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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

QUESTIONS ASKED MORE THAN ONCE IN THE


BAR

QuAMTO (1993-2006)
Remedial Law

ACADEMICS COMMITTEE
ALJON D. DE GUZMAN CHAIRPERSON
MARK KEVIN U. DELLOSA VICE-CHAIR FOR ACADEMICS
SHARMAGNE JOY A. BINAY VICE-CHAIR FOR ADMINISTRATION AND FINANCE
ANTHONY M. ROBLES VICE-CHAIR FOR LAYOUT AND DESIGN
CLARABEL ANNE R. LACSINA MEMBER, LAYOUT AND DESIGN TEAM
RAFAEL LORENZ SANTOS MEMBER, LAYOUT AND DESIGN TEAM
JAMES BRYAN V. ESTELEYDES VICE-CHAIR FOR RESEARCH

RESEARCH COMMITTEE
JAMES BRYAN V. ESTELEYDES RESEACH COMMITTEE HEAD
MARIA JAMYKA S. FAMA ASST. RESEARCH COMMITTEE HEAD
PAULINE BREISSEE GAYLE D. ALCARAZ MEMBER
ROBBIE BAÑAGA MEMBER
MONICA S. CAJUCOM MEMBER
DOMINIC VICTOR C. DE ALBAN MEMBER
ANNABELLA HERNANDEZ MEMBER
MA. CRISTINA MANZO-DAGUDAG MEMBER
WILLIAM RUSSELL MALANG MEMBER
CHARMAINE PANLAQUE MEMBER
OMAR DELOSO MEMBER

UST ACADEMICS COMMITTEE


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DISCLAIMER

THE RISK OF USE, MISUSE OR NON-


USE OF THIS BAR REVIEW MATERIAL
SHALL BE BORNE BY THE USER/
NON-USER.

UST ACADEMICS COMMITTEE


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QuAMTO (1993-2006)

JURISDICTION SCRA 738, Cabutihan v. Landcenter Construction, 383


SCRA 353).
Q: A brings an action in the MTC of Manila against B
for the annulment of an extrajudicial foreclosure b) The Court could declare B in default because B did
sale of real property with an assessed value of not obtain a writ of preliminary injunction or a
P50,000.00 located in Laguna. The complaint temporary restraining order from the RTC
alleged prematurity of the sale for the reason that prohibiting the judge from proceeding in the case
the mortgage was not yet due. B timely moved to during the pendency of the petition for certiorari
dismiss the case on the ground that the action (Sec. 7 of Rule 65; Diaz v. Diaz, 331 SCRA 302).
should have been brought in the RTC of Laguna.
Decide with reason (2000) Q: Petitioner filed a complaint for sum of money
against thedefendant with the MeTC-Makati, the
A: The motion to dismiss should be granted. In the total amount of the demand, exclusive of interest,
case of Russel v. Vestil, 304 SCRA 738, it was held damages of whatever kind, attorney's fees,
that the action for the annulment of the extrajudicial litigation expenses, and costs, being P1,000,000. In
foreclosure is not capable of pecuniary estimation due time, defendant filed a motion to dismiss the
and is therefore under the jurisdiction of the complaint on the ground of the MeTC's lack of
Regional Trial Courts. With regard to venue however, jurisdiction over the subject matter. After due
the law provides under section 2, Rule 4 that all hearing, the MeTC (1) ruled that the court indeed
other actions may be commenced and tried where lacked jurisdiction over the subject matter of the
the plaintiff resides, or where the defendant or any complaint; and (2) ordered that the case therefore
of the principal defendants resides, or in the case of should be forwarded to the proper RTC
a non-resident defendant where he may be found, at immediately. Was the court's ruling concerning
the election of the plaintiff. The action for jurisdiction correct? Was the court's order to
annulment of extrajudicial foreclosure in this case is forward the case proper? Explain briefly. (2004)
a personal action and the venue depends on the
residence of either A or B. Hence, it should be A: The MeTC is correct in ruling that it did not have
brought in the RTC of the place where either of the jurisdiction over the case because the total
parties resides. amount of the demand exclusive of interest,
damages of whatever kind, attorney's fees, litigation
Q: A filed with the MTC of Manila an action for expenses, and costs, was P1M. Its jurisdictional
specific performance against B, a resident of amount at this time should not exceed P400.000.00
Quezon City, to compel the latter to execute a deed since it is within Metro Manila (Sec. 33 of B.P. Big.
of conveyance covering a parcel of land situated in 129, as amended by R.A. No. 7691). However, the
Quezon City having an assessed value of court's order to forward the case to the RTC is not
P19,000.00. B received the summons and a copy of proper. It should merely dismiss the complaint.
the Complaint on 02 January 2003. On 10 January Under Sec. 3 of Rule 16, the court may dismiss the
2003, B filed a Motion to Dismiss the Complaint on action or claim, deny the motion or order the
the ground of lack of jurisdiction contending that amendment of the pleading but not to forward
the subject matter of the suit was incapable of the case to another court.
pecuniary estimation. The court denied the motion.
In due time, B filed with the RTC a Petition for Q: While Marietta was in her place of work in
Certiorari praying that the said Order be set aside Makati City, her estranged husband Carlo barged
because the MTC had no jurisdiction over the case into her house in Paranaque City, abducted their
On 13 February 2003, A filed with the MTC a six-year old son, Percival, and brought the child to
motion to declare B in default. The motion was his hometown in Baguio City. Despite Marietta's
opposed by B on the ground that his Petition for pleas, Carlo refused to return their child. Marietta,
Certiorari was still pending. through counsel, filed a petition for habeas corpus
a) Was the denial of the Motion to Dismiss the against Carlo in the Court of Appeals in Manila to
Complaint correct? compel him to produce their son, before the court
b) Resolve the Motion to Declare the Defendant in and for her to regain custody. She alleged in the
Default (2003) petition that despite her efforts, she could no
longer locate her son.
A: a) The denial of the Motion to Dismiss the
Complaint was not correct. Although the assessed In his comment, Carlo alleged that the petition
value of the parcel of land involved was P19,000.00, was erroneously filed in the Court of Appeals as
within the jurisdiction of the MTC of Manila, the the same should have been filed in the Family
action filed by A for specific performance against B Court in Baguio City which, under Republic Act
to compel the latter to execute a Deed of No. 8369, has exclusive jurisdiction, over the
Conveyance of said parcel of land was not capable of petition. Marietta replied that under Rule 102 of
pecuniary estimation and, therefore, the action was the Rules of Court, as amended, the petition may
within the jurisdiction of RTC (Russel v. Vestil, 304 be filed in the Court of Appeals and if granted,

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the writ of habeas corpus shall be enforceable 2) the joinder shall not include special civil
anywhere in the Philippines. Whose contention is actions or actions governed by special rules;
correct? Explain. (2005)
3) where the causes of action are between the
A: Marietta's contention is correct. The Court same parties but pertain to different venues or
of Appeals has concurrent jurisdiction with the jurisdictions, the joinder may be allowed in the
family courts and the Supreme Court in petitions for Regional Trial Court provided one of the causes
habeas corpus where the custody of minors is at of actions falls within the jurisdiction of said
issue, notwithstanding the provision in the Family court and the venue lies therein; and
Courts(R.A. No. 8369) that family courts have
exclusive jurisdiction in such cases (Thorton v. 4) where the claims in all the causes of action
Thorton, G.R. No. 154598, August, 2004). are principally for recovery of money, the
aggregate amount claimed shall be the test of
CIVIL PROCEDURE jurisdiction (Rule 2, Sec. 5)

Q: Distinguish action from cause of action (1999) Q: A secured two loans from B, one for P500,000.00
and the other for P1,000,000.00, payable on
A: An action can either be civil or criminal (Rule 1, different dates. Both have fallen due. Is B obliged
Sec. 3). A civil is one by which a party sues another to file only one complaint against A for the recovery
for the enforcement or protection of a right, or the of both loans? Explain. (1999)
prevention or redress of a wrong. A criminal action is
one by which the State prosecutes a person for an A: No. Each loan gives rise to a separate cause of
act or omission punishable by law. On the other action. Hence, it may be a basis of a separate
hand, a cause of action is the act or omission by complaint. In the given case, the joinder is only
which a party violates a right of another (Rule 2, Sec. permissive since the loans are separate loans which
2). may be governed by the different terms and
conditions.
Q: Rolando filed a petition for declaration of the
nullity of his marriage to Carmela because of the Q: A purchased a lot from B P1,500,000.00. He gave
alleged psychological incapacity of the latter. After a down payment of P500,000, signed a promissory
trial, the court rendered judgment dismissing the note payable thirty days after date, and as a
petition on the ground that Rolando failed to prove security for the settlement of the obligation,
the psychological incapacity of his wife. The mortgaged the same lot to B. When the note fell
judgment having become final, Rolando filed due and A failed to pay, B commenced suit to
another petition, this time on the ground that his recover from A the balance of P1,000,000.00. After
marriage to Carmela had been celebrated without a securing a favorable judgement on his claim, B
license. Is the second action barred by the brought another action against A before the same
judgment in the first? Why? (2000) court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground
A: No. The second action is not barred by the of bar by prior judgment. Rule on the motion.
judgment in the first because they are different (1999)
causes of action. The first action is for the
declaration of nullity of marriage on the ground of A: The motion to dismiss should be granted. When B
psychological incapacity under Article 36 of the commenced suit to collect on the promissory note,
Family Code, while the second action is for he waived his right to foreclose the mortgage. B’s
declaration of nullity of marriage in view of the action amounted to splitting his cause of action.
absence of a basic requirement, which is marriage
license under Arts. 9 and 35 (3) of the Family Code. Q: Give the effects of the following:
They are different causes of action because the 1. Splitting a single cause of action: and
evidence required to prove them are not the same 2. Non-joinder of a necessary party (1998)
(Pagsisihan v. Court of Appeals, 95 SCRA 540).
A:
Q: What is the rule on joinder of causes of action? 1. In splitting a single cause of action, if two or more
(1999) suits are instituted on the basis of the same cause of
action, the filing of one or a judgment upon the
A: A party may in one pleading assert, in the merits in any one is available as a ground for the
alternative or otherwise, as many causes of action as dismissal of the others (Rule 2, Sec. 4).
he may have against an opposing party, subject to
the following conditions: 2. In non-joinder of a necessary party, his name shall
1) the party joining the causes of action shall be set forth if known, and if omitted, the pleading
comply with the rules on joinder of parties; shall state the reason why he is omitted. Should the
court find the reason for the omission

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unmeritorious, it may order the inclusion of the deprived of due process and should have been heard
omitted necessary party if jurisdiction over his before judgment. (Rule 47)
person may be obtained. The failure to comply with
the order for his inclusion, without justifiable cause, Q: JK’s real property is being attached by the
shall be without prejudice to the rights of such sheriff in a civil action for damages against LM. JK
necessary party (Rule 3, Sec. 9). claims that he is not a party to the case; that his
property is not involved in said case; and that he is
Parties the sole registered owner of said property. Under
the Rules of Court, what must JK do to prevent the
Q: What is the effect of the death of a party Sheriff from attaching his property? (2000)
upon a pending action? (1999)
A: If the real property has been attached, the
A: remedy is to file a third-party claim. The third-
1. When the claim in a pending action is party claimant should make an affidavit of his title
purely personal, the death of either parties to the property attached, stating the grounds of his
extinguishes the claim and the action is title thereto, serve such affidavit upon the sheriff
dismissed. while the latter has possession of the attached
property, and a copy thereof upon the attaching
2. When the claim is not purely personal and is party (Sec. 14, Rule 57). The third-party claimant
not thereby extinguished, the party should may also intervene or file a separate action to
be substituted by his heirs or his executor or vindicate his claim to the property involved and
administrator (Sec. 16, Rule 3). secure the necessary reliefs, such as preliminary
injunction, which will not be considered as
3. If the action is for recovery of money interference with a court of coordinate jurisdiction
arising from contract, express or implied, and (Ong v. Tating, 149 SCRA 265).
the defendant dies before entry of final
judgment in the court in which the action was Q: A obtained a money judgment against B. After
pending at the time of such death, it shall not the finality of the decision, the court issued a writ
be dismissed but shall instead be allowed to of execution for the enforcement thereof.
continue until entry of final judgment. A Conformably with the said writ, the sheriff levied
favorable judgment obtained by the plaintiff upon certain properties under B's name. C filed a
shall be enforced in the manner provided in the third-party claim over said properties claiming that
Rules for prosecuting claims against the estate B had already transferred the same to him. A
of a deceased person (Sec. 20, Rule 3). moved to deny the third-party claim and to hold B
and C jointly and severally liable to him for the
Q: A filed a complaint for the recovery of money judgment alleging that B had transferred
ownership of land against B who was represented said properties to C to defraud him (A).
by her counsel X. In the course of the trial, B
died. However, X failed to notify the court of B's After due hearing, the court denied the third-party
death. The court proceeded to hear the case and claim and rendered an amended decision declaring
rendered judgment against B. After the B and C jointly and severally liable to A for the
Judgment became final, a writ of execution was money judgment. Is the ruling of the court correct?
issued against C, who being B's sole heir, Explain. (2005)
acquired the property. If you were counsel of C,
what course of action would you take? (1998) A: No. C has not been properly impleaded as a party
defendant. He cannot be held liable for the
A: As counsel of C, I will move to set aside the writ judgment against A without a trial. In fact, since no
of execution and the judgment for lack of bond was filed by B, the sheriff is liable to C for
jurisdiction and lack of due process in the same damages.
court because the judgment is void. If X had
notified the court of B's death, the court would C can file a separate action to enforce his third-party
have ordered the substitution of the deceased by C, claim. It is in that suit that B can raise the ground of
the sole heir of B (Sec. 16 of Rule 3). fraud against C. However, the execution may
proceed where there is a finding that the claim is
The court acquired no jurisdiction over C upon fraudulent (Tanongan v. Samson, G.R. No. 140889,
whom the trial and the judgment are not binding May 9, 2002).
(Ferreira v. Ibarra Vda. de Gonzales, 104 Phil. 143;
Vda. de la Cruz vs. Court of Appeals, 88 SCRA 695; Pleadings
Lawas us. Court of Appeals, 146 SCRA 173). I could
also file an action to annul the judgment for lack Q: After an answer has been filed, can the
of jurisdiction because C, as the successor of B, was plaintiff amend his complaint, with leave of
court, by changing entirely the nature of the

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


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action? (2003) A: The motion to dismiss should be denied. Basic is


the rule that a motion to dismiss is not a responsive
A: Yes, the present rules allow amendments pleading. Under the Rules, a pleader may amend
substantially altering the nature of the cause of his pleading as a matter of right before the other
action (Sec. 3, Rule 10, 1997 Rules of Civil party has served his responsive pleading (Sec. 2,
Procedure; Heirs of Marcelino Pagobo v. Court of Rule 10, Rules of Court). The court, in allowing the
Appeals, 280 SCRA 870). amendment, would not be acting without
jurisdiction because allowing an amendment as a
This should only be true, however, when the matter of right does not require the exercise of
substantial change or alteration in the cause of discretion. The court therefore would not be
action or defense shall serve the higher interests of "acting" and thus, could not have acted without
substantial justice and prevent delay and equally jurisdiction. It would have been different had the
promote the laudable objective of the rules which amendments been made after a responsive pleading
is to secure a just, speedy and inexpensive had been served. The court then would have been
disposition of every action and proceeding. exercising its discretion in allowing or disallowing
(Valenzuela v. Court of Appeals, 363 SCRA 779). the amendment. It cannot do so however, because
it would be then acting on an amendment of a
Q: X, an illegitimate child of Y, celebrated her complaint over which it has no jurisdiction (Soledad
th
18 birthday on May 2, 1996. A month before v. Mamangun, G.R. No. L-17983, May 30, 1963;
her birthday, Y died. The legitimate family of Y Gumabay v. Baralin, G.R. No. L-30683, May 31,
refused to recognize X as an illegitimate child of 1977; Prudence Realty v. CA, G.R. No. 110274, March
Y. After countless efforts to convince them, X 21, 1994).
filed on April 25, 2000 an action for recognition
against Z, wife of Y. After Z filed her answer on Q: During trial, plaintiff was able to present,
August 14, 2000, X filed a motion for leave to file without objection on the part of defendant in
an amended complaint and a motion to admit an ejectment case, evidence showing that plaintiff
the said amended complaint impleading the served on defendant a written demand to vacate
three (3) legitimate children of Y. The trial court the subject property before the commencement
admitted the amended complaint on August 22, of the suit, a matter not alleged or otherwise
2000. What is the effect of the admission of the set forth in the pleadings on file. May the
amended complaint? Has the action of X corresponding pleading still be amended to
prescribed? Explain. (2000) conform to the evidence? Explain. (2004)

A: Under the 1997 Rules of Civil Procedure, if an A: Yes. The corresponding pleading may still
additional defendant is impleaded in a later be amended to conform to the evidence,
pleading, the action is commenced with regard to because the written demand to vacate, made prior
him on the date of the filing of such later pleading, to the commencement of the ejectment suit, was
irrespective of whether the motion for its admission, presented by the plaintiff in evidence without
if necessary, is denied by the court (Sec. 5 of Rule 1). objection on the part of the defendant. Even if
Consequently, the action of X has prescribed with the demand to vacate was jurisdictional, still, the
respect to the three (3) legitimate children of Y who amendment proposed was to conform to the
are indispensable parties. evidence that was already in the record and not
to confer jurisdiction on the court, which is not
Q: On May 12, 2005, the plaintiff filed a complaint allowed. Failure to amend, however, does not
in the RTC of Quezon City for the collection affect the result of the trial on these issues (Sec. 5
of P250,000.00. The defendant filed a motion to of Rule 10).
dismiss the complaint on the ground that the court
had no jurisdiction over the action since the Q: In his complaint for foreclosure of
claimed amount of P250,000.00 is within the mortgage to which was duly attached a copy of
exclusive jurisdiction of the Metropolitan Trial the mortgage deed, plaintiff PP alleged inter alia
Court, of Quezon City. Before the court could as follows: (1) that defendant DD duly
resolve the motion, the plaintiff, without leave executed the mortgage deed, A copy of which
of court, amended his complaint to allege a new is Annex "A" of the complaint and made an
cause of action consisting in the inclusion of an integral part thereof; and (2) that to prosecute
additional amount of P200,000.00, thereby his complaint, plaintiff contracted a lawyer, CC, for
increasing his total claim to P450,000.000. The a fee of P50.000. In his answer, defendant alleged,
plaintiff thereafter filed his opposition to the inter alia, that he had no knowledge of the
motion to dismiss, claiming that the RTC had mortgage deed, and he also denied any liability for
jurisdiction, over his action. Rule on the motion of plaintiffs contracting with a lawyer for a fee.
the defendant with reasons. (2005)
Does defendant's answer as to plaintiff’s
allegation no. 1 as well as no. 2 sufficiently raise an

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issue of fact? Reason briefly. (2004) 1. When can a bill of particulars be availed
of?
A: As to plaintiffs allegation no. 1, defendant does 2. What is the effect of non-compliance with
not sufficiently raise an issue of fact, because he the order of a bill of particulars? (2003)
cannot allege lack of knowledge of the mortgage
deed since he should have personal knowledge as A:
to whether he signed it or not and because he did 1. Before responding to a pleading, a party may
not deny under oath the genuineness and due move for a bill or particulars of any matter which is
execution of the mortgage deed, which is an not averred with sufficient definiteness or
actionable document. As to plaintiff’s allegation no. particularity to enable him properly to prepare
2, defendant did not properly deny liability as to his responsive pleading. If the pleading is a reply,
plaintiffs contracting with a lawyer for a fee. He did the motion must be filed within ten (10) days
not even deny for lack of knowledge (Sec. 10 of Rule from service thereof (Sec. 1 of Rule 12)
8).
2. If the order is not complied with, the court may
Q: PX filed a suit for damages against DY. In his order the striking out of the pleading or the
answer, DY incorporated a counterclaim for portions thereof to which the order was directed
damages against PX and AC, counsel for plaintiff in or make such other order as it deems just (Sec. 4
said suit, alleging in said counterclaim, inter alia, of Rule 12).
that AC, as such counsel, maliciously induced PX to
bring the suit against DY despite AC’s knowledge of Forum Shopping
its utter lack of factual and legal basis. In due time,
AC filed a motion to dismiss the counterclaim as Q: As counsel for A, B, C and D, Atty. XY prepared a
against him on the ground that he is not proper complaint for recovery of possession of a parcel
party to the case, he being merely plaintiff’s of land against Z. Before filling the complaint, XY
counsel. Is the counterclaim of DY compulsory or discovered that his clients were not available to
not? Should AC’s motion to dismiss the sign the certification of non-forum shopping. To
counterclaim be granted or not? Reason. (2004) avoid further delays in the filing of the complaint,
XY signed the certification and immediately filed
A: The counterclaim should be dismissed because the complaint in court. Is XY justified in signing the
it is not a compulsory counterclaim. When a lawyer certification? Why? (2000)
files a case for a client, he should not be sued
on a counterclaim in the very same case he has filed A: No, the counsel cannot sign the nonforum
as counsel. It should be filed in a separate and shopping certification because it must be
distinct civil action (Chavez v. Sandiganbayan, 193 executed by the “plaintiff or principal party”
SCRA 282). himself (Sec. 5, Rule 7; Excorpizo v. University of
Baguio, 306 SCRA 497), since the rule requires
Q: X files a complaint in the RTC for the recovery personal knowledge by the party executing the
of a sum of money with damages against Y. Y certification, UNLESS counsel gives a good reason
files his answer denying liability under the why he is not able to secure his clients’ signatures
contract of sale and praying for the dismissal of and shows that his clients will be deprived of
the complaint on the ground of lack of cause substantial justice (Ortiz v. Court of Appeals, 299
of action because the contract of sale was SCRA 708) or unless he is authorized to sign it by
superseded by a contract of lease, executed and his clients through a special power of attorney.
signed by X and Y two weeks after the contract of
sale was executed. The contract of lease was Q: Honey filed with the Regional Trial Court, Taal,
attached to the answer. X does not file a reply. Batangas a complaint for specific performance
What is the effect of the non-filing of a reply? against Bernie. For lack of certification against
Explain. (2000) forum shopping, the judge dismissed the complaint.
Honey’s lawyer filed a motion for reconsideration,
A: A reply is generally optional. If it is not filed, the attaching thereto an amended complaint with the
new matters alleged in the answer are certification against forum shopping. If you were
deemed controverted (Rule 6, Sec. 10). However, the judge, how will you resolve the motion? (2006)
since the contract of lease attached to the answer
is the basis of the defense, by not filing a reply A: If I were the judge, I will deny the motion. Failure
denying under oath the genuineness and due to comply with the requirement of forum shopping is
execution of said contract, the plaintiff is not curable by mere amendment of the complaint or
deemed to have admitted the genuineness and other initiatory pleading, but shall be cause for the
due execution thereof (Rule 8, Secs. 7 and 8; dismissal of the case, without prejudice, unless
Toribio v. Bidin, 132 SCRA 162). otherwise provided, upon motion and after hearing
(Rule 7, Sec. 5). However, the trial court in the
Q: exercise of its sound discretion, may choose to be

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liberal and consider the amendment as substantial Q: Mario was declared in default but before
compliance (Great Southern Maritime Services, Corp. judgment was rendered, he decided to file motion
v. Acuna, G.R. No. 140189, Feb.28,2005; Chan v. RTC to set aside the order of default.
of Zamboanga del Norte, G.R. No. 149253, April 5, a. What should Mario state in his motion in order
2005; Uy v. Land Bank, G.R. No. 136100, July 24, to justify the setting aside of the order of default?
2000). b. In what form should such motion be? (2001)

Default A:
a. A party declared in default may at any time after
Q: notice and before judgment file a motion under oath
1. When may a party be declared in default? to set aside the order of default upon proper
2. What is the effect of an Order of default? showing that his failure to answer was due to fraud,
3. For failure to seasonably file an answer despite accident, mistake or excusable negligence and that
notice, A was declared in default in a case he has a meritorious defense. In such case, the order
instituted against him by B. The following day, A’s of default may be set aside on such terms and
mistress who is working as a clerk in the sala of the conditions as the judge may impose in the interest of
judge before whom his case is pending, informed justice. (Rule 9, Sec. 3 [b])
him of the declaration of default. On the same day,
A presented a motion under oath to set aside the b. The motion should be under oath. Sec 3(b), Rule 9
order of default on the ground that his failure to provides that a party declared in default may at any
answer was due to fraud and that he has a time after notice and before judgment file a motion
meritorious defense. Thereafter, he went abroad. under oath.
After his return a week later, with the case still
undecided, he received the order declaring him in Q: Defendant was declared in default by the RTC.
default. The motion to set aside default was Plaintiff was allowed to present evidence in
opposed by B on the ground that is was filed before support of his complaint. Photocopies of official
A received notice of his having been declared in receipts and original copies of affidavits were
default, citing the rule that the motion to set aside presented in court, identified by plaintiff on the
be made at anytime after notice but before witness stand and marked as exhibits. Said
judgment. Resolve the motion. documents were offered by the plaintiff and
(1999) admitted in evidence by the court on the basis of
which, the RTC rendered judgment in favor of the
A: plaintiff, pursuant to the relief prayed for. Upon
1. A party may be declared in default when he fails receipt of the judgment, defendant appeals to the
to answer within the time allowed therefor, and Court of Appeals claiming that the judgment is not
upon motion of the claiming party with notice to the valid because the RTC based its judgment on mere
defending party, and proof of such failure (Sec 3, photocopies and affidavits of persons not
Rule 9). There must also be a hearing set for the presented in court. Is the claim of defendant valid?
motion as mandated by Sec 4, Rule 15 which Explain (2000)
provides that except for motions which the court
may act upon without prejudicing the rights of the A: The claim of defendant is valid because the court
adverse party, every written motion shall be set for received evidence which it can order in its own
hearing by the applicant (Riano, Civil Procedure, discretion, in which case the evidence of the plaintiff
2011 ed.) must pass the basic requirements of admissibility.
Under the rules, when a party is declared in default,
2. The effect of an order of default is that the court the court may do either of two things:
may proceed to render judgment granting the
claimant such relief as his pleading may warrant 1. To proceed to render judgment granting the
unless the court in its discretion requires the claimant such relief as his pleading may warrant; or
claimant to submit evidence. The party in default 2. To require the claimant to submit his evidence ex
shall be entitled to notice of subsequent proceedings parte.
but cannot take part in the trial (Rule 40, Sec 3).
The choice of which action to take is a matter of
3. Assuming that the motion to set aside complies judicial discretion (Riano, Civil Procedure 2011 ed.)
with the other requirements of the rule, it should be
granted. Although such a motion may be made after Q: What are the available remedies of a party
notice but before judgment (Rule 9, Sec 3 [b]), with declared in default: (1998)
more reason may it be filed after discovery even 1. Before rendition of judgment;
before receipt of the order of default. 2. After judgment and before its finality
3. After finality of judgment

A:

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1. He may file a motion under oath to set aside the A: In a civil case, the defendant has the right to file a
order of default on the grounds of fraud, accident, demurrer to evidence without leave of court. If his
mistake, or excusable negligence and that he has a demurrer is denied, he has the right to present
meritorious defense (Rule 9, Sec 3[b]); and if it is evidence. If his demurrer is granted and on appeal
denied, he may move to reconsider. He may also file by the plaintiff, the appellate court reverses the
a petition for certiorari if he has been illegally order and renders judgment for the plaintiff, the
declared in default, e.g. during the pendency of his defendant loses his right to present evidence (Rule
motion to dismiss or before the expiration of the 33).
time to answer (Matute v. CA, 26 SCRA 768; Acosta-
Ofalia vs. Sundiam, 85 SCRA 412) In a criminal case, the accused has to obtain leave of
court to file a demurrer to evidence. If he obtains
2. He may file a motion for new trial under Rule 37 leave of court and his demurrer to evidence is
on the grounds of fraud, accident, mistake, denied, he has the right to present evidence in his
excusable negligence, or a motion for defense. If his demurrer to evidence is granted, and
reconsideration on the ground of excessive he is acquitted, the prosecution can no longer
damages, insufficient evidence or the decision or appeal.
final order being contrary to law and thereafter, if If the accused does not obtain leave of court and his
the motion is denied appeal is available under Rules demurrer to evidence is denied, he waives his right
40 to 41, whichever is applicable. to present evidence and the case is decided on the
basis of the evidence for the prosecution.
3. There are three ways to assail the judgment: The court may also dismiss the action on the ground
a. Petition for relief under Rule 38 on the of insufficiency of the evidence on its own initiative
grounds of fraud, accident, mistake or excusable after giving the prosecution the opportunity to be
negligence; heard (Rule 119, Sec. 23)
b. Annulment of judgment under Rule 47 for
extrinsic fraud or lack of jurisdiction; or Judgment
c. Certiorari if the judgment is void on its face or
by the judicial record (Balangcad v. Justices of Q:
the Court of Appeals, 206 SCRA 171) a) What are the grounds for judgment on the
pleadings?
Demurrer to Evidence b) A's Answer admits the material allegations of
B's Complaint. May the court motu proprio
Q: Carlos filed a complaint against Pedro in the RTC render judgment on the pleadings? Explain.
of Ozamis City for the recovery of the ownership of c) A brought an action against her husband B
a car. Pedro filed his answer within the for annulment of their marriage on the ground of
reglementary period. After the pre-trial and actual psychological incapacity, B filed his Answer to the
trial, and after Carlos has completed the Complaint admitting all the allegations therein
presentation of his evidence, Pedro moved for the contained. May A move for judgment on the
dismissal of the complaint on the ground that pleadings? Explain. (1999)
under the facts proven and the law applicable to
the case, Carlos is not entitled to the ownership of A:
the car. The RTC granted the motion for dismissal a) The grounds for judgment on the pleadings
and the appellate court reversed the order of are where an answer fails to tender an issue, or
dismissal of the trial court. Thereafter, Pedro filed a otherwise admits the material allegations of the
motion with the RTC asking the latter to allow him adverse party's pleading (Rule 34, Sec. 1).
to present his evidence. Carlos objected to the
presentation of evidence by Pedro. Should the RTC b) No, a motion must be filed by the adverse
grant Pedro’s motion to present his evidence? party. (Rule 34, Sec. 1). The court cannot motu
Why? (2001) proprio render a judgment on the pleadings.

A: No, Pedro’s motion should be denied. He can no c) No. The court shall order the prosecutor to
longer present evidence. Sec 1, Rule 33 of the Rules investigate whether or not collusion between the
of Court provides that if the motion for dismissal is parties exists, and if there is no collusion, to
granted by the trial court but on appeal the order of intervene for the State in order to see to it that the
dismissal is reversed, he shall be deemed to have evidence submitted is not fabricated (Rule 9, Sec.
waived the right to present evidence. 3[e]). Evidence must have to be presented in
accordance with the requirements set down by the
Q: Compare the effects of a denial of demurrer to Supreme Court in Republic vs. Court of Appeals and
evidence in a civil case with those of a denial of Molina, 268 SCRA 198.
demurrer to evidence in a criminal case. (2003)
Q: In a complaint for recovery of real property,
the plaintiff averred, among others, that he is the

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owner of the said property by virtue of a deed


of sale executed by the defendant in his favor. A:
Copy of the deed of sale was appended to the a. A can enforce the judgment by another action
complaint as Annex "A" thereof. reviving the judgment because it can no longer be
enforced by motion as the five-year period
In his unverified answer, the defendant denied within which a judgment may be enforced by
the allegation concerning the sale of the property motion has already expired (Rule 39, Sec. 6).
in question, as well as the appended deed of
sale, for lack of knowledge or information b. A may institute the proceedings in the RTC in
sufficient to form a belief as to the truth thereof. Is accordance with the rules of venue because the
it proper for the court to render judgment without enforcement of the judgment is a personal action
trial? Explain. (2005) incapable of pecuniary estimation.

A: Defendant cannot deny the sale of the property Q: Under Article 1144 of the New Civil Code, an
for lack of knowledge or information sufficient to action upon a judgment must be brought within
form a belief as to the truth thereof. The answer 10 years from the time the right of action accrues.
amounts to an admission. The defendant must aver Is this provision applicable to an action filed
or state positively how it is that he is ignorant of in the Philippines to enforce a foreign judgment?
the facts alleged (Phil, Advertising Counselors, Inc. v. Explain. (2005)
Revilla, G.R. No. L-31869, August 8, 1973; Rule 8,
Sec. 10). Moreover, the genuineness and due A: Article 1144 of the Civil Code does not apply to
execution of the deed of sale can only be denied an action filed in the Philippines to enforce a
by the defendant under oath and failure to do so foreign judgment. While the law does not
is also an admission of the deed (Rule8, Sec. 8). distinguish, still, the law does not evidently
Hence, a judgment on the pleadings can be contemplate the inclusion of foreign judgments. A
rendered by the court without need of a trial. domestic judgment may be enforced by motion
within 5 years and by action within the next 5 years.
Q: The plaintiff obtained a writ of That is not the case with respect to foreign
preliminary attachment upon a bond of P1 million. judgments which cannot be enforced by mere
The writ was levied on the defendant’s property, motion. A foreign judgment, in fact, is merely
but it was discharged upon the posting by the presumptive evidence of a right between the
defendant of a counterbond in the same amount of parties and their successors in interests. The word
P1 million. After trial, the court rendered judgment judgment refers to one mentioned in Rule 36, Sec.1,
finding that the plaintiff had no cause of action which is filed with the clerk of court. If no period is
against the defendant and that he had sued out the fixed in our law, the period is 5 years under Art.
writ of attachment maliciously. Accordingly, the 1149 of the Civil Code (UPLC, 2008 ed.).
court dismissed the complaint and ordered the
plaintiff and its surety to pay jointly to the Q: The trial court rendered judgment ordering the
defendant P1.5 million as actual damages, P0.5 defendant to pay the plaintiff moral and exemplary
million as moral damages and P0.5 million as damages. The judgment was served on the
exemplary damages. plaintiff on October 1, 2001 and on the defendant
on October 5, 2001. On October 8, 2001, the
Evaluate the soundness of the judgment from defendant filed a notice of appeal from the
the point of view of procedure. (2002) judgment, but the following day, October 9, 2001,
the plaintiff moved for the execution of the
A: The judgment against the surety is not sound if judgment pending appeal. The trial court granted
due notice was not given to him by the applicant for the motion upon the posting by the plaintiff of a
damages (Rule 57, Sec. 20). Moreover, the bond to indemnify the defendant for damages it
judgment against the surety cannot exceed the may suffer as a result of the execution. The
amount of its counterbond of P1 million. court gave as a special reason for its order the
imminent insolvency of the defendant.
Q: A, a resident of Dagupan City, secured a
favorable judgment in an ejectment case against X, Is the order of execution pending appeal correct?
a resident of Quezon City, from the MTC of Why? (2002)
Manila. The judgment, entered on 15 June 1991,
had not as yet been executed. A: No, because awards for moral and exemplary
a) In July 1996, A decided to enforce the damages cannot be the subject of execution pending
judgment of the MTC of Manila. What is the appeal. The execution of any award for moral and
procedure to be followed by A in enforcing the exemplary damages is dependent on the outcome
judgment? of the main case. Liabilities for moral and exemplary
b) With what court should A institute the damages, as well as the exact amounts remain
proceedings? (1997) uncertain and indefinite pending resolution by

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the Court of Appeals or Supreme Court (RCPI v. record on appeal is deemed perfected as to the
Lantin,134 SCRA 395; International School, Inc. v. appellant with respect to the subject matter thereof
Court of Appeals, 309 SCRA 474). upon the approval of the record on appeal filed in
due time (Sec. 9, Rule 41)
Q: After defendant has served and filed his
answer to plaintiffs complaint for damages b) The contention of XXX that the RTC has no more
before the proper RTC, plaintiff served and filed a jurisdiction over the case is not correct because at
motion (with supporting affidavits) for a summary the time that the motion to approve the
judgment in his favor upon all of his claims. compromise had been filed, the period of appeal of
Defendant served and filed his opposition (with YYY had not yet expired. Besides, even if that period
supporting affidavits) to the motion. After due had already expired, the records of the case had not
hearing, the court issued an order (1) stating that yet been forwarded to the Court of Appeals. The
the court has found no genuine issue as to any Rules also provide that prior to the transmittal of the
material fact and thus concluded that plaintiff record, the court may, among others, approve
is entitled to judgment in his favor as a matter compromises (Rule 41, Sec. 9, fifth par.)
of law except as to the amount of damages
recoverable, and (2) accordingly ordering that Q: What are the grounds for the annulment of
plaintiff shall have judgment summarily against a judgment of the RTC (RTC)? (1998)
defendant for such amount as may be found
due plaintiff for damages, to be ascertained by A: The grounds for annulment of judgment of the
trial on October 7, 2004, at 8:30 o'clock in the RTC are Extrinsic Fraud and Lack of Jurisdiction.
morning. May defendant properly take an appeal (Sec, 2, Rule 47, 1997 Rules of Civil Procedure.)
from said order? Or, may defendant properly
challenge said order thru a special civil action for Q:
certiorari? Reason. (2004) a) What are the modes of appeal to the Supreme
Court?
A: No, plaintiff may not properly take an appeal b) Comment on a proposal to amend Rule 122,
from said order because it is an interlocutory Section 2(b), in relation to Section 3(c), of the
order, not a final and appealable order (Sec. 4 of Revised Rules of Criminal Procedure to provide for
Rule 35). It does not dispose of the action or appeal to the Court of Appeals from the decisions
proceeding (Sec. 1 of Rule 39). Partial Summary of the RTC in criminal cases, where the penalty
judgments are interlocutory. There is still imposed is reclusion perpetua or life imprisonment,
something to be done, which is the trial for the subject to the right of the accused to appeal to the
adjudication of damages (Province of Pangasinan v. Supreme Court. (2002)
Court of Appeals, 220 SCRA 726; Guevarra v. Court
of Appeals, 209 Phil. 241), but the defendant may A:
properly challenge said order thru a special civil A. The modes of appeal to the Supreme Court are:
action for certiorari (Rule 41, Sec. 1 [c]and last par.) (a) APPEAL BY CERTIORARI on pure questions of law
under Rule 45 through a petition for review on
Remedies from an Adverse Judgment certiorari; and (b) ORDINARY APPEAL in criminal
cases through a notice of appeal from convictions
Q: imposing reclusion perpetua or life imprisonment or
a) When is an appeal from the RTC to the Court of where a lesser penalty is involved but for offenses
Appeals deemed perfected? committed on the same occasion or which arose out
of the same occurrence that gave rise to the more
b) XXX received a copy of the RTC decision on June serious offense (Rule 122, sec. 3).
9, 1999; YYY received it on the next day, June 10,
1999. XXX filed a Notice of Appeal on June 15, 1999. B. There is no constitutional objection to providing in
The parties entered into a compromise on June 16, the Rules of Court for an appeal to the Court of
1999. On June 13, 1999, YYY, who did not appeal, Appeals from the decisions of the RTC in criminal
filed with the RTC a motion for approval of the cases where the penalty imposed is reclusion
Compromise Agreement. XXX changed his mind and perpetua or life imprisonment subject to the right of
opposed the motion on the ground that the RTC has the accused to appeal to the Supreme Court,
no more jurisdiction. Rule on the motion assuming because it does not deprive the Supreme Court of
that the records have not yet been forwarded to the right to exercise ultimate review of the
the CA. (1999) judgments in such cases.

A: Q: a) Distinguish a petition for certiorari as a mode


a) An appeal from the RTC to the Court of Appeals is of appeal from a special civil action for certiorari.
deemed perfected as to the appellant upon the filing b) May a party resort to certiorari when appeal is
of a notice of appeal in the RTC in due time or within still available? Explain. (1999, 1998)
the reglementary period of appeal. An appeal by

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A: A: Yes. Although the property of an incompetent


a. Certiorari as a special civil action from certiorari as under guardianship is in custodia legis, it may be
a mode of appeal may be distinguished as follows: attached as in fact it is provided that in such case,
a copy of the writ of attachment shall be filed with
1. The first is a special civil action under Rule 65 of the proper court and notice of the attachment
the Rules of Court, while the second is an appeal to served upon the custodian of such property (Rule
the Supreme Court from the Court of Appeals, 57, Sec. 7, last par.)
Sandiganbayan and the RTC under Rule 45.
Q: May damages be claimed by a party prejudiced
2. The first can be filed only on the grounds of lack or by a wrongful attachment even if the judgment is
excess of jurisdiction or grave abuse of discretion adverse to him? Explain. (1999)
tantamount to lack or excess of jurisdiction, while
the second is based on the errors of law of the lower A: Yes, this is authorized by the Rules. A claim, for
court. damages may be made on account of improper,
irregular or excessive attachment, which shall be
3. The first should be filed within 60 days from heard with notice to the adverse party and his surety
notice of the judgment, order or resolution sought or sureties (Rule 57, Sec. 20; Javellana v. D. O. Plaza
to be assailed (Rule 65, Sec. 4), while the second Enterprises Inc., 32 SCRA 281)
should be filed within 15 days from notice of the
judgment or final order or resolution appealed from, Q: May a writ of preliminary attachment be issued
or of the denial of the petitioner’s motion for new ex parte? Briefly state the reasons for your answer.
trial or reconsideration filed in due time after notice (2001)
of the judgment (Rule 45, Sec. 2)
A: Yes, an order of attachment may be issued ex-
4. The first cannot generally be availed of as a parte or upon motion with notice and hearing (Rule
substitute for a lost appeal under 40, 41, 42, 43 and 57, Sec. 2). The reason why the order may be issued
45. ex parte is that requiring notice to the adverse party
and a hearing would defeat the purpose of the
5. Under the first, the lower court is impleaded as a provisional remedy and enable the adverse party to
party respondent (Rule 65, Sec.5), while under the abscond or dispose of his property before a writ of
second, the lower court is not impleaded (Rule 45, attachment issues (Mindanao Savings and Loan
Sec.4) Association, Inc. v. Court of Appeals, 172 SCRA 480).
However, the writ may not be enforced and validly
b) No, because as a general rule, certiorari is proper implemented unless preceded or simultaneously
only if there is no appeal (Rule 65, Sec. 1) However, if served with the summons, a copy of the complaint,
appeal is not a speedy and adequate remedy, application for attachment, the order of attachment
certiorari may be resorted to (Echaus v. Court of and the attachment bond (Riano, Civil Procedure,
Appeals, 199 SCRA 381). Certiorari is sanctioned, 2011 ed.)
even if appeal is available, on the basis of a patent,
capricious and whimsical exercise of discretion by a Q: Katy filed an action against Tyrone for collection
trial judge as when an appeal will not promptly of the sum of P1 million in the RTC, with an ex parte
relieve petitioner from the injurious effects of the application for a writ of preliminary attachment.
disputed order (Vasquez vs. Robilla-Alenio, 271 SCRA Upon posting of an attachment bond, the court
67). granted the application and issued a writ of
preliminary attachment. Apprehensive that Tyrone
PROVISIONAL REMEDIES might withdraw his savings deposit with the bank,
the sheriff immediately served a notice of
Q: What are the provisional remedies under the garnishment on the bank to implement the writ of
rules? (1999) preliminary attachment, Katy’s affidavit, order of
attachment, writ of preliminary attachment and
A: The provisional remedies under the rules are attachment bond.
preliminary attachment, preliminary injunction,
receivership, replevin, and support pendente lite. Within 15 days from service of the summons,
(Rules 57 to 61, Rules of Court). Tyrone filed a motion to dismiss and to dissolve the
writ of preliminary attachment on the following
Preliminary Attachment grounds: (i) the court did not acquire jurisdiction
over his person because the writ was served ahead
Q: In a case, the property of an incompetent under of the summons; (ii) the writ was improperly
guardianship was in custodia legis. Can it be implemented; and (iii) said writ was improvidently
attached? Explain. (1999) issued because the obligation in question was fully
paid. Resolve the motion with reasons. (2005)

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A: The motion to dismiss and to dissolve the writ of


preliminary attachment should be denied. Q: May a Regional Trial Court issue injunction
without bond? (2006)
(1) The fact that the writ of attachment was served
ahead of the summons did not affect the jurisdiction A: Yes, if the injunction that is issued is a final
of the court over his person. It makes the writ, injunction. Generally, however, preliminary
unenforceable (Rule 57, Sec. 5) However, all that is injunction cannot issue without bond unless
needed to be done is to re-serve the writ (Onate v. exempted by the trial court (Rule 58, Sec. 4[b]).
Abrogar, GM. No. 197393, February 23, 1985).
Q: Distinguish injunction as an ancillary remedy and
(2) The writ was improperly implemented. Serving a injunction as a main action. (2006)
notice of garnishment, particularly before summons
is served, is not proper. It should be a copy of the A: Injunction as an ancillary remedy refers to the
writ of attachment that should be served on the preliminary injunction which requires the existence
defendant, and a notice that the bank deposits are of a pending principal case; while injunction as a
attached pursuant to the writ (Rule 57, Sec. 7[d]). main action refers to the principal case itself that
prays for the remedy of permanently restraining the
(3) The writ was improvidently issued if indeed it can adverse party from doing or not doing the act
be shown that the obligation was already fully paid. complained of. Injunction as an ancillary remedy
The writ is only ancillary to the main action (Rule 57, seeks to preserve the status quo or to prevent future
Sec. 13). The alleged payment of the account cannot, wrongs in order to preserve and protect certain
serve as a ground for resolving the improvident interests or rights during the pendency of the action
issuance of the writ, because this matter delves into (Cortez‐Estrada v. Heirs of Domingo Samut, 451
the merits of the case, and requires full-blown trial. SCRA 275). Injunction as a main action seeks a
Payment, however, serves as a ground for a motion judgment embodying a final injunction, to enjoin the
to dismiss. defendant from the commission or continuance of a
specific act, or to compel a particular act in violation
Q: Distinguish attachment from garnishment (1999) of the rights of the applicant (Almeida v. CA, 448
SSCRA 681).
A: ATTACHMENT is a provisional remedy that effects
a levy on property of a party as security for the Q: What are the requisites for the issuance of (a) a
satisfaction of any judgment that may be recovered, writ of preliminary injunction; and (b) a final writ of
while GARNISHMENT is a levy on debts due the injunction? (2006)
judgment obligor or defendant and other credits,
including bank deposits, royalties and other personal A: The requisites are as follows:
property not capable of manual delivery under a writ Writ of Preliminary Injunction (Rule 58, Sec. 4):
of execution or a writ of attachment. (1) A verified complaint showing;
(2) The existence of a right in esse;
Preliminary Injunction (3) Violation or threat of violation of such right;
(4) Damages or injuries sustained or that will be
Q: May a writ of preliminary injunction be issued ex sustained by reason of such violation;
parte? Why? (2001) (5) Notice to all parties of raffle and of hearing;
(6) Hearing on the application;
A: No, a writ of preliminary injunction may not be (7) Filing of an appropriate bond and service
issued ex parte. As provided in the Rules, no thereof.
preliminary injunction shall be granted without
hearing and prior notice to the party or person A final writ of injunction may be rendered by
sought to be enjoined (Sec. 5 of Rule 58). The reason judgment after trial, showing applicant to be entitled
is that a preliminary injunction may cause grave and to the writ (Rule 58, Sec. 9).
irreparable injury to the party enjoined.
Q: An application for a writ of preliminary
Q: Can a suit for injunction be aptly filed with the injunction with a prayer for a temporary restraining
Supreme Court to stop the President of the order is included in a complaint and filed in a multi-
Philippines from entering into a peace agreement sala RTC consisting of Branches 1, 2, 3 and 4. Being
with the National Democratic Front? (2003) urgent in nature, the Executive Judge, who was
sitting in Branch 1, upon the filing of the aforesaid
A: No, a suit for injunction cannot be filed to stop application immediately raffled the case in the
the President of the Philippines from entering into a presence of the judges of Branches 2, 3 and 4. The
peace agreement with the National Democratic case was raffled to Branch 4 and judge thereof
Front, which is a purely political question (Madarang immediately issued a temporary restraining order.
v. Santamaria, 37 Phil. 304). Moreover, the Is the temporary restraining order valid? Why?
President of the Philippines is immune from suit. (2001)

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no longer sufficient to answer for the latter’s


A: No. It is only the Executive Judge who can issue mortgage indebtedness. In the meantime,
immediately a temporary restraining order effective judgment was rendered by the court in favour of
only for seventy-two (72) hours from issuance. No Joaquin but the same is not yet final.
other Judge has the right or power to issue a
temporary restraining order ex parte. The Judge to Knowing what Jose has been doing, if you were
whom the case is assigned will then conduct a Joaquin’s lawyer, what action would you take to
summary hearing to determine whether the preserve whatever remaining machinery and
temporary restraining order shall be extended, but equipment are left with Jose? Why? (2001)
in no case beyond 20 days, including the original 72-
hour period (Rule 58, Sec. 5). A: To preserve whatever remaining machinery and
equipment are left with Jose, Joaquin’s lawyer
Q: Define a temporary restraining order (TRO). should file a verified application for the appointment
(2006) by the court of one or more receivers. The Rules
provide that receivership is proper in an action by
A: A temporary restraining order is a specie of the mortgagee for the foreclosure of a mortgage
preliminary injunction; it is an order issued to when it appears that the property is in danger of
restrain the opposite party and to maintain the being wasted or dissipated or materially injured and
status quo until a hearing for determining the that its value is probably insufficient to discharge the
propriety of granting a preliminary injunction (Rule mortgage debt (Rule 59, Sec. 1).
58, Sec. 4[c] and [d]).
Replevin
Q: Differentiate a TRO from a status quo order.
(2006) Q: What is replevin? (1999)

A: A status quo order (SQO) is more in the nature of A: Replevin or delivery of personal property consists
a cease and desist order, since it does not direct the in the delivery, by order of the court, of personal
doing or undoing of acts, as in the case of property by the defendant to the plaintiff, upon the
prohibitory or mandatory injunctive relief. A TRO is filing of a bond (Calo v. Roldan, 76 Phil. 445).
only good for 20 days if issued by the RTC; 60 days if
issued by the CA; until further notice if issued by the Support pendente lite
SC. The SQO is without any prescriptive period and
may be issued without a bond. A TRO dies a natural Q: Before the RTC, A was charged with rape of his
death after the allowable period; the SQO does not. 16-year old daughter. During the pendency of the
A TRO is provisional. SQO lasts until revoked. A TRO case, the daughter gave birth to a child
is not extendible, but the SQO may be subject to allegedly as a consequence of the rape.
agreement of the parties. Thereafter, she asked the accused to support the
child, and when he refused, the former filed a
Q: May a justice of a Division of the Court of petition for support pendente lite. The accused,
Appeals issue a TRO? (2006) however, insists that he cannot be made to give
such support arguing that there is as yet no
A: Yes, a justice of a division of the Court of Appeals finding as to his guilt. Would you agree with the
may issue a TRO, as authorized under Rule 58 and by trial court if it denied the application for support
Section 5, Rule IV of the IRCA which additionally pendente lite? Explain. (1999, 2001)
requires that the action shall be submitted on the
next working day to the absent members of the A: No. The provisional remedy of support pendente
division for the ratification, modification or recall lite may be granted by the RTC in the criminal action
(Heirs of the late Justice Jose B.L. Reyes v. Court of for rape. In criminal actions where the civil liability
Appeals, G.R. Nos. 135425-26, November 14, 2000). includes support for the offspring as a consequence
of the crime and the civil aspect thereof has not
Receivership been waived, reserved, or filed prior to the criminal
action, the accused may be ordered to provide
Q: Joaquin filed a complaint against Jose for the support pendente lite to the child born to the
foreclosure of a mortgage of a furniture factory offended party allegedly because of the crime (Rule
with a large number of machinery and equipment. 61, Sec. 6).
During the pendency of the foreclosure suit,
Joaquin learned from reliable sources that Jose was SPECIAL CIVIL ACTIONS
quietly and gradually disposing of some of his
machinery and equipment to a businessman friend Q: The defendant was declared in default in the RTC
who was also engaged in furniture manufacturing for his failure to file an answer to a complaint for a
such that from confirmed reports Joaquin gathered, sum of money. On the basis of the plaintiff’s ex
the machinery and equipment left with Jose were parte presentation of evidence, judgment by

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default was rendered against the defendant. The September 18, 2002; Sec. 3, Rule 65). The proper
default judgment was served on the defendant on action to be filed is an action for specific
October 1, 2001. On October 10, 2001, he files a performance.
verified motion to lift the order of default and to
set aside the judgment. In his motion, the Q: Petitioner Fabian was appointed Election
defendant alleged that, immediately upon receipt Registrar of the Municipality of Sevilla supposedly
of the summons, he saw the plaintiff and to replace the respondent Election Registrar
confronted him with his receipt evidencing his Pablo who was transferred to another municipality
payment and that the plaintiff assured him that he without his consent and who refused to accept his
would instruct his lawyer to withdraw the aforesaid transfer, much less to vacate his
complaint. The trial court denied the defendant’s position in Bogo town as e lection registrar, as in
motion because it was not accompanied by an fact he continued to occupy his aforesaid position
affidavit of merit. The defendant filed a special civil and exercise his functions thereto. Petitioner
action for certiorari under Rule 65 challenging the Fabian then filed a petition for mandamus against
denial order. Is certiorari under Rule 65 the proper Pablo but the trial court dismissed Fabian’s petition
remedy? Why? contending that quo warranto is the proper
remedy. Is the court correct in its ruling? Why?
A: The petition for certiorari under Rule 65 filed by (2001)
the defendant is the proper remedy because appeal
is not a plain, speedy and adequate remedy in the A: Yes, the court is correct in its ruling. Mandamus
ordinary course of law. In appeal, the defendant in will not lie. This remedy applies only where
default can only question the decision in the light of petitioner’s right is founded clearly in law, not when
the evidence of the plaintiff. The defendant cannot it is doubtful. Pablo was transferred without his
invoke the receipt to prove payment of his obligation consent which is tantamount to removal without
to the plaintiff. cause, contrary to the fundamental guarantee on
non-removal except for cause. Considering that
Q: In 1996, Congress passed Republic Act No. 8189, Pedro continued to occupy the disputed position and
otherwise known as the Voter's Registration Act of exercise his functions therein, the proper remedy is
1996, providing for computerization of elections. quo warranto for usurping his office, not mandamus
Pursuant thereto, the COMELEC approved the (Graces v. Court of Appeals, 259 SCRA 99)
Voter's Registration and Identification System
(VRIS) Project. It issued invitations to pre-qualify Q: A group of businessmen formed an association
and bid for the project. After the public bidding, in Cebu City calling itself Cars C. to distribute / sell
Fotokina was declared the winning bidder with a cars in said city. It did not incorporate itself under
bid of P6 billion and was issued a Notice of Award. the law nor did it have any government permit or
But COMELEC Chairman Gener Go objected to the license to conduct its business as such. The Solicitor
award on the ground that under the Appropriations General filed before a RTC in Manila a verified
Act, the budget for the COMELEC's modernization is petition for quo warranto questioning and seeking
only P1 billion. He announced to the public that the to stop the operations of Cars Co. The latter filed a
VRIS project has been set aside. Two motion to dismiss the petition on the ground of
Commissioners sided with Chairman Go, but the improper venue claiming that its main office and
majority voted to uphold the contract. operations are in Cebu City and not in Manila. Is the
contention of Cars Co. correct? Why? (2001)
Meanwhile, Fotokina filed with the RTC a petition
for mandamus compel the COMELEC to implement A: No. As expressly provided in the Rules, when the
the contract. The Office of the Solicitor General Solicitor General commences the action for quo
(OSG), representing Chairman Go, opposed the warranto, it may be brought in the RTC in the City of
petition on the ground that mandamus does not lie Manila, as in this case, in the Court of Appeals or in
to enforce contractual obligations. During the the Supreme Court (Rule 66, Sec. 7).
proceedings, the majority Commissioners filed a
manifestation that Chairman Go was not Q: A borrowed from the Development Bank of the
authorized by the COMELEC En Banc to oppose the Philippines (DBP) the amount of P1 million secured
petition. Is a petition for mandamus an appropriate by the titled land of his friend B who, however, did
remedy to enforce contractual obligations? (2006) not assume personal liability for the loan. A
defaulted and DBP filed an action for judicial
A: No. Mandamus cannot lie to compel the foreclosure of the real estate mortgage impleading
enforcement of contractual obligations. The petition A and B as defendants. In due course, the court
for mandamus is not an appropriate remedy because rendered judgment directing A to pay the
it is not available to enforce a contractual obligation. outstanding account of P1.5 million (principal plus
Mandamus is directed only to ministerial acts, interest) to the bank. No appeal was taken by A on
directing or commanding a person to do a legal duty the Decision within the reglementary period. A
(COMELEC v. Quijano-Padilla, G.R. No. 151992, failed to pay the judgment debt within the period

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specified in the decision. Consequently, the court determined by the judgment will be made with the
ordered the foreclosure sale of the mortgaged land. appellate court (Rule 70, Sec. 19).
In that foreclosure sale, the land was sold to the
DBP for P1.2 million. The sale was subsequently SPECIAL PROCEEDINGS
confirmed by the court, and the confirmation of the
sale was registered with the Registry of Deeds on Settlement of estate
05 January 2002.
Q: A, a resident of Malolos, Bulacan died leaving an
On 10 January 2003, the bank filed an ex-parte estate located in Manila, worth P200,000.00. In
motion with the court for the issuance of a writ of what court, taking into consideration the nature of
possession to oust B from the land. It also filed a the jurisdiction and of venue, should the probate
deficiency claim for P800,000.00 against A and B. proceeding on the state of A be instituted? (2003)
the deficiency claim was opposed by A and B.
A: The probate proceeding on the state of A should
(a) Resolve the motion for the issuance of a writ of be instituted in the Municipal Trial Court of Malolos,
possession. Bulacan which has jurisdiction, because the estate is
(b) Resolve the deficiency claim of the bank. (2003) valued at P200,000.00, and is the court of proper
venue because A was a resident of Malolos at the
A: time of his death (Sec 33 of BP 129 as amended by
a) In judicial foreclosure by banks such as DBP, the RA 7691; Rule 73, Sec. 1)
mortgagor or debtor whose real property has been
Q: A’s will was allowed by the Court. No appeal was
sold on foreclosure has the right to redeem the
taken from its allowance. Thereafter, Y who was
property sold within one year after the sale (or
interested in the estate of A, discovered that the
registration of the sale). However, the purchaser at
will was not genuine because A’s signature was
the auction sale has the right to obtain a writ of
forged by X. A criminal action for forgery was
possession after the finality of the order confirming
instituted against X. May the due execution of the
the sale (Rule 68, Sec. 3; Sec. 47 of RA 8791, The
Will be validly questioned in such criminal action?
General Banking Law of 2000) The motion for writ of
(1999)
possession, however, cannot be filed ex parte. There
must be a notice of hearing. A: No. The allowance of the will from which no
appeal was taken is conclusive as to its due
b) The deficiency claim of the bank may be enforced execution (Rule 75, Sec. 1) Due execution includes a
against the mortgage debtor A, but it cannot be finding that the will is genuine and not a forgery.
enforced against B, the owner of the mortgaged Accordingly, the due execution of the will cannot
property, who did not assume personal liability for again be questioned in a subsequent proceeding, not
the loan. B’s liability only extends to the mortgaged even in a criminal action for forgery of the will.
property.
Q: After Lulu’s death, her heirs brought her last will
Q: On January 10, 1990, X leased the warehouse of to a lawyer to obtain their respective shares in the
A under a lease contract with a period of five years. estate. The lawyer prepared a deed of partition
On June 8, 1996, A filed an unlawful detainer case distributing Lulu’s estate in accordance with the
against X without a prior demand for X to vacate terms of her will. Is the act of the lawyer correct?
the premises. Why? (2005)
(a) Can X contest his ejectment on the ground that
there was no prior demand for him to vacate the A: No. Rule 75, Sec 1of the Rules of Court provides
premises? that no will shall pass either real or personal estate
(b) In case the Municipal Trial Court renders unless it is proved and allowed in the proper court.
judgment in favor of A, is the judgment In this case, there was no allowance of the will. The
immediately executory? (1997) lawyer distributed the property without following
the necessary procedure for probate as required by
A: law.
a) Yes, X can contest his ejectment on the ground
that there was no prior demand for him to vacate Q: What are the requisites in order that a lost or
the premises because such demand is jurisdictional destroyed Will may be allowed? (1999)
in nature (Rule 70, Sec. 2).
A:
In order that a lost or destroyed will may be allowed,
(b) Yes, because the judgment of the Municipal Trial
the following must be complied with:
Court against the defendant X is immediately
1. The execution and validity of the same should be
executory upon motion unless an appeal has been
established;
perfected, a supersedeas bond has been filed and
the periodic deposits of current rentals, if any, as

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2. The will must have been in existence at the time Likewise, Cancio can compel her to deliver a copy of
of the death of the testator without his knowledge; the same to him.
and
3. Its provisions are clearly and distinctly proved by 3. Yes, the probate court can appoint the widow as
at least two credible witnesses (Rule 76, Sec 6) executor of the will if the executor does not qualify,
as when he is incompetent, refuses the trust, or fails
Q: Sergio Punzalan, Filipino, 50 years old, married to give bond (Rule 78, Sec. 6)
and residing at Ayala Alabang Village, Muntinlupa
City, of sound and disposing mind, executed a last 4. No. The widow and her children cannot settle the
will and testament in English, a language spoken estate extrajudicially because of the existence of the
and written by him proficiently. He disposed of his will. No will shall pass either real or personal estate
estate consisting of a parcel of land in Makati City unless it is proved and allowed in the proper court
and cash deposit at the City Bank in the sum of (Rule 75, Sec 1).
P300 Million. He bequeath P50 million each to his 3
sons and P150 Million to his wife. He devised a 5. No, the widow and her children cannot file a
piece of land worth P100 Million to Susan, his separate petition for partition pending the probate
favorite daughter-in-law. He named his best friend, of the will. Partition is a mode of settlement of the
Cancio Vidal, as executor of the will without bond. estate (Rule 75, Sec. 1).

1. Is Cancio Vidal, after learning of Sergio’s death, Q: The rules of special proceedings ordinarily
obliged to file with the proper court a petition for require that the estate of the deceased should be
probate of the latter’s last will and testament? judicially administered thru an administrator or
2. Supposing the original copy of the last will and executor. What are the two exceptions to said
testament was lost, can Cancio compel Susan to requirements? (2001)
produce a copy in her possession to be submitted
to the probate court? A: The two exceptions to the requirements are:
3. Can the probate court appoint the widow as
executor of the will? a. Where the decedent left no will and no debts and
4. Can the widow and her children settle heirs are all of age, or the minors represented by
extrajudicially among themselves the estate of the their judicial or legal representatives duly authorized
deceased? for the purpose, the parties may without securing
5. Can the widow and her children initiate a letters of administration, divide the estate among
separate petition for partition of the estate pending themselves by means of public instrument filed in
the probate of the last will and testament by the the office of the Register of Deeds, or should they
court? (2006) disagree, they may do so in a ordinary action of
partition. If there is only one heir, he may adjudicate
A: to himself the entire estate by means of an affidavit
1. No. Section 3 of Rule 75 provides that a person filed in the office of the Register of Deeds. The
named as executor in a will shall, within twenty days parties or the sole heir shall file simultaneously a
after he knows of the death of the testator, or within bond with the Register of Deeds, in an amount
twenty days after he knows he is named executor if equivalent to the value of the personal property as
he obtained such knowledge after the death of the certified to under oath by the parties and
testator, present such will to the court having conditioned upon the payment of any just claim that
jurisdiction, unless the will has reached the court in may be filed later. The fact of the extrajudicial
any other manner, and shall, within such period, settlement or administration shall be published in a
signify to the court in writing his acceptance of the newspaper of general circulation in the province
trust or refusal to accept it. Such rule only obliges once a week for three consecutive weeks (Rule 74,
the executor to deliver the will within twenty days Sec 1).
after he knows of the death of the testator or within
twenty days after he knows that he is named as b. Whenever the gross value of the estate of a
executor. Under the Rule, Cancio Vidal is not obliged deceased person, whether he died testate or
to file a petition for probate. intestate, does not exceed ten thousand pesos, and
that fact is made to appear to the RTC having
2. Yes, Cancio can compel Susan to produce the copy jurisdiction or the estate by the petition of an
in her possession. Sec 2, Rule 75, Rules of Court interested person and upon hearing, which shall be
provides: The person having custody of the will shall, held no less than one (1) month nor more than three
within twenty days after he knows of the death of (3) months from the date of the last publication of a
the testator, deliver the will to the court having notice which shall be published once a week for
jurisdiction, or the executor named in the will. three consecutive weeks in a newspaper of general
Hence, Susan is bound to deliver the same to the circulation in the province, and after such other
court of competent jurisdiction or to the executor. notice to interested persons as the court may direct ,
the court may proceed summarily, without the

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appointment of an executor or administrator, to Q: Roxanne, a widow, filed a petition for habeas


settle the estate (Rule 74, Sec 2). corpus with the Court of Appeals against Major
Amor who is allegedly detaining her 18-year old son
Q: What should the court do if, in the course of Bong without authority of the law.
intestate proceedings, a will is found and it is
submitted for probate? Explain. (2002) After Major Amor had filed a return alleging the
cause of detention of Bong, the Court of Appeals
A: If a will is found in the course of intestate promulgated a resolution remanding the case to
proceedings and it is submitted for probate, the the RTC for a full-blown trial due to the conflicting
intestate proceedings will be suspended until the facts presented by the parties in their pleadings. In
will is probated. Upon the probate of the will, the directing the remand, the Court of Appeals relied
intestate proceedings will be terminated (Rule 82, on sec.9 (1), in relation to sec. 21 of BP 129
Sec 1) conferring upon said Court the authority to try and
decide habeas corpus cases concurrently with the
RTCs. Did the Court of Appeals act correctly in
Q: X filed a claim in the intestate proceedings of D. remanding the petition to the RTC? Why? (1993)
D’s administrator denied liability and filed a
counterclaim against X. X’s claim was disallowed. A: No, because while the CA has original jurisdiction
over habeas corpus concurrent with the RTCs, it has
1. Does the probate court still have jurisdiction to no authority for remanding to the latter original
allow the claim of D’s administrator by way of actions filed with the former. On the contrary, the
offset? Why? CA is specifically given the power to receive evidence
2. Suppose D’s administrator did not allege any and perform any and all acts necessary to resolve
claim against X by way of offset, can D’s factual issues raised in cases falling within its original
administrator prosecute the claim in an jurisdiction (Sec.9, second paragraph of B.P. Blg. 129,
independent proceeding? why? (2002) as amended by E.O. No. 33 s. 1986: Orda v. Court of
Appeals, 192 SCRA 768).
A:
1. No, because since the claim of X was disallowed, Q: A was arrested on the strength of a warrant of
there is no amount against which to offset the claim arrest issued by the RTC in connection with an
of D’s administrator. Information for Homicide. W, the live-in partner of
A filed a petition for habeas corpus against A’s jailer
2. Yes, D’s administrator can prosecute the claim in and police investigators with the Court of Appeals.
an independent proceeding since the claim of X was
disallowed. If X had a valid claim and D’s 1. Does W have the personality to file the petition
administrator did not allege any claim against X by for habeas corpus?
way of offset, his failure to do so would bar his claim 2. Is the petition tenable? (1998)
forever (Rule 86, Sec. 10).
A:
Q: A, B and C, the only heirs in D’s intestate 1. Yes. W, the live-in partner of A, has the
proceedings, submitted a project of partition to the personality to file the petition for habeas corpus
partition to the partition, two lots were assigned to because it may be filed by “some person in his
C, who immediately entered into the possession of behalf.” (Rule 102, Sec. 3)
the lots. Thereafter, C died and proceedings for the
settlement of his estate were filed in the RTC- 2. No. The petition is not tenable because the
Quezon City. D’s administrator then filed a motion warrant of arrest was issued by a court which had
in the probate (RTC-Manila), praying that one of jurisdiction to issue it (Rule 102, Sec. 4)
the lots assigned to C in the project of partition that
one of the lots assigned to C in the project of Q: Widow A and her two children, both girls, aged 8
partition be turned over to him to satisfy debts and 12 years old, reside in Angeles City, Pampanga.
corresponding to C’s portion. The motion was A leaves her two daughters in their house at night
opposed by the administrator of C’s estate. How because she works in a brothel as a prostitute.
should the RTC-Manila resolve the motion D’s Realizing the danger to the morals of these two
administrator? Explain. (2002) girls, B, the father of the deceased husband of A,
files a petition for habeas corpus against A for the
A: The motion of D’s administrator should be custody of the girls of the girls in the Family Court
granted. The assignment of the two lots to C was in Angeles City. In said petition, B alleges that he is
premature because the debts of the estate had not entitled to the custody of the two girls because
been fully paid (Rule 90, Sec. 1; Reyes v. Barreto- their mother is living a disgraceful life. The court
Datu, 19 SCRA 85). issues the writ of habeas corpus. When A learns of
the petition and the writ, she brings her two
Habeas Corpus children to Cebu City. At the expense of B, the
sheriff of the said Family Court goes to Cebu City

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and serves the writ on A. A files her comment on interest of the offended party and to prevent
the petition raising the following defenses: possible abuse by the prosecution.

a. The enforcement of the writ of habeas corpus in Q:


Cebu City is illegal; and A. D and E were charged with homicide in one
b. B has no personality to institute the petition. information. Before they could be arraigned, the
Resolve the petition in the light of the above prosecution moved to amend the information to
defenses of A. (2003) exclude E therefrom. Can the court grant the
motion to amend? Why?
A: B. On the facts above stated, suppose the
a. The defense is correct. The writ of habeas corpus prosecution, instead of filing a motion to amend,
issued by the Family Court can be enforced only moved to withdraw the information altogether and
within its territorial jurisdiction, unlike the writ its motion was granted. Can the prosecution re-file
granted by the Supreme Court or Court of Appeals the information although this time for murder?
which is enforceable anywhere in the Philippines. Explain (2002)
(Sec. 20 of Rule on Custody of Minors and Writ
Habeas Corpus in Relation to Custody of Minors, A:
A.M. No. 03-04-04-SC; see also Sec. 4 of Rule 102 A. Yes, provided notice is given to the offended party
Rules of Court) and the court states its reasons for granting the
same (Rule 110, Sec. 14).
b. The defense is not correct. B, the father of the
deceased husband of A, has the personality to B. Yes, the prosecution can re-file the information
institute the petition for habeas corpus of the two for murder in substitution of the information for
minor girls, because the grandparent has the right of homicide because no double jeopardy has as yet
custody as against the mother A who is a prostitute attached (Galvez v. Court of Appeals, 237 SCRA 685).
(Rule 102, Sec. 2 and 13).
Q: A was accused of homicide for the killing of B.
CRIMINAL PROCEDURE During the trial, the public prosecutor received a
copy of the marriage certificate of A and B.
Information
a. Can the public prosecutor move for the
Q: The prosecution filed an information against amendment of the information to charge A with
Jose for slight physical injuries alleging the acts the crime of parricide?
constituting the offense but without anymore b. Suppose instead of moving for the amendment
alleging that it was committed after Jose’s unlawful of the information, the public prosecutor presented
entry in the complainant’s abode. in evidence the marriage certificate without
objection on the part of the defense, could A be
Was the information correctly prepared by the convicted of parricide? (1997)
prosecution? Why? (2001)
A:
A: No. the aggravating circumstance of unlawful a. No. The Information cannot be amended to
entry in the complainant’s abode has to be specified change the offense charged from homicide to
in the information; otherwise, it cannot be parricide. Firstly, the marriage is not a supervening
considered as aggravating (Rule 110, Sec. 8) fact arising from the act constituting the charge of
homicide (Rule 117, Sec. 7[a]). Secondly, after plea,
Q: Amando was charged with frustrated homicide. amendments may be done only as to matters of
Before he entered his plea and upon the advice of form. The amendment is substantial because it will
his counsel, he manifested his willingness to admit change the nature of the offense (Rule 110, Sec. 14;
having committed the offense of serious physical Dionaldo v. Daguyguy, 108 SCRA 736).
injuries. The prosecution then filed an amended
information for serious physical injuries against b. No A can be convicted only a homicide not of
Armando. What steps or action should the parricide which is a graver offense. The accused has
prosecution take so that the amended information the constitutional rights of due process and to be
against Armando which downgrades the nature of informed of the nature and the cause of the
the offense could be validly made? Why? (2001) accusation against him (Art. III, Secs. 1, 14 (1) and (2)
1987 Constitution).
A: In order that the amended information which
downgrades the nature of the offense could be Q: After the requisite proceedings, the Provincial
validly made, the prosecution should file a motion to Prosecutor filed an Information for homicide
ask for leave of court with notice to the offended against X. The latter, however, timely filed a
party. (Sec. 14, Rule 110, Revised Rules of Criminal Petition for Review of the Resolution of the
Procedure). The new rule is for the protection of the Provincial Prosecutor with the Secretary of Justice
who, in due time, issued a Resolution reversing the

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resolution of the Provincial Prosecutor and caliber gun is punishable by prison correctional in
directing him to withdraw the Information. its maximum period and a fine of not less than
P15,000.00.
Before the Provincial Prosecutor could comply with
the directive of the Secretary of Justice, the court As counsel of the accused, you intend to file a
issued a warrant of arrest against X. The Public motion to quash the Information. What ground or
Prosecutor filed a Motion to Quash the Warrant of grounds should you invoke? Explain. (2005)
Arrest and to Withdraw the Information, attaching
to it the Resolution of the Secretary of Justice. The A: The ground for the motion to quash is that more
court denied the motion. than one offense is charged in the information (Rule
117, Sec. 3 [f]). Likewise, the RTC has no jurisdiction
a. Was there a legal basis for the court to deny the over the second offense of an unlicensed .32 caliber
motion? gun, punishable by prision correccional in its
b. If you were the counsel for the accused, what maximum period and a fine of not less than
remedies; if any, would you pursue? (2003) P15,000.00. It is the MTC that has exclusive and
original jurisdiction over all offenses punishable by
A: imprisonment not exceeding six years (Sec. 2, RA No.
a. Yes there is a legal basis for the court to deny the 7691, amending B.P. Blg, 129)
motion to quash the warrant of arrest and to
withdraw the information. The court is not bound by Q:
the Resolution of the Secretary of Justice (Crespo v. 1. Give two (2) grounds to quash an Information
Mogul, 151 SCRA 462). 2. If the information is not accompanied by a
certification that a preliminary investigation has
b. If I were the counsel for the accused, I would been conducted. Is the Information void? (1998)
surrender the accused and apply for bail because the
offense is merely homicide, a non-capital offense. At A:
the pre-trail, I would make a stipulation of facts with 1. Two grounds to quash an Information are:
the prosecution which would show that no offense a. That the facts charged do not constitute an
was committed. offense; and
b. That the court trying the case has no
Q: BC is charged with illegal possession of firearms jurisdiction over the offense charged or the
under an Information signed by a Provincial person of the accused.
Prosecutor. After arraignment but before pre-trial, c. That the officer who filed the information had
BC found out that the Provincial Prosecutor had no no authority to do so;
authority to sign and file the information as it was d. That it does not conform substantially to the
the City Prosecutor who has such authority. During prescribed form;
the pre-trial, BC moves that the case against him be e. That more than one offense is charged except
dismissed on the ground that the Information is in those cases in which existing laws prescribe a
defective because the officer signing it lacked the single punishment for various offenses;
authority to do so. The Provincial Prosecutor f. That the criminal action or liability has been
opposes the motion on the ground of estoppels as extinguished;
BC did not move to quash the Information before g. That it contains averments which, if true,
arraignment. If you are counsel for BC, what is your would constitute a legal excuse or justification;
argument to refute the opposition of the Provincial and
Prosecutor? (2000) h. That the accused has been previously
convicted or in jeopardy of being convicted, or
A: I would argue that since the Provincial Prosecutor acquitted of the offense charged (Rule 117, Sec.
had no authority to file the information, the court 3)
did not acquire jurisdiction over the person of the
accused and over the subject matter of the offense 2. No. The certification which is provided in Sec. 4,
charged (Cudia v. Court of Appeals, 284 SCRA 173). Rule 112 is not an indispensable part of the
Hence, this ground is not waived if not raised in a information (People v. Lapura, 255 SCRA 85)
motion to quash and could be raised at the pre-trial.
(Rule 117, Sec. 8). Arrest, Search and Seizure

Q: Rodolfo is charged with possession of unlicensed Q: AX swindled RY in the amount of P10,000


firearms in an Information filed in the RTC. It was sometime in mid-2003. On the strength of the
alleged therein that Rodolfo was in possession of sworn statement given by RY personally to SPO1
two unlicensed firearms: a .45 caliber and a .32 Juan Ramos sometime in mid-2004, and without
caliber. Under Republic Act No. 8294, possession of securing a warrant, the police officer arrested AX.
an unlicensed .45 caliber gun is punishable by Forthwith the police officer filed with the City
prison mayor in its minimum period and a fine of Prosecutor of Manila a complaint for estafa
P30,000.00, while possession of an unlicensed .32 supported by RY’s sworn statement and other

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documentary evidence. After due inquest, the c. Under the circumstances, can B be convicted of
prosecutor filed the requisite information with the homicide? (1997)
MM RTC. No preliminary investigation was
conducted either before or after the filing of the A:
information and the accused at no time asked for a. The gun used by B in shooting A cannot be
such an investigation. However, before admitted as evidence. This is because the arrest
arraignment, the accused moved to quash the cannot be considered as one of the instances of
information on the ground that the prosecutor lawful warrantless arrest which results that the
suffered from a want of authority to file the search is also illegal and not an incident to a lawful
information because of his failure to conduct a arrest. Thus, B may successfully oppose the
preliminary investigation because of his failure to admission of the gun by invoking the poisonous fruit
conduct a preliminary investigation before filing the doctrine which prohibits the admission of evidence
information, as required by the Rules of Court. Is which were procured by illegal means.
the warrantless arrest of AX valid? Is he entitled to
a preliminary investigation before the filing of the b. Since two days had passed since the offense was
information? Explain. (2004) committed, it doesn’t anymore fall under the
instances of lawful warrantless arrest. Therefore, the
A: The warrantless Arrest of AX is not valid. Sec. 5 of warrantless arrest of B is illegal.
Rule 113 of the Rules of Court provides the instances
of lawful warrantless arrest; to wit: c. Yes. The gun is not indispensable in the conviction
a. When in the presence of the peace officer or of A because the court may rely on testimonial or
a private person the person to be arrested has other evidence (UPLC, 2008 edition)
committed, is actually committing, or is
attempting to commit an offense Q: In a buy-bust operation, the police operatives
b. When an offense has just been committed, arrested the accused and seized from him a sachet
and he has probable cause to believe based on of shabu and an unlicensed firearm. The accused
personal knowledge of facts or circumstances was charged in two Informations, one for violation
that the person to be arrested has committed it of the “Dangerous Drug Act”, as amended, and
c. When the person to be arrested is a prisoner another for illegal possession of firearms. The
who has escaped from a penal establishment or accused filed an action for recovery of the firearm
place where he is serving final judgment or is in another court against the police officers with an
temporarily confined while his case is pending, application for the issuance of a writ of replevin. He
or has escaped while being transferred from one alleged in his Complaint that he was a military
confinement to another. informer who had been issued a written authority
And also under Sec. 13 of Rule 113 of Rules of to carry said firearm. The police officers moved to
Court: dismiss the complaint in the ground that the
d. If a person lawfully arrested escapes or is subject firearm was in custodial legis. The court
rescued, any person may immediately pursue or denied the motion and instead issued the writ of
retake him without a warrant at any time and in replevin.
any place within the Philippines. a. Was the seizure of the firearm valid?
b. Was the denial of the motion to dismiss proper?
As applied to the given case, clearly the warrantless (2003)
arrest of AX doesn’t fall under the lawfully
warrantless arrest provided by the Rules of Court. A:
However, AX is not entitled to preliminary a. As a general rule, the procurement of a warrant is
investigation since under Art. 315 of the Revised required before a law enforcer can validly search or
Penal Code, the penalty for swindling the amount of seize the person, house, papers, or effects of any
P10,000 is prisión correccional in its minimum and individual. However, jurisprudence provides the
medium periods which does not exceed the exceptions to the requirement of a valid warrant in
threshold limit of 4 years, 2 months and 1 day set order to search and seize; to wit:
forth under Sec. 1 of Rule 112of the Rules of Court. i. Warrantless search incidental to a lawful
arrest;
Q: A was killed by B during a quarrel over a hostess ii. Seizure of evidence in “plain view”;
in a nightclub. Two days after the incident, and iii. Search of a moving vehicle;
upon complaint of the widow of A, the police iv. Consented warrantless search;
arrested B without a warrant of arrest and searched v. Customs search;
his house without a search warrant. vi. Stop and frisk or Terry searches;
a. Can the gun used by B in shooting A, which was vii. Exigent and emergency circumstances;
seized during the search of the house of B, be viii. Search of vessels and aircraft;
admitted in evidence? ix. Inspection of buildings and other premises
b. Is the arrest of B legal? for the enforcement of fire, sanitary and

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

building regulations (Criminal Procedure, A appealed from the decision but B and C did not. B
Willard B. Riano, 2011 edition) started serving his sentence but C escaped and is at
large. In the Court of Appeals, A applied for bail but
As applied in this case, the search after the buy-bust was denied. Finally, the Court of Appeals rendered
operation can be considered as a warrantless search a decision acquitting A on the ground that the
incidental to a lawful arrest; thus, the seizure of the evidence pointed to the NPA as the killers of the
firearm without a valid search warrant is valid victim.
1. Was the Court of Appeal’s denial of A’s
b. The denial of the motion to dismiss was not application for bail proper?
proper. The court had no authority to issue the writ 2. Can B and C benefited by the decision of the
of replevin whether the firearm was in custodial egis Court of Appeals? (1998)
or not. The motion to recover the firearm should be
file in the court where the criminal action is pending. A:
(UPLC, 2008 edition) 1. The denial of the A’s application for bail by the
Court of the Appeals is not proper. Since the penalty
Q: FG was arrested without a warrant by policemen imposed is not death, reclusion perpetua nor life
while he was walking in a busy street. After imprisonment, A’s application for bail must be
preliminary investigation, he was charged with rape granted even though the grant of bail at this point in
and the corresponding information was filed in the time is discretionary to the Court of Appeals
RTC. On arraignment, he pleaded not guilty. Trial provided that there are no other circumstances
on the merits ensued. The court rendered judgment present under the statute to deny the his bail
convicting him. On appeal, FG claims that the application.
judgment is void because he was illegally arrested. 2. As a general rule, an appeal taken by one or more
If you were the Solicitor General, counsel for the of several accused shall not affect those who did not
People of the Philippines, how would you refute appeal. However, since the decision of the Court of
said claim? (2000) Appeals is favourable, B and C will be benefitted to
the decision rendered by the Court of Appeals.
A: If I were the Solicitor General, I would invoke the
case of People of the Philippines vs Nelson Palma y Q: If an information was filed in the RTC-Manila
Hangad G.R. No. 189279, March 9, 2010 wherein the charging D with homicide and he was arrested in
Supreme Court held that an accused is estopped Quezon City, in what court or courts may he apply
from assailing the legality of his arrest if he fails to for bail? Explain. (2002)
raise this issue, or to move for the quashal of the
information against him on this ground, before A: Under Sec. 17 (a) of Rule 114, bail in the amount
arraignment. Here, FG was arraigned, entered a plea fixed may be filed with the court where the case is
of not guilty and actively participated in his trial. He pending, or in the absence or unavailability of the
raised the issue of the irregularity of his arrest only judge thereof, with any regional trial judge,
during his appeal to the Court of Appeals. He is, metropolitan trial judge, municipal trial judge, or
therefore, deemed to have waived such alleged municipal circuit trial judge in the province, city or
defect by submitting himself to the jurisdiction of municipality. If the accused is arrested in a province,
the court through his plea during the arraignment, city or municipality other than where the case is
by actively participating in the trial, and by not pending, bail may also be filed with any regional trial
raising the objection before his arraignment. court of said place, of if no judge thereof is available,
with any metropolitan trial judge, municipal trial
Bail judge, or municipal circuit trial judge therein.
Therefore, D may apply for bail in the RTC-Manila or
Q: D was charged with murder, a capital offense. RTC-Quezon City or in any other courts provided
After arraignment, he applied for bail. The trial above.
court ordered the prosecution to present its
evidence in full on the ground that only on the basis Q: In what forms may bail be given? (1999)
of such presentation could it determine whether
the evidence of D’s guilt was strong for purposes of A: Bail may be given in the following forms:
bail. Is the ruling correct? Why? (2002)
1. Corporate Surety
A: The ruling is not correct. The prosecution is only a. An obligation under seal given by the accused
required to present as much evidence as is necessary with one or more sureties and made payable to
to determine whether the evidence as is necessary the proper officer with the condition to be void
to determine whether the evidence of D’s guilt is upon performance by the accused of such acts
strong for purposes of bail. (UPLC 2008 edition) as he may be legally required to perform;

Q: In an information charging them of Murder, b. The accused goes to an authorized bonding


policemen A, B and C were convicted of Homicide. company and he will pay a premium for the

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

service which is a percentage of the total 4. Recognizance


amount of bail. The bonding company will then a. An obligation of record, entered into before
go to the court and execute an undertaking, or some court or magistrate duly authorized to
“security bond” in the amount of the bail bond take it with the condition to do some particular
in behalf of the accused, that if the accused is act. It is and undertaking of a disinterested
needed, the bonding company will bring him person with high credibility wherein he will
before the court; execute an affidavit of recognizance to the
effect that when the presence of the accused is
c. If the accused jumps bail, the bond will be required in court, the custodian will bring him to
cancelled and the bonding company will be that court.
given sufficient time to locate the whereabouts
of the accused who posted bail but later on b. This is allowed for light felonies only.
jumps on bail. Notice to bonding company is
notice to the accused. Notice is usually sent to Q; When the accused is entitled as a matter of right
the bonding company in order to produce the to bail, may the Court refuse to grant him bail on
body of the accused. the ground that there exists a high degree of
probability that he will abscond or escape? Explain
2. Property bond (1999)
a. The title of the property will be used as
security for the provisional liberty of the A: Where bail is a matter of right and prior
accused which shall constitute a lien over the absconding and forfeiture is not excepted from such
property; right, bail must be allowed irrespective of such
circumstance. The existence of a high degree of
b. The accused shall cause the annotation of the probability that the defendant will abscond confers
lien within 10 days after the approval of the upon the court no greater discretion than to
bond before the: increase the bond to such an amount as would
reasonably tend to assure the presence of the
i. Registry of Deeds if the property is defendant when it is wanted, such amount to be
registered; or subject, of course, to the other provision that
ii. Registry Book in the Registry of Deed of excessive bail shall not be required. (San Miguel vs.
the place where the land lies and before the Maceda A.M. No. RTJ-03-1749, April 4, 2007)
provincial, city or municipal assessor on the
corresponding tax declaration if property is Q: When is bail a matter of right and when is it a
not registered. matter of discretion? (1999 and 2006)

c. The person who undertakes the conditions of A:


a regular bond will be the custodian of the 1. Bail is a matter of right
accused during the time that he is under a. Before or after conviction by the metropolitan
provisional liberty. and municipal trial court
b. Before conviction by the RTC of an offense
3. Cash deposit/Cash bond not punishable by death, reclusion perpetua or
a. It is deposited by the accused himself or any life imprisonment; and.
person acting in his behalf; c. Before conviction by the RTC of an offense
punishable by death, reclusion perpetua or life
b. Cash shall be in the amount fixed by the court imprisonment provided that the evidence of
or recommended by the prosecutor who guilt is not strong
investigated the case; 2. Bails is a matter of discretion upon conviction by
the RTC of an offense not punishable by death,
c. It is to be deposited before the: reclusion perpetua or life imprisonment
i. Nearest collector of internal revenue
ii. Provincial, city or municipal treasurer; or Q: May the Court require a witness to post bail?
iii. Clerk of court where the case is pending; Explain your answer (1999)

d. No further order from the court is necessary A: While the rule is that bail does not apply to a
for the release of the accused if the conditions person who is not in custody of the law, the bail
prescribed were complied with; required to secure the appearance of a material
witness constitutes an exception to the rule because
e. If the accused does not appear when he may be ordered to post bail even if he is not
required, the whole amount of the cash bond under detention. Bail may thus be required o
will be forfeited in favour of the government guarantee the appearance of a material witness
and the accused will now be arrested. other than that of the accused (Riano, Criminal
Procedure 2011 ed.)

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

Prejudicial Question Pre-trial Agreement

Q: What is a prejudicial question? (1999) Q: Mayor TM was charged of malversation through


falsification of official documents. Assisted by Atty.
A: A prejudicial question is an issue involved in a civil OP as counsel de parte during pre-trial, he signed
action which is similar or intimately related to the together with Ombudsman Prosecutor TG a “Joint
issue raised in a criminal action, the resolution of Stipulation of Facts and Documents,” which was
which determines whether or not the criminal action presented to the Sandiganbayan. Before the court
may proceed. could issue a pre-trial order but after some delay
caused by Atty. OP, he was substituted by Atty. QR
Q: CX is charged with estafa in court for failure to as defense counsel. Atty. QR as defense counsel.
remit to MM sums of money collected by him (CX) Atty. QR forthwith filed a motion to withdraw the
for MM in payment for goods purchased from MM, “Joint Stipulation”alleging that it is prejudicial to
by depositing the amounts in his (CX’s) personal the accused because it contains, inter alia, the
bank account. CX files a motion to suspend statement that the “Defense admitted all the
proceedings pending resolution of a civil case documentary evidence of the Prosecution,” thus
earlier filed in court by CX against MM for leaving the accused little or no room to defend
accounting and damages involving the amounts himself, and violating his right against self-
subject of the criminal case. As the prosecutor in incrimination. Should the court grant or deny QR’s
the criminal case, briefly discuss your grounds in motion? Reason. (2004)
support of your opposition to the motion to
suspend proceedings. (2000) A: The court should deny QR’s motion. If in the pre-
trial agreement signed by the accused and his
A: As the prosecutor, I will argue that the motion to counsel, the accused admits the documentary
suspend is not in order for the following reasons: evidence of the prosecution, it does not violate his
1. The civil case filed by CX against MM for right against self-incrimination. His lawyer cannot
accounting and damages does not involve an file a motion to withdraw. A pre-trial order is not
issue similar to or intimately related to the issue needed. The admission of such documentary
of estafa raised in the criminal action. evidence is allowed by the rule (UPLC, 2008 edition).
2. The resolution of the issue in the civil case for
accounting will not determine whether or not Q: Give three distinctions between a pre-trial in a
the criminal action for estafa may proceed. criminal case and a pre-trial in a civil case.
(UPLC, 2008 edition)
A: Three distinctions between a pre-trial in a criminal
Q: A allegedly sold to B a parcel of land which A case and a pre-trial in a criminal case and a pre-trial
later also sold to X. B brought a civil action for in a civil case are as follows:
nullification of the second sale and asked that the
sale made by A in his favour be declared valid. A 1. The pre-trial in a criminal case is conducted
theorized that he never sold the property to B and only “where the accused and counsel agree”
his purported signatures appearing in the first deed while the pre-trial in a civil case is mandatory.
of sale were forgeries. Thereafter, an Information 2. The pre-trial in a criminal case does not
for estafa was filed against A based on the same consider the possibility of a compromise, which
double sale that was the subject of the civil action. is one important aspect of the pre-trial in a civil
A filed a “Motion for Suspension of Action” in the case.
criminal case, contending that the resolution of the 3. In a criminal case, a pre-trial agreement is
issue in the civil case would necessarily be required to be reduced to writing and signed by
determinative of his guilt or innocence. Is the the accused and his counsel; while in a civil case,
suspension of the criminal (1999) the agreement may be contained in the pre-trial
order.
A: Yes. The suspension of the criminal action is in
order because the defense of A in the civil action, Demurrer to Evidence
that he never sold the property to B and that his
purported signatures in the first deed of sale were Q: AX, a Makati-bound paying passenger of PBU, a
forgeries, is a prejudicial question the resolution of public utility bus, died instantly on board the bus
which is determinative of his guilt or innocence. If on account of the fatal head wounds he sustained
the first sale is null and void, there would be no as a result of the strong impact of the collision
double sale and A would be innocent of the offense between the bus and a dump truck that happened
of estafa (UPLC, 2008 edition) 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 TY’s action against
the subject common carrier for breach of contract

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

of carriage. After TY had rested his case, the


common carrier filed a demurrer to evidence, Was the court correct in preventing Carlos from
contending that plaintiff’s evidence is insufficient presenting his evidence and rendering judgment on
because it did not show (1) that defendant was the basis of the evidence for the prosecution?
negligent and (2) that such negligence was the Why? (2001)
proximate cause of the collision. Should the court
grant or deny defendant’s demurrer to evidence? A: The court is correct in preventing Carlos from
Reason briefly (2004) presenting his evidence and rendering judgment on
the basis of the evidence for the prosecution. As the
A: No. The court should not grant defendant’s Supreme Court said in the case of Hun Hyung Park vs
demurrer to evidence because the case is for breach Eung Won Choi, G.R. No. 165496, February 12, 2007,
of contract of carriage. Proof that the defendant was when a demurrer to evidence is filed without leave
negligent and that such negligence was the of court, the whole case is submitted for judgment
proximate cause of the collision is not required on the basis of the evidence for the prosecution as
(UPLC, 2008 edition). the accused is deemed to have waived the right to
present evidence. At that juncture, the court is
Q: Facing a charge of murder, X filed a petition for called upon to decide the case including its civil
bail. The petition was opposed by the prosecution aspect, unless the enforcement of the civil liability by
but after hearing the court granted bail to X. On the a separate civil action has been waived.
first scheduled hearing on the merits, the
prosecution manifested that it was not adducing Q: The information for illegal possession of firearm
additional evidence and that it was resting its case. filed against the accused specifically alleged that he
X filed a demurrer to evidence without leave of had no license or permit to possess the calibre .45
court but it was denied by the court. pistol mentioned therein. In it evidence-in-chief,
the prosecution established the fact that the
1. Did the court have the discretion to deny the subject firearm was lawfully seized by the police
demurrer to evidence under the circumstances from the possession of the accused, that is, while
mentioned above? the pistol was tucked at his waist in plain view,
2. If the answer to the preceding question is in the without the accused being able to present any
affirmative, can X adduce evidence in his defense license or permit to possess the firearm. The
after the denial of his demurrer to evidence? prosecution on such evidence rested its case and
3. Without further proceeding and on the sole basis within a period of five days therefrom, the accused
of the evidence of the prosecution, can the court filed a demurrer to evidence, in sum contending
legally convict X for murder? (1998) that the prosecution evidence has not established
the guilt of the accused beyond reasonable doubt
A: and so prayed that he be acquitted of the offense
1. The court had the discretion to deny the demurrer charged. The trial court denied the demurrer to
to evidence. Although the evidence needed in the evidence and deemed the accused as having
bail proceedings is to establish that the evidence of waived his right to present evidence and submitted
guilt of X is strong, it could be sufficient in convicting the case for judgment on the basis of the
X for murder in the main case since the evidence prosecution evidence. In due time, the court
adduced in the bail proceedings may be used in the rendered judgment finding the accused guilty of the
main case of murder. offense charged beyond reasonable doubt and
accordingly imposing on him the penalty prescribed
2. X could no longer adduce his defense because one therefor. Is the judgment of the trial court valid and
of the effects of filing a demurrer to evidence proper? Reason. (2004)
without leave of court is that the accused could no
longer allowed to present his evidence to prove his A: Yes. The judgment of the trial court is valid. The
innocence as it constitute as waiver of it and accused did not ask for leave of court to file the
submitting the case for judgment. However, the demurrer to evidence. He is deemed to have waived
court should inquire why would the accused would his right to present evidence. However, the
file a demurrer to evidence without leave of court judgment is not proper or is erroneous because
and ask the counsel if he knew the consequences of there was no showing from the proper office like the
his acts. Firearms Explosive Unit of the Philippine National
Police that the accused has a permit to own or
Q: Carlos, the accused in a theft case, filed a possess the firearm, which fatal to the conviction of
demurrer to evidence without leave of court. The the accused. (UPLC, 2008 edition)
court denied the demurrer to evidence and Carlos
moved to present his evidence. The court denied Dismissal and Double Jeopardy
Carlos’ motion to present evidence and instead
judgment on the basis of the evidence for the Q: When a criminal case is dismissed on nolle
prosecution. prosequi, can it later be refilled? (2003)

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

A: Galvez v. Court of Appeals, 237 SCRA 685, ruled placed him twice in jeopardy. Acceding to this
that as a general rule, when a criminal case is motion, the court again dismissed the case. The
dismissed on nolle prosequi before the accused is prosecutor then filed an information in the RTC,
placed on trial and before he is called to plead, this is charging D with direct assault based on the same
not equivalent to an acquittal and does not bar a facts alleged in the information for slight physical
subsequent prosecution for the same offense. injuries out of resentment for what the
complainant had done in the performance of his
Q: Before the arraignment for the crime of murder, duties as chairman of the board of election
the private complainant executed an Affidavit of inspectors. D moved to quash the second
Desistance stating that she was not sure if the information on the ground that its filing had placed
accused was the man who killed her husband. The him in double jeopardy. How should D’s motion to
public prosecutor filed a Motion to Quash the quash be resolved? (2002)
Information on the ground that with private
complainant’s desistance, he did not have evidence A: D’s motion to quash should be granted on the
sufficient to convict the accused. On 02 January ground of double jeopardy because the first offense
2001, the court without further proceedings charged is necessarily included in the second offense
granted the motion and provisionally dismissed the charged (Draculan v. Donato, 140 SCRA 425).
case. The accused gave his express consent to the
provisional dismissal of the case. The offended EVIDENCE
party was notified of the dismissal but she refused
to give her consent. Q: Explain briefly whether the RTC may, motu
proprio, take judicial notice of:
Subsequently, the private complainant urged the
public prosecutor to refile the murder charge 1. The street name of methamphetamine hydro-
because the accused failed to pay the chloride is shabu.
considerations which he had promised for the 2. Ordinances approved by the municipalities under
execution of the Affidavit of Desistance. The public its territorial jurisdiction;
prosecutor obliged and refilled the murder charge 3. Foreign laws;
against the accused on 01 February 2003, the 4. Rules and Regulations issued by the quasi-judicial
accused filed a Motion to Quash the Information on bodies implementing statutes;
the ground that the provisional dismissal of the 5. Rape may be committed even in public places.
case had already become permanent. (2005)

a. Was the provisional dismissal of the case proper A:


b. Resolve the Motion to Quash (2003) 1. The RTC may motu proprio take judicial notice of
the street name of methamphetamine hydrochloride
A: is shabu, considering the chemical composition of
a. The provisional dismissal of the case was proper shabu (People v. Macasling, GM, No. 90342, May 27,
because the accused gave his express consent 1993)
thereto and the offended party was notified. It was
not necessary for the offended party to give her 2. In the absence of statutory authority, the RTC may
consent thereto. (Sec. 8 of Rule 117) not take judicial notice of ordinances approved by
the municipalities under their territorial jurisdiction,
b. The motion to quash the information should be except on appeal from the municipal trial courts,
denied because, while the provisional dismissal had which already took judicial notice of the ordinance.
already become permanent, the prescriptive period (U.S. v. Blanco, G.R.No.12435, November 9, 1917; US
for filing the murder charge had not prescribed. v. Hernandez, G.R. No. 9699, August 26, 1915).
There was no double jeopardy because the first case
was dismissed before the accused had pleaded to 3. The RTC may generally take judicial notice of
the charge (Sec.7 of Rule 117). foreign laws (In re Estate of Johnson, G.R. No. 12767,
November 16, 1918; Fluemer v. Hix, G.R.No.32636,
Q: D was charged with slight physical injuries in the March 17,1930), which must be proved like any
MTC. He pleaded not guilty and went to trial. After other matter of fact except in few instances, the
the prosecution had presented its evidence, the court in the exercise of its sound judicial discretion,
trial court set the continuation of the hearing, the may take notice of foreign laws when the Philippine
prosecutor failed to appear, whereupon the court, courts are evidently familiar with them, such as the
on motion of D, dismissed the case. A few minutes Spanish Civil Code, which had taken effect in the
later, the prosecutor arrived and opposed the Philippines and other allied legislation (Pardo v.
dismissal of the case. The court reconsidered its Republic, G.R. No. L-2248 January 23, 1950; Delgado
order and directed D to present his evidence. v. Republic, G.R.No. L-2546, January 28, 1950)
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

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

4. The RTC may take judicial notice of Rules and Orient Airlines v. C ourt of Appeals, 241 SCRA 192;
Regulations issued by quasi-judicial bodies Moran, Vol. 6, p. 34,1980 Edition; Lim v. Collector of
implementing statutes, because they are capable of Customs, 36 Phil.472).
unquestionable demonstration (Chattamal v.
Collector of Customs, G.R. No. 16347, November 3, Admissibility
1920), unless the law itself considers such rules as an
integral part of the statute, in which case judicial Q: May a private document be offered, and
notice becomes mandatory. admitted in evidence both as documentary
evidence and as object evidence? Explain. (2005)
5. The RTC may take judicial notice of the fact that
rape may be committed even in public places. The A: Yes, it can be considered as both documentary
“public setting” of rape is not an indication of and object evidence. Objects as evidence are those
consent (People v. Tongson, G.R. No. 91261, Feb 18, addressed to the senses of the court (Rule 130, Sec.
1991) The Supreme Court has taken judicial notice of 1) while a documentary evidence consists of
the fact that a man overcome by perversity and writings or any material containing letters, words,
beastly passion chooses neither the time, place, numbers, figures, symbols or other modes of
occasion not victim (People v. Barcelona, G.R. No. written expressions, offered as proof of their
82589, October 31, 1990). contents (Rule 130, Sec. 2). Hence, a private
document may be presented either as an object
Q: evidence in order to establish certain physical
a. Give three instances when a Philippine court can evidence or characteristics that are visible on the
take judicial notice of a foreign law. paper and writings that comprise the document or as
b. How do you prove a written law? documentary evidence to present and prove the
c. Suppose a foreign law was pleaded as part of the contents thereof.
defense of defendant but no evidence was
presented to prove the existence of said law, what Q: At the trial of Ace for violation of the
is the presumption to be taken by the court as to Dangerous Drugs Act, the prosecution offers in
the wordings of said law? (1997) evidence a photocopy of the marked P100.00
bills used in the “buy-bust” operation. Ace
A: objects to the introduction of the photocopy on
a. The three instances when a Philippine court can the ground that the Best Evidence Rule
take judicial notice of a foreign law are: prohibits the introduction of secondary evidence
1.) when the Philippine courts are evidently in lieu of the original.
familiar with the foreign law (Moran Vol 5, p.34, a) Is the photocopy real (object) evidence
1980 Edition); or documentary evidence?
2.) when the foreign law refers to the law of b) Is the photocopy admissible in evidence? (1994)
nations (Rule 129, Sec 1)
3.) when it refers to a published treatise, A:
periodical or pamphlet on the subject of law if a) The photocopy of the marked bills is real (object)
the court takes judicial notice of the fact that evidence not documentary evidence, because the
the writer thereof is recognized in his profession marked bills are not presented to prove its
or calling as expert on the subject (Rule 130, Sec contents.
46)
b) Yes, the photocopy is admissible in evidence,
b. A written foreign law may be evidenced by an because the best evidence rule does not apply
official publication thereof or by a copy attested by to object or real evidence.
the officer having the legal custody of the record, or
by his deputy, and accompanied. If the record is not Q: Give the reasons underlying the adoption of
kept in the Philippines, with a certificate that such thefollowing rules of evidence:
officer has the custody , if the office in which the (a) Dead Man Rule
record is kept is in a foreign country, the certificate (b) Parol Evidence Rule
may be made by a secretary of the embassy or (c) Best Evidence Rule
legation, consul general, consul, vice-consul, or (d) The rule against the admission of illegally
consular agent or by any officer in the foreign service obtained extrajudicial confession
of the Philippines stationed in the foreign country in (e) The rule against the admission of an offer of
which the record is kept, and authenticated by the compromise in civil cases (1997)
seal of his office (Rule 132, Sec 24,; Zalamea v. CA,
228 SCRA 23) A: The reasons behind the following rules are as
follows:
c. The presumption is that the wordings of the
foreign law are the same as the local law. This is (a) DEAD MAN RULE: if death has closed the lips of
known as the processual presumption (Northwest one party, the policy of the law is to close the lips

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QUESTIONS ASKED MORE THAN ONCE IN THE BAR


QuAMTO (1993-2006)

of the other (Goni v. Court ofAppeals, L-77434. No.116720, October 2, 1997)


September 23, 1986, 144 SCRA 222). This is to
prevent the temptation to perjury because death 2. The sworn statement is not admissible in evidence
has already sealed the lips of the party. because it was taken without informing him of his
custodial rights and without the assistance of counsel
(b) PAROL EVIDENCE RULE: It is designed to give which should be independent and competent and
certainty to a transaction which has been reduced to preferably of the choice of the accused (People v.
writing, because written evidence is much more Januario, 267 SCRA 608)
certain and accurate than that which rests on
fleeting memory only. (Francisco, Rules of Court Vol. 3. The waiver of his right to counsel is not admissible
VII, Part I. p. 154 because it was made without the assistance of
counsel of his choice (People v. Gomez, 270 SCRA
(c) BEST EVIDENCE RULE: This Rule is 433).
adopted for the prevention of fraud and is declared
to be essential to the pure administration of justice Q: Acting on a tip by an informant, the police
(Moran, Vol. 5, p. 12). If a party is in possession of officers stopped a car being driven by D and
such evidence and withholds it, the presumption ordered him to open the trunk. The officers found
naturally arises that the better evidence is a bag containing several kilos of cocaine. They
withheld for fraudulent purposes (Francisco, Rules seized the car and the cocaine as evidence and
of Court, vol. VII. Part I, pp, 121,122). placed D under arrest. Without advising him of his
right to remain silent and to have the assistance
(d) An illegally obtained extrajudicial confession of an attorney, they questioned him regarding
nullifies the intrinsic validity of the confession and the cocaine. In reply, D said, “I don’t know
renders it unreliable as evidence of the truth. anything about it. It isn’t even my car.” D was
(Moran, vol. 5, p. 257) it is the fruit of a poisonous charged with illegal possession of cocaine,
tree. a prohibited drug. Upon motion of D, the
court suppressed the use of cocaine as
(e) The reason for the rule against the admission evidence and dismissed the charges against
of an offer of compromise in civil case as an him. D commenced proceedings against the
admission of any liability is that parties are police for the recovery of his car. In his direct
encouraged to enter into compromises. Courts examination, D testified that he owned the car
should endeavor to persuade the litigants in a but had registered it in the name of a friend for
civil case to agree upon some fair compromise. convenience. On cross-examination, the attorney
(Art. 2029, Civil Code). During pre-trial, courts representing the police asked, “After your
should direct the parties to consider the possibility arrest, did you not tell the arresting officers
of an amicable settlement (Rule 16, Sec. 2[a]). that it wasn’t your car?” If you were D’s
attorney, would you object to the question? Why?
Q: The barangay captain reported to the police (2002)
that X was illegally keeping in his house in the
barangay an Armalite M16 rifle. On the strength of A: Yes, because his admission made when he was
that information, the police conducted a search of questioned after he was placed under arrest was
the house of X and indeed found said rifle. The in violation of his constitutional right to be
police raiders seized the rifle and brought X to the informed of his right to remain silent and to have
police station. During the investigation, he competent and independent counsel of his own
voluntarily signed a Sworn Statement that he choice. Hence, it is inadmissible in evidence (Art.
waspossessing said rifle without license or III, Sec. 12, 1987 Constitution; R.A. 7438, Sec, 2;
authority to possess, and a Waiver of Right to People v. Mahinay, 302 SCRA 455).
Counsel. During the trial of X for illegal possession
of firearm, the prosecution submitted in evidence Q: Sgt. GR of WPD arrested two NPA suspects,
the rifle. Sworn Statement and Waiver of Right to Max and Brix, both aged 22, in the act of
Counsel, individually rule on the admissibility in robbing a grocery in Ermita. As he handcuffed
evidence of the: them he noted a pistol tucked in Max's waist and a
1. Rifle; dagger hidden under Brix's shirt, which he
2. Sworn Statement; and promptly confiscated. At the police investigation
3. Waiver of Right to Counsel of X. (1998) room, Max and Brix orally waived their right to
counsel and to remain silent. Then under oath,
A: they freely answered questions asked by the
1. The rifle is not admissible in evidence because police desk officer. Thereafter they signed their
it was seized without a proper search warrant. A sworn statements before the police captain, a
warrantless search is not justified. There was time to lawyer. Max admitted his part in the robbery,
secure a search warrant (People v. Encinada G.R. his possession of a pistol and his ownership of

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the packet of shabu found in his pocket. Brix hospitalization expenses. After the filing of the
admitted his role in the robbery and his criminal case against A for serious physical injuries
possession of a dagger. But they denied being NPA through reckless imprudence. A’s insurance carrier
hit men. In due course, proper charges were filed offered to pay for the injuries and damages suffered
by the City Prosecutor against both arrestees by B. The offer was rejected because B considered
before the RTC. the amount offered as inadequate.
a. Is the offer by A to pay the hospitalization
May the written statements signed and sworn expenses of B admissible in evidence?
to by Max and Brix be admitted by the trial b. Is the offer b y A’s insurance carrier to pay for the
court as evidence for the prosecution? Reason. injuries and damages of B admissible in evidence?
(2004) (1997)

A: No. The sworn written statements of Max and A:


Brix may not be admitted in evidence, because a) The offer by A to pay the hospitalization
they were not assisted by counsel. Even if the expenses of B is not admissible in evidence to
police captain before whom they signed the prove his guilt in both the civil and criminal cases.
statements was a lawyer, he was not functioning as (Rule 130, Sec. 27, fourth par.).
a lawyer, and he cannot be considered as an
independent counsel. Waiver of the right to a (b) No. It is irrelevant. The obligation of the
lawyer must be done in writing and in the presence insurance company is based on the contract of
of independent counsel. insurance and is not admissible in evidence
against the accused because it was not offered by
Q: What are the requirements in order that an the accused but by the insurance company which is
admission of guilt of an accused during a custodial not his agent.
investigation be admitted in evidence? (2006)
Q: Linda and spouses Arnulfo and Regina Ceres
A: were co-owners of a parcel of land. Linda died
1. The admission must be voluntary. intestate and without any issue. Ten (10) persons
2. The admission must be in writing. headed by Jocelyn, claiming to be the collateral
3. The admission must be made with the relatives of the deceased Linda, filed an action for
assistance of competent, independent counsel. partition with the RTC praying for the segregation
4. The admission must be express of Linda’s ½ share, submitting in support of their
5. In case the accused waives his rights to petition the baptismal certificates of seven of the
silence and to counsel, such waiver must be in petitioners, a family bible belonging to Linda in
writing, executed with the assistance of which the names of the petitioners have been
competent, independent counsel. entered, a photocopy of the birth certificate of
Jocelyn, and a certification of the local civil
Q: A was accused of having raped X. Rule on the registrar that its office had been completely razed
admissibility of the following pieces of evidence: by fire. The spouses Ceres refused to partition on
1. an offer of A to marry X; and the following grounds:
2. a pair of short pants allegedly left by A at the
crime which the court, over the objection of A, 1) the baptismal certificates of the parish priest
required him to put on, and when he did, it fit are evidence only of the administration of the
him well. (1998) sacrament of baptism and they do not prove
filiation of the alleged collateral relatives of the
A: deceased;
1. A's offer to marry X is admissible in evidence as an 2) entry in the family bible is hearsay;
implied admission of guilt because rape cases are 3) the certification of the registrar on non-
not allowed to be compromised (Rule 130, Sec. 27; availability of the records of birth does not prove
People vs. Domingo, 226 SCRA 156.) filiation:
4) in partition cases where filiation to the deceased
2. The pair of short pants, which fit the accused is in dispute, prior and separate judicial
well, is circumstantial evidence of his guilt, although declaration of heirship in a settlement of estate
standing alone it cannot be the basis of proceedings is necessary; and
conviction. The accused cannot object to the court 5) there is need for publication as real property is
requiring him to put the short pants on. It is not involved. As counsel for Jocelyn and her co-
part of his right against self-incrimination because it petitioners, argue against the objections of the
is a mere physical act. spouses

Q: A, while driving his car, ran over B. A visited B at Ceres so as to convince the court to allow the
the hospital and offered to pay for his partition. Ceres so as to convince the court to allow
the partition. Discuss each of the five (5) arguments

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briefly but completely. (2000)


Q: What are the two kinds of objections? Explain
A: each briefly. Given an example of each. (1997)
1) The baptismal certificate can show filiation or
prove pedigree. It is one of the other means allowed A: The two kinds of objections are: (1) objection to
under the Rules of Court and special laws to show a question propounded in the course of the oral
pedigree (Trinidad v. Court of Appeals, 289 SCRA 188; examination of the witness and (2) objection to
Heirs of ILgnacio Conti v. Court of Appeals, 300 SCRA an offer of evidence in writing. Objection to a
345). question propounded in the course of the oral
examination of a witness shall be made as soon
(2) Entries in the family bible may be received as as the grounds therefor shall become reasonably
evidence of pedigree (Rule 130, Sec. 40). apparent otherwise, it is waived. An offer of
objection in writing shall be made within three (3)
(3) The certification by the civil registrar of the non- days after notice of the offer, unless a different
availability of records is needed to justify the period is allowed by the court. In both instances
presentation of secondary evidence, which is the the grounds for objection must be specified. An
photocopy of the birth certificate of Jocelyn. (Heirs of example of the first is when the witness is being
Ignacio Conti v. Court of Appeals, supra.) cross-examined and the cross examination is on a
matter not relevant. An example of the second is
(4) Declaration of heirship in a settlement that the evidence offered is not the best evidence
proceeding is not necessary. It can be made in the
ordinary action for partition wherein the heirs are Hearsay Evidence
exercising the right pertaining to the decedent, their
predecessor-in- interest, to ask for partition as co- Q: Romeo is sued for damages for injuries suffered
owners (Id.) by the plaintiff in a vehicular accident. Julieta, a
witness in court, testifies that Romeo told her
(5) Even if real property is involved, no publication is (Julieta) that he (Romeo) heard Antonio, a witness
to the accident, give an excited account of the
necessary, because what is sought is the mere
accident immediately after its occurrence. Is
segregation of Linda’s share in the property (Rule
Julieta’s testimony admissible against Romeo over
69, Sec. 1)
proper and timely objection? Why? (2002)
Q:
A: No, Julieta’s testimony is not admissible against
a) State the rule on the admissibility of an Romeo because it is considered hearsay. A witness
electronic evidence
can testify only to those facts which are derived
b) When is an electronic evidence regarded as from his own perception, except as otherwise
being the equivalent of an original document under provided in these rules. In the case at bar, the
the Best Evidence Rule? (2003) excited account of Antonio, a witness to the
accident, was to told Romeo, it was only Romeo who
A: told Julieta about it, which makes it hearsay (Rule
(a) Whenever a rule of evidence refers to the term 130, Sec. 36).
writing, document, record, instrument,
memorandum or any other form of writing, Q:
such term shall be deemed to include an a. Define hearsay evidence
electronic document as defined in these Rules. b. What is the hearsay rule?
(Sec. 1 of Rule 3, Rules of Electronic Evidence). c. A overheard B call X a thief. In an action for
defamation filed by X against B, is the testimony of
An electronic document is admissible in evidence if A offered to prove the fact of utterance i.e. that B
it complies with the rules on admissibility called X a thief, admissible in evidence? Explain.
prescribed by the Rules of Court and related d. The accused was charged with robbery and
laws and is authenticated in the manner homicide. The victim suffered several stab wounds.
prescribed by these Rules (Sec. 2 of Rule 3, Id.). It appears that 11 hours after the crime, while the
The authenticity of any private electronic victim was asked certain questions which he
document must be proved by evidence that it had answered, pointing to the accused as his assailant.
been digitally signed and other appropriate security His answers were put down in writing, but since he
measures have been applied (Sec. 2 of Rule 5, Id.). was in a critical condition, his brother and the
policeman signed the statement. Is the statement
(b) An electronic document shall be regarded as the admissible as dying declaration? Explain (1999)
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable A:
by sight or other means, shown to reflect the data a. Evidence is called hearsay when the probative
accurately (Sec. 1 of Rule 4). force of the truth of its contents depends, in whole

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or in part, on the competency and credibility of estate, upon a claim or demand against his estate as
some persons other than the witness by whom it is to any matter of fact occurring before Juan’s death
sought to produce it (Estrada v. Desierto, 356 SCRA (Rule 130, Sec. 23). Being a mere witness to the
108) transaction entered by Juan and Maximo, Mariano
can testify as to what he has observed.
b. The hearsay rule as stated in section 36 of Rule
130, is that, a witness can testify only to those facts Q: What are the requisites of dying declaration?
which he knows of his personal knowledge; that is, (1998)
which are derived from his own perception, except
as otherwise provided in the rules. A: The requisites for the admissibility of a dying
declaration are:
The exceptions to the hearsay rules are: (a) dying
1. That the declaration is one made by a dying
declaration, (b) declaration against interest, (c) act
person;
or declaration about pedigree, (d) family reputation
or tradition regarding pedigree, (e) common
2. That the declaration was made by said dying
reputation, (f) part of res gestae, (g) entries in the
person under a consciousness of his imminent
course of business, (h) entries in official records, (i)
death;
commercial lists and the like, (j) learned treatises,
and (k) testimony or deposition at a former
3. That the declaration refers to the cause and
proceeding (Rule 130, Secs. 37 to 47).
circumstance surrounding the death of the
declarant and not of anyone else;
c. Yes. The testimony of A who overheard B call X a
thief is admissible in evidence as an independently
4. That the declaration is offered in a case
relevant statement. It is offered in evidence only to
where the declarant’s death is the subject of
prove the tenor thereof, not to prove the truth of
inquiry (People v. Matito, 432 SCRA 617;
the facts asserted therein. Independently relevant
Geraldo v. People, G.R. No. 173608, November
statements include statements which are on the
20, 2008).
very facts in issue or those which are circumstantial
evidence thereof. The hearsay rule does not apply
5. The declarant is competent as a witness had
(People vs. Gaddi, 170 SCRA 649).
he survived (People v. Cerilla, 539 SCRA 251;
d. Yes. The statement is admissible as a dying Geraldo v. People, G.R. No. 173608, November
declaration if the victim subsequently died and his 20, 2008).
answers were made under the consciousness of
impending death (Rule 130, Sec. 37) The fact that he 6. The declarant should have died (Riano,
did not sign the statement point to the accused as Evidence, 2011 ed.)
his assailant, because he was in critical condition,
Q: X was charged with robbery. On the strength of
does not affect its admissibility as a dying
a warrant of arrest issued by the court, X was
declaration. A dying declaration need not be in
arrested by police operatives. They seized from his
writing (People v. Viovicente, 286 SCRA 1).
person a handgun. A charge for illegal possession of
Q: Maximo filed an action against Pedro, the firearm was also filed against him. In a press
administrator of the estate of deceased Juan, for conference called by the police, x admitted that he
the recovery of a car which is a part of the latter’s had robbed the victim of jewellery valued at
estate. During the trial, Maximo presented witness P500,000.00
Mariano who testified that he was present when
The robbery and illegal possession of firearm cases
Maximo and Juan agreed that the latter would pay
were tried jointly. The prosecution presented in
a rental of P20,000.00 for the use of Maximo’s car
evidence a newspaper clipping of the report to the
for one month after which Juan should immediately
reporter who was present during the press
return the car to Maximo. Pedro objected to the
conference stating that X admitted the robbery. It
admission of Mariano’s testimony.
likewise presented a certification of the PNP
If you were the judge, would you sustain Pedro’s Firearms and Explosive Office attesting that the
objection? Why? (2001) accused had no license to carry any firearm. The
certifying officer, however, was not presented as a
A: No, the testimony is admissible in evidence witness. Both pieces of evidence were objected to
because witness Mariano who testified as to what by the defense.
Maximo and Juan, the deceased person agreed
upon, is not disqualified to testify on the agreement. a. Is the newspaper clipping admissible in evidence
Those disqualified are parties or assignors of parties against X?
to a case, or persons in whose behalf a case is b. Is the certification of the PNP Firearm and
prosecuted, against the administrator or Juan’s Explosives Office without the certifying officer

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testifying on it admissible evidence against X? truthfulness of the testimony of the child. (Sec. 25,
(2003) Rule on Examination of a Child Witness).

A: Q:
a. Yes, the newspaper clipping is admissible in 1. Aside from asking a witness to explain and
evidence against X. Regardless of the truth or falsity supplement his answer in the cross-examination,
of a statement. The hearsay rule does not apply and can the proponent ask in re-direct examination
the statement may be shown where the fact that it is questions on matters not dealt with during cross-
made is relevant. Evidence as shown where the fact examination?
that it is made is relevant. Evidence as to the making 2. Aside from asking the witness on matters stated
of such statement is not secondary but primary for in his re-direct examination, can the opponent in
the statement itself may constitute a fact in issue or his re-cross-examination ask questions on matters
be circumstantially relevant as to the existence of not dealt with during the re-direct?
such fact (Gotesco Investment Corporation v. Chatto, 3. After plaintiff has formally submitted his
210 SCRA 18). evidence, he realized that he had forgotten to
present what he considered an important evidence.
b. Yes, the certification is admissible in evidence Can he recall a witness?
against X because a written statement signed by an (1997)
officer having the custody of an official record or by
his deputy that after diligent search no record or A:
entry of a specified tenor is found to exist in the 1. Yes, on redirect examination, questions on
records of his office, accompanied by a certificate as matters not dealt with during the cross-examination
above provided, is admissible as evidence that the may be allowed by the court in its discretion (Rule
records of his office contain no such record or entry 132, Sec. 7)
(Rule 132, Sec. 28)
2. Yes, the opponent in his re-cross-examination may
also ask questions on such matters as may be
Q: Distinguish Hearsay evidence and opinion allowed by the court in its discretion (Rule 132, Sec.
evidence (2004) 8)

A: Hearsay evidence is one that is not based on one’s 3. Yes, after formally submitting his evidence, the
personal perception but based on the knowledge of plaintiff can recall a witness with leave of court. The
others to prove the truth of the matter asserted in court may grant or withhold leave in its discretion as
an out-of-court declaration (Rule 130, Sec 36). the interests of justice may require (Rule 132, Sec. 9)
An opinion evidence is based on the personal
Q: Is this question on direct examination
knowledge or personal conclusions of the witness
objectionable: “What happened on July 12, 1999?”
based on his skill, training or experience (Rule 130,
Why? (2002)
Sec. 49).

Witnesses A: The question is objectionable because it has no


basis, unless before the question is asked the proper
Q: Distinguish competency of the witness and basis is laid (UPLC, 2008 ed.).
credibility of the witness (2004)
Q: As counsel of an accused charged with homicide,
A: Competency of the witness refers to a witness you are convinced that he can be utilized as a state
who can perceive, and perceiving, can make known witness. What procedure will you take? (2006)
his perception to others, while credibility of the
witness refers to a witness whose testimony is A: As counsel of an accused charged with homicide,
believable (UPLC, 2008). the procedure that can be followed for the accused
to be utilized as a state witness is to ask the
Q: When may the trial court order that the Prosecutor to recommend that the accused be made
testimony of a child be taken by live-link television? a state witness. It is the Prosecutor who must
Explain. (2005) recommend and move for the acceptance of the
accused as a state witness. The accused may also
A: The testimony of a child may be taken by live-link apply under the Witness Protection Program (UPLC,
television if there is a substantial likelihood that the 2008 ed.).
child would suffer trauma from testifying in the
presence of the accused, his counsel or the Q: X and Y were charged with murder. Upon
prosecutor as the case may be. The trauma must of a application of the prosecution, Y was discharged
kind which would impair the completeness or 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

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less offer it in evidence. Y testified that he and X 2. The doctrine of parental privilege cannot likewise
conspired to kill the victim but it was X who be invoked by W as against the testimony of C, their
actually shot the victim. The testimony of Y was the child. C may testify if he wants to although he may
only material evidence establishing the guilt f X. Y not be compelled to do so. Sec 25, Rule 130, Rules
was thoroughly cross-examined by the defense of Court provides: No person may be compelled to
counsel. After the prosecution rested its case, the testify against his parents, other direct ascendants,
defense filed a motion for demurrer to evidence children or other direct descendants. Further, Article
based on the following grounds. 215 of the Family Code states that no descendant
shall be compelled, in a criminal case, to testify
a. The testimony of Y should not be excluded against his parents, and grandparents, except when
because its purpose was not initially stated and it such testimony is indispensable in a crime, against
was not formally offered in evidence as required by descendant or by one parent against the other.
Sec 34, Rule 132 of the Revised Rules Of Evidence;
and 3. D, as doctor used to treat W, is disqualified to
b. Y’s testimony is not admissible against X testify against W over her objection as to any advice
pursuant to the rule on “res inter alios acta.” or treatment given by him or any information which
he may have acquired in his professional capacity.
Rule on the motion for demurrer to evidence on the Sec 24 (c), Rule 130, Rules of Court: A person
above grounds. (2003) authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent
A: The demurrer to evidence should be denied
of the patient, be examined as to any advice or
because:
treatment given by him or any information which he
a. The testimony of Y should not be excluded may have acquired in attending such patient in a
because the defense counsel did not object to his professional capacity, which information was
testimony despite the fact that the prosecutor forgot necessary to enable him to act in that capacity, and
to state its purpose or offer it in evidence. which would blacken the reputation of the patient
Moreover, the defense counsel thoroughly cross-
Q: Ody sued spouses Cesar and Baby for a sum of
examined Y and thus waived the objection.
money and damages. At the trial, Ody called Baby
as his first witness. Baby objected, joined by Cesar
b. The res inter alios acta applies only to extrajudicial
on the ground that she may not be compelled to
declarations and not to statements made in open
testify against her husband. Ody insisted and
court. Y testified as a witness and was in fact, cross-
contended that after all, she would just be
examined (Riano, Evidence 2011 ed.).
questioned about a conference that had with the
Privileged Communication barangay captain, a matter which is not
confidential in nature. The trial court ruled in favor
Q: C is the child of the spouses H and W. H sued his of Ody. Was the ruling proper? Will your answer be
wife for judicial declaration of nullity of marriage the same if the matters to be testified on were
under Article 36 of the Family Code. In the trial, the known to Baby or acquired by her prior to her
following testified over the objection of W: C, H and marriage to Cesar? Explain. (1989)
D, a doctor of medicine who used to treat W. Rule
on W’s objections which are the following: A: No. Under the Rules on Evidence, a wife cannot
be examined for or against her husband without his
1. H cannot testify against her because of the rule consent, except in civil cases by one against the
on marital privilege; other, or in a criminal case for a crime committed by
2. C caanot testify against her because of the one against the other. Since the case was filed by
doctrine on parental privilege; and Ody against the spouses Cesar and Baby, Baby
3. D cannot testify against her because of the cannot be compelled to testify for or against Cesar
Doctrine of Privileged Communication between without his consent (Lezama v. Rodriguez, 23 SCRA
patient and physician. (1998) 1166).

A: The answer would be the same if the matters to be


1. The rule of marital privilege cannot be invoked in testified on were known to Baby or acquired by her
the annulment case under Rule 36 of the Family prior to her marriage to Cesar, because the marital
Code because it is a civil case filed by one against the disqualification rule may be invoked with respect to
other. Sec. 22, Rule 130 of the Rules of Court testimony on any fact. It is immaterial whether such
provides that during their marriage, the husband nor matters were known to Baby before or after her
the wife may testify for or against the other without marriage to Cesar.
the consent of the affected spouse, except in a civil
case by one against the other or in a criminal case Q: Vida and Romeo are legally married. Romeo is
for a crime committed by one against the other or charged to court with the crime of serious physical
the latter’s direct descendants or ascendants. injuries committed against Selmo, son of Vida,

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stepson of Romeo. Vida witnessed the infliction of there, is an act totally alien to the harmony and
the injuries on Selmo by Romeo. Vida witnessed confidences of marital relation which the
the infliction of the injuries on Selmo by Romeo. disqualification primarily seeks to protect. The
The public prosecutor called Vida to the witness criminal act complained had the effect of directly
stand and offered her testimony as an eyewitness . and vitally impairing the conjugal relation. It
Counsel for Romeo objected on the ground of the underscored the fact that the marital and domestic
marital disqualification rule under the Rules of relations between her and the accused-husband
Court. have become so strained that there is no more
harmony, peace and tranquility to be preserved
a. Is the objection valid? (Alvarez v. Ramirez, 473 SCRA 72; Ordono v.
b. Will your answer be the same if Vida’s testimony Daquigan, 62 SCRA 270).
is offered in a civil case for recovery of personal
property filed by Selmo against Romeo? (2000) Offer of Evidence

A: Q: A trial court cannot take into consideration in


a. No. While neither the husband nor the wife may deciding a case an evidence that has not been
testify for or against the other without the consent “formally offered.” When are the following pieces
of the affected spouse, one exception is if the of evidence formally offered?
testimony of the spouse is in criminal case for a
crime committed by one against the other or the a. Testimonial Evidence
latter’s direct descendants or ascendants (Rule 130, b. Documentary Evidence
Sec 22). The case falls under this exception because c. Object Evidence (1997)
Selma is the direct descendant of the spouse Vida.
A:
b. No. The marital disqualification rule applies this a. Testimonial Evidence is formally offered at the
time. The exception provided by the rules is in a civil time the witness is called to testify (Rule 132, Sec.35,
case by one against the other. The case here involves first par.).
a case by Selmo for the recovery of personal
property against Vida’s spouse, Romeo. b. Documentary evidence is formally offered after
the presentation of the testimonial evidence (Rule
Q: Leticia was estranged from her husband Paul for 132, Sec 35, second paragraph).
more than a year due to his suspicion that she was
having an affair with Manuel their neighbor. She c. After the presentation of the testimonial evidence.
was temporarily living with her sister in Pasig City.
For unknown reasons, the house of Leticia’s sister
was burned, killing the latter. Leticia survived. She
saw her husband in the vicinity during the incident.
Later, he was charged with arson in an Information
filed with the Regional Trial Court, Pasig City.
During the trial, the prosecutor called Leticia to the
witness stand and offered her testimony to prove
that her husband committed arson. Can Leticia
testify over the objection of her husband on the
ground of marital privilege? (2006)

A: Yes, Leticia can testify over the objection of her


husband. As a general rule, neither the husband nor
the wife, during the marriage, may testify for or
against the other without the consent of the
affected spouse, except in a civil case by one against
the other, or in a criminal case by one against the
other or the latter’s direct descendants or
ascendants (Rule 130, Sec 22). In a number of cases,
however, it has been held that marital
disqualification is aimed at protecting the harmony
and confidences of marital relations; hence, where
the marital and domestic relations are so strained
that here is no more harmony to be preserved nor
peace and tranquility which may be disturbed, the
marital disqualification no longer applies.

The act of Paul in setting fire to the house of his


sister-in-law, knowing fully well that his wife was

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