Preweek HO No 7 Remedial Law PDF

rd
3 Floor, Philippine Nurses Association, REMEDIAL LAW

# 1663 F. T. Benitez St, Malate, Manila
2018 PREWEEK
HO No. 7
GEN PRINCIPLES IN REMEDIAL LAW & CIVIL PROCEDURE
1. a. Can a Shari’a District Court acquire jurisdiction over an ejectment suit filed by Ben Embiid, a Filipino
Jew, against Joel Simmons, an Australian Muslim who have been possessing the real property of the
former in Poblacion, Parang, Maguindanao without Ben’s consent?
A: No. Shari' a District Courts have no jurisdiction over real actions where one of the parties is not a
Muslim.
Under Article 143 of the Muslim Code, the jurisdiction of Shari’a District Courts over real actions not arising
from customary contracts is concurrent with that of existing civil courts. However, this concurrent
jurisdiction over real actions “is applicable solely when both parties are Muslims.” When one of the parties
is not a Muslim, the action must be filed before the regular courts. (Villagracia vs. 5th Shari’a District Court,
G.R. No. 188832, April 23, 2014)
b. If the Shari’a District Court served summons upon Joel Simmons, did it acquire jurisdiction over his
person?
A: No. Since the Shari’a District Court has no jurisdiction over the subject matter of the action since
one of the parties is not a Muslim. Therefore, all the proceedings before the Shari’a District Court,
including the service of summons on Joel Simmons, are void. (Villagracia vs. 5th Shari’a District Court, G.R.
No. 188832, April 23, 2014)
2. Congress enacted Republic Act No. 98765, which conferred exclusive jurisdiction over civil and
commercial cases where all parties involved are foreigners to Regional Trial Court. Thereafter, the
Supreme Court issued A.M. No. 43210, designating specific RTC branches (to be known as “Foreigners
Courts”) to focus on, hear and decide cases covered by R.A. 98765 in order to facilitate the efficient
dispensation of justice.
In RTC Angeles City, Branches 15 and 16 were designated as Foreigners Courts.
Subsequently, Dr. Dwayne Helmsley, a British businessman residing in Angeles City, filed a
₱30,000,000,000.00-collection suit against his Australian business partner, Mr. Hunter Hearst Johnson.
The case was, however, raffled to RTC Angeles City, Branch 14 (regular branch). Instead of filing an
Answer, Mr. Johnson filed a Motion to Dismiss arguing that RTC Angeles City, Branch 14 has no
jurisdiction over the case since it is not a Foreigners Court.
Should the case be dismissed on the ground that RTC Angeles City, Branch 14 has no jurisdiction over
the subject matter?
A: No. A court's acquisition of jurisdiction over a particular case's subject matter is different from
incidents pertaining to the exercise of its jurisdiction. Jurisdiction over the subject matter of a case is
conferred by law, whereas a court's exercise of jurisdiction, unless provided by the law itself, is governed
by the Rules of Court or by the orders issued from time to time by the Court.
There is no question that the Regional Trial Court of Angeles City has jurisdiction over the dispute because
this was conferred by law to all Regional Trial Courts. However, not all of the branches of Regional Trial
Court of Angeles City can exercise such jurisdiction because A.M. No. 43210 designated only two (2)
0942 – 949 91 76
Legal Edge Bar Review legaledge8@gmail.com
0995 – 213 82 58
Page 1 of 32
rd
2018 PREWEEK
HO No. 7
branches as Foreigners Courts. Therefore, the erroneous raffling to a regular branch instead of to a
Foreigners Court is only a matter of procedure - that is, an incident related to the exercise of jurisdiction
- and, thus, should not negate the jurisdiction which the RTC of Angeles City had already acquired. In such
a scenario, the proper course of action is not to dismiss the case; instead, Branch 14 should first refer the
case to the Executive Judge for re-docketing as a case covered by R.A. 98765; thereafter, the Executive
Judge should then assign said case to the designated Foreigners Courts in the station, i.e., Branches 15
and 16. (Gonzales vs. GJH Land, Inc., G.R. No. 202664, November 20, 2015)
3. Does a Regional Trial Court, designated as a Family Court, have the authority and jurisdiction to
consider the constitutionality of a statute?
A: Yes. Despite its designation as a family court, an RTC remains possessed of authority as a court of
general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings,
land registration, guardianship, naturalization, admiralty or insolvency. It is settled that RTCs have
jurisdiction to resolve the constitutionality of a statute, “this authority being embraced in the general
definition of the judicial power to determine what are the valid and binding laws by the criterion of their
conformity to the fundamental law.” The Constitution vests the power of judicial review or the power to
declare the constitutionality or validity of a law, treaty, international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation not only in the Supreme Court, but in all RTCs. The
Constitution contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts
in cases where such constitutionality happens to be in issue. (Garcia vs. Drilon, G.R. No. 179267, June 25,
2013)
4. a. What are the cases covered by the Revised Rules on Summary Procedure?
A: (1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed
twenty thousand pesos (P20,000.00).
(2) All other civil cases, except probate proceedings, where the total amount of the plaintiff's claim does
not exceed ten thousand pesos (P10,000.00), exclusive of interest and costs.
(3) Violations of traffic laws, rules and regulations;
(4) Violations of the rental law;
(5) Violations of municipal or city ordinances;
(6) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment
not exceeding six months, or a fine not exceeding (P1,000.00), or both, irrespective of other imposable
penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in
offenses involving damage to property through criminal negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand pesos (P10,000.00). (Sec 1, RRSP)
b. Are there prohibited pleadings or motions in a case covered by the Revised Rules on Summary
Procedure?
A: Yes. The following are not allowed:
(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of
lack of jurisdiction over the subject matter, or failure to comply with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial;
(d) Petition for relief from judgment;
0942 – 949 91 76
0995 – 213 82 58
Page 2 of 32
rd
2018 PREWEEK
HO No. 7
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions. (Sec 19, RRSP)
5. What are the objectives of the Revised Rules of Procedure for Small Claims Cases?
A: The objectives of the rules are: (a) To protect and advance the constitutional right of persons to a
speedy disposition of their cases; (b) To provide a simplified and inexpensive procedure for the disposition
of small claims cases; and (c) To introduce innovations and best practices for the benefit of the
underprivileged. (Sec 3, 2016 Revised Rules of Procedure for Small Claims Cases)
6. Discuss the rules on venue in Small Claims cases.

A: The regular rules on venue provided in Rule 4 of the Rules of Court shall apply. However, if the
plaintiff is engaged in the business of lending, banking and similar activities, and has a branch within the
municipality or city where the defendant resides, the Statement of Claim/s shall be filed where that
branch is located. (Sec 7, 2016 Revised Rules of Procedure for Small Claims Cases)
7. a. As a general rule, can a complainant pay only a portion of the docket fees and pay the other half
only after the finality of judgment?
A: No. The rule is that payment in full of the docket fees within the prescribed period is mandatory.
In Manchester vs. Court of Appeals, it was held that a court acquires jurisdiction over any case only upon
the payment of the prescribed docket fee. (Reyes vs. People of the Philippines, G.R. No. 193034, July 20,
2015)
b. Should the court immediately dismiss the case on the ground of lack of jurisdiction due to non-
payment of docket fees?
A: No. The strict application of Manchester rule was, however, relaxed two (2) years after in the case
of Sun Insurance Office, Ltd. vs. Asuncion, wherein the Court decreed that where the initiatory pleading
is not accompanied by the payment of the docket fee, the court may allow payment of the fee within a
reasonable period of time, but in no case beyond the applicable prescriptive or reglementary period. This
ruling was made on the premise that the plaintiff had demonstrated his willingness to abide by the rules
by paying the additional docket fees required. Thus, in the more recent case of United Overseas Bank vs.
Ros, the Court explained that where the party does not deliberately intend to defraud the court in
payment of docket fees, and manifests its willingness to abide by the rules by paying additional docket
fees when required by the court, the liberal doctrine enunciated in Sun Insurance Office, Ltd., and not the
strict regulations set in Manchester, will apply. (Reyes vs. People of the Philippines, G.R. No. 193034, July
20, 2015)
8. Corp X is a minority stockholder of Super Corp Z. Corp X filed a Complaint (with Application for the
Issuance of a Writ of Preliminary Mandatory Injunction and Temporary Restraining Order/Writ of
Preliminary Injunction) involving an intra--corporate controversy against Super Corp Z and some of
0942 – 949 91 76
0995 – 213 82 58
Page 3 of 32
rd
2018 PREWEEK
HO No. 7
its Board members. In the Complaint, Corp X prayed that Super Corp Z be compelled to have a
stockholders’ meeting pursuant to the latter’s by-laws.
The Clerk of Court of the RTC assessed Corp X with filing fees amounting to ₱8,860.00 which they paid
accordingly. For their part, the defendants raised the issue of lack of jurisdiction on the ground of Corp
X' s failure to pay the correct filing fees. They argued that the latter should have paid ₱20 Million, more
or less, in filing fees based on the Stock Rights Offering (SRO) which was valued at ₱1 Billion.
The RTC dismissed the instant complaint for lack of jurisdiction due to Corp X's failure to pay the correct
filing fees. Subsequently, the CA reversed the RTC's order of dismissal and, accordingly, reinstated the
case and remanded the same to the court a quo for further proceedings after payment of the proper
legal fees. The CA held that the basis for the computation of filing fees should have been the ₱1 Billion
value of the SRO. However, the CA found that Corp X was not in bad faith and had no intention of
defrauding the government. Hence, the reinstatement and remand.
Was the CA correct in its finding that Corp X should have paid more based on the ₱1 Billion value of the
SRO?
A: No. This case is a precise illustration as to how an intra-corporate controversy may be classified
as an action whose subject matter is incapable of pecuniary estimation. The main purpose of Corp X's
Complaint is to have Super Corp Z hold its stockholders’ meeting on the date set in the latter corporation's
by- laws. Certainly, such prayer does not involve the recovery of sum of money. If, in the end, a sum of
money or anything capable of pecuniary estimation would be recovered by virtue of Corp X's Complaint,
then it would simply be the consequence of their principal action. Clearly therefore, Corp. X’s action was
one incapable of pecuniary estimation. (Dee vs. Harvest All Investment Limited, G.R. No. 224834, March
15, 2017)
9. A gas leak resulted in an explosion inside B&W Café and Delicatessen. Two customers dining inside
the café and a member of the staff died in the explosion. The victims were E-Jay Bautista, an NBI agent;
Lovely Joy Acosta, a financial consultant; and Charlie Delfin, the busboy of the café.
On behalf of all the respective heirs of the victims, one of the heirs of Lovely Joy Acosta and one of the
heirs of Charlie Delfin jointly filed a class suit for damages against the owner/proprietor of B&W Café
and Delicatessen, Ingo Nowitzki.
a. What are the requisites of a class suit?

A: The requisites of a class suit are: 1) the subject matter of controversy is one of common
or general interest to many persons; 2) the parties affected are so numerous that it is
impracticable to bring them all to court; and 3) the parties bringing the class suit are sufficiently
numerous or representative of the class and can fully protect the interests of all concerned.
(Banda vs. Ermita, G.R. No. 166620, April 20, 2010)
b. What is “adequacy of representation”?

A: It is an element of a class suit. In determining the question of fair and adequate
representation of members of a class, the court must consider (a) whether the interest of the
named party is coextensive with the interest of the other members of the class; (b) the proportion
of those made a party, as it so bears, to the total membership of the class; and (c) any other factor
0942 – 949 91 76
0995 – 213 82 58
Page 4 of 32
rd
2018 PREWEEK
HO No. 7
bearing on the ability of the named party to speak for the rest of the class. (Banda vs. Ermita, G.R.
No. 166620, April 20, 2010)
c. In the instant case, can the class suit be maintained?

A: No. The wrong suffered by each of them would constitute a wrong separate from those
suffered by the others, and those wrongs alone would not create that common or general interest
in the subject matter of the controversy as would entitle any one of them to bring a class suit on
behalf of the others. It has been held that separate wrongs to separate persons, although
committed by similar means and even pursuant to a single plan, do not alone create a ‘common’
or ‘general’ interest in those who are wronged so as to entitle them to maintain a representative
action. (Mathay vs. The Consolidated Bank and Trust Company, 157 Phil. 551 [1974]; see also
Ortigas & Co., Ltd. vs. Ruiz, 148 SCRA 326 [1987])
d. The counsel of Ingo Nowitzki filed a Motion to Dismiss due to the non-joinder of other
indispensable parties. The trial court issued an Order finding that there was indeed non-joinder
of other indispensable parties, but instead of dismissing the case, the plaintiffs were directed
to implead the other indispensable parties as co-plaintiffs. Was the trial court correct?
A: Yes. The non-joinder of indispensable parties is not a ground for the dismissal of an action.
(Heirs of Mesina vs. Heirs of Fian, G.R. No. 201816, April 8, 2013; Divinagracia vs. Parilla, G.R. No.
196750, March 11, 2015) Rule 3, Section 11 of the Rules of Court clearly provides: “Neither
misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped
or added by order of the court on motion of any party or on its own initiative at any stage of the
action and on such terms as are just. xxx.”
e. If after being ordered by the court to implead the other indispensable parties, the plaintiffs
failed or refused to do so without any justifiable reason, may Ingo Norwitzki ask for the
dismissal of the suit?
A: Yes. If the plaintiffs refuse to implead an indispensable party despite the order of the
court, that court may dismiss the complaint for the plaintiffs’ failure to comply with the order.
(Divinagracia vs. Parilla, G.R. No. 196750, March 11, 2015) This may be done pursuant to Section
3 of Rule 17, which provides: “If, for no justifiable cause, the plaintiff fails to appear on the date
of the presentation of his evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any order of the court, the
complaint may be dismissed upon motion of the defendant or upon the court's own motion,
without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court.”
f. Differentiate an indispensable party from a necessary party.

A: An indispensable party is a party who has such an interest in the controversy or subject
matter that a final adjudication cannot be made, in his absence, without injuring or affecting that
interest, a party who has not only an interest in the subject matter of the controversy, but also
has an interest of such nature that a final decree cannot be made without affecting his interest or
leaving the controversy in such a condition that its final determination may be wholly inconsistent
with equity and good conscience. It has also been considered that an indispensable party is a
person in whose absence there cannot be a determination between the parties already before
0942 – 949 91 76
0995 – 213 82 58
Page 5 of 32
rd
2018 PREWEEK
HO No. 7
the court which is effective, complete, or equitable. Further, an indispensable party is one who
must be included in an action before it may properly go forward.
A person is not an indispensable party, however, if his interest in the controversy or subject
matter is separable from the interest of the other parties, so that it will not necessarily be directly
or injuriously affected by a decree which does complete justice between them. Also, a person is
not an indispensable party if his presence would merely permit complete relief between him and
those already parties to the action, or if he has no interest in the subject matter of the action. It
is not a sufficient reason to declare a person to be an indispensable party that his presence will
avoid multiple litigation.
The presence of indispensable parties is a condition for the exercise of juridical power and when
an indispensable party is not before the court, the action should be dismissed. In contrast, a
necessary party's presence is not imperative, and his or her absence is not debilitating.
Nevertheless, it is preferred that they be included in order that relief may be complete. (Caravan
Travel and Tours International, Inc. vs. Abejar, G.R No. 170631, February 10, 2016)
g. Assuming that in lieu of a class suit, the heirs of the victims opted to file a civil suit before the
RTC and joined their causes of action against Ingo Norwitzki. The heirs of E-Jay Bautista are
claiming for ₱200,000-worth of damages; heirs of Lovely Joy Acosta, ₱5,200,000-worth of
damages; and heirs of Charlie Delfin, ₱80,000-worth of damages. Can the joinder be
maintained?
A: Yes. A party may in one pleading assert, in the alternative or otherwise, as many causes
of action as he may have against an opposing party, subject to the following conditions: (a) The
party joining the causes of action shall comply with the rules on joinder of parties; (b) The joinder
shall not include special civil actions or actions governed by special rules; (c) Where the causes of
action are between the same parties but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and (d) Where the claims in all the causes of
action are principally for recovery of money, the aggregate amount claimed shall be the test of
jurisdiction. (Section 5, Rule 2, ROC)
Thus, the joinder is not prohibited since the joinder does not include special civil actions or actions
governed by special rules and the aggregate amount claimed falls within the jurisdiction of the
Regional Trial Court.
Additionally, if the joinder involves different parties, as in this case, there must be a question of
fact or of law common to both parties joined, arising out of the same transaction or series of
transaction following the rules on joinder of parties. In the case at hand, it is apparent that there
is a common question of fact arising out of the same transaction. (Sec 6, Rule 3, ROC; Sps. Perez
vs. Hermano, G.R. No. 147417, July 8, 2005)
h. Is a misjoinder of causes of action a ground for the dismissal of the case?

A: No. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined
cause of action may, on motion of a party or on the initiative of the court, be severed and
0942 – 949 91 76
0995 – 213 82 58
Page 6 of 32
rd
2018 PREWEEK
HO No. 7
proceeded with separately. (Sec 6, Rule 2, ROC; see Sps. Perez vs. Hermano, G.R. No. 147417, July
8, 2005)
10. SG Corp used to provide security guard services to a GOCC named “Gov Corp,” which was created
by Rep. Act No. 12345678. Sometime in 1995, SG Corp’s employees who were deployed in Gov Corp
filed with the NLRC a complaint for underpayment of wages. The NLRC ruled in favor of the employees
and held SG Corp and Gov Corp solidarily liable for the employees' adjudged monetary award.
Believing that it had no liability to SG Corp’s employees, Gov Corp filed with the RTC a complaint for
sum of money with damages in 1999. In response, SG Corp filed an answer with counterclaim. In its
counterclaim, it prayed for the payment of moral damages of ₱1 Million; exemplary damages of
₱500,000.00; attorney's fees of ₱300,000.00, compensatory damages of ₱250,000.00; and unpaid wage
differential of ₱1.5 Million, for a total amount of ₱3.55 Million.
The counterclaim was not only based on the damages that SG Corp incurred because of the suit filed by
Gov Corp. A big chunk pertains to SG Corp's claims against the Gov Corp regarding the wage adjustment
for the security guard services the agency rendered from April 1, 1988 to April 3, 1989. SG Corp paid no
docket fees on this counterclaim, reasoning that it is in the nature of a compulsory counterclaim.
The RTC dismissed the complaint, but the granted SG Corp’s counterclaim and awarded the amount of
₱52.78 Million. Despite the huge award to SG Corp, the Gov Corp failed to appeal its case to the CA.
Having lost its chance to appeal, the Gov Corp filed with the RTC a petition for relief from judgment
(Petition for Relief) grounded on excusable negligence. The RTC dismissed the petition for lack of merit.
Thereafter, the Gov Corp, through the OGCC, filed with the CA a Petition for Annulment of Judgment
on the grounds of lack of jurisdiction.
a. Discuss the nature of a Petition for Annulment of Judgment vis-à-vis immutability of final
judgments.
A: As a general rule, final judgments may no longer be modified as, after finality, all the
issues between the parties are deemed resolved and laid to rest. In exceptional instances,
however, a Petition for Annulment of Judgment may be filed as an exception to the immutability
of final judgments rule. Annulment of judgment is a recourse equitable in character, allowed only
in exceptional cases as where there is no available or other adequate remedy. Rule 47 of the 1997
Rules of Civil Procedure, as amended, governs actions for annulment of judgments or final orders
and resolutions. Since a petition for annulment of judgment is an equitable and exceptional relief,
the Rules of Court under Rule 47 put in place stringent requirements that must be complied with
before this remedy may prosper. (Lasala vs. The National Food Authority, G.R. No. 171582, August
19, 2015)
b. What are the requirements so that a Petition for Annulment of Judgment would prosper?
A: First, it is only available when the ordinary remedies of new trial, appeal, petition for
relief, or other appropriate remedies are no longer available through no fault of the petitioner.
0942 – 949 91 76
0995 – 213 82 58
Page 7 of 32
rd
2018 PREWEEK
HO No. 7
Second, an annulment may only be based on the grounds of extrinsic fraud and lack of jurisdiction.
Moreover, extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed
of, in a motion for new trial or petition for relief.
Lastly, if grounded on extrinsic fraud, the petition must be filed within four years from its
discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. (Lasala vs.
The National Food Authority, G.R. No. 171582, August 19, 2015)
N.B. The Supreme Court has recognized “lack of due process” as a third ground to annul a
judgment. The high court decreed: “While under Section 2, Rule 47 of the Rules of Court a Petition
for Annulment of Judgment may be based only on the grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes lack of due process as additional ground to annul a
judgment.” (Diona vs. Balangue, G.R. No. 173559, January 7, 2013)
c. In the case at hand, does the prior filing of Petition for Relief bar the filing of a Petition for
Annulment of Judgment?
A: No. There is res judicata when all these requisites concur: (1) the former judgment or
order must be final; (2) the judgment or order must be on the merits; (3) it must have been
rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must
be, between the first and the second action, identity of parties, of subject matter, and cause of
action.
Clearly, the fourth requisite is absent and cannot apply to the present case. There is identity of
parties in the petitions for relief and annulment of judgment, but no identity of subject matter
and cause of action.
The distinctions between the grounds invoked and reliefs prayed for between the two petitions
highlight the need for different pieces of evidence to prove them. Thus, their causes of action are
not identical, and res judicata does not bar the filing of the present petition for annulment. (Lasala
vs. The National Food Authority, G.R. No. 171582, August 19, 2015)
d. What is a compulsory counterclaim?

A: A compulsory counterclaim is any claim for money or other relief that a defending party
may have against an opposing party, which at the time of suit arises out of, or is necessarily
connected with, the same transaction or occurrence that is the subject matter of the plaintiff's
complaint. It is compulsory in the sense that it is within the jurisdiction of the court, does not
require for its adjudication the presence of third parties over whom the court cannot acquire
jurisdiction, and will be barred if not set up in the answer to the complaint in the same case.
(Lasala vs. The National Food Authority, G.R. No. 171582, August 19, 2015)
e. What are the tests to determine whether a counterclaim is compulsory or permissive?

A: To determine if a counterclaim is compulsory, the following tests apply: (a) Are the issues
of fact and law raised by the claim and by the counterclaim largely the same?; (b) Would res
judicata bar a subsequent suit on defendant's claims, absent the compulsory counterclaim rule?;
(c) Will substantially the same evidence support or refute plaintiffs claim as well as the
defendant's counterclaim?; and (d) Is there any logical relation between the claim and the
0942 – 949 91 76
0995 – 213 82 58
Page 8 of 32
rd
2018 PREWEEK
HO No. 7
counterclaim? A positive answer to all four questions would indicate that the counterclaim is
compulsory. Otherwise, it is permissive. (Lasala vs. The National Food Authority, G.R. No. 171582,
August 19, 2015)
f. Should docket fees be paid by a counterclaimant?

A: Only if it involves a permissive counterclaim. The rule in permissive counterclaim is that
for the trial court to acquire jurisdiction, the counterclaimant is bound to pay the prescribed
docket fees. Any decision rendered without jurisdiction is a total nullity and may be struck down
at any time, even on appeal before the Supreme Court. (Bungcatao vs. Fort Ilocandia Property
Holdings and Development Corporation, G.R. No. 170483, April 19, 2010) On the other hand, the
prevailing rule with respect to compulsory counterclaims is that no filing fees are required for the
trial court to acquire jurisdiction over the subject matter. (Sy-Vargas vs. the Estate of Ogsos, G.R.
No. 221062, October 5, 2016)
g. Should the Petition for Annulment of Judgment be granted?

A: Yes. SG Corp’s counterclaim for wage adjustment against the Gov Corp is not a
compulsory but a permissive counterclaim. The cause of action for this counterclaim already
existed even before the filing of the Gov Corp’s complaint against SG Corp. Thus, it did not arise
out of, nor is it necessarily connected with, the Gov Corp's complaint against SG Corp. Because it
is not an incident of the Gov Corp's claim, it can be filed as a separate case against Gov Corp,
unless already extinguished.
Under this situation, SG Corp’s nonpayment of docket fee for its permissive counterclaim
prevented the trial court from acquiring jurisdiction over it. The court may allow payment of such
fee but only within a reasonable time and in no case beyond the prescriptive period for the filing
of the permissive counterclaim. Hence, with regard to this counterclaim, annulment of the trial
court's judgment is proper. (Lasala vs. The National Food Authority, G.R. No. 171582, August 19,
2015)
11. What is the test applied to determine the presence of forum shopping?
A: The test to determine the existence of forum shopping is whether the elements of litis pendentia,
or whether a final judgment in one case amounts to res judicata in the other. Forum shopping therefore
exists when the following elements are present: (a) identity of parties, or at least such parties representing
the same interests in both actions; (b) identity of rights asserted and reliefs prayed for, the relief being
founded on the same facts; and (c) the identity of the two preceding particulars, such that any judgment
rendered in the other action will, regardless of which party is successful, amount to res judicata in the
action under consideration. (De Lima vs. Guerrero, G.R. No. 229781, October 10, 2017)
12. Ross Green and Monica Bing got married in a beautiful century-old chapel in Batanes. Immediately
after their wedding, they bought a house in Quezon City and resided therein.
Sadly, only three (3) months after their wedding, Monice abandoned Ross and lived with her parents in
Cebu City. Thereafter, she filed a case for legal separation before the RTC Cebu City and Ross even
participated and opposed the suit. However, the action was dismissed for failure to prosecute after she
went to the Republic of Singapore and lived with her secret lover, Joey Buffay. Meanwhile, Ross
continued to reside in their conjugal home in Quezon City.
0942 – 949 91 76
0995 – 213 82 58
Page 9 of 32
rd
2018 PREWEEK
HO No. 7
Ross filed a case for declaration of nullity of marriage before the RTC Quezon City, designated as a
“Family court.” He argued that they were married without a marriage license. The petition was
dismissed after trial on the merits and later became final. A year thereafter, Ross filed a petition for
declaration of nullity of marriage with the RTC Quezon City, designated as a “Family court.” This time,
he argues that Monica is psychologically incapacitated from performing her marital obligations and
responsibilities.
a. Can summons be served upon Monica Bing?

A: Yes. Under Section 15 of Rule 14, a defendant who is a non-resident and is not found in
the country may be served with summons by extraterritorial service in four instances: (1) when
the action affects the personal status of the plaintiff; (2) when the action relates to, or the subject
of which is property within the Philippines, in which the defendant has or claims a lien or interest,
actual or contingent; (3) when the relief demanded consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines; or (4) when the property of
the defendant has been attached within the Philippines.
In these instances, extraterritorial service of summons may be effected under any of three modes:
(1) by personal service out of the country, with leave of court; (2) by publication and sending a
copy of the summons and order of the court by registered mail to the defendant's last known
address, also with leave of court; or (3) by any other means the judge may consider sufficient.
In the present case, it is undisputed that when Ross filed the Petition for Declaration of Nullity of
Marriage, an action which affects his personal status, Monica was already residing in Singapore.
Thus, extraterritorial service of summons under Section 15, Rule 14 of the Rules of Court is the
proper mode by which summons may be served on Monica, a non-resident defendant who is not
found in the Philippines. (Yu vs. Yu, G.R. No. 200072, June 20, 2016)
b. Assuming the court ordered that summons be served through publication, which was complied
with by Ross, but Monica still failed to appear during the proceeding. After trial, the court ruled
in favor of Ross and declared their marriage null and void, how should the judgment be served
upon Monica?
A: Through publication at the expense of Ross Green. The rules provide that judgments, final
orders or resolutions shall be served either personally or by registered mail. However, when a
party summoned by publication has failed to appear in the action, judgments, final orders or
resolutions against him shall be served upon him also by publication at the expense of the
prevailing party. (Sec 9, Rule 13, ROC)
c. Assume that the required publication was done and the summons, complaint and order of the
RTC Quezon City were sent to Monica at their conjugal dwelling in Quezon City. Three (3) years
after the promulgation of the judgment of the court dissolving their marriage, Monica learned
about the judgment for the first time. Does she have any remedy to assail the decision?
A: Yes. She may file a verified petition for Annulment of Judgment based on extrinsic fraud,
which may be filed within four (4) years from the discovery of fraud. (Sec 3, Rule 47, ROC)
0942 – 949 91 76
0995 – 213 82 58
Page 10 of 32
rd
2018 PREWEEK
HO No. 7
Extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of
the trial of the case, whereby the defeated party was prevented from presenting fully his side of
the case by fraud or deception practiced on him by the prevailing party. Fraud is extrinsic where
the unsuccessful party had been prevented from exhibiting fully his case, by means of fraud or
deception, as by keeping him away from court, or by a false promise of a compromise; or where
the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff;
or where an attorney fraudulently or without authority assumes to represent a party and connives
at his defeat; these and similar cases which show that there has never been a real contest in the
trial or hearing of the case are reasons for which a new suit may be sustained to set aside and
annul the former judgment and open the case for a new and fair hearing. Ultimately, the
overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party
from having his day in court.
In the present case, Monica was completely prevented from participating in the Declaration of
Nullity case because of the fraudulent scheme employed by Ross insofar as the service of
summons is concerned. The service of summons on their conjugal home address cannot be
deemed compliant with the requirements of the rules and is even tantamount to deception
warranting the annulment of the court's judgment. Ross knows that the last known address of
Monica in the Philippines is that of her parents’ in Cebu City. He was aware of the same given that
he participated in the Legal Separation case filed before the RTC Cebu City. (Yu vs. Yu, G.R. No.
200072, June 20, 2016)
d. If Monica was able to learn about the suit immediately, could she file a Motion to Dismiss in
lieu of an Answer? If yes, on what ground/s?
A: Yes. The cause of action of the second action for nullity of marriage (on the ground of
psychological incapacity) is already barred by a prior judgment or res judicata because the first
action (on the ground of lack of marriage license) has already attained finality. (Sec 1[f], Rule 16,
ROC)
Res judicata is defined as a matter adjudged; a thing judicially acted upon or decided; a thing or
matter settled by judgment. It also refers to the rule that a final judgment or decree on the merits
by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all
later suits on points and matters determined in the former suit.
Res judicata requires the concurrence of the following: (1) the former judgment is final; (2) it is
rendered by a court having jurisdiction over the subject matter and the parties; (3) it is a judgment
or an order on the merits; and (4) there is -- between the first and the second actions -- identity
of parties, of subject matter, and of causes of action.
There is no dispute regarding the first three requisites as they obviously exist. The last requisite is
also present. Ross was simply invoking different grounds for the same cause of action. By
definition, a cause of action is the act or omission by which a party violates the right of another.
In both petitions, petitioner Ross has the same cause - the declaration of nullity of his marriage to
respondent. What differs is the ground upon which the cause of action is predicated. These
grounds cited by Ross essentially split the various aspects of the pivotal issue that holds the key
0942 – 949 91 76
0995 – 213 82 58
Page 11 of 32
rd
2018 PREWEEK
HO No. 7
to the resolution of this controversy, that is, the actual status of petitioner and respondents
marriage. (Mallion vs. Alcantara, G.R. No. 141528, October 31, 2006)
13. a. Explain the three-day notice rule under Rule 15.

A: Rule 15, Section 4 of the Rules of Court clearly makes it a mandatory rule that the adverse party
be given notice of hearing on the motion at least three days prior.
Failure to comply with this notice requirement renders the motion defective consistent with protecting
the adverse party's right to procedural due process. In Jehan Shipping Corporation vs. National Food
Authority, 514 Phil. 166 (2005):
“As an integral component of procedural due process, the three-day notice required by the Rules is not
intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises
that may be sprung upon the adverse party, who must be given time to study and meet the arguments in
the motion before a resolution by the court. Principles of natural justice demand that the right of a party
should not be affected without giving it an opportunity to be heard.” (Laude vs. Ginez-Jabalde, G.R. No.
217456, November 24, 2015)
b. What is the effect of non-compliance with the three-day notice rule under Rule 15?
A: While the general rule is that a motion that fails to comply with the requirements of Rule 15 is a
mere scrap of paper, an exception may be made and the motion may still be acted upon by the court,
provided doing so will neither cause prejudice to the other party nor violate his or her due process rights.
The adverse party must be given time to study the motion in order to enable him or her to prepare
properly and engage the arguments of the movant. If the other party was not given sufficient time to
study the motion, thereby depriving him of his right to procedural due process, the general rule must
apply. (Laude vs. Ginez-Jabalde, G.R. No. 217456, November 24, 2015)
14. a. What are the possible grounds of a motion to dismiss?

A: A motion to dismiss may be made on any of the following grounds: (a) That the court has no
jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the
subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity
to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the
cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting
the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has
been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is
founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent
for filing the claim has not been complied with. (Sec 1, Rule 16, ROC)
b. If the court sustained the motion and ordered the dismissal of the case, may it be refiled?
A: Yes, unless the dismissal was based on the ground of (i) res judicata; (ii) prescription; (iii) the claim
or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished; or (iv) unenforceability under the provisions of the statute of frauds. (See Sec 5, Rule 16,
ROC)
15. a. What are the grounds of a Motion for New Trial?

A: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have
guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or
0942 – 949 91 76
0995 – 213 82 58
Page 12 of 32
rd
2018 PREWEEK
HO No. 7
(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and
produced at the trial, and which if presented would probably alter the result. (Section 1, Rule 37, ROC)
b. What are the grounds of a Motion for Reconsideration?

A: (a) the damages awarded are excessive,
(b) the evidence is insufficient to justify the decision or final order, or
(c) the decision or final order is contrary to law. (Section 1, Rule 37, ROC)
c. What are the grounds for a Petition for Relief ?

A: (a) fraud,
(b) accident,
(c) mistake, and
(d) excusable negligence. (See Secs 1 and 2, Rule 38, ROC)
16. What are the property exempt from execution?

A: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides,
and land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor
may select necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the
judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one
hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred
thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned
by a fisherman and by the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the
four months preceding the levy as are necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as such support, or any pension or
gratuity from the Government;
(m) Properties specially exempt by law.
But no article or species of property mentioned shall be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (Section 13, Rule 39,
ROC)
17. What are the effects of foreign judgments and final orders?
A: It depends.
0942 – 949 91 76
0995 – 213 82 58
Page 13 of 32
rd
2018 PREWEEK
HO No. 7
In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon
the title to the thing.
In case of a judgment or final order against a person, the judgment or final order is presumptive evidence
of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact. (Section 48, Rule 39)
18. What are the cases where a writ of preliminary attachment may issue?
A: (a) In an action for the recovery of a specified amount of money or damages, other than moral
and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the Philippines which intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use
by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the
course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of
duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so, with
intent to defraud his creditors; and
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication. (Sec 1, Rule 57, ROC)
19. a. Can a writ of mandatory injunction be issued even if the applicant did not allege any factual or
legal basis?
A: No. It is established that a writ of mandatory injunction is granted upon a showing that (a) the
invasion of the right is material and substantial; (b) the right of complainant is clear and unmistakable;
and (c) there is an urgent and permanent necessity for the writ to prevent serious damage. The court
cannot consider the issuance of a writ of mandatory injunction or a temporary restraining order without
any legal and factual basis. (Laude vs. Ginez-Jabalde, G.R. No. 217456, November 24, 2015)
b. When may a preliminary injunction be granted?

A: A court may grant a prayer for preliminary injunction when it is established that:
(a) the applicant is entitled to the relief demanded, and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually;
0942 – 949 91 76
0995 – 213 82 58
Page 14 of 32
rd
2018 PREWEEK
HO No. 7
(b) the commission, continuance or non-performance of the act or acts complained of during the litigation
would probably work injustice to the applicant; or
(c) a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render the judgment ineffectual. (Section 3, Rule 58,
ROC)
Special Civil Action
20. The Constitution provides: “The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.” Does “appropriate proceeding” refer to a Petition for Certiorari under Rule
65 and therefore should comply to the requirements thereof?
A: No. It could not have been the intention of the framers of the Constitution that the phrase “in an
appropriate proceeding” would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of
Article VIII. The standard of review in a petition for certiorari is whether the respondent has committed
any grave abuse of discretion amounting to lack or excess of jurisdiction in the performance of his or her
functions. Thus, it is not the proper tool to review the sufficiency of the factual basis of the proclamation
or suspension. It must be emphasized that under Section 18, Article VII, the Court is tasked to review the
sufficiency of the factual basis of the President's exercise of emergency powers. Put differently, if this
Court applies the standard of review used in a petition for certiorari, the same would emasculate its
constitutional task under Section 18, Article VII. (Lagman vs. Medialdea, G.R. No. 231658, July 4, 2017)
21. a. Differentiate mandamus with quo warranto.

A: While quo warranto and mandamus are often concurrent remedies, however, there exists a clear
distinction between the two. The authorities are agreed that quo warranto is the remedy to try the right
to an office or franchise and to oust the holder from its enjoyment, while mandamus only lies to enforce
clear legal duties, not to try disputed titles; that where there is usurpation or intrusion into an office, quo
warranto is the proper remedy. However, when the respondent, without claiming any right to an office,
excludes the petitioner therefrom, the remedy is mandamus, not quo warranto. (Lota vs. Court of Appeals,
2 SCRA 715 [1961])
b. Can a private individual institute a quo warranto proceeding?

A: Yes. Quo warranto is generally commenced by the Government as the proper party plaintiff.
However, under Section 5, Rule 66 of the Rules of Court, an individual may commence such an action if
he claims to be entitled to the public office allegedly usurped by another, in which case he can bring the
action in his own name. The person instituting quo warranto proceedings in his own behalf must claim
and be able to show that he is entitled to the office in dispute, otherwise the action may be dismissed at
any stage. (Liban vs. Gordon, G.R. No. 175352, July 15, 2009)
c. Who can be respondents in a quo warranto petition?

A: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or
franchise;
0942 – 949 91 76
0995 – 213 82 58
Page 15 of 32
rd
2018 PREWEEK
HO No. 7
(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the
forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being legally incorporated or
without lawful authority so to act. (Section 1, Rule 66, ROC)
22. What is an interpleader action?

A: The action of interpleader is a remedy whereby a person who has personal property in his
possession or an obligation to render wholly or partially, without claiming any right in both comes to court
and asks that the persons who claim the said personal property or who consider themselves entitled to
demand compliance with the obligation be required to litigate among themselves, in order to determine
finally who is entitled to one or the other thing. The remedy is afforded not to protect a person against a
double liability but to protect him against a double vexation in respect of one liability. (Belo Medical
Group, Inc. vs. Santos, G.R. No. 185894, August 30, 2017)
23. What are the requirements of an action for declaratory relief?

A: The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party
seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be
ripe for judicial determination. (Commissioner of Customs vs. Hypermix Feeds Corporation, G.R. No.
179579, February 1, 2012)
24. What are the details required to be provided in a complaint to sufficiently allege a cause of action
for unlawful detainer?
A: It is settled that a complaint sufficiently alleges a cause of action for unlawful detainer if it states
the following: (a) Initially, the possession of the property by the defendant was by contract with or by
tolerance of the plaintiff; (b) Eventually, such possession became illegal upon notice by the plaintiff to the
defendant about the termination of the latter's right of possession; (c) Thereafter, the defendant
remained in possession of the property and deprived the plaintiff of its enjoyment; and (d) Within one
year from the making of the last demand to vacate the property on the defendant, the plaintiff instituted
the complaint for ejectment. (Perez vs. Rasaceña, G.R. No. 211539, October 17, 2016)
25. a. What are the remedies of a person adjudged in direct contempt of any court?
A: The person adjudged in direct contempt by any court may not appeal therefrom, but may avail
himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended
pending resolution of such petition, provided such person files a bond fixed by the court which rendered
the judgment and conditioned that he will abide by and perform the judgment should the petition be
decided against him. (Sec 2, Rule 71, ROC)
b. What are the remedies available to a person found guilty of indirect contempt?
A: The judgment or final order of a court in a case of indirect contempt may be appealed to the
proper court as in criminal cases. But execution of the judgment or final order shall not be suspended until
a bond is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal
is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment
or final order. (Sec 11, Rule 71, ROC)
0942 – 949 91 76
0995 – 213 82 58
Page 16 of 32
rd
2018 PREWEEK
HO No. 7
c. What are the acts that may be punished for indirect contempt:
A: (a) Misbehavior of an officer of a court in the performance of his official duties or in his official
transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act
of a person who, after being dispossessed or ejected from any real property by the judgment or process
of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such
real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting
direct contempt;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served; and
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an
order or process of a court held by him. (Sec 3, Rule 71, ROC)
SPECIAL PROCEEDINGS
26. Are quasi-contracts included in claims that should be filed under Section 5 of Rule 86?
A: Yes. The term “implied contracts,” as used in our remedial law, originated from the common law
where obligations derived from quasi-contracts and from law are both considered as implied contracts.
Thus, the term quasi-contract is included in the concept “implied contracts” as used in the Rules of Court.
Accordingly, liabilities of the deceased arising from quasi-contracts should be filed as claims in the
settlement of his estate, as provided in Section 5, Rule 86 of the Rules of Court. (Metropolitan Bank &
Trust Company vs. Absolute Management Corporation, G.R. No. 170498, January 9, 2013)
27. Mr. Mitchell Delgado borrowed money from Capt. Gloria Pritchett. As a security thereof, he
executed a deed of mortgage covering his house and lot car in favor of Capt. Pritchett. A clause was
added to the deed allowing extrajudicial foreclosure in case of non-payment. Before the maturity of the
debt, Mr. Delgado died. Hence, the debt remain unpaid.
a. If you are the lawyer of Capt. Pritchett, what advise would you give her to protect her interest
regarding the unpaid debt?
A: I will tell her that Section 7 of Rule 86 grants her (the mortgagee) three distinct,
independent and mutually exclusive remedies that can be alternatively pursued by the mortgage
creditor for the satisfaction of his credit in case the mortgagor dies, among them:
(1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as an
ordinary claim;
(2) to foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and
0942 – 949 91 76
0995 – 213 82 58
Page 17 of 32
rd
2018 PREWEEK
HO No. 7
(3) to rely on the mortgage exclusively, foreclosing the same at anytime before it is barred by
prescription without right to file a claim for any deficiency. (Heirs of Maglasang vs. Manila Banking
Corporation, G.R. No. 171206, September 23, 2013)
b. If Capt. Pritchett opted to file a claim before the court, could she do so even though the debt is
not yet due?
A: Yes. All claims for money against the decent, arising from contract, express or implied,
whether the same be due, not due, or contingent must be filed during the settlement proceedings
and within the time limited in the notice; otherwise they are barred forever, except that they may
be set forth as counterclaims in any action that the executor or administrator may bring against
the claimants. (see Section 5, Rule 86, ROC)
c. Assuming Capt. Pritchett would want to foreclose the mortgage extra-judicially after the debt
fell due, could she do so without participating in the settlement proceedings?
A: Yes. She could foreclose the same pursuant to Act No. 3135. However, she would lose the
right to file a claim for any deficiency. (Section 7, Rule 86, ROC)
d. What kind of securities are covered by Section 7, Rule 86 of the ROC?

A: Section 7, Rule 86 speaks of a creditor holding a claim against the deceased secured by a
mortgage or other collateral security. It may be reasonably concluded that the aforementioned
section covers all secured claims, whether by mortgage or any other form of collateral, which a
creditor may enforce against the estate of the deceased debtor. (Heirs of Maglasang vs. Manila
Banking Corporation, G.R. No. 171206, September 23, 2013)
e. Discuss the operations of Act No. 3135 vis-à-vis the third mode (relying exclusively to the
security) under Section 7, Rule 86.
A: the operation of Act No. 3135 does not entirely discount the application of Section 7, Rule
86, or vice-versa. Rather, the two complement each other within their respective spheres of
operation. On the one hand, Section 7, Rule 86 lays down the options for the secured creditor to
claim against the estate and, according to jurisprudence, the availment of the third option bars
him from claiming any deficiency amount. On the other hand, after the third option is chosen, the
procedure governing the manner in which the extra-judicial foreclosure should proceed would
still be governed by the provisions of Act No. 3135. Simply put, Section 7, Rule 86 governs the
parameters and the extent to which a claim may be advanced against the estate, whereas Act No.
3135 sets out the specific procedure to be followed when the creditor subsequently chooses the
third option – specifically, that of extra-judicially foreclosing real property belonging to the estate.
The application of the procedure under Act No. 3135 must be concordant with Section 7, Rule 86
as the latter is a special rule applicable to claims against the estate, and at the same time, since
Section 7, Rule 86 does not detail the procedure for extra-judicial foreclosures, the formalities
governing the manner of availing of the third option – such as the place where the application for
extra-judicial foreclosure is filed, the requirements of publication and posting and the place of
sale – must be governed by Act No. 3135. (Heirs of Maglasang vs. Manila Banking Corporation,
G.R. No. 171206, September 23, 2013)
0942 – 949 91 76
0995 – 213 82 58
Page 18 of 32
rd
2018 PREWEEK
HO No. 7
28. a. What is the nature of an action for change of name?

A: A change of name is a privilege and not a matter of right; a proper and reasonable cause must
exist before a person may be authorized to change his name. In granting or denying petitions for change
of name, the question of proper and reasonable cause is left to the sound discretion of the court. What is
involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of
the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent
results in the event of its grant and with the sole prerogative for making such determination being lodged
in the courts. (Gan vs. Republic of the Philippines, G.R. No. 207147, September 14, 2016)
b. What are the acceptable and valid reasons to allow a change of name?
A: A person can effect a change of name under Rule 103 (CHANGE OF NAME) using valid and
meritorious grounds including (a) when the name is ridiculous, dishonorable or extremely difficult to write
or pronounce; (b) when the change results as a legal consequence such as legitimation; (c) when the
change will avoid confusion; (d) when one has continuously used and been known since childhood by a
Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname
causes embarrassment and there is no showing that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public interest. (Republic of the Philippines vs.
Coseteng-Magpayo, G.R. No. 189476, February 2, 2011)
c. Can a petition for change of name filed by a mother, on behalf of her minor child, to remove his
middle name prosper?
A: No. Middle names serve to identify the maternal lineage or filiation of a person as well as further
distinguish him from others who may have the same given name and surname as he has. In addition,
petitioner is only a minor. Considering the nebulous foundation on which his petition for change of name
is based, it is best that the matter of change of his name be left to his judgment and discretion when he
reaches the age of majority. As he is of tender age, he may not yet understand and appreciate the value
of the change of his name and granting of the same at this point may just prejudice him in his rights under
our laws. (In re: Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005)
CRIMINAL PROCEDURE
29. a. Is a Preliminary Investigation a performance of quasi-judicial function?

A: No. A quasi-judicial function is “the action, discretion, etc., of public administrative officers or
bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw
conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature.”
Otherwise stated, an administrative agency performs quasi-judicial functions if it renders awards,
determines the rights of opposing parties, or if their decisions have the same effect as the judgment of a
court.
Though some cases describe the public prosecutors power to conduct a preliminary investigation as quasi-
judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is an officer
of the executive department exercising powers akin to those of a court, and the similarity ends at this
point.
0942 – 949 91 76
0995 – 213 82 58
Page 19 of 32
rd
2018 PREWEEK
HO No. 7
In a preliminary investigation, the prosecutor does not determine the guilt or innocence of an accused.
Preliminary investigation is merely inquisitorial. The prosecutor only determines “whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial.” As such, the prosecutor does not perform quasi-
judicial functions. (De Lima vs. Reyes, G.R. No. 209330, January 11, 2016)
b. Can a Resolution of the Secretary of Justice dismissing a complaint for lack of probable cause be
brought before a higher court under Rule 43?
A: No. A petition for review under Rule 43 is a mode of appeal to be taken only to review the
decisions, resolutions or awards by the quasi-judicial officers, agencies or bodies, particularly those
specified in Section 1 of Rule 43. A petition for review cannot be brought to assail the Secretary of Justice's
resolution dismissing a complaint for lack of probable cause since this is an “essentially executive
function.” (De Lima vs. Reyes, G.R. No. 209330, January 11, 2016)
c. Distinguish the different kinds of determination of probable cause.

A: There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the crime as defined by law and
thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine
whether or not a criminal case must be filed in court. Whether or not that function has been correctly
discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself does not and may not be
compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain
whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that
based on the evidence submitted, there is necessity for placing the accused under custody in order not to
frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the
arrest warrant. (De Lima vs. Reyes, G.R. No. 209330, January 11, 2016)
d. What is the effect of filing of Information?

A: Once the information is filed in court, the court acquires jurisdiction of the case and any motion
to dismiss the case or to determine the accused's guilt or innocence rests within the sound discretion of
the court.
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of
the complaint or information a warrant for the arrest of the accused is issued by the trial court and the
accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired
jurisdiction over the person of the accused.
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the information
in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal
action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
0942 – 949 91 76
0995 – 213 82 58
Page 20 of 32
rd
2018 PREWEEK
HO No. 7
case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding
and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is
true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be
filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may
feel should be proper in the case thereafter should be addressed for the consideration of the Court, the
only qualification is that the action of the Court must not impair the substantial rights of the accused or
the right of the People to due process of law.
Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal
or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court
in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits
proceed for the proper determination of the case. (De Lima vs. Reyes, G.R. No. 209330, January 11, 2016
citing Crespo vs. Mogul 235 Phil. 465 [1987])
e. Can prosecutors issue a Hold Departure Order (HDO) pursuant to a DOJ Circular granting them such
power against a respondent in a Preliminary Investigation to ensure that the latter will not be able to
evade liability?
A: No. The DOJ cannot justify the restraint in the liberty of movement imposed by a DOJ Circular on
the ground that it is necessary to ensure presence and attendance in the preliminary investigation of the
complaints. There is also no authority of law granting it the power to compel the attendance of the
subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its
investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the
imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an
administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be able
to evade criminal prosecution and consequent liability. It is an arrogation of power it does not have; it is
a usurpation of function that properly belongs to the legislature. (Genuino vs. De Lima, G.R. No. 197930,
April 17, 2018)
f. Can courts issue HDO without legislative conferment of such power?

A: Yes. The power to issue HDO is inherent to the courts. The courts may issue a HDO against an
accused in a criminal case so that he may be dealt with in accordance with law. It does not require
legislative conferment or constitutional recognition; it co-exists with the grant of judicial power. The
inherent powers of the courts are essential in upholding its integrity and largely beneficial in keeping the
people's faith in the institution by ensuring that it has the power and the means to enforce its jurisdiction.
(Genuino vs. De Lima, G.R. No. 197930, April 17, 2018)
30. a. How is arrest made?

A: An arrest is made by an actual restraint of a person to be arrested, or by his submission to the
custody of the person making the arrest. (Section 2, Rule 113, ROC)
b. When is an arrest lawful even without a warrant?

A: A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
0942 – 949 91 76
0995 – 213 82 58
Page 21 of 32
rd
2018 PREWEEK
HO No. 7
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another. (Section 5, Rule 113, ROC)
31. a. If an accused voluntarily surrendered herself to the authorities, could she still apply for bail?
A: Yes. Despite the arrest of the accused, or his/her voluntary surrender as the case may be, the
accused may be granted provisional liberty under certain conditions. This right to bail is guaranteed in the
Bill of Rights, except when the accused is charged with a capital offense: “Section 13. All persons, except
those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.” (Napoles vs. Sandiganbayan, 3rd Div., G.R. No. 224162,
November 7, 2017)
b. May an accused charged with a capital offense be granted bail?

A: Yes, but only when the evidence of guilt is not strong.
While· bail may generally be granted as a matter of right prior to the conviction of the accused, those
charged with a capital offense is granted bail only when the evidence of guilt is not strong: “Section 7.
Capital offense of an offense punishable by reclusion perpetua or life imprisonment, not bailable. - No
person charged with a capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the
criminal prosecution.”
The trial court is thus granted the discretion to determine whether there is strong evidence of guilt on the
part of the accused. The trial court may also deny the application for bail when the accused is a flight risk,
notwithstanding the prosecution's evidence on the guilt of the accused. (Napoles vs. Sandiganbayan, 3rd
Div., G.R. No. 224162, November 7, 2017)
c. Describe the characteristics and nature of a bail hearing.

A: In exercising this discretion, the trial court should receive the parties' evidence at a hearing duly
scheduled for this purpose. The prosecution and the accused are granted reasonable opportunity to prove
their respective positions: on the part of the prosecution, that the evidence of guilt against the accused is
strong, and on the part of the defense, the opposite. The hearing is summary and limited to the
determination of the weight of evidence for purposes of granting or denying bail. The denial or refusal
must be supported by a summary of the prosecution's evidence.
In Cortes vs. Catral, 344 Phil. 415 (1997), the SC laid down the following duties of the trial court in cases
of an application for bail:
1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the
application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of
Court as amended);
0942 – 949 91 76
0995 – 213 82 58
Page 22 of 32
rd
2018 PREWEEK
HO No. 7
2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether
or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the
purpose of enabling the court to exercise its sound discretion (Sections 7 and 8);
3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution;
and
4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond
(Section 19), otherwise petition should be denied. (Napoles vs. Sandiganbayan, 3rd Div., G.R. No. 224162,
November 7, 2017)
32. What are the qualifications of sureties in property bond?

A: Their qualifications are –
(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the amount of undertaking;
(c) If there are two or more sureties, each may justify in an amount less than that expressed in the
undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail
demanded. (Section 12, Rule 114, ROC)
33. a. What is custodial investigation?

A: Custodial investigation involves any questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus
on a particular suspect, the suspect is taken into custody, and the police carries out a process of
interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.
(People of the Philippines vs. Cabanada, G.R. No. 221424, July 19, 2017)
b. What are the rights of a suspect under custodial investigation?

A: 1. The person arrested, detained, invited or under custodial investigation must be informed in a
language known to and understood by him of the reason for the arrest and he must be shown the warrant
of arrest, if any; Every other warnings, information or communication must be in a language known to
and understood by said person;
2. He must be warned that he has a right to remain silent and that any statement he makes may be used
as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence of an
independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be
provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed
by the court upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed that no custodial
investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver
has been made;
0942 – 949 91 76
0995 – 213 82 58
Page 23 of 32
rd
2018 PREWEEK
HO No. 7
6. The person arrested must be informed that, at any time, he has the right to communicate or confer by
the most expedient means telephone, radio, letter or messenger with his lawyer (either retained or
appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him
or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited
national or international non-government organization. It shall be the responsibility of the officer to
ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily,
knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be
done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void
even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time or stage of
the process that he does not wish to be questioned with warning that once he makes such indication, the
police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if
it has already begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to
counsel or any of his rights does not bar him from invoking it at any time during the process, regardless
of whether he may have answered some questions or volunteered some statements;
11. He must also be informed that any statement or evidence, as the case may be, obtained in violation
of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in
evidence. (People of the Philippines vs. Mahinay, 302 SCRA 455 [1999])
c. What are the rights of an accused during trial?

A: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment
to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to
the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes
of identification. The absence of the accused without justifiable cause at the trial of which he had notice
shall be considered a waiver of his right to be present thereat. When an accused under custody escapes,
he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over
him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently
appears to the court that he can properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct
examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
0942 – 949 91 76
0995 – 213 82 58
Page 24 of 32
rd
2018 PREWEEK
HO No. 7
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of
its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in
the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial
or administrative, involving the same parties and subject matter, the adverse party having the opportunity
to cross-examine him.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other
evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law. (Sec 1, Rule 115, ROC)
34. a. What are the grounds for a motion to quash?

A: (a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without his express consent. (Section 3, Rule 117, ROC)
b. Can an accused file a motion to quash even after entering his plea?
A: Yes, but only if the motion is based on the following grounds: (i) That the facts charged do not
constitute an offense; (ii) That the court trying the case has no jurisdiction over the offense charged; (iii)
That the criminal action or liability has been extinguished; and (iv) That the accused has been previously
convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.
The failure of the accused to assert any other ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or failed to allege the same in
said motion, shall be deemed a waiver of those objections. (Section 9, Rule 117, ROC)
c. If a motion to quash based on the ground that “the officer who filed the information had no authority
to do so” was granted by court, is the State prohibited from prosecuting the same offense again?
A: No. So long as the proper procedure will be followed by the prosecutor this time and the criminal
action or liability has not been extinguished.
An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless
the motion was based on the grounds that (I) the criminal action or liability has been extinguished or (II)
the accused has been previously convicted or acquitted of the offense charged, or the case against him
was dismissed or otherwise terminated without his express consent. (Section 6, Rule 117, ROC)
0942 – 949 91 76
0995 – 213 82 58
Page 25 of 32
rd
2018 PREWEEK
HO No. 7
d. When does double jeopardy attach?

A: Double jeopardy attaches if the following elements are present: (1) a valid complaint or
information; (2) a court of competent jurisdiction; (3) the defendant had pleaded to the charge; and (4)
the defendant was acquitted, or convicted or the case against him was dismissed or otherwise terminated
without his express consent. (Bangayan vs. Go Bangayan, G.R. No. 172777, October 19, 2011)
e. Can double jeopardy attach even though it was the accused who moved for the dismissal of the
criminal suit?
A: Yes. (1) Where the dismissal is based on a demurrer to evidence filed by the accused after the
prosecution has rested, which has the effect of a judgment on the merits and operates as an acquittal; or
(2) Where the dismissal is made, also on motion of the accused, because of the denial of his right to a
speedy trial which is in effect a failure to prosecute. (Bangayan vs. Go Bangayan, G.R. No. 172777, October
19, 2011)
35. a. What must the court consider to determine whether the motion filed by an accused is a demurrer
to evidence or a motion to dismiss?
A: To determine whether the pleading filed is a demurer to evidence or a motion to dismiss, the
Court must consider (1) the allegations in it made in good faith; (2) the stage of the proceeding at which
it is filed; and (3) the primary objective of the party filing it. (Cabador vs. People of the Philippines, G.R.
No. 186001, October 2, 2009)
b. What is the effect of filing a demurrer without leave of court?

A: Under Section 23 of Rule 119, when the accused files a demurrer without leave of court, he shall
be deemed to have waived the right to present evidence and the case shall be considered submitted for
judgment. (Cabador vs. People of the Philippines, G.R. No. 186001, October 2, 2009)
c. Can the movant assail by appeal or certiorari the ruling of the trial court denying his motion for leave
of court to file demurrer to evidence?
A: No. The order denying the motion for leave of court to file demurrer to evidence shall not be
reviewable by appeal or by certiorari before judgment. (Section 23, Rule 119, ROC)
d. Will your answer be the same if what was denied was the demurrer itself and not the motion for
leave of court to file demurrer to evidence?
A: Yes, my answer will be the same. The order denying the motion for leave of court to file demurrer
to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
(Section 23, Rule 119, ROC)
N.B. Notwithstanding the interlocutory character and effect of the denial of the demurrer to evidence,
the accused could avail themselves of the remedy of certiorari when the denial was tainted with grave
abuse of discretion. (Macapagal-Arroyo vs. People of the Philippines, G.R. No. 220598, July 19, 2016)
36. When can an accused be discharged to be a state witness under the Revised Rules on Criminal
Procedure?
A: An accused may be discharged to be a state witness when the court is satisfied that –
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
0942 – 949 91 76
0995 – 213 82 58
Page 26 of 32
rd
2018 PREWEEK
HO No. 7
(b) There is no other direct evidence available for the proper prosecution of the offense committed,
except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude. (Sec 17, Rule
119, ROC)
37. What are the effects of granting a new trial or reconsideration in a criminal suit?
A: (a) When a new trial is granted on the ground of errors of law or irregularities committed during
the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court
may, in the interest of justice, allow the introduction of additional evidence.
(b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already
adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest
of justice, allow to be introduced shall be taken and considered together with the evidence already in the
record.
(c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside
or vacated and a new judgment rendered accordingly. (Section 6, Rule 121, ROC)
38. a. Where should an application for search warrant be filed?

A: (a) Any court within whose territorial jurisdiction a crime was committed.
(b) For compelling reasons stated in the application, any court within the judicial region where the crime
was committed if the place of the commission of the crime is known, or any court within the judicial region
where the warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be made in the court
where the criminal action is pending. (Sec 2, Rule 126, ROC)
b. What are the property covered by a search warrant?

A: A search warrant may be issued for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (Sec 3, Rule 126, ROC)
39. When may an offended party have the property of the accused attached?
A: When the civil action is properly instituted in the criminal action, the offended party may have
the property of the accused attached as security for the satisfaction of any judgment that may be
recovered from the accused in the following cases:
(a) When the accused is about to abscond from the Philippines;
(b) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney,
factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
0942 – 949 91 76
0995 – 213 82 58
Page 27 of 32
rd
2018 PREWEEK
HO No. 7
(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and
(d) When the accused resides outside the Philippines. (Section 2, Rule 127, ROC)
EVIDENCE
40. When is judicial notice mandatory?

A: A court shall take judicial notice, without the introduction of evidence, of –
a. the existence and territorial extent of states, their political history, forms of government and
symbols of nationality,
b. the law of nations, the admiralty and maritime courts of the world and their seals,
c. the political constitution and history of the Philippines,
d. the official acts of legislative, executive and judicial departments of the Philippines,
e. the laws of nature,
f. the measure of time, and
g. the geographical divisions. (Section 1, Rule 129, ROC)
41. What is the original of a document?

A: (a)The original of the document is one the contents of which are the subject of inquiry.
(b)When a document is in two or more copies executed at or about the same time, with identical contents,
all such copies are equally regarded as originals.
(c)When an entry is repeated in the regular course of business, one being copied from another at or near
the time of the transaction, all the entries are likewise equally regarded as originals. (Section 4, Rule 130,
ROC)
42. When may a party present evidence to modify the terms of a written agreement?
A: A party may present evidence to modify, explain or add to the terms of written agreement if he
puts in issue in his pleading:
(a)An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b)The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c)The validity of the written agreement; or
(d)The existence of other terms agreed to by the parties or their successors in interest after the execution
of the written agreement.
The term “agreement” includes wills. (Section 9, Rule 130, ROC)
43. Who are the persons disqualified to testify on matters learned in confidence?
A: The following persons cannot testify as to matters learned in confidence in the following cases:
0942 – 949 91 76
0995 – 213 82 58
Page 28 of 32
rd
2018 PREWEEK
HO No. 7
(a)The husband or the wife, during or after the marriage, cannot be examined without the consent of the
other as to any communication received in confidence by one from the other during the marriage except
in a civil case by one against the other, or in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants;
(b)An attorney cannot, without the consent of his client, be examined as to any communication made by
the client to him, or his advice given thereon in the course of, or with a view to, professional employment,
nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and
his employer, concerning any fact the knowledge of which has been acquired in such capacity;
(c)A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information which
he may have acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
(d)A minister or priest cannot, without the consent of the person making the confession, be examined as
to any confession made to or any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;
(e)A public officer cannot be examined during his term of office or afterwards, as to communications made
to him in official confidence, when the court finds that the public interest would suffer by the disclosure.
(Section 24, Rule 130, ROC)
44. When can the opinion of a regular witness be received in evidence?

A: The opinion of a witness for which proper basis is given, may be received in evidence regarding –
(a)the identity of a person about whom he has adequate knowledge;
(b)A handwriting with which he has sufficient familiarity; and
(c)The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a
person. (Sec 50, Rule 130, ROC)
45. a. What is the significance of determining whether a document is public or private?

A: The nature of documents as either public or private determines how the documents may be
presented as evidence in court. A public document, by virtue of its official or sovereign character, or
because it has been acknowledged before a notary public (except a notarial will) or a competent public
official with the formalities required by law, or because it is a public record of a private writing authorized
by law, is self-authenticating and requires no further authentication in order to be presented as evidence
in court. In contrast, a private document is any other writing, deed, or instrument executed by a private
person without the intervention of a notary or other person legally authorized by which some disposition
or agreement is proved or set forth. Lacking the official or sovereign character of a public document, or
the solemnities prescribed by law, a private document requires authentication in the manner allowed by
0942 – 949 91 76
0995 – 213 82 58
Page 29 of 32
rd
2018 PREWEEK
HO No. 7
law or the Rules of Court before its acceptance as evidence in court. (Patula vs. People of the Philippines,
G.R. No. 164457, April 11, 2012)
b. Are there instances when a private document need not be authenticated?

A: Yes. The requirement of authentication of a private document is excused only in four instances,
specifically: (a) when the document is an ancient one within the context of Section 21, Rule 132 of the
Rules of Court; (b) when the genuineness and authenticity of an actionable document have not been
specifically denied under oath by the adverse party; (c) when the genuineness and authenticity of the
document have been admitted; or (d) when the document is not being offered as genuine. (Patula vs.
People of the Philippines, G.R. No. 164457, April 11, 2012)
46. Are there conclusive presumptions under the rules?

A: Yes. The following are instances of conclusive presumptions:
(a)Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted to falsify it:
(b)The tenant is not permitted to deny the title of his landlord at the time of commencement of the
relation of landlord and tenant between them. (Section 2, Rule 131, ROC)
47. In an action to nullify the extrajudicial settlement of the heirs of Atty. Kobe James, plaintiff Kevin
Bryant was trying to prove that he is an heir of Kobe James. He presented in court a photocopy of a
document purporting to be the marriage certificate of Kobe James and Kevin’s mother, Lebra Bryant. It
would appear that the marriage occurred 50 years ago and on its face, there appears to be no alteration
or modification. According to Kevin, such photocopy was handed to him by Kobe himself when the
latter was still alive. However, Kevin admitted that he does not have the original.
a. Kevin insists that the photocopy is a duplicate original. Hence, the original document need not
be produced. Is Kevin correct?
A: No. A signed carbon copy or duplicate of a document executed at the same time as the
original is known as a duplicate original and maybe introduced in evidence without accounting for
the non- production of the original. But, an unsigned and uncertified document purporting to be
a carbon copy is not competent evidence. It is because there is no public officer acknowledging
the accuracy of the copy. (Cercado-Siga vs. Cercado, G.R. No. 185374, March 11, 2015 citing
Vallarta vs. Court of Appeals, 246 Phil. 596 [1988])
b. Kevin likewise asserts that the document is an ancient document that need not be
authenticated. Is he correct?
A: No. Section 21, Rule 132 defines an ancient document as one that: 1) is more than 30
years old; 2) is produced from custody in which it would naturally be found if genuine; and 3) is
unblemished by any alteration or by any circumstance of suspicion. The marriage contract was
executed 50 years ago, hence it is clearly more than 30 years old. Also, on its face, there appears
to be no evidence of alteration. The marriage contract however does not meet the second
requirement.
0942 – 949 91 76
0995 – 213 82 58
Page 30 of 32
rd
2018 PREWEEK
HO No. 7
Ancient documents are considered from proper custody if they come from a place from which
they might reasonably be expected to be found. Custody is proper if it is proved to have had a
legitimate origin or if the circumstances of the particular case are such as to render such an origin
probable. If a document is found where it would not properly and naturally be, its absence from
the proper place must be satisfactorily accounted for. (Cercado-Siga vs. Cercado, G.R. No. 185374,
March 11, 2015)
The Supreme Court ruled in case that the requirement of proper custody was met when the
ancient document in question was presented in court by the proper custodian thereof who is an
heir of the person who would naturally keep it. In this case, however, Kevin has not yet proved
his filiation to Kobe. As such, Kevin cannot be considered as an heir, in whose custody such
marriage contract is expected to be found. (Id. citing Bartolome vs. Intermediate Appellate Court,
262 Phil. 113 [1990])
48. What are the rights of a witness?

A: It is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law; and
(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue
or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his
previous final conviction for an offense. (Section 3, Rule 132, ROC)
49. a. What is a leading question?

A: A question which suggests to the witness the answer which the examining party desires. (Section
10, Rule 132, ROC)
b. What is a misleading question?

A: A question which assumes as true a fact not yet testified to by the witness, or contrary to that
which he has previously stated. (Section 10, Rule 132, ROC)
c. When is a leading question allowed?

A: (a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a
child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party. (Section 10, Rule 132, ROC)
50. a. What are the reasons behind the rule on the presumption of regularity of performance of official
duties in favor of law enforcers/ agents of the government?
0942 – 949 91 76
0995 – 213 82 58
Page 31 of 32
rd
2018 PREWEEK
HO No. 7
A: Such presumption is based on three fundamental reasons, namely: first, innocence, and not
wrongdoing, is to be presumed; second, an official oath will not be violated; and, third, a republican form
of government cannot survive long unless a limit is placed upon controversies and certain trust and
confidence reposed in each governmental department or agent by every other such department or agent,
at least to the extent of such presumption. (People of the Philippines vs. Arposeple, G.R. No. 205787,
November 22, 2017)
b. In a drug case that stems from a buy-bust operation, if the integrity of the corpus delicti is a bit
questionable because of some flaws in the chain of custody and the defense has not yet shown any
proof to bolster its version, can the prosecutor raise the presumption of regularity to secure a
conviction?
A: No. The presumption of regularity of performance of official duty stands only when no reason
exists in the records by which to doubt the regularity of the performance of official duty. And even in that
instance the presumption of regularity will not be stronger than the presumption of innocence in favor of
the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right to be
presumed innocent. (People of the Philippines vs. Arposeple, G.R. No. 205787, November 22, 2017)
51. How does one prove the authenticity of a private document in court?
A: (a)By anyone who saw the document executed or written; or (b)By evidence of the genuineness
of the signature or handwriting of the maker. (Section 20, Rule 132, ROC)
52. When is circumstantial evidence considered adequate for conviction?

A: Circumstantial evidence is sufficient for conviction when –
(a) There is more than one circumstances;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
(Sec 4, Rule 133, ROC)
0942 – 949 91 76
0995 – 213 82 58
Page 32 of 32

Preweek HO No 7 Remedial Law PDF

Загружено:

Сведения о документе

Исходное описание:

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Preweek HO No 7 Remedial Law PDF

Загружено:

Авторское право:

Доступные форматы

rd

3 Floor, Philippine Nurses Association, REMEDIAL LAW

GEN PRINCIPLES IN REMEDIAL LAW & CIVIL PROCEDURE

In RTC Angeles City, Branches 15 and 16 were designated as Foreigners Courts.

6. Discuss the rules on venue in Small Claims cases.

a. What are the requisites of a class suit?

b. What is “adequacy of representation”?

c. In the instant case, can the class suit be maintained?

f. Differentiate an indispensable party from a necessary party.

h. Is a misjoinder of causes of action a ground for the dismissal of the case?

d. What is a compulsory counterclaim?

e. What are the tests to determine whether a counterclaim is compulsory or permissive?

f. Should docket fees be paid by a counterclaimant?

g. Should the Petition for Annulment of Judgment be granted?

a. Can summons be served upon Monica Bing?

13. a. Explain the three-day notice rule under Rule 15.

14. a. What are the possible grounds of a motion to dismiss?

15. a. What are the grounds of a Motion for New Trial?

b. What are the grounds of a Motion for Reconsideration?

c. What are the grounds for a Petition for Relief ?

16. What are the property exempt from execution?

b. When may a preliminary injunction be granted?

Special Civil Action

21. a. Differentiate mandamus with quo warranto.

b. Can a private individual institute a quo warranto proceeding?

c. Who can be respondents in a quo warranto petition?

22. What is an interpleader action?

23. What are the requirements of an action for declaratory relief?

(f) Failure to obey a subpoena duly served; and

d. What kind of securities are covered by Section 7, Rule 86 of the ROC?

28. a. What is the nature of an action for change of name?

29. a. Is a Preliminary Investigation a performance of quasi-judicial function?

c. Distinguish the different kinds of determination of probable cause.

d. What is the effect of filing of Information?

f. Can courts issue HDO without legislative conferment of such power?

30. a. How is arrest made?

b. When is an arrest lawful even without a warrant?

b. May an accused charged with a capital offense be granted bail?

c. Describe the characteristics and nature of a bail hearing.

32. What are the qualifications of sureties in property bond?

33. a. What is custodial investigation?

b. What are the rights of a suspect under custodial investigation?

c. What are the rights of an accused during trial?

(e) To be exempt from being compelled to be a witness against himself.

(h) To have speedy, impartial and public trial.

34. a. What are the grounds for a motion to quash?

d. When does double jeopardy attach?

b. What is the effect of filing a demurrer without leave of court?

38. a. Where should an application for search warrant be filed?

b. What are the property covered by a search warrant?

(a) When the accused is about to abscond from the Philippines;

40. When is judicial notice mandatory?

41. What is the original of a document?

(a)An intrinsic ambiguity, mistake or imperfection in the written agreement;

(c)The validity of the written agreement; or

The term “agreement” includes wills. (Section 9, Rule 130, ROC)

44. When can the opinion of a regular witness be received in evidence?

(a)the identity of a person about whom he has adequate knowledge;

(b)A handwriting with which he has sufficient familiarity; and

(c)The mental sanity of a person with whom he is sufficiently acquainted.

45. a. What is the significance of determining whether a document is public or private?

b. Are there instances when a private document need not be authenticated?