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The Sigma Rho Fraternity

Bar Operations 2018


Bar Ques)ons and Answers
APPEALS ....................................................................23
Remedial Law Bar RULE 40 - APPEAL FROM MTC TO RTC .................. 25

Questions and An- RULE 43 - APPEALS FROM COURT OF TAX APPEALS


AND QUASI-JUDICIAL AGENCIES TO THE COURT OF

swers (1995-2017) TAX APPEALS .........................................................25


RULE 47 - ANNULMENT OF JUDGMENTS OR FINAL
Table of Contents ORDERS AND RESOLUTIONS .................................25
CIVIL PROCEDURE ...........................................................2
RULE 52 - MOTION FOR RECONSIDERATION ......... 26
GENERAL PRINCIPLES ..................................................2
PROCEDURE IN THE SUPREME COURT ......................26
JURISDICTION ..............................................................4
RULE 56 - ORIGINAL CASES/APPEALED CASES ......26
CIVIL ACTION ...............................................................7
PROVISIONAL REMEDIES ...........................................26
RULE 2 - CAUSE OF ACTION .........................................7
RULE 57 - PRELIMINARY ATTACHMENT .................27
RULE 3 - PARTIES TO CIVIL ACTIONS ............................7
RULE 58 - PRELIMINARY INJUNCTION ...................27
RULE 4 - VENUE ...........................................................8
RULE 60 - REPLEVIN ..............................................28
RULE 6 - KINDS OF PLEADINGS ....................................9
SPECIAL CIVIL ACTIONS ............................................. 28
RULE 7 - PARTS OF A PLEADING ................................ 10
RULE 62 - INTERPLEADER ......................................28
RULE 9 - EFFECT OF FAILURE TO PLEAD ....................10
RULE 63 - DECLARATORY RELIEF ............................28
RULE 10 - AMENDED AND SUPPLEMENTAL PLEAD-
RULE 64 - REVIEW OF JUDGMENTS AND FINAL OR-
INGS ..........................................................................12
DERS OR RESOLUTIONS OF THE COMMISSION ON
RULE 12 - MOTION FOR BILL OF PARTICULARS ......... 12 ELECTIONS AND THE COMMISSION ON AUDIT ..... 29
RULE 13 - FILING AND SERVICE OF PLEADINGS, RULE 65 - CERTIORARI, PROHIBITION AND MAN-
JUDGMENTS AND OTHER PAPERS .............................13 DAMUS ..................................................................29
RULE 14 - SUMMONS ................................................13 RULE 66 - QUO WARRANTO ..................................33
RULE 17 - DISMISSAL OF ACTIONS ............................18 RULE 67 - EXPROPRIATION .................................... 33
RULE 18 - PRE-TRIAL ..................................................18 RULE 68 - FORECLOSURE OF REAL ESTATE MORT-
RULE 19 - INTERVENTION ..........................................19 GAGE .....................................................................34
RULE 23 - DEPOSITIONS PENDING ACTION ...............19 RULE 69 - PARTITION ............................................. 35
RULE 25 - INTERROGATORIES TO PARTIES .................19 RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DE-
TAINER ................................................................... 35
RULE 26 - REQUEST FOR ADMISSION ........................20
RULE 71 - CONTEMPT ...........................................37
RULE 29 - REFUSAL TO COMPLY WITH MODES OF DIS-
COVERY .....................................................................20 LOCAL GOVERNMENT CODE .....................................38
RULE 30 - TRIAL .........................................................20 RULE ON SMALL CLAIMS CASES ................................ 39
RULE 34 - JUDGMENT ON THE PLEADINGS ...............21 SPECIAL PROCEEDINGS .................................................39
RULE 37 - NEW TRIAL OR RECONSIDERATION ...........22 IN GENERAL ............................................................... 39
RULE 39 - EXECUTION, SATISFACTION, AND EFFECT OF SETTLEMENT OF ESTATE ............................................40
JUDGMENTS ..............................................................22 ESCHEAT ....................................................................45

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Bar Ques)ons and Answers
GUARDIANSHIP .........................................................45 OBJECT EVIDENCE .....................................................87
HABEAS CORPUS .......................................................46 BEST EVIDENCE RULE / SECONDARY EVIDENCE ........88
WRIT OF AMPARO .....................................................48 PAROL EVIDENCE RULE ............................................. 90
WRIT OF HABEAS DATA ............................................. 49 DOCUMENTARY EVIDENCE ........................................90
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES .. TESTIMONIAL EVIDENCE ...........................................90
49 QUALIFICATION .........................................................90
CHANGE OF NAME ....................................................50 TESTIMONIAL PRIVILEGE ...........................................92
CANCELLATION/CORRECTION OF ENTRIES ...............50 ADMISSIONS AND CONFESSIONS ..............................94
RECOGNITION OF FOREIGN JUDGMENT ...................52 RES ILIOS ACTA/ EXCEPTIONS TO RES ILIOS ACTA ..... 96
APPEALS ....................................................................52 PREVIOUS CONDUCT .................................................96
RECEIVER ................................................................... 53 OPINION ....................................................................98
CRIMINAL PROCEDURE .................................................53 CHARACTER ............................................................. 101
IN GENERAL ............................................................... 53 RULE 131 - BURDEN OF PROOF AND PRESUMPTIONS ..
VENUE .......................................................................54 101
JURISDICTION ............................................................54 RULE 132 - PRESENTATION OF EVIDENCE ...............102
RULE 110 - PROSECUTION OF OFFENSES .................. 54 EXAMINATION OF WITNESSES ............................102
RULE 111 - PROSECUTION OF CIVIL ACTION .............58 AUTHENTICATION AND PROOF OF DOCUMENTS 103
RULE 112 - PRELIMINARY INVESTIGATION ................61 OFFER AND OBJECTION ....................................... 104
RULE 113 - ARREST ....................................................62 RULE 133 - WEIGHT AND SUFFICIENCY OF EVIDENCE ..
RULE 114 - BAIL .........................................................65 106

RULE 115 - RIGHTS OF THE ACCUSED ....................... 68 RULE 141 –LEGAL FEES ............................................106

RULE 116 - ARRAIGNMENT AND PLEA ......................71


CIVIL PROCEDURE
RULE 117 - MOTION TO QUASH ................................ 72
RULE 118 - PRE-TRIAL ................................................76 GENERAL PRINCIPLES
(a) What is the doctrine of hierarchy of courts? (2%) ’17 – Q4
RULE 119 - TRIAL .......................................................76 SUGGESTED ANSWER
(a) The doctrine of hierarchy of courts, as a rule, requires
RULE 120 - JUDGMENT ............................................. 79 that recourse must be first made to the lower-ranked
courts exercising concurrent jurisdiction with a higher
RULE 122 - APPEALS ..................................................81 court (Dio v. Subic Bay Marine Exploration, Inc., G.R. No.
189532, June 11, 2014).
RULE 126 - SEARCH AND SEIZURE .............................81
The Labor Arbiter, ruling on a purely legal question, ordered
a worker’s reinstatement and this ruling was affirmed on appeal
RULE 127 - PROVISIONAL REMEDIES IN CRIMINAL by the NLRC whose decision, under the Labor Code, is final. The
CASES ........................................................................ 84 company’s recourse under the circumstances is to __________.
(1%) ’13 – Q20
(A) file a motion for reconsideration and if denied, file a peti-
EVIDENCE ......................................................................85 tion for review with the Court of Appeals on the pure legal ques-
tion the case presents.
IN GENERAL ............................................................... 85 (B) file a motion for reconsideration and if denied, appeal to
the Secretary of Labor since a labor policy issue is involved.
RULE 129 - WHAT NEED NOT BE PROVED .................85 (C) file a motion for reconsideration and if denied, file a peti-
tion for certiorari with the Court of Appeals on the ground of
RULE 130 - RULES OF ADMISSIBILITY ........................86 grave abuse of discretion by the NLRC.

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(D) file a motion for reconsideration and if denied, file a peti- Furthermore, the Supreme Court rules in the Balisacan
tion for review on certiorari with the Supreme Court since a pure case that a plea of guilty is an unconditional admission of guilt
question of law is involved. with respect to the offense charged. It forecloses the right to de-
(E) directly file a petition for certiorari with the Court of Ap- fend oneself from said charge and leaves the court with no alter-
peals since a motion for reconsideration would serve no purpose native but to impose the penalty fixed by law under the circum-
when a pure question of law is involved. stances. Since Juancho was only allowed to testify in order to
SUGGESTED ANSWER: (C) file a motion for reconsideration and establish mitigating circumstances for the purposes of fixing the
if denied, file a petition for certiorari with the Court of Appeals on the penalty, his testimony, thus, could not be taken as a trial on the
ground of grave abuse of discretion by the NLRC. merits to determine his guilt or innocence. Juancho’s acquittal is
In Nemia Castro v. Rosalyn and Jamir Guevarra (G.R. No. therefore void considering that the prosecution was not afforded
192737, April 25, 2012), the Supreme Court held that a motion for an opportunity to present its evidence or even to rebut the testi-
reconsideration is a condition precedent to the filing of a petition for mony of the defendant.
certiorari. Its purpose is to grant an opportunity for the court to correct
any actual or perceived error attributed to it by the re-examination of
the legal and factual circumstances of the case. Distinguish error of jurisdiction from error of judgment. (5%)
In Saint Martin Funeral Homes v. NLRC (G.R. No. 130866, Sep- ’12 – Q3a
tember 16, 1998), the Supreme Court ruled that petitions for certiorari
under Rule 65 against decisions or final order of the NLRC should be SUGGESTED ANSWER:
initially filed in the Court of Appeals in strict observance of the doctrine An error of judgment is one which the court may commit in the
on the hierarchy of courts as the appropriate forum for the relief de- exercise of its jurisdiction. Such an error does not deprive the court of
sired. jurisdiction and is correctible only by appeal; whereas an error in juris-
or diction ne which the court acts without or in excess of its jurisdiction.
(E) directly file a petition for certiorari with the Court of Appeals Such an error renders an order or judgment void or voidable and is
since a motion for reconsideration would serve no purpose when a correctible by the special civil action of certiorari. (Dela Cruz vs. Moir,
pure question of law is involved. 36 Phil, 213; Cochingyan vs. Claribel, 76 SCRA 361; Fortich vs. Coro-
In Beatriz Slok Ping Tang v. Subic Bay Distribution (G.R. No. na, April 24, 1998, 289 SCRA 624; Artistica Ceramica, Inc. vs. Ciudad
162575, December 15, 2010), the Supreme Court held that the settled Del Carmen Homeowner’s Association, Inc., G.R. Nos. 167583-84,
rule is that a motion for reconsideration is a condition sine qua non for June 16, 2010).
the filing of a petition for certiorari. The rule is, however, circumscribed
by well-defined exceptions, such as (a) where the order is a patent A bought a Volvo Sedan from ABC Cars for P5.0M. ABC Cars,
nullity, as where the court a quo had no jurisdiction; (b) where the before delivering to A, had the car rust proofed and tinted by XYZ
questions raised in the certiorari proceeding have been duly raised and Detailing. When delivered to A, the car's upholstery was found to
passed upon in the lower court; (c) where there is an urgent necessity be damaged. ABC Cars and XYZ Detailing both deny any liability.
for the resolution of the question and any further delay would prejudice Who can A sue and on what cause(s) of action? Explain. (5%) ’12
the interests of the Government or of the petitioner or the subject mat- – Q4a
ter of the action is perishable; (d) where, under the circumstances, a
motion for reconsideration would be useless; (e) where petitioner was SUGGESTED ANSWER:
deprived of due process and there is extreme urgency for relief; (f) A can file an action for specific performance and damages against
where, in a criminal case, relief from an order of arrest is urgent and ABC Cars since the damage to the Volvo Sedan’s upholstery was
the granting of such relief by the trial court is improbable; (g) where the caused before delivery of the same to A, and therefore prior to the
proceedings in the lower court are a nullity for lack of due process; (h) transfer of ownership to the latter. (Article 1477, New Civil Code). Un-
where the proceedings were ex parte, or in which the petitioner had no der Article 1170 of the New Civil Code, those who contravene the tenor
opportunity to object; and (i) where the issue raised is one purely of of the obligation are liable for damages. Hence, an action for specific
law or where the public interest is involved. performance against ABC Corporation to deliver the agreed Volvo
Since the issue raised in the Petition for Certiorari is one purely of Sedan in the contract, free from any damages or defects, with corre-
law, then a motion for reconsideration is not necessary as a condition sponding damages will lie against ABC Cars.
sine qua non for filing said petition.
ALTERNATIVE ANSWER:
Juancho entered a plea of guilty when he was arraigned under an A can sue ABC Cars for specific performance or rescission be-
information for homicide. To determine the penalty to be imposed, the cause the former has contractual relations with the latter.
trial court allowed Juancho to present evidence proving any mitigating
circumstance in his favor. Juancho was able to establish complete self- A judge of an MTC can hear and decide petitions for habeas
defense. corpus or applications for bail where: ’12 – Q53
a) the Supreme Court authorizes the MTC.
Convinced by the evidence adduced by Juancho, the trial court b) the judge is the Executive Judge of the MTC.
rendered a verdict of acquittal. c) the judge of the RTC where the case is raffled has retired,
was dismissed or had died.
May the Prosecution assail the acquittal without infringing the d) in the absence of all the RTC Judges in the province or city.
constitutional guarantee against double jeopardy in favor of Juancho? SUGGESTED ANSWER:
Explain your answer. (5%) ’17 Q 17 d) In the absence of all the RTC Judges in the province or city.
In the absence of all the Regional Trial Judges in a province or
SUGGESTED ANSWER city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal
Circuit Trial Judge may hear and decide petitions for a writ of habeas
Yes, the prosecution may assail Juancho’s acquittal corpus or applications for bail in criminal cases in the province or city
without violating his right against double jeopardy. In the similar where the absent Regional Trial Judges sit. (Section 35, Batasan
case of People c. Balisacan (G.R. No. L-26376, August 31, 1966), Pambansa Blg. 129).
the Supreme Court held that if an accused who first entered a
plea of guilty was later on allowed to prove any mitigating cir- The Sandiganbayan can entertain a quo warranto petition
cumstances, his prior plea is deemed vacated. The court should only in: ’12 – Q57
require him to plea anew on the charge, or at least direct that a a) cases involving public officers with salary grade 27 or
new plea of guilty be entered for him. Thus in this case, since higher.
Juancho was allowed to present evidence to prove mitigating b) only in aid of its appellate jurisdiction.
circumstances in his favor, there can be no double jeopardy with c) as a provisional remedy.
respect to the prosecution’s appeal. d) cases involving "ill gotten wealth".
SUGGESTED ANSWER:

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b) Only in aid of its appellate jurisdiction.
The Sandiganbayan shall have exclusive original jurisdiction over The MTC, acting as an Environmental Court, has original and
petitions for the issuance of thw rits of mandamus, prohibition, certio- exclusive jurisdiction over the following, except: ’12 – Q75
rari, habeas corpus, injunctions, and other ancillary writs and process- a) criminal offenses punishable under the Chain Saw Act
es in aid of its appellate jurisdiction and over petitions of similar nature, (R.A. 9175)
including quo warranto, arising or that may arise in cases filed or which b) violation of the NIPAS Law (R.A. 7586)
may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in c) violation of the Mining Laws
1986: Provided, That the jurisdiction over these petitions shall not be d) violation of Anti-Pollution Laws
exclusive of the Supreme Court. (Sec. 4, R.A. 8249, Act amending P.D. SUGGESTED ANSWER:
1606). a) Criminal offenses punishable under the Chain Saw Act (R.A.
9175).
The Court of Appeals cannot issue a temporary restraining The Metropolitan Trial Court (MTC) exercises exclusive original
order in the following cases, except: ’12 – Q67 jurisdiction over all offenses punishable with imprisonment not exceed-
a) bidding and awarding of a project of the national gov- ing six (6) years irrespective of the amount of fine. (BP 129, Sec. 32).
ernment. Relative thereto, R.A. 9175 or otherwise known as the Chain Saw Act
b) against any freeze order issued by the AMLC under the of 2002, penalizes any person who is found to be in possession of a
antimoney laundering law. chain saw and uses the same to cut trees and timber in forest land or
c) against infrastructure projects like the SLEX extension. elsewhere except as authorized by the Department with imprisonment
d) against the DAR in the implementation of the CARL Law. of six (6) years and one (1) day to eight (8) years or a fine of not less
SUGGESTED ANSWER: than Thirty thousand pesos (P30,000.00) but not more than Fifty thou-
a) Bidding and awarding of a project of the national government. sand pesos (P50,000.00) or both at the discretion of the court. Clearly,
There is no law which prohibits the Court of Appeals from issuing the court which has jurisdiction over violations of the Chain Saw Act is
a temporary restraining order on the bidding and awarding of a project the Regional Trial Court, and not the MTS, acting as an Environment
of the national government. On the contrary, there are laws which ex- Court.
pressly prohibit the Court of Appeals from issuing a temporary restrain-
ing order against any of the following: (i) freeze order issued by the
AMLC under the anti-money laundering law, except the Supreme What is the doctrine of judicial stability or non interference?
Court. (R.A. 10167, Sec. 10); (ii) infrastructure projects like the SLEX ’11 – Q34
extension because only the Supreme Court can issue the same. (Sec. (A) Once jurisdiction has attached to a court, it can not be de-
10, R.A. No. 10167 and R.A. No. 8975); and (iii) DAR in the implemen- prived of it by subsequent happenings or events.
tation of the CARL Law. (Sec. 55, R.A. No. 6657). (B) Courts will not hear and decide cases involving issues that
come within the jurisdiction of administrative tribunals.
A decision or resolution of a division of the Supreme Court (C) No court has the authority to interfere by injunction with the
when concurred in by ______ members who actually took part in judgment of another court of coordinate jurisdiction.
the deliberation on the issues in a case and voted thereon, is a (D) A higher court will not entertain direct resort to it unless the
decision or resolution of the Supreme Court. ’12 – Q83 redress sought cannot be obtained from the appropriate court.
a) three (3);
b) five(S);
c) eight (8);
d) ten (10). JURISDICTION
SUGGESTED ANSWER:
a) Three (3)
What trial court outside Metro Manila has exclusive original
Cases or matters heard by a division shall be decided or resolved
jurisdiction over the following cases? Explain briefly your an-
with the concurrence of a majority of the Members who actually took
swers.
part in the deliberations on the issues in the case and voted thereon,
and in no case without the concurrence of at least three of such Mem-
(a) An action filed on November 13, 2017 to recover the pos-
bers. When the required number is not obtained, the case shall be
session of an apartment unit being occupied by the defen-
decided en banc: Provided, that no doctrine or principle of law laid
dant by mere tolerance of the plaintiff, after the former ig-
down by the court in a decision rendered en banc or in division may be
nored the last demand to vacate that was duly served upon
modified or reversed except by the court sitting en banc. (Article VIII,
and received by him on July 6, 2016. (2.5%)
Sec. 4, 1987 Constitution).
(b) A complaint in which the principal relief sought is the en-
Sandiganbayan exercises concurrent jurisdiction with the
forcement of a seller's contractual right to repurchase a lot
Supreme Court and the Court of Appeals over: ’12 – Q85
with an assessed value of P15, 000.00. (2.5%) ’17 – Q1
a) Petitions for Writ of Certiorari and Prohibition;
b) Petitions for Writ of Habeas Corpus;
c) Petitions for Quo Warranto;
SUGGESTED ANSWER
d) Petitions for Writ of Amparo and Habeas Corpus.
(a) It depends. The instant action is an accion publiciana
SUGGESTED ANSWER:
considering that more than a year has lapsed from the
d) Petitions for Writ of Amparo and Habeas Corpus.
date of last demand (Natalia Realty, Inc. v. CA, G.R. No.
The Sandiganbayan shall have exclusive original jurisdiction over
126462, November 12, 2002; Penta Pacific Realty Corpo-
petitions for the issuance of the writs of mandamus, prohibition, certio-
ration v. Ley Construction and Development Corpora-
rari, habeas corpus, injunction, and other ancillary writs and processes
tion, G.R. No. 161589, November 24, 2014). Thus, if the
in aid of its appellate jurisdiction: Provided, that the jurisdiction over
assessed value of the apartment unit does not exceed
these petitions shall not be exclusive of the Supreme Court. (Sec. 2,
P20,000.00, the Municipal Trial Court has the exclusive
R.A. 7975 – An Act to Strengthen the Functional and Structural Orga-
original jurisdiction over the action (Penta Pacific Realty
nization of the Sandiganbayan, amending for that purpose Presidential
Corporation, supra; BP Blg. 129, Sec. 1). On the other
Decree No. 1606, as amended).
hand, if the assessed value of the apartment unit ex-
The petition for writ of amparo may be filed on any day and at any
ceeds P20,000.00, the Regional Trial Court has the ex-
time with the Regional Trial Court of the place where the threat, act or
clusive original jurisdiction over the action (Penta Pacif-
omission was committed or any of its elements occurred, or with the
ic Realty Corporation, supra; BP Blg. 129, Sec 19). The
Sandiganbayan the Court of Appeals, the Supreme Court, or any jus-
allegation of the assessed of value of the apartment unit
tice of such courts. The writ shall be enforceable anywhere in the
must be found in the complaint, otherwise the action
Philippines. (Sec. 3, A.M. No. 07-9-12-SC). The Rule on the Writ of
should be dismissed for lack of jurisdiction because the
Amparo, September 25, 2007).

4
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trial court is not thereby afforded the means of deter- No. The court should not dismiss the case. What determines the
mining from the allegations of the pleading whether jurisdiction of the court is the nature of the action pleaded as appearing
jurisdiction over the subject matter of the action per- from the allegations in the complaint. The averments therein and the
tains to it or another court (Penta Pacific Really Corpo- character of the relief sought are the ones to be consulted (Navida v.
ration, supra). Hon. Teodoro A. Dizon, Jr., G.R. 125078, May 30, 2011).
Accordingly, even if the defendant is able to prove in the course of
(b) The Regional Trial Court has the jurisdiction over an the trial that a lesser amount is due, the court does not lose jurisdiction
action in which the principal relief sought is the en- and a dismissal of the case is not in order (Paadlan v. Dinglasan, G.R.
forcement of a seller’s contractual right to repurchase a No. 180321, March 20, 2013).
lot. Since said action is one for specific performance to
enforce a contractual right, is it incapable of pecuniary Juliet invoking the provisions of the Rule on Violence
estimation and therefore cognizable by the Regional Against Women and their Children filed with the RTC designated
Trial Court (Surviving Heirs of Bautista v. Lindo, G.R. No. as a Family Court a petition for issuance of a Temporary Protec-
208232, March 10, 2014; BP Blg. 129, Sec. 19). tion Order (TPO) against her husband, Romeo. The Family Court
issued a 30-day TPO against Romeo. A day before the expiration
of the TPO, Juliet filed a motion for extension. Romeo in his op-
Santa filed against Era in the RTC of Quezon City an action for position raised, among others, the constitutionality of R.A. No.
specific performance praying for the delivery of a parcel of land subject 9262 (The VAWC Law) arguing that the law authorizing the is-
of their contract of sale. Unknown to the parties, the case was inadver- suance of a TPO violates the equal protection and due process
tently raffled to an RTC designated as a special commercial court. Lat- clauses of the 1987 Constitution. The Family Court judge, in
er, the RTC rendered judgment adverse to Era, who, upon realizing granting the motion for extension of the TPO, declined to rule on
that the trial court was not a regular RTC, approaches you and wants the constitutionality of R.A. No. 9262. The Family Court judge
you to file a petition to have the judgment annulled for lack of jurisdic- reasoned that Family Courts are without jurisdiction to pass upon
tion. constitutional issues, being a special court of limited jurisdiction
and R.A. No. 8369, the law creating the Family Courts, does not
What advice would you give to Era? Explain your answer. (4%) provide for such jurisdiction. Is the Family Court judge correct
’17 – Q2 when he declined to resolve the constitutionality of R.A. No.
9262? (3%) ’15 – Q3
SUGGESTED ANSWER Suggested Answer:
I will advise Era that a petition to have the judgement No, the Family Court Judge is not correct when it declined to
annulled for tack of jurisdiction has no basis. In Gonzales v. GJII resolve the constitutionality of R.A. No. 9262.
Land, Inc. (G.R. No. 202664, November 10, 2015), the Supreme In Garcia v. Hon. Ray Allan Drilon, (G.R. No. 179267, June 25,
Court ruled that the fact that a particular branch which has been 2013), the Supreme Court held that the “Family Courts have authority
designated as a Special Commercial Court does not shed the and jurisdiction to resolve the constitutionality of a statute. Inspite of its
RTC’s general jurisdiction over ordinary civil cases under the designation as a family court, the RTC of remains possessed of author-
imprimatur of statutory law, i.e. Batas Pambansa Blg. 129. The ity as a court of general original jurisdiction to pass upon all kinds of
designation of Special Commercial Court was merely intended as cases whether civil, criminal, special proceedings, land registration,
a procedural tool to expedite the resolution of commercial cases guardianship, naturalization, admiralty or insolvency. This authority is
in line by statute but only by an internal Supreme Court rule un- embraced in the general definition of the judicial power to determine
der its authority to promulgate rules governing matters of proce- the valid and binding laws in conformity with the fundamental law”.
dure and its constitutional mandate to supervise lower courts.

ALTERNATIVE ANSWER Estrella was the registered owner of a huge parcel of land
located in a remote part of their barrio in Benguet. However, when
I WILL ADVISE Era that a petition for annulment of she visited the property after she took a long vacation abroad,
judgment is untenable; I will tell Era that the available post-judg- she was surprised to see that her childhood friend, John, had
ment remedies could be any of the following depending upon the established a vacation house on her property. Both Estrella and
date of his receipt of the judgment: Motion for Reconsideration, John were residents of the same barangay. To recover posses-
Appeal, Petition for Relief from Judgment, or Certiorari. sion, Estrella filed a complaint for ejectment with the Municipal
The Regional Trial Court, despite its having been Trial Court (MTC), alleging that she is the true owner of the land
designated as a Special Commercial Court remains possessed of as evidenced by her certificate of title and tax declaration which
authority as a court of general jurisdiction to pass upon all kinds showed the assessed value of the property as P21,000.00. On the
of cases, whether civil or criminal. The Constitution vests not other hand, John refuted Estrella’s claim of ownership and sub-
only in the Supreme Court, but in all Regional Trial Courts, the mitted in evidence a Deed of Absolute Sale between him and Es-
judicial power to determine what are the valid and binding laws by trella. After the filing of John’s answer, the MTC observed that the
criterion of their conformity to the fundamental law (Jesus C. real issue was one of ownership and not of possession. Hence,
Garcia v. The Hon. Ray Alan T. Drilon, G.R. No. 179267, Kune 25, the MTC dismissed the complaint for lack of jurisdiction. On ap-
2013). The designation of the court as a special commercial court peal by Estrella to the Regional Trial Court (RTC), a full-blown trial
is an internal arrangement for lower courts that could be allowed was conducted as if the case was originally filed with it. The RTC
by the Supreme Court, with the Office of the Court Administrator reasoned that based on the assessed value of the property, it was
as the implementing arm, with the purpose of giving priority to the court of proper jurisdiction. Eventually, the RTC rendered a
commercial cases on top of the trial court’s regular cases. judgment declaring John as the owner of the land and, hence,
entitled to the possession thereof. (4%)
(A) Was the MTC correct in dismissing the complaint for lack
At the trial, Borrower's lawyer, while cross-examining Lender, of jurisdiction? Why or why not? - ’14 – Q29a
successfully elicited an admission from the latter that the two Answer: (A) No. The Metropolitan Trial Court was not correct in
promissory notes have been paid. Thereafter, Borrower's lawyer dismissing the complaint for lack of jurisdiction. It is well settled that
filed a motion to dismiss the case on the ground that as proven jurisdiction is determined by the allegations contained in the complaint.
only P300,000.00 was the amount due to Lender and which claim The contention of the defendant in his motion to dismiss has nothing to
is within the exclusive original jurisdiction of the Metropolitan do in the determination of jurisdiction. Otherwise, jurisdiction would
Trial Court. He further argued that lack of jurisdiction over the become dependent almost entirely upon the whims of the defendant
subject matter can be raised at any stage of the proceedings. (Medical Plaza Makati Condominium v. Cullen, G.R. No. 181416, No-
Should the court dismiss the case? (3%) ’15 – Q1b vember 11, 2013).
Relative thereto, the Municipal Trial Courts have exclusive original
Suggested Answer: jurisdiction over cases of forcible entry and unlawful detainer (Section

5
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33 of Batas Pambansa Blg. 129). Hence, the Metropolitan Trial Court is In real actions, the docket and filing fees are based on: ’12 –
not correct in dismissing the complaint for lack of jurisdiction. Q5
Besides, the rules allow provisional determination of ownership in a) fair market value of the property.
ejectment cases when the defendant raises the defense of ownership b) assessed value of the property.
in his pleadings and the question of possession cannot be resolved c) SIR zonal value of the property.
without deciding the issue of ownership (Section 16, Rule 70, Rules of d) fair market value of the property and amount of dam-
Court). ages claimed.
Accordingly, the inferior courts have jurisdiction to resolve ques- SUGGESTED ANSWER:
tions of ownership only whenever it is necessary to decide the question c) BIR zonal value of property.
of possession in an ejectment case (Serrano v. Spouses Gutierrez, Under Section 7, Rule 141 of the Rules of Court, in cases involv-
G.R. No. 162366, November 10, 2006). ing property, the fair market value of the real property in litigation stated
in the current tax declaration or current zonal valuation of the Bureau
(B) Was the RTC correct in ruling that based on the assessed of Internal Revenue, whichever is higher, or if there is none, the stated
value of the property, the case was within its original jurisdiction value of the property in litigation or the value of the personal property
and, hence, it may conduct a full-blown trial of the appealed case in litigation as alleged by the claimant shall be the basis of the docket
as if it was originally filed with it? Why or why not? ’14 – Q29b and filing fees. (As amended by A.M. No. 04-2-04-SC, August 16,
2004).

(B) No. The Regional Trial Court was not correct. It is settled that ALTERNATIVE ANSWER:
forcible entry and unlawful detainer cases are within the exclusive b) Assessed value of the property.
original jurisdiction of the MTC. Moreover, all cases decided by the In Siapno vs. Manalo, G.R. No. 132260, August 30, 2005, the
Metropolitan Trial Court are generally appealable to the Regional Trial Court disregarded the title / denomination of the plaintiff Manalo’s
Court irrespective of the amounts involved (Section 22, B.P. 129). amended petition as on for Mandamus with Revocation of Title and
Damages; and adjudged the same to be a real action, the filing fees for
Assuming that Estrella’s action was really for ownership and not which should have been computed based on the assessed value of the
for physical possession, the Regional Trial Court is correct in ruling that subject property or, if there was none, the estimated value thereof.
it was the Court of proper jurisdiction.
If an appeal is taken from an order of the lower court dismissing
the case without a trial on the merits, the Regional Trial Court may
affirm or reverse it, as the case may be. In case of affirmance and the Cesar, age 16, a habitual offender, was caught in possession
ground of dismissal is lack of jurisdiction thereover, shall try the case of .001 grams of marijuana. He was charged for violation of Sec.
on the merits as if the case was originally filed with it. In case of rever- 16 of R.A. 9165, The Comprehensive Dangerous Drugs Law. The
sal, the case shall be remanded for further proceedings (Section 8, court which has jurisdiction is: ’12 – Q72
Rule 40, Rules of Court). a. the MTC;
Since the RTC affirmed the dismissal by the MTC of Estrella’s b. the RTC;
complaint on the ground of lack of jurisdiction over the subject matter, c. Special Drugs Court;
without conducting a trial on the merits, the RTC may conduct a full- d. Family Court.
blown trial of the appealed case from the MTC as if the same was SUGGESTED ANSWER:
originally filed with it. d) Family Court
The State is mandated to safeguard the well-being of its citizenry,
While leisurely walking along the street near her house in particularly children from harmful effect of dangerous drugs on their
Marikina, Patty unknowingly stepped on a garden tool left behind physical and mental well-being and to defend them against acts or
by CCC, a construction company based in Makati. She lost her omissions detrimental to their development and preservation. Pursuant
balance as a consequence and fell into an open manhole. Fortu- to this policy and the mandate of Republic Act No. 8369, also known as
nately, Patty suffered no major injuries except for contusions, The Family Courts Act of 1997, the Family Courts are vested with ex-
bruises and scratches that did not require any hospitalization. clusive jurisdiction to hear and decide cases against minors charged
However, she lost self-esteem, suffered embarrassment and with drug-related offenses (A.M. No. 07-8-2-SC-2, Sec. 2). The objec-
ridicule, and had bouts of anxiety and bad dreams about the acci- tive is to ensure that the rights of children charged with violation of any
dent. She wants vindication for her uncalled for experience and of the offenses under the Comprehensive Dangerous Drugs Acts of
hires you to act as counsel for her and to do whatever is neces- 2002 are well protected, and that their interests and those of their fami-
sary to recover at least Php100,000 for what she suffered. ly and the community are adequately balanced. (a.m. No 07-8-2-SC-2,
What action or actions may Patty pursue, against whom, Sec. 2).
where (court and venue), and under what legal basis? (7%) ’13 –
Q6 State at least five (5) civil cases that fall under the exclusive
SUGGESTED ANSWER: Patty may undertake the following original jurisdiction of the Regional Trial Courts (RTC's). (5%) –’16
remedies: – Q1
a) She may file a small claims case against CCC Company for
damages arising from fault or negligence before the MTC where she or SUGGESTED ANSWER: The Regional Trial Courts inter alia shall
the defendant resides, at her option (A.M. No. 8-8-7-SC in relation to exercise exclusive original jurisdiction in the following civil cases: (l)In
Section 2, Rule 4, Rules of Court). all civil actions in which the subject of the litigation is incapable of pe-
b) She may also file an independent civil action against the cuniary estimation; (2) In all civil actions which involve the title to, or
company based on quasi-delict under Article 2176 of the Civil Code. possession of, real property, or any interest therein, where the as-
The law states that, whoever by act or omission causes damage to sessed value of the property involved exceeds Twenty thousand pesos
another, there being fault or negligence is obliged to pay for the dam- (P20,000,00) or, for civil actions in Metro Manila, where such value
age done. Such fault or negligence, if there is no pre-existing contrac- exceeds Fifty thousand pesos (P50,000.00) except actions for forcible
tual relation between the parties, is called a quasi-delict. entry into and unlawful detainer of lands or buildings, original jurisdic-
c) Patty can also file a civil action for damages against the City tion over which is conferred upon the Metropolitan Trial Courts, Munic-
of Marikina for maintaining an open manhole where she unfortunately ipal Trial Courts, and Municipal Circuit Trial Courts; (3) In all actions in
fell. Under Article 2189 of the Civil Code, provinces, cities and munici- admiralty and maritime jurisdiction where the demand or claim exceeds
palities shall be liable for damages for the death of, or injuries suffered Three hundred thousand pesos (P300,000.00) or, in Metro Manila,
by, any person by reason of the defective condition of roads, streets, where such demand or claim exceeds Four hundred thousand pesos
bridges, public buildings, and other public works under their control or (P400,000.00); (4) In all matters of probate, both testate and intestate,
supervision. where the gross value of the estate exceeds Three hundred thousand
pesos (P300,000.00) or, in probate matters in Metro Manila, where

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such gross value exceeds Four Hundred thousand pesos
(P400,000.00); (5) In' all actions involving the contract of marriage and The following are accurate statements on joinder of causes
marital relations; (6) In all cases not within the exclusive jurisdiction of of action, except: ’12 - Q39
any court, tribunal, person or body exercising jurisdiction of any court, a) joinder of actions avoids multiplicity of suits.
tribunal, person or body exercising judicial or quasi-judicial functions; b) joinder of actions may include special civil actions.
(7) In all civil actions and special proceedings falling within the exclu- c) joinder of causes of action is permissive.
sive original jurisdiction of a Juvenile and Domestic Relations Court d) the test of jurisdiction in case of money claims in a join-
and of the Court of Agrarian Relations as now provided by law; and (8) der of causes of action, is the "totality rule".
In all other cases in which the demand, exclusive of interest, damages SUGGESTED ANSWER:
of whatever kind, attorney's fees, litigation expenses, and costs or the b) Joinder of actions may include special civil actions.
value of the property in controversy exceeds Three hundred thousand The rule on joinder of actions under Section 5, Rule 2 of the 1997
pesos (P300,000.00) or, in such other cases in Metro Manila, where Rules of Civil Procedure, amended, requires that the joinder shall not
the demand exclusive of the abovementioned items exceeds Four include special civil actions governed by special rules. (Roman
Hundred thousand pesos (P400,000.00)" (Section 1, Section 19 of Catholic Archbishop of San Fernando Pampanga vs. Fernando Sori-
Batas Pambansa Big, 129, otherwise known as the "Judiciary Reorga- ano Jr., et al, G.R. No. 153829, August 17, 2011, Villarama, Jr., J.)
nization Act of1980).

A sued B in the RTC of Quezon City, joining two causes of


CIVIL ACTION action: for partition of real property and breach of contract with
damages. Both parties reside in Quezon City but the real property
is in Manila. May the case be dismissed for improper venue? ’11 –
RULE 2 - CAUSE OF ACTION Q33
(A) Yes, since causes of action pertaining to different venues may
Elise obtained a loan of P3 Million from Merchant Bank. not be joined in one action.
Aside from executing a promissory note in favor of Merchant (B) No, since causes of action pertaining to different venues may
Bank, she executed a deed of real estate mortgage over her be joined in the RTC if one of the causes of action falls within its juris-
house and lot as security for her obligation. The loan fell due but diction.
remained unpaid; hence, Merchant Bank filed an action against (C) Yes, because special civil action may not be joined with an
Elise to foreclose the real estate mortgage. A month after, and ordinary civil action.
while the foreclosure suit was pending, Merchant Bank also filed (D) No, since plaintiff may unqualifiedly join in one complaint as
an action to recover the principal sum of P3 Million against Elise many causes of action as he has against opposing party.
based on the same promissory note previously executed by the
latter.
RULE 3 - PARTIES TO CIVIL ACTIONS
In opposing the motion of Elise to dismiss the second action
on the ground of splitting of a single cause of action, Merchant
Bank argued that the ground relied upon by Elise was devoid of Hanna, a resident of Manila, filed a complaint for the partition
any legal basis considering that the two actions were based on of a large tract of land located in Oriental Mindoro. She impleaded
separate contracts, namely, the contract of loan evidenced by the her two brothers John and Adrian as defendants but did not im-
promissory note, and the deed of real estate mortgage. plead Leica and Agatha, her two sisters who were permanent res-
idents of Australia.
Is there a splitting of a single cause of action? Explain your
answer. (4%) ’17 – Q7 Arguing that there could be no final determination of the
SUGGESTED ANSWER case without impleading all indispensable parties, John and Adri-
Yes, there is splitting of a cause of action. A creditor cannot like an moved to dismiss the complaint.
a civil action against the debtor for collection of the debt and subse-
quently file an action to foreclose the mortgage. This is an example of Does the trial court have a reason to deny the motion? Ex-
splitting of a single cause of action, a practice that is vexatious and plain your answer. (4%) – ’17 Q6
oppressive (Danao v. Court of Appeals, G.R. No. L-48276, June 6, SUGGESTED ANSWER
2001). Yes, the trial court has reason to deny the motion.
Section 11, Rule 3 Rules of Court, states that neither misjoinder
Lender extended to Borrower a Pl00,000.00 loan covered by a nor non-joinder of parties is a ground for the dismissal of an ac-
promissory note. Later, Borrower obtained another Pl00,000.00 tion. The petitioner can still amend his initiatory pleading in order
loan again covered by a promissory note. Still later, Borrower to implead an indispensable party may be made on motion of any
obtained a P300,000.00 loan secured by a real estate mortgage on party or on the trial court’s own initiative at any stage of the ac-
his land valued at 11500,000.00. Borrower defaulted on his pay- tion and on such terms as are just (Ablaza v. Republic, G.R. No.
ments when the loans matured. Despite demand to pay the ll- 158298, August 11, 2010).
S00,000.00 loan, Borrower refused to pay. Lender, applying the
totality rule, filed against Borrower with the Regional Trial Court A sued B for ejectment. Pending trial, B died, survived by his
(RTC) of Manila, a collection suit for P500,000.00. son, C. No substitution of party defendant was made. Upon finali-
ty of the judgment against B, may the same be enforced against
Did Lender correctly apply the totality rule and the rule on C? ’11- Q25
joinder of causes of action? (2%) ’15 – Q1a (A) Yes, because the case survived B’s death and the effect of
final judgment in an ejectment case binds his successors in-interest.
Suggested Answer: (B) No, because C was denied due process.
Yes. The Lender correctly applied the totality rule and the rule on (C) Yes, because the negligence of B’s counsel in failing to ask for
joinder of causes of action because where the claims in all the causes substitution, should not prejudice A.
of action are principally for recovery of money, the aggregate amount (D) No, because the action did not survive B’s death.
of the claim shall be the test of jurisdiction (Section 5 (d), Rule 2, Rules
of Court).
Here, the total amount of the claim is P500,000.00 Hence, the Chika sued Gringo, a Venezuelan, for a sum of money. The Met-
Regional Trial Court (RTC) of Manila has jurisdiction over the suit. At ropolitan Trial Court of Manila (MeTC) rendered a decision order-
any rate, it is immaterial that one of the loans is secured by a real es- ing Gringo to pay Chika P50,000.00 plus legal interest. During its
tate mortgage because the Lender opted to file a collection of sum of pendency of the appeal before the RTC, Gringo died of acute he-
money instead of foreclosure of the said mortgage. morrhagic pancreatitis. Atty. Perfecto, counsel of Gringo, filed a

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Bar Ques)ons and Answers
manifestation attaching the death certificate of Gringo and in-
forming the RTC that he cannot substitute the heirs since Gringo Should the motion to dismiss of ABC Bank be granted? Ex-
did not disclose any information of his family. As counsel for Chi- plain your answer. (5%) ’17 – Q5
ka, what remedy can you recommend to your client so the case
can move forward and she can eventually recover her money? SUGGESTED ANSWER
Explain. (5%) ’16 – Q15 No, ABC Bank’s motion to dismiss should be denied. In
Briones v. Court of Appeals (G.R. No. 20444, January 14, 2015),
SUGGESTED ANSWER: the Supreme Court ruled that a complaint directly assailing the
validity of the written instrument itself should not be bound by the
As counsel for Chika, I would recommend that she immediately pro- exclusive venue stipulation contained therein and should be filed
cure the appointment of an executor or administrator for the estate of in accordance with general rules on venue. The Supreme Court
Gringo. Section 16, Rule 3 of the 1997 Rules of Civil Procedure pro- ruled that it would be inherently inconsistent for a complaint of
vides that if no legal representative is named by the counsel for the this nature to recognize the exclusive venue stipulation when it,
deceased party, or if the one so named shall fail to appear within the in fact, precisely assails the validity of the instrument in which
specified period, the court may order the opposing party, within a spec- such stipulation is contained.
ified time, to procure the appointment of an executor or administrator
for the estate of the deceased, and the latter shall immediately appear In this case, Evan’s complaint directly assails the
for and on behalf of the deceased. The court charges in procuring such validity of the promissory note and deed of mortgage, which con-
appointment, if defrayed by the opposing party, may be recovered as tains said venue stipulation; hence, said venue stipulation is not
costs. binding on him. Even correctly filed his complaint with the Manila
RTC pursuant to Rule 4 of the Rules of Court.
After the appointment of an executor or administrator, the action shall
be allowed to continue until entry of final judgment. A favorable judg-
ment obtained by the plaintiff therein shall be enforced in the manner Strauss filed a complaint against Wagner for cancellation of
especially provided in these Rules for prosecuting claims against the title. Wagner moved to dismiss the complaint because Grieg, to
estate of a deceased person (Section 20, Rule 3, Rules of Court). whom he mortgaged the property as duly annotated in the TCT,
was not impleaded as defendant.
Should the complaint be dismissed? (3%) ’15 – Q4a
ANOTHER SUGGESTED ANSWER:
Suggested Answer:
No. The complaint should not be dismissed because the mere
As counsel for Chika, I would recommend the filing of the money non-joiner of an indispensable party is not a ground for the dismissal of
judgment as a claim against the estate of Gringo. action (Section 11, Rule 3, Rules of Court; Republic v. Hon. Mangotara,
[2010])
Under Section 20, Rule 3 of the Rules of Court, when the action is for
recovery of money arising from contract, express or implied, and the If the case should proceed to trial without Grieg being im-
defendant dies before entry of final judgment in the court in which the pleaded as a party to the case, what is his remedy to protect his
action was pending at the time of such death, it shall not be dismissed interest? (2%) ’15 – Q4b
but shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in Suggested Answer:
the manner especially provided in these Rules for prosecuting claims If the case should proceed to trial without Grieg being impleaded
against the estate of a deceased person. as a party, he may intervene in the action (Section 1, Rule 19, Rules of
Court).
Relative thereto, Section 5, Rule 86 of the Rules of Court provides that He may also file a petition for annulment of judgment under Rule
all claims for money against the decedent, arising from contract, ex- 47 of the Rules of Court.
press or implied, whether the same be due, not due, or contingent, all In Metrobank v. Hon. Floro Alejo (G.R. No. 141970, September
claims for funeral expenses and expenses for the last sickness of the 10, 2001), the Supreme Court held that it in a suit to nullify an existing
decedent, and judgment for money against the decedent, must be filed Torrens Certificate of Title (TCT) in which a real estate mortgage is
within the time limited in the notice; otherwise they are barred forever. annotated, the mortgagee is an indispensable party. In such suit, a
decision canceling the TCT and the mortgage annotation is subject to a
Accordingly, I would recommend the filing of the money judgment as a petition for annulment of judgment, because the non-joinder of the
claim against the estate of Gringo. mortgagee deprived the court of jurisdiction to pass upon the contro-
versy”.

RULE 4 - VENUE Co Batong, a Taipan, filed a civil action for damages with the
Regional Trial Court (RTC) of Parañaque City against Jose Pen-
duko, a news reporter of the Philippine Times, a newspaper of
After working for 25 years in the Middle East, Evan returned
general circulation printed and published in Parañaque City. The
to the Philippines to retire in Manila, the place of his birth and
complaint alleged, among others, that Jose Penduko wrote mali-
childhood. Ten years before his retirement, he bought for cash in
cious and defamatory imputations against Co Batong; that Co
his name a house and lot in Malate, Manila. Six months after his
Batong’s business address is in Makati City; and that the libelous
return, he learned that his house and lot were the subject of fore-
article was first printed and published in Parañaque City. The
closure proceedings commenced by ABC Bank on the basis of a
complaint prayed that Jose Penduko be held liable to pay
promissory note and a deed of real estate mortgage he had al-
P200,000.00, as moral damages; P150,000.00, as exemplary dam-
legedly executed in favor of ABC Bank five years earlier.
ages; and P50,000.00, as attorney’s fees. Jose Penduko filed a
Motion to Dismiss on the following grounds:
Knowing that he was not in the country at the time the prom-
1. The RTC is without jurisdiction because under the Totality
issory note and deed of mortgage were supposedly executed,
Rule, the claim for damages in the amount of P350,000.00 fall
Evan forthwith initiated a complaint in the RTC of Manila praying
within the exclusive original jurisdiction of the Metropolitan Trial
that the subject documents be declared null and void.
Court (MeTC) of Parañaque City.
2. The venue is improperly laid because what the complaint
ABC Bank filed. A motion to dismiss Evan's complaint on the
alleged is Co Batong’s business address and not his residence
ground of improper venue on the basis of a stipulation in both
address. Are the grounds invoked in the Motion to Dismiss prop-
documents designating Quezon City as the exclusive venue in the
er? (4%) ’14 – Q7
event of litigation between the parties arising out of the loan and
Answer: (1) No. The ground invoked in the Motion to Dismiss is
mortgage.
not proper. Under Article 360 of the Revised Penal Code, the civil ac-

8
The Sigma Rho Fraternity
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Bar Ques)ons and Answers
tion for damages in cases of written defamation may be filed separate- is a real action, the venue must be in the place where the real property
ly in the Regional Trial Court where the libelous article was printed and involved, or a portion thereof, is situated. (Rule 4, Sec. 1, Rules of
first published, regardless of the amount of damages being claimed. Court).
Yes. The ground invoked in the Motion to Dismiss is proper. In
case the claim for damages is the main cause of action, the entire Gary who lived in Taguig borrowed P1 million from Rey who
amount of such claim shall be considered in determining the jurisdic- lived in Makati under a contract of loan that fixed Makati as the
tion of the court (Administrative Circular No. 09-94). venue of any action arising from the contract. Gary had already
Hence, the full amount of damages including the attorney’s fees paid the loan but Rey kept on sending him letters of demand for
being claimed shall determine which Court has jurisdiction (Sante v. some balance. Where is the venue of the action for harassment
Hon. Claravall, G.R. No. 173915, February 22, 2010). that Gary wants to file against Rey? ’11 – Q6
(2) The venue was properly laid. Under the law, the venue for civil (A) In Makati since the intent of the party is to make it the venue
action involving written defamation shall be the place where the of any action between them whether based on the contract or not.
defamatory article was printed and first published (Article 360, Revised (B) In Taguig or Makati at the option of Gary since it is a personal
Penal Code). injury action.
Since the defamatory article was printed and first published in (C) In Taguig since Rey received the letters of demand there.
Paranaque City, the venue of the action is properly laid. (D) In Makati since it is the venue fixed in their contract.
Hence, the dismissal of the Complaint will only be proper if the
Complaint failed to allege the residence of the complainant or the place
where the libelous article was printed and first published (Nocum v.
Tan, G.R. No. 145022, September, 23, 2005). RULE 6 - KINDS OF PLEADINGS
Under the Rule, personal actions may be commenced and tried
where the plaintiff resides or any of the principal plaintiffs reside, or
Abraham filed a complaint for damages in the amount of P750, 000.00
where the defendant or any of the defendants reside, at the option of
against Salvador in the RTC in Quezon City for the latter's alleged
the plaintiff.
breach of their contract of services. Salvador promptly filed his answer,
Since Co Batong filed the case in a place which is neither his nor
and included a counterclaim for P250, 000.00 arising from the alleged-
Jose Penduko’s residence, the venue of the action is improperly laid.
ly baseless and malicious claims of Abraham that compelled him to
At any rate, instead of dismissing the Complaint, the court may order
litigate and to engage the services of counsel, and thus caused him to
Co Batong to simply amend the same in order to allege his place of
suffer mental anguish.
residence.
Noting that the amount of the counterclaim was below the exclusive
The mortgage contract between X, who resides in Manila,
original jurisdiction of the RTC, Abraham filed a motion to dismiss vis-
and Y, who resides in Naga, covering land in Quezon provides
a-vis the counterclaim on that ground.
that any suit arising from the agreement may be filed "nowhere
else but in a Makati court". Y must thus sue only in: ’12 – Q64
Should the counterclaim of Salvador be dismissed? Explain your an-
a) Makati;
swer. (4%) ’17 – Q9
b) Makati and/or Naga;
SUGGESTED ANSWER
c) Quezon and/or Makati;
No, Salvador’s counterclaim is compulsory in nature, and thus
d) Naga.
should not be dismissed. Section 7, Rule 6 of the Rules of Court
SUGGESTED ANSWER:
defines a compulsory counterclaim as any claim for money or any
a) Makati
relief, which defending party may have against an opposing party,
The rules on venue of actions are merely procedural in character
which at the time of suit arises out of, or is necessarily connected
and can be subject of stipulation. Where the parties have validly
with, the same transaction or occurrence hat is the subject matter
agreed in writing before the filing of the action on the exclusive venue
of the plaintiff’s complaint (Bungcayao v. Fort Ilocandia, G.R. No.
of the action, the suit cannot be filed anywhere other than the stipulat-
170483, April 19, 2010). A counterclaim is compulsory where:
ed venue. (Rule 4, Sec. 4, Rules of Court). Since the stipulation be-
tween X and Y in the mortgage contract is mandatory and restrictive in
1. It arises out of or is necessarily connected with the
character, the venue of the action is only in Makati City.
transaction or occurrence that is the subject matter of
the opposing party’s claim;
ALTERNATIVE ANSWER:
2. It does not require the presence of third parties of whom
None of the above. The venue of the action should only be Que-
the court cannot acquire jurisdiction, and;
zon City, the place where the real property is located.
3. The trial court has jurisdiction to entertain the claim
The rules on venue do not apply to actions involving a mortgage
(Spouses Arenas v. CA, G.R. No. 126640, November 23,
contract such as a petition for extrajudicial foreclosure of mortgage. In
2000).
Ochoa vs. Chinabank, G.R. No. 192877, March 23, 2011, the Supreme
Court held that the exclusive venue of Makati City, as stipulated by the
Regarding the trial court’s jurisdiction, Section 7, Rule 6 of the
parties and sanctioned by Section 4, Rule 4 of the Rules of Court can-
Rules of Court explicitly states that in an original action before
not be made to apply to the Petition for Extrajudicial Foreclosure filed
the Regional Trial Court, the counterclaim may be considered
by the respondent bank because the provisions of Rule 4 pertain to
compulsory egardless of the amount. In relation thereto, the
venue of actions, which an extrajudicial foreclosure is not. There is no
Supreme Court held in Alday v. FGU Insurance Corp. (G.R. No.
reason to depart from the doctrinal pronouncement of the Supreme
138822, January 23, 2001), that claims for damages, allegedly
Court.
suffered as a result of plaintiff’s filing of a complaint, are compul-
sory. In this case, the court’s jurisdiction over Salvador’s coun-
A, a resident of Quezon City, wants to file an action against
terclaim, despite being below the jurisdiction over Salvador’s
B, a resident of Pasay, to compel the latter to execute a Deed of
counterclaim, despite being below the jurisdictional amount is
Sale covering a lot situated in Marikina and that transfer of title be
evident from the following: Salvador’s claims for litigation ex-
issued to him claiming ownership of the land. Where should A file
penses arise out of Abraham’s complaint for damages; Salvador’s
the case? Explain. (5%) ’12 – Q3b
claims do not require the presence of third parties; and being
compulsory in nature, the trial court may exercise jurisdiction
SUGGESTED ANSWER:
over said claim.
A should file the case in Marikina, the place where the real prop-
erty subject matter of the case is situated. An action for specific per-
Leave of court is always necessary in: ’12 – Q59
formance would still be considered a real action where it seeks the
a) a demurrer to evidence in a civil case.
conveyance or transfer of real property, or ultimately, the execution of
b) a demurrer to evidence in a criminal case.
deeds of conveyance of real property. (Gochan v. Gochan, 432 Phil.
c) motion to amend a complaint.
491, 501 (2001); Copioso vs. Copioso, 391 SCRA 325 (2002)). Since it

9
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
d) third party complaint. Rules on Summary Procedure., Louie’s motion to declare Laura in
SUGGESTED ANSWER: default is a prohibited pleading and thus, should not be granted.
d) Third party complaint.
A third party complaint is a claim that a defending party may, with
leave of court, file against a person not a party to the action, called the Circe filed with the RTC a complaint for the foreclosure of
third party defendant, for contribution, indemnity, subrogation or any real estate mortgage against siblings Scylla and Charybdis, co-
other relief, in respect of his opponent’s claim. (Rule 6m Sec. 11, Rules owners of the property and cosignatories to the mortgage deed.
of Court). In a third party complaint, leave of court is always necessary. The siblings permanently reside in Athens, Greece. Circe tipped
off Sheriff Pluto that Scylla is on a balikbayan trip and is billeted
at the Century Plaza Hotel in Pasay City. Sheriff Pluto went to the
Defendant Dante said in his answer: "1. Plaintiff Perla claims hotel and personally served Scylla the summons, but the latter
that defendant Dante owes her P4,000 on the mobile phone that refused to receive summons for Charybdis as she was not autho-
she sold him; 2. But Perla owes Dante P6,000 for the dent on his rized to do so. Sheriff Pluto requested Scylla for the email ad-
car that she borrowed." How should the court treat the second dress and fax number of Charybdis which the latter readily gave.
statement? ’11 –Q47 Sheriff Pluto, in his return of the summons, stated that "Summons
(A) A cross claim for Scylla was served personally as shown by her signature on
(B) A compulsory counterclaim the receiving copy of the summons. Summons on Charybdis was
(C) A third party complaint served pursuant to the amendment of Rule 14 by facsimile trans-
(D) A permissive counterclaim mittal of the summons and complaint on defendant's fax number
as evidenced by transmission verification report automatically
generated by the fax machine indicating that it was received by
the fax number to which it was sent on the date and time indicat-
RULE 7 - PARTS OF A PLEADING ed therein."
Circe, sixty (60) days after her receipt of Sheriff Pluto's re-
turn, filed a Motion to Declare Charybdis in default as Charybdis
When a party or counsel willfully or deliberately commits did not file any responsive pleading.
forum shopping, the initiatory pleading may: ’12 – Q26 Should the court declare Charybdis in default? (2%) ’15 – Q2a
a) be cured by amendment of the complaint. Suggested Answer:
b) upon motion, be dismissed with prejudice. No, the Court should not declare Charybdis in default because
c) be summarily dismissed with prejudice as it may consti- there was no proper service of summons. Section 12, Rule 14 of the
tute direct contempt. Rules of Court applies only to a foreign private juridical entity that is not
d) be stricken from the record. registered in the Philippines and has no resident agent in the country,
SUGGESTED ANSWER: and not to individuals (A.M. No. 11-3-6-SC, March 15, 2011).The ser-
c) Be summarily dismissed with prejudice as it may constitute vice of summons by facsimile under said rule is, therefore, defective.
direct contempt. A foreclosure of real estate mortgage is a quasi in rem action,
If the acts of the party or his counsel clearly constitute willful and thus, the court can render a judgement as long as it has jurisdiction
deliberate forum shopping, the same shall be ground for summary over the res and any of the modes of extra-territorial service of sum-
dismissal with prejudice and shall constitute direct contempt, as well as mons under Sec. 15 and Rule 14 is complied with prior leave of court.
a cause for administrative sanctions (Rule 7, Sec. 5, Rules of Court). There is, unfortunately, no showing in the problem that a prior leave of
court was obtained before resorting to extra-territorial service of sum-
A certificate against Forum-Shopping is not required in: ’12 – mons; hence, the service of summons is defective.
Q99 Scylla seasonably filed her answer setting forth therein as a de-
a) petitions for probate of will. fense that Charybdis had paid the mortgage debt.
b) application for search warrant.
c) complaint-in-intervention. On the premise that Charybdis was properly declared in de-
d) petition for Writ of Kalikasan. fault, what is the effect of Scylla's answer to the complaint? (2%)
SUGGESTED ANSWER: ’15 – Q2b
b) Application for search warrant. Suggested Answer:
A certification against forum shopping is not required in an appli- Assuming that Charybdis was properly declared in default, the
cation for search warrant. The Rules of Court require only initiatory court shall try the case against all the defendants upon the Answer
pleadings to be accompanied with a certificate of non-forum shopping filed by Scylla, and render judgment upon the evidence presented
omitting any mention of “applications” as in Supreme Court Administra- (Section 3 (c), Rule 9, Rules of Court).
tive Circular No. 04-94. Hence, the absence of such certification will
not result in the dismissal of the application for search warrant. (Sav-
age vs. Judge A.B. Taypin, G.R> No. 134217, May 11, 2000). Mr. Humpty filed with the Regional Trial Court (RTC) a com-
plaint against Ms. Dumpty for damages. The RTC, after due pro-
ceedings, rendered a decision granting the complaint and order-
ing Ms. Dumpty to pay damages to Mr. Humpty. Ms. Dumpty time-
RULE 9 - EFFECT OF FAILURE TO PLEAD ly filed an appeal before the Court of Appeals (CA), questioning
the RTC decision. Meanwhile, the RTC granted Mr. Humpty’s mo-
Laura was the lessee of an apartment unit owned by Louie. When tion for execution pending appeal. Upon receipt of the RTC’s or-
the lease expired, Laura refused to vacate the property. Her re- der granting execution pending appeal, Ms. Dumpty filed with the
fusal prompted Louie to file an action for unlawful detainer CA another case, this time a special civil action for certiorari as-
against Laura who failed to answer the complaint within the re- sailing said RTC order. Is there a violation of the rule against fo-
glementary period. rum shopping considering that two (2) actions emanating from
the same case with the RTC were filed by Ms. Dumpty with the
Louie then filed a motion to declare Laura in default. Should the CA? Explain. (4%) ’14 – Q23
motion be granted? Explain your answer. (3%) ’17- Q8 Answer: No. There is no violence of the rule against forum shop-
SUGGESTED ANSWER ping. The essence of forum shopping is the filing by a party against
No, the motion should not be granted because it is a whom an adverse judgement has been rendered in one forum, seeking
prohibited pleading. Under Section 19 (b) of the Rules on Summa- another and possibly favorable opinion in another suir other than by
ry Procedure, a motion to declare defendant in default is among appeal or special civil action for certiorari; the act of filing of multiple
the pleadings that are prohibited in cases covered by said Rule. suits involving the same parties for the same cause of action, either
Considering that an action for unlawful detainer is covered by the simultaneously or successively for the purpose of obtaining favorable
judgement. Forum shopping exists where the elements of litis penden-

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Bar Ques)ons and Answers
tia are present or where a final judgement in one case will amount to [Note: There are additional remedies to address judgments by
res judicata in the action under consideration (Roberto S. Benedicto v. default: Motion for Reconsideration (Rule 37), Annulment of Judgment
Manuel Lacson, G. R. No. 141508, May 5, 2010). (Rule 47) and Petition for Certiorari (Rule 65).]
In Philippines Nails and Wires Corporation v. Malayan Insurance
Company, Inc. (G.R. No. 143933, February 14, 2003), the Supreme
Court held that one party may validly question a decision in a regular In a complaint filed by the plaintiff, what is the effect of the
appeal and at the same time assail the execution pending appeal via defendant’s failure to file an answer within the reglementary peri-
certiorari without violating the rule against forum shopping. This is od? (1%) ’13 – Q1
because the merits of the case will not be addressed in the petition (A) The court is allowed to render judgment motu proprio in
dealing with the execution and vice versa. favor of the plaintiff;
Since Ms. Dumpty merely filed a special civil action for certiorari, (B) The court motu proprio may declare the defendant in
the same will not constitute a violation of the rules on forum shopping default, but only after due notice to the defendant.
because the resolution or favorable judgment thereon will not amount (C) The court may declare the defendant in default but only
to res judicata in the subsequent proceedings between the same par- upon motion of the plaintiff and with notice to the defendant.
ties (Roberto S. Benedicto v. Manuel Lacson, G. R. No. 141508, May (D) The court may declare the defendant in default but only
5, 2010). upon motion of the plaintiff, with notice to the defendant, and
upon presentation of proof of the defendant’s failure to answer.
Alfie Bravo filed with the Regional Trial Court of Caloocan, a (E) The above choices are all inaccurate.
complaint for a sum of money against Charlie Delta. The claim is SUGGESTED ANSWER: (D) The court may declare the defen-
for Php1.5Million. The complaint alleges that Charlie borrowed the dant in default but only upon motion of the plaintiff, with notice to the
amount from Alfie and duly executed a promissory note as evi- defendant, and upon presentation of proof of the defendant’s failure to
dence of the loan. Charlie’s office secretary, Esther, received the answer.
summons at Charlie’s office. Under Section 3 of Rule 9, if the defending party fails to answer
Charlie failed to file an answer within the required period, within the time allowed, the court shall, upon motion of the claiming
and Alfie moved to declare Charlie in default and to be allowed to party with notice to the defending party, and proof of such failure, de-
present evidence ex parte. Ten days later, Charlie filed his verified clare the defending party in default (Narciso v. Garcia, G.R. No.
answer, raising the defense of full payment with interest. 196877, November 21, 2012).
Was there proper and valid service of summons on Charlie?
(3%) ’13 – Q1a A defendant who fails to file a timely Answer or responsive
SUGGESTED ANSWER: No. There is no showing that earnest pleading will not be declared in default in: ’12 – Q10
efforts were exerted to personally serve the summons on the defen- a) probate proceedings where the estate is valued at P 1
dant before substituted service was resorted to; hence, the service of 00,000;
summons was improper. b) forcible entry cases;
In an action strictly in personam like a complaint for a sum of c) collection case not exceeding P 100,000;
money, personal service on the defendant is the preferred mode of d) violation of rental law.
service, that is, by handing a copy of the summons to the defendant in SUGGESTED ANSWER
person. If defendant, for excusable reasons, cannot be served with the b) Forcible entry cases
summons within a reasonable period, then substituted service can be Under the Rules of Summary Procedure, if the defendant fails to
resorted to (Manotoc v. Court of Appeals, G.R. No. 130974, August 16, file an Answer to the complaint within a period of ten (10) days from
2006). Otherwise stated, it is only when the defendant cannot be receipt thereof, the court, may motu proprio, or on motion of the plain-
served personally within a reasonable time that a substituted service tiff, render judgment as may be warranted by the facts alleged in the
may be made. Impossibility of prompt service should be shown by complaint and limited to what is prayed therein. (Sec. 6, Revised Rules
stating the efforts made to find the defendant personally and the fact of Summary Procedure). There is no declaration of default under the
that such efforts failed. This statement should be made in the proof of Rules on Summary Procedure.
service (Galura v. Math-Agro Corporation, G.R. No. 167230, August c) Collection case not exceeding P100,000
14, 2009). A collection case not exceeding P100,000 is governed by the
Since there was no prior attempt to serve the summons in person, Rule on Small claims which does not vest the Court the power and
the substituted service to Charlie’s secretary is invalid. authority to declare a defendant in default.
ALTERNATIVE ANSWER: Yes. If earnest efforts were exerted to
serve the summons in person but the same proved futile, then substi- Being declared in default does not constitute a waiver of all
tuted service through defendant’s secretary is valid. In Gentle Supreme rights. However, the following right is considered waived: ’12 –
Philippines Inc v. Ricardo Consulta, (G.R. No. 183182, September 1, Q14
2010), the Supreme Court held that it is not necessary that the person a) be cited and called to testify as a witness
in charge of the defendant’s regular place of business be specifically b) file a motion for new trial
authorized to receive the summons. It is enough that he appears to be c) participate in deposition taking of witnesses of adverse
in charge. Consequently, the substituted service of summons to the party
defendant’s secretary in the office is valid. d) file a petition for certiorari
SUGGESTED ANSWER:
If declared in default, what can Charlie do to obtain relief? b) File a motion for new trial.
(4%) ’13 – Q1b A party declared in default cannot take part in the trial but is none-
SUGGESTED ANSWER: theless entitled to notices of subsequent proceedings. Thus, a party
If Charlie is declared in default, he has the following remedies, to declared in default is deemed to have waived his right to file a motion
wit: he may at any time after discovery of the default but before judg- for new trial since he had no right to an old trial n the first place.
ment, file a motion under oath to set aside the order of default on the
ground that his failure to answer was due to fraud, accident, mistake or ALTERNATIVE ANSWER:
excusable neglect and that he has a meritorious defense; if judgment NO CORRECT ANSWER. The Committee may recommend that
has already been rendered when he discovered the default, but before the examinee be given full credit for any answer because the question
the same has become final and executory, he may file a motion for new is very tricky.
trial under section 1(a) of Rule 37; if he discovered the default after the A party declared in default losses his standing in Court. He cannot
judgment has become final and executory, he may file a Petition for take part in the trial but he is entitled to notices of subsequent proceed-
Relief under Section 2 of Rule 38; and he may also appeal from the ings. (Section 3 (a), Rule 9, Rules of Court). When a defendant is de-
judgment rendered against him as contrary to the evidence or to the clared in default, he does not waive any of the above-mentioned rights.
law, even if no petition to set aside the order of default has been pre- A defendant may still be cited and called to testify as a witness
sented by him (B.D. Longspan Builders, Inc. v. R.S. Ampeloquio Realty since he will participate in the trial, not as a party but merely as a wit-
Development, Inc., G.R. No. 169919, September 11, 2009). ness. In fact, it is not a right but rather an obligation of a defendant

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Bar Ques)ons and Answers
cited and called to testify as a witness to so appear in court. He may thereby. The court may grant a continuance to enable the amendment
also participate in the deposition taking of witnesses of the adverse to be made.
party because the same is at the instance of the said adverse party
and may not yet be considered as part of the trial. The defendant can-
not also be said to have waived hi right to file a motion for new trial With leave of court, a party may amend his pleading if: ’12 –
since this is a remedy available before finality of a judgment declaring Q78
a party in default (BD Long Span Buidlers vs. R.S. Ampeloquio Realty a) there is yet no responsive pleading served.
Development, Inc., (G.R. No. 169919, September 11, 2009)). More- b) the amendment is unsubstantial.
over, a petition for certiorari under Rule 65 is not considered waived c) the amendment involves clerical errors of defect in the
because it is still an available remedy, if the declaration of default was designation of a party.
tainted with grave abuse of discretion. d) the amendment is to conform to the evidence.
In Martinez v. Republic, G.R. No. 160895, October 3., 2006, 506 SUGGESTED ANSWER:
SCRA 134, the Supreme Court has clearly discussed the remedies of a d) The amendment is to conform to the evidence.
party declared in default in light of the 1964 and 1997 Rules of Court When issues not raised by the pleadings are tried with the ex-
and a number of jurisprudence applying and interpreting said rules. press or implied consent of the parties, they shall be treated in all re-
Citing Lina v. Court of Appeals, No. L-63397, April 9, 1985, 135 SCRA spects as if they had been raised in the pleadings. Such amendment of
637, the High Court enumerated the following remedies, to wit: a) The the pleadings as may be necessary to sauce them to conform to the
defendant in default may, at any time after discovery after discovery evidence and to raise these issues may be made upon motion of any
thereof and before judgment, file a motion, under oath, to set aside the party at any time, even after judgment; but failure to amend does not
order of default on the ground that his failure to answer was due to affect the result of the trial of these issues. (Rule 10, Sec. 5, Rules of
fraud, accident, mistake or excusable neglect, and that he has merito- Court).
rious defenses; (Sec. 3, Rule 18); b) If the judgment has already been
rendered when the defendant discovered the default, but before the
same has become final and executor, he may file a motion for new trial RULE 12 - MOTION FOR BILL OF PARTICULARS
under Section 1 (a) of Rule 37; c) If the defendant discovered the de-
fault after the judgment has become final and executor, he may file a
petition for relief under Section 2 of Rule 38; and d) He may also ap-
peal from the judgment rendered against his as contrary to the evi- X filed a motion for Bill of Particulars, after being served with
dence or to the law, even if no petition is set aside the order of default summons and a copy of the complaint However, X's motion did
has been presented by him. (Rule 41, Sec. 2, Rules of Court) (Rebec- not contain a notice of hearing. The court may therefore: ’12 – Q6
ca T. Arquero vs. Court of Appeals, G.R. No. 168053, Sept. 21, 2011, a) require the clerk of court to calendar the motion.
Peralta, J.) b) motu proprio dismiss the motion for not complying with
Rule 15.
Which of the following grounds for dismissal invoked by the c) allow the parties the opportunity to be heard.
court will NOT PRECLUDE the plaintiff from refiling his action? ’11 d) return the motion to X's counsel for amendment.
– Q15 SUGGESTED ANSWER:
(A) Res judicata. b) Motu proprio dismiss the motion for not complying with Rule
(B) Lack of jurisdiction over the subject matter. 15.
(C) Unenforceability under the Statutes of Fraud. A motion for bill of particulars which does not contain a notice of
(D) Prescription. hearing is considered pro forma. As such, the motion is a useless
piece of paper without force and effect which must not be taken cog-
nizance by court. (Preysler, Jr. vs Manila Southcoast Development
RULE 10 - AMENDED AND SUPPLEMENTAL PLEADINGS Corportion, G.R. No. 171872, June 28, 2010).

ALTERNATIVE ANSWER:
Danny filed a complaint for damages against Peter. In the c) Allow the parties the opportunity to be heard.
course of the trial, Peter introduced evidence on a matter not Under Section 2, Rule 12 of the Rule of Court, upon filing of a
raised in the pleadings. Danny promptly objected on the ground Motion for Bill of Particulars, the clerk of court must immediately bring it
that the evidence relates to a matter not in issue. How should the to the attention of the court which may either deny or grant it outright,
court rule on the objection? (1%) ’13 – Q19 or allow the parties the opportunity to be heard.
(A) The court must sustain the objection.
(B) The court must overrule the objection. A court can motu proprio dismiss a case on the following
(C) The court, in its discretion, may allow amendment of the grounds, except: ’12 – Q73
pleading if doing so would serve the ends of substantial justice. a) failure to prosecute;
(D) The court, in its discretion, may order that the allegation b) lack of jurisdiction over the parties;
in the pleadings which do not conform to the evidence presented c) litis pendentia;
be stricken out. d) prescription.
(E) The matter is subject to the complete discretion of the SUGGESTED ANSWER:
court. b) Lack of jurisdiction over the parties.
SUGGESTED ANSWER: (A) The court must sustain the objec- A court cannot motu propio dismiss a case on the ground of lack
tion. of jurisdiction over the parties because the objection on the said
(C) The court, in its discretion, may allow amendment of the ground can be waived by the failure of the defendant to raise the same
pleading if doing so would serve the ends of substantial justice. in his motion to dismiss or in his answer as an affirmative defense.
Under Section 5 of Rule 10, when issues not raised by the plead- (Rule 9, Sec. 1, Rules of Court).
ings are tried with the express or implied consent of the parties they
shall be treated in all respects as if they had been raised in the plead- A defendant declared in default may, after judgment but be-
ings. Such amendment of the pleadings as may be necessary to cause fore finality, file a: ’12 – Q77
them to conform to the evidence and to raise these issues may be a) Petition for Relief from Judgment;
made upon motion of any party at any time, even after judgment; but b) Petition for Certiorari;
failure to amend does not affect the result of the trial of these issues. If c) Motion for Reconsideration;
evidence is objected to at the trial on the ground that it is not within the d) Motion to Set Aside Order of Default.
issues made by the pleadings, the court may allow the pleadings to be SUGGESTED ANSWER:
amended and shall do so with liberality if the presentation of the merits c) Motion for Reconsideration
of the action and the ends of substantial justice will be subserved A defendant declared in default may, after judgment but before
finality file a Motion for Reconsideration in order to give the Court an

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Bar Ques)ons and Answers
opportunity to rectify its mistakes and set aside the previous judgment way of substituted service, to the clerk of court with proof
by default before it attains finality. of failure to serve the motion, both by way or personal
service or service by mail. (Rule 13, Sec. 8, Rules of
ALTERNATIVE ANSWER: Court).
A defendant declared in default may, after judgment but before
finality, file a Motion for New Trial. X filed a complaint with the RTC through ABC, a private letter
It is well-settled that a defendant who has been declared in de- forwarding agency. The date of filing of the complaint shall be: ’12
fault has the following remedies, to writ: (1) he may, at any time after – Q87
discovery of the default but before judgment, file a motion, under oath, a) the date stamped by ABC on the envelope containing
to set aside the order of default on the ground that his failure to answer the complaint.
was due to fraud, accident, mistake or excusable neglect, and that he b) the date of receipt by the Clerk of Court.
has a meritorious defense; (2) if judgment has already been rendered c) the date indicated by the receiving clerk of ABC.
when he discovered the default, but before the same has become final d) the date when the case is officially raffled.
and executor, he may file a motion of new trial under Section 1(a) of SUGGESTED ANSWER:
Rule 37; (3) if he discovered the default after the judgment has be- b) The date of receipt by the Clerk of Court.
come final and executor, he may file a petition for relief under Section 2 Under the Rules, the manner of filing of pleadings, appearances,
of Rule 38; and (4) he may also appeal from the judgment rendered motions, notices, judgments and all other papers shall only be made by
against him as contrary to the evidence or to the law, even if no petition presenting the original copies thereof, plainly indicated as such, per-
to set aside the order of default has been presented by him. (B.D. Long sonally to the clerk of court or by sending them by registered mail.
Span Builders vs. R.S. Ampeloquio Realty Development, Inc., G.R. No. (Rule 13, Sec. 3). Nonetheless, if the complaint was filed with the court
169919, September 11, 2009). through a private letter-forwarding agency, the established rule is that
the date of delivery of pleadings to a private letter-forwarding agency is
not to be considered as the date of filing in court, but rather the date of
actual receipt by the court, is deemed to be the date of filing of the
RULE 13 - FILING AND SERVICE OF PLEADINGS, JUDGMENTS pleading. (Benguet Electric Cooperative, Inc vs. National Labor Rela-
AND OTHER PAPERS tions Commission, G.R. No. 89070 May 18, 1992). Hence, the date of
actual receipt by the court is considered as the date of filing of the
complaint.
Extra-territorial service of summons is proper in the follow-
ing instances, except __________. (1%) ’13 – Q16 Which of the following is NOT REGARDED as a sufficient
(A) when the non-resident defendant is to be excluded from proof of personal service of pleadings? ’11 – Q24
any interest on a property located in the Philippines (A) Official return of the server.
(B) when the action against the non-resident defendant af- (B) Registered mail receipt.
fects the personal status of the plaintiff and the defendant is tem- (C) Written admission of the party served.
porarily outside the Philippines (D) Affidavit of the server with a statement of the date, place and
(C) when the action is against a non-resident defendant who manner of service.
is formerly a Philippine resident and the action affects the per-
sonal status of the plaintiff
(D) when the action against the non-resident defendant re- RULE 14 - SUMMONS
lates to property within the Philippines in which the defendant
has a claim or lien
(E) All of the above. Teddy filed against Buboy an action for rescission of a contract
SUGGESTED ANSWER: There is no correct answer. It is recom- for the sale of a commercial lot. After having been told by the wife
mended that any answer chosen by the examinee should be credited of Buboy that her husband was out of town and would not be
as a correct one. back until after a couple of days, the sheriff requested the wife to
Under Section 15 of Rule 14, Extraterritorial service of summons just receive the summons in behalf of her husband. The wife ac-
is applicable, when the defendant does not reside and is not found in ceded to the request, received the summons and a copy of the
the Philippines, and the action affects the personal status of the plaintiff complaint, and signed for the same.
or relates to, or the subject of which is, property within the Philippines,
in which the defendant has or claims a lien or interest, actual or contin- (a)
Was there a valid service of summons upon Buboy?
gent, or in which the relief demanded consists, wholly or in part, in Explain your answer briefly. (3%) ’17 – Q11
excluding the defendant from any interest therein, or the property of SUGGESTED ANSWER
the defendant has been attached within the Philippines. (a) No, there was no valid service of summons in this case,
Extra-territorial service of summons is applicable to all the choices since the summons was not personally received by
given from A to D. If the word ”except” were omitted, the answer would Buboy. For substituted service of summons to be avail-
have been letter (E), or else, letter “E” should have stated “None of the able, there must be several attempts y the sheriff to per-
above”. sonally serve the summons within a reasonable period.
“Several attempts: means at least three tries, perfable
on at least two different dates” (Manotoc v. Court of
Atty. X fails to serve personally a copy of his motion to Atty. Appeals, G.R. No. 130974, August 16, 2006).
Y because the office and residence of Atty. Y and the latter's client
changed and no forwarding addresses were given. Atty. X's reme- (b) If Buboy files a motion to dismiss the complaint based on the
dy is to: ’12 – Q31 twin grounds of lack of jurisdiction over his person and prescrip-
a) Serve by registered mail; tion of the cause of action, may he be deemed to have voluntarily
b) Serve by publication; submitted himself to the jurisdiction of the court? Explain your
c) Deliver copy of the motion to the clerk of court with answer briefly. (3%)
proof of failure to serve;
d) Certify in the motion that personal service and through SUGGESTED ANSWER
mail was impossible. (b) No, the filing of the motion to dismiss, assailing the
SUGGESTED ANSWER: jurisdiction of the court over his person, together with
c) Deliver copy of the motion to the clerk of court with proof of other grounds raised therein, is not a voluntary submis-
failure to serve sion to the court’s juristdiction (Garcia v. Sandigan-
Since the office and place of residence of the Atty. X and bayan, G.R. No. 170122, October 12, 2009). Under Sec-
the latter’s client changed and no forwarding address tion 20, Rule 14 of the Rules of Court, the defendant’s
were given, Atty. X can deliver a copy of the motion by voluntary appearance in the action shall be equivalent to

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Bar Ques)ons and Answers
service of summons. The inclusion in a motion to dis- duty to apply, the Sheriffs Return must show that serious efforts or
miss on the other grounds aside from lack of jurisdic- attempts were exerted to personally serve the summons and that said
tion over the person of the defendant shall not be efforts failed. These facts must be specifically narrated in the Return. It
deemed voluntary appearance. must clearly show that the substituted service must be made on a per-
son of suitable age and discretion living in the dwelling or residence of
The filing of a motion is deemed voluntary submission to the defendant; otherwise, the Return is flawed and the presumption cannot
court’s jurisdiction only when it constitutes an unqualified volun- be availed of. The Supreme Court laid down the requirements as fol-
tary appearance before the court, such that the defendant failed lows:
to object to the court’s jurisdiction over his person (PV1B v.
Spouses Dy, G.R. No. 171137, June 5, 2009). (1) Impossibility of prompt personal service, the party relying on substi-
tuted service or the sheriff must show that defendant cannot be served
W, a legal researcher in the RTC of Makati, served summons promptly or there is impossibility of prompt service within a reasonable
on an amended complaint on Z at the latter's house on a Sunday. time. Reasonable time being "so much time as is necessary under the
The service is invalid because: ’12 – Q40 circumstances for a reasonably prudent and diligent man to do, conve-
a) it was served on a Sunday. niently, what the contract or duty requires that should be done, having
b) the legal researcher is not a "proper court officer". a regard for the rights and possibility of loss, if any to the other party".
c) (a) and (b) above Moreover, it must be indicated therein that the sheriff has made several
d) there is no need to serve summons on an amended attempts at personal service for at least three (3) times on at least two
complaint. (2) different dates.
SUGGESTED ANSWERS:
b) The legal researcher is not a “proper court officer”. (2) Specific details in the return, i.e., the sheriff must describe in the
The Rules do not allow a legal researcher to serve summons on Return of Summons the facts and circumstances surrounding the at-
an amended complaint. He is not the proper court officer who is duly tempted personal service.
authorized to serve the summons to the defendants. The Question is
about validity and not superfluity. (3) Substituted service effected on a person of suitable age and discre-
d) There is no need to serve summons on an amended com- tion residing at defendant's house or residence; or on a competent
plaint. person in charge of defendant's office or regular place of business (Ma.
Where the defendants have already appeared before the trial Imelda M. Manotoc v. Court of Appeals, G.R. No. 130974 August 16,
court by virtue of a summons on the original complaint, the amended 2006)
complaint may be served upon them without need of another sum-
mons, even if new causes of action are alleged. (Vlason Enterprises Tristan filed a suit with the RTC of Pasay against Arthur King and/or
Corporation vs. Court of Appeals, G.R. Nos. 121662-64.July 6, 1999). Estate of Arthur King for reconveyance of a lot declared in the name of
Arthur King under TCT No. 1234. The complaint alleged that "on ac-
Proof of service of summons shall be through the following, count Arthur King's residence abroad up to the present and the uncer-
except: ’12 – Q54 tainty of whether he is still alive or dead, he or his estate may be
a) written return of the sheriff; served with summons by publication." Summons was published and
b) affidavit of the person serving summons; nobody filed any responsive pleading within sixty (60) days therefrom.
c) affidavit of the printer of the publication; Upon motion, defendants were declared in default and judgment was
d) written admission of the party served. rendered declaring Tristan as legal owner and ordering defendants to
SUGGESTED ANSWER: reconvey said lot to Tristan.
d) Written admission of the party served.
Proof of service of summons shall be made in writing by the
Jojo, the court-designated administrator of Arthur King's estate,
server and shall be sworn to when made by a person other than a
filed a petition for annulment of judgment before the CA praying
sheriff or his deputy (Rule 14, Sec. 18, Rules of Court). If the service
that the decision is favor of Tristan be declared null and void for
by the affidavit of the printer to which a copy of the publication shall be
lack of jurisdiction. He claims that the action filed by Tristan is an
attached, and directed to the defendant by registered mail to his last
action in personam and that the court did not acquire jurisdiction
known address. (Rule 14, Sec. 19, Rules of Court).
over defendants Arthur King and/or his estate. On the other hand,
Tristan claims that the suit is an action in rem or at least an action
Juan sued Roberto for specific performance. Roberto knew that
quasi in rem. Is the RTC judge correct in ordering service of
Juan was going to file the case so he went out of town and tem-
summons by publication? Explain. (5%) ’16 – Q19
porarily stayed in another city to avoid service of summons. Juan
engaged the service of Sheriff Matinik to serve the summons but
when the latter went to the residence of Roberto, he was told by SUGGESTED ANSWER:
the caretaker thereof that his employer no longer resides at the
house. The caretaker is a high school graduate and is the godson Yes. The RTC Judge is correct in ordering the service of summons by
of Roberto. Believing the caretaker's story to be true, Sheriff Ma- publication. An action for declaration of nullity of title and recovery of
tinik left a copy of the summons and complaint with the caretaker. ownership of real property, or re-conveyance, is a real action but it is
Was there a valid substituted service of summons? Discuss the an action in personam, for it binds a particular individual only although
requirements for a valid service of summons. (5%) ’16 – Q8 it concerns the right to a tangible thing. Any judgment therein is binding
only upon the parties properly impleaded (Heirs of Eugenio Lopez, Sr.
SUGGESTED ANSWER: v. Enriquez cited in Emerita Munoz v. Atty. Victoriano R. Yabut, Jr. and
Samuel Go Chan, G.R. No. 142676, June 6, 2011).
No. There was no valid substituted service of summons. In an action
strictly in personam, personal service on the defendant is the preferred In an action in personam, jurisdiction over the person of the defendant
mode of service, that is, by handing a copy of the summons to the is necessary for the court to validly try and decide the case. Jurisdic-
defendant in person. If defendant, for excusable reasons, cannot be tion over the person of a resident defendant who does not voluntarily
served with the summons within a reasonable period, then substituted appear in court can be acquired by personal service of summons as
service can be resorted to. While substituted service of summons is provided under Section 7, Rule 14 of the Rules of Court. If he cannot
permitted, it is extraordinary in character and in derogation of the usual be personally served with summons within a reasonable time, substi-
method of service; hence, it must faithfully and strictly comply with the tuted service may be made in accordance with Section 8 of said Rule
prescribed requirements and circumstances authorized by the rules. (Spouses Domingo M. Belen, et. al., v. Hon. Pablo R. Chavez, et al.
Compliance with the rules regarding the service of summons is as G.R. No. 175334, March 26, 2008).
important as the issue of due process for the Court to acquire jurisdic-
tion. For the presumption of regularity in the performance of official Under Section 14, Rule 14, Rules of Court, in any action where the
defendant is designated as an unknown owner, or the like, or whenev-

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er his whereabouts are unknown and cannot be ascertained by diligent administrative (Dolot v. Hon. Paje., G.R. No. 199199, August 27, 2013;
inquiry, service may, by leave of court, be effected upon him by publi- Paje v. Casino, G.R. No, 207257, February 3, 2015).
cation in a newspaper of general circulation and in such places and for Alternative Answer:
such time as the court may order. This rule applies to any action, No, the Court should not dismiss the petition because the doctrine
whether in personam, in rent or quasi in rem. (Pedro T. Santos, Jr., v. of exhaustion of administrative remedies finds no application when the
PNOC Exploration Corporation, G.R. No. 170943, September 23, matter is of extreme urgency that may cause great ad irreparable
2008). Clearly, since the action for re-conveyance is an action in per- damage to the environment involving strong public interest. After all,
sonam, the RTC Judge is correct in ordering service of summons by the Court may suspend the rules of procedure in order to achieve sub-
publication. stantial justice, and to address urgent and paramount State interests
vital to the life of our nation (Boracay Foundation, Inc. v. Province of
ALTERNATIVE ANSWER: Aklan, G.R. No. 196870, June 26, 2012; Paje v. Casino, G.R. No,
207257, February 3, 2015).
No. The RTC Judge is not correct in ordering service of summons by
publication. It is well-settled that in an action in personam wherein the Aldrin entered into a contract to sell with Neil over a parcel of
defendant is a non-resident who does not voluntarily submit himself to land. The contract stipulated a P500,000.00 down payment upon
the authority of the court, personal service of summons within the state signing and the balance payable in twelve (12) monthly install-
is essential to the acquisition of jurisdiction over her person. This ments of Pl00,000.00. Aldrin paid the down payment and had paid
method of service is possible if such defendant is physically present in three (3) monthly installments when he found out that Neil had
the country. If he is not found therein, the court cannot acquire jurisdic- sold the same property to Yuri for Pl.5 million paid in cash. Aldrin
tion over his person and therefore cannot validly try and decide the sued Neil for specific performance with damages with the RTC.
case against him (Spouses Domingo M. Belen, et. al., v. Hon. Pablo R. Yuri, with leave of court, filed an answer-in-intervention as he had
Chavez, et al. G.R. No. 175334, March 26, 2008). Accordingly, the already obtained a TCT in his name. After trial, the court rendered
RTC Judge is not correct in ordering service of summons by publica- judgment ordering Aldrin to pay all the installments due, the can-
tion. cellation of Yuri's title, and Neil to execute a deed of sale in favor
of Aldrin. When the judgment became final and executory, Aldrin
RULE 16 - MOTION TO DISMISS paid Neil all the installments but the latter refused to execute the
deed of sale in favor of the former.
Aldrin filed a "Petition for the Issuance of a Writ of Execu-
tion" with proper notice of hearing. The petition alleged, among
A law was passed declaring Mt. Karbungko as a protected
others, that the decision had become final and executory and he
area since it as a major watershed. The protected area covered a
is entitled to the issuance of the writ of execution as a matter of
portion located in Municipality A of the Province I and a portion
right. Neil filed a motion to dismiss the petition on the ground that
located in the City of Z of Province II. Maingat is the leader of
it lacked the required certification against forum shopping.
Samahan ng Tagapag-ingat ng Karbungko (STK), a people's orga-
Should the court grant Neil's Motion to Dismiss? (3%) ’15 –
nization. He learned that a portion of the mountain located in the
Q8a
City of Z of Province II was extremely damaged when it was bull-
Suggested Answer:
dozed and leveled to the ground, and several trees and plants
No. The motion to dismiss should be denied because certification
were cut down and burned by workers of World Pleasure Resorts,
against forum shopping is only required in a complaint or other initiato-
Inc. (WPRI) for the construction of a hotel and golf course. Upon
ry pleading (Section 5, Rule 7, Rules of Court; Arquiza v. CA [2005]).
inquiry with the project site engineer if they had a permit for the
Since a petition for the issuance of a writ of execution is not an initiato-
project, Maingat was shown a copy of the Environmental Compli-
ry pleading, it does not require a certification against forum shopping.
ance Certificate (ECC) issued by the DENR-EMB, Regional Direc-
[Note: The Committee respectfully recommends a liberal ap-
tor (RD-DENR-EMB). Immediately, Maingat and STK filed a petition
proach in checking the answer to Question VIII, should be the exami-
for the issuance of a writ of continuing mandamus against RD-
nees consider the “Petition for the Issuance of a Writ of Execution” an
DENR-EMB and WPRI with the RTC of Province I, a designated
initiatory pleading or question the correctness of the Trial Court’s deci-
environmental court, as the RD-DENR-EMB negligently issued the
sion. The contract with Aldrin is a contract to sell with the purchase
ECC to WPRI.
price not fully paid, while that of Yuri is a perfected contract of sale,
On scrutiny of the petition, the court determined that the area
plus delivery of the public document and issuance of TCT, making Yuri
where the alleged actionable neglect or omission subject of the
the owner of the land].
petition took place in the City of Z of Province II, and therefore
cognizable by the RTC of Province II. Thus, the court dismissed
Despite the issuance of the writ of execution directing Neil to
outright the petition for lack of jurisdiction.
execute the deed of sale in favor of Aldrin, the former obstinately
Was the court correct in motu proprio dismissing the peti-
refused to execute the deed.
tion? (3%) ’15 – Q6a
What is Aldrin's remedy? (2%) ’15 – Q8b
Suggested Answer:
Suggested Answer:
No. The court was not correct in motu propio dismissing the peti-
Aldrin may move for the issuance of a court order directing the
tion. While it appears that the alleged actionable neglect or omission
execution of the Deed of Sale by some other person appointed by it.
took place in the City of Z of Province II and, therefore cognizable by
Under Section 10, Rule 39 of the Rules of Court, if a judgment
the RTC of Province II, nonetheless, venue is not jurisdictional, and it
directs a party to execute a conveyance of land or personal property, or
can be waived in a special civil action for continuing mandamus (Dolot
to deliver deeds or other documents, or to perform, any other specific
v. Paje, G.R. No. 199199, August 27,2013).
act in connection therewith, and the party fails to comply within the
Besides, under Section I, Rule 9 of the Rules of Court, defenses
time specified, the court may direct the act to be done at the cost of the
and objections not pleaded in the answer or in the motion to dismiss
disobedient party by some other person appointed by the court and the
are deemed waived. Hence, the Court cannot motu proprio dismiss the
act when so done shall have like effect as if done by the party. If real or
case on the ground of improper venue.
personal property is situated within the Philippines, the court in lieu of
Assuming that the court did not dismiss the petition, the RD-
directing a conveyance thereof may by an order divest the title of any
DENR-EMB in his Comment moved to dismiss the petition on the
party and vest it in others, which shall have the force and effect of a
ground that petitioners failed to appeal the issuance of the ECC
conveyance executed in due form of law.
and to exhaust administrative remedies provided in the DENR
The phrase “some other person appointed by the court” may refer
Rules and Regulations.
to the Branch Clerk of Court, Sheriff or even the Register of Deeds,
Should the court dismiss the petition? (3%)’15 – Q6b
and their acts when done under such authority shall have the effect of
Suggested Answer:
having been done by Neil himself.
Yes, the Court should dismiss the petition because the proper
Alternative Answer:
procedure to question a defect in an ECC is to follow DENR adminis-
trative appeal process in accordance with the doctrine of exhaustion of

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Bar Ques)ons and Answers
Aldrin may also move that Neil be cited for contempt because of (B) If the RTC denies Ms. Bright’s motion to dismiss, what
his obstinate refusal to comply with the judgment of the court to exe- will be her remedy/remedies? - ’14 – Q27B
cute a Deed of Sale. (B) (1) Ms. Bright may file a motion for reconsideration. If the
same is denied, she could file a special civil action for certiorari under
Prince Chong entered into a lease contract with King Kong Rule 65 of the Rules of Court. An Order denying a motion to dismiss is
over a commercial building where the former conducted his interlocutory because ir does not finally dispose of the case, and in
hardware business. The lease contract stipulated, among others, effect, directs the case to proceed until final adjudication by the court.
a monthly rental of P50,000.00 for a four (4)-year period com- Hence, a special civil action on certiorari is the appropriate remedy
mencing on January 1, 2010. On January 1, 2013, Prince Chong (Section 1, Rule 41, Rules of Court; Marmo v. Anacay, G.R. No.
died. Kin Il Chong was appointed administrator of the estate of 182585, November 27, 2009).
Prince Chong, but the former failed to pay the rentals for the (2) Ms. Bright may file an Answer within the balance of the period
months of January to June 2013 despite King Kong’s written de- from the filing of his Motion to Dismiss but not less than five (5) days
mands. Thus, on July 1, 2013, King Kong filed with the Regional and raise affirmative defenses therein (Sections 4 and 6, Rule 16,
Trial Court (RTC) an action for rescission of contract with dam- Rules of Court).
ages and payment of accrued rentals as of June 30, 2013. (4%) (C) If the RTC denies Ms. Bright’s motion to dismiss and,
(A) Can Kin Il Chong move to dismiss the complaint on the further proceedings, including trial on the merits, are conducted
ground that the RTC is without jurisdiction since the amount until the RTC renders a decision in favor of Mr. Avenger, what will
claimed is only P300,000.00? be the remedy/remedies of Ms. Bright? ’14 – Q27C
(B) If the rentals accrued during the lifetime of Prince Chong,
and King Kong also filed the complaint for sum of money during (C) Ms. Bright may avail of the following remedies before the
that time, will the action be dismissible upon Prince Chong’s finality of the decision:
death during the pendency of the case? ’14 – Q10 1. a motion for reconsideration (Section 1, Rule 37).
Answer: (A) No. Kin II Chong cannot move to dismiss the Com- 2. a motion for new trial (Section 1, Rule 37).
plaint. An action for rescission of contract with damages and payment 3. appeal (Rules 40, 41, 42, 43 and 45).
of accrued rentals is considered incapable of pecuniary estimation and After the finality of the Decision, Ms. Bright can avail of the follow-
therefore cognizable by the Regional Trial Court (Ceferina De Ungria v. ing:
Honorable Court of Appeals, G.R. No. 165777, July 25, 2011). 1. Petition for Relief (Rule 38)
(B) No, the action will not be dismissible upon Prince Chong’s
death during the pendency of the case. 2. Annulment of Judgement (Rule 47)
When the action is for recovery of money arising from contract,
and the defendant dies before entry of final judgement in the court I 3. Petition for Certiorari (Rule 65)
ehich the action was pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final
judgement. A favorable judgment obtained by the plaintiff shll be en-
X and Y, both residents of Bgy. II, Sampaloc, Manila entered
forced under Rule 86 *Section 20, Rule 3 of the Rules of Court).
into a P 100,000 loan agreement. Because Y defaulted, X sued Y
Relative thereto, since the complaint sum of money filed by King
for collection and the complainant prayed for issuance of prelimi-
Kong survives the death of Prince Chong, the case shall not be dis-
nary attachment. Y moved to dismiss the complaint because there
missed and the court shall merely order the substitution of the de-
was no Barangay conciliation. The court should therefore: ’12 –
ceased defendant (Atty. Rogelio E. Sarsaba v. Fe Vda. De Te, G.R. No.
Q28
175910, July 30, 2009).
a) dismiss X's complaint for prematurity.
b) dismiss X's complaint for lack of cause of action.
Mr. Avenger filed with the Regional Trial Court (RTC) a com-
c) deny Y's motion because it is exempt from Barangay
plaint against Ms. Bright for annulment of deed of sale and other
conciliation.
documents. Ms. Bright filed a motion to dismiss the complaint on
d) deny Y's motion because of the amount of the loan.
the ground of lack of cause of action. Mr. Avenger filed an opposi-
SUGGESTED ANSWER:
tion to the motion to dismiss. State and discuss the appropriate
c) Deny Y’s motion because it is exempt from Barangay concilia-
remedy/remedies under each of the following situations: (6%)
tion.
(A) If the RTC grants Ms. Bright’s motion to dismiss and dis-
As a general rule, no complaint, petition, action or proceeding
misses the complaint on the ground of lack of cause of action,
involvement any matter within the authority of the Lupon shall be filed
what will be the remedy/remedies of Mr. Avenger? - ’14 – Q27A
or instituted in court or any other government office for adjudication
Amswer: (A) Mr. Avenger can choose any of the following reme-
unless there has been a confrontation of the parties before the Lupon
dies:
Chairman or the Pangkat and no conciliation or settlement has been
(1) Mr. Avenger may file a motion for reconsideration. If denied,
reached as certified by the Lupon Secretary of the Pangkat Secretary,
he could file an appeal to the Court of Appeals under Rule 41 since a
attested by the Lupon or Pangkat Chairman, or unless the settlement
dismissal based on lack of cause of action (under Rule 33) is appeal-
has been repudiated. However, the parties may go directly to the court
able.
in actions coupled with provisional remedies such as preliminary iin-
(2) Mr. Avenger may file a motion for reconsideration. If the junctionm attachment, delivery of personal property and support pen-
same is denied, he could file a petition for Certiorari under Rule 65 dente lite. (Sec. 6, P.D. 1508, Katarugang Pambarangay Law). Since
because a dismissal based on failure to state a cause of action is con- X’s complaint against Y involves collection of sum of money with
sidered without prejudice and therefore an interlocutory order which prayer for issuance of preliminary attachmen, there is no need for prior
cannot be a subject of an appeal under Rule 41 of the Rules of Court. barangay conciliation, and therefore the Court should deny Y’s Motion
to Dismiss.
(3) Mr. Avenger may file a motion for reconsideration. If the
same is denied, he can simple re-file the complaint because an Order A complaint may be refiled if dismissed on which of the fol-
granting a Motion to Dismiss based on failure to state a cause of action lowing grounds? ’12 – Q38
is without prejudice to the filing of another Complaint (Section 5, Rule a) unenforceable under the Statute of Frauds;
16, Rules of Court. b) Res Judicata;
c) Litis Pendencia;
(4) Mr. Avenger may amend his complaint, as a matter of right, d) Lack of jurisdiction.
since a Motion to Dismiss is not a responsive pleading (Irene Marcos SUGGESTED ANSWERS:
Araneta v. Court of Appeals, G.R. No. 154096, August 22, 2008). c) Litis Pendentia
d) Lack of jurisdiction
An order granting a motion to dismiss shall bar the refilling of the
same action or claim based in the following grounds, namely: res judi-

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Bar Ques)ons and Answers
cata, prescription, claim or demand is paid, waived, abandoned or Pedro and Juan are resident of Barangay Ifurug, Municipality of
otherwise extinguished, and the claim on which the action is founded is Dupac, Mountain Province. Pedro owes Juan the amount of
unforceable under the Status of Frauds. (Rule 16, Sec. 5, (f), (h), and P50,000.00. Due to nonpayment, Juan brought his complaint to
(i), Rules of Court). The Rules do not include litis pendentia and lack of the Council of Elders of said barangay which implements the
jurisdiction. bodong justice system. Both appeared before the council where
they verbally agreed that Pedro will pay in installments on specif-
After a hearing on a Motion to Dismiss, the court may either ic due dates. Pedro reneged on his promise. Juan filed a com-
dismiss the case or deny the same or: ’12 – Q62 plaint for sum of money before the Municipal Trial Court (MTC).
a) defer resolution because the ground relied upon is not Pedro filed a Motion to Dismiss on the ground that the case did
indubitable. not pass through the barangay conciliation under R.A. No. 7160
b) order amendment of the pleading and that the RTC, not the MTC, has jurisdiction. In his opposition,
c) conduct a preliminary hearing Juan argued that the intervention of the Council of Elders is sub-
d) None of the above. stantial compliance with the requirement of R.A. No. 7160 and the
SUGGESTED ANSWER: claim of P50,000.00 is clearly within the jurisdiction of the MTC.
b) Order amendment of the pleading As MTC judge, rule on the motion and explain. (5%) ’16 – Q6
After the hearing of a motion to dismiss, the court may dismiss the
action or claim, deny the motion, or order the amendment of the plead- SUGGESTED ANSWER:
ing. The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable. (Rule 16, Sec. 3, Rules The Motion to Dismiss should be denied. As a general rule, no com-
of Court) plaint involving any matter within the authority of the Lupon shall be
instituted or filed directly in court for adjudication unless there has been
Eduardo, a resident of the City of Manila, filed before the Regional a confrontation between the parties in the barangay and no settlement
Trial Court (RTC) of Manila a complaint for the annulment of a was reached (Section 412(a) of Republic Act No. 7160; April Martinez,
Deed of Real Estate Mortgage he signed in favor of Galaxy Bank vs. Rodolfo G. Martinez, G.R. No. 162084, June 28, 2005). However,
(Galaxy), and the consequent foreclosure and auction sale on his in barangays where majority of the inhabitants are members ofindige-
mortgaged Makati property. Galaxy filed a Motion to Dismiss on nous cultural communities, local systems of settling disputes through
the ground of improper venue alleging that the complaint should their councils of datus or elders shall be recognized without prejudice
be filed with the RTC of Makati since the complaint involves the to the applicable provisions of the Local Government Code (Sections
ownership and possession of Eduardo's lot. Resolve the motion 399, R.A. 7160). As a consequence, the customs and traditions of
with reasons. (5%) ’16 – Q4 indigenous cultural communities shall be applied in settling disputes
between members of the cultural communities (Sections 412, R.A.
SUGGESTED ANSWER: 7160), thus, the confrontation between Pedro and Juan before the
Council of Elders of their barangay is sufficient compliance with the
The Motion to dismiss should be granted. An action for nullification of precondition for filing the case in court under Section 412 of R.A. No.
the mortgage documents and foreclosure of the mortgaged property is 7160 (Zamora v. Heirs of Izquierdo, G.R. No. 146195, 18 November
a real action that affects the title to the property; thus, venue of the real 2004).
action is before the court having jurisdiction over the territory in which
the property lies (Jimmy T. Go v. United Coconut Planters Bank, G.R. Be that as it may, it is well-settled that the mode of enforcement of an
No. 156187, November 11, 2004; Chua v. Total Office Products & Ser- amicable settlement under the Katarungan Pambarangay Law does
vices, September 30, 2005). not rule out the right of rescission under Art. 2041 of the Civil Code
(Crisanta Miguel v. Montanez, January 25, 2014). Accordingly, when
In Fortune Motors v. Court of Appeals, (G.R. No. 112191, February 7, Juan filed a complaint for sum of money in the MTC, he is deemed to
1997), the Supreme Court also held that an action to annul a foreclo- have rescinded the compromise agreement reached before the Coun-
sure sale of a real estate mortgage is no different from an action to cil of Elders of the barangay.
annul a private sale of real property. While it is true that petitioner does
not directly seek the recovery of title or possession of the property in Henceforth, Pedro is incorrect in alleging that the RTC, not the MTC,
question, his action for annulment of sale and his claim for damages has jurisdiction over Juan's claim. Considering that the claim is only for
are closely intertwined with the issue of ownership of the building P50,000.00, the case is within the exclusive jurisdiction of the MTC
which, under the law, is considered immovable property, the recovery under B.P. Big. 129 and may proceed pursuant to A.M. No. 08-8-7-SC
of which is petitioner's primary objective. The prevalent doctrine is that or the "Rules of Procedure for Small Claims Cases." Notably, a motion
an action for the annulment or rescission of a sale of real property to dismiss is among the prohibited pleadings under Section 14(a) of
does not operate to efface the fundamental and prime objective and said rules.
nature of the case, which is to recover said real property. It is a real
action (Paglaum Management & Development Corporation v. Union Similarly, Juan's claim of P50,000.00 may be governed by the 1991
Bank of the Philippines, G.R. No. 179018, June 18, 2012). Rules on Summary Procedure which clearly falls within the jurisdiction
of the MTC, ergo, the motion to dismiss based on lack of jurisdiction
Being a real action, it shall be commenced and tried in the proper court over the subject matter should be denied (Section 19 (a), 1991 Rules
which has jurisdiction over the area where the real property involved, on Summary Procedure).
or a portion thereof, is situated (Section 1, Rule 4, Rules of Court). The
complaint should be filed in the RTC of Makati where the mortgaged Tailors Toto, Nelson and Yenyen filed a special civil action for
property is situated. certiorari under Rule 65 from an adverse decision of the National
Labor Relations Commission (NLRC) on the complaint for illegal
ALTERNATIVE ANSWER: dismissal against Empire Textile Corporation. They were termi-
nated on the ground that they failed to meet the prescribed pro-
The motion to dismiss should be denied. An action for the annulment of duction quota at least four (4) times. The NLRC decision was as-
a real estate mortgage is a personal action, which may be commenced sailed in a special civil action under Rule 65 before the Court of
and tried where the defendant or any of the defendants resides or may Appeals (CA). In the verification and certification against forum
be found, or where the plaintiff or any of the plaintiffs resides or may be shopping, only Toto signed the verification and certification, while
found, at the election of plaintiff (Sec. 2, Rule 4, Rules of Court; Chua Atty. Arman signed for Nelson. Empire filed a motion to dismiss
v. Total Office Products & Services, September 30, 2005; Orbeta v. on the ground of defective verification and certification. Decide
Orbeta, G.R. No. 166837, November 27, 2006). Since the plaintiff re- with reasons. (5%) ’16 – Q12
sides in Manila, the complaint was properly filed in RTC of Manila.
SUGGESTED ANSWER

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Bar Operations 2018
Bar Ques)ons and Answers
The motion to dismiss should be granted. The verification and certifica- In the case, the Makati City RTC had no jurisdiction over the
tion of eon-forum shopping were not signed by all the petitioners. first complaint which was dismissed through Agatha’s notice,
There was no showing that Toto nor Atty. Arman were duly authorized because it is below its jurisdictional amount of at least
by the other petitioners through a special power of attorney to sign on P400,000.00. Therefore, the Two-Dismissal Rule cannot be suc-
their behalf; hence, the motion to dismiss should be granted. cessfully invoke in this case.

ANOTHER SUGGESTED ANSWER: A complaint may be dismissed by the plaintiff by filing a no-
tice of dismissal: ’12 – Q33
The motion to dismiss should be denied, because there is substantial a) At anytime after service of the answer.
compliance of the requirements of the rules. b) At anytime before a motion of summary judgment is
filed.
Verification is not a jurisdictional but merely a formal requirement which c) At the pre-trial.
the court may motu proprio direct a party to comply with or correct, as d) Before the complaint is amended.
the case may be. On the other hand, regarding the certificate of non- SUGGESTED ANSWER:
forum shopping, the general rule is that all the petitioners or plaintiffs in b) At anytime before a motion of summary judgment is filed
a case should sign it. However, the Supreme Court has time and again A complaint may be dismissed by the plaintiff by filing a notice of
stressed that the rules on forum shopping, which were designed to dismissal at any time before service of the answer or of a motion for
promote the orderly administration of justice, do not interdict substan- summary judgment. Upon such notice being filed, the court shall issue
tial compliance with its provisions under justifiable circumstances. As an order confirming the dismissal. (Rule 17, Sec. 1, Rules of Court).
ruled by the Court, the signature of any of the principal petitioners or
principal parties, would constitute a substantial compliance with the
rule on verification and certification of non-forum shopping. And should
there exist a commonality of interest among the parties, or where the RULE 18 - PRE-TRIAL
parties filed the case as a collective, raising only one common cause of
action or presenting a common defense, then the signature of one of Water Builders, a construction company based in Makati City,
the petitioners or complainants, acting as representative, is sufficient entered into a construction agreement with Super Powers, Inc., an
compliance (Irene Marcos-Araneta v. Court of Appeals, G.R. No. energy company based in
154096, August 22, 2008). Evidently, since there is a commonality of Manila, for the construction of a mini hydro electric plant.
interest among Tailors Toto, Nelson and Yenyen, there is substantial Water Builders failed to complete the project within the stipulated
compliance with the rules on verification and certification against forum duration. Super Powers cancelled the contract. Water Builders
shopping, when Toto signed the verification and certification, and Atty. filed a request for arbitration with the Construction Industry Arbi-
Arman signed the same for Nelson. tration Commission (CIAC). After due proceedings, CIAC rendered
judgment in favor of Super Powers, Inc. ordering Water Builders
to pay the former P10 million, the full amount of the down pay-
RULE 17 - DISMISSAL OF ACTIONS ment paid, and P2 million by way of liquidated damages. Dissatis-
fied with the CIAC's judgment, Water Builders, pursuant to the
Agatha filed a complaint against Yana in the RTC in Makati Special Rules of Court on Alternative Dispute Resolution (ADR
City to collect P350,000.00, an amount representing the unpaid Rules) filed with the RTC of Pasay City a petition to vacate the
balance on the price of the car Yana had bought from Agatha. arbitral award. Super Powers, Inc., in its opposition, moved to
Realizing a jurisdictional error in filing the complaint in the RTC, dismiss the petition, invoking the ADR Rules, on the ground of
Agatha filed a notice of dismissal before she was served with the improper venue as neither of the parties were doing business in
answer of Yana. The RTC issued an order confirming the dis- Pasay City.
missal. Should Water Builders' petition be dismissed? (3%) ’15 – Q15
Suggested Answer:
Three months later, Agatha filed another complaint against Yes, the petition should be dismissed on the ground of improper
Yana based on the same cause of action this time in the MeTC of venue. Under the Special Rules of Court on Alternative Dispute Reso-
Makati City. However, for reasons personal to her, Agatha decided lution (ADR), the petition shall be filed with Regional Trial Court having
to have the complaint dismissed without prejudice by filing a no- jurisdiction over the place where one of the parties is doing business,
tice of dismissal prior to the service of the answer of Yana. Hence, where any of the parties reside or where the arbitration proceedings
the case was dismissed by the MeTC. were conducted (Rule 11.3 – A.M. No. 07-11-08-SC); hence, the venue
of the petition to vacate the arbitral award of Water Builders is improp-
A month later, Agatha refiled the complaint against Yana in erly laid.
the same MeTC. Another Suggested Answer:
Yes, the petition should be dismissed because venue is not in-
May Yana successfully invoke the Two-Dismissal Rule to bar cluded among the valid grounds to vacate an arbitral award. The
Agatha’s third complaint? Explain your answer. (3%) ’17 – Q8 grounds to vacate an arbitral award are:
SUGGESTED ANSWER a. The arbitral award was procured through corrup-
No, Yana cannot successfully invoke Two-Dismissal Rule. In tion, fraud or other undue means;
order for the Two-Dismissal Rule to apply, Rule 17, Section 1 of b. There was evident partiality or corruption in the
the Rules of Court requires that both dismissals through plain- arbitral tribunal or any of its members;
tiff’s notices were made by a competent court. Moreover, in Ching c. The arbitral tribunal was guilty of misconduct or
v. Cheng (G.R. No. 175507, October 8, 2014), the Supreme Court any form of misbehavior that has materially prejudiced the rights of any
ruled that the following requisites should concur for the Two- party such as refusing to postpone a hearing upon sufficient cause
Dismissal Rule to apply: shown or to hear evidence pertinent and material to the controversy;
(a) There was a previous case that was dismissed by a d. One or more of the arbitrators was disqualified to
competent court; act as such under the law and willfully refrained from disclosing such
(b) Both cases were based on or include the same disqualification; or
claim; e. The arbitral tribunal exceeded its powers, or so
(c) Both notices for dismissal were filed by the plain- imperfectly executed them, such that a complete, final and definite
tiff; and award upon the subject matter submitted to them was not made.
(d) When the motion to dismiss filed by the plaintiff The award may also be vacated on any or all the following
was consented to by the defendant on the ground grounds:
that the latter paid and satisfied all the claims of the
former.

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Bar Ques)ons and Answers
a. The arbitration agreement did not exist, or is in- (D) the intervenor has a stake in the property subject of the suit.
valid for any ground for the revocation of a contract or is otherwise
unenforceable; or
b. A party to arbitration is a minor or a person judicial-
ly declared to be incompetent. RULE 23 - DEPOSITIONS PENDING ACTION

Alternative Answer:
Yes, the petition should be dismissed.
Waters Builders should have filed a petition for review under Rule The deposition of a witness, whether or not a party, may be
43 of the Rules of Court before the Court of Appeals because R.A. used for any purpose if the Court finds the following circum-
9285, or the Alternative Dispute Resolution Act of 2004, did not divest stances are attendant, EXCEPT: ’12 – Q89
the Court of Appeals of jurisdiction to review the decisions or award of a) when the witness is dead.
the CIAC (J Plus Asia Development Corporation v. Utility assurance b) when the witness is incarcerated.
Corporation, G.R. no. 199650, June 26, 2013). c) when the witness is outside the Philippines and absence
is procured by the party offering deposition.
Which among the following is not subject to mediation for d) when the witness is 89 years old and bed-ridden.
judicial dispute resolution? (1%) ’13 – Q10 SUGGESTED ANSWER:
(A) The civil aspect of B.P. Blg. 22 cases. c) When the witness is outside the Philippines and absence is
(B) The civil aspect of theft penalized under Article 308 of the procured by the party offering
Revised Penal Code. deposition.
(C) The civil aspect of robbery. The deposition of a witness, whether or not a party, may be used
(D) Cases cognizable by the Lupong Tagapamayapa under by any part for any purpose if the court finds: (1) that the witness is
the Katarungang Pambarangay Law. dead; (2) the witness resided at a distance more than one hundred
(E) None of the above. (100) kilometers at a distance from the place of trial or hearing, or is
SUGGESTED ANSWER: (C) The civil aspect of robbery out of the Philippines, unless it appears that his absence was procured
One of the cases which shall be referred to Court-Annexed Medi- by the party offering the deposition; (3) that the witness is unable to
ation (CAM) and be the subject of Judicial Dispute Resolution (JDR) attend or testify because of age, sickness, infirmity, or imprisonment;
proceedings is the civil aspect of less grave felonies punishable by (4) that the party offering the deposition has been unable to procure
correctional penalties not exceeding six years imprisonment, where the the attendance of the witness by subpoena; or (5) upon application and
offended party is a private person (A.M. No. 11-1-6-SC-PHILJA dated notice, that such exceptional circumstance exist as to make it desir-
January 11, 2011). able, in the interest of presenting the testimony of witnesses orally in
Incidentally, robbery is punishable by penalty of open court, to allow the deposition to be used. (Rule 23, Sec. 4 (c),
prison correctional in its maximum period to prison mayor in its medi- Rules of Court).
um period in other cases (Article 294, Par. 5, Revised Penal Code). In
other words, robbery is punishable by imprisonment of more than six-
year term mentioned.
Therefore, the civil aspect of robbery is not subject RULE 25 - INTERROGATORIES TO PARTIES
to mediation for Judicial Dispute
Resolution (JDR). An objection to any interrogatories may be presented within_
days after service thereof: ’12 – Q88
The following motions require a notice of hearing served on the a) 15;
opposite party, except: ’12 – Q42 b) 10;
a) Motion to Set Case for Pre-trial; c) 5;
b) Motion to take deposition; d) 20.
c) Motion to correct TSN; SUGGESTED ANSWER:
d) Motion to postpone hearing. b) 10
SUGGESTED ANSWER: Objections to any interrogatories may be presented to the court
a) Motion to Set Case for Pre-trial within ten (10) days after service thereof, with notice as in case of a
After the last pleading has been served and filed, is shall be the motion. Upon filing of the aforementioned objections, the answer to
duty of the plaintiff to promptly move ex parte that the case be set for such written interrogatories shall be deferred until the objections are
pre-trial. (Rule 18, Sec. 1, Rules of Court). resolved, which shall be at as early a time as is practicable. (Rule 25,
Sec. 3, Rules of Court).
Discuss the three (3) Stages of Court Diversion in connection
with Alternative Dispute Resolution. (5%) ’12 – Q8b [a] Briefly explain the procedure on "Interrogatories to Par-
ties" under Rule 25 and state the effect of failure to serve written
SUGGESTED ANSWER: interrogatories. (2.5%) – ’16 – Q2(a)
The three stages of diversion are Court0Annexed Mediation
(CAM), Judicial Dispute Resolution (JDR), and Appeals Court Media-
SUGGESTED ANSWER:
tion (ACM). During CAM, the judge refers the parties to the Philippine
Mediation Center (PCM) for the mediation of their dispute by trained
and accredited mediators. If CAM fails, the JDR is undertaken by the [a] PROCEDURE:
JDR judge, acting as a mediator-conciliator-early neutral evaluator. The
third case is during appeal, where covered cases are referred to ACM. 1. Any party desiring to elicit material and relevant facts from any ad-
verse parties shall file and serve upon the latter written interrogatories
to be answered by the party served or, if the party served is a public or
RULE 19 - INTERVENTION private corporation or a partnership or association, by any officer
thereof competent to testify in its behalf (Section 1, Rule 25, Rules of
Court).
The right to intervene is not absolute. In general, it CANNOT
be allowed where ’11 – Q14 2. The interrogatories shall be answered fully in writing and shall be
(A) the intervenor has a common interest with any of the parties. signed and sworn to by the person making them. The party upon whom
(B) it would enlarge the issues and expand the scope of the the interrogatories have been served shall file and serve a copy of the
remedies. answers on the party submitting the interrogatories within fifteen (15)
(C) the intervenor fails to put up a bond for the protection of the days after service thereof, unless the court on motion and for good
other parties.

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Bar Ques)ons and Answers
cause shown, extends or shortens the time (Section 2, Rule 25, Rules delivered with the request unless copies have already been furnished
of Court). (Section 1, Rule 26, Rules of Court).

3. Objections to any interrogatories may be presented to the court 2. Each of the matters of which an admission is requested shall be
within ten (10) days after service thereof, with notice as in case of a deemed admitted unless, within a period designated in the request,
motion; and answers shall be deferred until the objections are re- which shall not be less than fifteen (15) days after service thereof, or
solved, which shall be at as early a time as is practicable (Section 3, within such further time as the court may allow on motion, the party to
Rule 25, Rules of Court). whom the request directed files and serves upon the party requesting
the admission a sworn statement either denying specifically the mat-
Should a party fail to file and serve written interrogatories on an ad- ters of which an admission is requested or setting forth in detail the
verse party, he cannot compel the latter to give testimony in open court reasons why he cannot truthfully either admit or deny those matters.
or to give deposition pending appeal, unless allowed by the court for
good cause shown and to prevent a failure of justice (Section 6, Rule 3. Objections to any request for admission shall be submitted to the
25, Rules of Court; Spouses Vicente Afulugencia and Leticia Afulugen- court by the party requested within the period for and prior to the filing
cia, G.R. No. 185145, February 5, 2014). of his sworn statement as contemplated in the preceding paragraph
and his compliance therewith shall be deferred until such obligations
are resolved, which resolution shall be made as early as practicable
(Section 2, Rule 26> Rules of Court).

RULE 26 - REQUEST FOR ADMISSION 4. Any admission made by a party pursuant to such request is for the
purpose of the pending action only and shall not constitute an admis-
sion by him for any other purpose nor may the same be used against
him in any other proceeding (Section 3, Rule 26).
As a mode of discovery, the best way to obtain an admission
from any party regarding the genuineness of any material and Unless otherwise allowed by the court for good cause shown and to
relevant document is through a: ’12 – Q55 prevent a failure of justice a party who fails to file and serve a request
a) motion for production of documents. for admission on the adverse party of material and relevant facts at
b) written interrogatories. issue which are, or ought to be, within the personal knowledge of the
c) request for admission under Rule 26. latter, shall not be permitted to present evidence on such facts [Em-
d) request for subpoena duces tecum. phasis supplied] (Section 5, Rule 26, Rules of Court).
SUGGESTED ANSWER:
c) Request for admission under Rule 26
At any time after issues have been joined, a party may file and
serve upon any other party a written request for the admission by the
latter of the genuineness of any material and relevant document de- RULE 29 - REFUSAL TO COMPLY WITH MODES OF DISCOVERY
scribed in and exhibited with the request or of the truth of any material
and relevant matter of fact set forth in the request. (Rule 26, Sec. 1,
Rules of Court). A request for admission is not intended to merely re-
produce or reiterate the allegations of the requesting party’s pleading A judgment by default can be issued despite an Answer be-
but should set forth relevant evidentiary matters of fact described in the ing filed in: ’12 – Q69
request, whose purpose is to establish said party’s cause of action or a) annulment of marriage.
defense. Unless it serves that purpose, it is pointless, useless, and a b) legal separation.
mere redundancy. (Limos vs. Spouses Odones, G.R. No. 186979, c) cases where a party willfully fails to appear before the
August 11, 2010). officer who is to take his deposition.
d) declaration of nullity of marriage.
Plaintiff files a request for admission and serves the same on SUGGESTED ANSWER:
Defendant who fails, within the time prescribed by the rules, to c) Cases where a party willfully fails to appear before the officer
answer the request. Suppose the request for admission asked for who is to take his deposition.
the admission of the entire material allegations stated in the com- If a party or an officer or managing agent of a party willfully fails to
plaint, what should plaintiff do? (5%) ’12 – Q7b appear before the officer who is to take his deposition, after being
served with a proper notice, or fails to serve answers to interrogatories
SUGGESTED ANSWER: submitted under Rule 25 after proper service of such interrogatories,
The plaintiff should file a Motion for Judgment on the Pleadings the court in motion and notice, may strike out all or any part of any
because the failure if the defendant to answer a request for admission pleading of the party, or dismiss the action or proceeding or any part
results to an implied admission of all the matters which an admission is thereof, or enter a judgment by default against the party, and in its
requested. Hence, a motion for judgment in the pleadings is the appro- discretion, order him to pay reasonable expenses incurred by the oth-
priate remedy where the defendant is deemed to have admitted the er, including attorney’s fees. (Rule 29, Sec. 5, Rules of Court). Hence,
matters contained in the Request for admission by the plaintiff (Rule 34 even if an Answer was filed by a defendant, a judgment by default can
in connection with Sec. 2, Rule 26, Rules of Court). still be issued where a party willfully fails to appear before the officer
who is to take his deposition.
[b] Briefly explain the procedure on "Admission by Adverse In Arellano vs. Court of First Instance of Sorsogon, Branch I, 65
Party" under Rule 26 and the effect of failure to file and serve the SCRA 46, the Supreme Court sustained the order of dismissal for fail-
request. (2.5%) ’16 – Q2(b) ure of respondent to serve any answer to petitioner Arellano’s inter-
rogatories. The dismissal was based on Section 5 of Rule 29 which
SUGGESTED ANSWER: provides that if a party fails to serve answers to interrogatories submit-
ted under Rule 25, after proper service of such interrogatories, the
[b] PROCEDURE: Court on motion and notice may dismiss the action or render judgment
by default even without prior order to serve an answer.
1. At any time after issues have been joined, a party may file and serve
upon any party a written request for the admission by the latter of the
genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant RULE 30 - TRIAL
matter of fact set forth in the request Copies of the documents shall be

20
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Bar Operations 2018
Bar Ques)ons and Answers
As a rule, the judge shall receive the evidence personally. In presentation of evidence as distinguished from an issue which is a
which of the following circumstances may the court delegate the sham, fictitious, contrived or a false claim.
reception of evidence to the clerk of court? ’11 – Q10 Relative thereto, when the facts pleaded by the parties are dis-
(A) When a question of fact arises upon a motion. puted or contested, proceedings for a summary judgment cannot take
(B) When the trial of an issue of fact requires the examination the place of a trial. The evidence on record must be viewed in light
of a long account. most favorable to the party opposing the motion who must be given the
(C) In default or ex-parte hearings. benefit of all favorable inferences as can reasonably be drawn from the
(D) Upon motion of a party on reasonable grounds. evidence (Smart Communications v. Aldecoa, G.R. No. 166330, Sept.
11, 2013).
Plaintiff filed a complaint denominated as accion publiciana,
against defendant. In his answer, defendant alleged that he had
RULE 34 - JUDGMENT ON THE PLEADINGS no interest over the land in question, except as lessee of Z. Plain-
tiff subsequently filed an affidavit of Z, the lessor of defendant,
stating that Z had sold to plaintiff all his rights and interests in the
property as shown by a deed of transfer attached to the affidavit.
Plaintiff sued defendant for collection of P 1 million based on Thus, plaintiff may ask the court to render: (1%) ’14 – Q16
the latter's promissory note. The complaint alleges, among oth- (A) summary judgment
ers: (B) judgment on the pleadings
1) Defendant borrowed P1 million from plaintiff as evidenced (C) partial judgment
by a duly executed promissory note; (D) judgment by default
2) The promissory note reads:
"Makati, Philippines Answer: (B) judgement on the pleadings
Dec. 30, 2014 When the answer fails to tender an issue, that is, if does not deny
For value received from plaintiff, defendant promises to pay the material allegations in the complaint or admits said materi-
plaintiff Pl million, twelve (12) months from the above indicated al allegations of the adverse party’s pleadings by admitting the
date without necessity of demand. truthfulness thereof and/or omitting to deal with them at all, a
Signed judgement on the pleadings is appropriate (Eugenio v. Beat Sayson,
Defendant" G.R. No. 172660, August 24, 2011).
A copy of the promissory note is attached as Annex "A."
Defendant, in his verified answer, alleged among others: (A) summary judgment
1) Defendant specifically denies the allegation in paragraphs A summary judgment is proper provided that the issue raised is
1 and 2 of the complaint, the truth being defendant did not exe- not genuine. A “genuine issue” means an issue of fact which calls for
cute any promissory note in favor of plaintiff, or the presentation of evidence, as distinguished from an issue which is
2) Defendant has paid the Ill million claimed in the prom- fictitious or contrived or which does not constitute a genuine issue for
issory note (Annex "A" of the Complaint) as evidenced by an "Ac- trial (Eugenio Basbas v. Beata Sayson, G.R. No. 172660, August 24,
knowledgment Receipt" duly executed by plaintiff on January 30, 2011).
2015 in Manila with his spouse signing as witness.
A copy of the "Acknowledgment Receipt" is attached as An- Royal Bank (Royal) filed a complaint for a sum of money against
nex "1" hereof. Ervin and Judge before the RTC of Manila. The initiatory pleading
Plaintiff filed a motion for judgment on the pleadings on the averred that on February 14, 2010, Ervin obtained a loan from
ground that defendant's answer failed to tender an issue as the Royal in the amount of PI million, as evidenced by Promissory
allegations therein on his defenses are sham for being inconsis- Note No. 007 (PN) signed by Ervin. Jude signed a Surety Agree-
tent; hence, no defense at all. Defendant filed an opposition ment binding herself as surety for the loan. Royal made a final
claiming his answer tendered an issue. demand on February 14, 2015 for Ervin and Jude (defendants) to
Is judgment on the pleadings proper? (3%) ’15 – Q7a pay, but the latter failed to pay. Royal prayed that defendants
Suggested Answer: Ervin and Jude be ordered to pay the amount of P 1 million plus
No, the judgment on the pleadings is not proper. Judgment on the interests.
pleadings is proper only when the answer fails to tender an issue, or
otherwise admits the material allegation of the adverse party’s pleading In their answer, Ervin admitted that he obtained the loan from
(Section 1, Rule 34, Rules of Court). Royal and signed the PN. Jude also admitted that she signed the
When it appears, however, that not all the material allegations of Surety Agreement. Defendants pointed out that the PN did not
the complaint were admitted in the answer, because some of them provide the due date for payment, and that the loan has not yet
were either denied or disputed, and the defendant has set up certain matured as the maturity date was left blank to be agreed upon by
special defenses which, if proven, would have the effect of nullifying the parties at a later date. Defendants filed a Motion for a Judg-
plaintiff’s main cause of action, judgment on the pleadings cannot be ment on the Pleadings on the ground that there is no genuine
rendered. (Philippine National Bank v. Aznar, G.R. No. 171805, May issue presented by the parties' submissions. Royal opposed the
30, 2011). motion on the ground that the PN's maturity is an issue that must
Clearly, since the defendant’s verified Answer specifically denied be threshold out during trial. ’16 – Q20
the execution of the promissory note, or raised the affirmative of pay-
ment, judgment on the pleadings is not proper. [a] Resolve the motion with reasons. (2.5%)
Defendant filed a motion for summary judgment on the
ground that there are no longer any triable genuine issues of SUGGESTED ANSWER:
facts.
Should the court grant defendant's motion for summary
The Motion for judgment on the pleadings should be denied.
judgment? (3%) ’15 – Q7b
Suggested Answer:
No, the court should not grant the motion for summary judgment First, judgment on the pleadings is available to the plaintiff and not to
because the defense of payment is a genuine issue as to a material the defendant.
fact that must be resolved by the court upon presentation of evidence.
For a summary judgment to be proper, the movant must establish Second, judgment on the pleadings is proper only when the Answer
two requisites: (a) there must be no genuine issue as to any material fails to tender any issue, that is, if it does not deny the material allega-
fact, except for the amount of damages; and (b) the party presenting tions in the complaint or admits said material allegations of the adverse
the motion for summary judgment must be entitled to a judgment as a party's pleadings by admitting the truthfulness thereof and/or omitting
matter of law. A genuine issue is an issue of fact which requires is the to deal with them at all.

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Bar Operations 2018
Bar Ques)ons and Answers
Here, while defendants' Answer to the Complaint practically admitted The object of a judgement non pro tunc is not the rendering of a new
all the material allegations therein, it nevertheless asserts the affirma- judgement and the ascertainment of determination of new rights, but
tive defenses that the loan is not yet due. As issues obviously arise is one placing in proper form on the record, the judgment that has
from these affirmative defenses, a judgment on the pleadings is clearly previously rendered, to make it speak the truth, so as to make it
improper in this case. show what the judicial action really was, not to correct judicial errors,
such as to render a judgement which the court ought to have ren-
Besides, it should be emphasized that judgment on the pleadings is dered, in place of the one it did erroneously render, nor to supply
based exclusively upon the allegations appearing in the pleadings of non-action by the court, however erroneous the judgement may have
the parties and the annexes, if any, without consideration of any evi- been (Filipinas Faroil Processing v. Dejapa, G.R. No. 167332, Feb-
dence aliunde. Henceforth, when it appears that not all the material ruary 7, 2011).
allegations of the complaint were admitted in the answer for some of
them were either denied or disputed, and the defendant has set up A judicial compromise has the effect of _______ and is im-
certain special defenses which, if proven, would have the effect of mediately executory and is not appealable. ’12 – Q25
nullifying plaintiffs main cause of action, judgment on the pleadings a) Estoppel;
cannot be rendered (Philippine National Bank v. Merelo B. Aznar, G.R. b) Conclusiveness of judgment;
No. 171805, May 30, 2011). " c) Res Judicata;
d) Stare decisis.
[b] Distinguish "Summary Judgment" and "Judgment on the SUGGESTED ANSWER:
Pleadings." (2.5%) c) Res Judicata
A compromise agreement that has been made and duly approved
SUGGESTED ANSWER: by the court attains the effect and authority of res judicata, although no
execution may be issued inless the agreement receives the approval of
the court where the litigation is pending and compliance with the terms
What distinguishes a judgment on the pleadings from a summary
of the agreement is decreed.” (Ranola vs. Ranola, (G.R. No. 185095,
judgment is the presence of issues in the Answer to the Complaint.
July 31, 2009).
When the Answer fails to tender any issue, that is, if it does not deny
the material allegations in the complaint or admits said material allega-
A judgment "non pro tunc" is one which: ’12 – Q56
tions of the adverse party’s pleadings by admitting the truthfulness
a) dismisses a case without prejudice to it being re-filed.
thereof and/or omitting to deal with them at all, a judgment on the
b) clarifies an ambiguous judgment or a judgment which is
pleadings is appropriate. On the other hand, when the Answer specifi-
difficult to comply with.
cally denies the material averments of the complaint or asserts affirma-
c) one intended to enter into the record the acts which
tive defenses, or in other words raises an issue, a summary judgment
already have been done, but which do not appear in the records.
is proper provided that the issue raised is not genuine. A genuine issue
d) is a memorandum decision.
means an issue of fact which calls for the presentation of evidence, as
SUGGESTED ANSWER:
distinguished from an issue which is fictitious or contrived or which
c) One intended to enter into the record the acts which already
does not constitute a genuine issue for trial. (Eugenio Basbas v. Beata
have been done, but which do
Sayson and Roberto Sayson, Jr., G.R. No. 172660, August 24, 2011).
not appear in the records.
A non pro tunc entry in practice is an entry made now of some-
thing which was actually previously done, to have effect as of the for-
mer date. Its office is not to supply omitted actions by the court, but to
supply an omission through inadvertence or mistake. (Wilmerding vs.
Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268). (Perkins vs.
RULE 37 - NEW TRIAL OR RECONSIDERATION Haywood, 31 N. E., 670, 672 cited in Aliviado vs. Proctor and Gamble,
When may a party file a second motion for reconsideration of G.R. No. 160506, June 6, 2011).
a final judgment or final order? (1%) ’13 – Q14
(A) At anytime within 15 days from notice of denial of the first Briefly discuss/differentiate the following kinds of Attach-
motion for reconsideration. ment: preliminary attachment, garnishment, levy on execution,
(B) Only in the presence of extraordinarily persuasive rea- warrant of seizure and warrant of distraint and levy. (5%) ’12 – Q9b
sons and only after obtaining express leave from the ruling court.
(C) A party is not allowed to file a second motion for recon- SUGGESTED ANSWER:
sideration of a final judgment or final order. Preliminary Attachment is a provisional remedy under Rule 57 of
(D) A party is allowed as a matter of right to fi le a second the Rules of Court. It may be sought at the commencement of an ac-
motion for reconsideration of a judgment or final order. tion or at any time before entry judgment where property of an adverse
(E) None of the above. part may be attached as security for the satisfaction of any judgment,
SUGGESTED ANSWER: (B) Only in the presence of extraordi- where this adverse party is about to depart from the Philippines, where
narily persuasive reasons and only after obtaining express leave from he has intent to defraud or has committed fraud, or is not found in the
the ruling court. Philippines. An affidavit and a bond is required before the preliminary
In Suarez v. Judge Dilag (A.M. No. RTJ-06-2014, August 16, attachment issues. It is discharged upon payment of a counterbond.
2011), the Supreme Court emphatically stated that a second Motion for Garnishment is a manner of satisfying or executing judgment
reconsideration is allowed but only when there are “extraordinary per- where the sheriff may levy debts, credits, royalties, commissions, bank
suasive reasons and only after an express shall have been obtained. deposits, and other personal property not capable or manual delivery
that are in the control or possession of third persons and are due the
judgment obligor. Notice shall be served on the third parties. The third
RULE 39 - EXECUTION, SATISFACTION, AND EFFECT OF JUDG- party garnishee must make a written report on whether or not the
MENTS judgment obligor has sufficient funds or credits to satisfy the amount of
the judgment. If not, the report shall state how much fund or credits the
garnishee holds for the judgment obligor. Such garnish amounts shall
An order of the court requiring a retroactive re-dating of an be delivered to the judgment oblige-creditor [Rule 39, Sec. 9 (c)].
order, judgment or document filing be entered or recorded in a Levy on execution is a manner of satisfying or executing judgment
judgement is: (1%) ’14 – Q4 where the sheriff may sell property of the judgment obligor if he is un-
(A) pro hac vice able to pay all or part of the obligation in cash, certified bank check or
(B) non pro tunc any other manner acceptable to the oblige. If the obligor does not
(C) confession relicta verifcatione choose which among his property may be sold, the sheriff shall sell
(D) nolle prosequi personal property first and then real property second. He must sell only
Answer: (B) non pro tunc

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Bar Ques)ons and Answers
so much of the personal or real property as is sufficient to satisfy judg- deceased defendant without the necessity of proving the same (Pare-
ment and other lawful fees [Rule 39, sec. 9 (b)]. des vs. Moya, 61 SCRA 523, 530, 1970).
Warrant of seizure is normally applied form with a search warrant,
in criminal cases. The warrant of seizure must particularly describe the How will the court sheriff enforce the demolition of improve-
things to be seized. While it is true that the property to be seized under ments? ’11 – Q48
a warrant must be particularly described therein and no other property (A) He will give a 5-day notice to the judgment obligor and, if the
can be taken thereunder, yet the description is required to be specific latter does not comply, the sheriff will have the improvements forcibly
only insofar as the circumstances will ordinarily allow. An application demolished.
for search and seizure warrant shall be filed with the following: (a) Any (B) He will report to the court the judgment obligor’s refusal to
court within whose territorial jurisdiction a crime was committed. (b) For comply and have the latter cited in contempt of court.
compelling reasons stated in the application, any court within the judi- (C) He will demolish the improvements on special order of the
cial region where the crime was committed if the place of the commis- court, obtained at the judgment obligee’s motion.
sion of the crime is known, or any court within the judicial region where (D) He will inform the court of the judgment obligor’s noncompli-
the warrant shall be enforced. However, if the criminal action has al- ance and proceed to demolish the improvements.
ready been filed, the application shall only be made in the court where
the criminal action is pending. What should the court sheriff do if a third party serves on
Warrant of distraint and levy is remedy available to local govern- him an affidavit of claim covering the property he had levied? ’11
ments and the BIR in tax cases to satisfy deficiencies or delinquencies – Q23
in inheritance and estate taxes, and real estate taxes. Distraint is the (A) Ask the judgment obligee to file a court-approved indemnity
seizure of personal property to be sold in an authorized auction sale, bond in favor of the third-party claimant or the sheriff will release the
Levy is the issuance of a certification by the proper officer showing the levied property.
name of the taxpayer and the tax, fee, charge or penalty due him. Levy (B) Ask the judgment obligee to file a court-approved bond for the
is made by writing upon said certificate the description of the property sheriff’s protection in case he proceeds with the execution.
upon which levy is made. (C) Immediately lift the levy and release the levied property.
(D) Ask the third-party claimant to support his claim with an in-
demnity bond in favor of the judgment obligee and release the levied
An example of a special judgment is one which orders: ’12 – property if such bond is filed.
Q94
a) the defendant to deliver and reconvey personal property What defenses may be raised in a suit to enforce a foreign
to the plaintiff. judgment? ’11 – Q36
b) defendant to execute a Deed of Sale in favor of plaintiff. (A) That the judgment is contrary to Philippine procedural rules.
c) defendant to paint a mural for the plaintiff. (B) None, the judgment being entitled to full faith and credit as a
d) Defendant to vacate the leased premises. matter of general comity among nations.
SUGGESTED ANSWER: (C) That the foreign court erred in the appreciation of the evi-
c) Defendant to paint a mural for the plaintiff. dence.
A special judgment is on which requires the performance of any (D) That extrinsic fraud afflicted the judgment.
act other than the payment of money, or the sale or delivery of a real or
personal property. Disobedience to such judgment is an indirect con-
tempt, and the judgment is executed by contempt proceedings. (Sure APPEALS
vs. Martin, 26 SCRA 2886; Barette vs. Amila, 230 SCRA 219; Magal-
What is the Harmless Error Rule in relation to appeals? (2%)
lanes vs. Sarita, 18 SCRA 575; Moslem vs. Soriano, 124 SCRA 190;
– ’17 Q4B
Peoplevs. Pascual, 12326-CR, February 14, 1974). A judgment order-
ing the defendant to paint a mural for the plaintiff is considered a spe-
Under Rule 51, Section 6 of the Rules of Court, the Harmless
cial judgment.
Error Rule states that no error in either the admission or the ex-
When directed by the judge, a clerk of court can receive evi-
clusion of evidence and no error or defect in any ruling or order
dence addressed by the parties in: ’12 – Q98
or in anything done or omitted by the trial court or by any of the
a) case where the judge is on leave.
parties is a ground for granting a new trial or for setting aside,
b) small claims proceedings.
modifying, or otherwise disturbing a judgment or order, unless
c) cases where the parties agree in writing.
refusal to take such action appears to the court to be inconsistent
d) land registration proceedings.
with substantial justice. The court at every stage of the proceed-
SUGGESTED ANSWER:
ing must disregard any error or defect which does not affect the
c) Cases where the parties agree in writing.
substantial right of the parties.
The Rules provide that the judge of the court where the case is
pending shall personally receive the evidence to be adduced by the
parties. However, in default or ex parte hearings, and in any case What is the mode of appeal applicable to the following
where the parties agree in writing, the court may delegate the recep-
tion of evidence to its clerk of court who is a member of the bar. (Rule cases, and what issues may be raised before the review-
30, Sec. 9, Rules of Court). ing court/tribunal? ’17 -Q11
If the judgment debtor dies after entry of judgment, execution
of a money judgment may be done by: ’12 – Q36 (a) The decision or final order of the Nafonal Labor
a) presenting the judgment as a claim for payment against
the estate in a special proceeding. Relafons Commission. (1.5%)
b) filing a claim for the money judgment with the special SUGGESTED ANSWER
administrator of the estate of the debtor.
c) filing a claim for the money judgment with the debtor's
(a) Strictly, there is no appeal from an NLRC deci-
successor in interest. sion. However, NLRC decisions or final orders
d) move for substitution of the heirs of the debtor and se- are reviewable on peHHon for cerHorari under
cure a writ of execution.
SUGGESTED ANSWER: Rule 65 of the Rules of Court, filed before the
a) Presenting the judgment as a claim for payment against the Court of Appeals (St. Mar(n Funeral Homes v.
estate in a special proceeding.
If death occurs after judgment has already been entered, the final NLRC, G.R. No. 130866, September 16, 1998).
judgment shall be enforce as money claim against the estate of the PeHHoner may raise the issue on whether the

23
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NLRC acted with grave abuse of discreHon Which of the following decisions may be appealed directly to
the Supreme Court (SC)? (Assume that the issues to be raised on
amounHng to lack or excess jurisdicHon (Pfizer appeal involve purely questions of law) (1%) ’14 – Q22
Inc., v. Gatan, G.R. No. 158460, August 24, (A) Decision of the Regional Trial Court (RTC) rendered in the
exercise of its appellate jurisdiction
2007). (B) Decision of the RTC rendered in the exercise of its origi-
nal jurisdiction
(C) Decision of the Civil Service Commission
(b) The judgment or final order of the RTC in the exer- (D) Decision of the Office of the President
cise of its appellate jurisdicfon. (1.5%) Answer: (B) Decision of the RTC rendered in the exercise of its
original jurisdiction
Section 2, Rule 41 of the Rules of Court provides the three (3)
SUGGESTED ANSWER modes of appeal, which are as follows:
(b) The mode of appeal is peHHon for review under Section 2. Modes of Appeal.
(a) Ordinary appeal. -The appeal to the Court of Appeals in cas-
Rule 42 of the Rules of Court. PeHHoner may raise er- es decided by the Regional Trial Court in the exercise of its original
rors of fact, law, or both under SecHon 2 of Rule 42. jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgement or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
When a Municipal Trial Court (MTC), pursuant to its delegated required except in special proceedings and other cases of multiple or
jurisdiction, renders an adverse judgment in an application for separate appeals were the law or these Rules so require. In such cas-
land registration, the aggrieved party’s remedy is: (1%) ’14 – Q14 es, the record on appeal shall be filed and served in like manner.
(A) ordinary appeal to the Regional Trial Court
(B) petition for review on certiorari to the Supreme Court (b) Petition for review. – The appeal to the Court of Appeals in
(C) ordinary appeal to the Court of Appeals cases decided by the Regional Trial Court in the exercise of its appel-
(D) petition for review to the Court of Appeals late jurisdiction shall be by petition for review in accordance with Rule
Answer: (C) ordinary appeal to the Court of Appeals 42.
Under Section 34, Batas Pambansa Blg. 129, the judgement of
the MTC in the exercise of its delegated jurisdiction in land registration (c) Appeal by certiorari. – In all cases where only questions of
cases shall be appealable in the same manner as decisions of the law are raised or involved, the appeal shall be to the Supreme Court by
RTC. Thus, an ordinary appeal to the Court of Appeals is the appropri- petition for review on certiorari in accordance with Rule 45.
ate remedy.
The first mode of appeal, the ordinary appeal under Rule 41 of the
Goodfeather Corporation, through its President, Al Pakino, Rules of Court, is brought to the CA from the RTC, in the exercise of its
filed with the Regional Trial Court (RTC) a complaint for specific original jurisdiction, and resolves questions of fact or mixed questions
performance against Robert White. Instead of filing an answer to of fact and law. The second mode of appeal, the petition for review
the complaint, Robert White filed a motion to dismiss the com- under Rule 42 of the Rules of Court, is brought to the CA from the
plaint on the ground of lack of the appropriate board resolution RTC, acting in exercise of its appellate jurisdiction, and resolves ques-
from the Board of Directors of Goodfeather Corporation to show tions of fact or mixed questions of fact and law. The third mode of ap-
the authority of Al Pakino to represent the corporation and file the peal, the appeal by certiorari under Rule 45 of the Rules of Court, is
complaint in its behalf. The RTC granted the motion to dismiss brought to the Supreme Court and resolves only questions of law (The
and, accordingly, it ordered the dismissal of the complaint. Al Heirs of Nicolas S. Cabigas v. Melba L. Limbaco, G.R. No. 175291,
Pakino filed a motion for reconsideration which the RTC denied. July 27, 2011).
As nothing more could be done by Al Pakino before the RTC, he Clearly, the decision of the Regional Trial Court in the exercise of
filed an appeal before the Court of Appeals (CA). Robert White its original jurisdiction is appealable to the Supreme Court under Rule
moved for dismissal of the appeal on the ground that the same 45 on pure questions of law.
involved purely a question of law and should have been filed with
the Supreme Court (SC). However, Al Pakino claimed that the ap- Where and how will you appeal the following:
peal involved mixed questions of fact and law because there must 1. An order of execution issued by the RTC. (1%) ’12 –
be a factual determination if, indeed, Al Pakino was duly autho- Q10a(1)
rized by Goodfeather Corporation to file the complaint. Whose SUGGESTED ANSWER:
position is correct? Explain. (4%) ’14 – Q21 A petition for certiorari under Rule 65 before the Court of Appeals.
Answer: Al Pakino is correct in claiming that the appeal involved SUGGESTED ANSWER:
mixed questions of fact and law. There is a question of law when the The mode of elevation may be either by appeal (writ of error or
doubt or difference arises as to what the law is on a certain state of certiorari), or by special civil action of certiorari, prohibition, or man-
facts. On the other hand, there is a question of fact, when the doubt or damus. (Banaga v. Majaducon cited in general Milling Corporation-
difference arises as to the truth or falsehood of alleged facts (Mirant Indpependent Labor Union vs. General Milling Corporation, G.R. No.
Philippines Organization v. Sario, G.R. No. 197598, November 21, 183122, June 15, 2011, Perez, J.).
2012).
Since the complaint was dismissed due to the alleged lack of 2. Judgment of RTC denying a petition for Writ of Amparo.
appropriate board resolution from the Board of Directors of Goodfeath- (1%)’12 – Q10a(2)
er Corporation, the appeal will necessarily involve a factual determina- SUGGESTED ANSWER:
tion of the authority to file the Complaint for the said Corporation. Any party may appeal from the final judgment or order to the
Hence, the appeal before the Court of Appeals is correct. Supreme Court by way of a petition for review on certiorari under Rule
Al Pakino and Robert White are incorrect. An appeal may be tak- 45 of the Rules of Court. The period of appeal shall be five (5) working
en from a judgement or final order that completely disposes of the days from the date of notice of the adverse judgment, and the appeal
case, or of a particular matter therein when declared by the Rules to be may raise questions of fact or law or both. (Sec. 19, Rule on the Writ of
appealable.it is well settled that an order dismissing an action without Amparo, A.M. No. 07-9-12-SC, 25 September 2007).
prejudice cannot be subject of appeal (Section 1, Rule 41, Rules of
Court). 3. Judgment of MTC on a land registration case based on
Since a dismissal based on alleged lack of appropriate board its delegated jurisdiction. (1%) ’12 – Q10a(3)
resolution is considered without prejudice which cannot be a subject of SUGGESTED ANSWER:
an appeal, the appropriate remedy is a special civil action under Rule The appeal should be filled with the Court of Appeals by filing a
65 of the Rules of Court. Notice of Appeal within fifteen (15) days from notice of judgment or
final order appealed from. (Sec. 34, Batas Pambansa Blg. 129, or the

24
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Bar Ques)ons and Answers
Judiciary Reorganization Act of 1980, as amended by Republic Act No. RULE 43 - APPEALS FROM COURT OF TAX APPEALS AND QUA-
7691, March 25, 1994). SI-JUDICIAL AGENCIES TO THE COURT OF TAX APPEALS

4. A decision of the Court of Tax Appeal's First Division.


(1%) ’12 – Q10a(4) The Energy Regulatory Commission (ERC) promulgates a
SUGGESTED ANSWER: decision increasing electricity rates by 3%. KMU appeals the de-
The decision of the Court of Tax Appeals Decision may be ap- cision by way of petition for review. The appeal will therefore: ’12
pealed to the CTA en banc. – Q18
The decisions of the Court of Tax Appeals are no longer appeal- a) stay the execution of ERC decision.
able to the Court of Appeals. Under the modified appeal procedure, the b) shall not stay the ERC decision unless the Court of Ap-
decision of a division of the CTA may be appealed to the CTA en banc. peals directs otherwise.
The decision of the CTA en banc may in turn be directly appealed to c) stay the execution of the ERC decision conditioned on
the Supreme Court by way of a petition for review on certiorari under KMU posting a bond.
Rule 45 on questions of law. (Section 11, R.A. 9286, March 30, 2004). d) shall not stay the ERC decision.
SUGGESTED ANSWER:
Findings of fact are generally not disturbed by the appellate b) Shall not stay the ERC decision unless the Court of Appeals
court except in cases __________. (1%) ’13 – Q12 directs otherwise;
(A) where the issue is the credibility of the witness KMU’s appeal of the decision of the Energy Regulations Commis-
(B) where the judge who heard the case is not the same sion shall not stay the decision increasing the electricity rates by 3%,
judge who penned the decision unless the Court of Appeals shall direct otherwise upon such terms as
(C) where the judge heard several witnesses who gave con- it may deem just. (Rule 43, Sec. 12, Rules of Court).
flicting testimonies
(D) where there are substantially overlooked facts and cir- COURT OF APPEALS
cumstances that, if properly considered, might affect the result of In an original action for certiorari, prohibition, mandamus, or
the case quo warranto , when does the Court of Appeals acquire jurisdic-
(E) None of the above. tion over the person of the respondent? (1%) ’13 – Q15
SUGGESTED ANSWER: (D) where there are substantially over- (A) Upon the service on the respondent of the petition for
looked facts and circumstances that, if properly considered, might certiorari, prohibition, mandamus or quo warranto, and his volun-
affect the result of the case. tary submission to the jurisdiction of the Court of Appeals.
In Far East Bank and Trust Company v. Court of Appeals (G.R. (B) Upon service on the respondent of the summons from the
No. 123569, April 1, 1996), the Supreme Court held that findings of fact Court of Appeals.
of the trial court should not be disturbed on appeal unless the trial court (C) Upon the service on the respondent of the order or reso-
has ignored or overlooked certain facts or circumstances of weight and lution of the Court of Appeals indicating its initial action on the
significance which, if considered, would alter the result of the case, for petition.
trial judges are in the best position to weigh confliction declarations of (D) By respondent’s voluntary submission to the jurisdiction
witnesses in the light of the court’s opportunity to observe and examine of the Court of Appeals.
the witnesses’ conduct and attitude on the witness chair. (E) Under any of the above modes.
In a relatively more recent case of Miranda v. People (G.R. No. SUGGESTED ANSWER: (C) Upon the service on the respondent
176298, January 25, 2012), the High Court explained that absent any of the order or resolution of the Court of Appeals indicating its initial
showing that the lower courts overlooked substantial facts and circum- action on the petition.
stances, which if considered, would change the result of the case, the Under Sec. 6 of Rule 65, if the petition is sufficient in form and
Court should give deference to the trial court’s appreciation of the facts substance to justify such process, the court shall issue an order requir-
and of the credibility of witnesses. ing the respondent or respondents to comment on the petition within
ten (10) days from receipt of copy thereof. Such order shall be served
on the respondent sin such manner as the court may direct, together
RULE 40 - APPEAL FROM MTC TO RTC with a copy of the petition and any annexes thereto.
In petition for certiorari before the Supreme Court and the Court of
RTC decides an appeal from the MTC involving a simple col- Appeals, the provisions of Section 2, Rule 56, shall be observed. Be-
lection case. The decision consists of only one page because it fore giving due course thereto, the court may require the respondents
adopted by direct reference the findings of fact and conclusions to file their comment to, and not a motion to dismiss, the petition.
of law set forth in the MTC decision. Which statement is most Thereafter, the court may require the filing of a reply and such other
accurate? ’12 – Q19 responsive or other pleadings as it may deem necessary and proper.
a) The RTC decision is valid because it was issued by a Undoubtedly, upon the service on the respondent of the order or
court of competent jurisdiction. resolution of the Court of Appeals indicating its initial action on the
b) The RTC decision is valid because it expedited the reso- petition, the appellate court acquires jurisdiction over the person of the
lution of the appeal. respondent.
c) The RTC decision is valid because it is a memorandum
decision recognized by law.
d) The RTC decision is valid because it is practical and RULE 47 - ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND
convenient to the judge and the parties. RESOLUTIONS
SUGGESTED ANSWER:
c) The RTC decision is valid because it is a memorandum deci-
sion recognized by law. Tom Wallis filed with the Regional Trial Court (RTC) a Petition
A memorandum decision can be welcomed as an acceptable for Declaration of Nullity of his marriage with Debi Wallis on the
method of dealing expeditiously with the case load of the courts of ground of psychological incapacity of the latter. Before filing the
justice. The phrase Memorandum Decision appears to have been in- petition, Tom Wallis had told Debi Wallis that he wanted the an-
troduced in this jurisdiction not by the law but by Section 24 of the nulment of their marriage because he was already fed up with her
Interim Rules and Guidelines of BP Blg. 129, reading as follows: irrational and eccentric behaviour. However, in the petition for
Sec. 24, Memorandum decisions – The judgment or final resolu- declaration of nullity of marriage, the correct residential address
tion of a court in appealed cases may adopt by reference the findings of Debi Wallis was deliberately not alleged and instead, the resi-
of fact and conclusions of law contained in the decision or final order
appealed from. (Francisco vs. Perm Skul, G.R. No. 81006, May 12,
1989.)

25
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Bar Ques)ons and Answers
dential address of their married son was stated. Summons was Miguel filed a Complaint for damages against Jose, who denied
served by substituted service at the address stated in the petition. liability and filed a Motion to Dismiss on the ground of failure to
For failure to file an answer, Debi Wallis was declared in default state a cause of action. In an Order received by Jose on January
and Tom Wallis presented evidence ex-parte. The RTC rendered 5, 2015, the trial court denied the Motion to Dismiss. On February
judgment declaring the marriage null and void on the ground of 4, 2015, Jose sought reconsideration of that Order through a Mo-
psychological incapacity of Debi Wallis. Three (3) years after the tion for Reconsideration. Miguel opposed the Motion for Recon-
RTC judgment was rendered, Debi Wallis got hold of a copy sideration on the ground that it was filed out of time. Jose coun-
thereof and wanted to have the RTC judgment reversed and set tered that the 15-day rule under Section 1 of Rule 52 does not
aside. If you are the lawyer of Debi Wallis, what judicial remedy or apply where the Order sought to be reconsidered is an interlocu-
remedies will you take? Discuss and specify the ground or tory order that does not attain finality. Is Jose correct? Explain.
grounds for said remedy or remedies. (5%) ’14 – Q20 (5%) ’16 – Q11
Answer: Debi Wallis may file a petition for Annulment of Judge-
ment under Rule 47, of the Rules of Court, on the grounds of lack of SUGGESTED ANSWER:
jurisdiction, extrinsic fraud and denial of the right to due process (Leti-
cia Diona v. Romeo Balange, G.R. No. 173589, January 7, 2013). No. Jose is not correct. While Jose's reliance on Section 1 of Rule 52
An action for annulment of judgement is a remedy in law inde- is misplaced because the said Rule applies only to cases pending
pendent of the case where the judgement sought to be annulled was before the Court of Appeals, his argument that the fifteen day rule does
rendered. The purpose of such action is to have the final and executo- not apply because the order sought to be reconsidered is an interlocu-
ry judgement set aside so that there will be a renewal in litigation. It is tory order has basis in jurisprudence.In Denso Philippines, Inc. v. The
resorted to in cases where the ordinary remedies of new trial, appeal, Intermediate Appellate Court, (G.R. No. 75000, February 27, 1987),
petition for relief from judgement, or other appropriate remedies are no the Supreme Court held that a motion for reconsideration of an inter-
longer available through no fault of the appellant and is based on the locutory order is not subject to the usual limiting fifteen-day period of
grounds of extrinsic fraud, and lack of jurisdiction (Alaban v. Court of appeal prescribed for final judgments and orders.
Appeals, G.R. No. 156021, September 23, 2005).
Relive thereto, the act of Tom Wallis is deliberately keeping Debi Be that as it may, since the motion for reconsideration is a condition
Wallis away from the Court, by intentionally alleging a wrong address sine qua non for the filing of a petition for certiorari which is the appro-
in the complaint constitutes extrinsic fraud. priate remedy, the same can be filed not later than sixty (60) days from
Moreover, the failure of the Court to acquire jurisdiction over the notice of the denial of the motion to dismiss; otherwise, a legal aberra-
person of the respondent being an indispensable party, necessitates tion would ensue where a party who has merely 60 days from notice of
the annulment of judgement in the Regional Trial Court. an adverse interlocutory order to interpose a special civil action for
Likewise, there is denial of the right to due process when Debi certiorari would be allowed a longer period to move for reconsideration
Wallis was not given an opportunity to be heard in the case. Hence, the of such order. Consequently, since Jose's motion for reconsideration
judgement rendered by the RTC may be annulled by the Court of Ap- was filed 31 days after he received the order denying his motion to
peals under Rule 47 of the Rules of Court. dismiss, the same was still filed on time.
Moreover, it is evident that the ordinary remedies of new trial
petition for relief or other appropriate remedies are no longer available ANOTHER SUGGESTED ANSWER:
through no fault of Debi Wallis because she was able to obtain copy of
the decision only three (3) years after the same was rendered by the
No. Jose is not correct. Rule 52 applies only to motions for reconsider-
Trial Court.
ation of judgments or final resolutions of the Court of Appeals in ap-
At any rate, the court erred in declaring the defendant in default
pealed cases. This case, however, involves proceedings before the
because there is no default in a Petition for declaration of nullity of
trial court. Under Section 1, Rule 37 of the Rules of Court, the period to
marriage (Section 3, Rule 9, Rules of Court). Thus, a Petition for Cer-
file a motion for reconsideration shall be within the period for taking an
tiorari under Rule 65 of the Rules of Court could have been an appro-
appeal, which under Section 3, Rule 41, should be made within fifteen
priate remedy within the reglementary period allowed by the Rules.
(15) days from notice of the assailed order. Applying the foregoing,
Jose should have filed his motion for reconsideration within 15 days
RULE 52 - MOTION FOR RECONSIDERATION from January 5, 2015, or until January 20, 2015. Clearly, Jose's motion
for reconsideration was filed out of time.
Under Rule 52, a Second Motion for Reconsideration is a
prohibited pleading. However, where may such Motion be al- PROCEDURE IN THE SUPREME COURT
lowed? ’12 – Q63
a) the Sandiganbayan;
b) the Office of the President; RULE 56 - ORIGINAL CASES/APPEALED CASES
c) the Supreme Court;
d) None of the above.
SUGGESTED ANSWER: If the Supreme Court en banc is equally divided in opinion
c) The Supreme Court covering an original action, the case shall be: ’12 – Q93
Under Rule 52, a second Motion for Reconsideration is a prohib- a) re-raffled to a division.
ited pleading. However, the Supreme Court en banc may entertain the b) original action shall be dismissed.
same in the higher interest of justice upon a vote of at least two-thirds c) The judgment appealed from shall be official.
of its actual membership. There is reconsideration ‘in the highest inter- d) again deliberated upon.
est of justice’ when the assailed decision is not lny legally erroneous SUGGESTED ANSWER:
but is likewise patently unjust and potentially capable of causing un- b) Original actions shall be dismissed.
warranted and irremediable injury or damage to the parties. A second Where the court en banc is equally divided in opinion, or the nec-
motion for reconsideration can only be entertained before the ruling essary majority cannot be had, the cases shall again be deliberated
sought to be reconsidered becomes final by operation of law or by the upon, and if after such deliberation no decision is reached, the original
Court’s declaration. (Sec. 3, Rule 15, Internal Rules of the Supreme action commenced in the court shall be dismissed; in appealed cases,
COurt). In the Division, a vote of the three Members hall be required to the judgment or order appealed from shall stand affirmed; and on all
elevate a second motion of reconsideration to the Court En Banc. incidental matters, the petition or motion shall be denied. (Rule 56,
(Aliviado vs. Proctor and Gamble Phils., Inc., et. al, G.R. No. 160506, Sec. 7, Rules of Court).
June 6, 2011, Del Castillo, J.).

PROVISIONAL REMEDIES

26
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As a rule, courts may not grant an application for provisional In the case, the sheriff attached the house and lot of Agente which
remedy without complying with the requirements of notice and is exempted from attachment and execution (Section 13, Rule 39 of
hearing. These requirements, however, may be dispensed with in the Rules of Court).
an application for: (1%) ’14 – Q6
(A) writ of preliminary injunction
(B) writ for preliminary attachment Arthur, a resident foreigner sold his car to Bren. After being
(C) an order granting support pendente lite paid but before delivering the car, Arthur replaced its original
(D) a writ of replevin sound system with an inferior one. Bren discovered the change,
Answer: (B) writ for preliminary attachment rejected the car, and demanded the return of his money. Arthur
Under Section 2, Rule 57 of the Rules of Court, preliminary at- did not comply. Meantime, his company reassigned Arthur to Sin-
tachment may be issued ex parte or upon motion with notice and hear- gapore. Bren filed a civil action against Arthur for contractual
ing. fraud and damages. Upon his application, the court issued a writ
(A) a writ of replevin of preliminary attachment on the grounds that (a) Arthur is a for-
eigner; (b) he departed from the Philippines; and (c) he was guilty
Under Section 3, Rule 60, the Court shall issue an order and the of fraud in contracting with Bren. Is the writ of preliminary at-
corresponding writ of replevin, upon the filing of such affidavit and tachment proper? ’11 – Q40
approval of the bond. There are no requirements of prior notice and (A) No, Arthur is a foreigner living abroad; he is outside the court’s
hearing. jurisdiction.
(B) Yes, Arthur committed fraud in changing the sound system
and its components before delivering the car bought from him.
(C) Yes the timing of his departure is presumptive evidence of
RULE 57 - PRELIMINARY ATTACHMENT
intent to defraud.
(D) No, since it was not shown that Arthur left the country with
Bayani, an overseas worker based in Dubai, issued in favor intent to defraud Bren.
of Agente, a special power of attorney to sell his house and lot.
Agente was able to sell the property but failed to remit the pro-
ceeds to Bayani, as agreed upon. On his return to the Philippines,
RULE 58 - PRELIMINARY INJUNCTION
Bayani, by way of a demand letter duly received by Agente,
sought to recover the amount due him. Agente failed to return the A temporary restraining order (TRO) was issued on September
amount as he had used it for the construction of his own house. 20, 2017 by the RTC against defendant Jeff enjoining him from enter-
Thus, Bayani filed an action against Agente for sum of money ing the land of Regan, the plaintiff.
with damages. Bayani subsequently filed an ex-parte motion for
the issuance of a writ of preliminary attachment duly supported On October 9, 2017, upon application of Regan, the trial court,
by an affidavit. The court granted the ex-parte motion and issued allegedly in the interest of justice, extended the TRO for another 20
a writ of preliminary attachment upon Bayani’s posting of the days based on the same ground for which the TRO was issued.
required bond. Bayani prayed that the court’s sheriff be deputized
to serve and implement the writ of attachment. On November 19, On October 15, 2017, Jeff entered the land subject of the TRO.
2013, the Sheriff served upon Agente the writ of attachment and May Jeff be liable for contempt of court? Why? (4%) ’17 – Q12
levied on the latter’s house and lot. On November 20, 2013, the
Sheriff served on Agente summons and a copy of the complaint. SUGGESTED ANSWER
On November 22, 2013, Agente filed an Answer with Motion to No, Jeff may not be held liable for contempt. Under Rule
Discharge the Writ of Attachment alleging that at the time the writ 58, Section 5 of the Rules of Court, a Temporary Restraining Or-
of preliminary attachment was issued, he has not been served der is valid for 20 days. Its effectivity is not extendible without
with summons and, therefore, it was improperly issued. (4%) need of any judicial declaration to that effect, and no court shall
(A) Is Agente correct? have the authority to extend or renew the same on the same
(B) Was the writ of preliminary attachment properly execut- ground for which it was issued, thus, Jeff cannot be held liable for
ed? ’14 – Q9 contempt.
Answer: (A) No, Agente is not correct. Section 2, Rule 57 provides
that a writ of attachment may be issued ex parte or upon motion with Preliminary Prohibitive Injunction will not lie: ’12 – Q9
notice and hearing by the court in which the action is pending. a) to enjoin repeated trespass on land.
Under the Rules, the applicant of the writ is only required to (i) b) in petitions for certiorari and mandamus.
submit an affidavit; and (ii) post a bond before the court can validly c) to restrain implementation of national government in-
issue the writ of attachment. The Rules do not require prior service of frastructure project.
summons for the proper issuance of a writ of attachment (Sofia Torres d) to restrain voting of disputed shares of stock.
v. Nicanor Satsatin, G.R. No. 166759, November 25, 2009). SUGGESTED ANSWER
Accordingly, the issuance of the writ of attachment is valid not- c) To restrain implementation of national government in-
withstanding the absence of a prior service of summons to Agente. frastructure project.
(B) No. The writ of preliminary attachment was not properly exe- No court in the Philippines shall have jurisdiction to issue any
cuted. Although a writ of attachment may issue even before summons restraining order, preliminary injunction, or preliminary mandatory in-
is served upon the defendant, the same, however, may not bind and junction in any case, dispute, or controversy involving an infrastructure
affect the defendant until jurisdiction over his person is obtained project, and natural resource development projects and public utilities
(Davao Light and Power Co., Inc. v. Court of Appeals, G.R. No. 93262, operated by the Government (Section 1, P.D. 1818)
December 29, 1991, 204 SCRA 343).
Thus, the writ of preliminary attachment must only be served
simultaneous or at least after the service of summons to the defendant In Petition for Certiorari, the Court of Appeals issues a Writ of
(Sofia Torres v. Nicanor Satsatin, G.R. No. 166759, November 25, Preliminary Injunction against the RTC restraining the latter from
2009). trying a crucial case. The Court of Appeals should therefore: ’12 –
Q91
No. The Writ of attachment was not properly executed. Under a) decide the main case within 60 days.
Section 2, Rule 57, the Court may only require the sheriff of the court b) decide the certiorari petition within 6 months.
to attach so much of the property in the Philippines of the party against c) decide the main case or the petition within 60 days.
whom it is issued, not exempt from execution. d) decide the main case or the petition within 6 months
from issue of the preliminary injunction.
SUGGESTED ANSWER:

27
The Sigma Rho Fraternity
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d) Decide the main case or the petition within 6 months from NO. The action for declaratory relief is not tenable. Whether the
issue of the preliminary student deserves to graduate with Latin honors does not fall within the
injunction. matters subject to declaratory relief, namely, a deed, will, contract or
The trial court, the Court of Appeals, the Sandiganbayan or the other written instrument, or a statute, executive order or regulation,
Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that ordinance, or any other government regulation (Sec 1, Rule 63, 1997
issued a writ of preliminary injunction against a lower court, board, Rules of Civil Procedure.)
officer, or quasi-judicial agency shall decide the main case or petition
within six (6) months from the issuance of the writ. (Rule 58, Sec. 5, as Resource Unlimited, a well-financed foreign corporation would
amended by A.M. No. 07-7-12-SC). like to engage in a tax-exempt business venture in the Philip-
pines. Its management, however, entertains some doubts as to
whether it could, in the light of the Investments Incentive Act. To
RULE 60 - REPLEVIN resolve all doubts and to obtain a declaration of its rights and
duties under the said law, it filed a petition for declaratory relief
Gerry sued XYZ Bus Co. and Rico, its bus driver, for injuries with the SC. How will you resolve said petition? ’85 – Q17
Gerry suffered when their bus ran off the road and hit him. Of the
two defendants, only XYZ Bus Co. filed an answer, alleging that I would resolve to dismiss the petition for lack of jurisdiction.
its bus ran off the road because one of its wheels got caught in an It is the Regional Trial Court, not the Supreme Court, which has
open manhole, causing the bus to swerve without the driver’s jurisdiction since the action for declaratory relief is incapable of pecu-
fault. Someone had stolen the manhole cover and the road gave niary estimation (Office of the Ombudsman v. Ibay, 364 SCRA 281
no warning of the danger it posed. On Gerry’s motion and over [2001].)
the objection of XYZ Bus Co., the court declared Rico, the bus Even if the petition was filed in the RTC, it should still be dis-
driver, in default and rendered judgment ordering him to pay missed. In declaratory relief, there must be an actual justiciable contro-
P50,000 in damages to Gerry. Did the court act correctly? ’11 – versy or the ripening seeds of one between persons whose interests
Q19 are adverse (Tolentino v. Board of Accountancy, G.R. No. L-3062,
(A) No, since the court should have tried the case against both September 28, 1951.) A petition for judicial relief cannot be used to get
defendants upon the bus company’s answer. an advisory opinion from the court.
(B) No, the court should have dropped Rico as defendant since
the moneyed defendant is the bus company. 1. In a declaratory relief action, the court may refuse to exercise
(C) Yes, the court can, under the rules, render judgment against its power to declare rights and construe instruments in what
the defendant declared in default. instance/s? ‘12 - Q21
(D) Yes, since, in failing to answer, Rico may be deemed to have
admitted the allegations in the complaint. a) When a decision would not terminate the contro-
versy which gave rise to the action.
Which of the following has NO PLACE in an application for a b) In an action to consolidate ownership under Art.
replevin order? A statement ’11 – Q20 1607 of the Civil Code.
(A) that the property is wrongfully detained by the adverse party. c) To establish legitimate filiation and determine
(B) that the property has not been distrained for a tax assessment hereditary rights.
or placed under custodia legis. d) (a) and (c) above
(C) of the assessed value of the property.
(D) that the applicant owns or has a right to the possession of the
property SUGGESTED ANSWER:
a) When a decision would not terminate the controversy
which gave rise to the action.
SPECIAL CIVIL ACTIONS The court, may motu proprio or upon motion,
refuse to exercise the power to declare rights and to
construe instruments in any case where a decision
RULE 62 - INTERPLEADER would not terminate the uncertainty or controversy
which gave rise to the action, or in any case where the
What is an action for interpleader? ’98 – Q8(1) declaration or construction is not necessary and proper
under the circumstances (Rule 63, Sec. 5, Rules of
An action for interpleader is a special civil action which is filed Court).
whenever conflicting claims upon the same subject matter are or may
be made against a person who claims no interest whatever in the sub- 2. In which of the following is Interpleader improper?
ject matter, or an interest in whole or in part is not disputed by the
claimants to compel them to interplead and litigate their several claims a) in an action where defendants' respective claims
among themselves (Sec. 1, Rule 62, 1997 ROC.) are separate and distinct from each other.
b) in an action by a bank where the purchaser of a
A lost the cashier’s check she purchased from XYZ Bank. cashier's check claims it was lost and another per-
Upon being notified of the loss, XYZ bank immediately issued a son has presented it for payment.
“STOP PAYMENT” order. Here comes B trying to encash the same c) in an action by a lessee who does not know where
cashier’s check but XYZ Bank refused payment. As precautionary to pay rentals due to conflicting claims on the
measure, what remedy may XYZ Bank avail of with respect to the property.
conflicting claims of A and B upon the cashier’s check? ’96 – d) in an action by a sheriff against claimants who have
Q10(3) conflicting claims to a property seized by the sheriff
in foreclosure of a chattel mortgage.
XYZ Bank may file a complaint for interpleader so that the court
may resolve the conflicting claims of A and B over the cashier’s check.
SUGGESTED ANSWER:
a) In an action where defendants’ respective claims are
RULE 63 - DECLARATORY RELIEF separate and distinct from each other.
Under the Rules, whenever conflicting claims
A student filed action for declaratory relief against his school upon the same subject matter are or may be made
to determine whether he deserves to graduate with Latin honors. against a person who claims no interest whatever in the
Is this action tenable? ’98 – Q8(2) subject matter, ot an interest which in whole or in part is

28
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Bar Ques)ons and Answers
not disputed by the conflicting claimants, he may bring The mode of review of the decision of the NLRC via a special civil
an action against the conflicting claimants to compel action of certiorari under Rule 65, but pursuant to St. Martin’s Funeral
them to interplead and litigate their several claims Homes v. NLRC, 295 SCRA 494 [1998], the same should be filed in the
among themselves. (Rule 62, Sec. 1, Rules of Court). Court of Appeals.
Undoubtedly, if the defendants’ respective claims are The mode of review of the decisions of two Constitutional Com-
separate and distinct from each other, an action for missions - the Commission of Elections and the Commission on Audit,
interplead is not proper. as provided under Rule 64 of the 1997 Rules of Civil Procedure – is a
special civil action for certiorari under Rule 65. Decisions of the Civil
Service Commission, however, are reviewable by petition for review to
RULE 64 - REVIEW OF JUDGMENTS AND FINAL ORDERS OR be filed with the Rule 43 of the 1997 Revised Rules of Civil Procedure.
RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE
COMMISSION ON AUDIT Mark filed with the BIR a complaint for refund of taxes, but it was
not acted upon. So, he filed a similar complaint with the CTA raf-
(36) What is the proper remedy to secure relief from the final reso- fled to one of its Divisions. Mark’s complaint was dismissed.
lutions of the Commission On Audit? ’11 - Q26 Thus, he filed with the CA a petition for certiorari under Rule 65.
(A) Petition for review on certiorari with the Supreme Court. Does the CA have jurisdiction over Mark’s petition? ’06 – Q7
(B) Special civil action of certiorari with the Court of Appeals. NO. A decision of a Division of the Court of Tax Appeals (CTA) is
(C) Special civil action of certiorari with the Supreme Court. appealable within fifteen (15) days to the CTA en banc (Sec. 18, R.A.
No. 9282, as amended.) on the other hand, a part adversely affected
(D) Appeal to the Court of Appeals by a decision of the CTA en banc may file with the Supreme Court a
verified petition for review on certiorari pursuant to Rule 45 of the 1997
RULE 65 - CERTIORARI, PROHIBITION AND MANDAMUS Rules of Civil Procedure (Sec. 19, R.A. No. 9282, as amended.)
Republic Act No. 9282 expanded the jurisdiction of the Court of
Tax Appeals and elevated the same to the level of a collegiate court
Compare the certiorari jurisdiction of the Supreme Court under equivalent to the rank of the Court of Appeals. Hence, the Court of
the Constitution with that under Rule 65 of the Rules of Civil Pro- Appeals no longer has jurisdiction to review decisions of the Court of
cedure. ’08 – Q21a Tax Appeals en banc.

The certiorari jurisdiction of the Supreme Court under the Consti- In 1996, Congress passed R.A. No. 8189, otherwise known as the
tution is the mode by which the Court exercises its expanded jurisdic- Voter’s Registration Act of 1996, providing for the computeriza-
tion, allowing it to take corrective action through the exercise of its tion of elections. Pursuant thereto, the COMELEC approved the
judicial power. Constitutional certiorari jurisdiction applies even if the Voters’ Registration Identification System (VRIS) Project. It issued
decision is not rendered by a judicial or quasi-judicial body; hence, it is invitations to pre-qualify and bid for the project. After the public
broader than the writ of certiorari under Rule 65, which is limited to bidding, Fotokina was declared the winning bidder with a bid of
cases involving a grave abuse of discretion amounting to lack or ex- P6 billion and was issued a Notice of Award. But the COMELEC
cess of jurisdiction on the part of any branch of any branch or instru- Chair objected to the award on the ground under the GAA, the
mentality of the government and there is no other plain, speedy and budget for the COMELEC’s modernization is only P1 billion. He
adequate remedy in the ordinary course of law. announced to the public that the VRIS project has been set aside.
Meanwhile, Fotokina filed with the RTC a petition for mandamus
L was charged with illegal possession of shabu before the RTC. to compel the COMELEC to implement the contract. Is a petition
Although bail was allowable under his indictment, he could not for mandamus an appropriate remedy to enforce contractual
afford to post bail, and so he remained in detention at the City obligations? ’06 – Q17(2)
Jail. For various reasons ranging from the promotion of the Pre-
siding Judge, to the absence of the trial prosecutor, and to the No, the COMELEC cannot be compelled by a writ of mandamus
lack of notice to the City Jail Warden, the arraignment of L was to discharge a duty that involves the exercise of judgment and discre-
postponed 19 times over a period of 2 years. Twice during that tion, especially where disbursement of public funds is concerned
period, L’s counsel filed motions to dismiss, invoking the right of (COMELEC v. Quijano-Padilla, 389 SCRA 353 [2002].)
the accused to a speedy trial. Both motions were denied by the
RTC. Can L file a petition for mandamus? ’07 – Q9 May the aggrieved party file a petition for certiorari in the SC un-
der Rule 65 of the ROC instead of filing a petition for review on
YES, L can file a petition for mandamus to enforce his constitu- certiorari under Rule 45 thereof for the nullification of a decision
tional right to a speedy trial which was capriciously denied to him. of the Court of Appeals in the exercise either of its original or
There is absolutely no justification for postponing an arraignment appellate jurisdiction? ’05 – Q1b
of the accused nineteen (19) times and over a period of two (2) years.
The numerous, unreasonable postponements of the arraignment The remedy to nullify a decision of the Court of Appeals is a peti-
demonstrate an abusive exercise of discretion (Lumanlaw v. Peralta, tion for review on certiorari in the Supreme Court under Rule 45, in-
482 SCRA 396 [2006].) Arraignment of the accused would not take stead of a petition for certiorari under Rule 65, except in certain excep-
thirty minutes of the precious time of the court, as against the preven- tional circumstances such as where appeal is inadequate. By settled
tive imprisonment and deprivation of liberty of the accused just be- jurisprudence, certiorari is not a substitute for a lost appeal.
cause he does not have the means to post bail although the crime
charged is bailable. A filed with the MTC of Manila an action for specific performance
The right to a speedy trial is guaranteed by the Constitution to against B, a resident of QC, to compel the later to execute a deed
every citizen accused of a crime, more so, when he is under preventive of conveyance covering a parcel of land situated in QC having an
imprisonment. L, in the given case, was merely invoking his constitu- assessed value of P19,000. B received the summons and a copy
tional right when a motion to dismiss the case was twice filed by coun- of the complaint on January 2, 2003. On January 10, 2003, B filed
sel. The RTC is virtually enjoined by the fundamental laws to respect a motion to dismiss the complaint on the ground of lack of juris-
such right; hence a duty. Having refused or neglected to discharge the diction contending that the subject matter of the suit was inca-
duty enjoined by law, whereas there is no appeal or any plain, speedy pable of pecuniary estimation. The court denied the motion. In
and adequate remedy in the ordinary course of law, the remedy of due time, B filed with the RTC a petition for certiorari praying that
mandamus may be availed of. the said order be set aside because the MTC had no jurisdiction
over the case. On February 13, 2003, A filed with the MTC a mo-
Explain each mode of certiorari as a mode of review of decisions tion for declare B in default. The motion was opposed by B on the
of the NLRC and the Constitutional Commissions. ’06 – Q6c ground that his petition for certiorari was still pending. Resolve
the Motion to Declare the Defendant in Default. ’03 – Q1b

29
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Bar Ques)ons and Answers
b) Public interest is involved;
The Court could declare B in default because B did not obtain a c) Case of urgency;
writ of preliminary injunction or a temporary restraining order from the d) Order is a patent nullity;
Regional Trial Court prohibiting the judge from proceeding in the case e) Issue is purely of law;
during the pendency of the petition for certiorari (Sec. 7, Rule 65; Diaz f) Deprivation of right to due process (Cochingyan v. Cloribel,
v. Diaz, 331 SCRA 302 [2000].) 76 SCRA 361; PALEA v. PAL, 111 SCRA 215 [1982].)

The defendant was declared in default in the RTC for his failure to Antonio, a resident of Pampanga, filed suit in the RTC of Manila
file an answer to a complaint for a sum of money. On the basis of on a promissory note executed by Andres, a resident of Cavite.
the plaintiff’s ex parte presentation of evidence, judgment by de- The latter moved to dismiss the ground “that the venue was im-
fault was rendered against the defendant. The defendant filed a properly laid.” The motion was denied and Andres wants to ques-
verified motion to the lift the order of default and to set aside the tion the denial before a higher tribunal. If you were Andres’
judgment. In his motion, the defendant alleged that, immediately lawyer, should your petition be for Certiorari, for Prohibition, or
upon receipt of the summons, he saw the plaintiff and confronted for Mandamus? ’80 – Q8(e) and (d)
him with his receipt evidencing his payment and that the plaintiff
assured him that he would instruct his lawyer to withdraw the If I were Andres’ lawyer, my petition would be for prohibition.
complaint. The trial court denied the defendant’s motion because The Supreme Court in Enriquez v. Macadaeg, 84 Phil. 674, has
it was not accompanied by an affidavit of merit. The defendant held that the remedy here a motion to dismiss is improperly denied is
filed a special civil action for certiorari under Rule 65 challenging prohibition.
the denial order. Is certiorari under Rule 65 the proper remedy? Here the motion to dismiss was improperly denied. Under Rule 4,
Why? ’02 – Q4a venue of personal actions is the place where the plaintiff or the defen-
dant resides, at the plaintiff’s election but here the case was filed in
The petition for certiorari under Rule 65 filed by the defendant is Manila where neither the plaintiff nor the defendant resides. Hence, a
the proper remedy because appeal is not a plain, speedy and ade- petition for prohibition would be proper.
quate remedy in the ordinary course of law. In appeal, the defendant in [Note: It is submitted that certiorari may also be availed of in order
default can only question the decision in the light of the evidence of the to set aside the order denying the motion to dismiss.]
plaintiff. The defendant cannot invoke the receipt to prove payment of
his obligation to the plaintiff. An order of a RTC setting the case for pre-trial was duly sent to
and received by the plaintiff and defendant and their respective
Distinguish a petition for certiorari as a mode of appeal from a lawyers. On the date of the pre-trial, plaintiff and his counsel did
special civil action for certiorari. ’99 – Q10a; ’98 – Q9(2) not appear and defendant moved to have plaintiff’s complaint
dismissed. The Court denied the motion and re-set the case for
A petition for review on certiorari as a mode of appeal may be pre-trial. Can defendant successfully sue for mandamus before a
distinguished from a special civil action for certiorari in that the petition higher tribunal? ’80 – Q4(e) and (d)
for certiorari as a mode of appeal is governed by Rule 45 and is filed
from a judgment or final order of the Regional Trial Court, the Sandi- No, the defendant cannot successfully sue for mandamus before
ganbayan or the Court of Appeals, within fifteen (15) days from notice a higher tribunal.
of the judgment appeals from or of the denial of the motion for new trial In American Insurance Co. v. Republic, G.R. No. L-25478, Octo-
or reconsideration filed in due time on questions of law only (Sections ber 23, 1967, the Supreme Court held that the trial court has the dis-
1 and 2, Rule 45.) cretion but not the duty to declare a party non-suited. Under Rule 65 of
A special civil action for certiorari is governed by Rule 65 and is the Rules of Court, mandamus only lies to compel the performance of
filed to annul or modify judgments, orders or resolutions rendered or ministerial acts but not those involving discretion.
issued without or in excess of jurisdiction or with grave abuse of discre-
tion tantamount to lack or excess or jurisdiction, when there is no ap-
(41) What is the movant’s remedy if the trial court incorrectly de-
peal nor any plain, speedy and adequate remedy in the ordinary
nies his motion to dismiss and related motion for reconsidera-
course of law, to be filed within sixty (60) days from notice of the judg-
tion? - ‘11 Q41
ment, order or resolution subject of the petition (Sections 1 and 4, Rule
65.) The special civil action for certiorari cannot generally be availed of (A) Answer the complaint.
as a substitute for a lost appeal under Rules 40, 41, 42, 43 and 45.
In appeal by certiorari under Rule 45, the petitioner and respon- (B) File an administrative action for gross ignorance of the
dent are the original parties to the action and the lower court is not law against the trial judge.
impleaded. In certiorari under Rule 65, the lower court is impleaded. (C) File a special civil action of certiorari on ground of grave
In appeal by certiorari, the filing of a motion for reconsideration is abuse of discretion.
not required; while in the special civil action of certiorari, such a motion
is generally required. (D) Appeal the orders of denial.
3. In election cases involving an act or omission of an MTC or
May a party resort to certiorari when appeal is still available? ’99 – RTC, a certiorari petition shall be filed with: - ‘11 Q26
Q10b

No, because as a general rule, certiorari is proper if there is no a) The Court of Appeals
appeal (Sec. 1, Rule 65.) However, if appeal is not a speedy and ade- b) The Supreme Court
quate remedy, certiorari may be resorted to (Echaus v. Court of Ap- c) The COMELEC
peals, 199 SCRA 381.) Certiorari is sanctioned, even if appeal is avail- d) The Court of Appeals or the COMELEC both having
able, on the basis of a patent, capricious and whimsical exercise of concurrent jurisdiction
discretion by a trial judge as when an appeal will not promptly relive
petitioner from the injurious effects of the disputed order (Vasquez v. SUGGESTED ANSWER:
Robilla-Alenio, 271 SCRA 67 [1997].) c) The COMELEC
Section 4, Rule 65 of the Rules of Court, as
Is the failure to file a motion for reconsideration in the lower court amended by A.M. No. 07-7-12-SC (Amendments to
as a condition precedent for the granting of the writ of certiorari Rules 41, 45, 58 and 65 of the Rules of Court) provides
or prohibition always fatal? ’96 – Q10(1) that in election cases involving an act or an omission of
a municipal or a regional trial court, the petition shall be
No, because there are exceptions, such as the following: filed exclusively with the Commission on Elections, in
a) The question of jurisdiction was squarely raised before and
decided by the respondent court;

30
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
aid of its appellate jurisdiction. (Galang vs. Hon. Geron- Under Section 7 of Rule 65, the court in which the petition is filed
imo, G.R. No. 192739, February 22, 2011.) may issue orders expediting the proceedings,

4. Choose the most accurate phrase to complete the statement: What is the effect of the pendency of a special civil action under
Mandamus will lie – ‘11 Q73 Rule65 of the Rules of Court on the principal case before the low-
er court? (1%) - ‘06 Q11
a) to compel a judge to consolidate trial of two cases (A) It always interrupts the course of the principal case.
pending before different branches of the court.
b) to compel a judge to reduce his decision in writing. (B) It interrupts the course of the principal case only if
c) to direct a probate court to appoint a particular the higher court issues a temporary restraining order or
person as regular administrator. a writ of preliminary injunction against the lower court.
d) to compel a judge to grant or deny an application (C) The lower court judge is given the discretion to con-
for preliminary injunction. tinue with the principal case.
(D) The lower court judge will continue with the principal
SUGGESTED ANSWER: case if he believes that the special civil action was
b) To compel a judge to reduce his decision in writing. meant to delay proceedings.
The 1987 Constitution no less commands
that “[n]o decision shall be rendered by any court with- (E) Due respect to the higher court demands that the
out expressing therein clearly and distinctly the facts lower court judge temporarily suspend the principal
and the law on which it is based.” (Art. VIII, Sec. 14, case.
1987 Constitution). Relative thereto, the Rules of Court SUGGESTED ANSWER: (B) It interrupts the course of the
also require a judgment or final order to be in writing, principal case only if the higher court issues a temporary
personally and directly prepared by the judge stating restraining order or a writ of preliminary injunction against
clearly and distinctly the facts and the law on which it is the lower court.
based, signed by him, and filed with the clerk of court.
(Rule 36, Sec. 1, Rules of Court). (Lenido Lumanog and Under Section 7 of Rule 65, the court in which the petition is
Augusto Santos vs. People, G.R. No. 182555, Sep- filed may issue orders expediting the proceedings, and it
tember 7, 2010, Villarama, Jr., J.) Evidently, mandamus may also grant a temporary restraining order or a writ of
will lie to compel a judge to perform his ministerial duty preliminary injunction for the preservation of the rights of the
to reduce his decision in writing. parties pending such proceedings. The petition shall not
interrupt the course of the principal case unless temporary
a) A files a Complaint against 8 for recovery of title and restraining order or a writ of preliminary injunction has been
possession of land situated in Makati with the RTC of issued against the public respondent from further proceeding
Pasig. B files a Motion to Dismiss for improper venue. in the case. (As amended by A.M No. 07-7-12-SC, Decem-
The RTC Pasig Judge denies B's Motion to Dismiss, ber 12, 2007)
which obviously was incorrect. Alleging that the RTC
Judge "unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting The Ombudsman found probable cause to charge with plunder
from an office", 8 files a Petition for Mandamus against the provincial governor, vice governor, treasurer, budget officer,
the judge. Will Mandamus lie? Reasons. (3%) - ‘12 Q10B and accountant. An Information for plunder was filed with the
SUGGESTED ANSWER: Sandiganbayan against the provincial officials except for the
treasurer who was granted immunity when he agreed to cooper-
No, mandamus will not lie. The proper reme- ate with the Ombudsman in the prosecution of the case. Immedi-
dy is a petition for prohibition (Serana vs. Sandigan- ately, the governor filed with the Sandiganbayan a petition for
bayan, G.R. No. 162059, January 22, 2008). The dis- certiorari against the Ombudsman claiming there was grave
missal of the case based on improper venue is not a abuse of discretion in excluding the treasurer from the Informa-
ministerial duty. Mandamus does not lie to compel the tion. - ‘15 Q11(A)(B)(C)
performance of a discretionary duty. (Nilo Paloma vs. a.) Was the remedy taken by the governor correct? (2%)
Danilo Mora, G.R. No. 157783, September 23, 2005).
Suggested Answer:
What is the effect of the pendency of a special civil action under
Rule65 of the Rules of Court on the principal case before the low-
No, the remedy taken by the Governor is not correct. The petition for
er court? (1%) - ‘13 MCQ Q11
certiorari is a remedy that is only available when there is no plain,
(A) It always interrupts the course of the principal case. speedy and adequate remedy under the ordinary course of law; hence,
the Governor should have filed a Motion for Reconsideration.
(B) It interrupts the course of the principal case only if
the higher court issues a temporary restraining order or
Besides, there is no showing that the Ombudsman committed grave
a writ of preliminary injunction against the lower court.
abuse of discretion in granting immunity to the treasurer who agreed to
(C) The lower court judge is given the discretion to con- cooperate in the prosecution of the case.
tinue with the principal case.
Alternative Remedy:
(D) The lower court judge will continue with the principal
case if he believes that the special civil action was
meant to delay proceedings. The remedy taken by the Governor is correct. A petition for Certiorari
under Rule 65 is the appropriate remedy if the Ombudsman committed
(E) Due respect to the higher court demands that the grave abuse of discretion in granting immunity to the treasurer who
lower court judge temporarily suspend the principal agreed to cooperate in the prosecution of the case.
case.
SUGGESTED ANSWER: (B) It interrupts the course of the b.) Will the writ of mandamus lie to compel the Ombudsman to
principal case only if the higher court issues a temporary include the treasurer in the Information? (3%)
restraining order or a writ of preliminary injunction against
the lower court. Suggested Answer:

31
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Bar Operations 2018
Bar Ques)ons and Answers
No. Mandamus will not lie to compel the Ombudsman to include the The remedy of the prosecution is to file a petition for certiorari under
treasurer in the Information. In matters involving the exercise of judg- Rule 65 of the Rules of Court, because the denial of a motion for re-
ment and discretion, mandamus may only be resorted to in order to consideration is merely an interlocutory order and there is no plain,
take action, but it cannot be used to direct the manner or the particular speedy and adequate remedy under the course of law.
way discretion is to be exercised, or to compel the retraction or rever-
sal of an action already taken in the exercise of judgment or discretion Be that as it may, it may be argued that appeal is the appropriate rem-
(Ampatuan, Jr. v. Secretary De Lima, G.R. 6770) is a discretionary duty edy from an order denying a motion for reconsideration of an order
that may not be compelled by the extraordinary writ of mandamus. granting a motion for new trial because an order denying a motion for
reconsideration was already removed in the enumeration of matters
c.) Can the Special Prosecutor move for the discharge of the bud- that cannot be a subject of an appeal under Section 1, Rule 41 of the
get officer to corroborate the testimony of the treasurer in the Rules of Court.
course of presenting its evidence? (2%)
b.) In what court and within what period should a remedy
Suggested Answer: be availed of? (1%)

No. The Special Prosecutor cannot move for the discharge of the bud- Suggested Answer:
get officer to become a State witness since his testimony is only cor-
roborative to the testimony of the treasurer. Following the principle of judicial hierarchy, the petition for certiorari
should be filed before the Court of Appeals with sixty (60) days from
Under the Section 17, Rule 119, the Court upon motion of the prosecu- receipt of the copy of the order of denial of the public prosecutor’s
tion before resting its case, may direct one or more of the accused to motion for reconsideration, or on October 20, 2015.
be discharged with their consent so that they may be witnesses for the
State, provided the following requisites are satisfied: (a) there is abso- c.) Who should pursue the remedy? (2%)
lute necessity for the testimony of the accused whose discharge is
requested; (b) there is no other direct evidence available for the proper Suggested Answer:
prosecution of the offense committed, except the testimony of said
accused; (c) the testimony of said accused can be substantially cor- The office of the Solicitor General should pursue the remedy. In crimi-
roborated in its material points; (d) said accused does not appear to be nal proceedings on appeal in the Court of Appeals or in the Supreme
the most guilty; and (e) said accused has not at any time been convict- Court, the authority to represent the people is vested solely in the So-
ed of any offense involving moral turpitude. licitor General. Under Presidential Decree No. 478, among the specific
powers and functions of the OSG is to “represent the government in
Absolute necessity exists for the testimony of an accused sought to be the Supreme Court and Court of Appeals in all criminal proceedings.”
discharged when he or she alone has knowledge of the crime. In more This provision has been carried over to the Revised Administrative
concrete terms, necessity is not present when the testimony would Code particularly in Book IV, Title III, Chapter 12 thereof. Without
simply corroborate or otherwise strengthen the prosecution’s evidence. doubt, the OSG is the appellate counsel of the People of the Philip-
The requirement of absolute necessity for the testimony of a state pines in all criminal cases (Carino v. de Castro, G.R. NO. 17604, April
witness depends on the circumstances of each case regardless of the 30, 2008).
number of the participating conspirators (Manuel J. Jiminez, Jr., v.
People of the Philippines, G.R. No. 209195, September 17, 2014) [a] Is the buyer in the auction sale arising from an extra-judicial
foreclosure entitled to a writ of possession even before the expi-
Alternative Answer ration of the redemption period? If so, what is the action to be
taken? (1%) ’16 – 9a
No, the special Prosecutor cannot move for the discharged of the bud-
get officer to become a State witness. The Office of the Special Prose- SUGGESTED ANSWER:
cutor is merely a component of the Office of the Ombudsman and may
only act under the supervision and control and upon authority of the [a] Yes, the buyer in the auction sale is entitled to a writ of possession
Ombudsman (Uy v. Sandiganbayan, G.R. No 105965-70, March 20, even before the expiration of the redemption period upon the filing of
2001). the ex parte petition for issuance of a writ of possession and posting of
the appropriate bond. Under Section 7 of Act No. 3135, as amended,
Accordingly, in the absence of any express delegation and authority the writ of possession may be issued to the purchaser in a foreclosure
from the Ombudsman, the Special Prosecutor does not have the pow- sale either within the one-year redemption period upon the filing of a
er to move for the discharge of the budget officer to corroborate the bond, or after the lapse of the redemption period, without need of a
testimony of the treasurer in the course of presenting its evidence bond (LZK Holdings and Development Corporation v. Planters Devel-
(Section 11 (3), R.A. 6770). opment Bank, G.R. No. 167998, April 27, 2007). Stated otherwise,
Section 7 of Act No. 3135, as amended, also refers to a situation
Jaime was convicted for murder by the Regional Trial Court of wherein the purchaser seeks possession of the foreclosed property
Davao City in a decision promulgated on September 30, 2015. On during the 12-month period for redemption. Hence, upon the purchas-
October 5, 2015, Jaime filed a Motion for New Trial on the ground er's filing of the ex parte petition and posting of the appropriate bond,
that errors of law and irregularities prejudicial to his rights were the RTC shall, as a matter o; course, order the issuance of the writ of
committed during his trial. On October 7, 2015, the private prose- possession in favor of the purchaser (Spouses Nicasio C. Marquez
cutor, with the conformity of the public prosecutor, filed an Oppo- and Anita J. Marquez v. Spouses Carlito Alindog and Carmen Alindog,
sition to Jaime's motion. On October 9, 2015, the court granted G.R. No. 184045, January 22, 2014; Spouses Jose Gatuslao and Er-
Jaime's motion. On October 12, 2015, the public prosecutor filed a mila Gatuslao v. Leo Ray Yanson, G.R. No, 191540, January 21,2015).
motion for reconsideration. The court issued an Order dated Oc-
tober 16, 2015 denying the public prosecutor's motion for recon- [b] After the period of redemption has lapsed and the title to the
sideration. The public prosecutor received his copy of the order lot is consolidated in the name of the auction buyer, is he entitled
of denial on October 20, 2015 while the private prosecutor re- to the writ of possession as a matter of right? If so, what is the
ceived his copy on October 26, 2015. - ‘15 Q13(A)(B)(C) action to be taken? (2%) ’16 – 9b

a.) What is the remedy available to the prosecution from the SUGGESTED ANSWER:
court's order granting Jaime's motion for new trial? (3%)
Yes, the auction buyer is entitled to a writ of possession as a matter of
Suggested Answer: right. It is settled that the buyer in a foreclosure sale becomes the ab-

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Bar Ques)ons and Answers
solute owner of the property purchased if it is not redeemed within a No. As expressly provided in the Rules, when the Solicitor Gener-
period of one year after the registration of the certificate of sale. He is, al commences the action for quo warranto, it may be brought in a Re-
therefore, entitled to the possession of the property and can demand it gional Trial Court in the City of Manila, as in this case, in the Court of
at any time following the consolidation of ownership in his name and Appeals or in the Supreme Court (Section 7, Rule 66, 1997 Rules of
the issuance to him of a new transfer certificate of title. In such a case, Civil Procedure.)
the bond required in Section 7 of Act No. 3135 is no longer necessary.
Possession of the land then becomes an absolute right of the purchas- If the principal of a public high school is illegally replaced by an-
er as confirmed owner. Upon proper application and proof of title, the other, is it a requirement that before he can go to court on quo
issuance of the writ of possession becomes a ministerial duty of the warranto, he should first exhaust administrative remedies? ’80 –
court (LZK Holdings and Development Corporation v. Planters Devel- Q9
opment Bank, G.R. No, 167998, April 27, 2007); Spouses Nicasio C.
Marquez and Anita /. Marquez v. Spouses Carlito Alindog and Carmen No, it is not a requirement that he should first exhaust administra-
Alindog, G.R. No. 184045, January 22, 2014; Spouses Jose Gatuslao tive remedies.
and Ermila Gatuslao v. Leo Ray Yanson, G.R. No. 191540, January 21, The Supreme Court has held that in quo warranto proceedings,
2015). no one is compelled to exhaust administrative remedies since public
interest requires that the right to public office should be determined as
expeditiously as possible (Sison v. Pangramuyen, 84 SCRA 364.)

[c] Suppose that after the title to the lot has been consolidated in RULE 67 - EXPROPRIATION
the name of the auction buyer, said buyer sold the lot to a third
party without first getting a writ of possession. Can the transferee
exercise the right of the auction buyer and claim that it is a minis- The Republic of the Philippines, through the DPWH, filed with the
terial duty of the court to issue a writ of possession in his favor? RTC a complaint for the expropriation of a parcel of land owned
Briefly explain. (2%) ’16 – 9c by Jovito. The land is to be used as an extension of the national
highway. Attached to the complaint is a bank certificate showing
SUGGESTED ANSWER: that there is, on deposit to with the LBP, an amount equivalent to
the assessed value of the property. The DPWH filed a motion for
[c] Yes. The transferee can exercise the right of the auction buyer, A the issuance of a writ of possession. Jovito filed a motion to dis-
transferee or successor-in-interest of the auction buyer by virtue of the miss the complaint on the ground that there are other properties
contract of sale between them, is considered to have stepped into the which could better serve the purpose. - ‘09 Q14
shoes of the auction buyer. As such, the transferee is necessarily enti- 1. Will Jovito’s motion to dismiss prosper? - ‘09 Q14
tled to avail of the provisions of Section 7 of Act 3135, as amended, as
if he is the auction buyer (Spouses Jose Gatuslao and Ermila Gatuslao NO. The present Rule of Procedure governing expropriation (Rule
v. Leo Ray Yanson, G.R. No. 191540, January 21, 2015). When the lot 67), as amended by 1997 Rules of Civil Procedure, requires the de-
purchased at a foreclosure sale is in turn sold or transferred, the right fendant to file an Answer, which must be filed on or before the time
to the possession thereof, along with all other rights of ownership, stated in the summons. Defendant’s objections and defenses should
transfers to its new owner (Spouses Gallent v. Velasquez, G.R. No. be pleaded in his Answer and not in a Motion.
203949, 6 April 2016); ergo, it is a ministerial duty of the court to issue
a writ of possession in favor of the transferee of the auction buyer. 2. As judge, will you grant the writ of possession prayed
for by DPWH? ’09 – Q14

RULE 66 - QUO WARRANTO NO. The expropriation here is governed by Republic Act No. 8974
which requires 100% of the zonal value of the property as determined
by the BIR, to be the amount deposited. Before such deposit is made,
Petitioner Fabian was appointed Election Registrar of the Munici-
the national government thru the DPWH has no right to take posses-
pality of Sevilla supposedly to replace Election Registrar Pablo
sion of the property under expropriation.
who was transferred to another municipality without his consent
and who refused to accept his aforesaid transfer, much less to
May Congress enact a law providing that a 5000 m2 lot, a part of the
vacate his position in Bogo town as election registrar, as in fact
UST compound in Manila, be expropriated for the construction of a
he continued to occupy his aforesaid position and exercise his
park in honor of former City Mayor Arsenio Lacson? As compensation
functions thereto. Petitioner Fabian then filed a petition for man-
to UST, the City of Manila shall deliver its 5-ha. lot in Sta. Rosa, Lagu-
damus against Pablo but the trial court dismissed Fabian’s peti-
na originally intended as a residential subdivision for the Manila City
tion contending that quo warranto is the proper remedy. Is the
Hall employees. ’06 – Q5
court correct in its ruling? ’01 – Q3
Yes, Congress can enact a law to expropriate property, but it can-
Yes, the court is correct in its ruling. Mandamus will not lie. This
not limit just compensation. The determination of just compensation is
remedy applied only where petitioner’s right is founded clearly in law,
a judicial function and Congress may not supplant or prevent the exer-
not when it is doubtful. Pablo was transferred without his consent
cise of judicial discretion to determine just compensation (EPZA v.
which is tantamount to removal without cause, contrary to the funda-
Dulay, 149 SCRA 305 [1987].) Under Section 5, Rule 67 of the 1997
mental guarantee on non-removal except for cause. Considering that
Revised Rules of Civil Procedure, the ascertainment of just compensa-
Pablo continued to occupy the disputed position and exercise his func-
tion requires the evaluation of three commissioners.
tions therein, the proper remedy is quo warranto, not mandamus
(Garces v. Court of Appeals, 259 SCRA 99 [1996].)
Which of the following is NOT CONSISTENT with the rules gov-
erning expropriation proceedings? -’11 Q4
A group of businessmen form an association in Cebu City calling
itself Cars Co. It did not incorporate itself under the law nor did it
have any government permit or license to conduct its business as (A) The court shall declare the defendant who fails to answer
such. The Sol Gen filed before the RTC of Manila a verified peti- the complaint in default and render judgment against him.
tion for quo warranto questioning and seeking to stop the opera- (B) The court shall refer the case to the Board of Commis-
tions of Cars Co. The latter filed a motion to dismiss on the sioners to determine the amount of just compensation.
ground of improper venue claiming that its main office and opera-
tions are in Cebu City and not in Manila. Is the contention of the (C) The plaintiff shall make the required deposit and forthwith
Cars Co. correct? ’01 – Q11 take immediate possession of the property sought to be
expropriated.

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Bar Ques)ons and Answers
(D) The plaintiff may appropriate the property for public use transfers to its new owner (Spouses Gallent v. Velasquez, G.R. No.
after judgment and payment of the compensation fixed in it, 203949, 6 April 2016); ergo, it is a ministerial duty of the court to issue
despite defendant’s appeal. a writ of possession in favor of the transferee of the auction buyer.

[a] Is the buyer in the auction sale arising from an extra-judicial


foreclosure entitled to a writ of possession even before the expi-
ration of the redemption period? If so, what is the action to be
taken? (1%) ’16 -9a
RULE 68 - FORECLOSURE OF REAL ESTATE MORTGAGE
SUGGESTED ANSWER:

[a] Yes, the buyer in the auction sale is entitled to a writ of possession A borrowed from the DBP the amount of P1 million secured by the
even before the expiration of the redemption period upon the filing of titled land of his friend B who, however, did not assume personal
the ex parte petition for issuance of a writ of possession and posting of liability for the loan. A defaulted and DBP filed an action for judi-
the appropriate bond. Under Section 7 of Act No. 3135, as amended, cial foreclosure of the real estate mortgage impleading A and B as
the writ of possession may be issued to the purchaser in a foreclosure defendants. In due course, the court rendered judgment directing
sale either within the one-year redemption period upon the filing of a A to pay the outstanding account of P 1.5 million (principal plus
bond, or after the lapse of the redemption period, without need of a interest) to the bank. No appeal was taken by A on the decision
bond (LZK Holdings and Development Corporation v. Planters Devel- within the reglementary period. A failed to pay the judgment debt
opment Bank, G.R. No. 167998, April 27, 2007). Stated otherwise, within the period specified in the decision. Consequently, the
Section 7 of Act No. 3135, as amended, also refers to a situation court ordered the foreclosure sale of the mortgaged land. In that
wherein the purchaser seeks possession of the foreclosed property foreclosure sale, the land was sold to DBP for P1.2 million. The
during the 12-month period for redemption. Hence, upon the purchas- sale was subsequently confirmed by the court, and the confirma-
er's filing of the ex parte petition and posting of the appropriate bond, tion was registered with the ROD on January 5, 2002. On January
the RTC shall, as a matter o; course, order the issuance of the writ of 10, 2003, the bank filed an ex parte motion with the court for the
possession in favor of the purchaser (Spouses Nicasio C. Marquez issuance of a writ of possession to oust B from the land. It also
and Anita J. Marquez v. Spouses Carlito Alindog and Carmen Alindog, filed a deficiency claim for P800,000 against A and B. The defi-
G.R. No. 184045, January 22, 2014; Spouses Jose Gatuslao and Er- ciency claim was opposed by A and B. - ‘03 Q 11
mila Gatuslao v. Leo Ray Yanson, G.R. No, 191540, January 21,2015). 1. Resolve the motion for the issuance of a writ of posses-
sion.
[b] After the period of redemption has lapsed and the title to the
lot is consolidated in the name of the auction buyer, is he entitled In judicial foreclosure of banks such as DBP, the mortgagor or
to the writ of possession as a matter of right? If so, what is the debtor whose real property has been sold on foreclosure has the right
action to be taken? (2%) ’16 – 9b to redeem the property sold within one year after the sale (or registra-
tion of the sale.) However, the purchaser at the auction sale has the
SUGGESTED ANSWER: right to obtain possession after the finality of the order confirming the
sale (Section 3, Rule 68; Section 47 of R.A. No. 8791, the General
Yes, the auction buyer is entitled to a writ of possession as a matter of Banking Law of 2000.) the motion for writ of possession, however,
right. It is settled that the buyer in a foreclosure sale becomes the ab- cannot be filed ex parte. There must be a notice of hearing.
solute owner of the property purchased if it is not redeemed within a
period of one year after the registration of the certificate of sale. He is, Equity of Redemption is the right of the mortgagor to redeem the
therefore, entitled to the possession of the property and can demand it mortgaged property after default in the performance of the condi-
at any time following the consolidation of ownership in his name and tions of the mortgage, before the sale or the confirmation of sale
the issuance to him of a new transfer certificate of title. In such a case, in a(n) : (x)
the bond required in Section 7 of Act No. 3135 is no longer necessary.
Possession of the land then becomes an absolute right of the purchas- a) extrajudicial foreclosure of mortgage.
er as confirmed owner. Upon proper application and proof of title, the b) judicial foreclosure of mortgage.
issuance of the writ of possession becomes a ministerial duty of the c) execution sale.
court (LZK Holdings and Development Corporation v. Planters Devel- d) foreclosure by a bank.
opment Bank, G.R. No, 167998, April 27, 2007); Spouses Nicasio C.
Marquez and Anita /. Marquez v. Spouses Carlito Alindog and Carmen
Alindog, G.R. No. 184045, January 22, 2014; Spouses Jose Gatuslao SUGGESTED ANSWER:
and Ermila Gatuslao v. Leo Ray Yanson, G.R. No. 191540, January 21, b) Judicial foreclosure of mortgage.
2015). Equity of redemption exists in case of judicial
foreclosure of a mortgage. This is simply the right of the
[c] Suppose that after the title to the lot has been consolidated in defendant mortgagor to extinguish the mortgage and
the name of the auction buyer, said buyer sold the lot to a third retain ownership of the property by paying the secured
party without first getting a writ of possession. Can the transferee debt within a period of not less than ninety (90) days
exercise the right of the auction buyer and claim that it is a minis- nor more than one hundred two (120) days from the
terial duty of the court to issue a writ of possession in his favor? entry of judgment, in accordance with Rule 68, or even
Briefly explain. (2%) ’16 -9c after the foreclosure sale but prior to its confirmation,
(Spouses Rosales vs. Spouses Alfonso, (G.R. No.
137792, August 12, 2003)).
SUGGESTED ANSWER:

[c] Yes. The transferee can exercise the right of the auction buyer, A 2. Resolve the deficiency claim of the bank. ’03 – Q6
transferee or successor-in-interest of the auction buyer by virtue of the
contract of sale between them, is considered to have stepped into the The deficiency claim of the bank may be enforced against the
shoes of the auction buyer. As such, the transferee is necessarily enti- mortgage debtor A, but it cannot be enforced against B, the owner of
tled to avail of the provisions of Section 7 of Act 3135, as amended, as the mortgaged property, who did not assume personal liability on the
if he is the auction buyer (Spouses Jose Gatuslao and Ermila Gatuslao loan.
v. Leo Ray Yanson, G.R. No. 191540, January 21, 2015). When the lot
purchased at a foreclosure sale is in turn sold or transferred, the right
to the possession thereof, along with all other rights of ownership,

34
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Bar Operations 2018
Bar Ques)ons and Answers
When the court renders judgment in a judicial foreclosure pro- To prevent the immediate execution of the judgment, would you
ceeding, when is the mortgaged property sold at public auction to advise the posting of a supersedeas bond as counsel for Jaypee?
satisfy the judgment? (1%) - ‘13 - MCQ Q6 Explain your answer briefly. (2%) ’17 – Q12
(A) After the decision has become final and executory. SUGGESTED ANSWER
(B) At any time after the failure of the defendant to pay the
judgment amount. I would advise Jaypee to post a supersedeas bond, but I would
also advise him that the posting of a supersedeas bond alone
(C) After the failure of the defendant to pay the judgment does not prevent the immediate execution of the judgment. To
amount within the period fixed in the decision, which shall stay the immediate execution of the judgment in an ejectment
not be less than ninety (90) nor more than one hundred case, the defendant:
twenty (120) days from entry of judgment.
(D) The mortgaged property is never sold at public auction. 1. Must perfect an appeal;
2. File a supersedeas bond; and
(E) The mortgaged property may be sold but not in any of 3. Periodically deposit the rentals becoming due during
the situations outlined above. the pendency of the appeal;
SUGGESTED ANSWER: (C) After the failure of the defen-
dant to pay the judgment amount within the period fixed in Otherwise, the writ of execution will issue upon motion of the
the decision, which shall not be less than ninety (90) nor plaintiff. (Achang v. Hon. Luczon, G.R. No. 164246, January 15,
more than one hundred twenty (120) days from entry of 2014; Rule 70, Section 19 of the Rules of Court).
judgment.
ALTERNATIVE ANSWER:
Under Section 2 of Rule 68, if upon the trial in such action
the court shall find the facts set forth in the complaint to be As Counsel for Jaypee, I would not advise the posting of
true, it shall ascertain the amount due to the plaintiff upon a supersedeas bond. The supersedeas bond shall be equivalent
the mortgage debt or obligation, including interest and other to the unpaid rentals, damages and costs which accrued down to
charges as approved by the court, and costs, and shall ren- the time of the judgment (Section 19, Rule 70, Rules of Court;
der judgment for the sum so found due and order that the Chua v. Court of Appeals, G.R. No. 113886, February 24, 1998). In
same be paid to the court or ninety (90) days nor more than other words, the supersedeas bond covers the monetary judg-
one hundred twenty (120) days from the entry of judgment, ment of the lower court; thus, if the judgment does not make any
and that in default of such payment the property shall be pronouncement as to the pecuniary liability of the defendant, the
sold at public auction to satisfy the judgment. posting of the supersedeas bond should not be required. Attor-
ney’s fees are not covered by a supersedeas bond (Once v. Gon-
zales, G.R. No. L-44806, March 31, 1977).
RULE 69 - PARTITION

Mike was renting an apartment unit in the building owned by


When may a co-owner NOT demand the partition of the thing Jonathan. When Mike failed to pay 6 months’ rent, Jonathan filed
owned in common? - ‘11 Q16 an ejectment suit. The MTC rendered judgment in favor of
(A) When the creditor of one of the co-owners has attached Jonathan, who filed a motion for the issuance of a writ of execu-
the property. tion. The MTC issued the writ. -’09 Q12(A)(B)
(a) How can Mike stay the execution of the MTC judgment?
(B) When the property is essentially indivisible.
(C) When related co-owners agreed to keep the property Execution shall issue immediately upon motion, unless Mike (a)
within the family. perfect his appeal to the RTC, (b) files a supersedeas bond to pay the
rents, damages and costs accruing up to the time of the judgment
(D) When a co-owner uses the property as his residence. appealed from, and (c) deposits monthly with the RTC during the pen-
dency of the appeal the amount of the rent due from time to time (Sec-
tion 19, Rule 70.)
In action for partition, can partition be refused on the grounds of
(b) Mike appealed to the RTC which affirmed the MTC deci-
(1) in partition cases where filiation to the deceased is in dispute,
sion. Mike then filed a petition for review with the CA.
prior and separate judicial declaration of heirship is necessary;
The CA dismissed the petition on the ground that the
and (2) there is a need for publication as real property is involved.
sheriff had already executed the MTC decision and had
’00 – Q12(4) & 12(5)
ejected Mike from the premises, thus rendering the ap-
peal moot and academic. Is the CA correct? ’09 – Q12;
Declaration of heirship in a settlement proceeding is not neces-
’95 – Q3(1)(b)
sary. It can be made in the ordinary action for partition wherein the
heirs are exercising their right pertaining to the decedent, their prede-
NO, the Court of Appeals is not correct. The dismissal of the ap-
cessor-in-interest, to ask for partition as co-owners (Heirs of Ignacio
peal is wrong, because the execution of the RTC judgment is only in
Conti v. Court of Appeals, 300 SCRA 345 [1998].)
respect of the eviction of the defendant from the leased premises.
Such execution pending appeal has no effect on the merits of the
Even if real property is involved, no publication is necessary, be-
ejectment suit which still has to be resolved in the pending appeal.
cause what is sought is the mere segregation of Linda’s share in the
Section 21 of Rule 70 provides that the RTC judgment against the
property (Section 1, Rule 69; Heirs of Ignacio Conti v. Court of Ap-
defendant shall be final and executory, “without prejudice to a further
peals, 300 SCRA 345 [1998].)
appeal” that may be taken therefrom (Uy v. Santiago, 336 SCRA 680
[2000].)
RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER
Ben sold a parcel of land to Del with right to repurchase within 1
year. Ben remained in possession of the property. When Ben
Judgment was rendered against defendant Jaypee in an action for failed to repurchase the same, title was consolidated in favor of
unlawful detainer. The judgment ordered Jaypee to vacate and to Del. Despite demand, Ben refused to vacate the land, constraining
pay attorney's fees in favor of Bart, the plaintiff. Del to file a complaint for unlawful detainer. In his defense, Ben
averred that the case should be dismissed because Del had never
been in possession of the property. Is Ben correct? ’08 – Q17

35
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Bar Operations 2018
Bar Ques)ons and Answers
NO. For unlawful detainer, the defendant need not have been in In a case for illegal detainer under the Revised Rules on Summary
prior possession of the property. This is upon the theory that the Procedure, the MTC rendered a decision in favor of A, the lessor,
vendee steps into the shoes of the vendor and succeeds to his rights ordering B, the lessee, to vacate A’s apartment and to pay the
and interests. In contemplation of the law, the vendee’s possession is back rentals. B appealed to the RTC which affirmed the MTC’s
that of the vendor’s (Maninang v. Court of Appeals, 314 SCRA 525 decision. A, anticipating another appeal by B, filed a motion for
[1999]; Dy Sun v. Brillantes, 93 Phil. 175 [1953]; Pharma Industries, execution pending appeal pursuant to Section 21 of the Revised
Inc. v. Pajarillaga, G.R. No. L-53788, October 17, 1980.) Rules on Summary Procedure. B likewise, within the reglementary
period, filed a petition for review of the RTC’s decision with the
X files an unlawful detainer case against Y before the appropriate CA. - ’96 – Q7(2); ’95 – Q3(1)(a)
MTC. In his answer, Y avers as a special and affirmative defense 1. May the RTC grant A’s motion for execution pending
that he is a tenant of X’s deceased father in whose name the appeal after B filed his petition for review with the CA?
property remains registered. What should the court do? ’07 – Q8a
NO, because the decision of the Regional Trial Court is immedi-
The court should hold a preliminary conference not later than ately executory despite the appeal. (Section 21).
thirty (30) days after the defendant’s Answer was filed, since the case
is governed by summary procedure under Rule 70, Rules of Court, 2. May B validly oppose the motion for execution pending
where a Reply is not allowed. The court should receive evidence to appeal on the ground that the motion is not based on
determine the allegations of tenancy. If tenancy had in fact been shown good reasons for which an execution pending appeal
to be the real issue, the court should dismiss the case for lack of juris- may be issued under Section 2, Rule 39 of the Rules of
diction. Court?
If it would appear that Y’s occupancy of the subject property was 3.
one of agricultural tenancy, which is governed by agrarian laws, the NO, because Section 2, Rule 39 is not applicable to this case
court should dismiss the case because it has no jurisdiction over agri- which falls under Summary Procedure.
cultural tenancy cases. Defendant’s allegation that he is a “tenant” of
plaintiff’s deceased father suggests that the case is one of landlord- Mr. Boaz filed an action for ejectment against Mr. Jachin before
tenant relation and therefore, not within the jurisdiction of ordinary the Metropolitan Trial Court (MeTC). Mr. Jachin actively participat-
courts. ed in every stage of the proceedings knowing fully well that the
MeTC had no jurisdiction over the action. In his mind, Mr. Jachin
In action for unlawful detainer in the MTC, defendant raised in his was thinking that if the MeTC rendered judgment against him, he
Answer the defense that plaintiff A is not the real owner of the could always raise the issue on the jurisdiction of the MeTC. After
house subject of the suit. X filed a counterclaim against A for the trial, the MeTC rendered judgment against Mr. Jachin. What is the
collection of a debt of P80,000 plus accrued interest of P15,000 remedy of Mr. Jachin? (1%) - ‘14 Q25
and attorney’s fees of P20,000. Is X’s defense tenable? ’98 – Q2(1)
(A) File an appeal
NO. X’s defense is not tenable if the action is filed by a lessor
against a lessee. However, if the right of possession of the plaintiff (B) File an action for nullification of judgment
depends on his ownership then the defense is tenable.
(C) File a motion for reconsideration
On January 10, 1990, X leased the warehouse of A under a lease
contract with a period of 5 years. On June 8, 1996, A filed an un- (D) File a petition for certiorari under Rule 65
lawful detainer case against X without prior demand for X to va-
cate the premises.
Answer: (A) file an appeal
Can X contest his ejectment on the ground that there was no prior
demand for him to vacate the premises?
In case the MTC renders judgment in favor of A, is the judgment An appeal from a judgement or final order of a Municipal Trial Court
immediately executory? ’97 – Q5 may be taken to the Regional Trial Court (Section 1, Rule 40, Rules of
Court). Moreover, under Rule 41 of the Rules of Court, decisions of the
YES, X can contest his ejectment on the ground that there was no Metropolitan Trial Court in the exercise of its original jurisdiction can be
prior demand to vacate the premises (Section 2, Rule 70; Casilan v. appealed to the Regional Trial Court. Besides, a Motion for Reconsid-
Tomassi, 10 SCRA 261; Lesaca v. Cuevas, 125 SCRA 335.) eration is prohibited under the Rules on Summary Procedure.

Yes, because the judgment of the MTC against defendant X is


immediately executory upon motion unless an appeal has been per- In a case for forcible entry, may plaintiff present evidence of title?
fected, a supersedeas bond has been filed and the periodic deposits of ’95 – Q13(2)
current rentals , if any, as determined by the judgment will be made by
the appellate court (Section 19, Rule 70.) YES, but only to determine the question of possession.

A brought an action for unlawful detainer against B in the MTC. B The spouses Juan reside in Quezon City. With their lottery win-
filed a motion to dismiss the ground of lack of cause of action for nings, they purchased a parcel of land in Tagaytay City for
failure to first refer the dispute to the Barangay Lupon. Acting on P100,000.00. In a recent trip to their Tagaytay property, they were
B’s motion, the case was dismissed. A files a petition for certiorari surprised to see hastily assembled shelters of light materials
with the RTC assailing the MTC’s dismissal order on the ground occupied by several families of informal settlers who were not
that B’s motion to dismiss is a prohibited motion under the Re- there when they last visited the property three (3) months ago.
vised Rules of Summary Procedure. - ‘96 Q7
1. Is A’s contention correct? To rid the spouses’ Tagaytay property of these informal settlers,
briefly discuss the legal remedy you, as their counsel, would use;
NO, because the Revised Rules on Summary Procedure allows a the steps you would take; the court where you would file your
motion to dismiss on the ground of failure to comply with the provision remedy if the need arises; and the reason/s for your actions. (7%)
on referral to the Lupon (Section 19-A.) - ‘13 Q5
SUGGESTED ANSWER: The proper legal remedy is to file a special
2. Is certiorari the proper remedy? civil action for Forcible Entry. The Rules of Court provide that a person
deprived of the possession of any land or building by force, intimida-
NO, because the proper remedy is appeal. Moreover, the dis- tion, threat, strategy or stealth may at anytime within 1 year after such
missal order is correct.

36
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Bar Ques)ons and Answers
withholding of possession bring an action in the proper Municipal Trial city wherein the real property involved, or a portion thereof, is situated
Court where the property is located. This action which is summary in (Section 1, Rule 4, Rules of Court). Therefore, the venue is Las Piñas
nature seeks to recover the possession of the property from the defen- City.
dant which was illegally withheld by the latter (Section 1, Rule 70,
Rules of Court). (C) The reckoning point for determining the one-year period within
which to file the action is the receipt of the las demand to vacate and
In Abad v. Farrales (G.R. No. 178635, April 11, 2011), the Supreme
pay (Section 2, Rule 70 of the Rule of Court).
Court held that two allegations are indispensable in actions for forcible
entry to enable first level courts to acquire jurisdiction over them: first,
that the plaintiff had prior physical possession of the property; and, RULE 71 - CONTEMPT
second, that the defendant deprived him of such possession by means
of force, intimidation, threats, strategy, or stealth.
Mr. Sheriff attempts to enforce a Writ of Execution against X, a
However, before instituting the said action, I will first endeavor to ami- tenant in a condominium unit, who lost in an ejectment case. X
cably settle the controversy with the informal settlers before the appro- does not want to budge and refuses to leave. Y, the winning party,
priate Lupon or Barangay Chairman. If there will be no agreement moves that X be declared in contempt and after hearing, the court
reached after mediation and conciliation efforts were conducted under held X guilty of indirect contempt. If you were X's lawyer, what
the Katarangungang Pambarangay Law, I will secure a certificate to file would you do? Why? (5%) - ‘12 Q4
action and file the complaint for ejectment before the MTC of Tagaytay SUGGESTED ANSWER:
City where the property is located.
The complaint for Forcible entry is the proper remedy since my clients If I were X’s lawyer, I would file a petition for
were illegally deprived of possession of their property through strategy, certiorari under Rule 65. The judge should not have
or stealth. acted in Y’s motion to declare X in contempt. The
charge of indirect contempt is initiated through verified
petition. (Rule 71, Sec. 4, Rules of Court). The writ was
Landlord, a resident of Quezon City, entered into a lease con- not declared to X but to the sheriff who was directed to
tract with Tenant, a resident of Marikina City, over a residential deliver the property to Y. As the writ did not command
house in Las Piñas City. The lease contract provided, among the judgment debtor to do anything, he cannot be guilty
others, for a monthly rental of P25 000.00 plus ten percent (10%) of the facts described in Rule 71 which is “disobedience
interest rate in case of non-payment on its due date. Subse- of or resistance to a lawful writ, process, order, judg-
quently, Landlord migrated to the United States of America ment, or command of any court.” The proper procedure
(USA) but granted in favor of his sister, Maria, a special power is for the sheriff to oust X availing of the assistance of
of attorney to manage the property and file and defend suits peace officers pursuant to Section 10(c) of Rule 39
over the property rented out to Tenant. Tenant failed to pay the (Lipa vs. Tutaan, L-16643, 29 September 1983; Medina
rentals due for five (5) months. -’14 Q5(A)(B)(C) vs. Garces, L-25923, July 15, 1980; Pasuca vs. heirs of
Segundo Simeon, 161 SCRA 1; Patagan et. al. vs.
(A)Maria asks your legal advice on how she can expedi- Panis, G.R. No. 55630, April 8, 1988).
tiously collect from Tenant the unpaid rentals plus inter-
ests due. (6%) ‘14 - Q5a

(B)What judicial remedy will you recommend to Maria? Ramon witnessed the commission of a crime but he refuses to
testify for fear of his life despite a subpoena being served on him.
(C) Where is the proper venue of the judicial remedy which Can the court punish him for contempt? - ‘11 Q13
you recommended? ‘14 - Q5b (A) No, since no person can be compelled to be a witness
against another.
(D) If Maria insists on filing an ejectment suit
against Tenant, whe do you reckon the one (B) Yes, since public interest in justice requires his testimony.
(1) year period within which to file the action?
‘14 - Q5c (C) No, since Ramon has a valid reason for not testifying.
(D) Yes, since litigants need help in presenting their cases
Answer: (A) I will advise Maria to immediately send letter to the tenant
demanding the immediate payment of the unpaid rentals plus interests A charge for indirect contempt committed against an RTC judge
due. If the tenant refuses, Maria can avail any of the following reme- may be commenced through: - ‘11 Q40
dies:
a. A written charge requiring respondent to show cause
1. The complaint under A.M. No. 08-0-7-SC or the Rules of filed with the Court of Appeals.
Procedure for Small Claims cases. Maria should none-
theless waive the amount in excess of P100 000 in order for
her to avail of the remedy under the said rules. b. An order of the RTC Judge requiring respondent to
show cause in the same RTC.
2. A complaint for collection of sum of money under the Rules
on Summary Procedure, since Maria is only claiming the
c. Verified petition filed with another branch of the RTC.
unpaid rentals and interest due from tenant.

3. If the tenant refuses or is unable to pay the rentals within d. Verified petition filed with a court of higher or equal rank
one year from receipt of the last demand to vacate and pay, I with the RTC.
would advise Maria to file an action for Unlawful Detainer.

(B) 1. If Maria decides to file a complaint for collection of sum of money


under the Rules of Summary Procedure or Small Claims, the venue is SUGGESTED ANSWER:
the residence of the plaintiff or defendant, at the election of the plaintiff b) An order of the RTC Judge requiring respondent to show
(Section 2, Rule 4, Rules of Court). Hence, it may be in Quezon City or cause in the same RTC.
Marikina City, at the option of Maria. The proceedings for indirect contempt may
be initiated motu proprio by the court against which the
2. If Maria files an action for Unlawful Detainer, the same shall be contempt was committed by an order or any other for-
commenced and tried in the Municipal Trial Court of the municipality or mal charge requiring the respondent to show cause

37
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Bar Ques)ons and Answers
why he should not be punished for contempt. It may A filed a complaint for the recovery of ownership of land against
also be commenced by a verified petition with support- B who was represented by her counsel X. In the course of the
ing particulars and certified true copies of documents or trial, B died. However, X failed to notify the court of B’s death.
papers involved therein, and upon full compliance with After the judgment became final, a writ of execution was issued
the requirements for filing initiatory pleadings for civil against C, who being the sole heir, acquired the property. Did the
actions in the court concerned (Rule 71, Sec. 4, Rules failure of counsel X to inform the court of B’s death constitute
of Court) direct contempt? ’98 – Q6(2)

A person may be charged with direct contempt of court when: -11 NO. It is not direct contempt under Section 1 of Rule 71, but it is
Q41 not indirect contempt within the purview of Section 3 of Rule 71. The
lawyer can also be the subject of disciplinary action (Section 16, Rule
3, 1997 Rules of Civil Procedure.)
a. A person re-enters a property he was previous-
ly ejected from. A writ of execution was served by the sheriff upon defendant so
that plaintiff may be placed in possession of the property held by
b. A person refuses to attend a hearing after be- the former. The defendant refused to vacate and surrender the
ing summoned thereto. premises to plaintiff. Can defendant be held for indirect contempt
for disobedience of, or resistance to a lawful writ issued by the
court? ’95 – Q5(2)
c. He attempts to rescue a property in custodia
legis. NO, because it is the sheriff who must enforce the writ of execu-
tion for the delivery of property by ousting therefrom the person against
d. She writes and submits a pleading containing whom the judgment is rendered and placing the judgment creditor in
derogatory, offensive or malicious statements. possession (Section 13, Rule 39.) The writ of possession was directed
SUGGESTED ANSWER: to the Sheriff who was to deliver the property to the plaintiff. The writ
d) She writes and submits a pleading containing derogato- did not command the plaintiff to do anything; hence he could not be
ry, offensive or malicious statements. guilty of indirect contempt (Barrete v. Amila, 230 SCRA 219 [1994].)
A person guilty of misbehavior in the pres-
ence of or so near a court as to obstruct or interrupt the Suppose that by virtue of an execution of the judgment in an
proceedings before the same, including disrespect ejectment case, defendant was successfully ousted from the
toward the court, offensive personalities towards others, property in litigation and plaintiff was lawfully placed in posses-
or refusal to be sworn or to answer to a witness, or to sion thereof, but 7 years later, defendant re-entered the property
subscribe an affidavit or deposition when lawfully re- and forcibly took over possession. Can plaintiff move that defen-
quired to do so, may be summarily adjudged in con- dant be declared in indirect contempt? ’95 – Q5(3)
tempt by such court (Rule 71, Sec.1, Rules of Court). In
Surigao Mineral Reservation Board vs. Cloribel, 31 YES, because the defendant violated Section 3(b) of Rule 71
SCRA 1, the Supreme Court held that disrespectful, when after being ousted from the property in litigation and the plaintiff
abusive and abrasive language, offensive personalities, was lawfully placed in possession, he re-enters the property and
unfounded accusations or intemperate words tending to forcibly took over possession.
obstruct, embarrass or influence the court in administer-
ing justice or to bring it into disrepute have no place in a
pleading. Their employment serves no useful purpose
and on the contrary constitutes direct contempt or con- LOCAL GOVERNMENT CODE
tempt in facie curiae.
The filing of a complaint with the Punong Barangay involving
Contempt charges made before persons, entities, bodies and cases covered by the Katarungang Pambarangay Rules shall: (X)
agencies exercising quasi-judicial functions against the parties
charged, shall be filed with the Regional Trial Court of the place
where the __________. (1%) - ‘11 - MCQ Q13 a. not interrupt any prescriptive period.
(A) person, entity or agency exercising quasi-judicial
function is located b. interrupt the prescriptive period for 90 days.
(B) person who committed the contemptuous act re-
sides c. interrupt the prescriptive period for 60 days.
(C) act of contempt was committed
d. interrupt the prescriptive period not exceeding 60 days.
(D) party initiating the contempt proceeding resides SUGGESTED ANSWER:
(E) charging entity or agency elects to initiate the action d) Interrupt the prescriptive period not exceeding 60 days.
The filing of a complaint with the Punong
SUGGESTED ANSWER: (C) act of contempt was committed Barangay involving cases covered by the Katarungang
Under Section 12 of Rule 71, unless otherwise provided by Pambarangay Rules shall interrupt the prescriptive
law, this Rule shall apply to contempt committed against periods for offenses and cause of action under existing
persons, entities, bodies or agencies exercising quasi-judi- laws for a period not exceeding Sixty (60) days from the
cial functions, or shall have suppletory effect to such rules as filing of the complaint with the punong barangay. (Sec.
they may have adopted pursuant to authority granted to 410, Local Government Code)
them by law to punish for contempt. The Regional Trial Court
of the place wherein the contempt has been committed shall
have jurisdiction over such charges as may be filed there- Under the Katarungan Pambarangay rules, the execution of an
fore. amicable settlement or arbitration award is started by filing a mo-
tion for execution with the Punong Barangay, who may issue a
notice of execution in the name of the Lupon Tagapamayapa.
Execution itself, however, will be done by: (X)

38
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Bar Operations 2018
Bar Ques)ons and Answers
a) a court-appointed sheriff. SUGGESTED ANSWER: Atty. Novato may file a Petition for
b) any Barangay Kagawad. Certiorari before the RTC since a decision in small claims
c) Punong Barangay. cases is final and unappealable (Sec. 23, A.M. No. 8-8-7
d) any member of the Pangkat ng Tagapagsundo. SC). The petition for certiorari should be filed before the RTC
conformably to the Principle of Judicial Hierarchy.
SUGGESTED ANSWER: A Small Claims Court __________. (1%) - ‘11 Q8
c) Punong Barangay
(A) has jurisdiction over ejectment actions
The Punong Barangay shall issue a notice of
execution in the name of the Lupong Tagapamayapa (B) has limited jurisdiction over ejectment actions
and that is the execution be for the payment of money,
the party obliged is allowed a period of five (5) days t (C) does not have any jurisdiction over ejectment ac-
make voluntary payment, failing which, the Punong tions
Barangay shall take possession of sufficient personal (D) does not have original, but has concurrent, jurisdic-
property located in the barangay. (Sctions 5 and 6, tion over ejectment actions
Article VII, Implementing Rules and Regulations of the
Katarungang Pambarangay Rule). (E) has only residual jurisdiction over ejectment actions
SUGGESTED ANSWER: (C) does not have any jurisdiction
over ejectment actions.
RULE ON SMALL CLAIMS CASES
Under Section 4 of A.M. No. 8-8-7-SC. Rules of Procedure of
Small claims, Small Claims Court jurisdiction over all actions
The Rule on Small Claims is applicable to: - (X) which are: (a) purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or reim-
a) claims for unpaid rentals of P 100,000 or less, with bursement of sum of money, and (b) the civil aspect of crimi-
prayer for ejectment. nal actions, either filed before the institution or the criminal
b) enforcement of a barangay amicable settlement action, or reserved upon the filing of the criminal action I
involving a money claim of P 50,000 after one (1) court, pursuant to Rule 111 of the Revised Rules of Criminal
year from date of settlement. Procedure. It does not include ejectment actions. Moreover,
c) action for damages arising from a quasi-delict the action allowed under the Rules on Small Claims refers
amounting to P 100,000. only to money owed under a lease contract. It does not nec-
d) action to collect on a promissory note amounting essarily refer to an ejectment suit.
to P 105,000 where plaintiff expressly insists in At any rate, Sec. 33 of Batas Pambansa Blg. 129, as
recovering only P 1 00,000. amended by Section 3of R.A. 7691, as well as Section 1,
Rule 70 of the Rules of Court, clearly provides that forcible
SUGGESTED ANSWER: entry and unlawful detainer cases fall within the exclusive
c) Action for damages arising from a quasi-delict amounting jurisdiction of the Metropolitan Trial Courts, Municipal Trial
to P100,000. Courts and Municipal Circuit Trial Courts (Estel v. Recaredo
The Rule of Small Claims shall be applied in Diego, Sr. and Jr., G.R. No. 174082, January 16, 2012).
all actions which are: (a) purely civil in nature where the
claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money, and (b) SPECIAL PROCEEDINGS
the civil aspect of criminal actions, either filed before
the institution of the criminal action, or reserved upon
the filing of the criminal action in court, pursuant of Rule
IN GENERAL
111 of the Revised Rules Of Criminal Procedure. These
claims or demands may be for damages arising from
fault or negligence. (Sec. 4, A.M. No. 08-8-7-SC, The Ernie filed a petition for guardianship over the person and proper-
Rule of Procedure for Small Claims Cases). ties of his father, Ernesto. Upon receipt of the notice of hearing,
Ernesto filed an opposition to the petition. Ernie, before the hear-
As a new lawyer, Attorney Novato limited his practice to small ing of the petition, filed a motion to order Ernesto to submit him-
claims cases, legal counseling and the notarization of documents. self for mental and physical examination which the court granted.
He put up a solo practice law office and was assisted by his wife
who served as his secretary/helper. He used a makeshift hut in a After Ernie's lawyer completed the presentation of evidence in
vacant lot near the local courts and a local transport regulatory support of the petition and the court's ruling on the formal offer of
agency. With this practice and location, he did not have big-time evidence, Ernesto's lawyer filed a demurrer to evidence.
clients but enjoyed heavy patronage assisting walk-in clients. -
‘13 Q10(A)(B)(C) Ernie's lawyer objected on the ground that a demurrer to evidence
is not proper in a special proceeding. - ‘15 Q5(A)(B)
(A) What role can Attorney Novato play in small claims
cases when lawyers are not allowed to appear as coun- a.) Was Ernie's counsel's objection proper? (2%) ‘15 - Q5a
sel in these cases? (3%) ‘13 - Q10a
SUGGESTED ANSWER: Atty. Novato may only give coun- Suggested Answer:
seling and assist claimants in accomplishing the Statement
of Claims and the Affidavits necessary to initiate a small No. The Rule on demurrer to evidence is applicable to Special pro-
claims action. He can also notarize the aforementioned doc- ceedings (Matute v. CA, 26 SCRA 768 [1969]).
uments since the statement of Claims and Response are
required to be verified (Sec. 7, Rules of Procedure for Small Moreover, under Section 2, Rule 72 of the Rules of Court, in the ab-
claims, A.M. No. 8-8-7 SC). sence of special rules, the rules provided for in ordinary actions shall
(B) What legal remedy, if any, may Attorney Novato pur- be applicable, as far as practicable, to special proceedings.”
sue for a client who loses in a small claims case and
before which tribunal or court may this be pursued?
(4%)‘13 - Qb

39
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Bar Operations 2018
Bar Ques)ons and Answers
b.) If Ernesto defies the court's order directing him to sub- time she was abroad, Gina had absolutely no communication with
mit to physical and mental examinations, can the court order his Frank, nor did she hear any news about him. While in Singapore,
arrest? (2%) ‘15 - Q5b Gina met and fell in love with Willie. On July 4, 2007, Gina filed a
petition with the RTC of Manila to declare Frank presumptively
Suggested Answer: dead, so that she could marry Willie. The RTC granted Gina’s peti-
tion. The OSG filed a Notice of Appeal with the RTC, stating that it
If the order for the conduct of physical and mental examination is is- was appealing the decision to the CA on questions of fact and
sued as a mode of discovery and Ernesto defies the said order, the law. - ‘09 Q5
court cannot validly order his arrest (Section 3 (d), Rule 29 of the Rules
of Court). 1. Is the petition for Declaration of Presumptive Death a
special proceeding? Why or why not?

Which of the following is not a Special Proceeding? - ‘12 Q30 NO. the petition for Declaration of Presumptive Death provided in
Article 41 of the Family Code is not the special proceeding governing
absentees under Rule 107 of the Rules of Court whose rules of proce-
a. Absentees; dure will not be followed (Republic v. Court of Appeals, 458 SCRA 200
[2005].) Said petition for Declaration of Presumptive Death under Arti-
cle 41 of the FC is a summary proceeding, authorized for purposes
b. Escheat;
only of remarriage of the present spouse, to avoid incurring the crime
of bigamy. Nonetheless, it is in the nature of special proceedings, being
c. Change of First Name; an application to establish a status or a particular fact in court.

2. As the RTC judge who granted Gina’s petition, will you


d. Constitution of Family Home; give due course to the OSG’s Notice of Appeal?
SUGGESTED ANSWER: NO. Appeal is not a proper remedy since the decision is immedi-
c) Change of First Home ately final and executory upon notice to the parties under Article 247 of
d) Constitution of Family Home the Family Code (Republic v. Bermudes-Lorino, 449 SCRA 57 [2006].)
Under R.A. 9048, as amended by R.A. The OSG may assail the RTC’s grant of the petition only on the
10172, the correction of First Name can now be done premise of grave abuse of discretion amounting to lack or excess of
administratively before the Local Civil Registrar where jurisdiction. The remedy should be by certiorari under Rule 65 of the
the record sought to be corrected is kept or the nearest Rules of Court.
Philippine Consulate. Hence, it is no longer considered
a special proceeding since the provisions of Rule 103 An heir/oppositor in a probate proceeding filed a motion to re-
and 108 do not apply anymore in the change of First move the administrator on the grounds of neglect of duties as
name of a person. Similarly, the rules on Constitution of administrator and absence from the country. On his part, the heir/
the Family Home have already been repealed by Arti- oppositor served written interrogatories to the administrator
cles 152-162 of the Family Code. Under Article 153 of preparatory to presenting the latter as a witness. The administra-
the Family Code, a family home is deemed constituted tor objected, insisting that the modes of discovery apply only to
on a house and lot from the time it is occupied as a ordinary civil actions, not special proceedings. Rule on the mat-
family residence. Consequently, there is no need to ter. ’08 – Q13
constitute a family home either judicially or extra-judi-
cially. Hence, it is no longer considered a special pro- NO. The administrator is not correct. Modes of discovery apply
ceeding. also to special proceedings. Section 2, Rule 74 states that in the ab-
sence of special provisions, the rules provided for in ordinary actions
ALTERNATIVE ANSWER: shall be, as far as practicable, applicable in special proceedings.
All the above-mentioned actions are consid-
ered Special Proceedings because they are remedies Distinguish special proceedings from an ordinary action. ’96 –
which seek to establish a status, right or a particular Q11(1)
fact. (Rule 1, Sec. 2 (c), Rules of Court).
A special proceeding is a remedy to establish the status or right of
a party or a particular fact, while an ordinary action is one by which one
Anna filed a petition for appointment as regular administratrix of party prosecutes another for the enforcement or protection of a right or
her fathers' estate. Her sister Sophia moved to dismiss the peti- the prevention or redress of a wrong (Sections 1 and 2, Rule 2).
tion on the ground that the parties, as members of the same fami-
ly, have not exerted earnest effort toward a compromise prior to
the filing of the petition. Should the petition be dismissed? - ‘11 SETTLEMENT OF ESTATE
Q1
(A) Yes, since such earnest effort is jurisdictional in all estate Czarina died single. She left all her properties by will to Duqueza.
cases. In the will, Czarina stated the she did not recognize Marco as an
adopted son because of his disrespectful conduct towards her.
(B) No, since such earnest effort is not required in special Duqueza soon instituted an action for probate of Czarina’s will.
proceedings. Marco, on the other hand, instituted intestate proceedings. Both
(C) Yes, since such earnest effort is required prior to the actions were consolidated before the RTC of Pasig. On motion of
filing of the case. Marco, Duqueza’s petition was ordered dismissed on the ground
that the will is void for depriving him of his legitime. Argue for
(D) No, since such earnest effort toward a compromise is not Duqueza. ’10 – Q14
required in summary proceedings.
The petition for probate of Czarina’s will, as filed by Duqueza,
should not be dismissed on mere motion of Marco who instituted intes-
Frank and Gina were married on June 12, 1987 in Manila. Barely a tate proceedings.
year after the wedding, Frank exhibited violent temperament, forc- The law favors testacy over intestacy, hence, the probate of the
ing Gina, for reasons of personal safety, to live with her parents. A will cannot be dispensed with (Section 5, Rule 75). Thus, unless the
year thereafter, Gina found employment as a domestic helper in will – which shows the obvious intent to disinherit Marco – is probated,
Singapore, where she worked for 10 consecutive years. All the the right of the person to dispose of his property may be rendered

40
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Bar Operations 2018
Bar Ques)ons and Answers
nugatory (Seangio v. Reyes, 508 SCRA 177 [2006].) Besides, the au- should therefore binds Suzy; and (2) Suzy’s action had already
thority of the probate court is generally limited only to a determination prescribed. Are Rosie and the 3 children correct? ’09 – Q18
of the extrinsic validity of the will. In this case, Marco questioned the
intrinsic validity of the will. NO, the contention is not correct. Suzy can file a complaint to
annul the extra-judicial settlement and she can recover what is due her
Pedrillo, a Fil-Am permanent resident of L.A., California at the as such heir if her status as an illegitimate child of the deceased has
time of his death, bequeathed to Winston a sum of money to pur- been established. The publication of the settlement does not constitute
chase an annuity. Upon Pedrillo’s demise, his will was duly pro- constructive notice to the heirs who had no knowledge or did not take
bated in L.A. and the specified sum in the will was in fact used to part in it because the same was notice after the fact of execution. The
purchase an annuity with XYZ of Hong Kong so that Winston requirement of publication is intended for the protection of creditors
would receive the equivalent of US$1,000 per month for the next and was never intended to deprive heirs of their lawful participation in
15 years. Wanting to receive the principal amount of the annuity, the decedent’s estate. She can file the action therefor within four (4)
Winston files for the probate of Winston’s will in the Makati RTC. years after the settlement was registered.
As prayed for, the court names Winston as administrator of the
estate. Winston now files in the Makati RTC a motion to compel Domenico and Gen lived without benefit of marriage for 20 years,
XYZ to account for all sums in its possession forming part of during which time they purchased properties together. After
Pedrillo’s estate. Rule on the motion. ’10 – Q15 Domenico died without a will, Gen filed a petition for letters of
administration. Domenico’s siblings opposed the same on the
The motion should be denied. The Makati RTC has no jurisdiction ground that Gen has no legal personality. Decide. ’08 – Q18
over XYZ of Hong Kong. The letters of administration granted to Win-
ston only covers all Pedrillo’s estate in the Philippines (Section 4, Rule A petition for letters of administration may be filed by any “inter-
77). This cannot cover the annuities in Hong Kong. ested person” (Section 2, Rule 79, Rules of Court). Gen would be con-
At the outset, the Makati RTC should not have taken cognizance sidered an interested person even if she was not married to Domenico,
of the petition filed by Winston because the will does not cover any because she can claim co-ownership of the properties left by him un-
property of Pedrillo here in the Philippines. der their property regime of a union without marriage under conditions
provided in the Family Code (Articles 147-148, Family Code; San Luis
Sal Mineo died intestate, leaving a P1 billion estate. He was sur- v. San Luis, 514 SCRA 294 [2007].)
vived by his wife Dayanara and their five children. Dayanara filed
a petition for the issuance of letters of administration. Charlene, The heirs of H agree among themselves that they will honor the
one of the children, filed an opposition to the petition, alleging division of H’s estate as indicated in her Last Will and Testament.
that there was neither an allegation nor genuine effort to settle the To avoid the expense of going to court in a Petition for Probate of
estate amicably before the filing of the petition. Rule on the oppo- the Will, can they instead execute an Extra-Judicial Settlement
sition. ’10 – Q16 Agreement among themselves? ’07 – Q8b

The opposition should be overruled for lack of merit. The allega- The heirs of H cannot validly agree to resort to an extra-judicial
tion that there was a genuine effort to settle the estate amicably before settlement of his estate and do away with the probate of H’s last will
the filing of the petition is not required by the Rules. Besides, a petition and testament. Probate of the will is mandatory (Guevara v. Guevara,
for issuance of letters administration may be contested on either of the 74 Phil. 479 [1943].) The policy of the law is to present the will of the
two grounds: (1) the incompetency of the person for whom letters are testator as manifested in the other dispositions in his last will and tes-
prayed therein; and (2) the contestant’s own right to the administration tament, insofar as they are not contrary to law, public morals and pub-
(Section 4, Rule 79). lic policy. Extra-judicial settlement of an estate of a deceased is al-
lowed only when the deceased left no last will and testament and all
Cresencio sued Dioscoro for collection of a sum of money. During debts, if any, are paid (Section 1, Rule 74, Rules of Court).
the trial, but after the presentation of plaintiff’s evidence,
Dioscoro died. Atty. Cruz, Dioscoro’s counsel, then filed a MTD on Sergio Punzalan, Filipino, 50 years old, married, and residing at
the ground of his client’s death. The court denied the MTD and, Ayala Alabang Village, Muntinlupa City, of sound and disposing
instead, directed counsel to furnish the court with the names and mind, executed a last will and testament in English, a language
addresses of Dioscoro’s heirs and ordered that the designated spoken and written by him proficiently. He disposed of his estate
administration of Dioscoro’s estate be substituted as representa- consisting of a parcel of land in Makati City and cash deposit at
tive party. After trial, the court rendered judgment in favor of the City Bank in the sum of P 300 Million. He bequeathed P 50
Cresencio. When the decision had become final and executory, Million each to his 3 sons and P 150 Million to his wife. He devised
Cresencio moved for the issuance of a writ of execution against a piece of land worth P100 Million to Susan, his favorite daughter-
Dioscoro’s estate to enforce his judgment claim. The court issued in-law. He named his best friend, Cancio Vidal, as executor of the
the writ of execution. Was the court’s issuance of the writ of exe- will without bond. - ‘06 Q13
cution proper? ’09 – Q7
1. Is Cancio Vidal, after learning of Sergio's death, obliged
NO, the trial court’s issuing the writ of execution is not proper and to file with the proper court a petition of probate of the
in excess of jurisdiction, since the judgment obligor is already dead latter's last will and testament?
when the writ was issued. The judgment for money may only be en-
forced against the estate of deceased defendant in the probate pro- NO, Cancio Vidal is not obliged to file a petition for probate be-
ceedings, by way of claim filed with the probate court in accordance cause under Section 3, Rule 75, he is only obliged to deliver the will
with Rule 86 of the Rules of Court. within twenty (20) days after he knows of the death of the testator.
Cresencio should enforce that judgment in his favor in the settle-
ment of proceedings of the estate of Dioscoro as a money claim in 2. Supposing the original copy of the last will and testa-
accordance with Rule 86 of the Rules of Court. ment was lost, can Cancio compel Susan to produce a
copy in her possession to be submitted to the probate
Pinoy died without a will. His wife, Rosie, and 3 children executed court?
a deed of extra-judicial settlement of his estate. The deed was
properly published and registered with the Office of the Register YES, as a person having custody of the will. Susan has the duty
of Deeds. Three years thereafter, Suzy appeared, claiming to be to deliver the will within twenty (20) days upon learning of the death of
the illegitimate child of Pinoy. She sought to annul the settlement the testator (Section 3, Rule 75 of the Rules of Court).
alleging that she was deprived of her rightful share in the estate.
Rosie and the 3 children contended that: (1) the publication of the 3. Can the probate court appoint the widow as executor of
deed constituted constructive notice to the whole world, and the will?

41
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
YES, the probate court can appoint the widow as an executor of
the will if Cancio Vidal is found to be incompetent, refuses the trust, or May an order denying the probate of a will still be overturned after
fails to give a bond, provided that she is competent and willing to serve the period to appeal therefrom has lapsed? '02 – Q7a
(Section 6, Rule 78 of the Rules of Court).
YES, an order denying the probate of a will may be overturned
4. Can the widow and her children settle extrajudicially after the period to appeal therefrom has lapsed. A PETITION FOR
among themselves the estate of the deceased? RELIEF may be filed on the grounds of fraud, accident, mistake or
excusable negligence within a period of sixty (60) days after the peti-
NO, an extra-judicial settlement of the estate by agreement be- tioner learns of the judgment or final order and not more than six (6)
tween or among the heirs may be had only when the decedent left no months after such judgment or final order was entered (Rule 38, Sec-
will (Section 1, Rule 74 of the Rules of Court). tions 1 & 3; Soriano v. Asi, 100 Phil. 785 [1957].)
An ACTION FOR ANNULMENT may also be filed on the ground
5. Can the widow and her children initiate a separate peti- of extrinsic fraud within four (4) years from its discovery, and if based
tion for partition of the estate pending the probate of the on lack of jurisdiction, before it is barred by laches or estoppel (Rule
last will and testament by the court? 47, Sections 2 & 3).

NO, the widow and her children cannot file a separate petition for What should the court do if, in the course of intestate proceed-
partition pending probate of the Will (Section 1, Rule 74 of the Rules of ings, a will is found and it is submitted for probate? '02 – Q7b
Court; Vda. de Kilayko v. Tengco, 207 SCRA 600 [1992].) Partition is
part of the testate proceedings. If a will is found in the course of intestate proceedings and it is
submitted for probate, the intestate proceedings will be suspended
After Lulu's death, her heirs brought her last will to a lawyer to until the will is probated. Upon the probate of the will, the intestate
obtain their respective shares in the estate. The lawyer prepared a proceedings will be terminated (Section 1, Rule 82).
deed of partition distributing Lulu's estate in accordance with the
terms of her will. Is the act of the lawyer correct? '05 – Q5(1) X filed a claim in the intestate proceedings of D. D’s administrator
denied liability and filed a counterclaim against X. X’s claim was
NO. No will, shall pass either real or personal estate unless it is disallowed. - ‘02 Q1
proved and allowed in the proper court (Section 1, Rule 75, Rules of
Court). 1. Does the probate court still have jurisdiction to allow the
claim of D’s administrator by way of offset?
Nestor died intestate in 2003, leaving no debts. How may his es-
tate be settled by his heirs who are of legal age and have legal NO, because since the claim of X was disallowed, there is no
capacity? '05 – Q5(2) amount against which to offset the claim of D’s administrator.

If the decedent left no will and no debts, and the heirs are all of 2. Suppose D’s administrator did not allege any claim
age, the parties may, without securing letters of administration, divide against X by way of offset, can D’s administrator prose-
the estate among themselves by means of a public instrument or by cute the claim in an independent proceeding? '02 – Q8a
stipulation in a pending action for partition and shall file a bond with the
register of deeds in an amount equivalent to the value of the personal YES, D’s administrator can prosecute the claim in an independent
property involved as certified under oath by the parties concerned. The proceeding since the claim of X was disallowed. If X had a valid claim
fact of extra-judicial settlement shall be published in a newspaper of and D’s administrator did not allege any claim against X by way of
general circulation once a week for three (3) consecutive weeks in the offset, his failure to do so would bar his claim forever (Section 10, Rule
province (Section 1, Rule 74, Rules of Court). 86).

State the rule on venue in judicial settlement of estate of de- A, B and C, the only heirs in D’s intestate proceedings, submitted
ceased persons. ’05 – Q5(3) a project of partition to the partition, two lots were assigned to C,
who immediately entered into the possession of the lots. There-
The rule on venue in judicial settlement of estate of deceased after, C died and proceedings for the settlement of his estate were
persons may be stated as follows: If the decedent is an inhabitant of filed in the RTC-QC. D’s administrator then filed a motion in the
the Philippines at the time of his death, whether a citizen or an alien, probate court (RTC-Manila), praying that one of the lots assigned
the venue shall be in the Regional Trial Court in the province in which to C in the project of partition be turned over to him to satisfy
he resides at the time of his death. It cannot be in the place where he debts corresponding to C’s portion. The motion was opposed by
used to live (Jao v. Court of Appeals, 382 SCRA 407 [2002].) If he is an the administrator of C’s estate. How should the RTC-Manila re-
inhabitant of a foreign country, the Regional Trial Court of any province solve the motion of D’s administrator? '02 – Q8b
in which he had an estate, is the proper venue. The court first taking
cognizance of the case shall exercise jurisdiction to the exclusion of all The motion of D’s administrator should be granted. The assign-
other courts. ment of the two lots to C was premature because the debts of the es-
When the marriage is dissolved by death of the husband or wife, tate had not been fully paid (Section 1, Rule 90; Reyes v. Barreto-Datu,
the community property shall be inventoried, administered, and liqui- 19 SCRA 85 [1967].)
dated, and the debts thereof paid, in the testate or intestate proceed-
ings of the deceased spouse. If both spouses have died, the conjugal Suppose the property of D was declared escheated on July 1,
partnership shall be liquidated in the testate or intestate proceedings of 1990 in escheat proceedings brought by the OSG. Now, X, who
either (Sections 1 and 2, Rule 73, Rules of Court). claims to be an heir of D, filed an action to recover the escheated
property. Is the action viable? '02 – Q8c
A, a resident of Malolos, Bulacan, died leaving an estate located in
Manila, worth P300,000.00. In what court, taking into consideration the NO, the action is not viable. The action to recover escheated
nature of jurisdiction and of venue, should the probate proceeding on property must be filed within five (5) years from July 1, 1990 or be
the estate of A be instituted? '03 – Q9 forever barred (Section 4, Rule 91).

The probate proceeding on the estate of A should be instituted in Josefa filed in the MCTC of Alicia and Mabini, a petition for the
the Municipal Trial Court of Malolos, Bulacan which has jurisdiction, probate of the will of her husband, Martin, who died in the Munici-
because the estate is valued at P300,000.00, and is the court of proper pality of Alicia, the residence of the spouses. The probable value
venue because A was a resident of Malolos at the time of his death of the estate which consisted mainly of a house and lot was
(Section 33 of BP 129, as amended by R.A. No. 7691; Section 1 of placed at P295,000 and in the petition for the allowance of the will,
Rule 73). attorney’s fees in the amount of P10,000, litigation expenses in

42
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
the amount of P5,000.00 and costs were included. Pedro, the next 2. Will your answer be the same with respect to the real
of kin of Martin, filed an opposition to the probate of the will on property being claimed by Atty. ST in Civil Case No.
the ground that the total amount included in the relief of the peti- 456?
tion is more than P300,000, the maximum jurisdictional amount
for MCTCs. The court overruled the opposition and proceeded to YES, my answer is the same. An action to recover real property in
hear the case. Was the MCTC correct in its ruling? '01 – Q2 any event survives the death of the defendant (Section 1, Rule 87,
Rules of Court). However, a favorable judgment may be enforced in
YES, the Municipal Circuit Trial Court was correct in proceeding to accordance with Section 7(b) Rule 39 (1997 Rules of Civil Procedure)
hear the case. It has exclusive jurisdiction in all matters of probate, against the executor or administrator or successor in interest of the
both testate and intestate, where the value of the estate does not ex- deceased.
ceed P300,000.00. The value in this case of P295,000.00 is within its
jurisdiction. In determining the jurisdictional amount, excluded are at- What are the requisites in order that a lost or destroyed Will may
torney’s fees, litigation expenses and costs; these are considered only be allowed? '99 – Q11a
for determining the filing fees (B.P. Blg. 129, Sec. 33, as amended).
In order that a lost or destroyed will may be allowed, the following
The rules on special proceedings ordinarily require that the estate must be complied with:
of the deceased should be judicially administered thru an admin- 1. The execution and validity of the same should be estab-
istrator or executor. What are the two (2) exceptions to said re- lished;
quirements? '01 – Q15 2. The will must have been in existence at the time of the death
of the testator, or shown to have been fraudulently or acci-
The two exceptions to the requirement are: dentally destroyed in the lifetime of the testator without his
1. Where the decedent left no will and no debts and the heirs knowledge; and
are all of age, or the minors are represented by their judicial or 3. Its provisions are clearly and distinctly proved by at least two
legal representatives duly authorized for the purpose, the parties credible witnesses (Section 6, Rule 76 of the Rules of
may without securing letters of administration, divide the estate Court).
among themselves by means of public instrument filed in the
office of the register of deeds, or should they disagree, they may A's Will was allowed by the Court. No appeal was taken from its
do so in an ordinary action of partition. If there is only one heir, he allowance. Thereafter, Y, who was interested in the estate of A,
may adjudicate to himself the entire estate by means of an affi- discovered that the Will was not genuine because A's signature
davit filed in the office of the register of deeds. The parties or the was forged by X. A criminal action for forgery was instituted
sole heir shall file simultaneously a bond with the register of against X. May the due execution of the Will be validly questioned
deeds, in an amount equivalent to the value of the personal prop- in such criminal action? '99 – Q11b
erty as certified to under oath by the parties and conditioned upon
the payment of any just claim that may be filed later. The fact of NO. The allowance of the will from which no appeal was taken is
the extrajudicial settlement or administration shall be published in conclusive as to its due execution (Section 1 of Rule 75). Due execu-
a newspaper of general circulation in the province once a week tion includes a finding that the will is genuine and not a forgery. Accord-
for three consecutive weeks (Section 1 of Rule 74, Rules of ingly, the due execution of the will cannot again be questioned in a
Court). subsequent proceeding, not even in a criminal action for forgery of the
2. Whenever the gross value of the estate of a deceased per- will.
son, whether he died testate or intestate, does not exceed ten
thousand pesos (P10,000), and that fact is made to appear to the A, claiming to be an illegitimate child of the deceased D, instituted
RTC having jurisdiction or the estate by the petition of an interest- an Intestate proceeding to settle the estate of the latter. He also
ed person and upon hearing, which shall be held not less than prayed that he be appointed administrator of said estate. S, the
one (1) month nor more than three (3) months from the date of surviving spouse, opposed the petition and A's application to be
the last publication of a notice which shall be published once a appointed the administrator on the ground that he was not the
week for three consecutive weeks in a newspaper of general child of her deceased husband D. The court, however, appointed
circulation in the province, and after such other notice to interest- A as the administrator of said estate. Subsequently, S, claiming to
ed persons as the court may direct, the court may proceed sum- be the sole heir of D, executed an Affidavit of Adjudication, adju-
marily, without the appointment of an executor or administrator, to dicating unto herself the entire estate of her deceased husband D.
settle the estate (Section 2 of Rule 74, Rules of Court). S then sold the entire estate to X. - ‘98 - Q12

PJ engaged the services of Atty. ST to represent him in a civil 1. Was the appointment of A as administrator proper?
case filed by OP against him which was docketed as Civil Case
No. 123. A retainership agreement was executed between PJ and YES, unless it is shown that the court gravely-abused its discre-
Atty. ST whereby PJ promised to pay Atty. ST a retainer sum of tion in appointing the illegitimate child as administrator, instead of the
P24,000 a year and to transfer the ownership of a parcel of land to spouse. While the spouse enjoys preference, it appears that the
Atty. ST after presentation of PJ’s evidence. PJ did not comply spouse has neglected to apply for letters of administration within thirty
with his undertaking. Atty. ST filed a case against PJ which was (30) days from the death of the decedent (Section 6, Rule 78, Rules of
docketed as Civil Case No. 456. During the trial of Civil Case No. Court; Gaspay, Jr. v. Court of Appeals, 238 SCRA 163 [1994].)
456, PJ died. - ‘00 Q1
Alternative Answer:
1. Is the death of PJ a valid ground to dismiss the money
claim of Atty. ST in Civil Case No. 456? S, the surviving spouse, should have been appointed administra-
trix of the estate, in as much as she enjoys first preference in such
NO. Under Section 20, Rule 3, 1997 Rules of Civil Procedure, appointment under the rules (Section 6(a) of Rule 78, Rules of Court).
when the action is for recovery of money arising from contract, express
or implied, and the defendant dies before entry of final judgment in the 2. Was the action of S in adjudicating the entire estate of
court in which the action is pending at the time of such death, it shall her late husband to herself legal?
not be dismissed but shall instead be allowed to continue until entry of
final judgment. A favorable judgment obtained by the plaintiff shall be NO. An affidavit of self-adjudication is allowed only if the affiant is
enforced in the manner especially provided in the Rules for prosecut- the sole heir of the deceased (Section 1, Rule 74, Rules of Court). In
ing claims against the estate of a deceased person. this case, A also claims to be an heir. Moreover, it is not legal because
there is already a pending juridical proceeding for the settlement of the
estate.

43
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
What court has jurisdiction over a petition for the probate of a will enforced in the manner especially provided in the Rules for prosecut-
involving an estate valued at P300,000.00 in Metro Manila? ’97 – ing claims against the estate of a deceased person.]
Q1e

A petition for the probate of a will involving an estate valued at 2. If the opposition is without merit, can the writ of execu-
P300,000.00 falls within the jurisdiction of the Metropolitan Trial Courts tion be validly issued?
in Metro Manila (Section 33 of B.P. Blg. 129, as amended by R.A. No.
7691; Section 19(4) of B.P. Blg. 129, as amended). NO, because a judgment for money cannot be enforced by a writ
of execution against the estate of the deceased which is in custodia
A and B are brothers. Their late father, during his lifetime, donated legis (Section 7 of Rule 39; Paredes v. Moya, 61 SCRA 527 [1974].)
his only real estate to B. Thereafter, B sold the property to C who
had it titled. C died intestate and was survived by his son, D. A, 3. If it cannot be issued, what is the remedy of A?
claiming that his legitime has been impaired, filed a case for an-
nulment of donation and sale, cancellation of title and recovery of His remedy is to file a money claim against the estate of Y based
possession of the property before Branch 85 of the RTC. D filed a on the judgment. Although the period for filing money claims has al-
MTD the complaint on the ground that there is a pending intestate ready lapsed, the same may be allowed before an order of distribution
proceeding before Branch 87 involving the estate of C, his father, is entered (Sections 2 and 5 of Rule 86).
which included the subject real property. A opposed the motion
arguing that Branch 85 has jurisdiction since ownership of the **
land is involved and the said branch has jurisdiction to resolve Johnny, a naturalized citizen of the United States of America
the question of ownership. As judge of Branch 85, resolve the (USA) but formerly a Filipino citizen, executed a notarial will in
MTD. ’96 – Q11(2) accordance with the laws of the State of California, USA. Johnny,
at the time of his death, was survived by his niece Anastacia, an
I would deny the motion because it is Branch 85 of the Regional American citizen residing at the condominium unit of Johnny
Trial Court that has jurisdiction to decide the question of ownership of located at Fort Bonifacio, Taguig City; a younger brother, Bar-
said property. tolome, who manages Johnny’s fish pond in Lingayen, Pangasi-
nan; and a younger sister, Christina, who manages Johnny’s
A Will containing three pages was written in two leaves of paper. rental condominium units in Makati City. Johnny’s entire estate
The will was written on the 1st page of the 1st leaf, the 2nd page of which he inherited from his parents is valued at P200 million.
the reverse side of said 1st leaf, and the 3rd page on the 2nd leaf. Johnny appointed Anastacia as executrix of his will. (4%) - ‘14
The signatures of the testatrix as well as the instrumental wit- Q8(A)(B)
nesses were written on the left margin of the 1st page or 1st folio
and on the 3rd page or 2nd folio but not on the 2nd page or reverse (A) Can Johnny’s notarial will be probated before the proper court
side of the 1st leaf. May the Will be admitted to probate? ’96 – in the Philippines?
Q11(3)
(B) Is Anastacia qualified to be the executrix of Johnny’s notarial
NO, because the law requires that each and every page of the will will?
should be signed by the testator and his instrumental witnesses (Article
808, Civil Code; Caneda v. Court of Appeals, 222 SCRA 781 [1993].) Answer: (A) Yes. Johnny’s notarial will can be probated before the
proper court in the Philippines. A foreign will can be given legal effects
A filed a complaint against Y with the RTC of Argao, Cebu, for in our jurisdiction. Article 816 of the Civil Code states that the will of an
payment of a promissory note in the sum of P50,000, for liquidat- alien who is abroad produces effect in the Philippines if made in accor-
ed damages of P5,000 and attorney’s fees for P5,000. After he filed dance with the formalities prescribed by law of the place where he
his answer, Y died, but his lawyer did not file a MTD. In the mean- resides, or according to the formalities observed in his country (Pala-
time, Y’s widow filed with the above court a special proceeding ganas v. Palaganas, G.R. No. 169144, January 26, 2011).
for the settlement of the intestate of Y. The widow, Z, was ap-
pointed the administratrix of the estate. A filed in civil action a (B) Yes. Anastacia is qualified. Under the rules, the following persons
motion to have Y substituted by the administratrix; the latter did are incompetent to serve as executor or administrator: (a) a minor; (b)
not object. The court granted the motion. Trial on the merits was not a resident of the Philippines; and (c) is in the opinion of the court
had. In due course, the court rendered a decision in favor of A. At unfit to execute the duties of the trust by reason of drunkenness, im-
the time it was rendered, the period to file claims in the intestate providence, or want of understanding or integrity, or by reason of con-
estate of Y had already lapsed. The administratrix, Z, did not ap- viction of an offense involving moral turpitude (Section 1, Rule 78,
peal from the decision; and after it became final, A moved for the Rules of Court).
execution of judgment. Z opposed the motion contending that the
decision is void because the claim does not survive. The case
While Anastacia is an American citizen, she is nonetheless a resident
should have been dismissed upon the death of Y since upon his
of the Philippines.
death, the court lost jurisdiction over the case. - ‘91 Q10

1. Rule on the issue. Accordingly, Anastascia is not disqualified because there is no prohibi-
tion against an alien residing in the Philippines to serve as an executor
Since Y died before final judgment in the RTC, the action for of an estate.
money should have been dismissed and prosecuted as a money claim
against his estate. However, since the widow, Z, who was appointed **
administratrix of the estate, did not object to the trial on the merits and
did not appeal from the decision, she is deemed to have waived the
right to have the claim litigated in the estate proceedings. Moreover, The statute of "non-claims" requires that: - ‘12 Q24
she is estopped from questioning the court’s jurisdiction. Hence, the
decision is valid. a. claims against the estate be published by the creditors.
[Note: Under Section 20, Rule 3, 1997 Rules of Civil Procedure,
when the action is for recovery of money arising from contract, express b. money claims be filed with the clerk of court within the
or implied, and the defendant dies before entry of final judgment in the time prescribed by the rules.
court in which the action is pending at the time of such death, it shall
not be dismissed but shall instead be allowed to continue until entry of
final judgment. A favorable judgment obtained by the plaintiff shall be

44
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
c. claims of an executor or administrator against the estate b) What are the jurisdictional facts that must be alleged in
be filed with the special administrator. a petition for probate of a will? How do you bring before
the court these jurisdictional facts? (3%)
SUGGESTED ANSWER:
d. within two (2) years after settlement and distribution of
the estate, an heir unduly deprived of participation in the
The jurisdictional facts in a petition for pro-
estate may compel the re-settlement of the estate.
bate are: (a) that a person died leaving a will; (2) in
SUGGESTED ANSWER:
case of a resident, that he resided within the territorial
b) Money claims be filed with the clerk of court within the
jurisdiction of the court; and (3_ in the case of a non-
time prescribed by the rules.
resident, that he left an estate within such territorial
After the Court has granted letters testamen-
jurisdiction.
tary or administration, it shall immediately issue of a
notice requiring all persons having money claims
against the decedent to file them in the office of the The jurisdictional facts shall be contained in a
clerk of court. (Rule 86, Sec. 1, Rules of Court). The petition for allowance of will.
Notice shall state the time for the filing of claims against
the estate, which shall not be more than twelve (12) nor Which of the following claims survive the death of the defendant
less than six (6) months after the date of the first publi- and need not be presented as a claim against the estate? - ‘11
cation of the notice. (Rule 86, Sec. 2, Rules of Court). Q29
(A) Contingent money claims arising from contract.
A special administrator may be appointed by a court when: - ‘12
Q76 (B) Unenforced money judgment against the decedent, with
death occurring before levy on execution of the property.
a. the executor cannot post a bond. (C) Claims for damages arising from quasi-delict.
(D) Claims for funeral expenses.
b. the executor fails to render an account.

ESCHEAT
c. regular administrator has a claim against estate he rep-
resents.
What is the proper venue for a petition to declare as escheated a
parcel of land owned by a resident of the Philippines who died
d. a Motion for Reconsideration is filed with respect to a intestate and without heirs or persons entitled to the property?
decision disallowing probate of a will. ’97 – Q6a
SUGGESTED ANSWER:
c) Regular administrator has a claim against estate he rep- The venue of the escheat proceedings of a parcel of land in this
resents. case is the place where the deceased last resided (Section 1, Rule
If the executor or administrator has a claim 91).
against the estate that he represents, he shall give
notice thereof, in writing, to the court, and the court A person entitled to the estate of a deceased person escheated in
shall appoint a special administrator (Rule 86, Sec. 8, favor of the State has: -(X)
Rules of Court).

X, the designated executor of a will, files a petition for probate of a. 5 years from date of judgment to file a claim.
the same. X and his counsel failed to appear without justifiable
cause at the hearing on the presentation of evidence and the b. 2 years from date of judgment to file a claim.
court therefore dismissed, motu proprio, his petition for failure to
prosecute. The effect of the dismissal is: - ‘12 Q96
c. 5 years from date of registration of the judgment to file a
claim.
a. not an adjudication upon the merits.

d. 2 years from date of registration of the judgment to file a


b. the will can no longer be probated. claim.
SUGGESTED ANSWER:
c. it is a dismissal with prejudice. a) 5 years from date of judgment to file a claim.
A person entitled to the estate of a deceased
person escheated in favor of the State has a period of
d. a bar to a subsequent action on the same cause. five (5) years from the date of such judgment within
SUGGESTED ANSWER: which to file a claim thereto with the court. A claim not
c) It is a dismissal with prejudice. made within said time shall be forever barred. If the
The dismissal of a case for failure to prose- claim is meritorious, such person shall have possession
cute has the effect of adjudication on the merits, and is of and title to the same, or if sold, the municipality or
necessary understood to be with prejudice to the filing city shall be accountable to, him for the proceeds, after
of another action, unless otherwise provided in the deducting reasonable charges for the care of the es-
order of dismissal. Stated differently, the general rule is tate. (Rule 91, Sec. 4, Rules of Court).
that dismissal of a case for failure to prosecute is to be
regarded as an adjudication on the merits and with
prejudice to the filing of another action, and the only GUARDIANSHIP
exception is when the order of dismissal expressly
containing a qualification that the dismissal is without
prejudice. (See Rule 17, Sec. 3, Rules of Court; Gomez In default of parents, the court may appoint a guardian for a minor
vs. Alcantara, G.R. No. 179556, February 13, 2009). giving first preference to: - (X)

a) an older brother or sister who is over 18 years old.

45
The Sigma Rho Fraternity
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Bar Ques)ons and Answers
b) the actual custodian over 21 years old. (D) Raise the ward to become a responsible member of
c) a paternal grandparent society.
d) an uncle or aunt over 21 years old.
What is the proper venue for a petition for the appointment of an
administrator over the land and building left by an American citi-
SUGGESTED ANSWER zen residing in California, who had been declared incompetent by
c) A paternal grandparent an American court? ’97 – Q6b
In default of parents or a court-appointed
guardian, the court may appoint a guardian of the per- The venue for the appointment of an administrator over the land
son or property, or both, of a minor, observing as far as and building of an American citizen residing in California, declared
practicable, the following order of preference: (a) the incompetent by an American court, is the Regional Trial Court of the
surviving grandparent. In case several grandparents place where his property of part thereof is situated (Section 1, Rule
survive, the court shall select any of them taking into 92).
account all relevant considerations; (b) the oldest
brother or sister of the minor over twenty-one years old; ADOPTION
(c) the actual custodian of the minor over twenty-one
years of age, unless unfit or disqualified; and (d) any What is the proper venue for a petition for the adoption of minor
other person, who in the sound discretion of the court, residing in Pampanga? ’97 – Q6c
would serve the best interests of the minor. (Sec. 6,
A.M. No. 03-02-05-SC 2003-05-01, Rule on Guardian- The petition for adoption shall be filed with the Family Court of the
ship of Minors). province or city where the prospective adoptive parents reside (Section
6, Rules on Adoption).
Ernie filed a petition for guardianship over the person and proper- A and B adopted their nephew. They filed an action for revocation
ties of his father, Ernesto. Upon receipt of the notice of hearing, of the adoption on May 1, 1998 on the ground that their nephew
Ernesto filed an opposition to the petition. Ernie, before the hear- neglected them. Based on the Rules of Domestic Adoption, the
ing of the petition, filed a motion to order Ernesto to submit him- judge must: - ‘12 Q84
self for mental and physical examination which the court granted.

a) advise A and B to just disinherit the nephew.


After Ernie's lawyer completed the presentation of evidence in b) disallow the revocation.
support of the petition and the court's ruling on the formal offer of c) refer the petition to the DSWD.
evidence, Ernesto's lawyer filed a demurrer to evidence. d) grant the petition after hearing.

Ernie's lawyer objected on the ground that a demurrer to evidence SUGGESTED ANSWER:
is not proper in a special proceeding. - ‘15 Q5(A)(B) a) Adivse A and B to just disinherit the nephew.
b) Disallow the revocation.
a) Was Ernie's counsel's objection proper? Adoption, being in the best interest of the child, shall not be subject to
(2%) rescission by the adopter(s). However, the adopter(s) may disinherit
the adoptee for causes provided in Article 919 of the Civil Code. (Sec.
19, R.A. 8552, Rules of Domestic Adoption).
Suggested Answer:

No. The Rule on demurrer to evidence is applicable to Special pro- HABEAS CORPUS
ceedings (Matute v. CA, 26 SCRA 768 [1969]).
The statement that “In the exercise of its original jurisdiction, the
Moreover, under Section 2, Rule 72 of the Rules of Court, in the ab- Sandiganbayan may grant petitions for the issuance of a writ of
sence of special rules, the rules provided for in ordinary actions shall habeas corpus” is FALSE. ’09 – Q11c
be applicable, as far as practicable, to special proceedings.”
The Sandiganbayan may grant petitions for habeas corpus only in
aid of its appellate jurisdiction (R.A. No. 7975, as amended by R.A. No.
b) If Ernesto defies the court's order direct- 8249), not in the exercise of its “original” jurisdiction.
ing him to submit to physical and mental
examinations, can the court order his After Alma has started her sentence for violation of B.P. Blg. 22,
arrest? (2%) she filed a petition for writ of habeas corpus, citing Vaca v. CA
where the sentence of imprisonment of a party found guilty of
Suggested Answer: violation of B.P. Blg. 22 was reduced to a fine equal to double the
amount of the check involved. She prayed that her sentence be
similarly modified and that she be immediately released from
If the order for the conduct of physical and mental examination is is- detention. In the alternative, she prayed that pending determina-
sued as a mode of discovery and Ernesto defies the said order, the tion on whether the Vaca ruling applies to her, she be allowed to
court cannot validly order his arrest (Section 3 (d), Rule 29 of the Rules post bail pursuant to Section 14, Rule 102, which provides that if
of Court). a person is lawfully imprisoned or restrained on a charge of hav-
ing committed an offense not punishable by death, he may be
admitted to bail in the discretion of the court. Accordingly, the
Which of the following is a duty enjoined on the guardian and
trial court allowed Alma to post bail and then ordered her release.
covered by his bond? - 11 Q27
In your opinion, is the order of the trial court correct – ‘08 Q19
(A) Provide for the proper care, custody, and education of 1. Under Rule 102?
the ward.
NO, Alma, who is already convicted by final judgment, cannot be
(B) Ensure the wise and profitable investment of the ward’s entitled to bail under Section 14, Rule 102. The provision presupposes
financial resources. that she had not been convicted as yet. It provides that if she is lawfully
(C) Collect compensation for his services to the ward. imprisoned or restrained for an offense not punishable by death, she
may be recommitted to imprisonment or admitted to bail in the discre-

46
The Sigma Rho Fraternity
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Bar Ques)ons and Answers
tion of the court or judge (Section 14, Rule 102; Celeste v. People, 31 Widow A and her two children, both girls, aged 8 and 12 years old,
SCRA 391 [1970]; Vicente v. Judge Majaducon, 461 SCRA 12 [2005]; reside in Angeles City, Pampanga. A leaves her two daughters in
San Pedro v. People, G.R. No. 133297, August 15 2002). their house at night because she works in a brothel as a prosti-
tute. Realizing the danger to the morals of these two girls, B, the
2. Under the Rules of Criminal Procedure? father of the deceased husband of A, files a petition for habeas
corpus against A for the custody of the girls in the Family Court in
Under the Rules of Criminal Procedure, Section 24 of Rule 114 Angeles City. In said petition, B alleges that he is entitled to the
clearly prohibits the grant of bail after conviction by final judgment and custody of the two girls because their mother is living a disgrace-
after the convict has started to serve sentence. In the present case, ful life. The court issues the writ of habeas corpus. When A learns
Alma had already started serving sentence. She cannot therefore, of the petition and the writ, she brings her two children to Cebu
apply for bail (People v. Fitzgerald, 505 SCRA 573 [2006]). City. At the expense of B the sheriff of the said Family Court goes
to Cebu City and serves the writ on A. A files her comment on the
While Marietta was in her place of work in Makati City, her es- petition raising the following defenses: - ‘03 Q8
tranged husband Carlo barged into her house in Paranaque City,
abducted their 6-year old son, Percival, and brought the child to 1. The enforcement of the writ of habeas corpus in Cebu
his hometown in Baguio City. Despite Marietta's pleas, Carlo re- City is illegal; and
fused to return their child. Marietta, through counsel, filed a peti-
tion for habeas corpus against Carlo in the Court of Appeals in The writ of habeas corpus issued by the Family Court in Angeles
Manila to compel him to produce their son, before the court and City may not be legally enforced in Cebu City, because the writ is en-
for her to regain custody. She alleged in the petition that despite forceable only within the judicial region to which the Family Court be-
her efforts, she could no longer locate her son. In his comment, longs, unlike the writ granted by the Supreme Court or Court of Ap-
Carlo alleged that the petition was erroneously filed in the Court peals which is enforceable anywhere in the Philippines (Section 20 of
of Appeals as the same should have been filed in the Family Court Rule on Custody of Minors and Writ of Habeas Corpus in Relation to
in Baguio City which, under R.A. No. 8369, has exclusive jurisdic- Custody of Minors (A.M. No. 03-04-04-SC); see also Section 4 of Rule
tion, over the petition. Marietta replied that under Rule 102 of the 102, Rules of Court).
Rules of Court, as amended, the petition may be filed in the Court
of Appeals and if granted, the writ of habeas corpus shall be en- 2. B has no personality to institute the petition. Resolve
forceable anywhere in the Philippines. Whose contention is cor- the petition in the light of the above defenses of A.
rect? '05 – Q2(1)
B, the father of the deceased husband of A, has the personality to
Marietta’s contention is correct. The Court of Appeals has concur- institute the petition for habeas corpus of the two minor girls, because
rent jurisdiction with the Family Courts and the Supreme Court in peti- the grandparent has the right of custody as against the mother A who
tions for habeas corpus where the custody of minors is at issue, not- is a prostitute (Sections 2 and 13, Id.).
withstanding the provision in the Family Courts Act (R.A. No, 8369)
that Family Courts have exclusive jurisdiction in such cases (Thornton A was arrested on the strength of a warrant of arrest issued by
v. Thornton, 436 SCRA 550 [2004].) the RTC in connection with an Information for Homicide. W, the
Section 20, par. 6 of SC AM No. 03-04-04 [2003] provides: “the live-in partner of A filed a petition for habeas corpus against A's
petition may likewise be filed with the Supreme Court, Court of Ap- jailer and police investigators with the Court of Appeals. - ‘98 Q11
peals, or with any of its members and, if so granted, the writ shall be
enforceable anywhere in the Philippines. The writ may be made re- 1. Does W have the personality to file the petition for
turnable to a Family Court or to any regular court within the region habeas corpus?
where petitioner resides or where the minor may be found for hearing
and decision on the merits. YES. W, the live-in partner of A, has the personality to file the
petition for habeas corpus because it may be filed by “some person in
Mariano was convicted by the RTC for raping Victoria and meted his behalf” (Section 3, Rule 102, Rules of Court).
the penalty of reclusion perpetua. While serving sentence at the
National Penitentiary, Mariano and Victoria were married. Mariano 2. Is the petition tenable?
filed a motion in said court for his release from the penitentiary
on his claim that under R.A. No. 8353, his marriage to Victoria NO. The petition is not tenable because the warrant of arrest was
extinguished the criminal action against him for rape, as well as issued by a court which had jurisdiction to issue it (Section 4, Rule 102
the penalty imposed on him. However, the court denied the mo- Rules of Court).
tion on the ground that it had lost jurisdiction over the case after
its decision had become final and executory. -’05 Q12 C, a convict, was able to get favorable results of a post-conviction
DNA testing showing that C could not have committed the crime.
1. Is the filing of the court correct? To gain freedom, C may: - ‘12 Q86

NO. The court cannot lose jurisdiction so long as its decision has
a) file a petition for Writ of Habeas Corpus before the
not yet been fully implemented and satisfied. Finality of a judgment
court of origin.
cannot operate to divest a court of its jurisdiction to execute and en-
b) apply for full pardon.
force the judgment (Echegaray v. Secretary of Justice, 301 SCRA 96
c) file a Motion to annul judgment of conviction on the
[1999].) Besides, there is a supervening event which renders execution
ground of fraud.
unnecessary (So v. Court of Appeals, 388 SCRA 107 [2002].)
d) file a Motion for new trial under Rule 121.
2. What remedy/remedies should the counsel of Mariano
take to secure his proper and most expeditious release SUGGESTED ANSWER:
from the National Penitentiary? a) File a petition for Writ of Habeas Corpus as before the
court of origin.
To secure the proper and most expeditious release of Mariano The convict of the prosecution may file a
from the National Penitentiary, his counsel should file: (a) a petition for petition for a writ of habeas corpus in the court of origin
habeas corpus regarding the illegal confinement of Mariano, or (b) a if the results of the post-conviction DNA testing are
motion in the court which convicted him, to nullify the execution of his favorable t the convict. In case the court, after due
sentence or the order of his commitment on the ground that a super- hearing, find the petition to be meritorious, it shall re-
vening development had occurred despite the finality of the judgment verse or modify the judgment of conviction and order
(Melo v. People, 85 Phil. 766 [1950].) the release of the convict, unless continued detention is

47
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
justified for a lawful cause. A similar petition may be c.) Mayumi later filed separate criminal and civil actions against
filed either in the Court of Appeals of the Supreme Mapusok. How will the cases affect the amparo petition she earli-
Court, or with any member of said courts, which may er filed? (1%) ‘15 - Q18b
conduct a hearing thereon or remand the petition to the
court of origin and issue the appropriate orders. (Sec.
10, Rule on DNA Evidence).
Suggested Answer:

WRIT OF AMPARO When a criminal action and a separate civil action are filed subsequent
to a petition for a writ of amparo, the latter shall be consolidated with
The residents of Mt. Ahohoy, headed by Masigasig, formed a non- the criminal action. After consolidation, the procedure under the Rules
governmental organization - Alyansa Laban sa Minahan sa Aho- shall continue to apply to the disposition of the reliefs in the petition
hoy (ALMA) to protest the mining operations of Oro Negro Mining (Sec. 23, Rule on the Writ of Amparo)
in the mountain. ALMA members picketed daily at the entrance of
the mining site blocking the ingress and egress of trucks and Under the Rules on the Writ of Amparo, interim relief orders may
equipment of Oro Negro, hampering its operations. Masigasig had be issued by the Court except: - ‘12 Q2
an altercation with Mapusok arising from the complaint of the
mining engineer of Oro Negro that one of their trucks was de- a) production order;
stroyed by ALMA members. Mapusok is the leader of the Associa- b) witness protection order;
tion of Peace Keepers of Ahohoy (APKA), a civilian volunteer or- c) hold departure order;
ganization serving as auxiliary force of the local police to main- d) temporary protection order
tain peace and order in the area. Subsequently, Masigasig disap-
peared. Mayumi, the wife of Masigasig, and the members of ALMA
searched for Masigasig, but all their efforts proved futile. Mapag- SUGGESTED ANSWER
matyag, a member of ALMA, learned from Maingay, a member of c) Hold departure order;
APKA, during their binge drinking that Masigasig was abducted Under the Rules on the Writ of Amparo, upon
by other members of APKA, on order of Mapusok. Mayumi and filing of the petition or at any time before final judgment,
ALMA sought the assistance of the local police to search for the court, justice or judge may grant any of the following
Masigasig, but they refused to extend their cooperation. interim relief orders: (a) Temporary Protection Order; (b)
Inspection Order; (c) Production Order; and (d) Witness
Immediately, Mayumi filed with the RTC, a petition for the is- Protection Order. It does not include a Hold Departure
suance of the writ of amparo against Mapusok and APKA. ALMA Order. (Sec. 14 (a) (b) (c) (d), A.M. No. 07-9-12-SC).
also filed a petition for the issuance of the writ of amparo with the
Court of Appeals against Mapusok and APKA. Respondents Ma- Alex filed a petition for writ of amparo against Melba relative to
pusok and APKA, in their Return filed with the RTC, raised among his daughter Toni's involuntary disappearance. Alex said that
their defenses that they are not agents of the State; hence, cannot Melba was Toni's employer, who, days before Toni disappeared,
be impleaded as respondents in an amparo petition. threatened to get rid of her at all costs. On the other hand, Melba
countered that she had nothing to do with Toni's disappearance
a.) Is their defense tenable? (3%) ‘15 - Q18a and that she took steps to ascertain Toni's whereabouts. What is
the quantum of evidence required to establish the parties' respec-
Suggested Answer: tive claims? - ‘11 Q45

No. The defense is not tenable. The writ of amparo is a remedy avail- (A) For Alex, probable cause; for Melba, substantial evi-
able to any person whose right to life, liberty and security has been dence.
violated or is threatened with violation by an unlawful act or omission of (B) For Alex, preponderance of evidence; for Melba, sub-
a public officer or employee or of a private individual or entity. The writ stantial evidence.
covers extralegal killing and enforced disappearances or threats there-
of (Section 1, Rules on the Writ if Amparo). (C) For Alex, proof beyond reasonable doubt; for Melba,
ordinary diligence.
Moreover, the rules do not require that the respondents should be (D) For both, substantial evidence.
agents of the State in order to be impleaded as respondents in an
amparo petition (Secretary of National Defense v. Manalo G.R. No.
180906, October 7, 2008).
Marinella is a junior officer of the AFP who claims to have per-
Respondents Mapusok and APKA, in their Return filed with the sonally witnessed the malversation of public funds given by US
Court of Appeals, raised as their defense that the petition should authorities in connection with the Balikatan exercises. Marinella
be dismissed on the ground that ALMA cannot file the petition alleges that as a result of her expose, there are operatives within
because of the earlier petition filed by Mayumi with the RTC. the military who are out to kill her. She files a petition for the is-
suance of a writ of amparo against, among others, the Chief of
Staff but without alleging that the latter ordered that she be killed.
b.) Are respondents correct in raising their defense? (3%)
Atty. Daro, counsel for the Chief of Staff, moves for the dismissal
‘15 - Q18b
of the failure to allege that his client issued any order to kill or
harm Marinella. Rule on Atty. Daro’s motion. ’10 – Q10
Suggested Answer:
The motion to dismiss must be denied on the ground that it is a
Yes. The respondents correct in raising the defense. Under Section 2 prohibited pleading under Section 11(a) of the Rule on the Writ of Am-
(c) of the Rules on the Writ of Amparo, the filing of a petition by Mayu- paro. Moreover, said Rule does not require the petition therefor to al-
mi who is an immediate member of the family of the aggrieved party lege a complete detail of the actual or threatened violation of the vic-
already suspends the right of all other authorized parties to file similar tim’s rights. It is sufficient that there be an allegation of a real threat
petitions. Hence, Alma cannot file the petition because of the earlier against petitioner’s life, liberty and/or security (Razon v. Tagatis, 606
petition filed by Mayumi with the RTC. SCRA 598 [2009].)

What is the writ of amparo? How it is distinguished from the writ


of habeas corpus? ’09 – Q19b

48
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
tionary principle calls for the exercise of caution in the
The petition for a writ of amparo is a remedy available to any face of risk and uncertainty (Sec. 4 [f], Rule 1, Part 1,
person whose right to life, liberty and security is violated or threatened and Rule 20, A.M. No. 09-6-8-SC, Rules of Procedure
with violation by an unlawful act or omission of a public official or em- for Environmental Cases).
ployee, or of a private individual or entity. The writ shall cover extra-
legal killings and enforced disappearances or threats thereof. The Director of the BFAR launches an intensified campaign
The writ of amparo differs from a writ of habeas corpus in that the against illegal fishpen operators situated in Laguna de Bay. The
latter writ is availed of as a remedy against unlawful confinement or illegal fishpen operators file a Section 3 (e), R.A. 3019 (causing
detention by which any person is deprived of his liberty, or cases by undue injury or benefit) case against the BFAR Director before the
which rightful custody of any person is withheld from another who is Sandiganbayan. The Director's best remedy before Sandigan-
lawfully entitled thereto (Section 1, Rule 102, Rules of Court). bayan is: - ‘12 Q37
What is the right correlation between a criminal action and a peti-
tion for Writ of Amparo both arising from the same set of facts? - a. file a Motion to Quash based on lack of juris-
‘11 Q44 diction over the person.
(A) When the criminal action is filed after the Amparo peti-
tion, the latter shall be dismissed. b. file a Motion to Quash for non-exhaustion of
administrative remedies.
(B) The proceeding in an Amparo petition is criminal in na-
ture.
c. file a Motion to Dismiss because the complaint
(C) No separate criminal action may be instituted after an
is a SLAPP suit.
Amparo petition is filed.
(D) When the criminal action is filed after the Amparo peti-
d. move for suspension of proceedings because
tion, the latter shall be consolidated with the first.
of a pre-judicial question.
SUGGESTED ANSWER:
c) Fila a Motion to Dismiss because the complaint is
WRIT OF HABEAS DATA
SLAPP suit.
The Director of the BFAR may file an answer
A wants to file a Petition for Writ of Habeas Data against the AFP interposing as a defense that the case is a Strategic
in connection with threats to his life allegedly made by AFP intel- lawsuit against public participation (SLAPP) and attach
ligence officers. A needs copies of AFP highly classified intelli- supporting documents, affidavits, papers and other
gence reports collected by Sgt. Santos who is from AFP. A can file evidence; and, by way of counterclaim, pray for dam-
his petition with: - ‘12 Q7 ages, attorney’s fees and costs of suit. The Director
who is seeking the dismissal of the case must prove
substantial evidence that his acts for the enforcement of
a) RTC where AFP is located; environmental law are legitimate action for the protec-
b) RTC where Sgt. Santos resides; tion, preservation and rehabilitation of the environment.
c) Supreme Court; The party filing the action assailed as a SLAPP shall
d) Court of Appeals. prove by preponderance of evidence that the action is
not a SLAPP and is a valid claim. (Rule 6, Sec. 2, A.M.
SUGGESTED ANSWER: No. 09-6-8-SC, Rules of Procedure for Environmental
d) Court of Appeals. Cases).
In accordance with the principle of judicial
hierarchy of the courts, A should file the petition with the
Court of Appeals. Azenith, the cashier of Temptation Investments, Inc. (Temptation)
with principal offices in Cebu City, is equally hated and loved by
ALTERNATIVE ANSWER: her co-employees because she extends cash advances or “vales”
b) RTC where Sgt. Santos resides to her colleagues whom she likes. One morning, Azenith discov-
c) Supreme Court ers an anonymous letter inserted under the door of her office
The petition may be filled with the Regional threatening to kill her. Azenith promptly reports the matter to her
Trial Court where the petitioner or respondent resides, superior Joshua, who thereupon conducts an internal investiga-
or that which has jurisdiction over the place where the tion to verify the said threat. Claiming that the threat is real, Temp-
data or information is gathered, collected or stored, at tation opts to transfer Azenith to its Palawan office, a move she
the option of the petitioner. The petition may also be resists in view of the company’s refusal to disclose the results of
filed with the Supreme Court or the Court of Appeals or its investigation. Decrying the move as a virtual deprivation of her
the Sandiganbayan when the action concerns public employment, Azenith files a petition for the issuance of writ of
data files of government offices. (Sec. 3, A.M. No. 08-1- habeas data before the RTC to enjoin Temptation from transfer-
16-SC, The Rule on the Writ of Habeas Data, January ring her on the ground that the company’s refusal compromises
22, 2008). her right to life, liberty and privacy. Resolve the petition. ’10 – Q20

Azenith’s petition for the issuance of a writ of habeas data must


RULES OF PROCEDURE FOR ENVIRONMENTAL CASES be dismissed as there is no showing that her right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omis-
sion. Neither was the company shown to be engaged in the gathering,
What do you understand about the "precautionary principle" un- collecting nor storing data or information regarding the person, family,
der the Rules of Procedure for Environmental Cases? (5%) - X home and correspondence of the aggrieved party (Section 1, Rule on
SUGGESTED ANSWER: the Writ of Habeas Data).

Precautionary principle states that when What is the writ of habeas data? ’09 – Q19c
human activities may lead to threats of serious and
irreversible damage to the environment that is scientifi- The writ of habeas data is a remedy available to any person
cally plausible but uncertain, actions shall be taken to whose right to privacy in life, liberty or security is violated or threatened
avoid or diminish that threat. In its essence, the precau- by an unlawful act or omission of a public official or employee, or of a

49
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
private individual or entity engaged in the gathering, collecting or stor- Besides, the petition for Writ of Kalikasan is exempted from the pay-
ing of data or information regarding the person, family, home and cor- ment of docket fees.
respondence of the aggrieved party.
From the foregoing, it is clear that filing a petition for Writ of Kalikasan
The officers of "Ang Kapaligiran ay Alagaan, Inc" engaged your would be the best remedy to address all the environmental problems
services to file an action against ABC Mining Corporation which caused by the release of the toxic waste to the waters of Romblon and
is engaged in mining operations in Sta. Cruz, Marinduque. ABC Quezon without the burden of paying docket fees. After all, the filing of
used highly toxic chemicals in extracting gold. ABC's toxic mine a petition for the issuance of the Writ of Kalikasan shall not preclude
tailings were accidentally released from its storage dams and the filing of separate civil, criminal or administrative actions; thus, the
were discharged into the rivers of said town. The mine tailings organization can later file a complaint for damages with the Regional
found their way to Calancan Bay allegedly to the waters of nearby Trial Court, should they desire to do so.
Romblon and Quezon. The damage to the crops and loss of earn-
ings were estimated at PI Billion. Damage to the environment is At any rate, the rules provide that judgment must be rendered within
estimated at Php 1 Billion. As a lawyer for the organization, you sixty (60) days from the time the petition is submitted for decision
are requested to explain the advantages derived from a petition which expedites the proceedings significantly considering the urgency
for writ of kalikasan before the Supreme Court over a complaint of situation the in the instant case.
for damages before the RTC of Marinduque or vice-versa. What
action will you recommend? Explain. (5%) ’16 – Q13 As lawyer for the organization I would recommend, therefore, the filing
of a petition for a Writ of Kalikasan with the Supreme Court.
SUGGESTED ANSWER:

As a lawyer for the organization, I would recommend the filing of a CHANGE OF NAME
petition for issuance of a Writ of Kalikasan.
Pernito, also known in the community as Peregrino, filed a peti-
The Writ of Kalikasan is a remedy available to a natural or juridical
tion to change his name to Pedro. The name Peregrino appeared
person, entity authorized by law, people's organization, non-govern-
in the body of the petition but not in the caption. When the order
mental organization, or any public interest group accredited by or reg-
of the hearing was published, the caption and the body of the
istered with any government agency, on behalf of persons whose con-
petition were merely lifted verbatim, so that as published, the
stitutional right to a balanced and healthful ecology is violated, or
petition’s caption still did not contain Peregrino as the petitioner’s
threatened with violation by an unlawful act or omission of a public
alias. The government lawyer filed a MTD on the ground that,
official or employee, or private individual or entity, involving environ-
notwithstanding publication for the requisite number of times, the
mental damage of such magnitude as to prejudice the life, health or
court did not acquire jurisdiction over the petition because peti-
property of inhabitants in two or more cities or provinces (Section 1 of
tioner’s alias (Peregrino) did not appear in the published caption.
Rule 7, A.M. No. 09-6-8-SC also known as Rules of Procedure for
The court denied the MTD with ruling that there was substantial
Environmental Cases).
compliance with the law and that the omission of the alias in the
caption may be deemed de minimis because the alias was clearly
The following reliefs may be included under the writ of kalikasan: (a) set forth in the petition itself. Was the court correct in denying the
Directing respondent to permanently cease and desist from committing MTD? ’92 – Q10
acts or neglecting the performance of a duty in violation of environmen-
tal laws resulting in environmental destruction or damage; (b) Directing NO, the failure of the petitioner to include his alias (Peregrino) in
the respondent public official, government agency, private person or the caption is a jurisdictional defect and the inclusion of the alias in the
entity to protect, preserve, rehabilitate or restore the environment; (c) petition does not cure said defect. The reason for the rule is that the
Directing the respondent public official, government agency, private ordinary reader only glances at the caption in a special proceeding
person or entity to monitor strict compliance with the decision and or- fleetingly and only if the caption strikes him does he proceed to read
ders of the court; (d) Directing the respondent public official, govern- the body of the petition. Hence, he will probably not notice the other
ment agency, or private person or entity to make periodic reports on names or aliases of the petitioner (Gil Go v. Republic, 77 SCRA 65
the execution of the final judgment; and (e) Such other reliefs which [1977].)
relate to the right of the people to a balanced and healthful ecology or
to the protection, preservation, rehabilitation or restoration of the envi-
ronment, except the award of damages to individual petitioner (Sec. CANCELLATION/CORRECTION OF ENTRIES
15, Rule 7, Ibid).

The rules also provide interim reliefs in favor of the petitioner upon Mary Jane met Shiela May at the recruitment agency where they
filing a verified motion, namely: (i) Ocular inspection; or (ii) Production both applied for overseas employment. They exchanged pleas-
or inspection of documents or things (Sec, 12, Rule 7, A.M. No. 09-6-8- antries, including details of their personal circumstances. Fortu-
SC also known as Rules of Procedure for Environmental Cases). nately, Mary Jane was deployed to work as front desk receptionist
at a hotel in Abu Dhabi where she met Sultan Ahmed who pro-
Additionally, the petition for Writ of Kalikasan is more advantageous posed marriage, to which she readily accepted. Unfortunately for
compared to a complaint for damages before the RTC because it may Shiela May, she was not deployed to work abroad, and this made
be filed directly with the Supreme Court or with any of the stations of her envious of Mary Jane. Mary Jane returned to the Philippines
the Court of Appeals. to prepare for her wedding. She secured from the National Sta-
tistics Office (NSO) a Certificate of No Marriage. It turned out from
Unlike a complaint for damages before the RTC which can only be filed the NSO records that Mary Jane had previously contracted mar-
by a real-party-in-interest as defined in Rule 3(2) of the Rules of Court, riage with John Starr, a British citizen, which she never did. The
the rule on locus standing is relaxed in petitions for Writ of Kalikasan purported marriage between Mary Jane and John Starr contained
which allows the petition to be filed by parties as citizen suit. all the required pertinent details on Mary Jane. Mary Jane later on
learned that Shiela May is the best friend of John Starr. As a
In addition, any of the following may file a petition for writ of kalikasan: lawyer, Mary Jane seeks your advice on her predicament. What
(a) natural or juridical person; (b) entity authorized by law; or (c) POs, legal remedy will you avail to enable Mary Jane to contract mar-
NGOs or any public interest group accredited by or registered with any riage with Sultan Ahmed? (4%) - ‘14 Q12
government agency on behalf of persons whose constitutional right to
a balanced and healthful ecology is violated (Sec. 1, Rule 7, A.M. No. Answer: I will file a petition for correction or cancellation of entry under
09-6-8-SC 7). Rule 108 of the Rules of Court. A petition for correction or cancellation
of entry under Rule 108 may be filed by Mary Jane because what she

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Bar Ques)ons and Answers
sought to be corrected is only the record of such marriage in the Civil e. A sincere desire to adopt a Filipino name to erase
Registry Office in order to reflect the truth as set forth by the evidence signs of former alienage, all in good faith and without
of and not the nullification of marriage as there was no marriage on the prejudicing anybody; and
first place (Republic of the Philippines v. Merlonda L. Olaybar, G.R. No.
189538, February 10, 2014). f. When the surname causes any embarrassment and
there is no showing that the desired change of name
I will file for a petition for declaration of nullity of marriage. A petition for was for a fraudulent purpose or that the change of
correction or cancellation of an entry in the civil registry cannot substi- name would prejudice public interest (Republic v.
tute an action to invalidate a marriage. A direct action for declaration of Court of Appeals, G.R. No. 97906, May 21, 1992).
nullity or annulment of marriage is necessary to prevent the circumven-
tion of the jurisdiction of the Family Courts (R.A.8369), and the sub- Moreover, the touchstone for the grant of a change of
stantive and procedural safeguards of marriage under the Family name is that there be “proper and reasonable cause” for
Code, A.M. No. 02-11-10-SC and other related laws. which the change is sought. To justify a request for
change of name, petitioner must show not only some
proper or compelling reason therefore but also that he will
Accordingly, a trial court has no jurisdiction to nullify marriages in a
be prejudiced by the use of his true and official name
special proceeding for cancellation or correction of entry under Rule
interest (Republic v. Court of Appeals, G.R. No. 97906,
108 of the Rules of Court. The validity of marriage can only be ques-
May 21, 1992).
tioned in a direct action to nullify the same (Minoru Fujiki v. Maria Paz
Galela Marinay, G.R. No. 196049, June 26, 2013).
Besides. The State has an interest in the name of a per-
son and that names cannot be changed to suit merely the
convenience of the bearers (In the Matter of the Adoption
A was adopted by B and C when A was only a toddler. Later on in
of Stephanie Nathy Astorga Garcia, G.R. No. 148311,
life, A filed with the Regional Trial Court (RTC) a petition for
March 31, 2005; In Re: Petition for Change of Name and/
change of name under Rule 103 of the Rules of Court, as he want-
or Correction/Cancellation of Entry in Civil Registry of
ed to reassume the surname of his natural parents because the
Julian Lin Carulasa Wang, G.R. No.159966, March 30,
surname of his adoptive parents sounded offensive and was seri-
2005).
ously affecting his business and social life. The adoptive parents
gave their consent to the petition for change of name. May A file a
petition for change of name? If the RTC grants the petition for In the case at bar, the only reason advanced by A for the
change of name, what, if any, will be the effect on the respective change of his surname is that it is offensive and it serious-
relations of A with his adoptive parents and with his natural par- ly affects his business and social life. Accordingly, A’s
ents? Discuss. (4%) - ‘14 Q28 reasons are not considered proper and compelling that
would justify the filing of his petition for change of name.
Answer: A should be allowed to change his surname because the rea-
sons he invoked are proper and reasonable under the circumstances.
Besides, his adaptive parents have agreed to the change of his sur-
name. 2. Assuming that the court allows A to reassume the use of the
surname of hi biological parents, there will be no effect on
In a case with similar facts, People v. Wong (G.R. No. 97906, May 29, the respective relations of A with his adoptive parents and
1992), the Supreme Court allowed Maximo Wong to change his name natural parents.
to Maximo Alcala Jr. Maximo was the natural child of Spouses Maximo
Until and unless the adoption is rescinded by the court, the
Alcala Sr. and Segundina Alcala. When he was adopted by Spouses
paternity and filiation which exist by reason of adoption sub-
Hoong Wong and Concepcion Ty, his name was changed to Maximo
sists. Ergo, the grant of A’s Petition for change of name will
Wong. Upon reaching the age of 22, he filed a petition to change his
have no effect on the respective relations of A with his adop-
name to Maximo Alcala, Jr. It was averred that his use of the surname
tive parents and natural parents.
Wong embarrassed and isolated him from his relatives and friends, as
the name suggested Chinese ancestry when in truth an in fact, he is a
Muslim Filipino residing in a Muslim community, and he wants to use After all, the change of name does not define or effect
erase any implication whatsoever of alien nationality; that he is being change in one’s existing family relations or in the rights and
ridiculed for a Chinese surname, thus hampering his business and duties flowing therefrom. It does not alter one’s legal capaci-
social life; and that his adoptive mother does not oppose his desire to ty, civil status or citizenships; what is altered is only the
revert to his former surname. name (Republic v. Court of Appeals, G.R. No. 97906, May
21, 1992).
Undoubtedly, A should be allowed to file a petition for change of his
surname. B files a petition for cancellation of the birth certificate of her
daughter R on the ground of the falsified material entries therein
made by B’s husband as the informant. The RTC sets the case for
1. No, A cannot file for a petition for change of name because
hearing and directs the publication of the order once a week for
the reasons he invoked do not fall among the grounds that
three consecutive weeks in a newspaper of general circulation.
would justify the filing of a petition for change of name, to wit:
Summons was served on the Civil Registrar but there was no
a. When the name is ridiculous, dishonorable or ex- appearance during the hearing. R filed a petition for annulment of
tremely difficult to write or pronounce; judgment before the CA, saying that she was not notified of the
petition and hence, the decision was issued in violation of due
b. When the change results as a legal consequence, as process. B opposed saying that the publication of the court was
in legitimation; sufficient compliance with due process. Rule. ’07 – Q7a

c. When the change will avoid confusion; R’s petition for annulment of judgment before the Court of Ap-
peals should be granted. Although there was publication of the court
d. When one has continuously used and been known order acting on the petition to cancel the birth certificate, reasonable
since childhood by a Filipino name, and was un- notice still has to be served on R as she has an interest affected by the
aware of alien parentage; cancellation (Sections 3 and 4, Rule 108, Rules of Court). She is an
indispensable party (Republic v. Benemerito, 425 SCRA 488 [2004]),
and notice has to be served on her, not for the purpose of vesting the

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Bar Ques)ons and Answers
court with jurisdiction, but to comply with the requirements of fair play for recognition of a foreign judgment. I will advise Hades, nonetheless,
and due process (Ceruila v. Delantar, 477 SCRA 13 [2005].) to secure a certificate of legal capacity to marry in the Philippines if he
desires to marry Hestia in order to avoid prosecution for bigamy.

Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese,


b.) In what court should you file the petition? (1%)
who is married to another woman living in China. Her birth certifi-
cate indicates that Helen is the legitimate child of Tony and Eliza
and that she is a Chinese citizen. Helen wants her birth certificate Suggested Answer:
corrected by changing her filiation from "legitimate" to "illegiti-
mate" and her citizenship from "Chinese" to "Filipino" because
her parents were not married. What petition should Helen file and 1. Petition for recognition of foreign divorce decree should be
what procedural requirements must be observed? '05 – Q11 filed in the Regional Trial Court of the place of residence of
any of the parties, at the option of the petitioner; or
A petition to change the record of birth by changing the filiation 2. Petition for cancellation or correction of entries under Rule
from “legitimate” to “illegitimate” and petitioner’s citizenship from “Chi- 108 should be filed in the Regional Trial Court of Makati City,
nese” to “Filipino” because her parents were not married, does not where the corresponding Local Civil Registry is located.
involve a simple summary correction of her certificate of birth, which
would otherwise be done under the authority of R.A. No. 9048. A peti- c.) What is the essential requisite that you must comply with for
tion has to be filed in an adversarial proceeding under Rule 108 of the the purpose of establishing jurisdictional facts before the court
Rules of Court, which has now been interpreted to be adversarial in can hear the petition? (3%)
nature (Republic v. Valencia, 141 SCRA 462 [1986]; Gupit, Jr., Rules of
Procedure in Family Law Annotated, 2005 ed., p. 407). Procedural Suggested Answer:
requirements include: (a) filing a verified petition; (b) naming as parties
all persons who have or claim any interest which would be affected; (c)
issuance of an order fixing the time and place of hearing; (d) giving 1. In a petition for recognition of foreign judgment, the petitioner
reasonable notice to the parties named in the petition; and (e) publica- only needs to prove the foreign judgment as a fact under the
tion of the order once a week for three consecutive weeks in a news- Rules of Court. To be more specific, a copy of the foreign
paper of general circulation (Rule 108, Rules of Court; Co v. Civil Reg- judgment may be admitted in evidence and proven as a fact
istrar of Manila, 423 SCRA 420 [2004].) under Sections 24 and 25 of Rule 132 in relation to Section
48(b) Rule 39 of the Rules of Court (Fujiki v. Marinay G.R.
No. 196049, June 26, 2013).
RECOGNITION OF FOREIGN JUDGMENT
2. Before the court can hear the petition under Rule 108 of the
Rules of Court, Hades must satisfy the following procedural
Hades, an American citizen, through a dating website, got ac- requirements; (a) filing a verified petition; (b) naming as par-
quainted with Persephone, a Filipina. Hades came to the Philip- ties all persons who have or claim any interest which would
pines and proceeded to Baguio City where Persephone resides. be affected; (c) inssuance of an order fixing the time and
Hades and Persephone contracted marriage, solemnized by the place of hearing; (d) giving reasonable notice to the parties
Metropolitan Trial Court judge of Makati City. After the wedding, named in the petition; and (e) publication of the order once a
Hades flew back to California, United States of America, to wind week for three consecutive weeks in a newspaper of general
up his business affairs. On his return to the Philippines, Hades circulation (Rule 108, Rules of Court; Co v. Civil Registrar of
discovered that Persephone had an illicit affair with Phanes. Im- Manila, 423 SCRA 420 [2004]; Corpuz v. Tirol, G.R. No.
mediately, Hades returned to the United States and was able to 186571, August 11, 2010).
obtain a valid divorce decree from the Superior Court of the
County of San Mateo, California, a court of competent jurisdiction
against Persephone. Hades desires to marry Hestia, also a Filip- APPEALS
ina, whom he met at Baccus Grill in Pasay City. - ‘15 Q9(A)(B)
In settlement proceedings, appeal may be taken from an: - ‘12 Q1
a.) As Hades' lawyer, what petition should you file in order that e) order appointing a special administrator;
your client can avoid prosecution for bigamy if he desires to mar- f) order appointing an administrator;
ry Hestia? (2%) g) order of an administrator to recover property of the
estate;
h) order to include or exclude property from the estate.
Suggested Answer:
SUGGESTED ANSWER
As Hades’ lawyer, I would file a petition for recognition of a foreign b) Order appointing an administrator
divorce decree, or at least file a special proceeding for cancellation or An order appointing a regular administrator is
correction of entries in the civil registry under Rule 108 of the Rules of appealable (See Sy Hong Eng vs. Sy Liac Suy, 8 Phil.,
Court and include therein a prayer for recognition of the aforemen- 594). An order of a CFI appointing an administrator of a
tioned divorce decree. deceased person’s estate has been held to be a final
determination of the rights of the parties thereunder,
and is appealable. (Intestate Estate of Luis Morales et.
In Corpuz v. Sto. Tomas (G.R. No. 186571, August 11, 2010), the High al. vs. Sicat, L-5236, May 5, 1953). On the other hand,
Court declared that “[t]he recognition of the foreign divorce decree may an order appointing a special administration is interlocu-
be made in a Rule 108 proceeding itself, as the object of special pro- tory in nature and a mere incident in the judicial pro-
ceedings (such as that in Rule 108 of the Rules of Court) is precisely to ceedings, hence not appealable. (Rule 103, Sec. 1,
establish the status or right of a party or a particular fact” (Fujiki v. Riles of Court) (Samson vs. Samson, 102 Phil. 735;
Marinay G.R. No. 196049, June 26, 2013). Tan vs. Gedorio, Jr., G.R. No. 166520, March 14,
2008).
Alternative Answer:

On July 15, 2009, Atty. Manananggol was served copies of nu-


As Hades’ counsel, I will not file any petition because my client is an merous unfavorable judgments and orders. On July 29, 2009, he
American citizen, and only Filipino citizens are required to file petition filed motions for reconsideration which were denied. He received

52
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Bar Ques)ons and Answers
the notices of denial of the motions for reconsideration on Octo- CRIMINAL PROCEDURE
ber 2, 2009, a Friday. He immediately informed his clients who, in
turn, uniformly instructed him to appeal. How, when and where
should he pursue the appropriate remedy for each of the follow- IN GENERAL
ing: - ‘09 Q8abcde
1. Judgment of a MTC pursuant to its delegated jurisdic-
tion dismissing his client’s application for land registra- McJolly is a trouble-maker of sorts, always getting into brushes
tion; with the law. In one incident, he drove his Humvee recklessly,
hitting a pedicab which sent its driver and passengers in different
By notice of appeal, within 15 days from notice of judgment or directions. The pedicab driver died, while two (2) of the passen-
final order appealed from, to the Court of Appeals. gers suffered slight physical injuries. Two (2) informations were
then filed against McJolly. One, for Reckless Imprudence Result-
2. Judgment of the RTC denying his client’s petition for a ing in Homicide and Damage to Property, and two, for Reckless
Writ of Habeas Data; Imprudence Resulting in Slight Physical Injuries. The latter case
was scheduled for arraignment earlier, on which occasion McJolly
By verified petition for review on certiorari under Rule 45, with the pleaded guilty. He was meted out the penalty of public censure. A
modification that appellant may raise questions of fact or law or both, month later, the case for reckless imprudence resulting in homi-
within five (5) working days from date of notice of the judgment or final cide was also set for arraignment. - ‘14 Q2
order to the Supreme Court (Section 19, A.M. No. 08-1-16-SC).
Instead of pleading, McJolly interposed the defense of double
3. Order of a Family Court denying his client’s petition for jeopardy. Resolve. (4%)
Habeas Corpus in relation to custody of a minor child;
Answer: McJolly correctly interposed the defense of double jeopardy.
By notice of appeal, within forty-eight (48) hours from notice of the Reckless Imprudence under Article 365 is a simple quassi-offense by
judgment or final order to the Court of Appeals (Section 14, R.A. No. itself and not merely a means to commit other crimes, such that con-
8369 in relation to Section 3, Rule 41, Rules of Court). viction or acquittal of such quasi-offense already bars subsequent
prosecution for the same quasi-offense, regardless of its various result-
4. Order of the RTC denying his client’s Petition for Certio- ing acts (Ivler v. Hon. Modesto-San Pedro, G.R. No. 172716, No-
rari questioning the MeTC’s denial of a motion to sus- vember 17, 2010).
pend criminal proceedings;
Hence, the conviction of McJolly for Reckless Imprudence Resulting to
By notice of appeal, within fifteen (15) days from notice of the final Slight Physical Injuries bars his subsequent prosecution for Reckless
Order, to the Court of Appeals (Magestrado v. People, 527 SCRA 125 Imprudence Resulting to Homicide and Damage to Property.
[2007].)

5. Judgment of the 1st Division of the CTA affirming the While window-shopping at the mall on August 4, 2008, Dante lost
RTC decision convicting his client for violation of the his organizer including his credit card and billing statement. Two
NIRC. ’09 – Q8 days later, upon reporting the matter to the credit card company,
he learned that a one-way ticket was purchased online using his
By petition for review filed with the Court of Tax Appeals (CTA) en credit card for a flight to Milan in mid-August 2008. Upon exten-
banc, within thirty (30) days from receipt of the decision or ruling in sive inquiry with the airline company, Dante discovered that the
question (Section 9(b), Rule 9, Revised Rules of the CTA). plane ticket was under the name of one Dina Meril. Dante ap-
proaches you for legal advice. - ‘10 Q18
1. What is the proper procedure to prevent Dina from leav-
RECEIVER ing the Philippines?

Which of the following is NOT within the power of a judicial re- I would advise:
ceiver to perform? - ‘11 Q7 a. The filing of an appropriate criminal action cognizable by the
(A) Bring an action in his name. RTC against Dina and the filing in said criminal action a
Motion for the issuance of a Hold Departure Order;
(B) Compromise a claim. b. Thereafter, a written request with the Commissioner of the
Bureau of Immigration for a Watch List Order pending the
(C) Divide the residual money in his hands among the per-
issuance of the Hold Departure Order should be filed;
sons legally entitled to the same.
c. Then, the airline should be requested to cancel the ticket
(D) Invest the funds in his hands without court approval. issued to Dina.

2. Suppose an Information is filed against Dina on August


Which of the following is in accord with the applicable rules on 12, 2008 and she is immediately arrested. What pieces of
receivership? - ‘11 Q11 electronic evidence will Dante have to secure to prove
the fraudulent transaction?
(A) The court may appoint the plaintiff as receiver of the
property in litigation over the defendant’s objection. He will have to present: (a) his report to the bank that he lost his
(B) A receiver may be appointed after judgment if the judg- credit card; (b) that the ticket purchased after the report of the loss;
ment obligor refuses to apply his property to satisfy the and (c) the purchase of the one-way ticket.
judgment. Dante should being an original (or an equivalent copy) print-out
of: 1) the online ticket purchase using his credit card; 2) the phone call
(C) The trial court cannot appoint a receiver when the case is log to show that he already alerted the credit company of his loss; and
on appeal. 3) his credit card billing statement bearing the online ticket transaction.
(D) The filing of bond on appointment of a receiver is mainly
optional. SPO1 CNC filed with the MeTC in QC (MeTC-QC) a sworn written
statement duly subscribed by him, charging RGR (an actual resi-
dent of Cebu City) with the offense of slight physical injuries al-
legedly inflicted on SPS (an actual resident of QC). The Judge of
the branch to which the case was raffled thereupon issued an
order declaring that the case shall be governed by the Rule on

53
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Bar Ques)ons and Answers
Summary Procedure in criminal cases. Soon thereafter, the Judge The proper venue is in Pasig City where the theft of the car was
ordered the dismissal of the case for the reason that it was not committed, not in Obando where it was cannibalized. Theft is not a
commenced by information, as required by said Rule. Sometime continuing offense (People v Mercado, 65 Phil 665 [1938].)
later, based on the same facts giving rise to the slight physical
injuries case, the City Prosecutor filed with the same MeTC-QC an 2. The theft by X, a bill collector of ABC Company, with
information for attempted homicide against the same RGR. In due main offices in Makati City, of his collections from cus-
time, before arraignment, RGR moved to quash the information tomers in Tagaytay City. In the contract of employment,
on the ground of double jeopardy and after due hearing, the X was detailed to the Calamba branch office, Laguna,
Judge granted his motion. - ‘04 Q7 where he was to turn in his collections.

1. Was the dismissal of the complaint for slight physical If the crime charged is theft, the venue is in Calamba where he
injuries proper? did not turn in his collections.
If the crime of X is estafa, the essential ingredients of the offense
YES, the dismissal of the complaint for slight physical injuries is took place in Tagaytay City where he received his collections, in
proper because in Metropolitan Manila and in chartered cities, the case Calamba where he should have turned in his collections, and in Makati
has to be commenced only by information (Section 11, Revised Rule City where the ABC Company was based. The information may there-
on Summary Procedure). fore be filed in Tagaytay City or Calamba or Makati which have concur-
rent territorial jurisdiction (Catingub v. Court of Appeals, 121 SCRA
2. Was the grant of the motion to quash the attempted 106) [1983].)
homicide information correct?
NO, the grant of the motion to quash the attempted homicide 3. The malversation of public funds by a Philippine consul
information on the ground of double jeopardy was not correct, because detailed in the Philippine Embassy in London.
there was no valid prosecution for slight physical injuries.
The proper court is the Sandiganbayan which has jurisdiction over
Governor Pedro Mario of Tarlac was charged with indirect bribery crimes committed by a consul or higher official in the diplomatic service
before the Sandiganbayan for accepting a car in exchange of the (Section 4(c). PD 1606, as amended by R.A. No. 7975). The Sandi-
award of a series of contracts for medical supplies. The Sandi- ganbayan is a national court (Nuñez v. Sandiganbayan, 111 SCRA 433
ganbayan, after going over the information, found the same to be [1982].) It has only one venue at present, which is in Metro Manila,
valid and ordered the suspension of Mario. The latter contested until RA. No. 7975, providing for two other branches in Cebu and in
the suspension claiming that under the law (Sec. 13 of R.A. No. Cagayan de Oro, is implemented.
3019) his suspension is not automatic upon the filing of the in-
formation and his suspension under Sec. 13, R.A. No. 3019 is in
conflict with Sec. 5 of the Decentralization Act of 1967 (R.A. No. JURISDICTION
5185). The Sandiganbayan overruled Mario’s contention stating
that Mario’s suspension under the circumstances is mandatory. Is
In complex crimes, how is the jurisdiction of a court determined?
the court’s ruling correct? Why? '01 – Q19
'03 – Q13
YES. Mario’s suspension is mandatory, although not automatic,
In a complex crime, jurisdiction over the whole complex crime
(Section 13 of R.A. No. 3019 in relation to Section 5 of the Decentral-
must be lodged with the trial court having jurisdiction to impose the
ization Act of 1967 (R.A. No. 5185). It is mandatory after the determi-
maximum and most serious penalty imposable on an offense forming
nation of the validity of the information in a pre-suspension hearing
part of the complex crime (Cuyos v. Garcia, 160 SCRA 302 [1988].)
(Segovia v. Sandiganbayan, 288 SCRA 328 [1988].) The purpose of
suspension is to prevent the accused public officer from frustrating or
Mario, a resident of QC, sued for libel the editor, publisher and
hampering his prosecution by intimidating or influencing witnesses or
columnist of Ang Bagong Pilipino, a newspaper of general circu-
tampering with evidence or from committing further acts of malfea-
lation, with principal office in Binondo, Manila. He claimed that
sance while in office.
because his reputation had been badly besmirched by the offen-
sive article, he suffered damages estimated at P1 million. The
Will injunction lie to restrain the commencement of a criminal
case was filed before the RTC of QC. The accused moved to
action? '99 – Q12c
quash the information on the ground that the RTC has no jurisdic-
tion to try the case considering that under Section 2 of R.A. No.
As a general rule, injunction will not lie to restrain a criminal pros-
7691, MTCs exercise exclusive original jurisdiction over all of-
ecution except:
fenses punishable with imprisonment not exceeding six (6) years
1. To afford adequate protection to the constitutional rights of
of which libel is one; irrespective of the amount of fine, accessory
the accused;
or other penalties or civil liability arising from the offense. The
2. When necessary for the orderly administration of justice or to
accused also claimed that the offensive article was printed and
avoid oppression or multiplicity of actions;
first published in Manila so that the case should have been filed
3. When double jeopardy is clearly apparent;
with the MTC of Manila. Decide. ’95 – Q6
4. Where the charges are manifestly false and motivated by the
lust for vengeance;
The motion to quash should be granted on two grounds, namely:
5. Where there is clearly no prima facie case against the ac-
1. Since the libelous article was printed and first published in
cused and a motion to quash on that ground has been de-
Manila, the Regional Trial Court of Quezon City has no juris-
nied (See cases cited in Roberts, Jr., v. Court of Appeals,
diction over the offense (Article 360, RPC, as amended;
254 SCRA 307 [1996] and Brocka v. Enrile, 192 SCRA 183
Agbayani v. Sayo, 89 SCRA 699 [1972]; Soriano v. Interme-
[1990].)
diate Appellate Court, 167 SCRA 222 [1988];
2. Since the penalty provided by law for libel does not exceed
six (6) years, the Metropolitan Trial Court of Manila has ex-
VENUE
clusive jurisdiction.

Where is the proper venue for the filing of an Information in the


following cases? - ‘97 Q18 RULE 110 - PROSECUTION OF OFFENSES

1. The theft of a car in Pasig City which was brought to


Obando, Bulacan, where it was cannibalized. Pedrito and Tomas, Mayor and Treasurer, respectively of the Mu-
nicipality of San Miguel, Leyte are charged before the Sandigan-

54
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Bar Ques)ons and Answers
bayan for violation of Section 3(e), R.A. No. 3019 (Anti-Graft and a motion to ask for leave of court with notice to the offended party
Corrupt Practices Act). The Information alleges, among others, (Section 14 of Rule 110, Revised Rules of Criminal Procedure). The
that the two conspired in the purchase of several units of com- new rule is for the protection of the interest of the offended party and to
puters through personal canvass instead of a public bidding, prevent possible abuse by the prosecution.
causing undue injury to the municipality. Before arraignment, the
accused moved for reinvestigation of the charge, which the court Your friend YY, an orphan, 16 years old, seeks your legal advice.
granted. After reinvestigation, the Office of the Special Prosecutor She tells you that ZZ, her uncle, subjected her to acts of lascivi-
filed an amended Information duly signed and approved by the ousness; that when she told her grandparents, they told her to
Special Prosecutor, alleging the same delictual facts, but with an just keep quiet and not to file charges against ZZ, their son. Feel-
additional allegation that the accused gave unwarranted benefits ing very much aggrieved, she asks you how her uncle ZZ can be
to SB Enterprises owned by Samuel. Samuel was also indicted made to answer for his crime. - ‘00 - Q8
under the amended Information. Before Samuel was arraigned, he
moved to quash the amended Information on the ground that the 1. What would your advice be?
officer who filed the same had no authority to do so. Resolve the
motion to quash. ’09 – Q4 I would advise the minor, an orphan of 16 years of age, to file the
complaint herself independently of her grandparents, because she is
The motion to quash filed by Samuel should be granted. not incompetent or incapable to doing so upon grounds other than her
There is no showing that the special prosecutor was duly autho- minority (Section 5, Rule 110, Rules of Criminal Procedure).
rized or deputized to prosecute Samuel. Under R.A. No. 6770, also
known as the Ombudsman Act of 1989, the Special Prosecutor has the 2. Suppose the crime committed against YY by her uncle
power and authority, under the supervision and control of the Om- ZZ is rape, witnessed by your mutual friend XX. But this
budsman, to conduct a preliminary investigation and prosecute criminal time, YY was prevailed upon by her grandparents not to
cases before the Sandiganbayan and perform other duties assigned to file charges. XX asks you if she can initiate the com-
him by the Ombudsman (Calingin v. Desierto, 529 SCRA 720 [2007].) plaint against ZZ. Would your answer be the same?
Absent a clear delegation of authority from the Ombudsman to the
Special Prosecutor to file the information, the latter would have no Since rape is now classified as a Crime against Persons under
authority to file the same. The Special Prosecutor cannot be consid- the Anti-Rape Law of 1997 (R.A. No. 8353), I would advise XX to initi-
ered the alter ego of the Ombudsman as the doctrine of qualified politi- ate the complaint against ZZ.
cal agency does not apply to the Office of the Ombudsman. In fact, the
powers of the Office of the Special Prosecutor under the law may be Distinguish a Complaint from Information. '99 – Q12a
exercised only under the supervision and control of the Ombudsman
(Perez v. Sandiganbayan, 503 SCRA 252 [2006].) In criminal procedure, a complaint is a sworn written statement
charging a person with an offense, subscribed by the offended party,
D and E were charged with homicide in one information. Before any peace officer or other peace officer charged with the enforcement
they could be arraigned, the prosecution moved to amend the of the law violated (Section 3, Rule 110, 2000 Rules of Criminal Proce-
information to exclude E therefrom. - ‘02 Q9 dure); while an information is an accusation in writing charging a per-
son with an offense subscribed by the prosecutor and filed with the
1. Can the court grant the motion to amend? court (Section 4, Id).

YES, provided notice is given to the offended party and the court A was accused of homicide for the killing of B. During the trial,
states its reasons for granting the same (Section 14, Rule 110). the public prosecutor received a copy of the marriage certificate
of A and B. -
2. On the facts above stated, suppose the prosecution,
instead of filing a motion to amend, moved to withdraw 1. Can the public prosecutor move for the amendment of
the information altogether and its motion was granted. the information to charge A with the crime of parricide?
Can the prosecution re-file the information although this ‘97 - Q9a
time for murder?
NO. The Information cannot be amended to change the offense
YES, the prosecution can re-file the information for murder in charged from homicide to parricide. Firstly, the marriage is not a super-
substitution of the information for homicide because no double jeop- vening fact arising from the act constituting the charge of homicide
ardy has as yet attached (Galvez v. Court of Appeals, 237 SCRA 685 (Section 7(a) of Rule 117). Secondly, after plea, amendments may be
[1994].) done only as to matters of form. The amendment is substantial be-
cause it will change the nature of the offense (Section 14 of Rule 110;
The prosecution filed an information against Jose for slight phys- Dionaldo v. Dacuycuy, 108 SCRA 736 [1981].)
ical injuries alleging the acts constituting the offense but without
anymore alleging that it was committed after Jose’s unlawful en- 2. Suppose instead of moving for the amendment of the
try in the complainant’s abode. Was the information correctly information, the public prosecutor presented in evi-
prepared by the prosecution? '01 – Q7 dence the marriage certificate without objection on the
part of the defense, could A be convicted of parricide?
NO. The aggravating circumstance of unlawful entry in the com- ‘97 - Q9b
plainant’s abode has to be specified in the information; otherwise, it
cannot be considered as aggravating (Section 8 of Rule 110, Revised NO. A can be convicted only of homicide not of parricide which is
Rules of Criminal Procedure). a graver offense. The accused has the constitutional rights of due
process and to be informed of the nature and the cause of the accusa-
Amando was charged with frustrated homicide. Before he entered tion against him (Sections 1, 14 (1) and (2), Article III, 1987 Constitu-
his plea and upon the advice of his counsel, he manifested his tion).
willingness to admit having committed the offense of serious
physical injuries. The prosecution then filed an amended informa-
tion for serious physical injuries against Amando. What steps or
Which of the following is a correct statement of the rule on
action should the prosecution take so that the amended informa-
amendment of the information in a criminal proceeding? - ‘11 - Q5
tion against Amando which downgrades the nature of the offense
could be validly made? '01 – Q8 (A) An amendment that downgrades the offense requires
leave of court even before the accused pleads.
In order that the amended information which downgrades the
nature of the offense could be validly made, the prosecution should file

55
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(B) Substantial amendments are allowed with leave of court the said proceeding, the Probate Court has the power to
before the accused pleads. determine questions as to who are the heirs of the decedent
(Reyes v. Ysip, et al., G.R. No. L-7516, May 12, 1955, 97
(C) Only formal amendments are permissible before the Phil. 11; Jimenez v. IAC, G.R. No. 75773, April 17, 1990, 184
accused pleads. SCRA 367).
(D) After the plea, a formal amendment may be made with- Incidentally, the heirs can also submit the baby boy for DNA
out leave of court. testing (AM. No. 6-11 5-SC, Rule on DNA Evidence), or even
for blood-testing in order to determine paternity and filiation.
Which of the following is a correct statement of the rule on In Jao v. Court of Appeals (G.R. No. L-49162, July 28, 1987),
amendment of the information in a criminal proceeding? - ‘11 - Q5 the Supreme Court held that blood grouping tests are con-
clusive as to non-paternity, although inconclusive as to pa-
(A) An amendment that downgrades the offense requires ternity. In other words, the fact that the blood type of the child
leave of court even before the accused pleads. is a possible product of the mother and the alleged father
(B) Substantial amendments are allowed with leave of court does not conclusively prove that the child is born by such
before the accused pleads. parents; but, if the blood type of the child is not the possible
blood type when the bold of the mother and the alleged fa-
(C) Only formal amendments are permissible before the ther are cross matched, then the child cannot possibly be
accused pleads. that of the alleged father.
(D) After the plea, a formal amendment may be made with- ALTERNATIVE ANSWER: No. There is no showing in the
out leave of court. problem of any ground that would serve as basis for an ac-
The city prosecutor charged Ben with serious physical injuries for tion to impugn the paternity of the baby boy.
stabbing Terence. He was tried and convicted as charged. A few In Concepcion v. Almonte (G.R. No. 123450, August 31,
days later, Terence died due to severe infection of his stab 2005), the Supreme Court held that the law requires that
wounds. Can the prosecution file another information against Ben every reasonable presumption be made in favor of legitima-
for homicide? ‘ 11 - Q31 cy. The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles
(A) Yes, since Terence’s death shows irregularity in the filing of natural justice and the supposed virtue of the mother. It is
of the earlier charge against him. grounded on the policy to protect the innocent offspring from
the odium of illegitimacy (Cabarania v. Court of Appeals,
(B) No, double jeopardy is present since Ben had already
G.R. No. 124814, October 21, 2004). The presumption of
been convicted of the first offense.
legitimacy proceeds from the sexual union in marriage, par-
(C) No, there is double jeopardy since serious physical in- ticularly during the period of conception. To overthrow this
juries is necessarily included in the charge of homicide. presumption on the basis of Article 166 (1)(b) of the Family
Code, it must be shown beyond reasonable doubt that there
(D) Yes, since supervening event altered the kind of crime was no access that could have enabled the husband to fa-
the accused committed. ther the child. Sexual intercourse is to be presumed where
personal access is not disproved, unless such presumption
is rebutted by evidence to the contrary.
Yvonne, a young and lonely OFW, had an intimate relationship
abroad with a friend, Percy. Although Yvonne comes home to After all, a child born to a husband and wife during a valid
Manila every six months, her foreign posting still left her husband marriage is presumed legitimate. Thus, the child’s legitimacy
Dario lonely so that he also engaged in his own extramarital activ- may be impugned only under the strict standards provided
ities. In one particularly exhilarating session with his girlfriend, by law (Herrera v. Alba, G.R. No. 148220, June 15, 2005).
Dario died. Within 180 days from Dario’s death, Yvonne gives birth Undoubtedly, it is not feasible to impugn the paternity of the
in Manila to a baby boy. Irate relatives of Dario contemplate crimi- baby boy who is presumed to be a legitimate child.
nally charging Yvonne for adultery and they hire your law firm to
handle the case. While in his Nissan Patrol and hurrying home to Quezon City from
his work in Makati, Gary figured in a vehicular mishap along that
II(A) Is the contemplated criminal action a viable option portion of EDSA within the City of Mandaluyong. He was bumped
to bring? (3%) ‘13 - Q2a from behind by a Ford Expedition SUV driven by Horace who was
SUGGESTED ANSWER: No, Section 5 of Rule 110 provides observed using his cellular phone at the time of the collision.
that the crimes of adultery and concubinage shall not be Both vehicles - more than 5 years old – no longer carried insur-
prosecuted except upon complaint filed by the offended ance other than the compulsory third party liability insurance.
spouse. Since the offended party is already dead, then the Gary suffered physical injuries while his Nissan Patrol sustained
criminal action for adultery as contemplated by offended damage in excess of Php500,000.
party’s relatives is no longer viable. III(A) As counsel for Gary, describe the process you
II(B) Is a civil action to impugn the paternity of the baby need to undertake starting from the point of the incident
boy feasible, and if so, in what proceeding may such if Gary would proceed criminally against Horace, and
issue be determined? (5%) ‘13 - Q2b identify the court with jurisdiction over the case. (3%)
‘13 - Q3a
SUGGESTED ANSWER: Yes, under Article 171 of the Fami-
ly Code, the heirs of the husband may impugn the filiation of SUGGESTED ANSWER: As counsel for Gary, I will first have
the child in the following cases: a) if the husband should die him medically examined in order to ascertain the gravity and
before the expiration of the period fixed for bringing his ac- extent of the injuries he sustained from the accident. Sec-
tion; b) if he should die after the filing of the complaint, with- ond, I will secure a police report relative to the mishap. Third,
out having desisted therefrom; or c) if the child was born I will ask him to execute his Sinumpaang Salaysay. There-
after the death of the husband. after, I will use his Sinumpaang Salaysay or prepare a Com-
plaint-Affidavit and file the same in the Office of the City
Since Dario is already dead when the baby boy was born, Prosecutor and later on to the appropriate MTC of Man-
his heirs have the right to impugn the filiation of the child. daluyong City for the crime of Reckless Imprudence resulting
Consequently, the heirs may impugn the same in a special to physical injuries and damage to property (Section 1 and
proceeding for settlement of the estate of the decedent. In Section 15, Rule 110, Rules of Criminal Procedure).

56
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Bar Ques)ons and Answers
III(B) If Gary chooses to file an independent civil action by the Sandiganbayan shall be tried before it regardless
for damages, explain briefly this type of action: its legal of the place of commission of the offense. In addition,
basis; the different approaches in pursuing this type of the court martial is not a criminal court.
action; the evidence you would need; and types of de-
fenses you could expect. (5%) ‘13 - Q3b After the DOJ Secretary granted accused's Petition for Review,
the prosecution filed a motion to withdraw the Information before
SUGGESTED ANSWER: An independent civil action is an the trial court. The judge therein denied the same. The trial prose-
action which is entirely different distinct and separate from cutor manifested before the judge that he can no longer prose-
the criminal action. Such civil action shall proceed indepen- cute the case because he is only an alter ego of the DOJ Secre-
dently of the criminal prosecution and shall require only a tary who ordered him to withdraw the Information. The case
preponderance of evidence. In the cases provided for in should therefore be prosecuted by: - ‘12 - Q82
Articles 32, 33,34 and 2176 of the Civil Code of the Philip-
pines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal a. a DOJ state prosecutor.
action and shall require only a preponderance of evidence
(Section 3, Rule 111).
b. private prosecutor, if any.
Aside from the testimony of Gary, the pieces of evidence that
would be required in an independent civil action are the
c. trial prosecutor of the pairing court.
medical report and certificate regarding the injuries sus-
tained by Gary, hospital and medical bills and receipt of
payments made thereof, the police report and the proof of d. the same trial prosecutor who manifested his inability to
the extent of damage sustained by his car including the Affi- prosecute the case.
davit of witnesses who saw Horace using his cellular phone SUGGESTED ANSWER:
at the time the incident happened. d) The same trial prosecutor who manifested his inability to
prosecute the case.
I will also present proof of employment of Gary such as his
Al criminal actions either commenced by
payslip in order to prove that he was gainfully employed at
complaint or information shall be prosecuted under the
the time the mishap, and as a result of the injuries he suf-
direction and control of a public prosecutor. (Rule 110,
fered, he was not able to earn his income. I will also present
Sec. 5, Rules of Court). The trial prosecutor assumes
Gary’s attending physician to corroborate and authenticate
full discretion and control over a case. Accordingly, the
the contents of the medical report and abstract thereof.
same trial prosecutor who manifested his inability
The possible defenses that may be raised against this action should prosecute the case.
are fortuitous event, force majeure or acts of God.
After an information for rape was filed in the RTC, the DOJ Secre-
Leave of court is required to amend a complaint or information tary, acting on the accused's petition for review, reversed the in-
before arraignment if the amendment __________. (1%) ‘13 - MCQ vestigating prosecutor's finding of probable cause. Upon order of
Q3 the DOJ Secretary, the trial prosecutor filed a Motion to Withdraw
(A) upgrades the nature of the offense from a lower to a Information which the judge granted. The order of the judge stat-
higher offense and excludes any of the accused ed only the following:
(B) upgrades the nature of the offense from a lower to a "Based on the review by the DOJ
higher offense and adds another accused Secretary of the findings of the inves-
(C) downgrades the nature of the offense from a higher tigating prosecutor during the prelim-
to a lower offense or excludes any accused inary investigation, the Court agrees
that there is no sufficient evidence
(D) downgrades the nature of the offense from a higher against the accused to sustain the
to a lower offense and adds another accused allegation in the information. The
(E) All the above choices are inaccurate. motion to withdraw Information is,
therefore, granted."
SUGGESTED ANSWER: (C) downgrades the nature of the
offense from a higher to a lower offense or excludes any If you were the private prosecutor, what should you do?
accused. Explain. (5%) - ‘12 Q1(A)(B)
Under Section 14 of Rule 110, any amendment before plea,
SUGGESTED ANSWER
which downgrades he nature of the offense charged in or
If I were the private prosecutor, I would file a
excludes any accused from the complaint or information, can
petition for certiorari under Rule 65 with the Court of
be made only upon motion by the prosecutor, with notice to
Appeals (Cerezo vs. People, G.R. No. 185230, June 1,
the offended party and with leave of court.
2011). It is well-settled that when the trial court is con-
fronted with a motion to withdraw an Information (on the
ground of lack of probable cause to hold the accused
A criminal case should be instituted and tried in the place where for trial based on a resolution of the DOJ Secretary),
the offense or any of the essential elements took place, except in: the trial court has the duty to make an independent
- ‘12 - Q16 assessment of the merits of the motion. It may either
agree or disagree with the recommendation of the Sec-
a) Estafa cases; retary. Reliance alone on the resolution of the Secretary
b) Complex crimes; would be an abdication of the trial court’s duty and ju-
c) Cases cognizable by the Sandiganbayan; risdiction to determine a prima facie case. The court
d) Court martial cases. must itself be convinced that there is indeed no suffi-
cient evidence against the accused. Otherwise, the
judge acted with grave abuse of discretion if he grants
SUGGESTED ANSWER: the Motion to Withdraw Information by the trial Prosecu-
c) Cases cognizable by the Sandiganbayan tor. (Harold Tamargo vs. Romulo Awingan et al, G.R.
Territorial jurisdiction is immaterial in cases No. 177727, January 19, 2010)
filing under the Sandiganbayan’s jurisdiction. All public
officials who committed an offense which is cognizable

57
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Bar Ques)ons and Answers
After an information for rape was filed in the RTC, the DOJ Secre- injuries was filed on May 12, 1990 with the QC MTC. Reyes moved
tary, acting on the accused's petition for review, reversed the in- to quash the information on the ground of prescription as it was
vestigating prosecutor's finding of probable cause. Upon order of filed on the 80th day, whereas the prescriptive period for slight
the DOJ Secretary, the trial prosecutor filed a Motion to Withdraw physical injuries is 60 days. Should the motion to quash be grant-
Information which the judge granted. The order of the judge stat- ed? ’90 – Q13ed
ed only the following:
The motion to quash should not be granted.
"Based on the review by the DOJ Under Section 1 of Rule 110, the criminal action is instituted by
Secretary of the findings of the inves- filing of the complaint or information with the office of the prosecutor.
tigating prosecutor during the prelim- The institution of the criminal action shall interrupt the period of pre-
inary investigation, the Court agrees scription of the offense charged.
that there is no sufficient evidence Hence, the filing of the complaint with the office of the city prose-
against the accused to sustain the cutor already interrupted the prescriptive period.
allegation in the information. The
motion to withdraw Information is,
therefore, granted." RULE 111 - PROSECUTION OF CIVIL ACTION

If you were the private prosecutor, what should you do?


Explain. (5%) - ‘12 - Q1(A)(B)
Tomas was criminally charged with serious physical injuries al-
SUGGESTED ANSWER legedly committed against Darvin. During the pendency of the
If I were the private prosecutor, I would file a criminal case, Darvin filed a separate civil action for damages
petition for certiorari under Rule 65 with the Court of based on the injuries he had sustained.
Appeals (Cerezo vs. People, G.R. No. 185230, June 1,
2011). It is well-settled that when the trial court is con-
fronted with a motion to withdraw an Information (on the
ground of lack of probable cause to hold the accused Tomas filed a motion to dismiss the separate civil action on the
for trial based on a resolution of the DOJ Secretary), ground of litis pendentia, pointing out that when the criminal ac-
the trial court has the duty to make an independent tion was filed against him, the civil action to recover the civil lia-
assessment of the merits of the motion. It may either bility from the offense charged was also deemed instituted. He
agree or disagree with the recommendation of the Sec- insisted that the basis of the separate civil action was the very
retary. Reliance alone on the resolution of the Secretary same act that gave rise to the criminal action.
would be an abdication of the trial court’s duty and ju-
risdiction to determine a prima facie case. The court
must itself be convinced that there is indeed no suffi-
cient evidence against the accused. Otherwise, the
Rule on Tomas' motion to dismiss, with brief reasons. (5%) ’17
judge acted with grave abuse of discretion if he grants
Q18
the Motion to Withdraw Information by the trial Prosecu-
tor. (Harold Tamargo vs. Romulo Awingan et al, G.R.
No. 177727, January 19, 2010)

ALTERNATIVE ANSWER SUGGESTED ANSWER

If I were the private investigator, I would file a Motion for Reconsidera-


tion of the Order of the trial court. If the same has been denied, I would
file a petition for review on certiorari under Rule 45 on pure question of The motion to dismiss should be denied. Darvin’s civil action is
law, which actually encompasses both the criminal and civil aspects based on physical injuries, and is therefore an independent civil
thereof. The filing of the petition is merely a continuation of the appel- action which may proceed independently of the criminal case
late process. (Article 33, Civil Code). However, Darvin cannot recover damages
twice for the same act or omission charged in the criminal action
(Rule 111, Section 2, Rules of Court).
Magdalena Campos, a married woman and Santiago Mendoza, a
married man, were indicted for adultery in an Information filed by As the Supreme Court ruled in People v. Lipata (G.R. No. 200302,
the Prosecutor of Bataan upon a sworn complaint by Mrs. Cynthia April 20, 2016), “[t]he independent civil actions in Articles
Mendoza, wife of Santiago. Both accused filed a motion to quash 32,33,34, and 2176, as well as claims from sources of obligations
alleging that the trial had not acquired jurisdiction over the case other than delict, are not deemed instituted with the criminal ac-
because no complaint has been filed by the husband of Magdale- tion but may be filed separately by the offended party even with-
na. They cite Section 5, Rule 110 which provides, among others, out reservation”.
that the crime of adultery “shall not be prosecuted except upon
complaint filed by the offended spouse”. How would you resolve
the motion to quash? ’91 – Q12b(ed)

I would grant the motion to quash.


Under Section 5 of Rule 110, the crime of adultery shall not be
prosecuted except upon complaint filed by the offended spouse. Solomon and Faith got married in 2005. In 2010, Solomon con-
Here, the one who filed the complaint was the wife of Santiago. tracted a second marriage with Hope. When Faith found out about
The offended spouse in adultery is not her but the husband of Mag- the second marriage of Solomon and Hope, she filed a criminal
dalena (Article 333, RPC; U.S. v. Asuncion, 22 Phil. 358 [1912].) case for bigamy before the Regional Trial Court (RTC) of Manila
Hence, the court did not acquire jurisdiction over the case. sometime in 2011. Meanwhile, Solomon filed a petition for decla-
ration of nullity of his first marriage with Faith in 2012, while the
On February 21, 1990, Enrique Magno was stabbed in the right case for bigamy before the RTC Remedial Law - Bar Exams 2014 -
arm by Armando Reyes at Balara, QC. A complaint for slight phys- Final 13 of Manila is ongoing. Subsequently, Solomon filed a mo-
ical injuries was filed against Reyes with the Office of the City tion to suspend the proceedings in the bigamy case on the
Prosecutor on February 28, 1990 as the injuries required five (5) ground of prejudicial question. He asserts that the proceedings in
days of medical attendance. The information for slight physical the criminal case should be suspended because if his first mar-

58
The Sigma Rho Fraternity
Bar Operations 2018
Bar Ques)ons and Answers
riage with Faith will be declared null and void, it will have the ef- (B) No, the accused must file a motion to suspend the action
fect of exculpating him from the crime of bigamy. Decide. (4%) ‘14 based on prejudicial question.
- Q24
(C) Yes, if it finds from the record that such prejudicial ques-
tion exists.
Answer: The motion filed by Solomon should be denied. The elements
of prejudicial question are: (1) the previously instituted civil action in- (D) Yes, if it is convinced that due process and fair trial will
volves an issue similar or intimately related to the issue raised in the be better served if the criminal case is suspended.
subsequent criminal action; and (2) the resolution of such issue deter-
X was driving the dump truck of Y along Cattleya Street in Sta.
mines whether or not the criminal action may proceed.
Maria, Bulacan. Due to his negligence, X hit and injured V who
was crossing the street. Lawyer L, who witnessed the incident,
In order for a prejudicial question to exist, the civil action for nullity offered his legal services to V. V, who suffered physical injuries
must precede the filing of the criminal action (Dreamwork Construction including a fractured wrist bone, underwent surgery to screw a
Inc. v. Janiola, G.R. No. 184861, June 30, 2009). Since the criminal metal plate to his wrist bone. On complaint of V, a criminal case
case for bigamy was filed ahead of the civil action for declaration of for Reckless Imprudence Resulting in Serious Physical Injuries
nullity of marriage, there is no prejudicial question. was filed against X before the MTC of Sta. Maria. Atty. L, private
prosecutor, did not reserve the filing of a separate civil action. V
At any rate, the outcome of the civil case for annulment has no bearing subsequently filed a complaint for Damages against X and Y be-
upon the determination of the guilt or innocence of the accused in the fore the RTC of Pangasinan in Urdaneta where he resides. In his
criminal case for bigamy because the accused has already committed “Certification of Forum Shopping”, V made no mention of the
the crime of bigamy when he contracted the second marriage without pendency of the criminal case in Sta. Maria.
the first marriage having been declared null and void. 1. Is V guilty of forum shopping? ‘10 - Q4a

Otherwise stated, he who contracts marriage during the subsistence of NO, V is not guilty of forum shopping because the case in Sta.
a previously contracted marriage runs the risk of being prosecuted for Maria, Bulacan is a criminal action filed in the name of the People of
bigamy. the Philippines, where civil liability arising from the crime is deemed
also instituted therewith; whereas the case filed in Urdaneta, Pangasi-
Solomon and Faith got married in 2005. In 2010, Solomon con- nan, is a civil action for quasi-delict in the name of V and against both
tracted a second marriage with Hope. When Faith found out about X and Y for all damages caused by X and Y to V, which may be beyond
the second marriage of Solomon and Hope, she filed a criminal the jurisdiction of the MTC. Hence, the tests of forum shopping, which
case for bigamy before the Regional Trial Court (RTC) of Manila is res judicata or litis pendentia, do not obtain here.
sometime in 2011. Meanwhile, Solomon filed a petition for decla- Moreover, substantive law (Article 33, NCC) and Section 3, Rule
ration of nullity of his first marriage with Faith in 2012, while the 111, Revised Rules of Criminal Procedure, expressly authorize the
case for bigamy before the RTC of Manila is ongoing. Subse- filing of such action for damages entirely separate and distinct from the
quently, Solomon filed a motion to suspend the proceedings in criminal action.
the bigamy case on the ground of prejudicial question. He asserts
that the proceedings in the criminal case should be suspended 2. Instead of filing an Answer, X and Y moved to dismiss
because if his first marriage with Faith will be declared null and the complaint for damages on the ground of litis pen-
void, it will have the effect of exculpating him from the crime of dentia. Is the motion meritorious? ‘10 - Q4b
bigamy. Decide. (4%) ‘14 - Q24
NO, the motion to dismiss based on alleged litis pendentia is
Answer: The motion filed by Solomon should be denied. The elements without merit because there is no identity of parties and subject matter
of prejudicial question are: (1) the previously instituted civil action in- in the two cases. Besides, Article 33 of the Civil Code and Section 3,
volves an issue similar or intimately related to the issue raised in the Rule 111 of the Rules of Criminal Procedure authorizes the separate
subsequent criminal action; and (2) the resolution of such issue deter- civil action for damages arising from physical injuries to proceed inde-
mines whether or not the criminal action may proceed. pendently.

In order for a prejudicial question to exist, the civil action for nullity 3. Suppose only X was named as defendant in the com-
must precede the filing of the criminal action (Dreamwork Construction plaint for damages, may he move for the dismissal of
Inc. v. Janiola, G.R. No. 184861, June 30, 2009). Since the criminal the complaint for failure of V to implead Y as an indis-
case for bigamy was filed ahead of the civil action for declaration of pensable party? ‘10 - Q4c
nullity of marriage, there is no prejudicial question.
NO, X may not move for dismissal of the civil action for damages
At any rate, the outcome of the civil case for annulment has no bearing on the contention that Y is an indispensable party who should be im-
upon the determination of the guilt or innocence of the accused in the pleaded. Y is not an indispensable party but only a necessary party.
criminal case for bigamy because the accused has already committed Besides, non-joinder and misjoinder of parties is not a ground for dis-
the crime of bigamy when he contracted the second marriage without missal of actions (Section 11, Rule 3, Rules of Court).
the first marriage having been declared null and void.
4. X moved for the suspension of the proceedings in the
Otherwise stated, he who contracts marriage during the subsistence of criminal case to await the decision in the civil case. For
a previously contracted marriage runs the risk of being prosecuted for his part, Y moved for the suspension of the civil case to
bigamy. await the decision in the criminal case. Which of them is
correct? ‘10 - Q4d
(17) The city prosecutor of Manila filed, upon Soledad’s com-
Neither of them is correct. Both substantive law (Article 33 of the
plaint, a criminal action for estafa against her sister, Wella, before
Civil Code) and procedural law (Section 3, Rule 111, Rules of Criminal
the RTC of Manila for selling to Victor a land that she previously
Procedure) provide for the two actions to proceed independently of
sold to Soledad. At the same time Soledad filed a civil action to
each other, therefore, no suspension of action is authorized.
annul the second sale before the RTC of Quezon City. May the
Manila RTC motu proprio suspend the criminal action on ground
5. Atty. L offered in the criminal case his affidavit respect-
of prejudicial question? ‘11 - Q17
ing what he witnessed during the incident. X’s lawyer
(A) Yes, if it may be clearly inferred that complainant will not wanted to cross examine Atty. L who, however, objected
object to the suspension of the criminal case. on the ground of lawyer client privilege. Rule on the
objection. ‘10 - Q4e

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The objection should be overruled. Lawyer-client privilege is not YES, the court’s order granting the motion for reconsideration is
involved here. The subject on which the counsel would be examined correct. The Rules provide that the criminal action for violation of B.P.
has been made public in the affidavit he offered and thus, no longer Blg. 22 shall be deemed to include the corresponding civil action, and
privileged, aside from the fact that it is in respect of what the counsel that no reservation to file such civil action separately shall be allowed
witnessed during the incident and not to the communication made by (Section 1(b) of Rule 111, Revised Rules of Criminal Procedure).
the client to him or the advice he gave thereon in his professional ca-
pacity CX is charged with estafa in court for failure to remit to MM sums
of money collected by him (CX) for MM in payment for goods pur-
While cruising on a highway, a taxicab driven by Mans hit an elec- chased from MM, by depositing the amounts in his (CX’s) person-
tric post. As a result thereof, its passenger, Jovy, suffered serious al bank account. CX files a motion to suspend proceedings pend-
injuries. Mans was subsequently charged before the MTC with ing resolution of a civil case earlier filed in court by CX against
reckless imprudence resulting in serious physical injuries. There- MM for accounting and damages involving the amounts subject of
after, Jovy filed a civil action against Lourdes, the owner of the the criminal case. As the prosecutor in the criminal case, briefly
taxicab, for breach of contract, and Mans for quasi-delict. Lourdes discuss your grounds in support of your opposition to the motion
and Mans filed a motion to dismiss the civil action on the ground to suspend proceedings. '00 – Q9
of litis pendentia, that is, the pendency of the civil action implied-
ly instituted in the criminal action for reckless imprudence result- As the prosecutor, I will argue that the motion to suspend is not in
ing in serious physical injuries. Resolve the motion. '05 – Q6 order for the following reasons:
1. The civil case filed by CX against MM for accounting and
Being a distinct cause of action, the action for breach of contract damages does not involve an issue similar to or intimately
against the taxicab owner cannot be barred by the criminal action related to the issue of estafa raised in the criminal action.
against the taxicab driver, although the taxicab owner can be held 2. The resolution of the issue in the civil case for accounting
subsidiarily liable in the criminal case if the driver is insolvent. On the will not determine whether or not the criminal action for
other hand, the civil action for quasi-delict is an independent civil action estafa may proceed (Section 7, Rule 111, Rules of Criminal
under Article 33 of the Civil Code and Section 3, Rule 111 of the Rules Procedure).
of Court, which can be filed separately and regardless of the result of What is a prejudicial question? ’99 – Q13a
the latter (Samson v. Daway, 434 SCRA 612 [2004] and other cases.)
A prejudicial question is an issue involved in a civil action which is
In an action for violation of B.P. Blg. 22, the court granted the similar or intimately related to the issue raised in the criminal action,
accused’s demurrer to evidence which he filed without leave of the resolution of which determines whether or not the criminal action
court. Although he was acquitted of the crime charged, he, how- may proceed (Section 7 of Rule 111).
ever, was required by the court to pay the private complainant the
face value of the check. The accused filed a Motion of Reconsid- A allegedly sold to B a parcel of land which A later also sold to X.
eration regarding the order to pay the face value of the check on B brought a civil action for nullification of the second sale and
the following grounds: asked that the sale made by A in his favor be declared valid. A
1. The demurrer to evidence applied only to the criminal theorized that he never sold the property to B and his purported
aspect of the case; and '03 – Q12a signatures appearing in the first deed of sale were forgeries.
Thereafter, an Information for estafa was filed against A based on
The Motion for Reconsideration should be denied. The ground the same double sale that was the subject of the civil action. A
that the demurrer to evidence applied only to the criminal aspect of the filed a “Motion for Suspension of Action” in the criminal case,
case was not correct because the criminal action for violation of Batas contending that the resolution of the issue in the civil case would
Pambansa Blg. 22 included the corresponding civil action (Section 1(b) necessarily be determinative of his guilt or innocence. Is the sus-
of Rule 111). pension of the criminal action in order? '99 – Q13b

2. At the very least, he was entitled to adduce controvert- YES. The suspension of the criminal action is in order because
ing evidence on the civil liability. Resolve the Motion for the defense of A in the civil action, that he never sold the property to B
Reconsideration. '03 – Q12b and that his purported signatures in the first deed of sale were forg-
eries, is a prejudicial question the resolution of which is determinative
The accused was not entitled to adduce controverting evidence of his guilt or innocence. If the first sale is null and void, there would be
on the civil liability, because he filed his demurrer to evidence without no double sale and A would be innocent of the offense of estafa (Ras v.
leave of court (Section 23 of Rule 119). Rasul, 100 SCRA 125 [1980].)

Delia sued Victor for personal injuries which she allegedly sus-
tained when she was struck by a car driven by Victor. May the An Information for frustrated homicide failed to allege the dam-
court receive in evidence, over proper and timely objection by ages incurred by the offended party. At the trial, the court, upon
Delia, a certified true copy of a judgment of acquittal in a criminal objection of the accused, barred the prosecution from proving the
prosecution charging Victor with hit-and-run driving in connec- damages suffered by the complainant for the reason that it was
tion with Delia’s injuries? '02 – Q13a not alleged in the Information. Accused presented evidence to
prove his innocence. After trial, the court convicted the accused
If the judgment of acquittal in the criminal case finds that the act sentencing him to imprisonment without any award of damages.
or omission from which the civil liability may arise does not exist, the Was the court correct in disallowing the prosecution from pre-
court may receive it in evidence over the objection by Delia (Section 2, senting proof relative to accused’s civil liability? ’96 – Q12b
last paragraph, Rule 111).
NO, in a criminal case, the civil action for recovery of civil liability
Saturnino filed a criminal action against Alex for the latter’s is impliedly instituted with the criminal action, unless the offended party
bouncing check. On the date of the hearing after the arraignment, waives the civil action, reserves his right to institute it separately, or
Saturnino manifested to the court that he is reserving his right to institutes the civil action prior to the criminal action. Consequently, the
file a separate civil action. The court allowed Saturnino to file a prosecution has the right to present evidence of damages even if it
civil action separately and proceeded to hear the criminal case. was not alleged (Section 1, Rule 111).
Alex filed a motion for reconsideration contending that the civil
action is deemed included in the criminal case. The court recon- Donald was convicted of serious physical injuries inflicted on his
sidered its order and ruled that Saturnino could not file a separate househelp Paula. He appealed but died during the pendency of
action. Is the court’s order granting the motion for reconsidera- his appeal.
tion correct? '01 – Q4 1. What is the effect of the death of Donald on his criminal
liability?

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No, the warrant of arrest may not be quashed based on the grounds
Donald’s criminal liability is extinguished by his death (Article cited by Rapido’s counsel. In the issuance of a warrant of arrest, the
89(1), RPC). mandate of the constitution is for the judge to personally determine the
existence of probable cause. The words “personal determination,” was
2. What is the effect of his death on his civil liability based interpreted by the Supreme Court in Soliven v. Makasiar G.R. No.
solely on the criminal act? 82585, 14 November 1988; 167 SCRA 393, 406, as the exclusive and
personal responsibility of the issuing judge to satisfy himself as to the
The death of Donald pending appeal extinguishes not only his existence of probable cause.
criminal liability but also the civil liability based solely thereon (People
v. Bayotas, 236 SCRA 239 [1994].)
What the law requires as personal determination on the part of a judge
is that he should not rely solely on the report of the investigating pros-
3. What is the effect of his death on his civil liability based
ecutor. Thus, personal examination of the complaint and his witnesses
on a quasi-delict or tort?
is, thus, not mandatory and indispensable in the determination of prob-
able case for the issuance of a warrant of arrest (People v. Joseph
His death does not affect his civil liability based on quasi-delict or
“Jojo” Grey, G.R. No. 10109, July 26, 2010).
tort (People v. Bayotas, 236 SCRA 239 [1994].)

4. What is the effect if in the criminal case Paula did not At any rate, there is no law or rule that requires the Judge to issue a
make the necessary reservation to file a separate civil prior Order finding probable cause before the issuance of a warrant of
action for damages? arrest.

If Paula did not make the necessary reservation to file a separate


civil action for damages, she could still file a separate civil action You are the defense counsel of Angela Bituin who has been
against the executor / administrator or the heirs of the estate of the charged under RA 3019 ( Anti-Graft and Corrupt Practices Act )
accused (People v. Bayotas, 236 SCRA 239 [1994].) before the Sandiganbayan. While Angela has posted bail, she has
yet to be arraigned. Angela revealed to you that she has not been
5. What is the effect of his death if Paula reserved her right investigated for any offense and that it was only when police offi-
to file a separate civil action but had not yet done so cers showed up at her residence with a warrant of arrest that she
when Donald died? ’95 – Q9 learned of the pending case against her. She wonders why she
has been charged before the Sandiganbayan when she is not in
The death of Donald will not affect Paula’s right to file a separate government service.
civil action against the executor / administrator or the heirs of Donald. (A) What "before-trial" remedy would you invoke in Angela’s be-
half to address the fact that she had not been investigated at all,
and how would you avail of this remedy? (4%) ‘13 - Q7b
RULE 112 - PRELIMINARY INVESTIGATION
SUGGESTED ANSWER: (A) I will file an Omnibus motion for the con-
duct of preliminary investigation and the quashal or recall of the war-
When does a public prosecutor conduct an inquest instead of a rant of arrest.
preliminary investigation? (2%) ’17 – Q4C
Under Section 7 of Rule 112 of the Rules of Court, after filing of the
complaint or information in court without a preliminary investigation, the
SUGGESTED ANSWER accused may within five days from the time he learns of its filing ask for
a preliminary investigation with the same right to adduce evidence in
his defense.
(c) Under Rule 112, Section of the Rules of Court, a public prose-
cutor conducts inquest instead of a preliminary investigation Under Section 26, Rule 114, an application for or admission to bail
when a person is lawfully arrested without an arrest warrant in- shall not bar the accused from challenging the validity of his arrest or
volving an offense which requires a preliminary investigation. the legality of the warrant issued therefore, or from assailing the regu-
larity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his
plea. The court shall resolve the matter as early as practicable but not
later than the start of the trial of the case.
An information for murder was filed against Rapido. The RTC
(B) May the charges of robbery and illegal possession of firearm
judge, after personally evaluating the prosecutor's resolution,
be filed directly by the investigating prosecutor with the appropri-
documents and parties' affidavits submitted by the prosecutor,
ate court without a preliminary investigation? (4%) ‘13 - Q7b
found probable cause and issued a warrant of arrest. Rapido's
lawyer examined the rollo of the case and found that it only con- SUGGESTED ANSWER: (B) Yes. Since the offender was arrested in
tained the copy of the information, the submissions of the prose- flagrante delicto without a warrant of arrest, an inquest proceeding
cutor and a copy of the warrant of arrest. Immediately, Rapido's should be conducted and thereafter a case may be filed in court even
counsel filed a motion to quash the arrest warrant for being void, without the requisite preliminary investigation.
citing as grounds: ‘15- Q10
Under Section 7 of Rule 112, when a person is lawfully arrested with-
out a warrant involving an offense which requires a preliminary investi-
a.) The judge before issuing the warrant did not personally conduct a gation, the complaint or information may be filed by a prosecutor with-
searching examination of the prosecution witnesses in violation of his out need of such investigation provided an inquest has been conduct-
client's constitutionally-mandated rights; ed in accordance with existing rules. In the absence of unavailability of
an inquest prosecutor, the complaint may be filed by the offended party
or a peace office directly with the proper court on the basis of the affi-
b.) There was no prior order finding probable cause before the judge
davit of the offended party or arresting officer or person
issued the arrest warrant.
W was arrested in the act of committing a crime on October 1,
May the warrant of arrest be quashed on the grounds cited by Rapido's 2011. After an inquest hearing, an information was filed against W
counsel? State your reason for each ground. (4%) and his lawyer learned of the same on October 5, 2011. W wants
to file a motion for preliminary investigation and therefore he has
only up to _____ to file the same: ‘12 - Q8
Suggested Answer:

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Bar Ques)ons and Answers
1. October 20, 2011; He was a career executive service officer and under Presidential
2. October 10, 2011; Decree No. 807 (Civil Service Law), his preventive suspension
3. November 15, 2011; shall be for a maximum period of three months. Resolve with rea-
4. October 16, 2011. sons. ’05 – Q18

As a career executive officer, his preventive suspension under the Civil


SUGGESTED ANSWER Service Law may only be for a maximum period of three months (Sec-
b) October 10, 2011 tion 42, P.D. No. 807). The period of the suspension under the Anti-
When a person is lawfully arrested without a warrant involving an of- Graft Law is the same pursuant to the equal protection clause (Section
fense which requires a preliminary investigation, he may ask a prelimi- 13, R.A. No. 3019; Garcia v. Mojica, 314 SCRA 207 [1999]; Layno v.
nary investigation with the same right to adduce evidence in his de- Sandiganbayan, 136 SCRA 536 [1985].) However, under Section 24 of
fense within five (5) days from the time he learns of the filing of the the Ombudsman Act, the Ombudsman is expressly authorized to issue
complaint or information in court. (Rule 112, Sec. 7, Rules of Court). an order of preventive suspension of not more than six (6) months
without pay (Lastimosa v. Vasquez, 243 SCRA 497 [1995].)
Jose, Alberto and Romeo were charged with murder. Upon the
filing of the information, the RTC judge issued the warrants for A filed with the Office of the Fiscal a Complaint for estafa against
their arrest. Learning of the issuance of the warrants, the three B. After the preliminary investigation, the Fiscal dismissed the
accused jointly filed a motion for reinvestigation and for the recall Complaint for lack of merit. May the Fiscal be compelled by man-
of the warrants of arrest. On the date set for hearing of their mo- damus to file the case in court? '99 – Q12b
tion, none of the accused showed up in court for fear of being
arrested. The RTC judge denied their motion because the RTC did NO. The public prosecutor may not be compelled by mandamus to file
not acquire jurisdiction over the persons of the movants. Did the the case in court because the determination of probable cause is within
RTC rule correctly? ’08 – Q10 the discretion of the prosecutor. The remedy is an appeal to the Secre-
tary of Justice (Section 4, Rule 112.)
The RTC was not entirely correct in stating that it had no jurisdiction
over the persons of the accused. By filing motions and seeking affirma- If the Information is not accompanied by a certification that a pre-
tive reliefs from the court, the accused voluntarily submitted them- liminary investigation has been conducted. Is the Information
selves to the jurisdiction of the court. void? '98 – Q15(2)
However, the RTC correctly denied the motion for reinvestigation. Be-
fore an accused can move for reinvestigation and the recall of his war- NO. The certification which is provided in Section 4, Rule 112, Rules of
rant of arrest, he must first surrender his person to the court (Miranda Criminal Procedure, is not an indispensable part of the information
v. Tuliao, G.R. No. 158763, March 31, 2006). (People v. Lapura, 255 SCRA 85 [1996].)
Regional Director AG of the DPWH was charged with violation of
Section 3(e) of R.A. No. 3019 in the Office of the Ombudsman. An RULE 113 - ARREST
administrative charge for gross misconduct arising from the
transaction subject matter of said criminal case was filed against
him in the same office. The Ombudsman assigned a team com-
posed of investigators from the Office of the Special Prosecutor (a) Give at least two instances when a peace officer or a private
and from the Office of the Deputy Ombudsman for the Military to person may make a valid warrantless arrest. (2%) – ’17 –
conduct a joint investigation of the criminal case and the adminis- Q3C
trative case. The team of investigators recommended to the Om-
budsman that AG be preventively suspended for a period not
exceeding six months on its finding that the evidence of guilt is
strong. The Ombudsman issued the said order as recommended SUGGESTED ANSWER
by the investigators. AG moved to reconsider the order on the (a) Under Section 5, Rule 113 of the Rules of Court, a peace
following grounds: officer or a private person may make a valid warrantless
arrest in the following instances:
1. The Office of the Special Prosecutor had exclusive au-
thority to conduct a preliminary investigation of the criminal case; 1. When, in his presence, the person to be ar-
rested has committed, is actually committing,
AG’s contention that Office of Special Prosecutor had exclusive author- or is attempting to commit an offense;
ity to conduct a preliminary investigation of the criminal case should be 2. When an offense has juts been committed, and
rejected considering that the investigatory powers of the Office of the he has probable cause to believe based on
Special Prosecutor is under the supervision of the Office of the Om- personal knowledge of facts or circumstances
budsman, which exercises the investigatory and prosecutor powers that the person to be arrested has committed
granted by the Constitution (Office of the Ombudsman v. Enoc, 374 it; and
SCRA 691 [2002].) This is but in accordance with Section 31 of R.A.
No. 6770 which provides that the Ombudsman may utilize the person- 3. When the person to be arrested is a prisoner
nel of his office and/or designate or deputize any fiscal, state prosecu- who has escaped from a penal establishment
tor or lawyer in the government service to act as special investigator or or place where he is serving final judgment or
prosecutor to assist in the investigation and prosecution of certain is temporarily confined while his case is pend-
cases. Those designated or deputized to assist him herein provided ing, or has escaped while being transferred
shall be under his supervision and control. from one confinement to another.

2. The order for his preventive suspension was premature be-


cause he had yet to file his answer to the administrative com- Boy Maton, a neighborhood tough guy, was arrested by a police officer
plaint and submit countervailing evidence; and on suspicion that he was keeping prohibited drugs in his clutch bag.
When Boy Maton was searched immediately after the arrest, the officer
The order of preventive suspension need not wait for the answer to the found and recovered 10 sachets of shabu neatly tucked in the inner
administrative complaint and the submission of countervailing evidence linings of the clutch bag. At the time of his arrest, Boy Maton was
(Garcia v. Mojica, 314 SCRA 207 [1999]; Lastimosa v. Vasquez, 243 watching a basketball game being played in the town plaza, and he
SCRA 497 [1995].) was cheering for his favorite team. He was subsequently charged with
illegal possession of dangerous drugs, and he entered a plea of not
guilty when he was arraigned.

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Bar Ques)ons and Answers
not be considered validly seized in plain view (Abraham Miclat v. Peo-
ple of the Philippines, G.R. No. 176077, August 31, 2011).
During the trial, Boy Maton moved for the dismissal of the information
on the ground that the facts revealed that he had been illegally arrest- On his way to the PNP Academy in Silang, Cavite on board a pub-
ed. He further moved for the suppression of the evidence confiscated lic transport bus as a passenger, Police Inspector Masigasig of
from him as being the consequence of the illegal arrest, hence, the fruit the Valenzuela Police witnessed an on-going armed robbery while
of the poisonous tree. the bus was traversing Makati. His alertness and training enabled
him to foil the robbery and to subdue the malefactor. He disarmed
the felon and while frisking him, discovered another handgun
The trial court, in denying the motions of Boy Maton, explained that at tucked in his waist. He seized both handguns and the malefactor
the time the motions were filed Boy Maton had already waived the right was later charged with the separate crimes of robbery and illegal
to raise the issue of the legality of the arrest. The trial court observed possession of firearm.
that, pursuant to the Rules of Court, Boy Maton, as the accused, (A) Where should Police Inspector Masigasig bring the felon for
should have assailed the validity of the arrest before entering his plea criminal processing? To Silang, Cavite where he is bound; to
to the information. Hence, the trial court opined that any adverse con- Makati where the bus actually was when the felonies took place;
sequence of the alleged illegal arrest had also been equally waived. or back to Valenzuela where he is stationed? Which court has
jurisdiction over the criminal cases? (3%) ‘13 - Q8a
Comment on the ruling of the trial court. (5%) ’17 – Q19 SUGGESTED ANSWER: (A) Police Inspector Masigasig should bring
the felon to the nearest police station or jail in Makati City where the
bus actually was when the felonies took place.
SUGGESTED ANSWER X was arrested, en flagrante, for robbing a bank. After an investi-
gation, he was brought before the office of the prosecutor for
inquest, but unfortunately no inquest prosecutor was available.
The trial court is correct insofar as Moy Maton is con- May the bank directly file the complaint with the proper court? If
sidered to have waived his objections to the illegality of his ar- in the affirmative, what document should be filed? (5%) ‘12 - Q5
rest. In Villanueva v. People (G.R. No. 199042, November 17, 2014),
the Supreme Court held that objections to the irregularity of ar- SUGGESTED ANSWER:
rest must be made before his arraignment. In this case, Boy Ma- Yes, the bank may directly file the complaint with the proper court. In
ton made no objection to the irregularity of his arrest before his the absence of unavailability of an inquest prosecutor, the complaint
arraignment. Hence the trial court is correct when it ruled that may be filed by the offended party or a peace officer directly with the
Boy Maton had already waived his right to question the illegality proper court on the basis of the affidavit of the offended party or arrest-
of his arrest. Any irregularity attending the arrest of an accused ing officer or person (Section 6, Rule 113 of the Revised Rules of Crim-
“should be timely raised in a motion to quash the information at inal Procedure).
any time before arraignment, failing [in] which, he is deemed to
have waived” hid right to question the regularity of his arrest In a criminal case for violation of a city ordinance, the court may
(People v. Cunanan, G.R. No. 198924, March 16, 2015). issue a warrant of arrest: ‘12 - MCQ34
However, the trial court erred when it ruled that Boy
Maton likewise waived his right to assail the illegal search. In the 1. for failure of the accused to submit his counter-affidavit.
Villanueva case (supra), the Supreme Court ruled that “a waiver of 2. after finding probable cause against the accused.
an illegal arrest is not a waiver of an illegal search.” It further held
that “while the accused has already waived his right to contest 3. for failure of the accused to post bail.
the legality of his arrest, he is not deemed to have equally waived
4. for non-appearance in court whenever required.
his right to contest the legality of the search.” Therefore, Boy
Maton may still move for the suppression of the evidence confis-
cated from him being the consequences of the illegal arrest. SUGGESTED ANSWER:
d) For non-appearance in court whenever required.
The criminal case for violation of a city ordinance is governed by the
Revised Rules on Summary Procedure. Under the said Rule, the court
XI. A search warrant was issued for the purpose of looking for
shall not order the arrest of the accused except for failure to appear
unlicensed firearms in the house of Ass-asin, a notorious gun for
whenever required. (Sec. 16, 1991 Revised Rules on Summary Proce-
hire. When the police served the warrant, they also sought the
dure). Accordingly, the court may issue a warrant of arrest for non-
assistance of barangay tanods who were assigned to look at oth-
appearance of the accused whenever required in a criminal case for
er portions of the premises around the house. In a nipa hut thirty
infraction of a city ordinance.
(30) meters away from the house of Ass-asin, a barangay tanod
came upon a kilo of marijuana that was wrapped in newsprint. He
took it and this was later used by the authorities to charge Ass-
asin with illegal possession of marijuana. Ass-asin objected to the On his way home, a member of the Caloocan City police force,
introduction of such evidence claiming that it was illegally seized. witnesses a bus robbery in Pasay City and effects the arrest of
Is the objection of Assasin valid? (4%) - ‘14 - Q11 the suspect. Can he bring the suspect to Caloocan City for book-
ing since that is where his station is? ’07 – Q6a
Answer: The objection is valid. The search warrant specifically desig-
nates or describes the house of the accused as the place to be
searched. Incidentally, the marijuana was seized by Barangay Tanods NO, the arresting officer may not take the arrested suspect from Pasay
thirty (30) meters away from the house of the accused. City to Caloocan City. The arresting officer is required to deliver the
Since the confiscated items were found in a place other than the one person arrested without warrant “to the nearest police station or
described in the search warrant, it can be considered as fruits of an jail” (Section 5, Rule 113, 2000 Rules of Criminal Procedure). To be
invalid warrantless search, the presentation of which as an evidence is sure, the nearest police station or jail is in Pasay City where the arrest
a violation of petitioner’s constitutional guaranty against unreasonable was made, and not in Caloocan City.
searches and seizure (Ruben Del Castillo v. People of the Philippines, AX swindled RY in the amount of P10,000 sometime in mid-2003.
G.R. No. 185128, January 30, 2012). On the strength of the sworn statement given by RY personally to
Besides, the search is also illegal because the marijuana confiscated SPO1 Juan Ramos sometime in mid-2004, and without securing a
in the nipa hut was wrapped in a newsprint. Therefore, the same can- warrant, the police officer arrested AX. Forthwith the police officer

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Bar Ques)ons and Answers
filed with the City Prosecutor of Manila a complaint for estafa lawful without a search warrant pursuant to Section 13 of Rule
supported by RY"s sworn statement and other documentary evi- 126? ’96 – Q13(1)
dence. After due inquest, the prosecutor filed the requisite infor-
The arrest of accused Y without warrant was lawful pursuant to Section
mation with the MM RTC. No preliminary investigation was con-
5(b), not (a) of Rule 113, because an offense had in fact been commit-
ducted either before or after the filing of the information and the
ted and Barangay Captain Z has personal knowledge of facts indicat-
accused at no time asked for such an investigation. However,
ing that Y had committed it. When Z, accompanied by the complainant
before arraignment, the accused moved to quash the information
X, met Y on the road and confronted him on the complaint of X, Y did
on the ground that the prosecutor suffered from a want of authori-
not say anything nor deny it. That was sufficient ground for Z to arrest
ty to file the information because of his failure to conduct a pre-
Y and search him. Hence, the search and seizure of the gun was lawful
liminary investigation before filing the information, as required by
without a search warrant under Section 12 of Rule 126.
the Rules of Court.
Under Section 5, Rule 113 of the Rules of Court, a peace officer or
1. Is the warrantless arrest of AX valid?
a private person may, without a warrant, arrest a person:
NO. The warrantless arrest is not valid because the alleged offense
a. When, in his presence, the person to be arrested has com-
has not just been committed. The crime was allegedly committed one
mitted, actually committing, or is attempting to commit an offense;
year before the arrest (Section 5(b) of Rule 113).
b. When an offense has just been committed, and he has prob-
able cause to believe based on personal knowledge of facts or circum-
2. Is he entitled to a preliminary investigation before the stances that the person to be arrested has committed it; and
filing of the information? ’04 – Q8b
c. When the person to be arrested is a prisoner who has es-
YES, he is entitled to a preliminary investigation because he was not caped from a penal establishment or place where he is serving final
lawfully arrested without a warrant (Section 7 of Rule 112). He can judgment or is temporarily confined while his case is pending, or has
move for a reinvestigation. escaped while being transferred from one confinement to another.
A was killed by B during a quarrel over a hostess in a nightclub. In cases falling under paragraph (a) and (b) above, the person arrested
Two days after the incident, and upon complaint of the widow of without a warrant shall be forthwith delivered to the nearest police
A, the police arrested B without a warrant of arrest and searched station or jail and shall be proceeded against in accordance with Sec-
his house without a search warrant. tion 7 of Rule 112.
1. Can the gun used by B in shooting A, which was seized Consequently, the criminal case for robbery and illegal possession of
during the search of the house of B, be admitted in evidence? firearms can be filed in RTC Makati City which has jurisdiction over
these offenses.
NO. The gun seized during the search of the house of B without a
search warrant is not admissible in evidence (Sections 2 and 3[2], Under Section 5, Rule 113 a warrantless arrest is allowed when an
Article III of the Constitution). Moreover, the search was not an incident offense has just been committed and the peace officer has prob-
to a lawful arrest of a person under Section 12 of Rule 126. able cause to believe, based on his personal knowledge of facts
or circumstances, that the person to be arrested has committed it.
2. Is the arrest of B legal? A policeman approaches you for advice and asks you how he will
NO. A warrantless arrest requires that the crime has in fact just been execute a warrantless arrest against a murdered who escaped
committed and the police arresting has probable cause based on per- after killing a person. The policeman arrived two (2) hours after
sonal knowledge of facts or circumstances that the person to be ar- the killing and a certain Max was allegedly the killer per informa-
rested has committed it (Section 5, Rule 113). Here, the crime has not tion given by a witness. He asks you to clarify the following: ’16 –
just been committed since a period of two days had already lapsed, Q16
and the police arresting has no such personal knowledge because he
was not present when the incident happened (Go v. Court of Appeals, [a] How long after the commission of the crime can he still exe-
206 SCRA 138 [1992].) cute the warrantless arrest? (2.5%)
3. Under the circumstances, can B be convicted of homi-
SUGGESTED ANSWER:
cide? '97 – Q8
YES. The gun is not indispensable in the conviction of A because the [a] In executing a warrantless arrest under Section 5, Rule 113, the
court may rely on testimonial or other evidence. Supreme Court held that the requirement that an offense has just been
committed means that there must be a large measure of immediacy
X, common-law wife of accused Y, sobbing, went running from her
between the time the offense was committed and the time of the arrest
residence, just some 30 meters away, to the house of Barangay
(Joey M. Pestilos v. Moreno Generoso, G.R. No. 182601, November
Captain Z, complaining that accused struck her on the cheek with
10, 2014). If there was an appreciable lapse of time between the arrest
the butt of a revolver, causing her to bleed, and that the accused
and the commission of the crime, a warrant of arrest must be secured.
Y threatened to shoot her with a gun. The Barangay Captain, a
In any case, personal knowledge by the arresting officer is an indis-
retired veteran police officer, accompanied X to the latter’s resi-
pensable requirement to the validity of a valid warrantless arrest.
dence to investigate, but on their way, they met accused Y on the
road. Thereupon, Barangay Captain Z confronted accused Y
about the complaint of his common-law wife X, but did not say The exact period varies on a case to case basis. In People v. Gerente,
anything nor deny it. The Barangay Captain, noticing an object (G.R. No. 95847-48, March 10, 1993), the Supreme Court ruled that a
bulging in Y’s waistline underneath his T-shirt, and believing that warrantless arrest was validly executed upon therein accused three (3)
it was the gun he used to injure X and to threaten her with death, hours after the commission of the crime. In People v. Tonog, Jr., (G.R.
frisked Y and grabbed the object which turned out to be a .38 cal- No. 94533, February 4, 1992), the Supreme Court likewise upheld the
iber paltik revolver. The Barangay Captain inquired whether ac- valid warrantless arrest which was executed on the same day as the
cused had a license to possess or permit to carry the gun, and commission of the crime. However, in People v. Del Rosario (365 Phil.
when the latter answered in the negative, the Barangay Captain 292 [1999], the Supreme Court held that the warrantless arrest effect-
arrested him and confiscated the firearm. From the record of the ed a day after the commission of the crime is invalid. In Gov. Court of
local PNP, it was ascertained that the subject revolver was not Appeals, (G.R. No. 101837, February 11, 1992), the Supreme Court
registered or licensed in the name of accused Y. also declared invalid a warrantless arrest effected six (6) days after the
commission of the crime.
Was the arrest of accused Y without warrant lawful pursuant to
Section 5(a) of Rule 113 of the Revised Rules of Criminal Proce- [b] What does "personal knowledge of the facts and circum-
dure? Were the search conducted and seizure of the gun likewise stances that the person to be arrested committed it" mean?
(2.5%)

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The phrase “personal knowledge of the facts and circumstances that filed an information for Violation of R.A. No. 9262 (The VA WC
the person to be arrested committed if” means that matters in relation Law) for physical violence and five separate informations for vio-
to the supposed commission of the crime were within the actual per- lation of R.A. No. 7610 (The Child Abuse Law). Oasis Jung's
ception, personal evaluation or observation of the police officer at the lawyer filed a motion to be admitted to bail but the court issued
scene of the crime. Thus, even though the police officer has not seen an order that approval of his bail bond shall be made only after
someone actually fleeing, he could still make a warrantless arrest if, his arraignment.
based on his personal evaluation of the circumstances at the scene of
the crime, he could determine the existence of probable cause that the a.) Did the court properly impose that bail condition?
person sought to be arrested has committed the crime; however, the (3%)‘15 - Q12a
determination of probable cause and the gathering of facts or circum-
stances should be made immediately after the commission of the crime Suggested Answer:
in order to comply with the element of immediacy.
No. The court did not properly impose that bail condition. The Revised
The arresting officer's determination of probable cause under Section Rules of Criminal Procedure do not require the arraignment of the
5(b), Rule 113 of the Revised Rules of Criminal Procedure is based on accused as a prerequisite to the conduct of hearings on the bail peti-
his personal knowledge of facts or circumstances that the person tion. A person is allowed to file a petition for bail is soon as he is de-
sought to be arrested has committed the crime. These facts or circum- prived of his liberty by virtue of his arrest or voluntary surrender. An
stances pertain to actual facts or raw evidence, i.e., supported by cir- accused need not wait for his arraignment before filing the bail petition
cumstances sufficiently strong in themselves to create the probable (Serapio v. Sandiganbayan, G.R. No. 149116, January 28, 2003).
cause of guilt of the person to be arrested. A reasonable suspicion
therefore must be founded oil probable cause, coupled with good faith Moreover, the condition that the approval of bail bonds shall be made
on the part of the peace officers making the arrest. The probable cause only after arraignment would place accused in the position where he
to justify warrantless arrest ordinarily signifies a reasonable ground of has to choose between: (1) filing a motion to quash (the Information)
suspicion supported by circumstances sufficiently strong in themselves and thus delay his released on bail because until his motion to quash
to warrant a cautious man to believe that the person accused is guilty can be resolved, his arraignment cannot be held; and (2) foregoing the
of the offense with which he is charged, or an actual belief or reason- filing of a motion to quash (the Information) so that he can be arraigned
able ground of suspicion, based on actual facts (Joey M. Pestilos v. at once and thereafter be realease on bail (Lavised v. Court of Ap-
Moreno Generoso, G.R. No. 182601, November 10, 2014). peals, G.R. No. 129670, February 1, 2000).

Before arraignment, Oasis Jung's lawyer moved to quash the other


four separate informations for violation of the child abuse law invoking
the single larceny rule.

b.) Should the motion to quash be granted? (2%) ‘15 - Q12b


RULE 114 - BAIL
Suggested Answer:
(b) When is bail a matter of judicial discretion? (2%) ’17 – Q3B
No. The court should not grant the motion to quash, because the “sin-
SUGGESTED ANSWER gle larceny rule” does not find application where the charges involve
(b) Under Section 5, Rule 114 of the Rules of Court, ball is a violation of R.A. 9262 (The VAWCI Law) and R.A. 7610 (The Child
matter of judicial discretion under the following circum- Abuse Law),considering that each criminal act is based on a different
stances; criminal impulse and intent.
1. Before conviction, in cases where the offense
charged is punishable by reclusion perpetua; and In Santiage v. Garchitorena, (G.R. No. 109226 December 2, 1993).
2. After accused’s conviction by the Regional Trial
Court of an offense not punishable by death, reclu- [Note: The Committee respectfully recommends that the examinees be
sion perpetua or life imprisonment. given full credit to any answer provided to the question because the
single larceny rule is not included in the 2015 BAR Examination Syl-
In People v. Leviste (G.R. No. 189122, March 17, 2010), the labus in Remedial Law.]
Supreme Court ruled that the absence of the circumstances men-
tioned in the third paragraph of Section 5, Rule 114 of the Rules of c.) After his release from detention on bail, can Oasis Jung
Court does not automatically result in the grant of bail. Such find- still question the validity of his arrest? (2%)
ing will simply authorize the court to use the less stringent sound
discretion approach. Suggested Answer:

Yes. Oasis Jung can still question the validity of his arrest even after
Paz was awakened by a commotion coming from a condo unit
his release from detention on bail. Under Section 26, Rule 114 of the
next to hers. Alarmed, she called up the nearby police station. PO
Rules of Court, an application for or admission to bail shall not bar the
1 Remus and P02 Romulus proceeded to the condo unit identified
accused from challenging the validity of his arrest or the legality of the
by Paz. PO 1 Remus knocked at the door and when a man opened
warrant issued therefor, or from assailing the regularity or questioning
the door, POI Remus and his companions introduced themselves
the absence of a preliminary investigation of the charge against him,
as police officers. The man readily identified himself as Oasis
provided that he raises them before entering his plea.
Jung and gestured to them to come in. Inside, the police officers
saw a young lady with her nose bleeding and face swollen. Asked
by P02 Romulus what happened, the lady responded that she was In one other case, an indigent mother seeks assistance for her 14-
beaten up by Oasis Jung. The police officers arrested Oasis Jung year old son who has been arrested and detained for malicious
and brought him and the young lady back to the police station. mischief.
PO1 Remus took the young lady's statement who identified her- Would an application for bail be the appropriate remedy or is
self as AA. She narrated that she is a sixteen-year-old high school there another remedy available? Justify your chosen remedy and
student; that previous to the incident, she had sexual intercourse outline the appropriate steps to take. (3%) ‘14 - Q4
with Oasis Jung at least five times on different occasions and she
was paid P5,000.00 each time and it was the first time that Oasis SUGGESTED ANSWER: (D) Yes. An application for bail is an appro-
Jung physically hurt her. P02 Romulus detained Oasis Jung at the priate remedy to secure provisional liberty of the 14-year old boy. Un-
station's jail. After the inquest proceeding, the public prosecutor der the Rules, bail is a matter of right before or even after conviction

65
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Bar Ques)ons and Answers
before the MTC which has jurisdiction over the crime of malicious mis- (B) Yes. The accused is entitled to bail subject to the discretion of the
chief (Section 4, Rule 114). Consequently, bail can be posted as a court. Under Section 5, Rule 114, Rules of Court, the appellate Court
matter of right. may allow him to post bail because the Trial Court in convicting him,
changed the nature of the offense from non-bailable to bailable.
ALTERNATIVE ANSWER: Under R.A. 9344, otherwise known as the
Juvenile Justice and Welfare Act of 2006 as amended by R.A. 10630,
Be that is may, the denial of bail pending appeal is a matter of wise
a child in conflict with the law has the right to bail and recognizance or
discretion since after conviction by the trial court, the presumption of
to be transferred to a youth detention home/ youth rehabilitation center
innocence terminates and, accordingly, the constitutional right to bail
(Sec. 5, R.A. 9344). Thus:
ends (Jose Antonio Leviste v. Court of Appeals, G.R. No. 189122,
“Where a child is detained, the court shall order: (a) the release of the March 17, 2010).
minor on recognizance to his/her parents and other suitable person; (b)
the release of the child in conflict with the law on bail; or (c) the transfer No. An accused originally charged with murder, though eventually con-
of the minor to a youth detention home/ youth rehabilitation center. The victed by the trial court for homicide only, is not entitled to bail during
court shall not order the detention of a child in a hail pending trial or the pendency of the appeal, for the reason that, during the review of
hearing of his/her case (Section 35, R.A. 9344). his appeal, the appellate court may still find him guilty of the more seri-
ous charge of murder (Obosa v. Court of Appeals, G.R. No. 114350,
Conversely, a petition for habeas corpus may also be considered an
January 16, 1997).
appropriate remedy if the court has ordered the detention of a child
pending trial or hearing of his case.
A was charged with a non-bailable offense. At the time when the
warrant of arrest was issued, he was confined in the hospital and
A was charged with murder in the lower court. His Petition for Bail
could not obtain a valid clearance to leave the hospital. He filed a
was denied after a summary hearing on the ground that the pros-
petition for bail saying therein that he be considered as having
ecution had established a strong evidence of guilt. No Motion for
placed himself under the jurisdiction of the court. May the court
Reconsideration was filed from the denial of the Petition for Bail.
entertain his petition? Why or why not? (5%)’12 - Q1b
During the reception of the evidence of the accused, the accused
reiterated his petition for bail on the ground that the witnesses so
SUGGESTED ANSWER
far presented by the accused had shown that no qualifying ag-
gravating circumstance attended the killing. The court denied the
petition on the grounds that it had already ruled that: No, the court may not entertain his petition as he has not yet been
placed under arrest. A must be “literally” under the custody of the law
before his petition for bail could be entertained by the Court (Miranda
i. the evidence of guilt is strong;
vs. Tuliao, G.R. No. 158763, March 31, 2006).
ii. the resolution for the Petition for Bail is solely based
on the evidence presented by the prosecution; and
ALTERNATIVE ANSWER:
(iii) no Motion for Reconsideration was filed from the denial of the
Petition for Bail. (6%) Yes, a person is deemed to be under the custody of the law either
when he has been arrested or has surrendered himself to the jurisdic-
tion of the court. The accused who is confined in a hospital may be
(A) If you are the Judge, how will you resolve the incident? ‘14 - deemed to be in the custody of the law if he clearly communicates his
Q18a submission to the court while he is confined in a hospital. (Paderanga
vs. Court of Appeals, G.R. No. 115407, August 28, 1995).
(B) Suppose the accused is convicted of the crime of homicide
and the accused filed a Notice of Appeal, is he entitled to bail? ‘14 X was charged for murder and was issued a warrant of arrest. X
- Q18b remains at large but wants to post bail. X's option is to: ‘12 - Q42

Answer: (A) If I were the judge, I would grant the second Petition for 1. file a motion to recall warrant of arrest;
Bail. Under Section 7, Rule 114, Rules of Court, no person charged 2. surrender and file a bail petition;
with a capital offense, or an offense punishable by reclusion perpetua 3. file a motion for reinvestigation;
or life imprisonment, shall be admitted to bail when evidence of guilt is 4. file a petition for review with the OOJ.
strong, regardless of the stage of the criminal prosecution.

In this case, the evidence of guilt for the crime of murder is not strong, SUGGESTED ANSWER:
as shown by the prosecution’s failure to prove the circumstances that b) Surrender and file a bail petition.
will qualify the crime to, consequently convict the accused of, murder. Bail is the security given for the release of a person in the custody of
the law (Rule 114, Sec. 1, Rules of Court). The Rules used the word,
Accordingly, it is settled that an Order granting bail is merely interlocu- “custody” to signify that bail is only available for someone who is under
tory which cannot contain finality (Pobre v. People, G.R. No. 141805, the custody of the law. Hence, X should first surrender before he could
July 8, 2005). be allowed to post bail.

ALTERNATIVE ANSWER Angie was convicted of false testimony and served sentence. Five
years later, she was convicted of homicide. On appeal, she ap-
plied for bail. May the Court of Appeals deny her application for
If I were the judge, I would deny the second Position for Bail. Since the
bail on ground of habitual delinquency? ‘11-Q3
accused was already given the opportunity to present evidence in the
summary hearing of his application for bail, and the Court has already (A) Yes, the felonies are both punishable under the Revised Penal
ruled that the evidence of the prosecution is strong, his failure to file a Code.
motion for reconsideration of the denial of his petition for bail will ren-
der the aforesaid Order final and executory, which can no longer be (B) Yes, her twin convictions indicated her criminal inclinations.
altered therefore during the hearing on the merits. (C) No, the felonies fall under different titles in the Revised Penal
Code.
Be that is may, the Court’s ruling that the resolution for Petition for Bail
should be based solely on the evidence presented by the Prosecution (D) No, the charges are both bailable.
is misplaced.

66
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The Metropolitan Trial Court convicted Virgilio and Dina of concu- set for hearing and (2) that Juan be allowed to post bail in the
binage. Pending appeal, they applied for bail, claiming they are event the court would issue an arrest warrant. Should the court
entitled to it as a matter of right. Is their claim correct? ‘11-Q9 grant or deny Juan's prayers? ’04 – Q2a

Under the Extradition Treaty and Law, the application of the Secretary
(A) No, bail is not a matter of right after conviction. of Justice for a warrant of arrest need not be set for hearing, and Juan
cannot be allowed to post bail if the court would issue a warrant of
(B) Yes, bail is a matter of right in all cases not involving moral turpi- arrest. The provisions in the Rules of Court on arrest and bail are not
tude. basically applicable (Government of the United States of America v.
(C) No, bail is dependent on the risk of flight. Puruganan, 389 SCRA 623 [2002].)

(D) Yes, bail is a matter of right in the Metropolitan Trial Court before
and after conviction. If an information was filed in the RTC-Manila charging D with
homicide and he was arrested in QC, in what court or courts may
he apply for bail? '02 – Q9c
Berto was charged with and convicted of violating a city ordi-
nance against littering in public places punishable by imprison- D may apply for bail in the RTC-Manila where the information was filed
ment of one month or a fine of P1,000.00. But the city mayor par- or in the RTC-Quezon City where he was arrested, or if no judge,
doned him. A year later, he was charged with violating a city ordi- thereof is available, with any metropolitan trial judge, municipal trial
nance against jaywalking which carried the same penalty. Need judge or municipal circuit trial judge therein (Section 17, Rule 114).
Berto post bail for such offense? ‘11 - Q28
D was charged with murder, a capital offense. After arraignment,
(A) Yes, his previous conviction requires posting of bail for the present
he applied for bail. The trial court ordered the prosecution to
charge.
present its evidence in full on the ground that only on the basis of
(B) Yes, since he may be deemed to have violated the terms of his such presentation could it determine whether the evidence of D’s
pardon. guilt was strong for purposes of bail. Is the ruling correct? '02 –
Q10c
(C) No, because he is presumed innocent until proven otherwise.
(D) No, one charged with the violation of a city ordinance is not re- NO, the prosecution is only required to present as much evidence as is
quired to post bail, notwithstanding a previous pardon. necessary to determine whether the evidence of D’s guilt is strong for
purposes of bail (Section 8, Rule 114).
When is bail a matter of right and when it is a matter of discre- When is bail a matter of right and when is it a matter of discre-
tion? ’06 – Q14 tion? '99 – Q14a
Bail is a matter of right: When bail is a matter of right:
1. Before or after conviction by the Metropolitan Trial Court, All persons in custody shall (a) before or after conviction by the Met-
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Cir- ropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in
cuit Trial Court; Cities, or Municipal Circuit Trial Court, and (b) before conviction by the
2. Before conviction by the Regional Trial Court of an offense Regional Trial Court of an offense not punishable by death, reclusion
not punishable by death, reclusion perpetua or life imprisonment (Sec- perpetua or life imprisonment (Section 4, Rule 114, Rules of Court).
tion 4, Rule 114 of the 2000 Revised Rules on Criminal Procedure); When bail is a matter of discretion:
and Upon conviction by the RTC of an offense not punishable by death,
3. If the charge involves a capital offense and the evidence of reclusion perpetua or life imprisonment, admission to bail is discre-
guilt is not strong (Section 7, Rule 114 of the 2000 Revised Rules on tionary. If the penalty of imprisonment exceeds six (6) years, the ac-
Criminal Procedure). cused shall be denied bail, or his bail shall be cancelled upon showing
Bail is a matter of discretion upon conviction by the Regional Trial by the prosecution, with notice to the accused, of the following or other
Court of an offense not punishable by death, reclusion perpetua or life similar circumstances:
imprisonment (Section 5, Rule 114 of the 2000 Revised Rules on Crim- 1. That the accused is a recidivist, quasi-recidivist or habitual
inal Procedure). delinquent, or has committed the crime aggravated by the circum-
stance of reiteration;
[Note: In Leviste v. Court of Appeals, 615 SCRA 619 [2010], the Court 2. That the accused is found to have previously escaped from
held that “Under the present rule, bail is a matter of discretion upon legal confinement, evaded sentence, or has violated the conditions of
conviction by the Regional Trial Court of an offense not punishable by his bail without valid justification;
death, reclusion perpetua or life imprisonment. Pursuant to the “tough 3. That the accused committed the offense while on probation,
on bail pending appeal” policy, the presence of bail-negating conditions parole, or under conditional pardon;
mandates the denial or revocation of bail pending appeal such that 4. That the circumstances of the accused or his case indicate
those circumstances are deemed to be as grave as conviction by the the probability of flight if released on bail; or
trial court for an offense punishable by death, reclusion perpetua or life 5. That there is undue risk that during the pendency of the
imprisonment where bail is prohibited. After conviction of the trial court, appeal, the accused may commit another crime (Section 5, Rule 114,
the presumption of innocence terminates and, accordingly, the consti- Rules of Court).
tutional right to bail ends – from then on, the grant of bail is subject to
judicial discretion.”] In what forms may bail be given? '99 – Q14b
RP and State XX have a subsisting Extradition Treaty. Pursuant Bail may be given by a corporate surety, or through a property bond,
thereto RP's Secretary of Justice (SOJ) filed a Petition for Extradi- cash deposit or recognizance (Section 1, Rule 114).
tion before the MM RTC alleging that Juan Kwan is the subject of
an arrest warrant duly issued by the proper criminal court of State When the accused is entitled as a matter of right to bail, may the
XX in connection with a criminal case for tax evasion and fraud Court refuse to grant him bail on the ground that there exists a
before his return to RP as a balikbayan. Petitioner prays that Juan high degree of probability that he will abscond or escape? '99 –
be extradited and delivered to the proper authorities of State XX Q14c
for trial, and that to prevent Juan's flight in the interim, a warrant
for his immediate arrest be issued. Before the RTC could act on
the petition for extradition, Juan filed before it an urgent motion,
in sum praying (1) that SOJ's application for an arrest warrant be

67
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If bail is a matter of right, it cannot be denied on the ground that there RULE 115 - RIGHTS OF THE ACCUSED
exists a high degree of probability that the accused will abscond or
escape. What the court can do is to increase the amount of the bail.
One of the guidelines that the judge may use in fixing a reasonable Maria was accused of libel. While Maria was on the witness stand,
amount of bail is the probability of the accused appearing in trial (Sec- the prosecution asked her to write her name and to sign on a
tion 9(g), Rule 114). piece of paper, apparently to prove that she authored the libelous
material. Maria objected as writing and signing her name would
May the Court require a witness to post bail? '99 – Q14d violate her right against self-incrimination. Was Maria’s objection
proper? (1%) ‘13 - MCQ18
YES. The court may require a witness to post bail if he is a material
witness and bail is needed to secure his appearance. The rules pro- (A) No, she can be cross examined just like any other witness and
vide that when the court is satisfied, upon proof or oath, that a material her sample signature may be taken to verify her alleged author-
witness will not testify when required, it may, upon motion of either ship of the libelous statements.
party, order the witness to post bail in such sum as may be deemed (B) No, her right against self-incrimination is waived as soon as
proper. Upon refusal to post bail, the court shall commit him to prison she became a witness.
until he complies or is legally discharged after his testimony has been
taken (Section 14, Rule 119). (C) No, this privilege may be invoked only by an ordinary witness
and not by the accused when she opts to take the witness stand.
In an information charging them of Murder, policemen A, B and C (D) The objection was improper under all of A, B, and C.
were convicted of Homicide. A appealed from the decision but B
and C did not. B started serving his sentence but C escaped and (E) The objection was proper as the right to self-incrimination is a
is at large. In the Court of Appeals, A applied for bail but was de- fundamental right that affects liberty and is not waived simply
nied. Finally, the Court of Appeals rendered a decision acquitting because the accused is on the witness stand.
A on the ground that the evidence pointed to the NPA as the
SUGGESTED ANSWER: (E) The objection was proper as the right to
killers of the victim.
self-incrimination is a fundamental right that affects liberty and is not
1. Was the Court of Appeal's denial of A's application for
waived simply because the accused is on the witness stand.
bail proper?
Section 17, Article III of the 1987 Constitution provides that no person
YES, the Court of Appeals properly denied A's application for bail. The shall be compelled to be a witness against himself. The essence of the
court had the discretion to do so. Although A was convicted of homicide right against self-incrimination is testimonial compulsion, that is, the
only, since he was charged with a capital offense, on appeal he could giving of evidence against himself through a testimonial act (People v.
be convicted of the capital offense (Obosa v. Court of Appeals, 266 Casinillo, G.R. No. 97441, September 11, 1992, 213 SCRA 777).
SCRA 281 [1997].)
In Beltran v. Samson (G.R. No. 32035, September 23, 1929, 53 Phil.
2. Can B and C be benefited by the decision of the Court of 570), the Supreme Court held that for purposes of the constitutional
Appeals? '98 – Q13 privilege, there is a similarity between one who is compelled to pro-
duce a document, and one who is compelled to produce a document,
B, who did not appeal, can be benefited by the decision of the Court of and one who is compelled to furnish a specimen of his handwriting, for
Appeals which is favorable and applicable to him (Section 11(a) Rule in both cases, the witness is required to furnish evidence against him-
122, Rules of Criminal Procedure.) The benefit will also apply to C self. Thus, the right against self-incrimination was applied in favor of a
even if his appeal is dismissed because of his escape. witness who was compelled to furnish his handwriting for comparison.

Accused was charged with murder. At the hearing of his applica-


tion for bail, the prosecution manifested that it was ready to X was arrested for the alleged murder of a 6-year old lad. He was
present evidence to prove that the guilt of the accused is strong. read his Miranda rights immediately upon being apprehended. In
The defense, however, contended that the report and documents/ the course of the detention, X was subjected to three hours of
papers of the prosecutor’s certification of probable cause in the non-stop interrogation. He remained quiet until, on the 3rd hour,
information is sufficient determination whether the evidence of he answered “yes” to the question of whether “he prayed for
guilt is strong, thereby dispensing with the presentation of the forgiveness for shooting down the boy.” The trial court, inter-
prosecution’s evidence. As judge, how would you resolve the preting X’s answer as an admission of guilt, convicted him. On
contention of the defense? ’96 – Q12(4) appeal, X’s counsel faulted the trial court in its interpretation of
his client’s answer, arguing that X invoked his Miranda rights
I would overrule the contention of the defense because the prosecution when he remained quiet for the first two hours of questioning.
has the right to present evidence to prove that evidence of guilt is Rule on the assignment of error. ’10 – Q11
strong (Section 8 of Rule 114). A hearing is indispensable.

May bail be granted even if what is charged is a capital offense The assignment of error invoked by X’s counsel is impressed with
and the evidence of guilt is strong? ’95 – Q12(1) merit since there has been no express waiver of X’s Miranda rights. In
order to have a valid waiver of the Miranda rights, the same must be
Although bail is not a matter of right when the accused is charged with in writing and made in the presence of counsel. The uncounselled
a capital offense and the evidence of guilt is strong, there are rulings extra-judicial confession of X being without a valid waiver of his Mi-
that in exceptional cases, the court has discretion to grant bail on such randa rights, is inadmissible, as well as any information derived there-
cases (Barinaga v. Tamin, 226 SCRA 206 [1993].) from.

Boyet was born on January 6, 1979. On February 15, 1995, he was


arrested on a charge of raping on February 14, 1995 his first Policemen brought Lorenzo to the PGH and requested one of its
cousin Lorna, a 13-year old girl. While the prosecution recom- surgeons to immediately perform surgery on him to retrieve a
mended no bail for Boyet since the evidence against him was packet of 10 grams of shabu which they alleged was swallowed
strong, Boyet nevertheless applied for bail. Should Boyet be by Lorenzo. Suppose the PGH agreed to, and did perform the
granted bail? ’95 – Q12(2) surgery, is the package of shabu admissible in evidence? ’10 –
Q13
YES, because a privileged mitigating circumstance will be considered
in determining whether an offense is bailable or not (Bravo v. Borja,
134 SCRA 466 [1985].)

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NO, the package of shabu extracted from the body of Lorenzo is not was given in the presence of an assisting counsel, Carlito is deemed
admissible in evidence because it was obtained through surgery which fully aware of the consequences of his statements (People v. Silvano,
connotes forcible invasion into the body of Lorenzo without his consent G.R. No. 144886, April 29, 2002).
and absent due process. The act of the policemen and the PGH sur-
geon involved, violate the fundamental rights of Lorenzo, the suspect.
L was charged with illegal possession of shabu before the RTC.
Although bail was allowable under his indictment, he could not
Alternative Answer: afford to post bail, and so he remained in detention at the City
Jail. For various reasons ranging from the promotion of the Pre-
siding Judge, to the absence of the trial prosecutors, and to the
Yes, it is admissible in evidence because the constitutional right lack of notice to the City Jail Warden, the arraignment of L was
against self-incrimination is addressed only to extracting admission of postponed 19 times over a period of 2 years. Twice during that
guilt from the lips of the suspect where otherwise no incriminating evi- period, L’s counsel filed motions to dismiss, invoking the right of
dence exists. the accused to a speedy trial. Both motions were denied by the
RTC. Can L file a petition for mandamus? ’07 – Q9
In the past, the Supreme Court has already declared many invasive
and involuntary procedures (i.e., examination of women’s genitals,
expulsion of morphine from one’s mouth, DNA testing) as constitution- YES, L can file a petition for mandamus to enforce his constitutional
ally sound (Agustin v. Court of Appeals, G.R. No. 162571, June 15, right to a speedy trial which was capriciously denied to him.
2005).
There is absolutely no justification for postponing an arraignment of the
accused nineteen (19) times and over a period of two (2) years. The
Arrested in a buy-bust operation, Edmond was brought to the numerous, unreasonable postponements of the arraignment demon-
police station where he was informed of his constitutional rights. strate an abusive exercise of discretion (Lumanlaw v. Peralta, 482
During the investigation, Edmond refused to give any statement. SCRA 396 [2006].) Arraignment of the accused would not take thirty
However, the arresting officer asked Edmond to acknowledge in minutes of the precious time of the court, as against the preventive
writing the six (6) sachets of “shabu” that were confiscated from imprisonment and deprivation of liberty of the accused just because he
him. Edmond consented and also signed a receipt for the amount does not have the means to post bail although the crime charged is
of P3,000, allegedly representing the “purchase price of the bailable.
shabu”. At the trial, the arresting officer testified and identified The right to a speedy trial is guaranteed by the Constitution to every
the documents executed and signed by Edmond. Edmond’s citizen accused of a crime, more so, when he is under preventive im-
lawyer did not object to the testimony. After the presentation of prisonment. L, in the given case, was merely invoking his constitutional
testimonial evidence, the prosecutor made a formal offer of evi- right when a motion to dismiss the case was twice filed by counsel.
dence which included the documents signed by Edmond. Ed- The RTC is virtually enjoined by the fundamental laws to respect such
mond’s lawyer objected to the admissibility of the documents for right; hence a duty. Having refused or neglected to discharge the duty
being the “fruit of the poisoned tree”. Resolve the objection. ’09 – enjoined by law, whereas there is no appeal or any plain, speedy and
Q6 adequate remedy in the ordinary course of law, the remedy of man-
damus may be availed of.
The objection to the admissibility of the documents which the arresting
officer asked Edmond to sign without the benefit of counsel is well- What are the requirements in order that an admission of guilt of
taken. Said documents, having been signed by the accused while un- an accused during a custodial investigation be admitted in evi-
der custodial investigation, imply an “admission” without the benefit of dence? ’06 – Q16(1)
counsel, that the shabu came from him and that the P3,000 was re-
ceived from him pursuant to the illegal selling of drugs. Thus, it was
obtained by the arresting officer in clear violation of Section 12(3),
As admission of guilt during a custodial investigation is a confession.
Article III of the 1987 Constitution, particularly the right to be assisted
To be admissible in evidence, the requirements are:
by counsel during custodial investigation.
1. The confession must be voluntary;
Moreover, the objection to the admissibility of the evidence was timely
made, i.e., when the same is formally offered. 2. The confession must be made with the assistance of competent and
independent counsel;
3. The confession must be express; and
The mutilated cadaver of a woman was discovered near a creek.
Due to witnesses attesting that he was the last person seen with 4. The confession must be in writing (People v. Principe, 381 SCRA
the woman when she was still alive, Carlito was arrested within 5 642 [2002].)
hours after discovery of the cadaver and brought to the police
station. The crime laboratory determined that the woman had
been raped. While in police custody, Carlito broke down in the Under R.A. No. 8353, one may be charged with and found guilty of
presence of an assisting counsel and orally confessed to the in- qualified rape if he knew on or before the commission of the
vestigator that he had raped and killed the woman, detailing the crime that he is afflicted with HIV/AIDS or any other sexually
acts he had performed up to his dumping of the body near the transmissible disease and the virus or disease is transmitted to
creek. He was genuinely remorseful. During the trial, the State the victim. Under Section 17(a) of Republic Act No. 8504 the court
presented the investigator to testify on the oral confession of may compel the accused to submit himself to a blood test where
Carlito. Is the oral confession admissible as evidence of guilt? ’08 blood samples would be extracted from his veins to determine
– Q16 whether he has HIV.
1. Are the rights of the accused to be presumed innocent
The declaration of an accused expressly acknowledging his guilt, in of the crime charged, to privacy, and against self-incrimination
the presence of assisting counsel, may be given in evidence against violated by such compulsory testing?
him and any person, otherwise competent to testify as a witness, who
heard the confession, is competent to testify as to the substance of
what he heard and understood it. What is crucial here is that the ac- NO. The court may compel the accused to submit himself to a blood
cused was informed of his right to an attorney and that what he says test to determine whether he has HIV under Section 17(a) of R.A. No.
may be used in evidence against him. As the custodial confession 8504. His rights to be presumed innocent of the crime charged, to

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privacy and against self-incrimination are not violated by such compul- car and the cocaine as evidence and placed D under arrest. With-
sory testing. In an action in which the physical condition of a party is in out advising him of his right to remain silent and to have the as-
controversy, the court may order the accused to submit to a physical sistance of an attorney, they questioned him regarding the co-
examination. The right against self-incrimination refers to compulsory caine. In reply, D said, “I don’t know anything about it. It isn’t even
testimonial compulsion and does not include the body of the accused my car.” D was charged with illegal possession of cocaine, a pro-
as evidence when it may be material (U.S. v. Tan Teng, 23 Phil. 145 hibited drug. Upon motion of D, the court suppressed the use of
[1912[; Villaflor v. Summers, 41 Phil. 62; Section 1, Rule 38, 1997 cocaine as evidence and dismissed the charges against him. D
Rules of Civil Procedure). commenced proceedings against the police for the recovery of
his car. In his direct examination, D testified that he owned the car
but had registered it in the name of a friend for convenience. On
2. If the result of such test shows that he is HIV positive, cross-examination, the attorney representing the police asked,
and the prosecution offers such result in evidence to prove the “After your arrest, did you not tell the arresting officers that it
qualifying circumstance under the Information for qualified rape, wasn’t your car?” If you were D’s attorney, would you object to
should the court reject such result on the ground that it is the the question? '02 – Q11
fruit of a poisonous tree? '05 – Q2(2) YES, because his admission made when he was questioned after he
was placed under arrest was in violation of his constitutional right to be
informed of his right to remain silent and to have competent and inde-
The fruit of the poisonous tree doctrine applies only where the primary pendent counsel of his own choice. Hence, it is inadmissible in evi-
source is shown to have been unlawfully obtained or was the result of dence (Section 12, Article III, Constitution; Section 2, R.A. No. 7438
an illegal act (People v. Alicando, 251 SCRA 293 [1995].) Since the (1992); People v. Mahinay, 302 SCRA 455 [1999].)
rights of the accused are not violated because the compulsory testing
is authorized by law, the result of the testing cannot be considered to Alternative Answer:
be the fruit of a poisonous tree and can be offered in evidence to prove Yes, because the question did not lay the predicate to justify the cross-
the qualifying circumstance under the Information for qualified rape examination question.
under R.A. No. 8353.
The barangay captain reported to the police that X was illegally
At the scene of a heinous crime, police recovered a man’s shorts keeping in his house in the barangay an Armalite M16 rifle. On the
with blood stains and strands of hair. Shortly afterwards, a war- strength of that information, the police conducted a search of the
rant was issued and police arrested the suspect, AA, during his house of X and indeed found said rifle. The police raiders seized
detention, a medical technician extracted a blood sample from his the rifle and brought X to the police station. During the investiga-
finger and cut a strand of hair from his hair, despite AA’s objec- tion, he voluntarily signed a Sworn Statement that he was pos-
tions. During AA’s trial for rape with murder, the prosecution sessing said rifle without license or authority to possess, and a
sought to introduce DNA evidence against AA, based on forensic Waiver of Right to Counsel. During the trial of X for illegal pos-
laboratory matching of the materials found at the crime scene and session of firearm, the prosecution submitted in evidence the
AA’s hair and blood samples. AA’s counsel objected, claiming rifle. Sworn Statement and Waiver of Right to Counsel, individual-
that the DNA evidence is inadmissible because the materials tak- ly rule on the admissibility in evidence of the:
en from AA were in violation of his constitutional right against
self-incrimination as well as his right of privacy and personal 1. Rifle;
integrity. Should the DNA evidence be admitted or not? ’04 – Q10a
The rifle is not admissible in evidence because it was seized without a
YES. The DNA evidence should be admitted. It is not in violation of the proper search warrant. A warrantless search is not justified. There was
constitutional right against self-incrimination or his right of privacy and time to secure a search warrant (People v. Encinada, 280 SCRA 72
personal integrity. The right against self-incrimination is applicable only [1997] and other cases).
to testimonial evidence. Extracting a blood sample and cutting a strand
from the hair of the accused are purely mechanical acts that do not
involve his discretion nor require his intelligence (Tijing v. Court of Ap- 2. Sworn Statement; and
peals, 354 SCRA 17 [2001].)
The sworn statement is not admissible in evidence because it was
Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both taken without informing him of his custodial rights and without the as-
aged 22, in the act of robbing a grocery in Ermita. As he hand- sistance of counsel which should be independent and competent and
cuffed them he noted a pistol tucked in Max's waist and a dagger preferably of the choice of the accused (People v. Januario, 267 SCRA
hidden under Brix's shirt, which he promptly confiscated. At the 608 [1997].)
police investigation room, Max and Brix orally waived their right
to counsel and to remain silent. Then under oath, they freely an-
swered questions asked by the police desk officer. Thereafter 3. Waiver of Right to Counsel of X. '98 – Q17
they signed their sworn statements before the police captain, a
lawyer. Max admitted his part in the robbery, his possession of a The waiver of his right to counsel is not admissible because it was
pistol and his ownership of the packet of shabu found in his made without the assistance of counsel of his choice (People v.
pocket. Brix admitted his role in the robbery and his possession Gomez, 270 SCRA 433 [1997].)
of a dagger. But they denied being NPA hit men. In due course, Accused was charged with estafa and pleaded not guilty thereto.
proper charges were filed by the City Prosecutor against both The prosecution repeatedly sought and obtained postponements
arrestees before the MM RTC. May the written statements signed over the objection of the accused who invoked his right to speedy
and sworn to by Max and Brix be admitted by the trial court as trial. At the succeeding hearing, the prosecution again sought
evidence for the prosecution? '04 – Q10b postponement on the ground that the complainant, its only wit-
NO. The sworn written statements of Max and Brix may not be admit- ness, was out of the country. If you were counsel of the accused,
ted in evidence, because they were not assisted by counsel. Even if what course of action would you take in order that the case
the police captain before whom they signed the statements was a against him will be finally dismissed by the court? ’96 – Q12(3)
lawyer, he was not functioning as a lawyer, nor can he be considered I would object to any further postponement, insist on a trial and move
as an independent counsel. Waiver of the right to a lawyer must be for dismissal on the ground of the right of the accused to a speedy trial.
done in writing and in the presence of independent counsel (People v. The dismissal in such a case bars a subsequent prosecution for the
Mahinay, 302 SCRA 455 [1999]; People v. Espiritu, 302 SCRA 533 same offense.
[1999].)
X, the accused, was called by the prosecution as the 1st witness
Acting on a tip by an informant, police officers stopped a car be- to testify for the government. X refused to take the stand invoking
ing driven by D and ordered him to open the trunk. The officers his privilege against self-incrimination. On the other hand, the
found a bag containing several kilos of cocaine. They seized the

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prosecution contends that X may be compelled to take the wit- The custodial rights of an accused are already available at the time an
ness stand and claim the privilege only as each question requir- ultra-violet examination to determine presence of ultra violet powder on
ing an incriminatory answer is put to him. Can the court order X his hands is being conducted.
to testify? ’96 – Q13(4)
There is a custodial investigation when a person is taken under the
NO, the court cannot order X to testify because he is the accused and custody of the law or otherwise deprived of his freedom of action in any
he is exempt from being compelled to be a witness against himself significant way. “Custodial investigation is the stage where the police
(Section 1(e) of Rule 115; Cabal v. Kapunan, 6 SCRA 1059 [1962]; investigation is no longer a general inquiry into an unsolved crime but
Chavez v. Court of Appeals, 24 SCRA 663 [1968].) If he were an ordi- has begun to focus on a particular suspect taken into custody by the
nary witness, not an accused, he could be ordered to testify and claim police who carry out a process of interrogation that lends itself to elicit
the privilege against self-incrimination only as each question requiring incriminating statements.” (People vs. Sunga, G.R. No. 126092, March
an incriminatory answer is put to him (Badiong v. Gonzales, 94 SCRA 27, 2003). Otherwise stated, a custodial investigation begins when the
906 [1979].) investigation starts to focus on a particular suspect. Among the rights
guaranteed to a suspect is that he must continuously have a counsel
1. An accused's custodial rights, e.g., right to counsel and right assisting him from the very start of that interrogation (People vs. Mori-
to remain silent, is available: al, et al., G.R. No. 129295, April 15, 2001). Clearly, when an accused is
a. at preliminary investigation. compelled to undergo ultra-violet examination to determine the pres-
ence of ultra violet powder on his hands, it is no longer a mere general
b. at police line-up for identification purposes. inquiry but rather a custodial investigation which focuses on him as a
c. at ultra-violet examination to determine presence of ultra suspect in the commission of the crime. Therefore, for all intents and
violet powder on accused's hands. purposes, he is entitled to exercise his Constitutional safeguard and
guaranteed rights to counsel and to remain silent.
d. at one-on-one confrontation with eyewitness.

SUGGESTED ANSWER: RULE 116 - ARRAIGNMENT AND PLEA

a) At preliminary investigation.
At arraignment, X pleads not guilty to a Robbery charge. At the
Any person under investigation for the commission of an offense shall pretrial, he changes his mind and agrees to a plea bargaining,
have the right to be informed of his right to remain silent and to have with the conformity of the prosecution and offended party, which
competent and independent counsel preferably of his own choice. If downgraded the offense to theft. The Court should therefore: 12 -
the person cannot afford the services of a counsel, he must be provid- MCQ15
ed with one. These rights cannot be waived except in writing and in the
presence of counsel. (Article III, Sec. 12 (1), 1987 Constitution). These
guaranteed rights are available in all kinds of investigation including a a. render judgment based on the change of plea.
preliminary investigation. In a preliminary investigation, a public prose- b. allow the withdrawal of the earlier plea and arraign X for theft
cutor determines whether a crime has been committed and whether and render judgment.
there is probable cause that the accused is guilty thereof. (Rules of c. receive evidence on the civil liability and render judgment.
Court, Rule 122, Section 1). (Metropolitan Band and Trust Company d. require the prosecution to amend the information.
vs. Rogelio Reynado et. al., G.R. No. 164538, August 9, 2010, Del
Castillo, J.). The right to have a preliminary investigation conducted SUGGESTED ANSWERS:
before being bound over to trial for a criminal offense and hence for- b) Allow the withdrawal of the earlier plea and arraign X for theft and
mally at risk of incarceration or dome other penalty, is not a mere for- render judgment.
mal or technical right; it is a substantive right. To deny the accused’s c) Receive evidence on the civil liability and render judgment.
claim to a preliminary investigation would be to deprive him of the full The Court should allow the withdrawal of the earlier plea and arraign X
measure of his right to due process.” (Sales vs. Sandiganbayan, G.R. for theft and render judgment without need of an amendment of the
No. 143802, November 16, 2001). Applying the foregoing constitutional complaint or information. (Rule 116, Sec. 2, Rules of Court). Be that as
and procedural precepts, there is no doubt that the custodial rights are it may, the Court has to receive evidence on the civil liability which is
available during the preliminary investigation. impliedly instituted with the criminal action before it renders a judgment
ALTERNATIVE ANSWER: against X. (Rule 111, Sec. 1, Rules of Court).

There are some authorities however, who believe that the custodial The case of R, who is under detention, was raffled to the RTC on
rights do not apply during preliminary investigation. They opine that March 1. His arraignment should be set not later than: ‘12 - Q81
preliminary investigation is a summary proceeding and merely inquisi-
torial in nature. Hence, the accused cannot yet invoke the full exercise
of his rights including the right to counsel. Moreover, a preliminary a. March 4;
investigation is not a part of a trial and it is not only in a trial where an b. March 16;
accused can demand the full exercise of his rights, such as the right to c. March 30;
conform and cross-examine his accusers to establish his innocence d. March 11.
(Albaña vs. Belo, G.R. No. 158734, October 2m 2009, Leonardo-De
Castro, J.). In a preliminary investigation, a full and exhaustive presen- SUGGESTED ANSWER:
tation of the parties’ evidence is not even required, nut only such as d) March 11
may engender a well-grounded belief that an offense has been com- The arraignment of R should be set not later than March 11. Under
mitted and that the accused is probably guilty thereof. (Geore Miller vs. Section1, Rule 116 of the Rules of Court, the accused shall be ar-
Secretary Hernando B. Perez, G.R. No. 165412, May 30, 3011, Vil- raigned within ten (10) days from the date of the raffle.
larama, Jr. J.) Ergo, the custodial rights of accused are not available
during the preliminary investigation. The accused in a criminal case has the right to avail of the vari-
ous modes of discovery. ’09 – Q11a

c) At ultra-violet examination to determine presence of ultra violet TRUE. The accused has the right to move for the production or inspec-
powder on tion of material evidence in the possession of the prosecution. It autho-
rizes the defense to inspect, copy or photograph any evidence of the
accused’s hands.
prosecution in its possession after obtaining permission from the court
(Section 10, Rule 116; Webb v. De Leon, 247 SCRA 652 [1995].)

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D was charged with theft of an article worth P15,000. Upon being which was not alleged in the Information to complete the ele-
arraigned, he pleaded not guilty to the offense charged. There- ments of the offense to justify his conviction? ’95 – Q11
after, before trial commenced, he asked the court to allow him to
change his plea of not guilty to a plea of guilty but only to estafa NO, his plea of guilty did not have the effect of supplying what was not
involving P5,000. Can the court allow D to change his plea? ’02 – alleged in the information to complete the elements to justify his con-
Q9d viction. His plea merely admits the truth of the facts alleged in the in-
formation.
NO, because a plea of guilty to a lesser offense may be allowed if the
lesser offense is necessarily included in the offense charged (Section Charged with the crime of murder before the RTC of Bulacan, the
2, Rule 116). Estafa involving P5,000.00 is not necessarily included in accused, assisted by counsel, pleaded guilty to the charge.
theft of an article worth P15,000.00 Thereupon, the trial court rendered a judgment convicting the
accused for the crime of murder and sentencing him to suffer
X was charged with murder attended by treachery and evident reclusion perpetua and to pay civil indemnity to the heirs of the
premeditation. During arraignment, X, assisted by counsel, plead- victim. Did the trial court properly? ’93 – Q2
ed guilty with the qualification “hindi ko sinadya patayin”. X’s
counsel assured the court that he fully apprised X of the informa- YES, because it is only when the accused is charged with a apital
tion, the nature of the charge, and the consequences of his plea. offense punishable with death that the court shall conduct a searching
X even waived the prosecution’s presentation of evidence against inquiry into the voluntariness and full comprehension of the conse-
him. The court convicted X of murder. quences of the plea of guilty and require the prosecution to prove his
guilt and the precise degree of culpability. The crime charged of murder
1. Was the plea of guilty entered valid? is not a capital offense, because the death penalty cannot be imposed
under the Constitution.
NO, the plea of guilty by X with the qualification “Hindi ko sinadya
patayin” was a conditional plea of guilty and hence a plea of not guilty An accused may move for the suspension of his arraignment if:
should be entered for him (Section 1(c) of Rule 116).
a. a motion for reconsideration is pending before the in-
2. May the prosecution dispense with the presentation of
vestigating prosecutor.
evidence despite the waiver of the accused? ’96 – Q13(2)
b. accused is bonded and his bondsman failed to notify
him of his scheduled arraignment.
NO, the court should require the prosecution to prove the guilt and
c. a prejudicial question exists.
precise degree of culpability of the accused (Section 3 of Rule 116).
d. there is no available public attorney.
Crisanto is charged with murder. At his arraignment, the prosecu-
tion witnesses appeared in together with the heirs of victim. Real- SUGGESTED ANSWER
izing the gravity of the offense and the number of witnesses c) A prejudicial question exists.
against him, Crisanto consulted his counsel de oficio who ex-
plained to him the nature of the charge and the consequences of Under Section 11, Rule 16 of the Rules of Criminal Procedure, upon
his plea. Crisanto then manifested his readiness for arraignment. motion of the proper party, the arrangement shall be suspended in the
The Information was read to him in a language he clearly under- following cases: (a) The accused appears to be suffering from an un-
stood after which he pleaded guilty. To be sure, the judge forth- sound mental condition which effectively renders him unable to fully
with asked him if he indeed he fully understood the implications understand the charge against him and to plead intelligently thereto. In
of his plea and Crisanto readily and without hesitation answered such case, the court shall order his mental examination and, if neces-
in the affirmative. The judge, fully convinced that the plea of the sarily, his confinement for such purpose; (b) There exists a prejudicial
accused was made with the latter’s full knowledge of the meaning question; and (c) A petition for review of the resolution of the prosecu-
and consequences of his plea, then pronounced sentence on the tor is pending at either the Department of Justice, or the Office of the
accused. President; provided that the period of suspension shall not exceed
sixty (60) days counted from the filing of the petition with the reviewing
1. Comment on the action of the judge. office. (Rule 116, Sec. 11, Rules of Court).

The judge erred in pronouncing sentence on the accused without pre-


viously conducting a searching inquiry into the voluntariness and full RULE 117 - MOTION TO QUASH
comprehension of the consequences of the plea of guilty and requiring
the prosecution to prove the guilt and the precise degree of culpability
(Section 3, Rule 116). The Ombudsman, after conducting the requisite preliminary in-
vestigation, found probable cause to charge Gov. Matigas in con-
2. Suppose Crisanto with the assistance of counsel spiracy with Carpintero, a private individual, for violating Section
waives the presentation of evidence by the prosecution saying 3(e) of Republic Act (RA) No. 3019 (Anti-Graft and Corrupt Prac-
that, after all, he has already entered his plea, may the court tices Act, as amended). Before the information could be filed with
insist on the presentation of the evidence for the prosecution? the Sandiganbayan, Gov. Matigas was killed in an ambush. This,
notwithstanding, an information was filed against Gov. Matigas
YES, in accordance with the above rule. and Carpintero. At the Sandiganbayan, Carpintero through coun-
sel, filed a Motion to Quash the Information, on the ground of lack
3. Suppose upon plea bargaining, Crisanto decides to of jurisdiction of the Sandiganbayan, arguing that with the death
plead guilty to the lesser offense of homicide, may the court still of Gov. Matigas, there is no public officer charged in the informa-
require presentation of evidence? tion. Is the motion to quash legally tenable? (4%) ‘14 - Q15

Although Crisanto pleads guilty to a non-capital offense, the court Answer: No. The motion to quash is not legally tenable. While it is true
may still require evidence to determine the penalty to be imposed that by reason of the death of Gov. Matigas, there is no longer any
(Section 4, Rule 116). public officer with whom he can be charged for violation of R.A. 3019, it
does not mean, however, that the allegation of conspiracy between
4. After the information was read to Crisanto upon arraignment them can no longer be proved or that their alleged conspiracy is al-
and he pleaded guilty to the charge but the facts did not suffi- ready expunged.
ciently constitute an offense, did his plea of guilt, which has al-
ready been entered in the records, have the effect of supplying

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The only thing extinguished by the death of Gov. Matigas is his criminal conviction of the accused shall not be a bar to another prosecution for
liability. His death did not extinguish the crime nor did it remove the an offense which necessarily includes the offense charged in the com-
basis of the charge of conspiracy between him and Carpintero. plaint or information when (a) the graver offense developed due to
supervening facts arising from the same act or omission constituting
The requirement before a private person may be indicted for a violation the former charge; or (b) the facts constituting the graver charge be-
of Section 3 (g) of R.A. 3019, among others, is that such private per- came known or were discovered only after a plea was entered in the
son must be alleged to have acted in conspiracy with a public officer. former complaint or information (Section 7, 2nd Par., Rule 117, 2000
The law, however, does not require that such person must, in all in- Rules of Criminal Procedure). Here, when the plea to frustrated homi-
stances, be indicted together with the public officer. Indeed, it is not cide was made, neither the court nor the prosecution was aware that
necessary to join all alleged co-conspirators in an indictment for con- the victim had died two days earlier on account of his stab wounds.
spiracy (People v. Henry T. Go, G.R. No. 168539, March 25, 2014). The case falls under (b), since the facts constituting the graver
charge became known or were discovered only after a plea was en-
tered in the former complaint or information.
What is “res judicata in prison grey”? ’10 – Q17
Before the arraignment for the crime of murder, the private com-
“Res judicata in prison grey” is the criminal concept of double plainant executed an Affidavit of Desistance stating that she was
jeopardy, as “res judicata” is the doctrine of civil law (Trinidad v. Office not sure if the accused was the man who killed her husband. The
of the Ombudsman, 539 SCRA 415 [2007]). public prosecutor filed a Motion to Quash the Information on the
Described as “res judicata in prison grey”, the right against double ground that with private complainant’s desistance, he did not
jeopardy prohibits the prosecution of a person for a crime of which he have evidence sufficient to convict the accused. On 2 January
has been previously acquitted or convicted. The purpose is to set the 2001, the court without further proceedings granted the motion
effects of the first prosecution at rest, assuring the accused that he and provisionally dismissed the case. The accused gave his ex-
shall not thereafter be subjected to the danger and anxiety of a second press consent to the provisional dismissal of the case. The of-
charge against him for the same offense (Caes v. Intermediate Appel- fended party was notified of the dismissal but she refused to give
late Court, November 6, 1989). her consent. Subsequently, the private complainant urged the
public prosecutor to re-file the murder charge because the ac-
A criminal information is filed in court charging Anselmo with cused failed to pay the consideration which he had promised for
homicide. Anselmo files a motion to quash the information on the the execution of the Affidavit of Desistance. The public prosecu-
ground that no preliminary investigation was conducted. Will the tor obliged and re-filed the murder charge against the accused on
motion be granted? ’09 – Q16b 01 February 2003, the accused filed a Motion to Quash the Infor-
mation on the ground that the provisional dismissal of the case
NO, the motion to quash will not be granted. The lack of prelimi- had already become permanent.
nary investigation is not a ground for a motion to quash under the 1. Was the provisional dismissal of the case proper?
Rules of Criminal Procedure. Preliminary investigation is only a statuto-
ry right and can be waived. The accused should instead file a motion The provisional dismissal of the case was proper because the
for reinvestigation within five (5) days after the filing in Court of the accused gave his express consent thereto and the offended party was
case against him (Section 6, Rule 112, as amended). notified. It was not necessary for the offended party to give her consent
thereto (Section 8 of Rule 117).
Rodolfo is charged with possession of unlicensed firearms in an
Information filed in the RTC. It was alleged therein that Rodolfo 2. Resolve the Motion to Quash. '03 – Q14
was in possession of two unlicensed firearms: a .45 caliber and
a .32 caliber. Under R.A. No. 8294, possession of an unlicensed . The motion to quash the information should be denied because,
45 caliber gun is punishable by prision mayor in its minimum while the provisional dismissal had already become permanent, the
period and a fine of P30.000, while possession of an unlicensed . prescriptive period for filing the murder charge had not prescribed.
32 caliber gun is punishable by prision correccional in its maxi- There was no double jeopardy because the first case was dismissed
mum period and a fine of not less than P15,000. As counsel of the before the accused had pleaded to the charge (Section 7 of Rule 117).
accused, you intend to file a motion to quash the Information.
What ground or grounds should you invoke? '05 – Q13 When a criminal case is dismissed on nolle prosequi, can it later
be re-filed? '03 – Q15
The ground for the motion to quash is that more than one offense
is charged in the information (Section3(f), Rule 117, 200 Rules of Crim- As a general rule, when a criminal case is dismissed on nolle
inal Procedure). Likewise, the RTC has no jurisdiction over the second prosequi before the accused is placed on trial and before he is called
offense of possession of an unlicensed .32 caliber gun, punishable by on to plead, this is not equivalent to an acquittal and does not bar a
prision correccional in its maximum period and a fine of not less than subsequent prosecution for the same offense (Galvez v. Court of Ap-
P15,000. It is the MTC that has exclusive and original jurisdiction over peals, 237 SCRA 685 [1994].)
offenses punishable by imprisonment not exceeding six (6) years (Sec-
tion 2, R.A. No. 7691 [1994], amending Section 32(2), B.P. Blg. 129 D was charged with slight physical injuries in the MTC. He plead-
[1980].) ed not guilty and went to trial. After the prosecution had present-
ed its evidence, the trial court set the continuation of the hearing
For the multiple stab wounds sustained by the victim, Noel was on another date. On the date scheduled for hearing, the prosecu-
charged with frustrated homicide in the RTC. Upon arraignment, tor failed to appear, whereupon the court, on motion of D, dis-
he entered a plea of guilty to said crime. Neither the court nor the missed the case. A few minutes later, the prosecutor arrived and
prosecution was aware that the victim had died two days earlier opposed the dismissal of the case. The court reconsidered its
on account of his stab wounds. Because of his guilty plea, Noel order and directed D to present his evidence. Before the next date
was convicted of frustrated homicide and meted the correspond- of trial came, however, D moved that the last order be set aside on
ing penalty. When the prosecution learned of the victim's death, it the ground that the reinstatement of the case had placed him
filed within fifteen (15) days therefrom a motion to amend the twice in jeopardy. Acceding to this motion, the court again dis-
information to upgrade the charge from frustrated homicide to missed the case. The prosecutor then filed an information in the
consummated homicide. Noel opposed the motion claiming that RTC, charging D with direct assault based on the same facts al-
the admission of the amended information would place him in leged in the information for slight physical injuries but with the
double jeopardy. Resolve the motion. '05 – Q15 added allegation that D inflicted the injuries out of resentment for
what the complainant had done in the performance of his duties
Amending the information from frustrated homicide to consum- as chairman of the board of election inspectors. D moved to
mated homicide does not place the accused in double jeopardy. The quash the second information on the ground that its filing had

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placed him in double jeopardy. How should D’s motion to quash that which the Information charged him and therefore,
be resolved? '02 – Q10a there is no more possibility that he can intimidate wit-
nesses and hamper the prosecution. Decide. Suppose X
D’s motion to quash should be granted on the ground of double files a Motion to Quash challenging the validity of the
jeopardy because the first offense charged is necessarily included in Information and the Sandiganbayan denies the same,
the second offense charged (Draculan v. Donato, 140 SCRA 425 will there still be a need to conduct a pre-suspension
[1985].) hearing? Explain. (5%) ‘12 - Q9

In a prosecution for robbery against D, the prosecutor moved for SUGGESTED ANSWER:
the postponement of the first scheduled hearing on the ground There is no necessity for the court to conduct
that he had lost his records of the case. The court granted the pre-suspension hearing. Under Section 13 of RA No.
motion but, when the new date of trial arrived, the prosecutor, 3019, an incumbent public officer against whom any
alleging that he could not locate his witnesses, moved for the criminal prosecution under valid information for graft-
provisional dismissal of the case. If D’s counsel does not object, related crime such as malversation is pending in court,
may the court grant the motion of the prosecutor? '02 – Q10b shall be suspended from office. The word “office”, from
which the public officer charged shall be preventively
NO, because a case cannot be provisionally dismissed except suspended, could apply to any office, which he might
upon the express consent of the accused and with notice to the of- currently be holding and not necessarily the particular
fended party (Section 8, Rule 117). office under which he is charged. The preventive sus-
pension of the following public officers was sustained:
BC is charged with illegal possession of firearms under an Infor- (1) a mayor, who was charged with acts committed as a
mation signed by a Provincial Prosecutor. After arraignment but governor auditor of the Commission on Audit (Bayot vs.
before pre-trial, BC found out that the Provincial Prosecutor had Sandiganbayan, G.R. No. L-61776 to L-61861, March
no authority to sign and file the information as it was the City 23, 1984); (2) a public officer, who is already occupying
Prosecutor who has such authority. During the pre-trial, BC the office of governor and not the position of municipal
moves that the case against him be dismissed on the ground that mayor that he held previously when charged with hav-
the Information is defective because the officer signing it lacked ing violated the Anti-Graft Law (Deloso vs. Sandigan-
the authority to do so. The Provincial Prosecutor opposes the bayan, G.R. No. 86899, May 15, 1989); and (3) a Vice-
motion on the ground of estoppel as BC did not move to quash Governor, whose suspension is predicated on his acts
the Information before arraignment. If you are counsel for BC, supposedly committed while still a member of the
what is your argument to refute the opposition of the Provincial Sangguniang Bayan (Libanan vs. Sandiganbayan, G.R.
Prosecutor? '00 – Q10 No. 112386, June 14, 1994). Thus, the DENR under-
secretary can be preventively suspended even though
I would argue that since the Provincial Prosecutor had no authori- he was a mayor, when allegedly committed malversa-
ty to file the information, the court did not acquire jurisdiction over the tion.
person of the accused and over the subject matter of the offense Settled is the rule that where the accused
charged (Cudia v. Court of Appeals, 284 SCRA 173 [1999].) Hence, files a motion to quash the information or challenges
this ground is not waived if not raised in a motion to quash and could the validity thereof, a show-cause order of the trial court
be raised at the pre-trial (Section 9, Rule 117, Rules of Court). would no longer be necessary. What is indispensible is
that the trial court duly hear the parties at a hearing
Give two (2) grounds to quash an Information. ’98 – Q15(1) held for determining the validity of the information, and
thereafter hand down its ruling, issuing the correspond-
The grounds to quash an information are: ing order of suspension should it uphold the validity of
1. That the facts charged do not constitute an offense; the information (Luciano vs. Mariano, G.R. No.
2. That the court trying the case has no jurisdiction over the L-32950, July 30, 1971). Since a pre-suspension hear-
offense charged; ing is basically a due process requirement, when an
3. That the court trying the case has no jurisdiction over the accused public official is given an adequate opportunity
person of the accused; to be heard on his possible defenses against the
4. That it does not conform substantially to the prescribed form; mandatory suspension under R.A. No. 3019, then an
5. That more than one offense is charged except when a single accused would have no reason to complain than no
punishment for various offenses is prescribed by law; actual hearing was conducted (Miguel vs. The Honor-
6. That the criminal action or liability has been extinguished; able Sandiganbayan, G.R. No. 172035. July 4, 2012).
7. That it contains averments which, if true, would constitute a In the facts given, the DENR Undersecretary was al-
legal excuse or justification; and ready given an opportunity to question the validity of the
8. That the accused has been previously charged, or the case Information for malversation by filing a motion to quash,
against him was dismissed or otherwise terminated without and yet, the Sandiganbayan sustained its validity. There
his express consent (Section 3, Rule 117, Revised Rules of is no necessity for the court to cinduct pre-suspension
Criminal Procedure). hearing to determine for the second time the validity of
the information o=for purpose of preventively suspend-
The information filed against A charged more than one offense. A ing the accused.
has not yet been arranged. If you were the lawyer of A, would you
file a motion to quash or a motion for bill of particulars? ’96 – ALTERNATIVE ANSWER:
Q12(1) The argument that X should not be suspend-
ed as he now holds an office different form that charged
I would file a motion to quash on the ground that more than one in the Information is unavailing. Under Section 3(e) of
offense is charged (Section 3(f) of Rule 117). A motion for bill of partic- RA 3019, a public officer may be charged before the
ulars is not proper because there are no defects in the information that Sandiganbayan for “causing undue injury to any party,
need clarification (Section 9, Rule 116). including the Government, or giving any private party
any unwarranted benefits, advantage or preference in
a) X, an undersecretary of DENR, was charged before the the discharge of his official, administrative or judicial
Sandiganbayan for malversation of public funds alleged- functions through manifest partiality, evident bad faith or
ly committed when he was still the Mayor of a town in gross inexcusable negligence.” The Supreme Court has
Rizal. After arraignment, the prosecution moved that X held that Section 13 of RA 3019 is so clear and explicit
be preventively suspended. X opposed the motion argu- that there is hardly room for any extended court ratio-
ing that he was now occupying a position different from

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nalization of the law. Preventive suspension is manda- Relative thereto, bail is the security for the release of the person in
tory regardless of the respondent’s change in position. custody of the law (Section 1, Rule 114, Rules of Court).

The Rules use the word “custody” to signify that bail is only available
Which of the following distinguishes a motion to quash from a
for someone who is under the custody of the law (Peter Paul Dimatulac
demurrer to evidence? (1%) ‘13 - MCQ Q9
v. Hon. Sesinando Villon, G.R. No. 127107, October 12, 1998).
(A) A motion to quash a complaint or information is fi led
before the prosecution rests its case. Hence, A cannot seek any judicial relief if he does not submit his per-
son to the Sandiganbayan may grant the motion to quash the warrant
(B) A motion to quash may be fi led with or without leave
of arrest.
of court, at the discretion of the accused.
(C) When a motion to quash is granted, a dismissal of It is well settled that adjudication of a motion to quash a warrant of
the case will not necessarily follow. arrest requires neither jurisdiction over the person of the accused nor
custody of the law over the body of the accused.
(D) The grounds for a motion to quash are also grounds
for a demurrer to evidence.
Otherwise stated, an accused can invoke the processes of the court
(E) The above choices are all wrong. even though there is neither jurisdiction over his person nor he is under
the custody of the law (Jose C. Miranda v. Virgilio M. Tuliao, G.R. No.
SUGGESTED ANSWER: (C) When a motion to quash is
158763, March 31, 2006).
granted, a dismissal of the case will not necessarily follow.
Under Section 4 of Rule 117, if the motion to Thus Sandiganbayan may grant the motion to quash the warrant of
quash is based on an alleged defect of the complaint or arrest.
information which can be cured by amendment, the court
shall order that an amendment be made. If it is based on the I will grant the motions to quash the warrant of arrest and fix bail. Well
ground that the facts charged do not constitute an offense, settled, is the rule that there are two (2) ways of acquiring jurisdiction
the prosecution shall be given by the court an opportunity to over the person of the accused, namely: (i) arrest by virtue of a war-
correct the defect by amendment. The motion shall be grant- rant; and (ii) voluntary appearance of the accused (People v. Arturo
ed if the prosecution fails to make the amendment, or the Lara, G.R. No. 199877, August 13, 2012).
complaint or information still suffers from the same defect
despite the amendment. In filing the aforementioned mentions, the accused sought affirmative
Section 5 of Rule 117 also provides that if the reliefs from the Sandiganbayan. Thus, he is deemed to have voluntarily
motion to quash is sustained, the court may order that an- submitted himself to the jurisdiction of the said Court.
other complaint or information be filed except as provided in
Section 6 of this rule. If the order is made, the accused, if in Hence, the Sandiganbayan may validly grant the said motions in favor
custody, shall not be discharged unless admitted to bail. If no of the accused
order is made or if having been made, no new information is
filed within the time specified in the order or within such fur- (B) The accused may file a motion for reconsideration. If the same is
ther time as the court may allow for good cause, the ac- denied, the accused may report to a petition for certiorari under Rule
cused, if in custody, shall be discharged unless he is also in 65 directly to the Supreme Court.
custody for another charge.
The information against Roger Alindogan for the crime of acts of
Clearly, if a Motion to Quash is granted, the dis-
lasciviousness under Article 336 of the Revised Penal Code
missal of the case will not necessity follow.
avers:

"That on or about 10:30 o'clock in the evening of February 1, 2010


A was charged before the Sandiganbayan with a crime of plunder, at Barangay Matalaba, Imus, Cavite and within the jurisdiction of
a non-bailable offense, where the court had already issued a war- this Honorable Court, the above-named accused, with lewd and
rant for his arrest. Without A being arrested, his lawyer filed a unchaste design, through force and intimidation, did then and
Motion to Quash Arrest Warrant and to Fix Bail, arguing that the there, wilfully, unlawfully and feloniously commit sexual abuse on
allegations in the information did not charge the crime of plunder his daughter, Rose Domingo, a minor of 11 years old, either by
but a crime of malversation, a bailable offense. The court denied raping her or committing acts of lasciviousness on her, against
the motion on the ground that it had not yet acquired jurisdiction her will and consent to her damage and prejudice. ACTS CON-
over the person of the accused and that the accused should be TRARY TO LAW."
under the custody of the court since the crime charged was non-
bailable. The accused’s lawyer counter-argued that the court can The accused wants to have the case dismissed because he be-
rule on the motion even if the accused was at-large because it lieves that the charge is confusing and the information is defec-
had jurisdiction over the subject matter of the case. According to tive. What round or grounds can he raise in moving for the
said lawyer, there was no need for the accused to be under the quashal of the information? Explain. (5%) ’16 – Q17
custody of the court because what was filed was a Motion to
Quash Arrest and to Fix Bail, not a Petition for Bail. SUGGESTED ANSWER:

(A) If you are the Sandiganbayan, how will you rule on the mo- The accused may move the quash the information based on any of the
tion? (3%) ‘14 - Q17a following grounds: (a) That the facts charged do not constitute an of-
fense; (b) That it does not conform substantially to the prescribed form;
(B) If the Sandiganbayan denies the motion, what judicial remedy and (c) That more than one offense is charged except when a single
should the accused undertake? (2%) ‘14 - Q17b punishment for various offenses is prescribed by law (Section 3 Rule
117, Rules of Criminal Procedure).
Answer: (A) I will grant the Motion to quash the warrant of arrest but I
will deny the Motion to fix bail. A motion to fix bail is essentially an ap- In People v. dela Cruz, G.R. Nos. 135554-56, 21 June 2002), the
plication for bail (People v. Bucalon, G.R. No. 176933, October 2, Supreme Court ruled that the phrase "by either by raping her or com-
2009). mitting acts of lasciviousness" does not constitute an offense since it
does not cite which among the numerous sections or subsections of
R.A. No. 7610 has been violated by accused-appellant. Moreover, it

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does not state the acts and omissions constituting the offense, or any
The arrangements and (Stricter procedure)
special or aggravating circumstances attending the same, as required
admissions in the pre-trial All agreements or
under the rules of criminal procedure. These are conclusions of law,
are not required to be signed admissions made or entered
and not facts. Thus, the information violated accused's constitutional
by both parties and their during the pre-trial
right to be informed of the nature and cause of the accusation against
counsels. conference shall be reduced
him and therefore should be quashed on the ground that the informa-
Under the Rules, they are in writing and signed by both
tion charges acts that do not constitute an offense.
instead to be contained in the the accused and counsel;
record of pre-trial and pre- otherwise, they cannot be
trial order (Rule 18, Sec. 7) used against the accused
RULE 118 - PRE-TRIAL
[A.M. No. 03-1-09] - requires (Rule 118, Sec. 2)
the proceedings during the
Mayor TM was charged of malversation through falsification of preliminary conference to be
official documents. Assisted by Atty. OP as counsel de parte dur- recorded in the “Minutes of
ing pre-trial, he signed together with Ombudsman Prosecutor TG Preliminary Conference” to
a "Joint Stipulation of Facts and Documents," which was pre- be signed by both parties
sented to the Sandiganbayan. Before the court could issue a pre- and/or counsel.
trial order but after some delay caused by Atty. OP, he was substi- (Note: either party or his
tuted by Atty. QR as defense counsel. Atty. QR forthwith filed a counsel is allowed to sign)
motion to withdraw the "Joint Stipulation," alleging that it is prej-
udicial to the accused because it contains, inter alia, the state- The sanctions for non- Sanctions are imposed upon
ment that the "Defense admitted all the documentary evidence of appearance are imposed the counsel for the accused
the Prosecution," thus leaving the accused little or no room to upon the plaintiff and the or the prosecutor (Rule 118,
defend himself, and violating his right against self-incrimination. defendant (Rule 18, Sec. 4) Sec. 3)
Should the court grant or deny QR's motion? ’04 – Q1b
A pre-trial brief is specifically A pre-trial brief is not
The court should deny QR's motion. If in the pre-trial agreement required to be submitted specifically required.
signed by the accused and his counsel, the accused admits the docu- (Rule 18, Sec. 6)
mentary evidence of the prosecution, it does not violate his right
against self-incrimination. His lawyer cannot file a motion to withdraw.
A pre-trial order is not needed (Bayas v. Sandiganbayan, 391 SCRA
415 [2002].) The admission of such documentary evidence is allowed
by the rule (Section 2 of Rule 118; People v. Hernandez, 260 SCRA 25
RULE 119 - TRIAL
[1996].)

Give three distinctions between a pre-trial in a criminal case and a Enumerate the requisites of a promulgation of “trial in absentia”.
pre-trial in a civil case. ’97 – Q7 ’10 – Q19(1)

The requisites of a valid trial in absentia are:


Civil Case Criminal Case 1. Accused’s arraignment;
2. His due notification of the trial; and
Set when the plaintiff moves Ordered by the court and no 3. His unjustifiable failure to appear during trial (Bernardo v.
ex parte to set the case for motion to set the case for People, 520 SCRA 332 [2007]).
pre-trial (Rule 18, Sec. 1) pre-trial is required from
either the prosecution or the After the prosecution had rested and made its formal offer of evi-
defense (Rule 118, Sec. 1) dence, with the court admitting all of the prosecution evidence,
the accused filed a demurrer to evidence with leave of court. The
Made after the pleading has Ordered by the court after
prosecution was allowed to comment thereon. Thereafter, the
been served and filed (Rule arraignment and within 30
court granted the demurrer, finding that the accused could not
18, Sec. 1) days from the date the court
have committed the offense charged. If the prosecution files a
acquired jurisdiction over the
motion for reconsideration on the ground that the court order
person of the accused (Rule
granting the demurrer was not in accord with the law and ju-
118, Sec. 1)
risprudence, will the motion prosper? ’09 – Q16a
Considers the possibility of Does not include considering
NO, the motion will not prosper. With the granting of the demurrer,
an amicable settlement as an the possibility of amicable
the case shall be dismissed and the legal effect is the acquittal of the
important objective (Rule settlement of one’s criminal
accused. A judgment of acquittal is immediately executory and no ap-
118, Sec. 2(a)) liability as one of its purposes
peal can be made therefrom. Otherwise, the Constitutional protection
(Rule 118, Sec. 1)
against double jeopardy would be violated.

Distinguish the effects of the filing of demurrer to the evidence in


a criminal case and its filing in a civil case. ’07 – Q5a

The following are the distinctions in effects of demurrer to the


evidence in criminal cases from that in civil cases:
1. In criminal cases, demurrer to the evidence requires prior
leave of court, otherwise, the accused would lose his right to
present defense evidence if filed and denied. In civil cases,
no leave of court is required for filing such demurrer.
2. In criminal cases, when such demurrer is granted, the dis-
missal of the case is not appealable inasmuch as the dis-
missal would amount to an acquittal, unless made by court
acting without or in excess of jurisdiction. In civil cases,
when such demurrer is granted, the dismissal of the case
can be appealed by the plaintiff.

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3. In criminal cases, the accused loses his right to present his the plaintiff, the appellate court reverses the order and renders judg-
defense-evidence in the trial court when he filed the demur- ment for the plaintiff, the defendant loses his right to present evidence
rer without prior leave of court. While in civil cases, the de- (Rule 33).
fendant loses his right to present his defense-evidence only In a criminal case, the accused has to obtain leave of court to file
if the plaintiff appealed such dismissal and the case is before a demurrer to evidence. If he obtains leave of court and his demurrer
the appellate court since the case would be decided only on to evidence is denied, he has the right to present evidence in his de-
the basis of plaintiff’s evidence on record. fense. If his demurrer to evidence is granted, he is acquitted and the
prosecution cannot appeal.
What is reverse trial and when it may be resorted to? ’07 – Q5b If the accused does not obtain leave of court and his demurrer to
evidence is denied, he waives his right to present evidence and the
A reverse trial is one where the defendant or the accused present case is decided on the basis of the evidence for the prosecution.
evidence ahead of the plaintiff or prosecution and the latter is to The court may also dismiss the action on the ground of insuffi-
present evidence by way of rebuttal to the former’s evidence. This kind ciency of the evidence on its own initiative after giving the prosecution
of trial may take place in a civil case when the defendant’s Answer the opportunity to be heard (Section 23 of Rule 119).
pleads new matters by way of affirmative defense, to defeat or evade
liability for plaintiff’s claim which is not denied but controverted. Carlos, the accused in a theft case, filed a demurrer to evidence
In a criminal case, a reverse trial may take place when the ac- without leave of court. The court denied the demurrer to evidence
cused made known to the trial court, on arraignment, that he is to ad- and Carlos moved to present his evidence. The court denied Car-
duce an affirmative evidence of a justifying or exempting circumstance los’ motion to present evidence and instead judgment on the ba-
and thus impliedly admitting the act imputed to him. The trial court may sis of the evidence for the prosecution. Was the court correct in
then require the accused to present evidence first, proving the requi- preventing Carlos from presenting his evidence and rendering
sites of the justifying or exempting circumstance he is invoking, and the judgment on the basis of the evidence for the prosecution? ’01 –
prosecution to present rebuttal evidence controverting the same. Q1

As counsel of an accused with homicide, you are convinced that YES, because the demurrer to the evidence was filed without
he can be utilized as a state witness. What procedure will you leave of court. The Rules provide that when the demurrer to evidence
take? ’06 – Q16b is filed without leave of court, the accused waives the right to present
evidence and submits the case for judgment on the basis of the evi-
As counsel for the accused, I will advise my client to ask for a dence for the prosecution (Section 23 of Rule 119, Revised Rules of
reinvestigation and convince the prosecutor for him to move for the Criminal Procedure).
discharge of my client as a state witness, or the accused can apply as
a state witness under R.A. No. 6981, The Witness Protection, Security What are the requisites of a trial in absentia? '98 – Q10(1)
and Benefit Act. The right to prosecute vests the prosecutors with a
wide range of discretion, including what and whom to charge (Sobera- The requisites of trial in absentia are: (a) the accused has already
no v. People, 472 SCRA 125 [2000].) been arraigned; (b) he has been duly notified of the trial; and (c) his
failure to appear is unjustifiable (Section 14(2), Article III, Constitution;
The information for illegal possession of firearm filed against the Parada v. Veneracion, 269 SCRA 371 [1997].)
accused specifically alleged that he had no license or permit to
possess the caliber .45 pistol mentioned therein. In its evidence- Facing a charge of Murder, X filed a petition for bail. The petition
in-chief, the prosecution established the fact that the subject was opposed by the prosecution but after hearing the court
firearm was lawfully seized by the police from the possession of granted bail to X. On the first scheduled hearing on the merits, the
the accused, that is, while the pistol was tucked at his waist in prosecution manifested that it was not adducing additional evi-
plain view, without the accused being able to present any license dence and that it was resting its case. X filed a demurrer to evi-
or permit to possess the firearm. The prosecution on such evi- dence without leave of court but it was denied by the court.
dence rested its case and within a period of five days therefrom, 1. Did the court have the discretion to deny the demurrer
the accused filed a demurrer to evidence, in sum contending that to evidence under the circumstances mentioned above?
the prosecution evidence has not established the guilt of the ac-
cused beyond reasonable doubt and so prayed that he be acquit- YES. The Court had the discretion to deny the demurrer to the
ted of the offense charged. The trial court denied the demurrer to evidence, because although the evidence presented by the prosecu-
evidence and deemed the accused as having waived his right to tion at the hearing for bail was not strong, without any evidence for the
present evidence and submitted the case for judgment on the defense, it could be sufficient for conviction.
basis of the prosecution evidence. In due time, the court rendered
judgment finding the accused guilty of the offense charged be- 2. If the answer to the preceding question is in the affirma-
yond reasonable doubt and accordingly imposing on him the tive, can X adduce evidence in his defense after the de-
penalty prescribed therefor. Is the judgment of the trial court valid nial of his demurrer to evidence?
and proper? '04 – Q3b
NO. Because he filed the demurrer to the evidence without leave
YES. The judgment of the trial court is valid. The accused did not (Section 23, Rule 119, Rules of Criminal Procedure.) However, the trial
ask for leave to file the demurrer to evidence. He is deemed to have court should inquire as to why the accused filed the demurrer without
waived his right to present evidence (Section 23 of Rule 119; People v. leave and whether his lawyer knew that the effect of filing it without
Flores, 269 SCRA 62 [1997]; Bernardo v. Court of Appeals, 278 SCRA leave is to waive the presentation of the evidence for the accused
782 [1997].) However, the judgment is not proper or is erroneous be- (People v. Flores, 269 SCRA 62 [1997].)
cause there was no showing from the proper office, like the Firearms
Explosive Unit of the Philippine National Police, that the accused has a 3. Without further proceeding and on the sole basis of the
permit to own or possess the firearm, which is fatal to the conviction of evidence of the prosecution, can the court legally con-
the accused (Mallari v. Court of Appeals & People, 265 SCRA 456 vict X for Murder? ’98 – Q14
[1996].)
YES. Without any evidence from the accused, the prima facie
Compare the effects of a denial of demurrer to evidence in a civil evidence of the prosecution has been converted to proof beyond rea-
case with those of a denial of demurrer to evidence in a criminal sonable doubt.
case. '03 – Q5
Can criminal cases be adjudicated without trial? ’96 – Q1(3)
In a civil case, the defendant has the right to file a demurrer to
evidence without leave of court. If his demurrer is denied, he has the Criminal cases, as a rule, may not be adjudicated without trial.
right to present evidence. If his demurrer is granted and on appeal by Some exceptions are the following:

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1. Plea of guilty. (A) In one criminal action for qualified theft where you
2. Motion to quash on the ground of double jeopardy or extinc- are the defense attorney, you learned that the woman
tion of criminal action or liability. accused has been in detention for six months, yet she
3. Motion to dismiss on the ground of violation of the right to a has not been to a courtroom nor seen a judge.
speedy trial.
What remedy would you undertake to address the situa-
tion and what forum would you use to invoke this relief?
A was charged with the crime of kidnapping with murder. After the
(3%) ‘13 - Q4
prosecution rested its case, A filed a demurrer to evidence on
ground of insufficiency of evidence to sustain his conviction. The SUGGESTED ANSWER: (A) Section 7, Rule 119 provides, if
prosecution filed an opposition. The trial court denied the demur- the public attorney assigned to defend a person charged
rer and the motion for reconsideration thereafter filed. A filed a with a crime knows that the latter is preventively detained,
petition for certiorari with the Court of Appeals alleging that the either because he is charged with a bailable crime but has
denial of the demurrer to evidence, when there is no evidence no means to post bail, or, is charged with a bailable crime
against him, constitutes grave abuse of discretion, and prayed but has no means to post bail, or, is charged with a non-
that the Court of Appeals render judgment acquitting him. May the bailable crime, or, is serving a term of imprisonment in any
trial court’s denial of the demurrer of evidence be properly as- penal institution, it shall be his duty to do the following:
sailed by a petition for certiorari in the Court of Appeals? ’96 –
Q10(2) (a) Shall promptly undertake to obtain the presence of the
prisoner for trial or cause a notice to be served on the
The question does not state that A had obtained prior leave of person having custody of the prisoner requiring such
court to file a demurrer to evidence. Without such leave of court, A has person to so advise the prisoner having custody of the
waived his right to present evidence and has submitted the case for prisoner requiring such person to so advise the prisoner
judgment on the basis of the evidence for the prosecution (Section 23 of his right to demand trial.
of Rule 119). (b) Upon receipt of that notice, the custodian of the prison-
er shall promptly advise the prisoner of the charge and
5. After a plea of not guilty is entered, the accused shall have of his right to demand trial. If at any time thereafter the
_____ days to prepare for trial. prisoner informs his custodian that he demands such
trial, the latter shall cause notice to that effect to sent
a) 15; promptly to the public attorney.
b) 10; (c) Upon receipt of such notice, the public attorney shall
c) 30; promptly seek to obtain the presence of the prisoner for
d) None of the above. trial.
(d) When the custodian of the prisoner receives from the
SUGGESTED ANSWER: public attorney a properly supported request for the
a) 15 availability of the prisoner or purposes of trial, the pris-
After a plea of not guilty is entered, the ac- oner shall be made available accordingly. (Sec. 12, Cir.
cused shall have at least fifteen (15) days to prepare for 39-98)
trial. The trial shall commence within thirty (30) days
from receipt of the pre-trial order. (Rule 119, Sec. 1, Moreover, Section 1(c), Rule 116 provides, when the
Rules of Court). accused is under preventive detention, his case shall
be raffled and its records transmitted to the judge to
whom the case was raffled within three (3) days from
6. Which of the following statements is incorrect? the filing of the information or complaint. The accused
shall be assigned within ten (10) days from the date of
the raffle. The pre-trial conference of his case shall be
a) A Motion to Quash which is granted is a bar to the held within ten (10) days after arraignment.
prosecution for the same offense if the criminal
action or liability has been extinguished. On the other hand, if the accused is not under preven-
b) In the Court of Appeals, the accused may file a mo- tive detention, the arraignment shall be held within thirty
tion for new trial based only on newly discovered (30) days from the date the court acquires jurisdiction
evidence. over the person of the accused (Section 1(g), Rule
c) A demurrer to evidence may be filed without leave 116).
of court in a criminal case. Since the accused has not been brought for arraign-
d) None of the above. ment within the limit required in the aforementioned
Rule, the Information may be dismissed upon motion of
SUGGESTED ANSWER: the accused invoking his right to speedy trial (Section 9,
d) None of the above. Rule 119).
A Motion to Quash which is granted is a bar (B) A Petition for Mandamus is also feasible.
to the prosecution for the same offense if the criminal
action or liability has been extinguished. (Rule 117, In Lumanlaw v. Peralta, Jr. (G.R. No. 164953, February
Sec. 6 in relation to Section 3). In the Court of Appeals, 13, 2006), the Supreme Court held that “a writ of man-
the accused may file a motion for new trial based only damus may be issued to control the exercise of discre-
on newly discovered evidence. (Rule 53, Sec. 1, Rules tion when, in the performance of duty, there is undue
of Court). A demurrer to evidence may be filed without delay that can be characterized as a grave abuse of
leave of court in a criminal case. (Rule 119, Sec. 23, discretion resulting in manifest injustice. Due to the
Rules of Court). unwarranted delays in the conduct of the arraignment of
petitioner, he has indeed the right to demand – through
a writ of mandamus – expeditious action from all offi-
At the Public Attorney's Office station in Taguig where you are cials tasked with the administration of justice. Thus, he
assigned, your work requires you to act as public defender at the may not only demand that his arraignment be held but,
local Regional Trial Court and to handle cases involving indi- ultimately, that the information against him be dis-
gents. missed on the ground of the violation of his right to
speedy trial.”

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Ergo, a writ of mandamus is available to the accused to need of presenting defense evidence; when and how
compel a dismissal of the case. can you avail of this remedy? (4%)
(B) In another case, also for qualified theft, the detained SUGGESTED ANSWER: I will file first a motion for leave to
young domestic helper has been brought to court five file demurrer within five (5) days from the time the prosecu-
times in the last six months, but the prosecution has yet tion rested its case. If the same I granted, then I will now file
to commence the presentation of its evidence. You find a demurrer to evidence within ten (10) days (Section 23,
that the reason for this is the continued absence of the Rule 119). This remedy would allow the evaluation of the
employer-complainant who is working overseas. sufficiency of prosecution’s evidence without the need of
presenting defense evidence. It may be done through the
What remedy is appropriate and before which forum court’s initiative or upon motion of the accused and after the
would you invoke this relief? (3%) prosecution rested its case (Section 23, Rule 119).
SUGGESTED ANSWER: (B) a) I will likewise file a motion to
dismiss the information in the court where the case is pend-
ing on the ground of denial of the accused right to speedy RULE 120 - JUDGMENT
trial (Section 9, Rule 119).
b) I will request the court to issue Subpoena Duces Tecun Enumerate the requisites of a promulgation of “judgement in ab-
and Ad Testificandum to the witness so if he would disobey sentia”. ’10 – Q19(1)
the same, he may be cited in contempt.
The requisites for a valid promulgation of judgment in absentia
c) I will also file a motion to order the witness employer- are:
complainant to post bail to secure his appearance in court 1. A valid notice of promulgation of judgment;
(Section 14 Rule 119). 2. Said notice was duly furnished to the accused personally or
d) I can also move for Provisional Dismissal of the case thru counsel;
(Section 8, Rule 117, Rules of Court). 3. Accused failed to appear on the scheduled date of promul-
gation of judgment despite due notice;
(C) Still in another case, this time for illegal possession of dan- 4. Such judgement be recorded in the criminal docket; and
gerous drugs, the prosecution has rested but you saw from the 5. Copy of said judgment had been duly served upon the ac-
records that the illegal substance allegedly involved has not been cused or his counsel.
identified by any of the prosecution witnesses nor has it been the
subject of any stipulation. Name two (2) instances where the trial court can hold the accused
civilly liable even if he is acquitted. ’10 – Q19(2)
Should you now proceed posthaste to the presentation
of defense evidence or consider some other remedy? The instances where the civil liability is not extinguished despite
Explain the remedial steps you propose to undertake. acquittal of the accused where:
(3%) 1. The acquittal is based on reasonable doubt;
2. Where the court expressly declares that the liability of the
SUGGESTED ANSWER: (C) I will first file a motion for leave
accused is not criminal but only civil in nature; and
to file demurrer to evidence within five (5) days from the time
3. Where the civil liability is not derived from or based on the
the prosecution rested its case. If the same is granted, then I
criminal act of which the accused is acquitted (Sapiera v.
will file a demurrer to evidence within ten (10) days from
Court of Appeals, September 14, 1999).
notice on the ground of insufficiency of evidence of the pros-
ecution (Section 23, Rule 119, Rules of Criminal Procedure).
AX was charged before the YY RTC with theft of jewelry valued at
In People v. De Guzman (G.R. No. 186498, March 26, P20.000, punishable with imprisonment of up to 10 years of pri-
2010), the Supreme Court held that in a prosecution for vio- sion mayor under the RPC. After trial, he was convicted of the
lation of the Dangerous Drugs Act, the existence of the dan- offense charged, notwithstanding that the material facts duly es-
gerous drug is a condition sine qua non for conviction. The tablished during the trial showed that the offense committed was
dangerous drug is the very corpus delicti of the crime. The estafa, punishable by imprisonment of up to eight years of prision
identity of the prohibited drug must be established with moral mayor under the said Code. No appeal having been taken there-
certainty. Apart from showing that the elements of posses- from, said judgment of conviction became final.
sion or sale are present, the fact that the substance illegally 1. Is the judgment of conviction valid?
possessed and sold in the first place is the same substance
offered in court as exhibit must likewise be established with YES, the judgment of conviction for estafa upon an information for
the same degree of certitude as that needed to sustain a theft is valid because the court had jurisdiction to render judgment.
guilty verdict. The corpus delicti should be identified with However, the judgment was grossly and blatantly erroneous. The vari-
unwavering exactitude, ance between the evidence and the judgment of conviction is substan-
tial since the evidence is one for estafa while the judgment is one for
Similarly, in People v. Sitco (G.R. No. 178202, May 14, theft. The elements of the two crimes are not the same (Santos v. Peo-
2010), the High Court held that in prosecutions involving ple, 181 SCRA 487 [1990].) One offense does not necessarily include
narcotics and other illegal substances, the substance itself or is included in the other (Section 5 of Rule 120).
constitutes part of the corpus delicti of the offense and the
fact of its existence is vital to sustain a judgment of convic- 2. Is the said judgment reviewable thru a special civil ac-
tion beyond reasonable doubt. Of chief concern in drug cas- tion for certiorari? ’04 – Q5b
es then is the requirement that the prosecution prove that
what was seized by the police officers is the same item pre- The judgment of conviction is reviewable by certiorari even if no
sented in court. This identification must be established with appeal had been taken, because the judge committed a grave abuse
moral certainty and is a function of the rule on chain of cus- of discretion tantamount to lack or excess of his jurisdiction in convict-
tody. The chain of custody requirement is essential to ensure ing the accused of theft and in violating due process and his right to be
that doubts regarding the identity of the evidence are re- informed of the nature and the cause of the accusation against him,
moved through the monitoring and tracking of the move- which make the judgment void. With the mistake in charging the proper
ments of the seized drugs from the accused, to the police, to offense, the judge should have directed the filing of the proper informa-
the forensic chemist, and finally to the court. tion and thereafter dismissed the original information (Section 19 of
(B) What "during-trial" remedy can you use to allow an Rule 119).
early evaluation of the prosecution evidence without the

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Bar Ques)ons and Answers
X, the accused in a homicide case before the RTC. Dagupan City, functions of a trial court. It is a collegial court…The
was personally notified of the promulgation of judgment in his members of the graft court act on the basis of consen-
case set for 10 December 1996. On said date. X was not present sus or majority rule. The three Justices of a Division,
as he had to attend to the trial of another criminal case against rather than a single judge, are naturally expected to
him in Tarlac, Tarlac. The trial court denied the motion of the exert keener judiciousness and to apply broader cir-
counsel of X to postpone the promulgation. cumspection in trying and deciding cases. (Edgar
1. How shall the court promulgate the judgment in the ab- Payumo et al. vs. Hon.Sandiganbayan et al., G.R. No.
sence of the accused? 151911, July 25, 2011, Mendoza, J.) Thus, a Sandigan-
bayan justice alone may not promulgate judgment in a
In the absence of the accused, the promulgation shall be made by criminal case involving anti-graft laws.
recording the Judgment in the criminal docket and a copy thereof On the other hand, a judgment in the regular
served upon the accused or counsel (Section 6, 4th par., Rule 120). court is promulgated by reading it in the presence of the
accused and any judge of the court in which of the
2. Can the trial court also order the arrest of X? '97 – Q10 accused and any judge of the court in which it was
rendered. When the judge is absent or outside the prov-
NO, the trial court cannot order the arrest of X if the judgment is ince or city, the judgment may be promulgated by the
one of acquittal and, in any event, his failure to appear was with justifi- clerk of court. If the accused is confined or detained in
able cause since he had to attend to another criminal case against him another province or city, the judgment may be promul-
(Section 6, last par., Rule 120). gated by the executive judge of the Regional Trial Court
having jurisdiction over the place of confinement or
detention upon request of the court which rendered the
(22) The accused jumps bail and fails to appear on promulgation judgment. (Rule 120, Sec. 6, Rules of Court).
of judgment where he is found guilty. What is the consequence of
his absence? ‘11 - Q22
(A) Counsel may appeal the judgment in the absence of the 9. A judgment of conviction in a criminal case becomes final
accused. when: ‘12 - Q61
(B) The judgment shall be promulgated in his absence and
he loses his right of appeal. a) accused orally waived his right to appeal.
b) accused was tried in absentia and failed to appear
(C) The promulgation of the judgment shall be suspended at the promulgation.
until he is brought to the jurisdiction of the court. c) accused files an application for probation.
(D) The judgment shall be void. d) reclusion perpetua is imposed and the accused
fails to appeal.
7. P failed to appear at the promulgation of judgment without
justifiable cause. The judgment convicted P for slight physi-
cal injuries. Judgment may therefore be promulgated in the SUGGESTED ANSWER:
following manner: ‘12 - Q13 c) Accused files an application for probation.
A judgment of conviction in a criminal case
becomes final when the accused after the lapse of the
a) By the reading of the judgment in the presence of period for perfecting an appeal, or when the sentence
only the judge. has been partially or totally satisfied or served, or when
b) By the clerk of court in the presence of P's counsel. the accused has waived in writing his right to appeal, or
c) By the clerk of court in the presence of a represen- has applied for probation (Rule 120, Sec. 7, Rules of
tative of P. Court).
d) By entering the judgment into the criminal docket
of the court. At the promulgation of judgment, P, who is bonded, failed to ap-
pear without justifiable cause. In order for P not to lose his reme-
SUGGESTED ANSWER dies under the Rules, he must: ‘12 - Q95
d) By entering the judgment into the criminal docket of the
court a) within 15 days from receipt of a copy of the deci-
If P fails to appear at the promulgation of sion, file a Motion for Reconsideration.
judgment without justifiable cause, the promulgation b) within 15 days from the promulgation, surrender to
shall be made by recording the judgment in the criminal the court and file a motion for leave to avail of
docket and serving him a copy thereof at his last known remedies.
address or thru his counsel. (Rule 120, Sec. 6, Rules of c) notify his bondsman within 15 days so that his bail
Court). will not be confiscated.
8. The judgment in a criminal case may be promulgated by the d) file a petition for certiorari.
following, except by:

SUGGESTED ANSWER:
a) a Sandiganbayan justice in cases involving anti- b) Within 15 days from the promulgation, surrender to the
graft laws. court and file a motion for leave to
b) a Clerk of Court of the court which rendered judg- avail of remedies.
ment. If the judgment is for conviction and the fail-
c) an Executive Judge of a City Court if the accused is ure of the accused to appear was without justifiable
detained in another city. cause, he shall lose the remedies available in these
d) any judge of the court in which it was rendered. rules against the judgment and the court shall order his
arrest. Within fifteen (15) days from promulgation of
SUGGESTED ANSWER: judgment, however, the accused may surrender and file
a) A Sandiganbayan justice in cases involving anti-graft a motion for leave of court to avail of these remedies.
laws. He shall state the reasons for his absence at the
The Sanidganbayan is a special court of the scheduled promulgation and if he proves that his ab-
same level as the Court of Appeals (CA), and possess- sence was for a justifiable cause, he shall be allowed to
ing all the inherent powers of a court of justice, with avail of said remedies within fifteen (15) days from

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notice. (Rule 120, Sec. 6, Rules of Court) (Pascua vs. RULE 126 - SEARCH AND SEIZURE
Court of Appeals, 348 SCRA 197; People vs. De Grano,
G.R. No. 167710, June 5, 2009, Peralta, J.)
As Cicero was walking down a dark alley one midnight, he saw an
“owner-type jeepney” approaching him. Sensing that the occu-
Ludong, Balatong, and Labong were charged with murder. After
pants of the vehicle were up to no good, he darted into a corner
trial, the court announced that the case was considered submit-
and ran. The occupants of the vehicle – elements of the Western
ted for decision. Subsequently, the Clerk of Court issued the no-
Police District – gave chase and apprehended him. The police
tices of promulgation of judgement which were duly received. On
apprehended Cicero, frisked him and found a sachet of shabu
promulgation day, Ludong and his lawyer appeared. The lawyers
tucked in his waist and a Swiss knife in his secret pocket, and
of Balatong and Labong appeared without their clients and failed
detained him thereafter. Is the arrest and body-search legal? ’10 –
to satisfactorily explain their absence when queried by the court.
Q7
Thus, the judge ordered the Clerk of Court to proceed with the
reading of the judgement convicting all the accused. With respect
The arrest and body-search was legal. Cicero appears to be
to Balatong and Labong, the judge ordered that the judgement be
alone “walking down a dark alley” and at midnight. There appears
entered in the criminal docket and copies be furnished their
probable cause for the policemen to check him, especially when he
lawyers. The lawyers of Ludong, Balatong and Labong filed within
darted into a corner (presumably also dark) and ran under such cir-
the reglementary period a Joint Motion for Reconsideration. The
cumstances.
court favorably granted the motion of Ludong downgrading his
Although the arrest came after the body-search where Cicero was
conviction from murder to homicide but denied the motion as
found with shabu and a Swiss knife, the body-search is legal under the
regards Balatong and Labong. (4%)
“Terry search” rule or the “stop-and-frisk” rule. And because the mere
possession, with animus, of dangerous drug (the shabu) is a violation
(A) Was the court correct in taking cognizance of the Joint of the law (R.A. No. 9165), the suspect is in a continuing state of com-
Motion for Reconsideration ‘14 - Q1a mitting a crime while he is illegally possessing the dangerous drug,
(B) Can Balatong and Labong appeal their conviction in thus making the arrest tantamount to an arrest in flagrante; so the
case Ludong accepts his conviction for homicide? ‘14 - arrest is legal and correspondingly, the search and seizure of the
Q1b shabu and the concealed knife may be regarded as an incident to a
lawful arrest.
Answer: (A) The Court is not correct in taking cognizance of the Joint
Motion for Recommendation. Section 6, Rule 120 of the Rules of Court Alternative Answer:
provides that if the judgement is for conviction and the failure of the
accused to appear was without justifiable cause, he shall lose the No, the arrest and the body-search were not legal.
remedies available against the judgement and the court shall order his In this case, Cicero did not run because of the occupants of the
arrest. vehicle identified themselves as police officers. He darted into the cor-
ner and ran upon the belief that the occupants of the vehicle were up
Henceforth, the Court erred when it entertained the Joint Motion for to no good.
Reconsideration with respect to accused Balatong and Labong who Cicero