motion to dismiss on the ground that Batangas Court did not have
jurisdiction over the subject matter, the land being located in Mindoro. B however did
not allege improper venue in his motion.
Decide with reasons.
Answer:
4.a) Motion to dismiss is denied. A has a legal capacity to sue but is not the
real party in interest. The ground of the motion to dismiss should have been that the
complaint states no cause if action because it was filed by A as attorney-in-fact for
X. The complaint should have been filed in the name of X as plaintiff. (Arroyo vs.
Granada, 18 Phil. 484)
4.b) Motion to dismiss is denied. The fact that the land is located in Mindoro
does not affect the jurisdiction of the RTC sitting in Batangas. The proper venue of
the action is the RTC in Mindoro. However, since B did not object to the improper
venue in his motion, that ground is deemed waived. (Sec.4 of Rule 4)
Civil procedure; venue; personal actions
1997 No. 3:
X, a resident of Angeles City, borrowed P300,000.00 from A, a resident of
Pasay City. In the loan agreement, the parties stipulated that "the parties agree to
sue and be sued in the City of Manila."
(a) In case of non-payment of the loan, can A file his complaint to collect the
loan from X in Angeles City?
(b) Suppose the parties did not stipulate in the loan agreement as to the
venue, where can A file his complaint against X?
(c) Suppose the parties stipulated in their loan agreement that "venue for all
suits arising from this contract shall be the courts in Quezon City," can A file his
complaint against X in Pasay City?
Answer:
(a) Yes, because the stipulation in the loan agreement that "the parties agree
to sue and be sued in the City of Manila" does not make Manila the "exclusive venue
thereof." (Sec, 4 of Rule 4, as amended by Circular No. 13-95: Sec. 4 of new Rule 4)
Hence, A can file his complaint in Angeles City where he resides, (Sec, 2 of Rule 4).
(b) If the parties did not stipulate on the venue, A can file his complaint either
in Angeles City where he resides or in Pasay City where X resides, (Id).
(c) Yes, because the wording of the stipulation does not make Quezon City
the exclusive venue. (Philbanking v. Tensuan. 230 SCRA 413; Unimasters
Conglomeration, Inc. v. CA. CR-119657, Feb. 7, 1997),
Alternative Answer:
(c) No. If the parties stipulated that the venue "shall be in the courts in
Quezon City", A cannot file his complaint in Pasay City because the use of the word
"shall" makes Quezon City the exclusive venue thereof. (Id. See also Hoechst
Philippines vs. Torres, 83 SCRA 297).
Page 95 of 181
Summary Procedure
Summary procedure; coverage
1988 (14)
(a) In what civil cases is the Summary Procedure before MetroTC, MTC, and
MCTC applicable?
(b) In what criminal cases is the Summary Procedure before MetroTC, MTC,
and MCTC applicable?
Answer:
(a) Summary Procedure is applicable in the following civil cases:
(1) Cases of forcible entry and unlawful detainer, except where the question
of ownership is involved, or where the damages or unpaid rentals sought to be
recovered by the plaintiff exceed twenty thousand (20,000) pesos at the time of the
filing of the complaint;
(2) All other civil cases, except probate proceedings, falling within the
jurisdiction of the abovementioned courts, where the total amount of the plaintiffs
claim does not exceed ten thousand (10,000) pesos, exclusive of interests and
costs. (Sec. 1-A)
(b) It is applicable in the following criminal cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the
offense charged does not exceed six months of imprisonment, or a fine of one
thousand (1,000) pesos, or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom: Provided, however,
that in offenses involving damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten thousand (10,000)
pesos. (Sec. 1-B)
Summary procedure; ejectment
1989 (7)
7.1) In an ejectment suit filed with the MetroTC of Manila, the judge rendered
a decision ordering the defendant (a) to vacate the property of the plaintiff and (b) to
pay the plaintiff the amount of P300 a month as reasonable compensation for the
use of the land starting from the time she occupied the same and until it is vacated
by him; P10,000 as unrealized earnings; P7,000 as moral damages; P5,000 as
exemplary damages; and P3,000 as attorneys fees. The defendant contends that
the decision is improper. Decide.
Answer:
The MetroTC exceeded its jurisdiction in awarding damages, other than the
reasonable compensation for the use and occupation of the land, totalling P25,000.
Hence, the decision should be nullified as to the excess of P5,000 over the
jurisdictional amount of P20,000. (Agustin vs. Bocalan, 135 SCRA 340)
Another Acceptable Answer:
Only rentals or reasonable compensation for the use and occupation of the
premises and attorneys fees may be awarded in an ejectment case.
Summary procedure; ejectment
Page 96 of 181
1990 (1)
Juan, who was leasing an apartment unit in Antipolo, Rizal from Maria, a
resident of Quezon City, under a five (5) year contract expiring on October 15, 1991,
is in arrears in his rent for three months as of August 15, 1990. Maria, through
counsel, send a demand letter to Juan.
Suppose that Juan, upon receipt of the letter of demand to pay and vacate the
apartment unit, immediately pays the rentals on arrears. He claims that he was so
busy with his business that he neglected to pay his rent. May Maria still file an
unlawful detainer case against Juan? Discuss with reasons.
Answer:
Yes, because Juan failed to pay the rental on time and his failure to vacate
the apartment unit despite the demand to do so makes his withholding of possession
unlawful. His belated payment did not make his continued possession lawful without
the lessors consent. (Cursino vs. Bautista, Aug. 7, 1989)
Summary procedure; ejectment
1991 No. I:
For failure of the tenant. X, to pay rentals. A, the court-appointed
administrator of the estate of Henry Datu, decides to file an action against the former
for the recovery of possession of the leased premises located in Davao City and for
the payment of the accrued rentals in the total amount of P25,000.00
(a) Is prior referral to the Lupon under P.D. No. 1508 necessary?
Answer;
(a) No, because the law applies only to disputes between natural person and
does not apply to juridical person such as the estate of a deceased. (Vda, de
Borromeo v. Pogoy, 126 SCRA 217)
(b) What is the court of proper jurisdiction and venue of the intended action?
Answer;
(b) The Court of proper jurisdiction and venue is the Municipal Trial Court of
Davao City, since this is an action of illegal detainer and the leased premises are
located in Davao City.
Another Answer;
If the action filed is for recovery of possession or accion publiciana, the
Regional Trial Court of Davao City would have jurisdiction and the venue would also
be in Davao City.
(c) Supposing that referral is necessary, but the complaint is filed without
such referral, may it be dismissed on the ground of lack of jurisdiction?
Answer:
(c) No, because lack of referral affects only the cause of action, not
jurisdiction, and the former may be deemed waived if not raised in a motion to
dismiss or an answer. (Ebol v. Amin 135 SCRA 438)
Another Answer;
No, because lack of referral would merely render the action premature for
failure to comply with a condition precedent.
(d) If the case is filed with the Municipal Trial Court in Cities (MTCC), is it
covered by the Rule on Summary Procedure?
Page 97 of 181
Answer;
(d) No, it is not covered by the Rule on Summary Procedure in any of the
lower courts, because the unpaid rentals exceed P20,000.00 (Sec, 1-A-l of Rule on
Summary Procedure)
(e) Supposing that A filed the complaint in the MTCC, and X filed an Answer
wherein he interposed a counterclaim for moral damages In the amount of P50,000
alleging that the complaint is unfounded and malicious, would the MTCC have
jurisdiction over the counterclaim? If X did not setup the counterclaim, can he file a
separate action to recover the damages? Can A file a counterclaim to the
counterclaim?
Answer;
(e) No, because the counterclaim exceeds the jurisdictional amount of
P20,000.00.
Since the claim for damages is not within the jurisdiction of the MTCC, it is
not a compulsory counterclaim and X can file a separate action in the RTC to
recover the damages. (Reyes v. CA, 38 SCRA 130)
Yes, A can include a counterclaim in his answer to counterclaim. (Sec. 10 of
Rule 6).
Another Answer:
The MTCC would have jurisdiction over the counterclaim if the excess of the
amount thereof over P20,000.00 is waived by X. (Agustin v. Bocalan. 135 SCRA
340)
Summary procedure; ejectment; execution pending appeal
1995 No. 3:
1. In an illegal detainer case the Municipal Trial Court ruled in favor of
plaintiff-lessor who, not being satisfied with the increase of rentals granted him by
the court, appealed praying for further increase thereof. Defendant-lessee did not
appeal.
a) Can plaintiff-lessor, as appellant, move for execution pending appeal?
Explain.
b) Can defendant-lessee, as appellee, validly resist the immediate execution
of the judgment? Explain.
2. In his appellee's brief, defendant-lessee not only controverted the issue
on rentals raised by plaintiff-lessor but also assailed the Judgment of the trial court
on the ground that the same was totally contrary to the admitted evidence showing
him to be the owner of the property entitled to possession of the premises.
Can the appellate court consider the issue of ownership raised by the
appellee? Discuss fully.
Answer:
1. a) Yes, if defendant fails to pay or deposit the amount of rentals
adjudged by the court within the reglementary period. (City of Manila vs. CA, 149
SCRA 143)
b) Yes, as long as he pays or deposits the amount of rentals adjudged.
2. No, because as lessee he is estopped from raising the question of
ownership. (Art. 1456. Civil Code; Sec. 2(b), Rule 131; Fije vs. CA, 233 SCRA 587)
Summary procedure; ejectment; issues of ownership
Page 98 of 181
1995 No, 13:
Albert forcibly entered and occupied the house and lot in Quezon City owned
by his neighbor Carissa. Carissa immediately sued Albert for recovery of the
property. She also claimed damages amounting to P100,000.00, other
undetermined losses as a result of the forcible entry, and attorney's fees of
P25,000.00. Albert sets up affirmative defenses in his answer without questioning
Carissa's title over the property.
1. Is the case triable under summary procedure by the Metropolitan Trial
Court of Quezon City? Explain.
2. May Carissa present evidence of title? Explain. Answer;
1. Yes, because all actions for forcible entry and unlawful detainer are
subject to summary procedure irrespective of the amount of damages claimed, but
the attorney's fees should not exceed P20,000.00.
2. Yes, but only to determine the question of possession. (BP 129 as
amended).
3. Albert may raise the issue of lack of barangay conciliation prior to the
filing of the complaint.
Summary procedure; ejectment; jurisdiction and remedies
1988 (10)
Andres filed a case for unlawful detainer before the Metropolitan Court of
Manila against Lito for refusing to vacate the leased premises after the expiration of
his lease contract and for non-payment of rentals. As counterclaim, Lito claim moral
damages in the amount of P15,000.
10.a) May the Metropolitan Court proceed to try and decide the case including
the claim of P15,000? Explain.
10.b) In case Lito is adjudged to vacate the leased premises and to pay the
accrued rentals in arrears, how can he stay the execution of the judgment?
10.c) How does unlawful detainer differ from forcible entry?
Answer:
10.a) Yes, because the amount of the counterclaim, P15,000, is within the
jurisdiction of the Metropolitan Court which has also the exclusive original jurisdiction
over the unlawful detainer case. (Agustin vs. Bocalan, 135 SCRA 340).
10.b) Lito must appeal; file a supersedeas bond in an amount equivalent to
the rents, damages and costs accruing down to the time of the judgment; and
deposit with the RTC the amount of the reasonable value of the use and occupation
of the premises for the preceding month or period at the rate determine by the
judgment, on or before the tenth day of each succeeding month or period. (Sec. 8, of
Rule70)
10.c) In unlawful detainer, the possession is legal from at the beginning but
subsequently becomes illegal after the expiration or termination of the right to hold
possession, whereas in forcible entry the possession is illegal from the very
beginning because the entry was made by force, intimidation, strategy or stealth and
threat.
Summary procedure; ejectment; motion for execution
1989 (7)
7.2) In an ejectment case, the MTC ordered Ellery to vacate the nipa house
standing on a residential lot, restore possession thereof to Indit and pay the sum of
Page 99 of 181
P340 as back rentals at the rate of P20 per month. Ellery appealed to the RTC and
posted a supersedeas bond of P400. Subsequently, Indit filed a motion in the RTC
for the execution of the judgment on the ground that Ellery had not deposited the
current rentals of P20 per month. Ellery opposed the motion alleging that the MTC
did not fix in its judgment the monthly rental to be paid during his continued stay in
the premises so that he is not duty bound to pay the same. Decide the motion for
execution of the judgment filed by Indit.
Answer:
Motion for execution is granted. Although the decision did not specifically
order Ellery to pay the monthly rentals of P20 per month from the date thereof until
he vacated the leased premises, the omission does not prelude the RTC from
ordering the execution of the decision for failure of the defendant to deposit in court
the current monthly rentals. The fact that Ellery posted a supersedeas bond of P400
in order to stay execution pending appeal is a commitment on his part to deposit the
current rental of P20 per month. (Sec.8 of Rule 70; Dehesa vs. Maclalag, 81 SCRA
53).
Summary procedure; ejectment; supersedeas bond
1990 (3)
While the ejectment case was pending before the Municipal Court, Juan
religiously deposits all current rentals. In due time, the judge ordered Juan to pay all
rents until he vacates the premises as well as attorneys fees in the amount of
P5,000.00. Maria moves for the immediate execution on the ground that Juan
Santos did not deposit the attorneys fees of P5,000.00 and that he did not put
supersedeas bond for the award.
Should the court grant the immediate execution? Decide with reasons.
Answer:
No, because a supersedeas bond covers only the rent unpaid up to the time
of the judgment. Since Juan deposited all the current rentals while the ejectment
case was pending, a supersedeas bond is not required. (Once vs. Gonzales, 76
SCRA 258). Attorneys fees are not required to be deposited in order to stay
execution. (Sec. 8 of Rule 70).
Summary procedure; immediately executory
1996 No. 7;
2) In a case for illegal detainer under the Revised Rules on Summary
Procedure, the Municipal Trial Court rendered a decision in favor of A, the lessor,
ordering B, the lessee, to vacate A's apartment and to pay the back rentals. B
appealed to the Regional Trial court which affirmed the Municipal Trial Court's
decision. A, anticipating another appeal by B, filed a motion for execution pending
appeal pursuant to Section 21 of the Revised Rules on Summary Procedure. B,
likewise within the reglementary period, filed a petition for review of the Regional
Trial Court's decision with the Court of Appeals.
a) May the Regional Trial Court grant A's motion for execution pending
appeal after B filed his petition for review with the Court of Appeals? Explain.
b) May B validly oppose the motion for execution pending appeal on the
ground that the motion is not based on the good reasons for which an execution
pending appeal may be Issued under Section 2. Rule 39 of the Rules of Court?
Explain.
Answer:
Page 100 of 181
2. a) Yes, because the decision of the Regional Trial Court is immediately
executory despite the appeal. (Sec. 21)
b) No, because Sec. 2 of Rule 39 is not applicable to this case which falls
under Summary Procedure.
Summary procedure; motion for recon
1989 (17)
17.1) Dalmacio filed a civil case against Cadio for the collection of P5,000 in
the MTC of Bacoor. After an examination of the complaint, the judge dismissed the
case outright due to improper venue. Dalmacio filed a motion for reconsideration of
the order of dismissal, contending that the provision in the promissory note attached
to the complaint and made as the basis thereof clearly shows that the case must be
filed with the Bacoor court. Although realizing and admitting that he committed an
error in dismissing the case, the judge said that he could not revoke his previous
order because no action can be taken on the motion for reconsideration, which is a
prohibited pleading under the Summary Rules. Is the judge correct? Explain.
Answer:
No, because while a motion for reconsideration is not allowed under summary
procedure rules in order to avoid undue delay, a revocation of the erroneous order
would avoid the delay occasioned by an appeal by Dalmacio from the order of
dismissal and a reversal of the said order by the RTC. (Heirs of Olivas vs. Flor, 161
SCRA 393)
Another Acceptable Answer:
(1) No, because the judge may correct his error under the inherent power of
the court to make the order conform to law and justice.
(2) Yes, because the Summary Procedure rules do not allow the filing of a
motion for reconsideration. The remedy of plaintiff is to appeal from the order.
Summary procedure; motion for recon
1990 (4)
Juan appeals the decision against him to the RTC which affirmed in toto the
lower courts decision. Juan then filed a motion for reconsideration. Maria moves to
strike out the motion for reconsideration as it is a prohibited pleading under the
Rules on Summary Procedure.
Is this tenable? Decide with reasons.
Answer:
No, because the rule on prohibited pleadings in summary procedure is
applicable only to the Metropolitan and Municipal Trial Courts. (Glakihaca vs.
Aquino, Jan. 12, 1990).
Summary procedure; motion to dismiss
1990 (2)
In the same controversy, after the demand letter was sent and Juan failed to
comply therewith, the lawyer of Maria filed the ejectment case in the Municipal Court
of Antipolo without going through the conciliation process at the barangay level as
required under P.D. No. 1508. The amount due is P1,500.00, hence summary
procedure was followed.
May Juan file a motion to dismiss for non-compliance with the requirements of
the said decree? State your reasons.
Page 101 of 181
Answer:
No, because a motion to dismiss is not allowed in summary procedure.
Moreover, the requirement of prior recourse to the barangay conciliation is not
applicable since parties did not reside in the same city or municipality or in adjoining
barangays of different cities or municipalities.
Summary procedure; motion to quash
1989 (16)
16.1) Edison was charged with the crime of less serious physical injuries in
the MetroTC of Manila. Under the Revised Penal Code, the penalty prescribed for
this offense is arresto mayor. Aside from the recital of the facts constituting the
offense, the information alleged that the offended party suffered actual damages in
the amount of P25,000. Instead of submitting his counter-affidavits as required by
the court, Edison filed a motion to quash contending that the court had no
jurisdiction over the case since the amount claimed as damages exceeds the
jurisdictional limit of the trial court in civil cases. If you were the judge trying the
case, what would you do with the motion filed? How would you dispose of the
question of jurisdiction raised in the said motion? Explain.
Answer:
I would deny the motion to quash inasmuch as such a motion is not allowed in
Summary Procedure. The criminal case where the penalty prescribed by law for the
offense charged does not exceed six months of imprisonment is governed by
summary procedure.
On the question of jurisdiction, Summary Procedure applies irrespective of the
civil liability arising from the offense. Hence the fact that the civil liability exceeds
P20,000 does not deprive the MetroTC of jurisdiction.
Summary procedure; procedure in criminal cases
1989 (16)
16.2) An information for slight physical injuries was filed against Diego in the
MTC of Cainta, after which the judge directed him to appear and submit counter-
affidavits and those of his witnesses on September 12, 1989. Diego failed to appear
on the said date. Thereafter, the judge rendered judgment convicting Diego of the
offense charged based on the affidavits submitted by the complainant. Diego
contend that this judgment is a nullity. Decide.
Answer:
Diegos contention is correct. Under Summary Procedure rules, the failure of
Diego to appear and submit counter-affidavits on the date specified may be a
ground for the judge to issue a warrant for his arrest upon a finding of probable
cause. However, the judge may not render a judgment of conviction of the offense
charged based on the affidavits submitted by the complainant. He should set the
case for arraignment and trial if Diego pleads not guilty. Only after trial may the
judge render a judgment of conviction. (Sec.10 and 11)
Summary procedure; prohibited motion
2004 NO. II
B. Charged with the offense of slight physical injuries under an information
duly filed with the MeTC in Manila which in the meantime had duly issued an order
declaring that the case shall be governed by the Revised Rule on Summary
Procedure, the accused filed with said court a motion to quash on the sole ground
Page 102 of 181
that the officer who filed the information had no authority to do so. The MeTC
denied the motion on the ground that it is a prohibited motion under the said Rule.
The accused thereupon filed with the RTC in Manila a petition for certiorari in
sum assailing and seeking the nullification of the MeTCs denial of his motion to
quash. The RTC in due time issued an order denying due course to the certiorari
petition on the ground that it is not allowed by the said Rule. The accused forthwith
filed with said RTC a motion for reconsideration of its said order. The RTC in time
denied said motion for reconsideration on the ground that the same is also a
prohibited motion under the said Rule.
Were the RTCs orders denying due course to the petition as well as denying
the motion for reconsideration correct? Reason. (5%)
Summary procedure; prohibited pleadings; remedies
1996 No. 7;
1) A brought an action for unlawful detainer against B in the Municipal Trial
Court. B filed a motion to dismiss on the ground of lack of cause of action for failure
to first refer the dispute to the Barangay Lupon. Acting on B's motion, the case was
dismissed. A files a petition for certiorari with the Regional Trial court assailing the
Municipal Trial Court's dismissal order on the ground that B's motion to dismiss is a
prohibited motion under the Revised Rules on Summary Procedure.
a) Is A's contention correct? Explain.
b) Is certiorari the proper remedy? Explain.
Answer:
1. a) No, because the Revised Rule on Summary Procedure allows a motion
to dismiss on the ground of failure to comply with the provision on referral to Lupon.
(Sec. 19-A)
b) No, because the proper remedy is appeal. Moreover, the dismissal order is
correct.
Summary procedure; violation of municipal ordinance
1993 No (18)
On May 20, 1992, the police charged accused before the prosecutors office
with violation of a municipal ordinance which carries a penalty of six months
imprisonment. The offense was allegedly committed on May 11, 1990.
On October 2, 1992, the corresponding information was filed with the
Municipal Trial Court.
Accused moved to quash the information on the ground that the crime had
prescribed for the reason that the information was filed beyond the two-month period
from the date of the alleged offense.
For its part, the prosecution contended that the prescriptive period was
suspended upon the filing of the complaint against accused with the Office of the
Prosecutor.
Who is correct? Explain.
Answer:
The accused is correct. The offense charged, violation of a municipal
ordinance, is governed by the Rule on summary Procedure. Under the 1988
amendment of Section 1, Rule 110, of the 1985 Rules on Criminal Procedure, the
filing of a complaint with the prosecutors office interrupts the period of prescription
of the offense charged. However, this provision applies to offenses not subject to
Page 103 of 181
the rule on summary procedure in special cases, according to the opening phrase is
said Section 1, Rule 110. Consequently, when the corresponding information was
filed with the NTC, the offense had already prescribed.
Alternative Answer:
The Prosecutor is correct. The filing of the complaint by the police with the
Prosecutors office on May 20, 1993 interrupted the period of prescription of the
offense charged. It was clearly the intention of the 1988 amendment to apply the
same to all offenses, including those subject to the rule of Summary Procedure.
Criminal Procedure
Criminal procedure; acquittal; effect
2002 No. XIII.
A. Delia sued Victor for personal injuries which she allegedly sustained
when she was struck by a car driven by Victor. May the court receive in evidence,
over proper and timely objection by Delia, a certified true copy of a judgment of
acquittal in a criminal prosecution charging Victor with hit-and-run driving in
connection with Delias injuries? Why? (3%)
SUGGESTED ANSWER:
A. If the judgment of acquittal in the criminal case finds that the act or
omission from which the civil liability may arise does not exist, the court may receive
it in evidence over the objection by Delia. [Rule 111, sec. 2, last paragraph].
ALTERNATIVE ANSWER:
If the judgment of acquittal 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 requires only a preponderance of the evidence. (Art. 29, Civil Code).
Criminal procedure; allegations of aggravating circumstances
2001 No. VII.
The prosecution filed an information against Jose for slight physical injuries
alleging the acts constituting the offense but without anymore alleging that it was
committed after Joses unlawful entry in the complainants abode.
Was the information correctly prepared by the prosecution? Why? (5%)
SUGGESTED ANSWER:
No. The aggravating circumstance of unlawful entry in the complainants
abode has to be specified in the information; otherwise, it cannot be considered as
aggravating. (Sec. 8 of Rule 110, Revised Rules of Criminal Procedure)
ALTERNATIVE ANSWER:
The information prepared by the prosecutor is not correct because the
accused should have been charged with qualified trespass to dwelling.
Criminal procedure; amendment and substitution of information
1994 No (3)
3.a) Within the context of the rule on Criminal Procedure, distinguish an
amendment from a substitution of an information.
Answer:
3.a) An amendment may be made in substance and form, without leave of
court, at any time before an accused pleads, and thereafter and during the trial as to
all matters of form, by leave and at the discretion of the court, when the same can
Page 104 of 181
be done without prejudice to the rights of the accused. Substitution may be made if it
appears at any time before judgment that a mistake has been made in charging the
proper offense, in which case, the court shall dismiss the complaint or information
upon filing of a new one charging the proper offense in accordance with Rule 119,
Sec. 11, provided that the accused would not be placed thereby in double jeopardy
and may also require the witnesses to give bail for their appearance at the trial.
)Sec. 14, Rule 110).
Criminal procedure; amendment of information
2001 No. VIII.
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 offense of serious physical injuries. The prosecution then filed an
amended information for serious physical injuries against Amando.
What steps or action should the prosecution take so that the amended
information against Amando which downgrades the nature of the offense could be
validly made? Why? (5%)
SUGGESTED ANSWER:
In order that the amended information which downgrades the nature of the
offense could be validly made, the prosecution should file a motion to ask for leave
of court with notice to the offended party. (Sec.14 of Rule 110, Revised Rules of
Criminal Procedure). The new rule is for the protection of the interest of the offended
party and to prevent possible abuse by the prosecution.
Criminal Procedure; amendment of information; double jeopary; bail; change
of plea
2002 No. IX.
A. D and E were charged with homicide in one information. Before they
could be arraigned, the prosecution moved to amend the information to exclude E
therefrom. Can the court grant the motion to amend? Why? (2%)
B. On the facts above stated, suppose the prosecution, instead of filing a
motion to amend, moved to withdraw the information altogether and its motion was
granted. Can the prosecution re-file the information although this time for murder?
Explain (3%)
C. If an information was filed in the RTC-Manila charging D with homicide
and he was arrested in Quezon City, in what court or courts may he apply for bail?
Explain. (3%)
D. D was charged with theft of an article worth p15,000.00. Upon being
arraigned, he pleaded not guilty to the offense charged. Thereafter, before trial
commenced, he asked the court to allow him to change his plea of not guilty to a
plea of guilt but only to estafa involving P5,000.00. Can the court allow D to change
his plea? Why? (2%)
SUGGESTED ANSWER:
A. Yes, provided notice is given to the offended party and the court states
its reasons for granting the same. (Rule 110, sec. 14).
B. Yes, the prosecution can re-file the information for murder in
substitution of the information for homicide because no double jeopardy has as yet
attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].
C. D may apply for bail in the RTC-Manila where the information was filed
or in the RTC-Quezon City where he was arrested, or if no judge, thereof is
Page 105 of 181
available, with any metropolitan trial judge, municipal trial judge or municipal circuit
trial judge therein. (Rule 114, sec. 17).
D. No, because a plea of guilty to a lesser offense may be allowed if the
lesser offense is necessarily included in the offense charged. (Rule 116, sec. 2).
Estafa involving P5,000.00 is not necessarily included in theft of an article worth
P15,000.00
Criminal procedure; amendment of information; supervening events
1997 No. 9:
A was accused of homicide for the killing of B. During the trial, the public
prosecutor received a copy of the marriage certificate of A and B.
(a) Can the public prosecutor move for the amendment of the information to
charge A with the crime of parricide?
(b) Suppose instead of moving for the amendment of the information, the
public prosecutor presented in evidence the marriage certificate without
objection on the part of the defense, could Abe convicted of parricide?
Answer:
(a) No. The Information cannot be amended to change the offense charged
from homicide to parricide. Firstly, the marriage is not a supervening fact arising
from the act constituting the charge of homicide. (Sec. 7[a] of Rule 117). Secondly,
after plea, amendments may be done only as to matters of form. The amendment is
substantial because It will change the nature of the offense. (Sec. 14 of Rule 110;
Dionaldo us. Dacuycuy. 108 SCRA 736).
(b) No. A can be convicted only of homicide not of parricide which is a
graver offense. The 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)
and (2} Art. III. 1987 Constitution),
Criminal procedure; bail
1991 No. II:
Claudio Ty was charged with murder in an information filed with the Regional
Trial Court in Dumaguete City. Through counsel, he filed an application for bail.
Without conducting a hearing on said application and without giving the prosecution
an opportunity to comment thereon, the judge granted bail to Ty after examining the
complaint and the affidavit attached to the bail application which. In the evaluation of
the judge, tend to show that the evidence of guilt is not strong. The prosecution
moved for reconsideration of the order granting ball, contending that the procedure
followed by the judge was irregular,
(a) Was the procedure followed by the judge in granting bail correct?
Answer;
(a) No, because the prosecution should have been given an opportunity to
comment on the application and to present strong evidence of guilt. [People v. Sola,
103 SCRA 393)
(b) If the judge denies the prosecution's motion for reconsideration, what
remedy or remedies may the prosecution pursue if it wishes to assail the order
before the appellate court?
Answer;
(b) The prosecution may file a petition for certiorari and mandamus with the
Court of Appeals or the Supreme Court in order to nullify the order of the RTC and to
Page 106 of 181
compel it to hold a hearing. It may also ask for a writ of preliminary inj unction
against the order granting ball.
(c) Supposing that Ty, after trial, was found guilty of murder and was
sentenced to reclusion perpetua, and he appealed to the Supreme Court, is he
entitled to bail during the pendency of such appeal?
Answer:
(c) No, Ty is not entitled to bail as a matter of right because the evidence of
his guilt is so strong that it resulted in his conviction by the trial court. However, on
exceptional grounds, he may be granted bail on appeal at the discretion of the court.
(Teehankee v. Director of Prisons, 76 Phil. 756)
(d) Supposing that Ty was convicted of the lesser offense of homicide and
was sentenced to a penalty, the maximum of which is within the range of reclusion
temporal and he appealed to the Court of Appeals, is he entitled to bail during the
pendency of such appeal?
Answer:
(d) No, he is not entitled to bail as a matter of right, because he may on
appeal be found guilty of murder and sentenced to reclusion perpetua.
(e) In relation to (d) above, the Court of Appeals did not affirm or modify the
Judgment. Instead, it expressed the opinion that the crime committed is murder
and that the penalty should be reclusion perpetua, and. accordingly certified the
case to the Supreme Court for final determination. Did it act properly?
Answer:
(e) No, the Court of Appeals should have rendered judgment imposing the
penalty of reclusion perpetua, refrained from entering judgment, and certified the
entire record to the Supreme Court for review. (People v. Daniel, 86 SCRA 367;
Sec. 13 of Rule 124)
Criminal procedure; bail
1993 No (9)
Accused was charged with the crime of kidnapping with murder. The
information recommended no bail, the charge being a capital offense which is non-
bailable.
After entering a plead of not guilty, accused filed an application for bail. The
application was opposed by the prosecution.
While the prosecution was still presenting evidence in support of its opposition
to the application for bail, the trial judge issued an order fixing bail of P100,000.00
for the provisional liberty of accused. The order reads.
After due consideration of the testimonial and documentary evidence
presented by the prosecution, this Court finds reasonable ground to believe that no
strong evidence exists against accused.
WHEREFORE, the application for bail is granted. Accused is granted bail,
which is fixed P100,000.00, for his provisional liberty>
Did the trial judge act correctly?Why?
Answer:
No, because since the accused was charged with an offense punishable by
reclusion perpetua or higher, he is not entitled to bail as a matter of right when
evidence of guilt is strong. It was premature for the court to grant bail while the
prosecution was still presenting evidence in support of its opposition to the
Page 107 of 181
application for bail. The prosecution had the right to present all evidence to show the
guilt of the accused before the court resolved the motion for bail.
Criminal procedure; bail
1994 No (12)
Ana is the lone eye witness to the brutal murder of Bruno allegedly committed
by accused Carlo. She deliberately refuses to appear on the scheduled dates for the
taking of her testimony for fear of reprisal from Carlos die-hard followers.
1. May Ana be ordered to post bail?
2. May the court motu proprio order her to post bail?
3. How shall Ana be proceeded against if she refuses to give bail?
4. What protection may Ana avail if in case she decides to testify at the trial?
Answer:
1. Yes, Ana may be ordered to post bail. When the court is satisfied, upon
proof or oath, that a material witness will not testify when required, it may upon
motion of either party order the witness to post bail in such sum as may be deemed
proper. (Sec.6, Rule 119).
2. NO. The rules require that the order to post bail is upon motion of either
party.
3. If Ana refuses to post bail, the court shall commit her to prison until she
complies or is legally discharge after her testimony has been taken.
4. In case Ana decides to testify, she may avail of the benefits under the
Witness Protection Act.
Criminal procedure; bail
1995 No. 12:
1. May ball be granted even if what is charged is a capital offense and the
evidence of guilt is strong? Explain.
2. Boyet was born on 6 January 1979, On 15 February 1995 he was
arrested on a charge of raping on 14 February 1995 his first cousin Lorna, a 13-year
old girl. While the prosecution recommended no bail for Boyet since the evidence
against him was strong, Boyet nevertheless applied for bail.
Should Boyet be granted bail. Explain. Answer;
1. Although bail is not a matter of right when the accused is charged with a
capital offense and the evidence of guilt is strong, there are rulings that in
exceptional cases, the court has discretion to grant bail on such cases. (Barinaga
vs. Tamin, 226 SCRA 206]
2. Yes, because a privileged mitigating circumstance will be considered in
determining whether an offense is bailable or not. (Bravo vs. Borja 134 SCRA 466)
Criminal procedure; bail
1996 No. 12:
4) Accused was charged with murder. At the hearing of his application for
bail, the prosecution manifested that it was ready to present evidence to prove that
the guilt of the accused is strong. The defense, however, contended that the report
and documents/papers in support of the prosecutor's certification of probable cause
in the information is sufficient to determine whether the evidence of guilt is strong,
thereby dispensing with the presentation of the prosecution's evidence.
Page 108 of 181
As judge, how would you resolve the contention of the defense? Explain.
Answer:
4) I would overrule the contention of the defense because the prosecution
has the right to present evidence to prove that evidence of guilt is strong. (Sec. 8 of
Rule 114) A hearing in indispensable.
Criminal procedure; bail
1999 No. XIV
a. When is bail a matter of right and when is it a matter of discretion?
(2%)
b. In what forms may bail be given? (2%)
c. When the accused is entitled as a matter of right to bail, may the Court
refuse to grant him bail on the ground that there exists a high degree of probability
that he will abscond or escape? Explain. (2%)
d. May the Court require a witness to post bail? Explain your answer,
(2%)
SUGGESTED ANSWER:
a. When Bail is a matter of right:
All persons in custody shall (a) before or after conviction by the metropolitan
and municipal trial courts, and (b) before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as
a matter of right, with sufficient sureties, or be released on recognizance as
prescribed by law or Rule 114. (Sec. 4, Rule 114, Rules of Court, as amended by
Circular No. 12-94.)
When bail is a matter of discretion:
Upon conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment, on application of the accused. If the penalty of
imprisonment exceeds six years but not more than 20 years, bail shall be denied
upon a showing by the prosecution, with notice to the accused, of the following or
other similar circumstances:
(a) That the accused is a recidivist, quasi-re-cidivist or habitual delinquent,
or has committed the crime aggravated by the circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal
confinement, evaded sentence, or has violated the conditions of his bail without valid
justification;
(c) That the accused committed the offense while on probation, parole, or
under conditional pardon;
(d) That the circumstances of the accused or his case indicate the
probability of flight if released on bail; or
(e) That there is undue risk that during the pendency of the appeal, the
accused may commit another crime. (Sec. 1, Id.)
b. Bail may be given by a corporate surety, or through a property bond,
cash deposit or recognizance. (Sec. 1, Id.)
c. If bail is a matter of right, it cannot be denied on the ground that there
exists a high degree of probability that the accused will abscond or escape. What
the court can do is to increase the amount of the bail. One of the guidelines that the
Page 109 of 181
judge may use in fixing a reasonable amount of bail is the probability of the accused
appearing in trial. Sec 9[g], Id.)
d. Yes. The court may require a witness to post bail if he is a material witness
and bail is needed to secure his appearance. The rules provide that when the court
is satisfied, upon proof or oath, that a material witness will not testify when required,
it may, upon motion of either party, order the witness to post bail in such sum as
may be deemed proper. Upon refusal to post bail, the court shall commit him to
prison until he complies or is legally discharged after his testimony is taken. (Sec. 6,
Rule 119, Rules of Court)
Criminal procedure; bail; appeal
1998 No XIII
In an Information charging them of Murder, policemen A, B and C were
convicted of Homicide. A appealed from the decision but B and C did not. B started
serving his sentence but C escaped and is at large. In the Court of Appeals, A
applied for bail but was denied. Finally, the Court of Appeals rendered a decision
acquitting A on the ground that the evidence pointed to the NPA as the killers of the
victim.
1. Was the Court of Appeal's denial of A's application for bail
proper? [2%]
2. Can B and C be benefited by the decision of the Court of Appeals? [3%]
SUGGESTED ANSWER:
1, Yes, the Court of Appeals properly denied A's application for ball. The
court had the discretion to do so. Although A was convicted of homicide only, since
he was charged with a capital offense, on appeal he could be convicted of the
capital offense. (Obosa vs. Court of Appeals, 266 SCRA 281.)
ALTERNATIVE ANSWER:
Under Circular No. 2-92, A is entitled to bail because he was convicted of
homicide and hence the evidence of guilt of murder is not strong.
SUGGESTED ANSWER;
2. B, who did not appeal, can be benefited by the decision of the Court of
Appeals which is favorable and applicable to him. (Sec. 11 [a]. Rule 122, Rules of
Criminal Procedure.) The benefit will also apply to C even if his appeal is dismissed
because of his escape.
Criminal procedure; bail; reduction
1989 (13)
1989 13.2) Florentino was charged with bigamy in the RTC of Manila, Branch
15. The trial judge issued the corresponding warrant of arrest and fixed the bail at
P12,000. Subsequently, Florentino was arrested in San Fernado, Pampanga, and
detained in the municipal jail of the said town. He requested the judge of the MTC of
San Fernando, Pampanga, to order his release on a reduce bail. The MTC judge
agreed to reduce the amount of the bail to P1,000 provided that the same be posted
in cash, which the accused did. Was the reduction of the bail proper? Explain.
Answer:
No, because the MTC Judge of San Fernado, Pampanga had no authority to
approve the bail, much less to reduce the amount thereof even if posted in cash.
Since Florentino was arrested in San Fernado, Pampanga, he should have filed the
bail in any RTC of said place, and only if there is no judge thereof available could he
have filed it with the MTC Judge of San Fernando, Pampanga.
Page 110 of 181
Criminal procedure; bail; where to apply
1989 (13)
13.1) Abraham was charged with homicide in the RTC of Manila, Branch 10.
The trial judge issued the corresponding warrant of arrest and fixed the bail at
P30,000. Before Abraham could be arrested, he filed the fixed bail with the MetroTC
of Manila, Branch 3, and the judge thereof approved the same. Was the approval of
the bail regular? Is the bail valid? Explain.
Answer:
No, because the bail should have been filed with the RTC of Manila, Branch
10, where the case was pending, or, in the absence or unavailability of the judge
thereof, with another branch of the same court in Manila. The MetroTC of Manila
had no authority to approve the bail. (Secs.14 and 16 of Rule 114)
Criminal procedure; BP22; civil action deemed included
2001 No. IV.
Saturnino filed a criminal action against Alex for the latters bouncing check.
On the date of the hearing after the arraignment, Saturnino manifested to the court
that he is reserving his right to file a separate civil action. The court allowed
Saturnino to file a civil action separately and proceeded to hear the criminal case.
Alex filed a motion for reconsideration contending that the civil action is deemed
included in the criminal case. The court reconsidered its order and ruled that
Saturnino could not file a separate action.
Is the courts order granting the motion for reconsideration correct? Why?
(5%)
SUGGESTED ANSWER:
Yes, the courts order granting the motion for reconsideration is correct. The
Rules provide that the criminal action for violation of B.P. Blg. 22 shall be deemed to
include the corresponding civil action, and that no reservation to file such civil action
separately shall be allowed. [Sec. 1(b), Rule 111, Revised Rules of Criminal
Procedure]
Criminal procedure; BP22; demurrer to evidence
2003 No. XII.
In an action for violation of Batas Pambansa Big. 22, the court granted the
accuseds demurrer to evidence which he filed without leave of court. Although he
was acquitted of the crime charged, he, however, was required by the court to pay
the private complaint the face value of the check. The accused filed a Motion of
Reconsideration regarding the order to pay the face value of the check on the
following grounds:
(a) the demurrer to evidence applied only too the criminal aspect of the
case; and
(b) at the very least, he was entitled to adduce controverting evidence on
the civil liability.
Resolve the Motion for Reconsideration. (6%)
SUGGESTED ANSWER:
(a) The Motion for Reconsideration should be denied. The 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 Pambansa Blg. 22 included the
corresponding civil action. (Sec. 1(b) of Rule 111).
Page 111 of 181
(b) The accused was not entitled to adduce controverting evidence on the
civil liability, because he filed is demurrer to evidence without leave of court. (Sec.
23 of Rule 119).
Criminal procedure; civil liability
1996 No. 12:
2) An information for frustrated homicide failed to allege the damages
incurred by the offended party. At the trial, the court upon objection of the accused,
barred the prosecution from proving the damages suffered by complainant for the
reason that it was not alleged in the information. Accused presented evidence to
prove his innocence. After trial, the court convicted the accused sentencing him to
imprisonment without any award of damages.
Was the court correct in disallowing the prosecution from presenting proof
relative to accused's civil liability? Explain briefly.
Answer:
2) No, in a criminal case, the civil action for recovery of civil liability is
impliedly instituted with the criminal action, unless the offended party waives the civil
action, reserves his right to institute it separately, or institutes the civil action prior to
the criminal action. Consequently, the prosecution has the right to present evidence
of damages suffered even if it was not alleged. (Sec. 1 of Rule 111)
Criminal procedure; complaint/information; discretionary power of fiscal;
injunction
1999 No. XII
a. Distinguish a Complaint from Information. (2%)
b. A filed with the Office of the Fiscal a Complaint for estafa against B.
After the preliminary investigation, the Fiscal dismissed the Complaint for lack of
merit. May the Fiscal be compelled by mandamus to file the case in court? Explain.
(2%)
c. Will injunction lie to restrain the commencement of a criminal action?
Explain. (2%)
SUGGESTED ANSWER:
a. In criminal procedure, a complaint is a sworn written statement charging
a person with an offense, subscribed by the offended party, any peace officer or
other peace officer charged with the enforcement of the law violated. (Sec. 3, Rule
110, 1985 Rules of Criminal Procedure); while an information is an accusation in
writing charging a person with an offense subscribed by the prosecutor and filed with
the court. (Sec. 4, Id.)
b. No. The public prosecutor may not be compelled by mandamus to file
the case in court because the determination of probable cause is within the
discretion of the prosecutor. The remedy is an appeal to the Secretary of Justice.
(Sec. 4 Rule 112.)
c. As a general rule, injunction will not lie to restrain a criminal prosecution
except:
(1) To afford adequate protection to the constitutional rights of the accused;
(2) When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
(3) When double jeopardy is clearly apparent;
Page 112 of 181
(4) Where the charges are manifestly false and motivated by the lust for
vengeance;
(5) Where there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied.
(See cases cited in Roberts, Jr., vs. Court of Appeals, 254 SCRA 307 [1996]
and Brocka v. Enrile, 192 SCRA 183 [1990].)
Criminal procedure; complex crimes; jurisdiction
2003 No. XIII.
In complex crimes, how is the jurisdiction of a court determined? 4%
SUGGESTED ANSWER:
In a complex crime, jurisdiction over the whole complex crime must be lodged
with the trial court having jurisdiction to impose the maximum and most serious
penalty imposable on an offense forming part of the complex crime. (Cuyos v.
Garcia, 160 SCRA 302 [1988]).
Criminal procedure; corpus delicti
1990 (19)
Charged with murder, Jorge filed a demurrer to the evidence after the
prosecution rested on the ground that there is no evidence of the corpus delicti.
Several witnesses testified that the accused shot the victim and threw the body into
the ocean. Notwithstanding a diligent search, the body was not found. Evidence was
introduce to the effect that the waters where the body was thrown is shark-infested.
Is the demurrer tenable? Explain your answer.
Answer:
No, because the testimony of several witnesses that the accused shot the
victim and threw his body into the ocean which was shark-infested and that despite
diligent search the body was not found, is sufficient evidence of corpus delicti. In
murder, the corpus delicti is the fact of death, whether or not feloniously caused. It
does not refer to the body of the murdered person. (People vs. Taruc, 16 SCRA 834;
People vs. Fontanosa, 20 SCRA 249)
Criminal procedure; court martial; jurisdiction
1990 (17)
(a) Does a court martial have jurisdiction to try and convict a soldier, a
policeman and a civilian for alleged conspiracy in the crime of murder? Explain your
answer.
(b) may a member of the military, who committed certain violations of the
Articles of War, be tried by a court martial even after his discharge from the military
service? Discuss with reasons.
Answer:
The Bar Chairman has decided to exclude these questions.
Criminal procedure; demurrer to evidence
1989 (14)
14.1) State the rule on demurrer to evidence in the trial of criminal cases.
Answer:
After the prosecution has rested its case, the court may dismiss the case on
the ground of insufficiency of evidence; (1) on its own motion after giving the
Page 113 of 181
prosecution an opportunity to be heard; or (2) on motion of the accused filed with
prior leave of court. If the court denies the motion for dismissal, the accused may
adduce evidence in his defense. When the accused files such motion to dismiss
without express leave of court, he waives the right to present evidence and submits
the case for judgment on the basis of the evidence for the prosecution. (Sec.15 of
Rule 119)
14.2) Geronimo was charged with homicide in the RTC of Pasay City. After
his plea of not guilty, the prosecution presented its evidence and formally offered
several exhibits. Before admitting or objecting to the exhibits offered by the
prosecution, Geronimo moved that the case be dismissed on the ground of
insufficiency of evidence. The court denied the motion. Thereafter, Geronimo called
his first witness to the stand. The prosecution objected, contending that Geronimo
waived his right to present evidence since he never asked leave of court to demur to
the evidence presented by the prosecution. Decide.
Answer:
Objection overruled. The rule on waiver does not apply because the
prosecution had not yet rested its case when Geronimo moved to dismiss on the
ground of insufficiency of evidence.
Criminal procedure; demurrer to evidence
1991 No. XII:
A. After the prosecution rested its case in a criminal action for rape, the
accused filed a demurrer to the evidence.
(a) If the court denies said motion, may the accused adduce evidence in his
defense?
Answer;
A. (a) If the accused had obtained prior leave of court to file a demurrer to the
evidence, he may adduce evidence in his defense upon denial of his motion for
dismissal.
However, if he had not obtained prior leave of court, he waives the right to
present evidence and submits the case for Judgment on the basis of the evidence
for the prosecution. (Sec. 15 of Rule 19 as amended)
(b) Is the rule on demurrer to evidence the same in civil actions?
Answer:
(b) No. In civil cases, the defendant has the right to adduce evidence if his
motion for dismissal is denied. However, if the motion is granted and the order of
dismissal is reversed on appeal, he loses his right to present evidence. (Sec. 1 of
Rule 35)
Criminal procedure; demurrer to evidence
1994 No (13)
After the government has rested its case of Rauls trial for Qualified Theft,
Raul, with leave of court, filed a Motion to Acquit on the ground of lack of evidence
proving his guilt beyond reasonable doubt. The motion was denied on the ground
that Raul should have filed a demurrer to evidence, not a Motion to Acquit. On the
same day, without giving him the opportunity to present his defense, Raul was
convicted on the basis of the evidence adduced by the prosecution.
13.a) Did the trial court correctly deny Rauls motion?
13.b) Was Rauls conviction proper?
Page 114 of 181
Answer:
13.a) No. The court did not correctly deny Rauls motion to acquit. Demurrer
to the evidence and motion to acquit are one and the same thing. Demurrer to
evidence is actually a motion to dismiss the case based on the insufficiency of the
evidence of the prosecution. If the court finds that the evidence is insufficient, it may
dismiss the case on the ground, and that amounts to an acquittal of the accused.
(Sec. 15, Rule 119).
13.b) No, Rauls, conviction was not proper because he was not given the
opportunity to present his defense. The rule is that if the court denies the motion for
dismissal filed with prior leave of court, the accused may adduce evidence in his
defense. It is only when the accused files such motion to dismiss without express
leave of court that he waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
Criminal procedure; demurrer to evidence
1996 No. 10:
2) A was charged with the crime of kidnapping with murder. After the
prosecution rested its case. A filed a demurrer to evidence on ground of insufficiency
of evidence to sustain his conviction. The prosecution filed an opposition. The trial
court denied the demurrer and the motion for reconsideration thereafter filed. A filed
a petition for certio-rari with the Court of Appeals alleging that the denial of the
demurrer to evidence, when there is no evidence against him, constitutes grave
abuse of discretion, and prayed that the Court of Appeals render judgment acquitting
him.
May the trial court's denial of the demurrer to evidence be properly assailed
by a petition for certiorari in the Court of Appeals? Explain.
Answer:
2) The question does not state that A had obtained prior leave of court to file
a demurrer to evidence. Without such leave of court, A has waived his right to
present evidence and has submitted the case for judgment on the basis of the
evidence for the prosecution. (Sec. 15 of Rule 119)
Alternative Answer:
No, because the question of sufficiency of evidence to sustain a conviction
may not be raised in a petition for certiorari. The remedy of A is to present his
evidence and in the event of conviction to appeal. (Joseph us. Villaluz, 89 SCRA
824)
Criminal procedure; demurrer to evidence
1998 No XIV.
Facing a charge of Murder, X filed a petition for ball. The petition was
opposed by the prosecution but after hearing. the court granted bail to X. On the first
scheduled hearing on the merits, the prosecution manifested that it was not
adducing additional evidence and that it was resting its case. X filed a demurrer to
evidence without leave of court but it was denied by the court.
1. Did the court have the discretion to deny the demurrer to evidence under
the circumstances mentioned above? (2%)
2. If the answer to the preceding question is in the affirmative, can X
adduce evidence in his defense after the denial of his demurrer to evidence? [1%]
3. Without further proceeding and on the sole basis of the evidence of the
prosecution, can the court legally convict X for Murder? (2%)
Page 115 of 181
SUGGESTED ANSWER:
1. Yes. The Court had the discretion to deny the demurrer to the evidence,
because although the evidence presented by the prosecution at the hearing for bail
was not strong, without any evidence for the defense, it could be sufficient for
conviction.
2. No. Because he filed the demurrer to the evidence without leave.
(Sec. 15, Rule 119, Rules of Criminal Procedure.) However, the trial court should
inquire as to why the accused filed the demurrer without leave and whether his
lawyer knew that the effect of filing it without leave is to waive the presentation of the
evidence for the accused. (People vs. Flores, 269 SCRA 62.)
3. Yes. Without any evidence from the accused, the prima facie evidence of
the prosecution has been converted to proof beyond reasonable doubt.
ALTERNATIVE ANSWER:
If the evidence of guilt is not strong and beyond reasonable doubt then the
court cannot legally convict X for murder.
Criminal procedure; demurrer to evidence
2001 No. I.
Carlos, the accused in a theft case, filed a demurrer to evidence without
leave of court. The court denied the demurrer to evidence and Carlos moved to
present his evidence. The court denied Carlos motion to present evidence and
instead judgment on the basis of the evidence for the prosecution.
Was the court correct in preventing Carlos from presenting his evidence and
rendering judgment on the basis of the evidence for the prosecution? Why? (5%)
SUGGESTED ANSWER:
Yes, because the demurrer to the evidence was filed without leave of court.
The Rules provide that when the demurrer to evidence is filed 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, Revised
Rules of Criminal Procedure)
Criminal procedure; demurrer to evidence
2004 NO. III
B. The information for illegal possession of firearm filed against the accused
specifically alleged that he had no license or permit to possess the caliber .45 pistol
mentioned therein. In its evidence-in-chief, the prosecution established the fact that
the subject firearm was lawfully seized by the police from the possession of the
accused, that is, while the pistol was tucked at his waist in plain view, without the
accused being able to present any license or permit to possess the firearm. The
prosecution on such evidence rested its case and within a period of five days
therefrom, the accused filed 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 acquitted of the offense charged.
The 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. In due time, the court rendered judgment
finding the accused guilty of the offense charged beyond reasonable doubt and
accordingly imposing on him the penalty prescribed therefor.
Is the judgment of the trial court valid and proper? Reason. (5%)
Criminal procedure; dismissal; failure to prosecute
Page 116 of 181
2003 No. XV.
When a criminal case is dismissed on nolle prosequi, can it later be refilled?
(4%)
SUGGESTED ANSWER:
As a general rule, when a criminal case is dismissed on nolle prosequi before
the accused is placed on trial and before he is called on to plead, this is not
equivalent to an acquittal and does not bar a subsequent prosecution for the same
offense. (Galvez v. Court of Appeals, 237 SCRA 685 [1994]).
Criminal Procedure; double jeopardy
1987 No (11)
The accused pleaded not guilty to the charge of less serious physical injuries.
Before judgment, the fiscal moved that he be allowed to file a new information
against the accused for a graver crime of frustrated murder it appearing that the
injuries were inflicted with intent to kill. The defense objected upon the ground that
the charge for less serious physical injuries is included in the offense of frustrated
murder and since he had already pleaded to the lesser charge, the filing of a new
information would constitute second jeopardy. The prosecution replied that there
would be no double jeopardy as the complaint will be dismissed upon the filing of the
information for frustrated murder, pursuant to Sec. 11, Rule 119 of the 1985 Rules
on Criminal Procedure relevant to situations when mistake has been made in
charging the proper offense. The fiscal argued that the fact of the accuseds intent to
kill was discovered by the prosecution and the complainant only during trial of the
case.
(a) Resolve the motion. Reasons.
(b) Suppose the intent to kill is indicated in the affidavits witnesses for the
complainant which were the basis for the filing of the complaint, would your
resolution be different and if so, why?
Answer:
(a) Motion denied. The charge of less serious physical injuries is necessarily
included in the offense of frustrated murder and under Sec. 11, Rule 119 of the 1985
Rules on Criminal procedure, the dismissal of the original case upon the filing of the
new one can only be done if the accused cannot be convicted of the offense
charged. In this case the accused can be convicted of less serious physical injuries.
Moreover, the dismissal of the original complaint upon the filing of a new one
charging the proper offense can only be done provided the accused would not be
placed in double jeopardy. In this case the accused would be placed in double
jeopardy. (Sec. 14, Rule 114; People vs. Mogul, 131 SCRA 296)
(b) Motion denied. With more reason should the motion be denied if the intent
to kill is indicated in the affidavits which were the basis for the filing of the complaint,
because not only is the intent to kill not a new supervening fact, but it is not even a
subsequent discovered fact. (Sec. 7, Rule 117)
Another Alternative Answer:
(a) Motion granted. While intent to kill is not a new supervening fact which
constitute an exception to the rule on identity of offenses in double jeopardy (People
vs, Besa, 74 Phil. 57), an additional exception has been added in the 1985 Rules on
Criminal Procedure; namely, when the facts constituting the graver charge became
known or were discovered only after the filing of the former complaint or information.
In this case, the intent to kill was discovered only during the trial of the case, and
hence, a new complaint may be filed for frustrated murder without placing the
Page 117 of 181
accused in double jeopardy. (Sec. 7(b) of Rule 117)
(b) Motion denied. The resolution would be different, because in such case
the intent to kill would not fall under the additional exception of subsequently
discovered fact.
Criminal procedure; double jeopardy
1988 (16)
George was charged with falsification. On the date of initial trial, the fiscal
moved for postponement on the ground that the case had been assigned to a
special prosecutor of the DOJ who was out of town to attend to an urgent case, and
who had wired him to request for the postponement. The fiscal manifested that he
was not ready for trial because he was unfamiliar with the case. The judge then
asked the accused as well as his counsel wether they were amenable to a
postponement. Both George and his counsel insisted on a trial. The judge ordered
the case dismissed.
Upon learning thereof, the special prosecutor file a petition for certiorari under
Rule 65 alleging that the dismissal was capricious and deprived the Government of
due process. George opposed the petition invoking double jeopardy.
(a) Is double jeopardy a bar to the petition? Explain.
(b) Suppose that trial on the merits had in fact proceeded and the trial judge,
finding the evidence to be insufficient, dismissed the case, would your answer be the
same? Explain.
Answer:
(a) No, because this is not an appeal by the prosecution asserting a dismissal
to be erroneous. It is a petition for certiorari which assails the order of dismissal as
invalid and a nullity because it was capricious and deprived the Government of due
process. Considering that this was the first motion for postponement of the trial filed
by the fiscal and the ground was meritorious, the judge gravely abuse his discretion
in ordering the case dismissed. If there is no valid dismissal or termination of the
case, there is no basis for invoking double jeopardy. (People vs. Gomez, 20 SCRA
293)
(b) No, because in such a case, the order of dismissal would be valid, even if
erroneous, and wold be tantamount to an acquittal.
Criminal procedure; double jeopardy
1993 No (6)
For firing a machine gun which caused panic among the people present and
physical injuries to one, two separate information( one for serious public disturbance
and the other for reckless imprudence resulting in physical injuries) were filed
against the accused.
As he pleaded guilty to the charge of reckless imprudence resulting in
physical injuries, the accused was convicted and sentenced accordingly.
Later the accused sought to dismiss the charge of serious public disturbance
on the ground of double jeopardy.
Is there double jeopardy?Why?
Answer:
No, because the protection against double jeopardy is only for the same
offense. A single act may be an offense against two different provisions of law and if
Page 118 of 181
one provision requires proof of an additional fact which the other does not, an
acquittal or conviction under one does not bar prosecution under the other.
In this case, the act of firing a machine gun violated two articles of the
Revised Penal Code. Consequently, conviction for one does not bar prosecution for
the other.
Alternative Answer:
Yes, because only one offense of reckless imprudence resulting in physical
injuries and serious public disturbance was committed.
Criminal procedure; double jeopardy
1994 No (4)
4.b) In a case of a prosecution of an accused for estate after his acquittal of
the crime of the crime of illegal recruitment, but which involves the same set of facts
as the first case, can the accused raised the defense of double jeopardy?
How about res judicata?
Answer:
4.b) N0, the accused cannot raise the defense of double jeopardy because
the offenses of estafa and illegal recruitment are separate offenses though they
involve the same set of facts.
Res judicata is not applicable in the case at bar.
Criminal procedure; double jeopardy
2004 NO. VII
B. SPO1 CNC filed with the Metropolitan Trial Court in Quezon City (MeTC-
QC) a sworn written statement duly subscribed by him, charging RGR (an actual
resident of Cebu City) with the offense of slight physical injuries allegedly inflicted on
SPS (an actual resident of Quezon City). The Judge of the branch to which the case
was raffled thereupon issued an order declaring that the case shall be governed by
the Rule on Summary Procedure in criminal cases. Soon thereafter, the Judge
ordered the dismissal of the case for the reason that it was not commenced by
information, as required by said Rule.
Sometime later, based on the same facts giving rise to the slight physical
injuries case, the City Prosecutor filed with the same MeTC-QC an information for
attempted homicide against the same RGR. In due time, before arraignment, RGR
moved to quash the information on the ground of double jeopardy and after due
hearing, the Judge granted his motion.
Was the dismissal of the complaint for slight physical injuries proper? Was
the grant of the motion to quash the attempted homicide information correct?
Reason. (5%)
Criminal procedure; double jeopardy; provisional dismissal; bail
2002 No. X.
A. D was charged with slight physical injuries in the MTC. He 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. On 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. The court reconsidered its order and directed D to present his
evidence. Before the next date of trial came, however, D moved that the last order
be set aside on the ground that the reinstatement of the case had placed him twice
Page 119 of 181
in jeopardy. Acceding to this motion, the court again dismissed the case. The
prosecutor then filed an information in the RTC, 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 inflicted 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 quash the second information on the ground that its
filing had placed him in double jeopardy. How should Ds motion to quash be
resolved? (4%)
B. In a prosecution for robbery against D, the prosecutor moved for the
postponement of the first scheduled hearing on the ground that he had lost his
records of the case. The 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. If Ds counsel does not object, may the court
grant the motion of the prosecutor? Why/ (3%)
C. D was charged with murder, a capital offense. After arraignment, he
applied for bail. The 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 Ds guilt was strong for purposes of bail. Is the ruling correct? Why?
(3%)
SUGGESTED ANSWER:
A. Ds motion to quash should be granted on the ground of double
jeopardy because the first offense charged is necessarily included in the second
offense charged. [Draculan v. Donato, 140 SCRA 425 (1985)].
ALTERNATIVE ANSWER:
Ds motion to quash should be denied because the two dismissals of the case
against him were on his motion (hence with his express consent) and his right to a
speedy trial was not violated.
SUGGESTED ANSWER:
B. No, because a case cannot be provisionally dismissed except upon the
express consent of the accused and with notice to the offended party. (Rule 117,
sec. 8).
C. No, the prosecution is only required to present as much evidence as is
necessary to determine whether the evidence of Ds guilt is strong for purposes of
bail.(Rule 114, sec. 8).
Criminal procedure; effect of death of accused
1995 No. 9:
Donald was convicted of serious physical injuries inflicted on his househelp
Paula. He appealed but died during the pendency of his appeal.
1. What is the effect of the death of Donald on his criminal liability? Explain.
2. What is the effect of his death on his civil liability based solely on his
criminal act? Explain.
3. What Is the effect of his death on his civil liability based on a quasi-delict
or tort? Explain.
4. What is the effect of his death if in the criminal case Paula did not make
the necessary reservation to file a separate civil action for damages? Explain.
5. What Is the effect of his death If Paula reserved her right to file a separate
civil action but had not yet done so when Donald died? Explain.
Page 120 of 181
Answer:
1. Donald's criminal liability is extinguished by his death. [Art. 89(1], RPC)
2. The death of Donald pending appeal extinguishes not only his criminal
liability but also the civil liability based solely thereon. (People vs. Bayotas, 236
SCRA 239)
3. His death does not affect his civil liability based on quasi-delict or tort,
[Id.)
4. If Paula did not make the necessary reservation to file a separate civil
action for damages, she could still file a separate civil action against the
executor/administrator or heirs of the estate of the accused. (Id.}
Alternative Answer:
Despite the dismissal of the criminal action, the appeal shall continue with
respect to the civil liability for damages of the accused who will be substituted by his
executor/ administrator or heirs. Since despite the acquittal of an accused he can be
made civilly liable under Sec. 2 of Rule 120 (Roy Padilla vs. CA, 129 SCRA 588;
People vs. Jalandoni, 131 SCRA 454, etc.) a similar rule should be applied in case
of death of an accused.
5. The death of Donald will not affect Paula's right to file a separate civil
action against the executor/administrator or heirs of Donald.
Criminal procedure; effect of filing of information
1991 No. XI:
After reviewing the record of a preliminary Investigation of a homicide case,
the Secretary of Justice reversed the resolution of the Provincial Prosecutor and
directed the latter to move for the dismissal of the Information which had been filed
in the Regional Trial Court of Pasig. The Provincial Prosecutor thus filed such
motion.
(a) May the RTC judge refuse to order the dismissal of the criminal case and
insist on the arraignment and trial of the accused?
Answer:
(a) Yes. Upon the filing of the information, the court acquires jurisdiction over
the criminal action. The subsequent filing of a motion for dismissal, even upon the
direction of the Secretary of Justice, is addressed for the consideration of the court,
and the court in the exercise of its discretion may grant the motion or deny it and
require the arraignment and trial of the accused to proceed. (Crespo v. Mogul 151
SCRA 462).
(b) If the judge refuses to grant the Provincial Prosecutor's motion to dismiss,
may a special civil action for mandamus lie to compel the judge to grant the motion?
Answer:
(b) No, mandamus will not lie because the court has discretion whether to
grant or deny the motion.
Criminal procedure; effect of plea of guilty
1993 No (2)
Charged with the crime of murder before the Regional Trial Court of Bulacan,
the accused assisted by counsel, pleaded guilty to the charge. Thereupon, the trial
court rendered a judgment convicting the accused for the crime of murder and
sentencing him to suffer reclusion perpetual and to pay civil indemnity to the heirs of
the victim.
Page 121 of 181
Did the trial court act properly?Why?
Answer:
Yes, because it is only when the accused is charged with a capital offense
punishable with death that the court shall conduct a searching inquiry into the
voluntaries and full comprehension of the consequences of the plea of guilty and
require the prosecution to prove his guilt beyond the precise degree of culpability.
The crime charged of murder is not a capital offense, because the death penalty
cannot be imposed under the Constitution.
Criminal procedure; effect of plea of guilty
1995 No. 11:
Crisanto is charged with murder. At his arraignment the prosecution
witnesses appeared in court together with the heirs of the victim. Realizing the
gravity of the offense and the number of witnesses against htm Crisanto consulted
his counsel de oficio who explained to him the nature of the charge and the
consequences of his plea. Crisanto then manifested his readiness for arraignment.
The information was read to him in a language he clearly understood after which he
pleaded guilty. To be sure, the Judge forthwith asked him if indeed he fully
understood the implications of his plea and Crisanto readily and without hesitation
answered in the affirmative. The judge, fully convinced that the plea of the accused
was made with the latter's full knowledge of the meaning and consequences of his
plea, then pronounced sentence on the accused.
1. Comment on the action of the judge. Explain.
2. Suppose Crisanto with the assistance of counsel waives the presentation
of evidence by the prosecution saying that, after all, he has already entered his plea,
may the court insist on the presentation of the evidence for the prosecution?
Explain.
3. Suppose upon plea bargaining Crisanto decides to plead guilty to the
lesser offense of homicide, may the court still require presentation of evidence?
Explain,
4. After the information was read to Crisanto upon arraignment and he
pleaded guilty to the charge but the facts did not sufficiently constitute an offense,
did his plea of guilt, which has already been entered in the records, have the effect
of supplying what was not alleged in the information to complete the elements of the
offense to justify his conviction? Explain.
Answer:
1. The Judge erred in pronouncing sentence on the accused without
previously conducting a searching inquiry into the voluntariness and full
comprehension of the consequences of the plea of guilty and requiring the
prosecution to prove the guilt and the precise degree of culpability. (Sec, 3. Rule
116)
2. Yes, in accordance with the above rule.
3. Although Crisanto pleads guilty to a non-capital offense the court may still
require evidence to determine the penalty to be imposed. (Sec. 4, Rule 116)
4. No, his plea of guilty did not have the effect of supplying what was not
alleged in the information to complete the elements of the offense to justify his
conviction. His plea merely admits the truth of the facts alleged in the information.
Criminal procedure; effect of plea of guilty
1996 No. 13:
Page 122 of 181
2) X was charged with murder attended by treachery and evident
premeditation. During arraignment, X, assisted by counsel, pleaded guilty with the
qualification "hindi ko sinadya patayin", X's counsel assured the court that he fully
apprised X of the Information, the nature of the charge, and the consequences of his
plea. X even waived the prosecution's presentation of evidence against him. The
court convicted X of murder,
a) Was the plea of guilty entered valid? Explain.
b) May the prosecution dispense with the presentation of evidence despite
the waiver of the accused? Explain.
Answer;
2. a) No, the plea of guilty by X with the qualification "Hindi ko sinadya
patayin" was a conditional plea of guilty and hence a plea of not guilty should be
entered for him. (Sec. 1-C of Rule 116]
Alternative Answer;
No, because when the accused pleads guilty to a capital offense, the court
shall conduct a searching inquiry into the voluntariness and full comprehension of
the consequences of his plea. The court should not rely on the assurance of the
counsel of the accused for this purpose. (Sec. 3 of Rule 116}
b) No. the court should require the prosecution to prove the guilt and precise
degree of culpability of the accused. (Id.}
Criminal procedure; enjoinment of criminal cases; when allowed
1989 (12)
12.1) May the prosecution of a criminal case be enjoined? Explain.
Answer:
The prosecution of a criminal case may be enjoined in the following
exceptional cases:
1) For the orderly administration of justice;
2) To prevent the use of the strong arm of the law in an oppressive or
vindictive manner;
3) To avoid multiplicity of suits;
4) To afford adequate protection to constitutional rights;
5) In proper cases, when the statute relied upon is unconstitutional.
(Primicias vs. Municipality of Urdaneta, 93 SCRA 462)
Criminal procedure; filing of information; effect
2003 No. XVI.
After the requisite proceedings, the Provincial Prosecutor filed an Information
for homicide against X. The latter, however, timely filed a Petition for Review of the
Resolution of the Provincial Prosecutor with the Secretary of Justice who, in due
time, issued a Resolution reversing the resolution of the Provincial Prosecutor and
directing him to withdraw the Information.
Before the Provincial Prosecutor could comply with the directive of the
Secretary of Justice, the court issued a warrant of arrest against X.
The Public Prosecutor filed a Motion to Quash the Warrant of Arrest and to
Withdraw the Information, attaching to it the Resolution of the Secretary of Justice.
The court denied the motion. (6%)
Page 123 of 181
(a) Was there a legal basis for the court to deny the motion?
(b) If you were the counsel for the accused, what remedies, if any, would
you pursue?
SUGGESTED ANSWER:
a. Yes, there is a legal basis for the court to deny the motion to quash the
warrant of arrest and to withdraw the information. The court is not bound by the
Resolution of the Secretary of Justice. (Crespo v. Mogul, 151 SCRA 462 [1987]).
b. If I were the counsel for the accused, I would surrender the accused
and apply for bail because the offense is merely homicide, a non-capital offense. At
the pre-trial, I would make a stipulation of facts with the prosecution which would
show that no offense was committed.
Criminal procedure; insufficient information
1992 No. VII;
An information was filed in the proper court against Arturo charging him with
theft of 300 blocks of industrial aluminum worth P999,000.00 allegedly committed
"on or about the period from January l986 to December23, 1991." Arturo filed a
motion to quash the information on the ground that it was grossly insufficient and
fatally defective since there is such a great gap in the inclusive period of the alleged
commission of the offense. He is, in effect, being deprived of a reasonable
opportunity to defend himself.
In resolving the motion to quash, what basic and ancillary rulings should the
court make so that it can extend to the accused optimum and adequate relief.
Discuss fully.
Suggested Answer;
The court may grant the motion to quash on the ground that the allegation of
the time of commission of the offense is defective because the period from January
1986 to December 23, 1991, or almost six years, is too indefinite to give the accused
an opportunity to prepare his defense; or the court may order the amendment of the
information or the submission of a bill of particulars so as to allege the actual date or
at least as near to it as possible in order not to surprise and substantially prejudice
the accused.
Criminal procedure; insufficient information; remedies and effects
1994 No (11)
Chato is charged with the murder of Velay. Before arraignment, you, as
counsel de oficio of Chato discovered that the information failed to allege any
qualifying circumstances.
11.a) How may you properly object to the insufficiency of the information, and
on what ground?
11.b) May you still avail of that remedy after Chato has entered her plea?
11.c) What course or courses of action may the court take if it sustains the
remedy you seek?
Answer:
11.a) As counsel de oficio for the accused, I can file a motion to quash based
on the ground that the facts charged do not constitute the crime of murder there
being no qualifying circumstances alleged. (Sec.3a, Rule 117).
Alternative Answer:
Page 124 of 181
11.a) As counsel de oficio for the accused, I will not file a motion to quash
because it will only aggravate the crime charged. As it is charged, Chato can be
convicted only of homicide.
11.b) After Chato has entered her plea, she may no longer move to quash
because she is barred from doing so. (Sec. 1, Rule 117).
11.c) If the court sustains the motion to quash, the court may order that
another information be filed. If the accused is in custody, he shall remain so unless
he shall be admitted to bail. If the information is not filed within the time specified or
within the time specified in the order, or within such further time as the court may
allow for good cause shown, the accused, if in custody, shall be discharged
therefrom, unless he is also in custody on some other charge. (Sec.5, Rule 117).
Criminal procedure; jurisdiction over BP22 cases
1989 (12)
12.2) On January 2, 1989, Ernani purchased construction materials for his
new building in Calamba, Laguna, from a hardware store located in Batangas City
and owned by Daniel. On the same date and in payment of the materials, Ernani
issued a Metrobank check (Calamba branch) for P500,000 which was drawn and
signed by him in Calamba. Daniel deposited the check with the Metrobank,
Batangas City branch, but the same was dishonored for insufficient funds. Despite
several demands, Ernani failed to make good his check so that a case for violation
of BP 22 (The Bouncing Checks Law), after a preliminary investigation thereof was
conducted, was filed with the RTC of Batangas. Ernani moved to quash the case on
the ground of lack of jurisdiction, contending that the case should have been filed
with the RTC of Calamba, Laguna, since the check was drawn and signed in
Calamba. How would you decide the motion? Explain.
Answer:
Motion to quash is denied. Violation of BP 22 is a transitory or continuing
offense which may be validly tried either in the place where the check was issued or
in the place where the check was dishonored. Since the check in question was
dishonored by the Metrobank in Batangas, the RTC of Batangas has jurisdiction
over the case. (People vs. Grospe, 157 SCRA 154)
Criminal procedure; modification of judgment
1989 (15)
15.2) After the trial of the case involving damage to property through reckless
imprudence, the judge rendered judgment sentencing the accused to pay a fine of
P9,000. Two days after the promulgation of the decision and before the accused
could appeal, the judge, motu propio, modified the judgment to read as follows: to
pay a fine of P9,000 with subsidiary imprisonment in case of insolvency and to
indemnify the offended party in the amount of P3,000 as actual damages. The
accused contends that this modification is improper. Decide.
Answer:
The modification of the judgment of conviction by imposing subsidiary
imprisonment in case of insolvency is improper, inasmuch as the new Rules in
Criminal Procedure provide that a judgment of conviction may be modified only on
motion of the accused. (This changes the ruling in People vs. Tamayo, 89 Phil. 209
and People vs. Espaol, 114 SCRA 911).
However, the modification of the judgment for the indemnification of the
offended party could properly be made upon timely motion of the prosecution or the
offended party. (Ramos vs. Gonong, 72 SCRA 561)
Page 125 of 181
Criminal procedure; motion to quash
2000 No. X.
BC is charged with illegal possession of firearms under an Information signed
by a Provincial Prosecutor. After arraignment but before pre-trial, BC found out that
the Provincial Prosecutor had no authority to sign and file the information as it was
the City Prosecutor who has such authority. During the pre-trial, BC moves that the
case against him be dismissed on the ground that the Information is defective
because the officer signing it lacked the authority to do so. The Provincial
Prosecutor opposes the motion on the ground of estoppel as BC did not move to
quash the Information before arraignment. If you are counsel for BC, what is your
argument to refute the opposition of the Provincial Prosecutor? (5%)
SUGGESTED ANSWER:
I would argue that since the Provincial Prosecutor had no authority to file the
information, the court did not acquire jurisdiction over the person of the accused and
over the subject matter of the offense charged. (Cudia v. Court of Appeals, 284
SCRA 173 [1999]). Hence, this ground is not waived if not raised in a motion to
quash and could be raised at the pre-trial. (Sec. 8, Rule 117, Rules of Court).
Criminal procedure; motion to quash; prel. inves.
1998 No XV
1. Give two (2) grounds to quash an Information.[2%]
2. If the Information is not accompanied by a certification that a preliminary
investigation has been conducted. Is the Information void? [3%]
SUGGESTED ANSWER:
1. Two grounds to quash an Information are:
(a) That the facts charged do not constitute an offense; and
(b) That the court trying the case has no jurisdiction over the offense charged
or the person of the accused.
Note: The other grounds are:
(c) That the officer who filed the information had no authority to do so;
(d) That it does not conform substantially to the prescribed form;
(e) That more than one offense is charged except in those cases in which
existing laws prescribe a single punishment for various offenses;
(f) That the criminal action or liability has been extinguished;
(g) That it contains averments which, if true, would constitute a legal excuse
or justification; and
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (Sec. 3, Rule 117. Rules of Criminal
Procedure.)
2. No. The certification which is provided in Sec. 4, Rule 112. Rules of
Criminal Procedure, is not an indispensable part of the information. (People vs.
Lapura, 255 SCRA 85.)
Criminal procedure; multiplicity of offenses; remedies
1996 No. 12:
Page 126 of 181
1) The information filed against A charged more than one offense. A has not
yet been arraigned. If you were the lawyer of A, would you file a motion to quash or
a motion for bill of particulars? Explain.
Answer:
1) I would file a motion to quash on the ground that more than one offense is
charged. (Sec. 1-e of Rule 117). A motion for bill of particulars is not proper
because there are no defects or details in the information that need clarification.
(Sec. 10 of Rule 116)
Criminal procedure; prejudicial question
1995 No. 10:
Jenny charged her husband Alex with bigamy alleging that when she married
him he already had a prior valid and existing marriage with Evita, a fact Jenny did
not know until lately. Subsequently Alex also filed a case for declaration of nullity of
his marriage with Jenny claiming that his marriage with her was an absolute nullity
since he discovered that when he contracted marriage with Jenny she had a prior
valid and existing marriage with Brando.
Alex moved to suspend proceedings in his bigamy case on the ground of
prejudicial question alleging that in the event his marriage to Jenny was declared
void ab initio to there would be no second marriage to speak of and the bigamy
charge against him would fail for want of factual and legal bases.
1. If you were the judge, how would you resolve the motion? Explain.
2. Suppose that Alex filed a complaint for nullity of his marriage with Jenny
on the ground that his consent was obtained at gunpoint, would your answer be the
same? Explain.
3. Suppose that after Alex was charged with bigamy he filed a complaint for
declaration of nullity of his marriage with Evita. Could Alex have the bigamy
proceedings suspended by invoking prejudicial question claiming that the outcome
of the bigamy case would depend on whether there was a prior valid and existing
marriage, which constitutes an element of the crime? Explain.
Answer:
1. I would deny the motion of Alex. When Alex married Jenny despite his
existing marriage with Evita, he was guilty of bigamy. His subsequent action for
declaration of nullity when he discovered that Jenny had a prior valid and existing
marriage with Brando cannot be raised as a prejudicial question in the bigamy case.
2. No. the complaint of Alex for nullity of his marriage with Jenny, on the
ground that his consent was obtained at gunpoint, is a valid prejudicial question.
(Prado us. People, 133 SCRA 602)
3. No, because the fact that he married Jenny before his former marriage
with Evita had been legally dissolved makes him guilty of bigamy. {Art. 347, RPC)
Alternative Answer:
Yes, because if the first marriage of Alex is declared void ab initio he did not
commit bigamy.
Criminal procedure; prejudicial question
1999 No. XIII
a. What is a prejudicial question? (2%)
b. A allegedly sold to B a parcel of land which A later also sold to X. B
brought a civil action for nullification of the second sale and asked that the sale
Page 127 of 181
made by A in his favor be declared valid. A theorized that he never sold the
property to B and his purported signatures appearing in the first deed of sale were
forgeries. Thereafter, an Information for estafa was filed against A based on the
same double sale that was the subject of the civil action. A filed a "Motion for
Suspension of Action" in the criminal case, contending that the resolution of the
issue in the civil case would necessarily be determinative of his guilt or innocence.
Is the suspension of the criminal action in order? Explain. (2%)
SUGGESTED ANSWER:
a. A prejudicial question 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. 5 of Rule 111.)
ANOTHER ANSWER:
A prejudicial question 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. (Padffla. Civil Code Annotated, 1984 ed. p. 197.)
SUGGESTED ANSWER:
b. Yes. The 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 first deed of sale were forgeries, is a prejudicial question the
resolution of which is determinative of his guilt or innocence. If the first sale is null
and void, there would be no double sale and A would be innocent of the offense of
estafa. (Ras v. Rasul, 100 SCRA 125.)
Criminal procedure; prejudicial question
2000 No. IX.
CX is charged with estafa in court for failure to remit to MM sums of money
collected by him (CX) for MM in payment for goods purchased from MM, by
depositing the amounts in his (CXs) personal bank account. CX files a motion to
suspend proceedings pending resolution of a civil case earlier filed in court by CX
against MM for accounting and damages involving the amounts subject of the
criminal case. As the prosecutor in the criminal case, briefly discuss your grounds in
support of your opposition to the motion to suspend proceedings. (5%).
SUGGESTED ANSWER:
As the prosecutor, I will argue that the motion to suspend is not in order for
the following reasons:
(a) The civil case filed by CX against MM for accounting and damages
does not involve an issue similar to or intimately related to the issue of estafa raised
in the criminal action.
(b) The resolution of the issue in the civil case for accounting will not
determine whether or not the criminal action for estafa may proceed. (Sec. 5, Rule
111, Rules of Criminal Procedure.)
Criminal procedure; prel. inves.; jurisdiction of MTC
1988 (18)
(a) A complaint was filed by the offended party against three persons for
homicide in the MTC. The fiscal filed with the MTC a motion to discharge one of the
defendants to be utilized as witness in the preliminary investigation and at the trial of
the case on the merits.
As the Municipal trial Judge, rule on the motion with reasons.
Page 128 of 181
Answer:
(a) No, because the municipal trial judge may only conduct a preliminary
investigation of the homicide case. Such a motion to discharge one of the
defendants to be utilized as a witness for the prosecution may be acted upon only by
the court having jurisdiction to try the case on the merits. (U.S. vs. Inductivo, 40 Phil.
84)
Criminal procedure; prescription of offense
1993 No (10)
On October 14, 1990, Julie was charged before the Metropolitan Trial Court of
Quezon City with the crime of serious slander allegedly committed on May 12, 1990.
After trial, the court found that Julie had committed the crime of light-not
serious-slander. Accordingly, it convicted Julie of light slander and sentenced her to
pay a fine of P100.00 plus moral damages, attorneys fees and costs.
On appeal, Julie contended that she may not be convicted of the crime of light
slander because it has already prescribed.
However, the prosecution countered that as Julie did not move for the
quashal of the information on the ground of prescription, she is deemed to have
waived such defense.
How should the appeal be resolved? Explain?
Answer:
The appeal should be resolved in favor of Julie. Under the 1985 Rules on
Criminal Procedure as amended, prescription is not deemed waived for failure of the
accused to assert such ground of a motion to quash before he pleads to a complaint
or information and such ground may be raised on appeal.
Alternative Answer:
The appeal should be resolved against Julie because the filing of the
complaint with the fiscals office in 1990 interrupted the period of prescription of the
offense charged.
Criminal procedure; prescription of offenses
1987 No (10)
The accused filed a motion to quash the information on two grounds, to wit,
the facts charged do not constitute an offense and there are averments in the
information which, if true, would constitute a legal justification. Eventually, the
accused was convicted. He appealed to the CA. The new defense counsel
discovered that the information was filed on a Monday and that the last day for the
filing of the information actually fell on the preceding Sunday.
Had the offense prescribed? If it had, could the defense invoke for the first
time on appeal as error, the trial courts non-dismissal of the information on the
ground of prescription?
Answer:
Yes. The offense had prescribed. Where the last day for the filing of an
information falls on a Sunday or legal holiday, the period of prescription cannot be
extended up to the next working day as prescription automatically sets in.
(Yapdiangco vs. Buencamino, 122 SCRA 713)
Yes. The defense may invoke for the first time on appeal the non-dismissal of
the information on the ground of prescription, inasmuch as under the 1985 Rules on
Criminal Procedure extinction of criminal action or liability, which includes
Page 129 of 181
prescription, is not deemed waived by failure to move to quash on that ground. (Sec.
8 Rule 117)
Criminal procedure; prescription of offenses
1990 (13)
On February 21, 1990, Magno was stabbed on the right arm by Reyes at
Balara, Quezon City. A complaint for physical injuries was filed against Reyes with
the office of the City Prosecutor on February 28, 1990 as the injuries required five
(5) days of medical attendance. The information for slight physical injuries was filed
on May 12, 1990 with the Quezon Metropolitan Trial Court. Reyes moved to quash
the information on the ground of prescription as it was filed on the 80
th
day, whereas
the prescriptive period for slight physical injuries is 60 days.
Should the motion to quash be granted? Decide with reasons.
Answer:
No, because under the 1988 Amendments to the Rules of Criminal
Procedure, the filing of the complaint with the Office of the City Prosecutor on
February 28, 1990 interrupted the prescription of the offense charged. (Sec1 of Rule
110)
Criminal procedure; pre-trial
1997 No. 7:
Give three distinctions between a pre-trial in a criminal case and a pre-trial in
a civil case.
Answer:
Three distinctions between a pre-trial in a criminal case and a pre-trial in a
civil case are as follows:
(a) The pre-trial in a criminal case is conducted only "where the accused and
counsel agree" (Rule 118, Sec. 1): while the pre-trial In a civil case is mandatory.
(Sec. 1 of former Rule 20; Sec, 1 of new Rule 18).
(b) The 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 20; Sec. 2 of new Rule 18).
(c) In a criminal case, a pre-trial agreement is required to be reduced to
writing and signed by the accused and his counsel (See; Rule 118, Sec. 4); while in
a ctvil case, the agreement may be contained in the pre-trial order. (Sec. 4 of former
Rule 20; See 7 of new Rule 78).
Criminal procedure; pre-trial agreement; approval by court
2004 NO. I
B. Mayor TM was charged of malversation through falsification of official
documents. Assisted by Atty. OP as counsel de parte during pre-trial, he signed
together with Ombudsman Prosecutor TG a Joint Stipulation of Facts and
Documents, which was presented to the Sandiganbayan. Before the court could
issue a pre-trial order but after some delay caused by Atty. OP, he was substituted
by Atty. QR as defense counsel. Atty. QR forthwith filed a motion to withdraw the
Joint Stipulation, alleging that it is prejudicial to the accused because it contains,
inter alia, the statement that the Defense admitted all the documentary evidence of
the Prosecution, thus leaving the accused little or no room to defend himself, and
violating his right against self-incrimination.
Should the court grant or deny QRs motion? Reason. (5%)
Page 130 of 181
Criminal procedure; promulgation of judgment
1989 (15)
15.1) The accused was duly notified of the date set for the promulgation of the
decision in the case filed against him. The accused failed to appear but his counsel
was present. The judge ordered the cancellation of the bail bond posted by the
accused and issued a warrant of his arrest. The judge further ordered that the
promulgation of the decision be held in abeyance until the accused is taken into
custody. Was the action taken by the judge proper? Explain fully.
Answer:
The judge correctly ordered the cancellation (forfeiture) of the bailbond posted
by the accused and the issuance of the warrant of his arrest upon his failure to
appear for the promulgation of the decision in the case filed against him.
However, the judge erred in holding in abeyance the promulgation of the
decision until the accused is taken into custody, because in such case the
promulgation shall be made by recording the judgment in the criminal docket and a
copy shall be served upon the accused or counsel. (Sec.6 of Rule 120)
Another Acceptable Answer:
If the judgment was of conviction for a light offense, the promulgation should
be made in the presence of the counsel.
Criminal procedure; promulgation of judgment
1997 No. 10:
X, the accused in a homicide case before the Regional Trial Court. Dagupan
Cay, was personally notified of the promulgation of judgment in his case set for 10
December 1996. On said date. X was not present as he had to attend to the trial of
another criminal case against him in Tarlac, Tarlac. The trial court denied the motion
of the counsel of X to postpone the promulgation.
(a) How shall the court promulgate the judgment in the absence of the
accused?
(b) Can the trial court also order the arrest of X? Answer:
(a) In the absence of the accused, the promulgation shall be made by
recording the Judgment in the criminal docket and a copy thereof served upon the
accused or counsel. (Sec. 6. third par., Rule 120)
(b) No, the trial court cannot order the arrest of X if the judgment is one of
acquittal and, in any event, his failure to appear was with justifiable cause since he
had to attend to another criminal case against him. (Id.)
Criminal procedure; prosecution of offenses; who should file
2000 No. VIII.
Your friend YY, an orphan, 16 years old, seeks your legal advice. She tells
you that ZZ, her uncle, subjected her to acts of lasciviousness; that when she told
her grandparents, they told her to just keep quiet and not to file charges against ZZ,
their son. Feeling very much aggrieved, she asks you how her uncle ZZ can be
made to answer for his crime.
(a) What would your advice be? Explain. (3%)
(b) Suppose the crime committed against YY by her uncle ZZ is rape,
witnessed by your mutual friend XX. But this time, YY was prevailed upon by her
grandparents not to file charges. XX asks you if she can initiate the complaint
against ZZ. Would your answer be the same? Explain. (2%).
Page 131 of 181
SUGGESTED ANSWER:
(a) I would advise the minor, an orphan of 16 years of age, to file the
complaint herself independently of her grandparents, because she is not
incompetent or incapable to doing so upon grounds other than her minority. (Sec. 5,
Rule 110, Rules of Criminal Procedure.)
(b) Since rape is now classified as a Crime Against Persons under the
Anti-Rape Law of 1997 (RA 8353), I would advise XX to initiate the complaint
against ZZ.
Criminal procedure; provisional dismissal
2003 No. XIV.
Before the arraignment for the crime of murder, the private complainant
executed an Affidavit of Desistance stating that she was not sure if the accused was
the man who killed her husband. The public prosecutor filed a Motion to Quash the
Information on the ground that with private complainants desistance, he did not
have evidence sufficient to convict the accused. On 02 January 2001, the court
without further proceedings granted the motion and provisionally dismissed the
case. The accused gave his express consent to the provisional dismissal of the
case. The offended party was notified of the dismissal but she refused to give her
consent.
Subsequently, the private complaint urged the public prosecutor to refile the
murder charge because the accused failed to pay the consideration which he had
promised for the execution of the Affidavit of Desistance. The public prosecutor
obliged and refiled the murder charge against the accused on 01 February 2003. the
accused filed a Motion to Quash the Information on the ground that the provisional
dismissal of the case had already become permanent. (6%)
(a) Was the provisional dismissal of the case proper?
(b) Resolve the Motion to Quash.
SUGGESTED ANSWER:
(a) The provisional dismissal of the case was proper because the accused
gave his express consent thereto and the offended party was notified. It was not
necessary for the offended party to give her consent thereto. (Sec. 8 of Rule 117).
(b) The motion to quash the information should be denied because, while
the provisional dismissal had already become permanent, the prescriptive period for
filing the murder charge had not prescribed. There was no double jeopardy because
the first case was dismissed before the accused had pleaded to the charge. (Sec. 7
of Rule 117).
Criminal procedure; remedies; appeal
1993 No (12)
A decision adverse to defendant was rendered by the trial court in action for
recovery of possession of a piece of land. Defendant wanted to appeal the decision
but his lawyer begged off from rendering further professional services. Within the
period of appeal, however, defendant came to know a man who introduced himself
as Atty. Manuel Palma and volunteered to handle his case.
Thereafter, defendant engaged the services of Atty. Palma and paid him the
professional fee for the handling of his appeal. Immediately, Atty. Palma filed a
notice of appeal. In due course, the Court of Appeals sent a notice to Atty. Palma
giving him forty-five days within which to file the appellants brief for defendant.
However, the 45-day period expired without the appellants brief being filed.
Page 132 of 181
Directed to show cause why the appeal should not be dismissed for failure to
file the appellants brief within the reglementary period, Atty. Palma took no action.
Consequently, the Court of Appeals dismissed defendants appeal.
Only after the Court of Appeals resolution dismissing the appeal had already
become final and executory did defendant learn of such dismissal.
Subsequently investigation made by a friend of defendant disclosed that Atty.
Palma is not a lawyer. Accordingly defendant asked the court of Appeals to nullify
the resolution dismissing his appeal. He asserted that his representation by a fake
lawyer amounted to deprivation of the right to appeal and, hence, a denial of due
process.
On the other hand, the adverse party (plaintiff in the reconveyance suit)
contended that the resolution dismissing the appeal can no longer be set aside as it
had long become final and executory, and the defendant had lost his right to appeal
due to the negligence of his lawyer (referring to Atty. Palma) for which he must
suffer the consequence.
Should the defendants plea for nullification of the dismissal of the appeal be
granted? Why?
Answer:
Yes, because defendant had not been accorded due process of law when he
lost his right to appeal due to the actions of Atty. Palma who was not a lawyer.
While a client is generally bound by the action of his counsel, even by the attorneys
mistake or negligence, this rule will not apply where the lawyer turned out to be fake.
Criminal procedure; remedies; appeal/petition for review
1992 No. VIII:
(a) If the accused is meted the penalty of reclusion perpetua by the Regional
Trial Court, what should he do to have his case reviewed by the proper appellate
court?
Suggested Answer:
(a) If the accused is meted the penalty of reclusion perpetua by the Regional
Trial Court, he should file a notice of appeal to the Supreme Court which has
exclusive appellate jurisdiction. [Sec. 5, Art. VIII, Constitution; Sec. 3{c) of Rule 122)
(b) If the penalty of reclusion temporal is increased on appeal by the Court of
Appeals to reclusion perpetua, what should the accused do to have his case
reviewed by the Supreme Court?
Suggested Answer:
(b) The accused need not do anything because the Court of Appeals should
render judgment imposing the penalty of reclusion perpetua, refrain from entering
judgment and certify the case to the Supreme Court for review. [Sec. 13 of Rule 124;
People us. Daniel 86 SCRA 511). If the Court of Appeals does not certify the case to
the Supreme Court for review, the accused should invite the attention of the Court of
Appeals to its duty to do so.
Criminal procedure; remedies; unjust judgment
1993 No (11)
Judge Villamor was the Presiding Judge of the Regional Trial Court of
Quezon City in the criminal case for qualified theft against Ding. After trial, Judge
Villamor acquitted Ding of the charge.
Page 133 of 181
Subsequently, Paterno, the complaining witness in the aforesaid criminal
case, filed a civil action for damages against Judge Villamor for knowingly rendering
an unjust judgment when he acquitted Ding of the qualified theft. The case was filed
in the Regional Trial court of Pasay City, presided over by Judge Villegas. Judge
Villamor filed a motion to dismiss the civil case for lack of authority on the part of
Regional Trial Court of Pasay City to review his (Judge Villamor) decision.
How should the motion to dismiss be resolved? Why?
Answer:
The motion to dismiss should be granted. The Regional Trial Court of Pasay
City has no authority to review the decision of Judge Villamor acquitting Ding. To
allow Judge Villegas to proceed with the action for damages against Judge Villamor,
a co-equal judge of a co-equal court would in effect permit a court to review and
interfere with the judgment of co-equal court over which it has no appellate
jurisdiction or power to review.
Alternative Answer:
The motion to dismiss should be denied. Since the criminal case was
terminated with the acquittal of Ding, the civil action for damages Judge Villamor for
knowingly rendering an unjust judgment may properly be filed with RTC of Pasay
City having jurisdiction thereof.
Criminal procedure; rights of the accused
1990 (14)
During the custodial investigation of Jose, a murder suspect, he was informed
of his right to be assisted by counsel, among other constitutional rights. Jose
requested the assistance of Atty. Saldi who was present when Jose gave his
confession. When the case for murder was filed against him, Jose objected to the
admission of his confession on the ground that he had inadequate assistance of
counsel as Atty. Saldi did not advise him to remain silent during the investigation.
Is the said objection tenable? Explain your answer.
Answer:
No, because Jose was already informed of his right to be assisted by counsel,
among other constitutional rights which include the right to remain silent. Atty. Saldi
had no obligation to advise him to remain silent during his investigation.
Criminal procedure; rights of the accused
1991 No. XIV:
Felipe Arenas, an employee of ABC Corp., appeared to be Involved in
irregularities in the sale of the corporation's products. He was asked to account for
some undeclared sales amounting to P150,000.00 and, for that purpose, he was
asked to appear on a specified date at an administrative investigation, to be
conducted in accordance with the corporation's collective bargaining agreement with
the employee's union. Two (2) days before the scheduled investigation. Arenas gave
to his superiors a signed handwritten note stating that he was willing to settle the
irregularities allegedly charged against him in the amount of P 150,000.00 subject to
conditions which the corporation may impose. On the day of the investigation.
Arenas did not show up and has failed to report for work since then. The corporation
charged him with estafa. At the trial, the prosecution offered in evidence the
aforesaid handwritten note as Exhibit "A". The defense counsel objected to the
admission of the note on the ground that the same was executed without the
accused having been informed of his constitutional right to remain silent and to have
Page 134 of 181
counsel nor was he then assisted by counsel. If you were the Judge, would you
admit the evidence?
Answer;
Yes, the signed handwritten note of Arenas, given two days before the
scheduled administrative investigation, is admissible in evidence against him,
because he was not under custodial investigation when he executed the same.
Hence, the constitutional right to remain silent and to have counsel was not
applicable to him. (People v. Ayson, 175 SCRA216)
Criminal procedure; rights of the accused
1996 No. 13:
4) X, the accused, was called by the prosecution as the first witness to
testify for the government. X refused to take the stand invoking his privilege against
self-incrimination. On the other hand, the prosecution contends that X may be
compelled to take the witness stand and claim the privilege only as each question,
requiring an incriminatory answer is put to him.
Can the court order X to testify? Explain.
Answer;
4) No, the court cannot order X to testify because he is the accused and he is
exempt from being compelled to be a witness against himself [Sec. 1-E of Rule 115;
Cabal us. Kapunan, 6 SCRA 1059; Chavez vs. Court of Appeals 24 SCRA 663). If
he were an ordinary witness, not an accused, he could be ordered to testify and he
could claim the privilege against self-incriminatlon only as each question requiring
an incriminatory answer Is put to him. (Badiong vs. Gonzales, 94 SCRA 906)
Criminal procedure; rights of the accused; valid waiver
1991 No. XIII:
During custodial investigation at the Western Police District, Mario Margal
was informed of his constitutional right to remain silent and to have competent and
independent counsel. He decided to waive his right to counsel and proceeded to
make a statement admitting commission of a robbery. In the same statement, he
implicated Antonio Carreon, his co-conspirator in the crime.
(a) Is Margal's statement admissible in evidence against him?
Answer:
(a) No, because under the Constitution, the right of Margal to remain silent
and to counsel during custodial investigation cannot be waived except in writing and
in the presence of counsel, and any confession or admission in violation of this
provision is inadmissible in evidence against him. (Sec. 12 of Art. III)
Criminal procedure; searches and seizures
1994 No (18)
Bener was the driver of the car that the police searched and from where they
seized a rifle and a number of shells. Bener assails the legality of the search and
seizure on the ground that he is not the owner of the car nor of the seized items.
Rule on Benders contention?
Answer:
Benders contention is not correct. The mere fact that he is not the owner of
the car or of the seized items does not have any effect on the legality of the search.
If Bener is accused of illegal possession of firearms, his defense would be that he is
Page 135 of 181
only the driver of the car and knows nothing of the seized items, and if the seizure of
the items was made without a search warrant, he can say that they were illegally
obtained and cannot be admissible in court.
Criminal procedure; speedy trial
1996 No. 12:
3) Accused was charged with estafa and pleaded not guilty thereto. The
prosecution repeatedly sought and obtained postponements over the objection of
the accused who invoked his right to speedy trial. At the succeeding hearing, the
prosecution again sought postponement on the ground that the complainant, its only
witness, was out of the country.
If you were counsel of the accused, what course of action would you take in
order that the case against him will be finally dismissed by the court?
Answer:
3) I would object to any further postponement, insist on a trial and move for
dismissal on the ground of the right of the accused to a speedy trial. The dismissal in
such a case bars a subsequent prosecution for the same offense.
Criminal procedure; state witness; qualifications
1990 (15)
Cruz, Pablo and Galino are all charged with the crime of murder for the killing
of Bernardo. The prosecutor moved for the discharge of Cruz so that he may be
utilize as a state witness. The court deied the motion to discharge because while it
found that there was compliance with the requirement under subparagraphs a, b, c,
and d, Section 9 of Rule 119, the court found non-compliance with subparagraph e,
it appearing that Cruz was convicted of theft three (3) months earlier by the
Municipal Court in Bian, Laguna, which is an offense involving moral turpitude. The
conviction is on appeal before the RTC in Calamba, Laguna.
Is the trial court correct in denying the motion to discharge on this ground?
Decide with reasons.
Answer:
No, because the conviction of Cruz is still pending appeal before the RTC of
Laguna. Hence, he is not disqualified from being discharged in order to be a state
witness. (Mangubat vs. Sandiganbayan, 143 SCRA 681)
Criminal procedure; state witnesses
1994 No (10)
Louise is being charged with the frustrated murder of Roy. The prosecutions
lone witness, Mariter, testified to having seen Louse prepare the poison which she
later surreptitiously poured into Roys wine glass. Louise sought the disqualification
of Mariter as witness on account of her previous conviction for perjury.
1. Rule on Louises contention.
2. Can Mariter be utilized as state witness if she is a co-accused in the
criminal case?
Answer:
1. The contention of Louise is not correct. Mariter cannot be disqualified from
being a witness on account of her previous conviction of perjury.. Previous
conviction is not a disqualification because, in this case, it is not so provided by law.
(Sec.20, Rule 130).
Page 136 of 181
2. Mariter, however, cannot be utilized as a state witness if she is a co-
accused in a criminal case because an accused can be discharged as a state
witness if, among five requirements, the accused has not at any time been convicted
of any offense involving moral turpitude. (Sec. 9, Rule 119).
Criminal procedure; searches and seizures; Terry search
1995 No. 1:
2. What is a Terry search (or so-called "stop and frisk")? Is it Justified under
existing law and Jurisprudence? Explain.
Answer;
2. A Terry search is a stop-and-search without a warrant. It is justified when
conducted by police officers on the bases of prior confidential information which
were reasonably corroborated by other attendant matters. [Aniag, Jr. vs. Comelec,
237 SCRA 424]
Alternative Answer:
A Terry search is one conducted without a search warrant and is designed
either to determine the identity of a suspicious individual or to maintain the status
quo while the police officer is obtaining more information. (Posadas us. CA. 188
SCRA 288).
Criminal procedure; third-party claims; intervention
1996 No. 13:
3) X, driver of Y Bus Co, was charged with homicide, serious physical
injuries and damage to property through reckless imprudence. Y Bus Co., as
employer of X, intervened and filed a third party complaint against Z, the Insurer of
the bus, for subrogation and/or contribution in the event X is convicted and Y Bus Co
is made subsidiarily liable for damages.
May Y Bus Co. intervene and file said complaint? Explain.
Answer;
3) No, Y Bus Co. may not intervene in the criminal action because it is not the
offended party and It cannot be impleaded as an accused together with X. Its
remedy is to file a separate action against Z. the Insurer of the bus, in the event X is
convicted and Y Bus Co. is made subsidiarily liable.
Alternative Answer;
Yes, Y Bus Co. may be allowed to intervene Inasmuch as If X were convicted
it would be subsidiarily liable for damages. Under the ruling in Pajarito vs. Seneris
(87 SCRA 275), the judgment against X for damages may be enforced by execution
against Y Bus Co.
Criminal procedure; trial in absentia; automatic review of conviction
1998 No X
1. What are the requisites of a trial in absentia? [2%]
2. If an accused who was sentenced to death escapes, is there still a legal
necessity for the Supreme Court to review the decision of conviction? [3%]
SUGGESTED ANSWER:
1. The requisites of trial in absentia are: (a) the accused has already been
arraigned; (b) he has been duly notified of the trial; and (c) his failure to appear is
unjustifiable. (Sec. 14 [2], Article III. Constitution; Parada vs. Veneracion, 269
SCRA 371 [1997].)
Page 137 of 181
2. Yes, there is still a legal necessity for the Supreme Court to review the
decision of conviction sentencing the accused to death, because he is entitled to an
automatic review of the death sentence. (Sees. 3[e] and 10, Rule 122, Rules of
Criminal Procedure; People vs. Espargas, 260 SCRA 539.)
Criminal procedure; venue
1997 No. 18:
Where is the proper venue for the filing of an information in the following
cases?
(a) The theft of a car in Pasig City which was brought to Obando, Bulacan,
where it was cannibalized.
(b) The theft by X, a bill collector of ABC Company, with main offices in
Makati City, of his collections from customers in Tagaytay City. In the contract of
employment, X was detailed to the Calamba branch office, Laguna, where he was to
turn in his collections.
(c) The malversation of public funds by a Philippine consul detailed in the
Philippine Embassy in London,
Answer;
(a) The proper venue is in Pasig City where the theft of the car was
committed, not in Obando where it was cannibalized. Theft is not a continuing
offense. (People v Mercado, 65 Phil 665).
(b) If the crime charged is theft, the venue is in Calamba where he did not
turn in his collections. If the crime of X is estafa, the essential ingredients of the
offense took place in Tagaytay City where he received his collections, in Calamba
where he should have turned in his collections, and in Makatl City where the ABC
Company was based. The information may therefore be filed in Tagaytay City or
Calamba or Makati which have concurrent territorial Jurisdiction. (Catingub vs. Court
of Appeals, 121 SCRA 106).
(c) The proper court is the Sandiganbayan which has jurisdiction over crimes
committed by a consul or higher official in the diplomatic service. (Sec. 4(c). PD
1606, as amended by RA. No. 7975). The Sandiganbayan is a national court.
(Nunez v. Sandiganbayan, 111 SCRA 433 [1982]. It has only one venue at present,
which is in Metro Manila, until RA. No. 7975, providing for two other branches in
Cebu and in Cagayan de Oro, is implemented.
Alternative Answers;
(b) The information may be filed either in Calamba or in Makati City, not in
Tagaytay City where no offense had as yet been committed,
(c) Assuming that the Sandiganbayan has no jurisdiction, the proper venue
is the first Regional Trial Court in which the charge is filed (Sec. 15(d). Rule 110,
Rules of Court).
Criminal procedure; warrant of arrest; bail
2004 NO. II
A. RP and State XX have a subsisting Extradition Treaty. Pursuant thereto
RPs Secretary of Justice (SOJ) filed a Petition for Extradition before the MM
Regional Trial Court alleging that Juan Kwan is the subject of an arrest warrant duly
issued by the proper criminal court of State XX in connection with a criminal case for
tax evasion and fraud before his return to RP as a balikbayan. Petitioner prays that
Juan be extradited and delivered to the proper authorities of State XX for trial, and
that to prevent Juans flight in the interim, a warrant for his immediate arrest be
Page 138 of 181
issued. Before the RTC could act on the petition for extradition, Juan filed before it
an urgent motion, in sum praying (1) that SOJs application for an arrest warrant be
set for hearing and (2) that Juan be allowed to post bail in the event the court would
issue an arrest warrant.
Should the court grant or deny Juans prayers? Reason. (5%)
Criminal procedure; warrantless arrests and searches
1988 (20)
(a) May a person be arrested without warrant?
(b) May a house be searched without a searched warrant? How about a
person, may he be searched without warrant? Explain.
Answer:
(a) A person may be arrested without warrant in the following cases:
1) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
2) When an offense has in fact just been committed and he has personal
knowledge of the facts indicating that the person to be arrested has committed it;
and
3) 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. (Sec. 5 of Rule 113)
(b) A house may not be searched without a warrant in view of the
constitutional prohibition against unreasonable searches and seizures. However, a
person who has lawfully been arrested may be searched without a warrant,
inasmuch as the search is incidental to a lawful arrest. (Sec.12 of Rule 126)
Alternative Answer:
(b) A house may be searched without a warrant:
1) with the consent of the owner;
2) when the search is incidental to a lawful arrest but the scope shall be
limited to the area where the arrestee can reach for a weapon or for evidence in
order to destroy it; and
3) when the object to be seized is within plain view of the arresting officer and
possession thereof is illegal.
Criminal procedure; warrantless arrests and searches
1996 No. 13:
1) X, common-law wife of accused Y, sobbing, went running from her
residence, just some thirty meters away, to the house of Barangay Captain Z,
complaining that accused Y struck her on the cheek with the butt of a revolver,
causing her to bleed, and that accused Y threatened to shoot her with a gun. The
Barangay Captain, a retired veteran police officer, accompanied X to the latter's
residence to investigate, but on their way they met accused Y on the road.
Thereupon, Barangay Captain Z confronted accused Y about the complaint of his
common-law wife X, but Y did not say anything nor deny it. The Barangay Captain,
noticing an object bulging in Y's waistline underneath his T-shirt, and believing that it
was the gun he used to injure X and to threaten her with death, frisked Y and
grabbed the object which turned out to be a .38 caliber paltik revolver. The Barangay
Captain inquired whether accused had a license to possess or permit to carry the
Page 139 of 181
gun, and when the latter answered in the negative, the Barangay Captain arrested
him and confiscated the firearm. From the record of the local PNP, it was
ascertained that the subject revolver was not registered or licensed in the name of
accused Y.
Was the arrest of accused Y without warrant lawful pursuant to Section 5(a)
of Rule 113 of the Revised Rules on Criminal Procedure? Were the search
conducted and seizure of the gun likewise lawful without a search warrant pursuant
to Section 12 of Rule 126? Explain.
Answer;
1) The arrest of the accused Y without warrant was lawful pursuant to Section
5(b), not (a) of Rule 113. because an offense had in fact Just been committed and
Barangay Captain Z has personal knowledge of facts indicating that Y had
committed it. When Z, accompanied by the complainant X, met Y on the road and
confronted him on the complaint of X. Y did not say anything nor deny it. That was
sufficient ground for Z to arrest Y and search him. Hence the search and seizure of
the gun was lawful without a search warrant under Sec. 12 of Rule 126.
Alternative Answer;
The arrest of the accused Y without warrant was lawful under Section 5 (a) of
Rule 113, because the totality of the circumstances would indicate to a veteran
police officer that a crime was being committed in his presence, and justify an arrest
of Y without warrant. Hence the search and seizure of the gun was lawful under Sec,
12 of Rule 126.
Criminal procedure; warrantless arrests and searches
1997 No. 8;
A was killed by B during a quarrel over a hostess in a nightclub. Two days
after the incident, and upon complaint of the widow of A, the police arrested B
without a warrant of arrest and searched his house without a search warrant.
(a) Can the gun used by B in shooting A, which was seized during the search
of the house of B, be admitted in evidence?
(b) Is the arrest of B legal?
(c) Under the circumstances, can B be convicted of homicide?
Answer:
(a) No. The gun seized during the search of the house of B without a search
warrant is not admissible in evidence. (Secs. 2 and 3[2], Art. III of Constitution).
Moreover, the search was not an incident to a lawful arrest of a person under Sec.
12 of Rule 126.
(b) No. A warrantless arrest requires that the crime has in fact just been
committed and the police arresting has personal knowledge of facts that the person
to be arrested has committed it. (Sec. 5, Rule 113). Here, the crime has not just
been committed since a period of two days had already lapsed, and the police
arresting has no such personal knowledge because he was not present when the
incident happened. (Go vs. Court of Appeals. 206 SCRA 138).
(c) Yes. The gun is not indispensable in the conviction of A because the
court may rely on testimonial or other evidence.
Criminal procedure; warrantless arrests and seizures
2003 No. X.
Page 140 of 181
In a buy-bust operation, the police operatives arrested the accused and
seized from him a sachet of shabu and an unlicensed firearm. The accused was
charged in two Informations, one for violation of the Dangerous Drug Act, as
amended, and another for illegal possession of firearms.
The accused filed an action for recovery of the firearm in another court
against the police officers with an application for the issuance of a writ of replevin.
He alleged in his Complaint that he was a military informer who had been issued a
written authority to carry said firearm. The police officers moved to dismiss the
complaint on the ground that the subject firearm was in custodia legis. The court
denied the motion and instead issued the writ of replevin.
(a) Was the seizure of the firearm valid?
(b) Was the denial of the motion to dismiss proper? 6%
SUGGESTED ANSWER:
(a) Yes, the seizure of the firearm was valid because it was seized in the
course of a valid arrest in a buy-bust operation. (Sec. 12 and 13 of Rule 126) A
search warrant was not necessary. (People v. Salazar, 266 SCRA 607 [1997]).
(b) The denial of the motion to dismiss was not proper. The court had no
authority to issue the writ of replevin whether the firearm was in custodia legis or not.
The motion to recover the firearm should be filed in the court where the criminal
action is pending.
Criminal procedure; warrantless arrests; objection
2000 No. VII.
FG was arrested without a warrant by policemen while he was walking in a
busy street. After preliminary investigation, he was charged with rape and the
corresponding information was filed in the Regional Trial Court. On arraignment, he
pleaded not guilty. Trial on the merits ensued. The court rendered judgment
convicting him. On appeal, FG claims that the judgment is void because he was
illegally arrested. If you were the Solicitor General, counsel for the People of the
Philippines, how would you refute said claim? (5%)
SUGGESTED ANSWER:
Any objection to the illegality of the arrest of the accused without a warrant is
deemed waived when he pleaded not guilty at the arraignment without raising the
question. T is too late to complain about a warrantless arrest after trial is
commenced and completed and a judgment of conviction rendered against the
accused. (People v. Cabiles, 284 SCRA 199, [1999])
Criminal procedure; warrantless arrests; prel. inves.
2004 NO. VIII
B. AX swindled RY in the amount of P10,000 sometime in mid-2003. On the
strength of the sworn statement given by RY personally to SPO1 Juan Ramos
sometime in mid-2004, and without securing a warrant, the police officer arrested
AX. Forthwith the police officer filed with the City Prosecutor of Manila a complaint
for estafa supported by RYs sworn statement and other documentary evidence.
After due inquest, the prosecutor filed the requisite information with the MM
Regional Trial Court. No preliminary investigation was conducted either before or
after the filing of the information and the accused at no time asked for such an
investigation. However, before arraignment, the accused moved to quash the
information on the ground that the prosecutor suffered from a want of authority to file
the information because of his failure to conduct a preliminary investigation before
filing the information, as required by the Rules of Court.
Page 141 of 181
Is the warrantless arrest of AX valid? Is he entitled to a preliminary
investigation before the filing of the information? Explain. (5%)
Criminal procedure; when an offense necessarily includes another
1993 No (5)
Fernando was charged with the crime of rape pursuant to the information
alleging that by means of force, violence and intimidation, he had carnal knowledge
of Elaine, a 13 year old girl.
After trial, the court found that the theory of force and involuntariness in the
sexual interlude between Fernando and Elaine was disproved and that, in the
contrary, it was a consensual affair. It, therefore, concluded that Fernando cannot be
held liable for rape.
Nevertheless, the court found that Fernando committed deceit, through
promise of marriage, in successfully persuading Elaine to give up her virginity.
Supposing that the evidence overwhelmingly shows that the crime of simple
seduction had been committed by Fernando, can he convicted for that crime?
Explain.
Answer:
No, because Fernando was not charged with simple seduction. He was
charged with having carnal knowledge of Elaine by means of force, violence and
intimidation. There was no allegation of deceit in the information. Rape does not
necessarily include simple seduction. Hence, he could not be convicted of simple
seduction.
Criminal procedure; when an offense necessarily includes another; remedies
2004 NO. V
B. AX was charged before the YY Regional Trial Court with theft of jewelry
valued at P20,000, punishable with imprisonment of up to 10 years of prision mayor
under the Revised Penal Code. After trial, he was convicted of the offense charged,
notwithstanding that the material facts duly established during the trial showed that
the offense committed was estafa, punishable by imprisonment of up to eight years
of prision mayor under the said Code. No appeal having been taken therefrom, said
judgment of conviction became final.
Is the judgment of conviction valid? Is the said judgment reviewable thru a
special civil action for certiorari? Reason. (5%)
Criminal procedure; who should file complaint for adultery
1991 No. XII:
B. Magdalena Campos, a married woman and Santiago Mendoza, a married
man, were indicted for adultery in an Information filed by the Prosecutor of Bataan
upon a sworn complaint filed by Mrs. Cynthia Mendoza, wife of Santiago. Both
accused filed a motion to quash alleging that the trial court has not acquired
jurisdiction over the case because no complaint has been filed by the husband of
Magdalena Campos. They cite Section 5, Rule 110 of the Revised Rules of Court
which provides, among others, that the crime of adultery"... shall not be prosecuted
except upon a complaint filed by the offended spouse." How would you resolve the
motion to quash?
Answer:
B. Motion to quash granted. The offended spouse who should have filed the
sworn complaint for adultery was the husband of Magdalena Santos, not the wife of
Santiago Mendoza. Adultery is committed by any married woman who shall have
Page 142 of 181
sexual intercourse with a man not her husband and by the man who has carnal
knowledge of her knowing her to be married, [Art. 333, RPC)
Another Answer;
Motion to quash denied. The sworn complaint of Mrs. Cynthia Mendoza as
the offended spouse is sufficient compliance with the rule which requires both the
guilty parties to be charged, if both are alive.
Criminal procedure; withdrawal of information
1990 (18)
After an information for homicide was filed by the city prosecutor in the RTC
of Quezon City, the accused asked the prosecutor for a reinvestigation, which he
granted. After the reinvestigation, the prosecutor filed a motion in court to withdraw
the information having found no sufficient evidence to continue with the prosecution
of the case.
Considering that the prosecutor has the direct control and supervision over
the prosecution of the case, are the steps undertaken by him proper under the
circumstances? Decide with reasons.
Answer:
Yes, the prosecutor may file a motion to withdraw the information. However,
the motion may be denied by the court, in which case the prosecutor will be required
to present whatever evidence he has. (Crespo vs Mogol, 151 SCRA 462) if the court
gravely abuses its discretion, certiorari lies. (Quizo vs. Sandiganbayan, 149 SCRA
110)
Special Proceedings
Special proceedings
1996 No. 11;
1) Distinguish special proceeding from an ordinary action.
Answer;
1) A special proceeding is a remedy to establish the status or right of a party
or a particular fact, while an ordinary action is one by which one party prosecutes
another for the enforcement or protection of a right or the prevention or redress of a
wrong. (Secs. 1 and 2 of Rule 2)
Special proceedings; change of name
1992 No. X:
Pernito, also known in the community as Peregrino, filed a petition for change
of name to Pedro. The name Peregrino appeared in the body of the petition but not
in the caption. When the petition was published, the caption and the body of the
petition were merely lifted verbatim, so that as published, the petition's caption still
did not contain Peregrino as the petitioner's alias. The government lawyer filed a
motion to dismiss on the ground that, notwithstanding publication for the requisite
number of times, the court did not acquire Jurisdiction over the petition because
petitioner's alias (Peregrino) did not appear in the published caption. The court
denied the motion to dismiss with the ruling that there was substantial compliance
with the law and that the omission of the alias in the caption may be deemed de
minimis because the alias was clearly set forth in the petition itself.
Was the court correct in denying the motion to dismiss? Explain.
Suggested Answer:
Page 143 of 181
No, the failure of the petitioner to include his alias (Peregrino) in the caption is
a jurisdictional defect and the Inclusion of the alias in the body of the petition does
not cure said defect. The reason for the rule is that the ordinary reader only glances
fleetingly at the caption in a special proceeding and only if the caption strikes him
does he proceed to read the body of the petition; hence, he will probably not notice
the other names or aliases of the petitioner. (Gil Co vs. Republic. 77 SCRA 65)
Special proceedings; claims against the estate
1987 No (15)
In a claim for money filed in a proceeding for the settlement of the estate of a
deceased, the claimant has promissory note purporting to have been signed by the
deceased as debtor and the claimant as creditor. The claimant also has a check for
the same amount as in the promissory note and issued on the same date as in the
promissory note. The check drawn by the claimant and issued in the name of the
deceased as payee, bears on its back a signature purportedly belonging to the
deceased and other writings indicating that the check had been deposited in a bank
and credited to the account of the payee.
Can this money claim against the estate be proved? If so, how? Explain.
Answer:
Yes. The claimant should attach a copy of the promissory note executed by
the deceased in his favor to his claim and serve a copy thereof on the executor or
administrator. If the executor or administrator admits or does not deny the claim in
his answer, the court may approve the same.
If the executor or administrator or heir opposes the claim, the same may be
proved by the testimony of a witness who can authenticate the promissory note. A
witness other than the claimant from the bank may also testify that the check of the
claimant for the same amount as the promissory note was endorsed by the
deceased and deposited to his account in the bank.
Another Alternative Answer:
The claimant himself may authenticate the promissory note since this is not
covered by the rule on surviving parties or the dead mans statute. Authentication is
not a matter of fact on which the claimants lips are sealed.
Special proceedings; correction of entries
1993 No (16)
On May 12, 1990, Roman Agcaoili filed a petition in the Regional Trial Court
to correct his birth certificate by changing his citizenship from Chinese to Filipino
and his status from legitimate to illegitimate. The Local Civil Registrar was named
respondent in the petition.
Copy of the notice hearing was served on the Solicitor General. The notice
was published in a newspaper of general circulation once a week for three
consecutive weeks.
Before the scheduled hearing, the Solicitor entered his appearance as
counsel for the Republic of the Philippines and authorized the Provincial Prosecutor
to appear in the case. However, the prosecutor did not file an opposition to the
petition. Instead, he appeared at, and participated in, the trial and even cross-
examined Agcaoili and his witnesses.
There was a full-blown trial where Agcaoili presented testimonial and
documentary evidence proving that he is a Filipino citizen, being an illegitimate child
Page 144 of 181
of Tan Keh (Chinese) and Cayetana Agcaoili (Filipino) who were never married.
However, the Republic presented no evidence.
After hearing, the trial court ordered the Local Civil Registrar to make the
corrections sought by Agcaoili.
The Solicitor General appealed. He argued that substantial changes in the
civil registry cannot be made under Rule 108 of the Rules of Court. Is the contention
correct? Why?
Answer:
No, because proceedings under Rule 108 of the Rules of Court may be either
summary or adversary in nature. If the correction sought to be made in the civil
registry is clerical, then the procedure is summary. If the rectification affects the civil
status, citizenship or nationality of a party, it is deemed substantial and the
procedure adopted is adversary. In this case, the procedure was adversary. The
proper notice was published and served on the Solicitor General. There was a full-
blown trial where Agcaoili presented testimonial and documentary evidence proving
that he is a Filipino Citizen. The prosecutor authorized by the Solicitor General to
appear in the case participated in the trial and even cross-examined Agcaoili and his
witnesses. Consequently, the court correctly ordered the Local Civil Registrar to
make the corrections sought.
Special proceedings; habeas corpus
1988 (15)
In 1978, Pete was convicted by the CFI of Cavite on the sole basis of his
extrajudcial confession. The decision soon became final and Pete has since been
serving sentence until now, although to this day, he insists that he is innocent and
that his confession had been coerced. He later learned of the Supreme Courts
decision in People vs. Galit in which the Court reversed a conviction that had been
based solely on uncounselled confession. He forthwith caused a petition for habeas
corpus to be filed, alleging that his confinement has all along been illegal. The
Government opposed the petition on the ground that the decision of conviction had
long become final and may no longer be reopened and that he is in fact serving
sentence.
Will habeas corpus lie? Reasons.
Answer:
Yes, because once a deprivation of a constitutional right is shown to exist, the
court that rendered the judgment is deemed ousted of jurisdiction and habeas
corpus is the appropriate remedy to assail the legality of the detention. (Gumabon
vs. Director of Prisons, 37 SCRA 420)
Another Answer:
Yes, habeas corpus will lie. Firstly, the judgment has no sufficient basis
inasmuch a judgment of conviction cannot be based solely on an extrajudicial
confession without evidence of corpus delicti.
Secondly, Supreme Court has applied retroactively the Galit ruling even to
cases decided prior to said ruling.
There being no valid judgment, the detention becomes unlawful.
Special proceedings; habeas corpus
2003 No. VIII.
Widow A and her two children, both girls, aged 8 and 12 years old, reside in
Angeles City, Pampanga. A leaves her two daughters in their house at night
Page 145 of 181
because she works in a brothel as a prostitute. Realizing the danger to the morals of
these two girls, B, the father of the deceased husband of A, files a petition for
habeas corpus against A for the custody of the girls in the Family Court in Angeles
City. In said petition, B alleges that he is entitled to the custody of the two girls
because their mother is living a disgraceful life. The court issues the writ of habeas
corpus. When A learns of the petition and the writ, she brings her two children to
Cebu City. At the expense of B the sheriff of the said Family Court goes to Cebu City
and serves the writ on A. A files her comment on the petition raising the following
defenses:
(a) The enforcement of the writ of habeas corpus in Cebu City is illegal;
and
(b) B has no personality to institute the petition. 6%
Resolve the petition in the light of the above defenses of A. (6%)
SUGGESTED ANSWER:
(a) The writ of habeas corpus issued by the Family 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 Family Court belongs, unlike the writ granted by the
Supreme Court or Court of Appeals which is enforceable anywhere in the
Philippines. (Sec. 20 of Rule on Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors. (A.M. No. 03-04-04-SC; see also Sec. 4 of Rule 102,
Rules of Court.)
(b) 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 and 13, Id.)
Special proceedings; habeas corpus; jurisdiction
1993 No (19)
Roxanne, a widow, filed a petition for habeas corpus with the Court of
Appeals against Major Amor who is allegedly detaining her 18-year old son Bong
without authority of the law.
After Mayor Amor had a filed a return alleging the cause of detention of Bong,
the Court of Appeals promulgated a resolution remanding the case to the RTC for a
full-blown trial due to the conflicting facts presented by the parties in their pleadings.
In directing the remand, The court of Appeals relied on Sec.9(1), in relation to Sec.
21 of BP 129 conferring upon said Court the authority to try and decide habeas
corpus cases concurrently with the Regional Trial Courts.
Did the Court of Appeals act correctly in remanding the petition to the RTC?
Why?
Answer:
No, because while the CA has original jurisdiction over habeas corpus
concurrent with the Regional Trial Courts, it has no authority for remanding to the
latter original actions filed with the former. On the contrary, the CA is specifically
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.
Alternative Answer:
Yes, because there is no prohibition in the law against a superior court
referring a case to a lower court having concurrent jurisdiction. The Supreme Court
has referred to the CA or the RTC cases falling within their concurrent jurisdiction.
Page 146 of 181
Special proceedings; habeas corpus; preliminary citation
1995 No. 7;
Douglas, married to but separated from Ellen, one day fetched from school
his daughter, 5-year old Susan, and never returned her to Ellen under whose
custody the child was placed by the Regional Trial Court of Manila in a suit for
custody of the child. After searching for her daughter for days Ellen learned that
Douglas had been moving the girl from one place to another within Metro Manila the
last being the residence of his sister Mary in Paranaque. Ellen's current residence is
Pasig.
1. As Ellen's lawyer, what course or courses of action will you take to effect
the return of Susan to the custody of Ellen? Discuss fully.
2. (a) What is meant by a preliminary citation in cases involving deprivation
of personal liberty? Explain.
(b) How is a preliminary citation distinguished from a peremptory writ of
habeas corpus? Explain.
Answer:
1. As Ellen's lawyer, I will file a motion with the Regional Trial Court of
Manila to order Douglas to return Susan to Ellen and to cite Douglas for contempt of
court.
Alternative Answer:
I will file a petition for habeas corpus. Answer:
2. A preliminary citation merely requires the respondent to appear and show
cause why the peremptory writ of habeas corpus should not be granted. (Lee Yick
Hon. vs. Collector of Customs, 41 Phil. 548)
3. On the other hand, the peremptory writ of habeas corpus directs the
officer to have the body of the person restrained of his liberty before the court or
judge designated in the writ at the time and place therein specified. (Sec. 6, Rule
102)
Special proceedings; habeas corpus; proper party
1998 No XI.
A was arrested on the strength of a warrant of arrest issued by the RTC in
connection with an Information for Homicide. W, the live-in partner of A filed a
petition for habeas corpus against A's jailer and police investigators with the Court of
Appeals.
1. Does W have the personality to file the petition for habeas corpus? [2%]
2. Is the petition tenable? [3%] SUGGESTED ANSWER:
1. Yes. W, the live-in partner of A, has the personality to file the petition for
habeas corpus because it may be filed by "some person in his behalf." (Sec. 3. Rule
102. Rules of Court.)
2. No. The petition is not tenable because the warrant of arrest was issued
by a court which had Jurisdiction to issue it (Sec. 4, Rule 102 Rules of Court)
Special proceedings; partition
2000 No. XII.
Linda and spouses Arnulfo and Regina Ceres were co-owners of a parcel of
land. Linda died intestate and without any issue. Ten (10) persons headed by
Jocelyn, claiming to be the collateral relatives of the deceased Linda, filed an action
Page 147 of 181
for partition with the Regional Trial Court praying for the segregation of Lindas
share, submitting in support of their petition the baptismal certificates of seven of the
petitioners, a family bible belonging to Linda in which the names of the petitioners
have been entered, a photocopy of the birth certificate of Jocelyn, and a certification
of the local civil registrar that its office had been completely razed by fire. The
spouses Ceres refused to partition on the following grounds: 1) the baptismal
certificates of the parish priest are evidence only of the administration of the
sacrament of baptism and they do not prove filiation of the alleged collateral
relatives of the deceased; 2) entry in the family bible is hearsay; 3) the certification
of the registrar on non-availability of the records of birth does not prove filiation: 4) in
partition cases where filiation to the deceased is in dispute, prior and separate
judicial declaration of heirship in a settlement of estate proceedings is necessary;
and 5) there is need for publication as real property is involved. As counsel for
Jocelyn and her co-petitioners, argue against the objections of the spouses Ceres
so as to convince the court to allow the partition. Discuss each of the five (5)
arguments briefly but completely. (10%)
SUGGESTED ANSWER:
(1) The baptismal certificate can show filiation or prove pedigree. It is one
of the other means allowed under the Rules of Court and special laws to show
pedigree. (Trinidad v. Court of Appeals, 289 SCRA 188 [1998]; Heirs of ILgnacio
Conti v. Court of Appeals, 300 SCRA 345 [1998]).
(2) Entries in the family bible may be received as evidence of pedigree.
(Sec. 40, Rule 130, Rules of Court).
(3) The certification by the civil registrar of the non-availability of records is
needed to justify the presentation of secondary evidence, which is the photocopy of
the birth certificate of Jocelyn. (Heirs of Ignacio Conti v. Court of Appeals, supra.)
(4) Declaration of heirship in a settlement proceeding is not necessary. It
can be made in the ordinary action for partition wherein the heirs are exercising the
right pertaining to the decedent, their predecessor-in-interest, to ask for partition as
co-owners (Id.)
(5) Even if real property is involved, no publication is necessary, because
what is sought is the mere segregation of Lindas share in the property. (Sec. 1 of
Rule 69; Id.)
Special proceedings; probate of wills
1996 No. 11;
3) A will containing three pages was written in two leaves of paper. The will
was written on the first page of the first leaf, the second page on the reverse side of
said first leaf, and the third page on the second leaf. The signature of the testatrix as
well as of the instrumental witnesses were written on the left margin of the first page
or first folio and on the third page or second folio but not on the second page or
reverse side of the first leaf.
May the will be admitted to probate? Explain.
Answer;
3) No, because the law requires that each and every page of the will should
be signed by the testator and his instrumental witnesses. (Art. 808 Civil Code;
Caneda vs. Court of Appeals, 222 SCRA 781)
Special proceedings; probate; jurisdiction
2003 No. IX.
Page 148 of 181
A, a resident of Malolos, Bulacan, died leaving an estate located in Manila,
worth P200,000.00. In what court, taking into consideration the nature of jurisdiction
and of venue, should the probate proceeding on the estate of A be instituted? (4%)
SUGGESTED ANSWER:
The probate proceeding on the estate of A should be instituted in the
Municipal Trial Court of Malolos, Bulacan which has jurisdiction, because the estate
is valued at P200,000.00, and is the court of proper venue because A was a resident
of Malolos at the time of his death. (Sec. 33 of BP 129 as amended by RA 7691;
Sec. 1 of Rule 73).
Special proceedings; probate; lost wills
1999 No. XI
a. What are the requisites in order that a lost or destroyed Will may be
allowed? (2%)
b. A's Will was allowed by the Court. No appeal was taken from its
allowance. Thereafter, Y, who was interested in the estate of A, discovered that the
Will was not genuine because A's signature was forged by X. A criminal action for
forgery was instituted against X. May the due execution of the Will be validly
questioned in such criminal action? (2%)
SUGGESTED ANSWER:
a. In order that a lost or destroyed will may be allowed, the following must
be complied with:
(1) the execution and validity of the same should be established;
(2) the will must have been in existence at the time of the death of the
testator, or shown to have been fraudulently or accidentally destroyed in the lifetime
of the testator without his knowledge; and
(3) its provisions are clearly and distinctly proved by at least two credible
witnesses. (Sec. 6, Rule 76 of the Rules of Court)
b. No. The allowance of the will from which no appeal was taken is
conclusive as to its due execution. (Sec. 1 of Rule 75.) Due execution includes a
finding that the will is genuine and not a forgery. Accordingly, the due execution of
the will cannot again be questioned in a subsequent proceeding, not even in a
criminal action for forgery of the will.
Special proceedings; probate; mandatory character
1992 No. IX:
The last will and testament of the deceased was presented in the proceeding
to settle his estate, and in due course, hearing was set for the probate of the will.
Before evidence, thereon could be presented, the legal heirs of the deceased, his
widow and two surviving daughters, filed a manifestation that the probate of the will
would no longer be necessary since they had already agreed to divide the net estate
differently in accordance with a project of partition attached to their manifestation.
Consequently, they moved that the project of partition be approved and forthwith
implemented without probate of the decedent's will.
Should the court grant the heirs motion and accordingly approve their project
of partition without probate of the will? Explain.
Suggested Answer:
No, the court may not approve the project of partition without probate of the
will, because no will shall pass either real or personal estate unless It Is proved and
Page 149 of 181
allowed In the proper court. (Sec. 1 of Rule 75) The law and public policy require the
probate of the will because otherwise, the right of a person to dispose of his property
by will may be rendered nugatory. (Ralla vs. Untalan, 172 SCRA 858)
Special proceedings; probate; mandatory nature
2002 No. VII.
B. What should the court do if, in the course of intestate proceedings, a
will is found and it is submitted for probate? Explain. (2%)
SUGGESTED ANSWER:
B. If 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. Upon the probate of the will, the intestate proceedings will be terminated.
(Rule 82, sec. 1).
Special proceedings; settlement of estate
1988 (11)
In the special proceeding for the settlement of the intestate estate of the
deceased Johnny, his widow by his second marriage, Carmelita, moved for her
appointment as Administratrix of the estate. This was opposed by Manda, the son of
Johnny by his first wife, who moved for his appointment instead. The court
appointed Carmelita, the widow, as Administratrix.
11.a) How may Manda contest that appointment of Carmelita?
Instead of administratrix, Carmelita was appointed Special Administratrix.
11.b) Is the same remedy available to the oppositor, Manda? Why or why
not?
11.c) If Johnny Left a holographic will, how may it be probated? Explain.
Answer:
11.a) By appeal, because the appointment of an administrator is a final order
under Rule 109.
11.b) No, because no appeal is allowed from the appointment of a special
administrator. Sec. 1(e) of Rule 109.
11.c) A holographic will may be probated by filing a petition for the allowance
of said will. If it is not contested, at least one competent witness who knows the
hand writing and signature of the testator should explicitly declare that the will and
the signature are in the handwriting of the testator. In the absence of any such
competent witness, and if the court deems it necessary, expert testimony may be
resorted to. If it is contested, at least 3 witnesses who know the handwriting of the
testator should explicitly declare that the will and the signature are in the handwriting
of the testator. In the absence of any competent witness, and if the court deems it
necessary, expert testimony may be resorted to. (Sec. 1, 5 and 11 of Rule 76)
Special proceedings; settlement of estate
2001 No. XV
The rules on special proceedings ordinarily require that the estate of the
deceased should be judicially administered thru an administrator or executor.
What are the two exceptions to said requirements? (5%)
SUGGESTED ANSWER:
The two exceptions to the requirement are:
Page 150 of 181
(a) Where 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
authorized for the purpose, the parties may without securing letters of
administration, divide the estate among themselves by means of public instrument
filed in the office of the register of deeds, or should they disagree, they may do so in
an ordinary action of partition. If there is only one heir, he may adjudicate to himself
the entire estate by means of an affidavit filed in the office of the register of deeds.
The parties or the sole heir shall file simultaneously abound with the register of
deeds, in an amount equivalent to the value of the personal property as certified to
under oath by the parties and conditioned upon the payment of any just claim that
may be filed later. The fact of the extrajudicial settlement or administration shall be
published in a newspaper of general circulation in the province once a week for
three consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)
(b) Whenever the gross value of the estate of a deceased person, whether
he died testate or intestate, does not exceed ten thousand pesos, and that fact is
made to appear to the Regional Trial Court having jurisdiction or the estate by the
petition of an interested person and upon hearing, which shall be held not less than
one (1) month nor more than three (3) months from the date of the last publication of
a notice which shall be published once a week for three consecutive weeks 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 executor or administrator, to settle the estate. (Sec. 2
of Rule 74, Rules of Court)
Special proceedings; settlement of estate
2002 No. VIII.
A. X filed a claim in the intestate proceedings of D. Ds administrator
denied liability and filed a counterclaim against X. Xs claim was disallowed.
(1) Does the probate court still have jurisdiction to allow the claim of Ds
administrator by way of offset? Why? (2%)
(2) Suppose Ds administrator did not allege any claim against X by way of
offset, can Ds administrator prosecute the claim in an independent proceeding/ why/
(3%)
B. A, B and C, the only heirs in Ds 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. Thereafter, C died and proceedings for the
settlement of his estate were filed in the RTC-Quezon City. Ds administrator then
filed a motion in the probate court (RTC-Manila), praying that one of the lots
assigned to C in the project of partition be turned over to him to satisfy debts
corresponding to Cs portion. The motion was opposed by the administrator of Cs
estate. How should the RTC-Manila resolve the motion of Ds administrator?
Explain. (3%)
C. Suppose the property of D was declared escheated on July 1, 1990 in
escheat proceedings brought by the Solicitor General. Now, X, who claims to be an
heir of D, filed an action to recover the escheated property. Is the action viable?
Why? (2%)
SUGGESTED ANSWER:
A. (1) No, because since the claim of X was disallowed, there is no
amount against which to offset the claim of Ds administrator.
(2) Yes, Ds administrator can prosecute the claim in an independent
proceeding since the claim of X was disallowed. If X had a valid claim and Ds
Page 151 of 181
administrator did not allege any claim against X by way of offset, his failure to do so
would bar his claim forever. (Rule 86, sec. 10).
B. The motion of Ds administrator should be granted. The assignment of
the two lots to C was premature because the debts of the estate had not been fully
paid. [Rule 90, sec. 1; Reyes v. Barreto-Datu, 19 SCRA 85 (1967)].
C. No, the action is not viable. The action to recover escheated property
must be filed within five years from July 1, 1990 or be forever barred. (Rule 91, sec.
4).
Special proceedings; settlement of estate; administrator
1998 No XII
A, claiming to be an illegitimate child of the deceased D, instituted an
Intestate proceeding to settle the estate of the latter. He also prayed that he be
appointed administrator of said estate. S, the surviving spouse, opposed the petition
and A's application to be appointed the administrator on the ground that he was not
the child of her deceased husband D. The court, however, appointed A as the
administrator of said estate. Subsequently, S, claiming to be the sole heir of D.
executed an Affidavit of Adjudication, adjudicating unto herself the entire estate of
her deceased husband D. S then sold the entire estate to X.
1. Was the appointment of A as administrator proper? [2%]
2. Was the action of S in adjudicating the entire estate of her late husband
to herself legal? [3%]
SUGGESTED ANSWER:
1. Yes, unless it is shown that the court gravely-abused its discretion in
appointing the illegitimate child as administrator, instead of the spouse. While the
spouse enjoys preference, it appears that the spouse has neglected to apply for
letters of administration within thirty (30) days from the death of the decendent. (Sec.
6, Rule 78, Rules of Court; Gaspay, Jr. vs. Court of Appeals. 238 SCRA 163.)
ALTERNATIVE ANSWER:
S. the surviving spouse, should have been appointed administratrix of the
estate, in as much as she enjoys first preference in such appointment under the
rules. (Sec. 6(a) of Rule 78, Rules of Court.)
SUGGESTED ANSWER:
2. No. An affidavit of self-adjudication is allowed only if the affiant is the sole
heir of the. deceased. (Sec. 1, Rule 74, Rules of Court). In this case, A also claims
to be an heir. Moreover, it is not legal because there is already a pending juridical
proceeding for the settlement of the estate.
Special proceedings; settlement of estate; issues on ownership
1990 (12)
Sammy Magdalo, executor of the estate of the deceased Rolando Aceron,
submitted an inventory which includes a ten-hectare lot occupied by Carlos
Domingo. Domingo opposed inclusion in the inventory of the property claiming
ownership thereof. The probate court directed the executor and Domingo to present
evidence of ownership. Domingo refused to participate in the proceedings, asserting
lack of jurisdiction on the part of the probate court. The probate court nonetheless
proceeded with the hearing, and rendered judgment declaring the deceased to be
the owner of the question property. The probate court directed Domingo to vacate
the premises.
Is the judgment correct? Explain your answer.
Page 152 of 181
Answer:
No, because the probate court has no jurisdiction to adjudicate title to
properties claimed to be part of the estate of the deceased and also claimed by third
parties. (Cuison vs. Ramolete, 129 SCRA 495). It may only make a provisional
determination for the purpose of inclusion in the inventory of the estate. (Bolisay vs.
Alcid, 85 SCRA 213)
Special proceedings; settlement of estate; issues on ownership
1996 No. 11;
2) A and B are brothers Their late father, during his lifetime, donated his
only real estate property to B. Thereafter, B sold the property to C who had it titled.
C died intestate and was survived by his son, D. A, claiming that his legitime had
been impaired, filed a case for annulment of donation and sale, cancellation of title
and recovery of possession of the property before Branch 85 of the Regional Trial
Court. D filed a motion to dismiss the complaint on the ground that there is a
pending intestate estate proceeding before Branch 87 involving the estate of C, his
father, which included the subject real property. A opposed the motion arguing that
Branch 85 has jurisdiction since ownership of the land is involved and the said
branch has jurisdiction to resolve the question of ownership,
As judge of Branch 85, resolve the motion to dismiss.
Answer;
2) I would deny the motion because it is Branch 85 of the Regional Trial
Court that has Jurisdiction to decide the question of ownership of said property.
Special proceedings; settlement of estate; modes
1994 No (6)
Rene died intestate, leaving several heirs and substantial property here in the
Philippines.
6.a) Assuming Rene left no debts, as counsel for Renes heirs, what steps
would you suggest to settle Renes estate in the least expensive manner?
6.b) Assuming Rene left only one heir and no debts, as counsel for Renes
lone heir, what steps would you suggest?
6.c) Assuming that the value of Renes estate does not exceed P10,000.00,
what remedy is available to obtain a speedy settlement of his estate?
Answer:
6.a) To settle Renes estate in the least expensive manner, an extrajudicial
settlement of the estate by agreement of the parties should be made through a
public instrument to be filed with the Register of Deeds, together with a bond in an
amount equivalent to the value of the personal property involved as certified to
under oath by the parties concerned and conditioned upon payment of any just claim
that may be filed within two years by an heir or other person unduly deprived of
participation in the estate. The fact of extrajudicial settlement or administration shall
be published in a newspaper of general circulation once a week for three
consecutive weeks. (Sec. 1, Rule 74).
6.b) If Rene left only one heir, then the heir may adjudicate to himself the
entire estate by means of affidavit of self-adjudication to be filed also with the
Register of Deeds together with the other requirements abovementioned.
6.c) Since the value of Renes estate does not exceed P10,000.00, the
remedy available is to proceed to undertake a summary settlement of estates of
small value by filing a petition in court and upon hearing, which shall be held not less
Page 153 of 181
that one month nor more than three months from the date of the last publication of a
notice which shall be published once a week for three consecutive weeks 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 executor or administrator, and without delay, grant if
proper, allowance of the will, if any, to determine the persons legally entitled to
participate in the estate, and to apportion and divide it among them after payment of
such debts of the estate as the court shall then find to be due. The order of partition
if it involves real estate shall be recorded by the proper registers office. (Sec. 2,
Rule74).
Special proceedings; venue
1997 No. 6:
Give the proper venue for the following special proceedings:
(a) A petition to declare as escheated a parcel of land owned by a resident
ofthe Philippines who died intestate and without heirs or persons entitled to the
property,
(b) A petition for the appointment of an administrator over the land and
building left by an American citizen residing in California, who had been declared an
incompetent by an American court.
(c) A petition for the adoption of a minor residing in Pampanga.
Answer:
(a) The 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 Court).
(b) The venue for the appointment of an administrator over land and building
of an American citizen residing in California, declared Incompetent by an American
Court, is the Regional Trial Court of the place where his property or part thereof is
situated. (Sec. 1. Rule 92).
(c) The venue of a petition for the adoption of a minor residing in Pampanga
is the Regional Trial Court of the place in which the petitioner resides. (Sec. 1. Rule
99),
Evidence
Evidence
2004 NO. VI
A. Distinguish clearly but briefly between:
1. Burden of proof and burden of evidence.
2. Competency of the witness and credibility of the witness.
3. Legislative facts and adjudicative facts.
4. Hearsay evidence and opinion evidence.
5. Questions of law and questions of fact. (5%)
Evidence; admissibility
1998 No XVII.
The barangay captain reported to the police that X was illegally keeping in his
house in the barangay an Armalite M16 rifle. On the strength of that information, the
police conducted a search of the house of X and indeed found said rifle. The police
raiders seized the rifle and brought X to the police station. During the investigation,
he voluntarily signed a Sworn Statement that he was possessing said rifle without
Page 154 of 181
license or authority to possess, and a Waiver of Right to Counsel. During the trial of
X for illegal possession of firearm, the prosecution submitted in evidence the rifle.
Sworn Statement and Waiver of Right to Counsel, individually rule on the
admissibility in evidence of the:
a) Rifle; [2%]
b) Sworn Statement; and [2%1
c) Waiver of Right to Counsel of X. [1%] SUGGESTED ANSWER:
1. The rifle is not admissible in evidence because it was seized without a
proper search warrant. A warrantless search is not justified. There was time to
secure a search warrant. (People us. Encinada G.R. No. 116720, October 2. 1997
and other cases)

2. The sworn statement is not admissible in evidence because it was taken
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. (People us. Januario, 267 SCRA 608.)
3. The waiver of his right to counsel is not admissible because it was made
without the assistance of counsel of his choice. (People us. Gomez, 270 SCRA
433.)
Evidence; admissibility
2002 No. XI.
Acting on a tip by an informant, police officers stopped a car being driven by
D and ordered him to open the trunk. The officers found a bag containing several
kilos of cocaine. They seized the car and the cocaine as evidence and placed D
under arrest. Without advising him of his right to remain silent and to have the
assistance of an attorney, they questioned him regarding the cocaine. In reply, D
said, I dont know anything about it. It isnt even my car. D was charged with illegal
possession of cocaine, a prohibited drug. Upon 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. In his direct
examination, D testified that he owned the car but had registered it in the name of a
friend for convenience. On cross-examination, the attorney representing the police
asked, After your arrest, did you not tell the arresting officers that it wasnt your
car? If you were Ds attorney, would you object to the question? Why? (5%)
SUGGESTED ANSWER:
Yes, because his admission made when he was questioned 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. Hence, it is inadmissible in evidence. [Constitution, Art. III, sec. 12; R.A.
7438 (1992), sec, 2; People v. Mahinay, 302 SCRA 455].
ALTERNATIVE ANSWER:
Yes, because the question did not lay the predicate to justify the cross-
examination question.
Evidence; admissibility of DNA
2004 NO. X
A. At the scene of a heinous crime, police recovered a mans shorts with
blood stains and strands of hair. Shortly afterwards, a warrant was issued and
police arrested the suspect, AA. During his detention, a medical technician
Page 155 of 181
extracted blood sample from his finger and cut a strand from his hair, despite AAs
objections.
During AAs trial for rape with murder, the prosecution sought to introduce
DNA (deoxyribonucleic acid) evidence against AA, based on forensic laboratory
matching of the materials found at the crime scene and AAs hair and blood
samples. AAs counsel objected, claiming that DNA evidence is inadmissible
because the materials taken from AA were in violation of his constitutional right
against self-incrimination as well as his right of privacy and personal integrity.
Should the DNA evidence be admitted or not? Reason. (5%)
Evidence; admissibility of evidence
1992 No. II:
Alejo was stabbed in the abdomen. He immediately called for help and a
policeman promptly approached him. He told the policeman that he felt he would die
from the serious wound inflicted on him by Danilo who has a grudge against him. He
was brought to a hospital for treatment where, on the same day, he was shot and
killed by someone whose identity could not be established by an eye-witness.
Eventually, Danilo was charged in court for the death of Alejo. The prosecution had
to build its case on circumstantial evidence. At the ensuing trial, the policeman was
presented to testily on the declaration made to him by Alejo. The defense objected.
Meeting the objection, the prosecution argued for the admissiblity of the evidence as
a dying declaration (ante mortem statement) or as part of the res gestae, either of
which, when deemed competent evidence as an exception to the hearsay rule,
would demonstrably be relevant to the ultimate fact in issue, the guilt of Danilo for
the death of Alejo. The defense countered by arguing that no facts relating to the
stabbing can be relevant to the shooting.
Is the contention of the prosecution with respect to relevancy and
competency of evidence correct? Discuss fully.
Suggested Answer:
No, the contention of the prosecution is not correct.
The statement of Alejo that it was Danilo who stabbed him is not admissible
as a dying declaration, because it did not concern the cause and surrounding
circumstances of his death. Alejo did not die from the serious wound inflicted on him.
The cause of his death was the shot fired by an unknown person. Neither is the
statement admissible as part of the res gestae, because Danilo was charged with
the death of Alejo and the cause of the death was not the stabbing by Danilo. [Secs.
37 and 42 of Rule 130)
Evidence; admissibility of evidence
1994 No (8)
At the homicide trial, the prosecution proposed that accused Joey undergo a
series of paraffin tests to determine whether he fired his service pistol at the time the
victim, Lyn, was shot to death. The defense objected on the ground that Joeys
submission of his hands for paraffin test, or the inspection of any part of his body for
that matter, would violate his right against self-incrimination.
1. How would you rule on the objection?
2. Is the result of the paraffin test admissible in evidence?
Answer:
1. The objection should be overruled. Submission to the paraffin test is not a
violation of the right against self-incrimination because it involves only an
Page 156 of 181
examination of a part of the body. What violates the right against self-incrimination is
testimonial compulsion.
2. The result of the paraffin test is admissible in evidence that should be
considered.
Evidence; admissibility of evidence; objections
1994 No (3)
3.c) What is the difference between a broadside objection and a specific
objection to the admission of documentary evidence?
Answer:
3.c) A broadside objection to the admission of documentary evidence is to
be distinguished from a specific objection in that a broadside objection is a general
objection such as incompetent, irrelevant and immaterial, while a specific objection
is limited to a particular ground.
Alternative Answer:
A broadside objection is one, which does not specify any ground.
Evidence; admissibility; anti-wire tapping act
1996 No. 15:
5) A sued for annulment of his marriage with B. During trial, A offered in
evidence cassette tapes of alleged telephone conversations of B with her lover. The
tapes were recordings made by tapping A's telephone line, with A's consent and
obviously without B's or her lover's. B vehemently objected to their admission, on
the ground that neither B nor her lover consented to the wire tap. The court
admitted the tapes, ruling that the recorded conversations are nonetheless relevant
to the issues involved.
Was the court correct in admitting the cassette tapes in evidence? Explain,
Answer:
5) No, because the tape recordings made by tapping A's telephone line
without the consent of B or that of her lover was a violation of the Anti-Wire Tapping
Law. (RA No. 4200; Salcedo-Ortanez vs. Court of Appeals, 235 SCRA 111)
Evidence; admissibility; objections
1997 No. 11:
What are the two kinds of objections? Explain each briefly. Given an example
of each.
Answer:
Two kinds of objections are: (1) the evidence being presented is not relevant
to the issue; and (2) the evidence is incompetent or excluded by the law or the rules,
(Sec. 3, Rule 138). An example of the first is when the prosecution offers as
evidence the alleged offer of an Insurance company to pay for the damages suffered
by the victim in a homicide case. (See 1997 No. 14).
Examples of the second are evidence obtained in violation of the
Constitutional prohibition against unreasonable searches and seizures and
confessions and admissions in violation of the rights of a person under custodial
Investigation.
Alternative Answers:
1) Specific objections: Example: parol evidence and best evidence rule
Page 157 of 181
General Objections: Example: continuing objections (Sec. 37 of Rule 132).
2) The two kinds of objections are: (1) objection to a question propounded
in the course of the oral examination of the witness and (2) objection to an offer of
evidence in writing. Objection to a question propounded in the course of the oral
examination of a witness shall be made as soon as the grounds therefor shall
become reasonably apparent otherwise, it is waived. An offer of objection in writing
shall be made within three (3) days after notice of the offer, unless a different period
is allowed by the court. In both instances the grounds for objection must be
specified. An example of the first is when the witness is being cross-examined and
the cross examination is on a matter not relevant. An example of the second is that
the evidence offered is not the best evidence.
Evidence; admission of evidence not alleged in the complaint
2004 NO. I
A. In a complaint for a sum of money filed before the MM Regional Trial
Court, plaintiff did not mention or even just hint at any demand for payment made on
defendant before commencing suit. During the trial, plaintiff duly offered Exh. A in
evidence for the stated purpose of proving the making of extrajudicial demand on
defendant to pay P500,000, the subject of the suit. Exh. A was a letter of demand
for defendant to pay said sum of money within 10 days from receipt, addressed to
and served on defendant some two months before suit was begun. Without
objection from defendant, the court admitted Exh. A in evidence.
Was the courts admission of Exh. A in evidence erroneous or not? Reason.
(5%)
Evidence; admissions/confessions
1996 No. 14:
1) Distinguish extrajudicial admission from extra-judicial confession in
criminal cases.
Answer;
1) An extrajudicial admission is a statement of fact which does not directly
involve an acknowledgment of guilt or criminal intent, while an extrajudicial
confession is a declaration of an accused that he has committed or participated In
the commission of a crime.
Evidence; authentic documents
1990 (16)
In the trial court of a case on July 5, 1990, plaintiff offered an evidence a
receipt dated July 7, 1959 issued by defendant company which was found in a
cabinet for receipts of payment. It is without any blemish or alteration. As no witness
testified in the execution and authenticity of the document, defendant moved for the
exclusion of this receipt notwithstanding that it is a private writing.
Should the said motion be granted? Explain your answers.
Answer:
No, because when a private document is more than thirty (30) years old and
is produced from custody in which it would naturally be found if genuine and is
unblemished by any alterations or circumstances of suspicion, no other evidence of
its authenticity need be given. (Sec.21 of Rule 132)
Evidence; best evidence rule
1994 No (4)
Page 158 of 181
4.a) Why is the Best Evidence Rule often described a misnomer?
Answer:
4.a) The best evidence rule is a misnomer because it merely requires the best
evidence available and, in the absence thereof, allows the introduction of secondary
evidence.
Alternative Answer:
4.a) The best evidence rule is a misnomer because it is applicable only to
documentary evidence and not to testimonial and object evidence.
Evidence; Best evidence rule
1997 No. 20:
When 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 (xeroxed) copies of the promissory
note, giving one copy to B and retaining the other copy. A entrusted the typewritten
copy to his counsel for safekeeping. The copy with A's counsel was destroyed when
the law office was burned.
(a) In an action to collect on the promissory note, which is deemed to be the
"original" copy for the purpose of the "Best Evidence Rule"?
(b) Can the photocopies in the hands of the parties be considered "duplicate
original copies"?
(c) As counsel for A, how will you prove the loan given to A and B?
Answer:
(a) The copy that was signed and lost is the only "original" copy for purposes
of the Best Evidence Rule. (Sec.
4 [b] of Rule 130).
(b) No, They are not duplicate original copies because there are photocopies
which were not signed (Mahilum v. Court of Appeals, 17 SCRA 482), They constitute
secondary evidence. (Sec. 5 of Rule 130).
(c) The loan given by A to B may be proved by secondary evidence through
the xeroxed copies of the promissory note. The rules provide that when the original
document is lost or destroyed, or cannot be produced in court, the offerer, upon
proof of its execution or existence 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. 5 of
Rule 130).
Evidence; best evidence rule; parol evidence rule
1988 (13)
(a) State or explain briefly the Best Evidence Rule.
(b) State or explain briefly the Parol Evidence Rule.
Answer:
(a) The Best Evidence Rule provides that there can be no evidence of a
writing the contents of which is the subject of inquiry, other than the original writing
itself, except in the following cases:
1) When the original has been lost, destroyed, cannot be produced in court;
2) When the original is in the possession of a party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
Page 159 of 181
3) When the original is a record or other document in the custody of a public
officer;
4) When the original has been recorded in an existing record a certified copy
of which is made evidence by law;
5) When the original consists of numerous accounts or other documents
which cannot be examined in court without great loss of time and the fact sought
to be established from them is only the general result of the whole. (Sec. 2 of
Rule 130)
(b) The Parol Evidence Rule provides when the terms of an agreement have
been reduced to writing, it is to be considered as containing all such terms, and,
therefore, there can be, between the parties and their successors in interest, no
evidence of the terms of the agreement other that the contents of the writing, except
in the following cases:
1) Where a mistake or imperfection of the writing, or its failure to express the
true intent and agreement of parties, or the validity of the agreement is put in issue
in the pleadings;
2) When there is an intrinsic ambiguity in the writing.
The term agreement includes wills. (Sec. 7 of Rule 130)
Evidence; character evidence
2002 No. XIV.
D was prosecuted for homicide for allegedly beating up V to death with an
iron pipe.
A. May the prosecution introduce evidence that V had a good reputation
for peacefulness and non-violence? Why? (2%)
B. May D introduce evidence of specific violent acts by V? Why? (3%)
SUGGESTED ANSWER:
A. The prosecution may introduce evidence of the good or even bad moral
character of the victim if it tends to establish in any reasonable degree the
probability or improbability of the offense charged. [Rule 130, sec. 51 a (3)]. In this
case, the evidence is not relevant.
B. Yes, D may introduce evidence of specific violent acts by V. 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 a 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. (Rule 130, sec. 34).
Evidence; confession; affidavit of recantation
1998 No XIX.
1. If the accused on the witness stand repeats his earlier uncounseled
extrajudicial confession implicating his co-accused in the crime charged, is that
testimony admissible in evidence against the latter? [3%]
2. What is the probative value of a witness' Affidavit of Recantation? [2%]
SUGGESTED AJVSWEK;
1. Yes. The accused can testify by repeating his earlier uncounseled
extrajudicial confession, because he can be subjected to cross-examination.
2. On the probative value of an affidavit of recantation, courts look with
disfavor upon recantations because they can easily be secured from witnesses,
Page 160 of 181
usually through intimidation or for a monetary consideration, Recanted testimony is
exceedingly unreliable. There is always the probability that it will be repudiated.
(Molina vs. People. 259 SCRA 138.)
Evidence; confessions and admissions
2004 NO. X
B. Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both aged 22,
in the act of robbing a grocery in Ermita. As he handcuffed them he noted a pistol
tucked in Maxs waist and a dagger hidden under Brixs shirt, which he promptly
confiscated.
At the police investigation room, Max and Brix orally waived their right to
counsel and to remain silent. Then under oath, they freely answered questions
asked by the police desk officer. Thereafter they signed their sworn statements
before the police captain, a lawyer. Max admitted his part in the robbery, his
possession of a pistol and his ownership of the packet of shabu found in his pocket.
Brix admitted his role in the robbery and his possession of a dagger. But they
denied being NPA hit men. In due course, proper charges were filed by the City
Prosecutor against both arrestees before the MM Regional Trial Court.
May the written statements signed and sworn to by Max and Brix be admitted
by the trial court as evidence for the prosecution? Reason. (5%)

Evidence; cross-examination
1988 (18)
(b) Raulo, accused of falsification of a public document, testified in his own
behalf. On cross-examination, he was asked to take dictation in his own writing for
the purpose of comparison. He refused.
May he be compelled to take the dictation? Explain.
Answer:
(b) Yes, since Raulo voluntarily testified in his own behalf, he is subject to
cross-examination on matters covered by direct examination. (Sec.1(d) of Rule 115).
Whenever a defendant testifying in his own behalf, denies that a certain writing or
signature is in his own hand, he may on cross-examination be compelled to write in
open court for the purpose of comparison. (Beltran vs. Samson, 53 Phil. 580)
Evidence; dead man statute
2001 No. XVII
Maximo filed an action against Pedro, the administrator of the estate of
deceased Juan, for the recovery of a car which is part of the latters estate. During
the trial, Maximo presented witness Mariano who testified that he was present when
Maximo and Juan agreed that the latter would pay a rental of P20,000.00 for the use
of Maximos car for one month after which Juan should immediately return the car to
Maximo. Pedro objected to the admission of Marianos testimony.
If you were the judge, would you sustain Pedros objection? Why? (5%)
SUGGESTED ANSWER:
No, the testimony is admissible in evidence because witness Mariano who
testified as to what Maximo and Juan, the deceased person agreed upon, is not
disqualified to testify on the agreement. Those disqualified are parties or assignors
of parties to a case, or persons in whose behalf a case is prosecuted, against the
administrator or Juans estate, upon a claim or demand against his estate as to any
matter of fact occurring before Juans death. (Sec. 23 of Rule 130, Rules of Court)
Page 161 of 181
Evidence; dead man statute; marital disqualification
1988 (9)
Before the RTC of Pasig is Spec. Pro. No. 0001, entitled In Re Intestate
Estate of Pedro Santos, deceased, Ana Santos, Petitioner. The notice to creditors
to file their claims against the estate of the deceased was duly published. Creditor
Cruz duly filed his claim for a P10,000-loan to the deceased which became due and
payable before his death as evidence by his (deceaseds) promissory note.
At the hearing of creditors claim of Cruz, Cruz testified and duly identified the
promissory note. Counsel objected to the testimony of Cruz claiming that Cruz
cannot testify as to matters against the estate of a deceased person.
9.a) Is the objection valid? Explain.
9.b) Who are the persons disqualified to testify by reason of interest or
relationship, as to matters in which they are interested, directly or indirectly?
Answer:
9.a) The objection is not valid because the authentication of the promissory
note of the deceased is a not covered by the rule on surviving parties or the dead
mans statute. Authentication is not a matter of fact on which the claimants lips are
sealed.
Alternative Answer:
9.a) The objection is valid because Cruz cannot testify as to any matter of fact
occurring before the death of the deceased. However, a witness other than the
claimant may authenticate the promissory note.
9.b) 1) Parties or assignors of parties to a cause, or persons in whose behalf
a case is prosecuted, against an executor or administrator or other representative of
a deceased person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person of unsound
mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such person became of unsound mind. (Dead Mans
Rule)
(2) A husband cannot be examined for or against his wife without her
consent; nor wife for or against her husband without his consent, except in a civil
case by one against the other, or in a criminal case for a crime committed by one
against the other. (Sec. 20(a) and (b) of Rule 130 (Marital Disqualification).
Evidence; dying declaration
1987 No (8)
Two days before the victim of a stabbing incident died, he made a statement
to the police identifying the person who had stabbed him. When asked by the police,
the victim added that he did not know if he is going to survive because the many
stab wounds he sustained were very painful.
Is the identification by the deceased of his assailant admissible in evidence as
an ante-mortem statement as an exception to the hearsay rule?
Answer:
Yes. The statement of the victim identifying the person who had stabbed him
is admissible as a dying declaration. The statement was made with consciousness
of impending death, since the victim said that he did not know if he was going to
survive because of the many stab wounds he sustained were very painful and in fact
he died two days later. (People vs. Sarabia, 127 SCRA 100)
Page 162 of 181
Another Alternative Answer:
No. The statement The statement of the victim identifying the person who had
stabbed him is not admissible as a dying declaration because it was not made with
consciousness of impending death. When he said that he did not know if he was
going to survive, he was in doubt whether he would die or not. However, the
statement is admissible as part of the res gestae if it was made immediately or
shortly after the stabbing when the deceased had no sufficient time to concoct a
charge against the accused. (People vs. Dominguez, 36 SCRA 59; People vs.
Laquinon, 135 SCRA 91)
Evidence; dying declaration
1991 No. XV:
One evening, at 9:00 o'clock, just as he reached the gate of his house in
Apas, Cebu City, and as soon as he alighted from his car to open the gate, Carlos
was shot by Tito, who had been waiting behind a coconut tree nearby, with a .38
caliber revolver. Carlos was hit at the sternum of the second rib. Hearing the shot,
Marilyn. Carlos' wife ran out toward the gate and found Carlos lying on the ground,
with blood splattered on his chest. With her son, Y, she brought Carlos to the Cebu
Doctors1 Hospital. In the car, although he was in a semi-conscious state, Carlos told
Marilyn that it was Tito who shot him, Carlos was brought to the emergency room.
However, two (2) hours later, he expired. Tito was then charged with murder before
the RTC of Cebu, Marilyn was presented as witness for the prosecution, but her
testimony regarding the above statement of Carlos was objected to under the
hearsay rule. The court overruled the objection on the ground that the statement
may be considered as a dying declaration.
(a) Is the ruling correct?
Answer:
(a) Yes, because all the requisites to admissibility of a dying declaration are
present. The fact that Carlos died two hours after he was shot shows that his
statement to Marilyn while being brought to the hospital, that it was Tito who shot
him, was made under consciousness of impending death.
(b) What are the requisites to admissibility of a dying declaration?
Answer:
(b) 1) It must concern the cause and the surrounding circumstances of
declarant's death;
2) It was made under consciousness of Impending death;
3) The declarant was competent as a witness;
4) The declaration is offered in a civil or criminal case in which the declarant
was a victim. (Sec. 37 of Rule 130; People v. Sagario, 14 SCRA 468)
Evidence; dying declaration
1993 No (20)
While sleeping under a tree, Kintanar was stabbed several times by a man,
sustaining multiple stab wounds on his chest with blood spurting therefrom. Bathed
in his own blood, Kintanar rushed to his house where he was met by his wife.
Kintanar informed his wife that it was Gonzales who stabbed him. On the way to the
hospital, Kintanar kept on saying that it was Gonzales who stabbed him. He did
while undergoing surgery at the hospital.
Convicted for the killing of Kinatanar, Gonzales questioned the admission in
evidence of the ante-mortem statement of Kintanar to his wife. He argued that form
Page 163 of 181
the abovecited facts, there is no indication that the aforesaid statement was made
by the victim under consciousness of an impending death.
Can the subject statement be considered a dying declaration?Why?
Answer:
Yes, the statement that it was Gonzales who stabbed him can be considered
a dying declaration because it concerned the crime and surrounding circumstances
of declarants death; it was made with consciousness of impending death as shown
by the fact that he died while undergoing surgery at the hospital; the declarant was
competent as a witness; and the declaration was offered in a criminal case in which
declarant was the victim.
Alternative Answer:
Even if the statement cannot be considered a dying declaration, it was
admissible as part of the res gestae.
Evidence; dying declaration
1998 No XVIII
2. Dying Declaration. [2%)
SUGGESTED ANSWER;
2. The requisites for the admissibility of a dying declaration are: (a) the
declaration is made by the deceased under the consciousness of his impending
death; (b) the deceased was at the time competent as a witness; (c) the declaration
concerns the cause and surrounding circumstances of the declarant's death; and (d)
the declaration is offered in a (criminal) case wherein the declarant's death is the
subject of inquiry. (People vs. Santos, 270 SCRA 650.)
ALTERNATIVE ANSWER:
The 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
Inquiry, as evidence of the cause and surrounding circumstances of such death.
(Sec. 37 of Rule 13O.)
Evidence; effect of an offer of compromise
1989 (11)
Pedro was charged with homicide for having hacked Ramon to death. Before
the case could be tried, the heirs of Ramon sought out Pedro and discussed with
him the possibility of settlement of the case. Pedro agreed to a settlement. When the
heirs asked how much he was willing to pay, Pedro offered P30,000 which the heirs
accepted. Is the agreement to settle as well as the offer to pay P30,000 by Pedro
admissible in evidence against him as an implied admission of guilt? Explain.
Answer:
Yes. Under the Rules on Evidence, in criminal cases which are not allowed by
law to be compromised, an offer of compromise by the accused nay be received in
evidence as an implied admission of guilt. Since a criminal case for homicide is not
allowed by law to be compromised, Pedros offer of P30,000 for the settlement of the
case, which the heirs accepted, is admissible in evidence against him as an implied
admission of guilt. (Sec.24 of Rule 130)
Evidence; effect of offer of settlement
1996 No. 15:
Page 164 of 181
3) X, charged with rape with homicide, offered P100,000.00 as
amicable settlement to the family of the victim. The family refused. During the trial,
the prosecution presented in evidence X's offer of compromise.
What is the legal implication of such offer? Explain.
Answer:
3) The offer of P100,000.00 as amicable settlement in a criminal case for
rape with homicide is an implied admission of guilt. It does not fall within the
exceptions of quasl-offenses or those allowed by law to be compromised. (Sec, 2 7
of Rule 130)
Evidence; electronic evidence
2003 No. XIX.
(a) State the rule on the admissibility of an electronic evidence.
(b) When is an electronic evidence regarded as being the equivalent of an
original document under the Best Evidence Rule? 4%
SUGGESTED ANSWER:
(a) Whenever a rule of evidence refers to the term writing, document,
record, instrument, memorandum or any other form of writing, such term shall be
deemed to include an electronic document as defined in these Rules. (Sec. 1 of
Rule 3, Rules of Electronic Evidence effective August 1, 2001).
An electronic document is admissible in evidence if it complies with the rules
on admissibility prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules. (Sec. 2 of Rule 3, Id.). The
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 5, Id.).
(b) An electronic document shall be regarded as the equivalent of an
original document under the Best Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data accurately. (Sec. 1 of Rule 4)
Evidence; equipoise doctrine
1995 No. 1:
1. Explain the equipoise doctrine in the law of evidence and cite its
constitutional and procedural bases.
Answer;
1. Equipoise is the equivalent of equiponderance of evidence. When the
scale shall stand upon an equipoise and there is nothing in the evidence which shall
incline it to one side or the other, the court will find for the defendant. (Moran Vol. 6,
p. 134)
The Constitution provides that no person shall be deprived of life, liberty or
property without due process of law. nor shall any person be denied the equal
protection of the law. (Sec. 1, Art. III)
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 required by
law. (Sec. l, Rule 131)
In a criminal case its constitutional basis is the presumption of Innocence and
the requirement of proof beyond reasonable doubt for conviction.
Evidence; examination of witnesses
Page 165 of 181
1997 No. 13:
(a) Aside from asking a witness to explain and supplement his answer in the
cross-examination, can the proponent ask in re-direct examination questions on
matters not dealt with during cross-examination?
(b) Aside from asking the witness on matters stated in his re-direct
examination, can the opponent In his re-cross-examination ask questions on matters
not dealt with during the re-direct?
(c) After plaintiff has formally submitted his evidence, he realized that he had
forgotten to present what he considered an important evidence. Can he recall a
witness?
Answer:
(a] Yes, on redirect examination, questions on matters not dealt with during
the cross-examination may be allowed by the court in its discretion. (Sec. 7 of Rule
132).
(b) Yes, the opponent in his re-cross-examination may also ask questions on
such other matters as may be allowed by the court in its discretion. (Sec. 8. Rule
132).
(c) Yes, after formally submitting his evidence, the plaintiff can recall a
witness with leave of court. The court may grant or withhold leave in its discretion as
the interests of justice may require. (Sec. 9. Rule 132).
Evidence; examination of witnesses
2002 No. XIII.
B. Is this question on direct examination objectionable: What happened
on July 12,1999? Why? (2%)
SUGGESTED ANSWER:
B. The question is objectionable because it has no basis, unless before
the question is asked the proper basis is laid.
Evidence; formal offer of evidence
1993 No (3)
During the pre-trial of a civil case, the parties their respective documentary
evidence. Among the documents marked by the plaintiff was the Deed of Absolute
Sale of the property in litigation marked as Exh. C).
In the course of the trial on the merits, Exh. C was identified by the plaintiff,
who was cross-examined thereon by the defendants counsel; furthermore, the
contents of Exh. C were read into the records by the plaintiff.
However, Exh. C was not among those formally offered in evidence by the
plaintiff.
May the trial court consider Exh. C in the determination of the action? Why?
Answer:
Yes, because not only was the Deed of Absolute Sale marked by the plaintiff
as Exh. C during the pre-trial, it was identified by the plaintiff in the course of the trial
and the plaintiff was cross-examined thereon by the defendants counsel.
Furthermore, the contents of Exh. C were read into the records by the plaintiff.
Hence, the trial court could properly reconsider Exh. C in the determination of the
action even though it was not formally offered in evidence. This is an exception to
Page 166 of 181
the rule that the court shall consider no evidence which has not been formally
offered. (Sec. 35 of Rule 132).
Evidence; formal offer of evidence
1996 No. 15:
2) X sued Y, a shipping co., based on a contract of carriage contained in a
bill of lading. The bill of lading, an actionable document, was pleaded and attached
to the complaint. Y. without alleging anything else, merely assailed the validity of the
agreement in the bill of lading for being contrary to public policy. After presenting
evidence, X did not formally offer for admission the bill of lading. The court ruled for
X, On motion for reconsideration, Y alleged that X failed to prove his action as the
bill of lading was not formally offered.
Decide.
Answer:
2) Motion for reconsideration is denied. There was no need to formally offer
for admission the bill of lading, because the failure of Y to deny under oath the
genuineness and due execution of the bill of lading which was an actionable
document constituted an admission thereof. (Sec. 8 of Rule 8)
Evidence; formal offer of evidence
1997 No. 12:
A trial court cannot take into consideration in deciding a case an evidence
that has not been "formally offered". When are the following pieces of evidence
formally offered?
(a) Testimonial evidence
(b) Documentary evidence
(c) Object evidence Answer;
(a) Testimonial evidence is formally offered at the time the witness is called
to testify. (Rule 132. Sec. 35, first par.).
(b) Documentary evidence is formally offered after the presentation of the
testimonial evidence. (Rule 132, Sec. 35, second par.).
(c) The same is true with object evidence. It is also offered after the
presentation of the testimonial evidence.
Evidence; formal offer of evidence; res inter alios acta
2003 No. XX.
X and Y were charged with murder. Upon application of the prosecution, Y
was discharged from the Information to be utilized as a state witness. The
prosecutor presented Y as witness but forgot to state the purpose of his testimony
much less offer it in evidence. Y testified that he and X conspired to kill the victim but
it was X who actually shot the victim. The testimony of Y was the only material
evidence establishing the guilt of X. Y was thoroughly cross-examined by the
defense counsel. After the prosecution rested its case, the defense filed a motion for
demurrer to evidence based on the following grounds.
(a) The testimony of Y should be excluded because its purpose was not
initially stated and it was not formally offered in evidence as required by Section 34,
Rule 132 of the Revised Rules of Evidence; and
(b) Ys testimony is not admissible against X pursuant to the rule on res
inter alios acta,
Page 167 of 181
Rule on the motion for demurrer to evidence on the above grounds. (6%)
SUGGESTED ANSWER:
The demurrer to the evidence should be denied because:
(a) The testimony of Y should not be excluded because the defense
counsel did not object to his testimony despite the fact that the prosecutor forgot to
state its purpose or offer it in evidence. Moreover, the defense counsel thoroughly
cross-examined Y and thus waived the objection.
(b) The res inter alios acta rule does not apply because Y testified in open
court and was subjected to cross examination.
Evidence; formal offer vs offer of proof
1991 No, XVII:
Distinguish formal offer of evidence from offer of proof.
Answer:
A formal offer of the testimony of a witness is made at the time the witness is
called to testify, while a formal offer of documentary and object evidence is made
after the presentation of a party's testimonial evidence. (Sec. 35 of Rule 132)
On the other hand, if documents or things offered in evidence are excluded
by the court, the offer of proof is made by having the same attached to or made part
of the record; and if the evidence excluded is oral, the offer of proof is made by
stating for the record the name and other personal circumstances of the witness and
the substance of the proposed testimony. (Sec. 40 of Rule 132)
Evidence; hearsay evidence
2002 No. XII.
Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular
accident. Julieta, a witness is court, testifies that Romeo told her (Julieta) that he
(Romeo) heard Antonio, a witness to the accident, give an excited account of the
accident immediately after its occurrence. Is Julietas testimony admissible against
Romeo over proper and timely objection? Why? (5%)
SUGGESTED ANSWER:
No, Julietas testimony is not admissible against Romeo, because while the
excited account of Antonio, a witness to the accident, was told to Romeo, it was only
Romeo who told Julieta about it, which makes it hearsay.
Evidence; hearsay evidence; exceptions
1994 No (17)
Gerry is being tried for rape. The prosecutions evidence sought to establish
that at about 9:00 P.M. of January 20, 1994, Gerry went to complainant Junes
house to invite her to watch the festivities going on at the town plaza. June accepted
the invitation. Upon reaching the public market, which was just a stones throw away
from Junes house, Gerry forcibly dragged June towards the banana grove behind
the market where he was able to have carnal knowledge with June for about an
hour. June did not immediately go home thereafter, and it was only in the early
morning of the following day that she narrated her ordeal to her daughter Liza. Liza
testified in court as to what June revealed to her.
17.a) Is the testimony of Liza hearsay?
17.b) Is it admissible in evidence against the objection of the defense?
Answer:
Page 168 of 181
17.a) Yes. Lizas testimony is hearsay. A witness can testify to those facts
which he knows from his own perception except as otherwise provided in the rules.
(Sec. 36, Rule 130).
17.b) No, it is not admissible in evidence against the objection of the defense,
because it is not one of the exceptions to the hearsay rule. It is not part of the res
gestae because only statements made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. (Sec. 42,
Rule 130). She narrated her ordeal to her daughter Liza only in the early morning of
the following day, as she did not immediately go home after the incident which
occurred at (:00 p.m. She could have made up the story. She should be placed on
the witness stand, not Liza whose knowledge of the event is hearsay.
Alternative Answer:
17.b) Lizas testimony is admissible as to the tenor but not as to the truth of
what June revealed to her.
Evidence; hearsay rule
1996 No. 15:
1) At A's trial for B's murder, the defense attempts to present as its witness
his widow, X. She is to testify that just before B died, she approached his sprawled
and bloodied husband and asked who stabbed him. B, conscious of his impending
death, named Y as his assailant. The prosecution moves to stop X from testifying
because her testimony (1) is hearsay, and (2) will be violative of the rule on
privileged marital communication.
Rule on the prosecution's motion. Explain.
Answer:
1) I will deny the prosecution's motion. The testimony of X is admissible as a
dying declaration, which is an exception to the hearsay rule. (Sec. 37 of Rule 130)
Moreover, it is not a privileged marital communication. (Sec. 24-A of Rule 130}
Evidence; hearsay rule
1999 No. XVII
a. Define hearsay evidence? (2%)
b. What are the exceptions to the hearsay rule? (2%)
c. A overheard B call X a thief. In an action for defamation filed by X
against B, is the testimony of A offered to prove the fact of utterance i.e., that B
called X a thief, admissible in evidence? Explain. (2%)
d. The accused was charged with robbery and homicide. The victim
suffered several stab wounds. It appears that eleven (11) 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 asked certain questions which he
answered, pointing to the accused as his assailant. His answers were put down in
writing, but since he was a in a critical condition, his brother and the policeman
signed the statement. Is the statement admissible as a dying declaration? Explain.
(2%)
SUGGESTED ANSWER:
a. Hearsay evidence may be defined as evidence that consists of testimony
not coming from personal knowledge (Sec. 36, Rule 130, Rules of Court). Hearsay
testimony is the testimony of a witness as to what he has heard other persons say
about the facts in issue.
Page 169 of 181
b. The exceptions to the hearsay rule are: dying declaration, declaration
against interest, act or declaration about pedigree, family reputation or tradition
regarding pedigree, common reputation, part of the res gestae, entries in the course
of business, entries in official records, commercial lists and the like, learned
treatises, and testimony or deposition at a former proceeding. (Sees. 37 to 47, Rule
13O, Rules of Court)
c. Yes. The testimony of A who overheard B call X a thief is admissible in
evidence as an independently relevant statement. It is offered in evidence only to
prove the tenor thereof, not to prove the truth of the facts asserted therein.
Independently relevant statements include statements which are on the very facts in
issue or those which are circumstantial evidence thereof. The hearsay rule does not
apply. (See People vs. Gaddi, 170 SCRA 649.|
d. Yes. The statement is admissible as a dying declaration if the victim
subsequently died and his answers were made under the consciousness of
impending death. (Sec. 37 of Rule 130| The fact that he did not sign the statement
point to the accused as his assailant, because he was in critical condition, does not
affect its admissibility as a dying declaration. A dying declaration need not be in
writing (People v. Viovicente, 286 SCRA 1)
Evidence; hearsay rule; exceptions
2003 No. XVIII.
X was charged with robbery. On the strength of a warrant of arrest issued by
the court, X was arrested by police operatives. They seized from his person a
handgun. A charge for illegal possession of firearm was also filed against him. In a
press conference called by the police, X admitted that he had robbed the victim of
jewelry valued at P500,000.00.
The robbery and illegal possession of firearm cases were tried jointly. The
prosecution presented in evidence a newspaper clipping of the report to the reporter
who was present during the press conference stating that X admitted the robbery. It
likewise presented a certification of the PNP Firearms and Explosive Office attesting
that the accused had no license to carry any firearm. The certifying officer, however,
was not presented as a witness. Both pieces of evidence were objected to by the
defense. (6%)
(a) Is the newspaper clipping admissible in evidence against X?
(b) Is the certification of the PNP Firearm and Explosive Office without the
certifying officer testifying on it admissible in evidence against X?
SUGGESTED ANSWER:
(a) Yes, the newspaper clipping is admissible in evidence against X.
regardless of the truth or falsity of a statement, the hearsay rule does not apply and
the statement may be shown where the fact that it is made is relevant. Evidence as
to the making 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 existence of
such fact. (Gotesco Investment Corporation vs. Chatto, 210 SCRA 18 [1992]
(b) Yes, the certification is admissible in evidence against X because a
written statement signed by an officer having the custody of an official record or by
his deputy that after diligent search no record or entry of a specified tenor is found to
exist in the records of his office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain no such record or entry.
(Sec. 28 of Rule 132).
Evidence; impeachment of witnesses
Page 170 of 181
1996 No. 14:
2) In the examination of witnesses, what is meant by "laying the predicate"?
Answer;
2) "Laying the predicate" is the procedure of impeaching a witness by
evidence of prior inconsistent statements. Before such a witness can be impeached,
the prior statements must be related to him, with the circumstances of the times and
places and the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing they
must be shown to him before any question is put to him concerning them. (Sec. 13
of Rule 132)
Evidence; judicial notice; foreign law
1997 No. 19:
(a) Give three instances when a Philippine court can take judicial notice of a
foreign law.
(b) How do you prove a written foreign law?
(c) Suppose a foreign law was pleaded as part of the defense of defendant
but no evidence was presented to prove the existence of said law, what is the
presumption to be taken by the court as to the wordings of said law"?
Answer:
(a) The three instances when a Philippine court can take judicial notice of a
foreign law are: (1) when the Philippine courts are evidently familiar with the foreign
law (Moran. Vol. 5, p. 34, 1980 edition); (2) when the foreign law refers to the law of
nations (Sec. 1 of Rule 129) and (3) when it refers to a published treatise, periodical
or pamphlet on the subject of law if the court takes judicial notice of the fact that the
writer thereof is recognized in his profession or calling as expert on the subject (Sec.
46. Rule 130).
(b) A written foreign law may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied. If the record is not kept in the Philippines, with a
certificate that such officer has the custody, if the office in which the record is kept is
in a foreign country, the certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice-consul, or consular agent or by any officer in
the foreign service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office (Sec. 24, Rule 132,
Zalamea v. CA, 228 SCRA 23),
(c) The presumption is that the wordings of the foreign law are the same as
the local law. (Northwest Orient Airlines v. Court of Appeals, 241 SCRA 192; Moran,
Vol. 6. page 34, 1980 edition; Lim v. Collector of Customs, 36 Phil. 472). This Is
known as the processual presumption.
Alternative Answers;
(a) The Philippine court can also take judicial notice of a foreign law: 1) when
the foreign statute is accepted by the Philippine government (Rep. v. Guanzon, 61
SCRA 360); 2) when a foreign judgment containing foreign law is recognized for
enforcement (Sec. 48, Rule 39); and 3) if it refers to common law doctrines and rules
from which many of our laws were derived (Alzua v Johnson [21 Phil. 308]).
(b) A written foreign law is proved by presenting a published treatise,
periodical or pamphlet on said foreign law if the court may take judicial notice, or a
witness expert in the subject testifies. that the writer of the statement in the treatise,
Page 171 of 181
periodical or pamphlet is recognized in his profession or calling as expert in the
subject (Sec. 46. Rule 130).
Evidence; kinds; admissibility
1994 No (9)
At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution
offers in evidence a photocopy of the marked P100.00 bills used in the buy-bust
operation. Ace objects to the introduction of the photocopy on the ground that the
Best Evidence Rule prohibits the introduction of secondary evidence in lieu of the
original.
9.a) Is the photocopy real (object) evidence or documentary evidence?
9.b) Is the photocopy admissible in evidence?
Answer:
9.a) The photocopy of the marked bills is real (object) evidence not
documentary evidence, because the marked bills are real evidence.
9.b) Yes, the photocopy is admissible in evidence, because the best evidence
rule does not apply to object or real evidence.
Evidence; lost documents; secondary evidence
1992 No. XIII:
Ajax Power Corporation, a utility company, sued in the Regional Trial Court to
enforce a supposed right of way over a property owned by Simplicio. At the ensuing
trial, Ajax presented its retired field auditor who testified that he know for a fact that a
certain sum of money was periodically paid to Simplicio for some time as
consideration for a right of way pursuant to a written contract. The original contract
was not presented. Instead, a purported copy, identified by the retired field auditor
as such, was formally offered as part of his testimony. Rejected by the trial court, it
was finally made the subject of an offer of proof by Ajax.
Can Ajax validly claim that it had sufficiently met its burden of proving the
existence of the contract establishing its right of way? Explain,
Suggested Answer:
No. Ajax had not sufficiently met the burden of proving the existence of the
written contract because. It had not laid the basis for the admission of a purported
copy thereof as secondary evidence. Ajax should have first proven the execution of
the original document and its loss or destruction. (Sec. 5 of Rule 130)
Evidence; marital disqualification rule
1989 (12)
Ody sued spouses Cesar and Baby for a sum of money and damages. At the
trial, Ody called Baby as his first witness. Baby objected, joined by Cesar, on the
ground that she may not be compelled to testify against her husband. Ody insisted
and contended that after all, she would just be questioned about a conference they
had with the barangay captain, a matter which is not confidential in nature. The trial
court ruled in favor of Ody. Was the ruling proper? Will your answer be the same if
the matters to be testified on were known to Baby or acquired by her prior to her
marriage to Cesar? Explain.
Answer:
No. Under the Rules on Evidence, a wife cannot be examined for or against
her husband without his consent, except in civil cases by one against the other, or in
a criminal case for a crime committed by one against the other. Since the case was
Page 172 of 181
filed by Ody against the spouses Cesar and Baby, Baby cannot be compelled to
testify for or against Cesar without his consent. (Lezama vs. Rodriguez, 23 SCRA
1166).
The answer would be the same if the matters to be testified on were known to
Baby or acquired by her prior to her marriage to Cesar, because the marital
disqualification rule may be invoked with respect to testimony on any fact. It is
immaterial whether such matters were known to Baby before or after her marriage to
Cesar.
Evidence; marital disqualification rule
2000 No. XI.
Vida and Romeo are legally married. Romeo is charged to court with the
crime of serious physical injuries committed against Selmo, son of Vida, step-son of
Romeo. Vida witnessed the infliction of the injuries on Selmo by Romeo. The public
prosecutor called Vida to the witness stand and offered her testimony as an
eyewitness. Counsel for Romeo objected on the ground of the marital
disqualification rule under the Rules of Court.
(a) Is the objection valid? (3%)
(b) Will your answer be the same if Vidas testimony is offered in a civil
case for recovery of personal property filed by Selmo against Romeo? (2%)
SUGGESTED ANSWER:
(a) No. While neither the husband nor the wife may testify for or against
the other without the consent of the affected spouse, one exception is if the
testimony of the spouse is in a criminal case for a crime committed by one against
the other or the latters direct descendants or ascendants. (Sec, 22, Rule 130, Rules
of Court). The case falls under this exception because Selma is the direct
descendant of the spouse Vide.
(b) No. The marital disqualification rule applies this time. The exception
provided by the rules is in a civil case by one spouse against the other. The case
here involves a case by Selmo for the recovery of personal property against Vidas
spouse, Romeo.
Evidence; marital disqualification; privileged communication
1995 No. 2:
Allan and Narita were married on 1 August 1989. After two months Narita told
Allan in confidence that 10-year old Liza whom she claimed to be her niece was
actually her daughter by a certain Basilio, a married man.
In 1992 Narita obtained a judicial decree of nullity of her marriage with Allan
on the latter's psychological incapacity to fulfill his marital obligations. When the
decree became final, Liza, assisted by Narita, filed ten (10) cases of rape against
Allan purportedly committed in 1991. During the trial Narita was called to the witness
stand to testify as a witness against Allan who objected thereto on the ground of
marital disqualification.
1. As public prosecutor, how would you meet the objection? Explain.
2. Suppose Narita's testimony was offered while the decision nullifying her
marriage to Allan was pending appeal, would your answer be different? Explain.
3. Suppose Narita died during the pendency of the appeal, and soon after,
the legal wife of Basilio sued for legal separation on sexual infidelity in view of
Basilio's love affair with Narita. At the trial Allan was called by Basilio's wife to testify
Page 173 of 181
that Narita confided to him (Allan) during their marriage that Liza was her love child
by Basilio.
As counsel for Basilio, can you validly object to the presentation of Allan as a
witness for the plaintiff? Explain.
Answer;
1. The objection should be overruled because the ground of marital
disqualification may be invoked only during the marriage. When Narita was called to
the witness stand, the judicial decree of nullity of her marriage had already become
final. (Sec. 22, Rule 130)
2. No, because this ground may not be invoked in a criminal case for a
crime committed by one against the other or the latter's direct descendants or
ascendants. In this case Liza was the daughter of Narita. (Sec. 24 (a). Rule 130)
3. Yes. I could validly object to the presentation of Allan as a witness on the
ground that the communication of Narita was a privileged marital communication
which could be invoked during or after the marriage. Moreover, the testimony of
Allan would be hearsay.
Evidence; marital privilege rule
2004 NO. IX
B. XYZ, an alien, was criminally charged of promoting and facilitating child
prostitution and other sexual abuses under Rep. Act No. 7610. The principal
witness against him was his Filipina wife, ABC. Earlier, she had complained that
XYZs hotel was being used as a center for sex tourism and child trafficking. The
defense counsel for XYZ objected to the testimony of ABC at the trial of the child
prostitution case and the introduction of the affidavits she executed against her
husband as a violation of espousal confidentiality and marital privilege rule. It turned
out that DEF, the minor daughter of ABC by her first husband who was a Filipino,
was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ
since last year.
May the court admit the testimony and affidavits of the wife, ABC, against her
husband, XYZ, in the criminal case involving child prostitution? Reason. (5%)
Evidence; marital privilege; parental privilege; privileged communication
1998 No XX
C is the child of the spouses H and W. H sued his wife W for judicial
declaration of nullity of marriage under Article 36 of the Family Code. In the trial, the
following testified over the objection of W: C, H and D. a doctor of medicine who
used to treat W. Rule on W's objections which are the following:
1. H cannot testify against her because of the rule on marital privilege; [1%]
2. C cannot testify against her because of the doctrine on parental
privilege; and [2%]
3. D cannot testify against her because of the doctrine of privileged
communication between patient and physician. [2%]
SUGGESTED ANSWER:
1. The rule of marital privilege cannot be invoked in the annulment case
under Rule 36 of the Family Code because it is a civil case filed by one against the
other, (Sec. 22 , Rule 130. Rules of Court.)
Page 174 of 181
2. The doctrine of parental privilege cannot likewise be Invoked by W as
against the testimony of C, their child. C may not be compelled to testify but is free
to testify against her. (Sec. 25. Rule 130. Rules of Court; Art. 215, Family Code.)
3. D, as a doctor who used to treat W, is disqualified to testify against W
over her objection as to any advice or treatment given by him or any information
which he may have acquired in his professional capacity. (Sec. 24 [c], Rule 130.
Rules of Court.)
ALTERNATIVE ANSWER:
If the doctor's testimony is pursuant to the requirement of establishing the
psychological incapacity of W, and he is the expert called upon to testify for the
purpose, then it should be allowed. (Republic vs. Court of Appeals and Molina, 26S
SCRA 198.)
Evidence; memorandum
1996 No. 14:
3) X states on direct examination that he once knew the facts being asked
but he cannot recall them now. When handed a written record of the facts he
testifies that the facts are correctly stated, but that he has never seen the writing
before.
Is the writing admissible as past recollection recorded? Explain,
Answer;
3) No, because for the written record to be admissible as past recollection
recorded. It must have been written or recorded by X 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 knew that the same was correctly written or
recorded. (Sec. 16 of Rule 132) But in this case X has never seen the writing before.
Evidence; offer to marry; circumstantial evidence
1998 No XVI.
A was accused of having raped X.
Rule on the admissibility of the following pieces of evidence:
1. an offer of A to marry X; and (3%]
2. a pair of short pants allegedly left by A at the crime which the court, over
the objection of A, required him to put on, and when he did, it fit him well. [2%]
SUGGESTED ANSWER;
1. A's offer to marry X is admissible in evidence as an Implied admission of
guilt because rape cases are not allowed to be compromised. (Sec. 27 of Rule 13O;
People vs. Domingo, 226 SCRA 156.)
2. The pair of short pants, which fit the accused well, is circumstantial
evidence of his guilt, although standing alone it cannot be the basis of conviction.
The accused cannot object to the court requiring him to put the short pants on. It is
not part of his right against self-incrimination because it is a mere physical act.
Evidence; offer to pay expenses; effect
1997 No. 14:
A, while driving his car, ran over B. A visited B at the hospital and offered to
pay for his hospitalization expenses. After the filing of the criminal case against A for
serious physical injuries through reckless imprudence. A's insurance carrier offered
Page 175 of 181
to pay for the injuries and damages suffered by B. The offer was rejected because B
considered the amount offered as inadequate.
(a) Is the offer by A to pay the hospitalization expenses of B admissible in
evidence?
(b) Is the offer by A's insurance carrier to pay for the injuries and damages of
B admissible in evidence?
Answer:
(a) The offer by A to pay the hospitalization expenses of B is not admissible
in evidence to prove his guilt in both the civil and criminal cases. (Rule 130, Sec. 27,
fourth par.).
(b) No. It is irrelevant. The 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 offered by the accused but by the insurance company which is
not his agent.
Evidence; offfer of evidence; testimonial and documentary
1994 No (3)
3.b) What is the difference between an offer of testimonial evidence an offer
of documentary evidence?
Answer:
3.b) An offer of testimonial evidence is made at the time the witness is called
to testify, while an offer of documentary evidence is made after the presentation of a
partys testimonial evidence. (Sec. 35, Rule 132).
Evidence; opinion rule
1994 No (19)
At Nolans trial for possession and use of the prohibited drug, known as
shabu:, his girlfriend Kim, testified that on a particular day, he would see Nolan 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. Nolan
objects to the admissibility of Kims testimony on the ground that Kim merely stated
her opinion without having been first qualified as expert witness.
Should you, as judge, exclude the testimony of Kim?
Answer:
No. The testimony of Kim should not be excluded. Even though Kim is not an
expert witness, Kim may testify on her impressions of the emotion, behavior,
condition or appearance of a person. (Sec. 50, last par., Rule 130).
Evidence; parol evidence rule
2001 No. XVI
Pedro filed a complaint against Lucio for the recovery of a sum of money
based on a promissory note executed by Lucio. In his complaint, Pedro alleged that
although the promissory note says that it is payable within 120 days, the truth is that
the note is payable immediately after 90 days but that if Pedro is willing, he may,
upon request of Lucio give the latter up to 120 days to pay the note. During the
hearing, Pedro testified that the truth is that the agreement between him and Lucio is
for the latter to pay immediately after ninety days time. Also, since the original note
was with Lucio and the latter would not surrender to Pedro the original note which
Lucio kept in a place about one days trip from where he received the notice to
produce the note and in spite of such notice to produce the same within six hours
Page 176 of 181
from receipt of such notice, Lucio failed to do so. Pedro presented a copy of the note
which was executed at the same time as the original and with identical contents.
a) Over the objection of Lucio, will Pedro be allowed to testify as to the
true agreement or contents of the promissory note? Why? (2%)
b) Over the objection of Lucio, can Pedro present a copy of the
promissory note and have it admitted as valid evidence in his favor? Why? (3%)
SUGGESTED ANSWER:
a) Yes, because Pedro has alleged in his complaint that the promissory
note does not express the true intent and agreement of the parties. This is an
exception to the parol evidence rule. [Sec. 9(b) of Rule 130, Rules of Court]
b) Yes, the copy in the possession of Pedro is a duplicate original and
with identical contents. [Sec. 4(b) of Rule 130]. Moreover, the failure of Lucio to
produce the original of the note is excusable because he was not given reasonable
notice, as requirement under the Rules before secondary evidence may be
presented. (Sec. 6 of Rule 130, Rules of Court)
Note: The promissory note is an actionable document and the original or a
copy thereof should have been attached to the complaint. (Sec. 7 of Rule 9, 1997
Rules of Civil Procedure). In such a case, the genuineness and due execution of the
note, if not denied under oath, would be deemed admitted. (Sec. 8 of Rule 9, 1997
Rules of Civil Procedure)
Evidence; preponderance vs substantial evidence
2003 No. XVII.
Distinguish preponderance of evidence from substantial evidence. 4%
SUGGESTED ANSWER:
Preponderance of evidence means that the evidence as a whole adduced by
one side is superior to that of the other. This is applicable in civil cases. (Sec. 1 of
Rule 133; Municipality of Moncada v. Cajuigan, 21 Phil, 184 [1912]).
Substantial evidence is that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion. This is applicable in case
filed before administrative or quasi-judicial bodies. (Sec. 5 of Rule 133)
Evidence; qualifications of witnesses
1994 No (10)
Louise is being charged with the frustrated murder of Roy. The prosecutions
lone witness, Mariter, testified to having seen Louse prepare the poison which she
later surreptitiously poured into Roys wine glass. Louise sought the disqualification
of Mariter as witness on account of her previous conviction for perjury.
3. Rule on Louises contention.
4. Can Mariter be utilized as state witness if she is a co-accused in the
criminal case?
Answer:
3. The contention of Louise is not correct. Mariter cannot be disqualified from
being a witness on account of her previous conviction of perjury.. Previous
conviction is not a disqualification because, in this case, it is not so provided by law.
(Sec.20, Rule 130).
4. Mariter, however, cannot be utilized as a state witness if she is a co-
accused in a criminal case because an accused can be discharged as a state
Page 177 of 181
witness if, among five requirements, the accused has not at any time been convicted
of any offense involving moral turpitude. (Sec. 9, Rule 119).
Evidence; qualifications of witnesses; weight of evidence
1994 No (7)
Al was accused of raping Lourdes. Only Lourdes testified on how the crime
was perpetrated. On the other hand, the defense presented Als wife, son and
daughter to testify that Al was with them when the alleged crime took place. The
prosecution interposed timely objection to the testimonies on the ground of obvious
bias due to the witnesses close relationship with the accused.
If you were the judge:
1. How would you rule on the objection?
2. Will the fact that the version of the defense is corroborated by three
witnesses suffice to acquit Al? Why?
Answer:
1. Of I were the judge, I would overrule the objection. Close relationship to a
party is not a ground to disqualify a witness. (Sec.20, Rule 130)
2. No. Witnesses are not numbered but weighed. Positive identification
prevails over the defense of alibi. Alibi is easily fabricated and must be proved
clearly and convincingly.
Evidence; res gestae; dying declaration
1988 (17)
(a) When Tomas was stabbed on the chest during a street brawl, he
instinctively shouted for help. Emil who was nearby heard the shout and rushed to
Tomas side who when asked by Emil what happened, stated that Kulas stabbed
him.
Tomas died on account of stab wound.
(1) Could Emils testimony be received to identify Kulas? Explain.
(b) The day before the stabbing victim died, he identified positively to the
police the person who stabbed him. When he was asked by the police if he was
going to die because of his wounds, he answered that he did not know.
(1) Is the identification by the deceased admissible as an ante-mortem
statement and an exception to the hearsay rule? Explain.
(2) State 5 other exceptions to the hearsay rule.
Answer:
(a) Yes, Emils testimony may be received to identify Kulas because the
statement of Tomas who has just been stabbed on the chest that Kulas stabbed him
is admissible as part of the res gestae. (Sec.36 of Rule 130)
(b) 1) No, because his answer to the question of the police, if he was going to
die, that he did not know shows that his identification of the person who stabbed him
was not made under consciousness of impending death. Hence, the identification is
not admissible as a dying declaration or ante-mortem statement. (Sec.31 of Rule
130; People vs. Dominguez, 36 SCRA 59)
Alternative Answer:
(b) 1) Yes, because in the case of People vs. Sarabia (127 SCRA 100) where
the answer of the victim to the question of the police, if he was going to die, was I
Page 178 of 181
do not know Sir because my wounds are too painful and in fact he died two days
later, the statement of the victim identifying the person who stabbed him was
admitted as a dying declaration. This ruling may apply to this case where the victim
died the next day.
Note:
The answer will depend on the circumstances. It will have to be decided on a
case to case basis. If the wounds are serious, it can be considered ante-mortem.
(2) Five (5) other exceptions to the hearsay rule are:
Declaration against interest
Act or declaration about pedigree
Family reputation or tradition regarding pedigree
Common reputation
Entries in the course of business
Entries in official records
Commercial lists and the like
Testimony at a former trial (Secs.32-41 of Rule 130)
Evidence; res gestae; dying declaration
1991 No. XVI:
Two (2} hours after Lt Yap of the 2nd Air Division, PAF. at the Mactan Air
Base in Lapulapu City, was shot with a .45 caliber pistol, his Division Commander,
Brig. Gen. A, visited him at the Cebu Doctors' Hospital in Cebu City where he was
Immediately brought for treatment of the gunshot wound. Lt. Yap told A that it was
Jose Comen who shot him. Forthwith. A, who is a law graduate, took the initiative of
taking down in long hand the statement of Lt. Yap. The latter narrated the events
surrounding the incident and categorically stated that it was Jose Comen who shot
him. Lt. Yap signed the statement in the presence of A and the attending nurse. Ten
(10) days later, Lt. Yap died as a consequence of the gunshot wound. An
information for murder was filed against Jose Comen.
At the trial, the above statement of Lt. Yap marked as Exh. "X", was
presented and identified by A who did not, however, testify that Lt Yap read it, or that
it was read to him before he (Yap) signed it. A, nevertheless, testified that, as above
stated, Lt. Yap told him that it was Jose Comen who shot him. The defense objected
to the testimony of A and to the admission of Exh. "X" on the ground that they are
hearsay. The prosecution contended that both are exceptions to the hearsay rule as
they are part of res gestae.
(a) Is the prosecution correct?
Answer;
(a) No, because the statement of Lt Yap to A, that it was Jose Comen who
shot him, was given two hours after he was shot. Hence, it could not be considered
as part of the res gestae, because the rule refers to statements made by a person
while a startling occurrence is taking into place or immediately prior or subsequent
thereto. (Sec. 36 of Rule 130)
(b) If the statement cannot be admitted as part of the res gestae, may it be
considered as a dying declaration?
Answer:
Page 179 of 181
(b) Neither could it be considered as a dying declaration because it was not
made under consciousness of impending death, since he died ten days later.
Another Answer:
It could be considered as a dying declaration if the gravity of the wounds
inflicted would indicate that the statement was made under consciousness of
impending death.
(c) If the testimony of A as to the revelation of Lt. Yap is not admissible for
being hearsay, may it be admitted as an independently relevant statement?
Answer:
(c) It may not be considered as an Independently relevant statement,
because the same is being presented to establish the truth of the fact asserted
therein and not merely the tenor thereof. (People vs. Gaddi, 170 SCRA 649]
Evidence; res inter alios rule
1991 No. XIII:
During custodial investigation at the Western Police District, Mario Margal
was informed of his constitutional right to remain silent and to have competent and
independent counsel. He decided to waive his right to counsel and proceeded to
make a statement admitting commission of a robbery. In the same statement, he
implicated Antonio Carreon, his co-conspirator in the crime.
(b) Is it admissible against Carreon as an exception to the res inter alios
acta rule?
Answer;
(b) No, because even assuming that the conspiracy is shown by evidence
other than the statement of Margal, the statement was made after the conspiracy
had ceased. (Sec. 30 of Rule 130; People v. Cabrera, 57 SCRA 714)
Evidence; right to cross examine
1987 No (7)
In a criminal case, the prosecution presented a witness. Midway towards the
cross-examination by the defense counsel, the defense moved for the continuance
upon the ground that it was essential that some inquiry be made by the defense
from the outside sources before the cross-examiner could intelligently continue on
the remaining factual matters in the direct testimony. The motion was granted and
the trial was reset to another date. But the witness died so that he could not be
presented for the continuation of the cross-examination. The defense moved to
strike out the entire testimony of the deceased witness upon the ground that
otherwise the accused would be denied full enjoyment of his right to confrontation
and cross-examination.
(a) If you were the fiscal, what arguments will you offer to oppose the motion?
(b) If you were the judge, how would you rule on the motion? Why?
Answer:
(a) As the fiscal, I would argue that the defense had waived its right to cross-
examine the witness by not continuing the cross-examination and moving for
continuance at the middle thereof; and that even assuming there was no waiver, the
entire testimony of the deceased witness should not be stricken off the record
because that portion of the testimony on which the defense had been able to cross-
examine the witness is admissible in evidence.
(b) As the judge, I would rule that there was no waiver of the right of cross-
Page 180 of 181
examination on the part of the defense inasmuch as the court granted its motion for
continuance without objection on the part of the prosecution. However, I would deny
the motion to strike out the entire testimony of the deceased witness and admit in
evidence that portion of the testimony on which the defense had been able to cross-
examine the witness. (People vs. Seeres, 99 SCRA 92)
Evidence; rules of admissibility
1997 No. 15:
Give the reasons underlying the adoption of the following rules of evidence:
(a) Dead Man Rule?
(b) Parol Evidence Rule
(c) Best Evidence Rule
(d) The rule against the admission of illegally obtained extrajudicial
confession
(e) The rule against the admission of an offer of compromise in civil cases
Answer;
The reasons behind the following rules are as follows:
(a) Dead Man Rule: if death has closed the lips of one party, the policy of the
law is to close the lips of the other. (Goni v. Court ofAppeals, L-77434. September
23,1986, 144 SCRA 222). This is to prevent the temptation to perjury because
death has already sealed the lips of the party.
(b) Parol Evidence Rule: It 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 fleeting memory only. (Francisco, Revised
Rules of Court Vol. VII, Part I. p. 154)
(c) Best Evidence Rule: This Rule is adopted for the prevention of fraud and
is declared to be essential to the pure administration of justice. (Moran, Vol. 5, p.
12.) If a party is in possession of such evidence and withholds it, the presumption
naturally arises that the better evidence is withheld for fraudulent purposes.
(Francisco. Revised Rules of Court, vol. VII. Part I, pp, 121,122)
(d) An illegally obtained extrajudlcial confession nullifies the intrinsic validity
of the confession and renders it unreliable as evidence of the truth. (Moran, vol. 5, p.
257). it is the fruit of a poisonous tree.
(e) The reason for the rule against the admission of an offer of compromise
in civil case as an admission of any liability is that parties are encouraged to enter
into compromises. Courts should endeavor to persuade the litigants in a civil case to
agree upon some fair compromise. (Art. 2029, Civil Code). During pre-trial, courts
should direct the parties to consider the possibility of an amicable settlement. (Sec.
1[a] of former Rule 20: Sec. 2 [a] of new Rule 16).
Alternative Answer;
(b) The reason rests on a presumption of integration of jural acts which
advocates that a written contract merges or integrates all prior and
contemporaneous negotiations and that the instrument has incorporated all terms
that the parties have agreed upon. (9 Wigmore, Sec. 2425 p. 75 (1981 ed).
(d) This provides the constitutional right of the accused to protect himself
against self-incrimination because of the police dominated atmosphere.
Evidence; suppression of evidence; presentation of informant
Page 181 of 181
1994 No (20)
On the basis of the testimonies of Narcom agents, James and Tony, who
spearheaded the buy-bust operation by posing as buyers after a tip form a civilian
informer, Steve. Bob was convicted of violation of the Dangerous Drugs Act. On
appeal, Bob claims that he is entitled to an acquittal as the prosecution willfully
suppressed evidence in not presenting the informer, Steve, in court.
Decide Bobs contention.
Answer.
Bobs contention is not correct. The prosecution could not be considered to
have willfully suppressed evidence in not presenting in court he informer in the buy-
bust operation. The informers testimony is not necessary in convicting Bob of
violation of the Dangerous Drugs Act because there were the testimonies of two
Narcom agents who spearheaded the operation.
Evidence; tender of excluded evidence
1996 No. 15:
4) Aside from the testimonies of three witnesses positively identifying
accused X as having stabbed to death Y, the prosecution seeks to present another
witness, A, which it believes as material and competent to prove its case. X's
counsel object to A's proposed testimony as being irrelevant. The court sustained
the objection.
If you were the prosecutor, what course of action would you pursue to the
end that the proposed testimony of A would form part of the record for purposes of
review? Explain.
Answer:
4) I would make a tender of excluded evidence by stating for the record the
name and other personal circumstances of the witness and the substance of the
proposed testimony. (Sec. 40 of Rule 132)