Remedial Law(Final)

7/25/2019 Remedial Law(Final)

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University of EasternPhilippines-College of Law

I. GENERAL PRINCIPLES

Bar by Prior Judgment vs. Conclusiveness o Judgment!"##$%

Distinguish Bar by prior judgment from conclusiveness of judgment.

S&GGES'E( ANS)ER*

Bar by prior-judgment is the doctrine of res judicata, which bars asecond action when there is identity of parties, subject matter andcause of action. (Sec. 49[b] of former Rule 39; Sec, 47 [b] of new Rule 39).

Conclusiveness of judgment precludes the relitigation of aparticular issue in another action between the same parties on adierent cause of action. (Sec. 49 [c] of former Rule 39; sec. 47 [c]of new Rule 39).

Cause o action vs. Action !"##$%

Distinguish Cause of action from action.

S&GGES'E( ANS)ER*

A CA!" #$ AC%&#' is an act or omission of one party in violation

of the legal right or rights of the other ()aao !ugar Central vs.

Barrios, *+ hil. / !ec. 0 of new 1ule 02, causing damage to

another.

An AC%&#' is an ordinary suit in a court of 3ustice by which one

party prosecutes another for the enforcement or protection of a

right, or the prevention or redress of a wrong.(!ection 4 of former

1ule 02.

Civil Actions vs. S+ecial Proceedings !"##,%

Distinguish civil actions from special proceedings. 5678

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1




A C&9&: AC%&#' is one by which a party sues another for the

enforcement or protection of a right, or the prevention or redress

of a wrong. (See. 3[a], Rule 1, 1997 Rules of Civil roce!ure), whilea !"C&A: 1#C""D&'; is a remedy by which a party see<s to

establish a status, a right or a particular fact. (Sec. 3[C]. Rule

1,1997 Rules of Civil roce!ure.)

Conciliation Proceedings- Katarungang Pambarangay vs. Pre

'rial Conerence !"###%

=hat is the dierence, if any, between the conciliation proceedings

under the "a#arun$an$ ambaran$a% :aw and the negotiations for

an amicable settlement during the pre-trial conference under the1ules of Court> (072

S&GGES'E( ANS)ER*

%he dierence between the conciliation proceedings under the

?atarungang ambarangay :aw and the negotiations for an

amicable settlement during the pre-trial conference under the

1ules of Court is that in the former, lawyers are prohibited from

appearing for the parties. arties must appear in person only

e@cept minors or incompetents who may be assisted by their ne@tof <in who are not lawyers. ($ormerly !ec. +,

.D. 'o. 4/ !ec. 4, :ocal ;overnment Code of 4++4, 1.A.

*4.2 'o such prohibition e@ists in the pre-trial negotiations

under the 1ules of Court.

/amily Courts Act !011"%

a2 ow should the records of child and family cases in the $amily

Courts or 1%C designated by the !upreme Court to handle $amily

Court cases be treated and dealt with> (672 b2 nder what

conditions may the identity of parties in child and family cases be

divulged (072

S&GGES'E( ANS)ER*

a2 %he records of child and family cases in the $amily Code to

handle $amily Court cases shall be dealt with utmost

conEdentiality. (!ec. 40, $amily Courts Act of 4++*2

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "




b2 %he identity of parties in child and family cases shall not be

divulged unless necessary and with authority of the judge. (&d.2

Interlocutory 2rder !0113%

=hat is an interlocutory order> (072

S&GGES'E( ANS)ER*

An interlocutory order refers to an order issued between the

commencement and the end of the suit which is not a Enal decision

of the whole controversy and leaves something more to be done on

its merits

(;allardo et al. v. eople, ;.1. 'o. 406, April 04, 0/

&nvestments &nc. v. Court of Appeals, ;.1. 'o. 6, 3anuary 0*,

4+* cited in Denso hils, v. FAC, ;.1. 'o. *, $eb. 0*, 4+*2.

Judgment vs. 2+inion o t4e Court !0113%

=hat is the dierence between a judgment and an opinion of the

court> (0.72

S&GGES'E( ANS)ER*

%he judgment or fallo is the Enal disposition of the Court which is

reGected in the dispositive portion of the decision. A decision is

directly prepared by a judge and signed by him, containing clearly

and distinctly a statement of the facts proved and the law upon

which the judgment is based ("toya v. Abraham !ingson, Adm.

)atter 'o. 1%3-+4-*, !eptember 0, 4++2.

An opinion of the court is the informal e@pression of the views of

the court and cannot prevail against its Enal order. %he opinion of

the court is contained in the body of the decision that serves as a

guide or enlightenment to determine the ratio decidendi of the

decision. %he opinion forms no part of the judgment even if

combined in one instrument, but may be referred to for the purpose

of construing the judgment (Contreras v. $eli@, ;.1. 'o. :-**, 3une

6, 4+*2.

Judicial Autonomy 5 Im+artiality !0116%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %




&n rendering a decision, should a court ta<e into consideration the

possible eect of its verdict upon the political stability and

economic welfare of the nation> 7

S&GGES'E( ANS)ER*

'o, because a court is reHuired to ta<e into consideration only the

legal issues and the evidence admitted in the case. %he political

stability and economic welfare of the nation are e@traneous to the

case. %hey can have persuasive inGuence but they are not the main

factors that should be considered in deciding a case. A decision

should be based on the law, rules of procedure, justice and eHuity.

owever, in e@ceptional cases the court may consider the politicalstability and economic welfare of the nation when these are

capable of being ta<en into judicial notice of and are relevant to the

case.

Katarungang Pambarangay - 2b7ective !"###%

=hat is the object of the "a#arun$an$ ambaran$a% :aw>

(072

S&GGES'E( ANS)ER*

%he object of the "a#arun$an$ ambaran$a% :aw is to eect an

amicable settlement of disputes among family and barangay

members at the barangay level without judicial recourse and

conseHuently help relieve the courts of doc<et congestion.

(reamble of .D. 'o. 4, the former and the Erst "a#arun$an$

ambaran$a% :aw.2

Katarungang Pambarangay - Parties !011#%

)ariano, through his attorney-in- fact, )arcos Eled with the1%C of Baguio City a complaint for annulment of sale againstenry. )arcos and enry both reside in Asin 1oad, BaguioCity, while )ariano resides in Davao City. enry Eled a motion todismiss the complaint on the ground of prematurity for failureto comply with the mandatory barangay conciliation. 1esolvethe motion with reasons. (672

S&GGES'E( ANS)ER*

%he motion to dismiss should be denied because the partiesin interest, )ariano and enry, do not reside in the same

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $




cityFmunicipality, or is the property subject of the controversysituated therein. %he reHuired conciliationFmediation before theproper Barangay as mandated by the :ocal ;overnment Codegoverns only when the parties to the dispute reside in the samecity or municipality, and if involving real property, as in thiscase, the property must be situated also in the same city ormunicipality.

Liberal Construction- Rules o Court !"##,%

ow shall the 1ules of Court be construed> 5078

S&GGES'E( ANS)ER*

%he 1ules of Court should be liberally construed in order topromote their objective of securing a just, speedy and ine@pensive

disposition of every action and proceeding. (!ec. , 1ule 4 4++*

1ules of Civil rocedure.2

A((I'I2NAL ANS)ER*

owever, strict observance of the rules is an imperative necessity

when they are considered indispensable to the prevention of

needless delays and to the orderly and speedy dispatch of 3udicial

business. (Alvero vs. 3udge de la 1osa, * hil. 02

Remedial La8 in P4il. System o Gov9t !0113%

ow are remedial laws implemented in our system of government>

(072

S&GGES'E( ANS)ER*

1emedial laws are implemented in our system of government

through the pillars of the judicial system, including the prosecutoryservice, our courts of justice and Huasi judicial agencies.

Remedial La8 vs. Substantive La8 !0113%

Distinguish between substantive law and remedial law. (072

S&GGES'E( ANS)ER*

!B!%A'%&9" :A= is that part of the law which creates, deEnes

and regulates rights concerning life, liberty, or property, or the

powers of agencies or instrumentalities for the administration of public which prescribes the method of enforcing rights or obtaining

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &




redress for their invasion (Bustos v. :ucero, ;.1. 'o. :-0,

#ctober 0, 4+2.

Remedial La8- Conce+t !0113%

=hat is the concept of remedial law> (072

S&GGES'E( ANS)ER*

%he concept of 1emedial :aw lies at the very core of procedural

due process, which means a law which hears before it condemns,

which proceeds upon inHuiry and renders judgment only after trial,

and contemplates an opportunity to be heard before judgment is

rendered (Albert v. niversity ublishing, ;.1. 'o. :-4+44, 3anuary 6, 4+2.

1emedial :aw is that branch of law which prescribes the method of

enforcing the rights or obtaining redress for their invasion (Bustos

v. :ucero, ;.1. 'o. :-0, #ctober 0, 4+/ $irst :epanto

Ceramics, &nc. v. CA, ;.1. 'o. 44*4, )arch 4, 4++2.

Rig4ts o t4e Accused- :alidity- ;I: 'est !011<%

nder 1epublic Act 'o. 66, one may be charged with and foundguilty of HualiEed rape if he <new on or before the commission of

the crime that he is aIicted with uman &mmuno-DeEciency 9irus

(&92FAcHuired &mmune DeEciency !yndrome (A&D!2 or any other

se@ually transmissible disease and the virus or disease is

transmitted to the victim. nder !ection 4*(a2 of 1epublic Act 'o.

the court may compel the accused to submit himself to a

blood test where blood samples would be e@tracted from his veins

to determine whether he has &9. (72

a2 Are the rights of the accused to be presumed innocent of thecrime charged, to privacy, and against self-incrimination violated by

such compulsory testing> "@plain.

S&GGES'E( ANS)ER*

'o. %he court may compel the accused to submit himself to a blood

test to determine whether he has &9 under !ec. 4*(a2 of 1.A. 'o,

. is rights to be presumed innocent of the crime charged, to

privacy and against self-incrimination are not violated by such

compulsory testing. &n an action in which the physical condition of

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '




a party is in controversy, the court may order the accused to submit

to a physical e@amination. (!ec. 4, 1ule 0, 4++* 1ules of Civil

rocedure2

(:oo< for citation of latest case, in 02

b2 &f the result of such test shows that he is &9 positive, and the

prosecution oers such result in evidence to prove the Hualifying

circumstance under the &nformation for HualiEed rape, should the

court reject such result on the ground that it is the fruit of a

poisonous tree> "@plain.

S&GGES'E( ANS)ER*

!ince the rights of the accused are not violated because the

compulsory testing is authoriJed by the law, the result of the

testing cannot be considered to be the fruit of a poisonous tree and

can be oered in evidence to prove the Hualifying circumstance

under the information for HualiEed rape under 1.A. 'o. 66. %he

fruit, of the poisonous tree doctrine refers to that rule of evidence

that e@cludes any evidence which may have been derived or

acHuired from a tainted or polluted source. !uch evidence is

inadmissible for having emanated from spurious origins. %hedoctrine, however, does not apply to the results obtained pursuant

to !ec. 4, 1ule 0, 4++* 1ules of Civil rocedure, as it does not

contemplate a search within the moaning of the law. (eople v.

)ontilla, ;.1. 'o. 406*0, 3anuary 6,4++2

Rig4ts o t4e Accused- =iranda Rig4ts !01"1%

K was arrested for the alleged murder of a -year old lad. ewas read his )irandarights immediately upon being

apprehended. &n the course of his detention, K was subjectedto three hours of non-stop interrogation. e remained Huietuntil, onthe 6rd hour, he answered LyesL to the Huestion of whetherLhe prayed for forgiveness for shooting down the boy.L %he trialcourt, interpreting KMs answer as anadmission of guilt, convicted him. #n appeal, KMs counsel faultedthe trial court in its interpretation of his clientMs answer,arguing that K invo<ed his )iranda rights when he remainedHuiet for the Erst two hours of Huestioning. 1ule on theassignment of error. (672

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !




%he assignment of error invo<ed by K‟s counsel is impressed

with merit sincethere has been no e@press waiver of K‟s )iranda 1ights. &norder to have a validwaiver of the )iranda 1ights, the same must be in writingand made in thepresence of his counsel. %he uncounselled e@trajudicialconfession of K being without a valid waiver of his )iranda1ights, is inadmissible, as well as any information derivedtherefrom.

II. J&RIS(IC'I2N

Jurisdiction !"##$%

=hat courts have jurisdiction over the following cases Eled in

)etro )anila> a2 An action for speciEc performance or, in the

alternative, for damages in the amount of 4,. b2 An action

for a writ of injunction. c2 An action for replevin of a motorcycle valued at 4,.. d2 An action for interpleader to determine

who between the defendants is entitled to receive the amount of

4+,. from the plainti. e2 A petition for the probate of a will

involving an estate valued at 0,..

S&GGES'E( ANS)ER*

(a2 An action for speciEc performance or, in the alternative, for

damages in the amount of 4,. falls within the jurisdiction of

)etropolitan %rial Courts in )etro )anila. Although an action forspeciEc performance is not capable of pecuniary estimation, since

the alternative demand for damages is capable of pecuniary

estimation, it is within the jurisdiction of the )etropolitan %rial

Courts in )etro )anila. (!ec. 66 of B 40+ as amended by 1A 'o.

*+4N CruJ us. %an, * hil. 0*8.

(b2 An action for injunction is not capable of pecuniary estimation

and hence falls within the jurisdiction of the 1%Cs.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO (




(c2 An action for replevin of a motorcycle valued at 4,. falls

within the jurisdiction of the )etropolitan %rial Courts in )etro

)anila (!ec. 66 of B 40+. as amended by 1A 'o. *+42.

(d2 An action for interpleader to determine who between the

defendants is entitled to receive the amount of 4+,. falls

within the jurisdiction of the )etropolitan %rial Courts in )etro

)anila. ()a<ati Dev Corp. v. %anjuatco 0* !C1A 42

(e2 A petition for the probate of a will involving an estate valued at

0.. falls within the 3urisdiction of the )etropolitan %rial

Courts in )etro )anila (!ec. 4+58 of B 40+, as amended2.

A((I'I2NAL ANS)ER*

(b2 An application for a writ of preliminary injunction may be

granted by a )unicipal Court in an action of forcible entry and

unlawful detainer. (!ec.66 of B 40+/ Day vs. 1%C of Oamboanga,

4+4 !C1A4.

Jurisdiction* Person o t4e Accused !01">% & was charged before the San!i$anba%an with a crime of plunder, a

non-bailable oense, where the court had already issued a warrantfor his arrest. =ithout & being arrested, his lawyer Eled a 'o#ion#o uas &rres# *arran# an! #o +i -ail, arguing that theallegations in the information did not charge the crime of plunderbut a crime of malversation, a bailable oense. %he court deniedthe motion on the ground that it had not yet acHuired jurisdictionover the person of the accused and that the accused should beunder the custody of the court since the crime charged was non-bailable.

%he accusedMs lawyer counter-argued that the court can rule on themotion even if the accused was at-large because it had jurisdictionover the subject matter of the case. According to said lawyer, therewas no need for the accused to be under the custody of the courtbecause what was Eled was a 'o#ion #o uas &rres# an! #o +i -ail, not a e#i#ion for -ail.

!A% &f you are the San!i$anba%an, how will you rule on themotion> !6?%

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO




&f & were the San!i$anba%an, & would deny the )otion to Puash Arrest =arrant and to $i@ Bail.

%he motion to Huash warrant of arrest may be considered sinceonly jurisdiction over the person not custody of the law is reHuired. 3urisdiction over the person of A was obtained by his voluntaryappearance made through the Eling of the motion see<ingairmative relief. (See )iranda v. %uliao, 64 )arch 02.

'onetheless & would still deny the motion to Huash arrest warrant.%he ground that the oense charged is malversation not plunder isnot a valid ground to Huash the arrest warrant. A should simply Elean application for bail and contend that he is entitled thereto as amatter of right.

%he motion to E@ amount of bail, which is in eect an applicationfor bail cannot be granted unless the accused is in custody of thelaw. ()iranda v. %uliao, 64 )arch 02. ere A was not incustody of the law but still at large. ence the motion to E@ theamount of bail should be denied.

!B% &f the San!i$anba%an denies the motion, what judicial remedyshould the accused underta<e> !0?% S&GGES'E( ANS)ER*

&f the San!i$anba%an denies the motion, the judicial remedy thatthe accused should underta<e is to Ele a petition for certiorariunder 1ule with the !upreme Court. Certiorari is available tochallenge interlocutory orders rendered with grave abuse ofdiscretion since appeal is unavailable.

ere the order denying the )otion to Puash Arrest =arrant and to$i@ Bail is interlocutory since it does not completely dispose of thecase. ence certiorari is available. A should aver that theSan!i$anba%an acted with grave abuse of discretion amounting to

lac< of or e@cess of jurisdiction in denying his motion. Jurisdiction- 2ver t4e Plainti@ Sub7ect =atter !011#%

Amorsolo, a $ilipino citiJen permanently residing in 'ew Qor< City, Eled with the 1%C of :ipa City a complaint for 1escissionof Contract of !ale of :and against Brigido, a resident of Barangay !an )iguel, !to. %omas, Batangas. %he subjectproperty, located in Barangay %alisay, :ipa City, has anassessed value of 4+,*. Appended to the complaint is AmorsoloMs veriEcation and certiEcation of non-forum shopping

e@ecuted in 'ew Qor< City, duly notariJed by )r. 3osephBrown, "sH., a notary public in the !tate of 'ew Qor<.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1#




Brigod Eled a motion to dismiss the complaint on the followinggroundsN

(a2 %he court cannot acHuire jurisdiction over the person of Amorsolo because he isnot a resident of the hilippines/ (072

S&GGES'E( ANS)ER*

%he Erst ground raised lac<s merit because jurisdiction overthe person of a plainti is acHuired by the court upon theEling of plainti ‟s complaint therewith. 1esidency orcitiJenship is not a reHuirement for Eling a complaint, because

plainti thereby submits to the jurisdiction of the court.

(b2 %he 1%C does not have jurisdiction over the subject matter ofthe action involvingreal property with an assessed value of 4+,*./ e@clusiveand original jurisdiction is with the )unicipal %rial Courtwhere the defendant resides/ (672

S&GGES'E( ANS)ER*

%he second ground raised is also without merit because thesubject of the litigation, 1escission of Contract, is incapableof pecuniary estimation the e@clusive original jurisdiction towhich is vested by law in the 1egional %rial Courts. %henature of the action renders the assessed value of the landinvolved irrelevant.

(istinguis4 error o 7urisdiction rom error o 7udgment!01"1%.

S&GGES'E( ANS)ER*

An error of judgment is one which the court may commit inthe e@ercise of its jurisdiction. !uch an error does notdeprive the court of jurisdiction and is correctible only byappeal/ whereas an error of jurisdiction is one which thecourt acts without or in e@cess of its jurisdiction. !uch anerror renders an order or judgment void or voidable and iscorrectible by the special civil action of certiorari. (Dela CruJ vs. )oir, 6 hil. 046/ Cochingyan vs. Claribel, * !C1A 64/$ortich vs. Corona, April 0, 4++, 0+ !C1A 0/ Artistica

Ceramica, &nc. vs. Ciudad Del Carmen omeowner’s Association, &nc., ;.1. 'os. 4*6-, 3une 4, 042.





Jurisdiction vs. :enue !0113%

Distinguish jurisdiction from venue> (072

S&GGES'E( ANS)ER*

31&!D&C%&#' treats of the power of the Court to decide a case on

the merits, while 9"'" refers to the place where the suit may be

Eled. &n criminal actions, however, venue is jurisdictional.

3urisdiction is a matter of substantive law/ venue, of procedural

law. 3urisdiction may be not be conferred by consent through

waiver upon a court, but venue may be waived, e@cept in criminalcases ('ocum et al. v. %an, ;.1. 'o. 400, !eptember 06, 0/

!antos &&& v. 'orthwest Airlines, ;.1. 'o. 446, 3une 06, 4++02.

Jurisdiction- C'A (ivision vs. C'A En Banc !0113%

)ar< Eled with the Bureau of &nternal 1evenue a complaint for

refund of ta@es paid, but it was not acted upon. !o, he Eled a

similar complaint with the Court of %a@ Appeals raIed to one of its

Divisions. )ar<Rs complaint was dismissed. %hus, he Eled with the

Court of Appeals a petition for certiorari under 1ule . Does theCourt of Appeals have jurisdiction over )ar<Rs petition> (0.72

S&GGES'E( ANS)ER*

'o. %he procedure is governed by !ec. 44 of 1. A. +00. Decisions

of a division of the Court of %a@ Appeals must be appealed to the

Court of %a@ Appeals en banc. $urther, the C%A now has the same

ran< as the Court of Appeals and is no longer considered a Huasi-

judicial agency. &t is li<ewise provided in the said law that the

decisions of the C%A en bane are cogniJable by the !upreme Courtunder 1ule of the 4++* 1ules of Civil rocedure.

Jurisdiction* R'C- Actions Inca+able 2 PecuniaryEstimation !01">%

rince Con$ entered into a lease contract with "in$ "on$ over acommercial building where the former conducted his hardwarebusiness. %he lease contract stipulated, among others, a monthly

rental of ,. for a four (2-year period commencing on 3anuary 4, 04. #n 3anuary 4, 046, rince Con$ died. "in l

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1"




Con$ was appointed administrator of the estate of rince Con$,but the former failed to pay the rentals for the months of 3anuary to 3une 046 despite "in$ "on$/s written demands.

%hus, on 3uly 4, 046, "in$ "on$ Eled with the 1egional %rial Court( R0C2 an action for rescission of contract with damages andpayment of accrued rentals as of 3une 6, 046. !>?%!A% Can "in l Con$ move to dismiss the complaint on the groundthat the 1%C is without jurisdiction since the amount claimed isonly 6,.>

S&GGES'E( ANS)ER*

'o, ?in && Chong cannot move to dismiss the complaint on theground that the 1%C is without jurisdiction since the amountclaimed is only 6,.

nder B.. Blg. 40+, the 1%C has original and e@clusive jurisdictionover actions incapable of pecuniary estimation.

ere the action is for rescission which is incapable of pecuniaryestimation. %he 6, accrued rentals is only incidental to themain purpose of the action which is to rescind the lease contract.

!B% &f the rentals accrued during the lifetime of rinceCon$, and "in$ "on$ also Eled the complaint for sum of moneyduring that time, will the action be dismissible upon rince Con$Msdeath during the pendency of the case>

S&GGES'E( ANS)ER*

'o, the action will not be dismissible upon rince ChongMs deathduring the pendency of the case.

nder !0 16, when the action is on a contractual money claimand the defendant dies before entry of Enal judgment, the action

shall not be dismissed but shall instead be allowed to continue untilentry of Enal judgment.

here the action is on a contractual money claim, that is, a claim forrentals based on a lease contract. ence it shall be allowed tocontinue until Enal judgment. (!0 16, ! 12.

Jurisdiction- Inca+able o Pecuniary Estimation !0111%

A brings an action in the )%C of )anila against B for the

annulment of an e@trajudicial foreclosure sale of real property withan assessed value of ,. located in :aguna. %he complaint

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%




alleged prematurity of the sale for the reason that the mortgage

was not yet due. B timely moved to dismiss the case on the ground

that the action should have been brought in the 1%C of :aguna.Decide with reason. (672

!;;"!%"D A'!="1N

%he motion should be granted. %he )%C of )anila has no

jurisdiction because the action for the annulment of the

e@trajudicial foreclosure is not capable of pecuniary estimation and

is therefore under the jurisdiction of the 1%Cs. (1ussell v. 9estil,

6 !C1A *6,54+++82.

owever, the action for annulment is a personal action and the

venue depends on the residence of either A or B. ence, it should

be brought in the 1%C of the place where either of the parties

resides.


A Eles an action in the )unicipal %rial Court against B, the natural

son of AMs father, for the partition of a parcel of land located in

%aytay, 1iJal with an assessed value of 0,.. B moves to

dismiss the action on the ground that the case should have been

brought in the 1%C because the action is one that is not capable of

pecuniary estimation as it involves primarily a determination of

hereditary rights and not merely the bare right to real property.

1esolve the motion. (072

!;;"!%"D A'!="1N

%he motion should be granted. %he action for partition depends on

a determination of the hereditary rights of A and B, which is not

capable of pecuniary estimation. ence, even though the assessed

value of the land is 0,., the )unicipal %rial Court has no

jurisdiction. (1ussell v. 9estil, supra2


A Eled with the )%C of )anila an action for speciEc performance

against B, a resident of PueJon City, to compel the latter to e@ecute

a deed of conveyance covering a parcel of land situated in PueJon

City having an assessed value of p4+,.. B received the

summons and a copy of the Complaint on 0 3anuary 06. #n 4

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$




3anuary 06, B Eled a )otion to Dismiss the Complaint on the

ground of lac< of jurisdiction contending that the subject matter of

the suit was incapable of pecuniary estimation. %he court deniedthe motion. &n due time, B Eled with the 1%C a etition for

Certiorari praying that the said #rder be set aside because the

)%C had no jurisdiction over the case. 7 #n 46 $ebruary 06, A

Eled with the )%C a motion to declare B in default. %he motion was

opposed by B on the ground that his etition for Certiorari was still

pending.

(a2 =as the denial of the )otion to Dismiss the Complaint correct>

(b2 1esolve the )otion to Declare the Defendant in Default.

S&GGES'E( ANS)ER*

(a2 %he denial of the )otion to Dismiss the Complaint was not

correct. Although the assessed value of the parcel of land involved

was 4+,., within the jurisdiction of the )%C of )anila, the

action Eled by A for !peciEc erformance against B to compel the

latter to e@ecute a Deed of Conveyance of said parcel of land was

not capable of pecuniary estimation and, therefore, the action was

within the jurisdiction of 1%C. (1ussel v. 9estil, 6 !C1A *654+++8/ Copioso v. Copioso, ;.1. 'o. 4+06, #ctober 0,00/

Cabutihan v. :andcenter Construction, 66 !C1A 66 50082.

AL'ERNA'I:E ANS)ER*

&f the action aects title to or possession of real property then it is

a real action and jurisdiction is determined by the assessed value of

the property. &t is within the jurisdiction therefore of the

)etropolitan %rial Court.

S&GGES'E( ANS)ER*

(b2 %he Court could declare B in default because B did not obtain a

writ of preliminary injunction or a temporary restraining order

from the 1%C prohibiting the judge from proceeding in the case

during the pendency of the petition for certiorari.

(!ec. * of 1ule / DiaJ v. DiaJ, 664 !C1A 60 5008.

AL'ERNA'I:E ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&




%he Court should not declare B in default inasmuch as the

jurisdiction of )%C was put in issue in the etition $or Certiorari

Eled with the 1%C. %he )%C should defer further proceedingspending the result of such petition. ("ternal ;ardens )emorial

ar< Corporation v. Court of Appeals, 4 !C1A 04 54+82.

Jurisdiction* Sandiganbayan !01">%

%he #mbudsman, after conducting the reHuisite preliminaryinvestigation, found probable cause to charge ov. 'a#i$as inconspiracy with Car2in#ero, a private individual, for violating!ection 6(e2 of 1epublic Act ( R&2 'o. 64+ ( &n#iraf# an! Corru2# rac#ices &c#, as amended2.

Before the information could be Eled with the !andiganbayan, ov. 'a#i$as was <illed in an ambush. %his, notwithstanding, aninformation was Eled against ov. 'a#i$as and Car2in#ero. At the !andiganbayan, Car2in#ero through counsel, Eled a )otionto Puash the &nformation, on the ground of lac< of jurisdiction ofthe !andiganbayan, arguing that with the death of ov. 'a#i$as,there is no public oicer charged in the information. &s the motionto Huash legally tenable> !>?%

S&GGES'E( ANS)ER*

'o, the motion to Huash is not legally tenable.

&n a case involving similar facts, the !upreme Court held that thedeath of the public oicer did not mean that the allegation ofconspiracy between the public oicer and the private person canno longer be proved or that their alleged conspiracy is alreadye@punged. %he only thing e@tinguished by the death of the publicoicer was his criminal liability. is death did not e@tinguish thecrime nor did it remove the basis of the charge of conspiracy

between him and the private person. ence the !andiganbayanhad jurisdiction over the oense charged. (eople v. ;o, 0 )arch04, eralta, 3.2

Jurisdiction- R'C- =e'C !01"1%

#n August 46, 0, A, as shipper and consignee, loaded onthe )F9 Atlantis in :egaspi City 4, pieces of centuryeggs. %he shipment arrived in )anila totally damaged on August 4, 0. A Eled before the )etropolitan %rial Court

()e%C2 of )anila a complaint against B !uper :ines, &nc. (B:ines2, owner of the )F9 Atlantis, for recovery of damages

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'




amounting to 4*,++. e attached to the complaint the Bill of :ading.

(a2 B :ines Eled a )otion to Dismiss upon the ground thatthe 1egional %rial ourt has e@clusive original jurisdiction overLall actions in admiralty and maritimeL claims.&n his 1eply, A contended that while the action is indeedLadmiralty and maritimeLin nature, it is the amount of the claim, not the nature of theaction, that governs jurisdiction. ass on the )otion to Dismiss.(672

!;;"!%"D A'!="1N

%he )otion to Dismiss is without merit and therefore shouldbe denied. Courts of the Erst level have jurisdiction over civilactions where the demand is for sum of money not e@ceeding6,. or in )etro )anila, ,., e@clusive of interest, damages, attorney‟s fees, litigation e@penses andcostsN this jurisdictionincludes admiralty and marine cases. And where the maincause of action is the claim for damages, the amount thereof shall be considered in determining the jurisdiction of the court(Adm. Circular 'o. +-+, 3une 4, 4++2.

(b2 %he )e%C denied the )otion in Huestion A. B :ines thus Eledan Answer raising thedefense that under the Bill of :ading it issued to A, itsliability was limited to4,. At the pre-trial conference, B :ines deEned as one of the issues whether the stipulation limiting its liability to 4,binds A. A countered that this was no longer in issue as B:ines had failed to deny under oath the Bill of :ading. =hichof the parties is correct> "@plain. (672

S&GGES'E( ANS)ER* %he contention of B is correctN A ‟s contention is wrong. &twas A whopleaded the Bill of :ading as an actionable document where

the stipulation limits B‟s liability to A to 4,. only. %heissue raised by B does not go against or impugn thegenuineness and due e@ecution of the Bill of :ading as anactionable document pleaded by A, but invo<es the bindingeect of said stipulation. %he oath is not reHuired of B, becausethe issue raised by the latter does not impugn the

genuineness and due e@ecution of the Bill of :ading.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1!




Jurisdiction- R'C- ='C !01">%

s#rella was the registered owner of a huge parcel of land locatedin a remote part of heir barrio in -en$ue#. owever, when she visited the property after she too< a long vacation abroad, she wassurprised to see that her childhood friend, 5on, had established a vacation house on her property.

Both s#rella and 5on were residents of the same baran$a% . %orecover possession, s#rella Eled a complaint for ejectment withthe )unicipal %rial Court ( '0C2, alleging that she is the trueowner of the land as evidenced by her certiEcate of title and ta@declaration which showed the assessed value of the property as

04,.. #n the other hand, 5on refuted s#rella/s claim of ownership and submitted in evidence a Deed of Absolute !alebetween him and s#rella. After the Eling of 5onMs answer, the)%C observed that the real issue was one of ownership and not of possession. ence, the )%C dismissed the complaint for lac< of jurisdiction.

#n appeal by s#rella to the 1egional %rial Court ( R0C2, a full-blown trial was conducted as if the case was originally Eled with it.%he 1%C reasoned that based on the assessed value of the property,it was the court of proper jurisdiction. "ventually, the 1%C

rendered a judgment declaring 5on as the owner of the land and,hence, entitled to the possession thereof. !>?%

!A% =as the )%C correct in dismissing the complaint for lac< of jurisdiction> =hy or why not>

S&GGES'E( ANS)ER*

'o, the )%C was not correct in dismissing the case for lac< of jurisdiction. %he !upreme Court has held that an allegation of ownership as a defense in the answer will not oust the )%C of

jurisdiction in an ejectment case. (!ubano v. 9allecer, 0 )arch4++2. =hat determines subject-matter jurisdiction is theallegations in the complaint and not those in the answer.$urthermore, the )%C is empowered under !4 1* to resolve theissue of ownership, albeit for the purpose only of resolving theissue of possession.

!B% =as the 1%C correct in ruling that based on the assessed valueof the property, the case was within its original jurisdiction and,hence, it may conduct a full-blown trial of the appealed case as if itwas originally Eled with it> =hy or why not>

S&GGES'E( ANS)ER*Questions and Answers Remedial Law Year 1!-"#1$ Compiled by:

ADARAYAN, IRINCO, PRUDENCIADO 1(




'o the 1%C was not correct in ruling that the case was within itsoriginal jurisdiction and that hence it may conduct a full-blown trialof the appealed case as if it were originally Eled with it.

nder ! 1, if an appeal is ta<en from an )%C order dismissinga case for lac< of jurisdiction without a trial on the merits, the 1%Con appeal may airm the dismissal order and if i# as 6uris!ic#ion#ereover , try the case on the merits as if the case was originallyEled with it.

ere the 1%C did not have jurisdiction over the case since it is anejectment suit cogniJable e@clusively by the )%C. %he assessed value of the land is irrelevant for the purpose of determining jurisdiction in ejectment suits and would not oust the )%C of

jurisdiction in the same manner as allegations of ownership wouldnot oust the )%C of jurisdiction.

%he 1%C should have reversed the dismissal order andremanded the case to the )%C for further proceedings.

Jurisdiction- ='C !0110%

sued A and B in one complaint in the 1%C-)anila, the cause of

action against A being on an overdue promissory note for

6,. and that against B being on an alleged balance of

6,. on the purchase price of goods sold on credit. Does

the 1%C-)anila have jurisdiction over the case> "@plain. (672

S&GGES'E( ANS)ER*

'o, the 1%C-)anila has no jurisdiction over the case. A and B could

not be joined as defendants in one complaint because the right to

relief against both defendants do not arise out of the same

transaction or series of transactions and there is no common

Huestion of law or fact common to both. (1ule 6, sec. 2. ence,

separate complaints will have to be Eles and they would fall under

the jurisdiction of the )etropolitan %rial Court. 5$lores v. )allare-

hilipps, 4 !C1A 6** (4+28.

Jurisdiction- 2@ice o t4e Solicitor General !0113%

&n 4++, Congress passed 1epublic Act 'o. 4+, otherwise <nown

as the 9oterRs 1egistration Act of 4++, providing for

computeriJation of elections. ursuant thereto, the C#)":"C





approved the 9oterRs 1egistration and &dentiEcation !ystem (91&!2

roject. &t issued invitations to pre-Hualify and bid for the project.

After the public bidding, $oto<ina was declared the winning bidderwith a bid of billion and was issued a 'otice of Award. But

C#)":"C Chairman ;ener ;o objected to the award on the

ground that under the Appropriations Act, the budget for the

C#)":"CRs moderniJation is only 4 billion. e announced to the

public that the 91&! project has been set aside. %wo

Commissioners sided with Chairman ;o, but the majority voted to

uphold the contract.

)eanwhile, $oto<ina Eled with the 1%C a petition for mandamus

compel the C#)":"C to implement the contract. %he #ice of the!olicitor ;eneral (#!;2, representing Chairman ;o, opposed the

petition on the ground that mandamus does not lie to enforce

contractual obligations. During the proceedings, the majority

Commissioners Eled a manifestation that Chairman ;o was not

authoriJed by the C#)":"C "n Banc to oppose the petition.

)ay the #!; represent Chairman ;o before the 1%C

notwithstanding that his position is contrary to that of the majority>

(72S&GGES'E( ANS)ER*

Qes, the #!; may represent the C#)":"C ChairSman before the

1%C notwithstanding that his position is contrary to that of a

majority of the Commission members in the C#)":"C because the

#!; is an independent oice/ itRs hands are not shac<led to the

cause of its client agency. %he primordial concern of the #!; is to

see to it that the best interest of the government is upheld

(C#)":"C v. Puyano-adilla, !eptember 4, 002. Jurisdiction- 2mbudsman Case (ecisions !0113%

Does the Court of Appeals have jurisdiction to review the Decisions

in criminal and administrative cases of the #mbudsman> (0.72

S&GGES'E( ANS)ER*

%he !upreme Court has e@clusive appellate jurisdiction over

decisions of the #mbudsman in criminal cases (!ec. 4, 1.A. **2.

&n administrative and disciplinary cases, appeals from the#mbudsman must be ta<en to the Court of Appeals under 1ule 6

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#




(:anting v. #mbudsman, ;.1. 'o. 440, )ay , 0/ $abian v.

Desierto, ;.1. 'o. 40+*0, !eptember 4, 4++/ !ec. 4, 1A.

**2.

Jurisdiction- Probate !011"%

3osefa Eled in the )unicipal Circuit %rial Court of Alicia and

)abini, a petition for the probate of the will of her husband,

)artin, who died in the )unicipality of Alicia, the residence of the

spouses. %he probable value of the estate which consisted mainly of

a house and lot was placed at +,. and in the petition for the

allowance of the will, attorneyMs fees in the amount of 4,.,

litigation e@penses in the amount of ,. and costs wereincluded. edro, the ne@t of <in of )artin, Eled an opposition to the

probate of the will on the ground that the total amount included in

the relief of the petition is more than 4,., the ma@imum

jurisdictional amount for municipal circuit trial courts. %he court

overruled the opposition and proceeded to hear the case. =as the

municipal circuit trial court correct in its ruling> =hy> (72

S&GGES'E( ANS)ER*

Qes, the )unicipal Circuit %rial Court was correct in proceeding tohear the case. &t has e@clusive jurisdiction in all matters of probate,

both testate and intestate, where the value of the estate does not

e@ceed 4,. (now 0,.2. %he value in this case of

+,. is within its jurisdiction. &n determining the

jurisdictional amount, e@cluded are attorneyMs fees, litigation

e@penses and costs/ these are considered only for determining the

Eling fees. (B..Blg. 40+, !ec. 66, as amended2

Jurisdiction- R'C !011#%

Angelina sued Armando before the 1egional %rial Court (1%C2of )anila to recover the ownership and possession of twoparcels of land/ one situated in ampanga, and the other inBulacan.

(a2 )ay the action prosper> "@plain.

S&GGES'E( ANS)ER*

'o, the action may not prosper, because under 1.A. 'o. *+4,e@clusive original jurisdiction in civil actions which involve

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "1




title to, or possession of real property or any interest thereinis determined on the basis of the assessed value of the landinvolved, whether it should be 0, in the rest of thehilippines, outside of the )anila with the courts of the Erstlevel or with the 1egional %rial Court. %he assessed value of the parcel of land in ampanga is dierent from the assessed value of the land in Bulacan. =hat is involved is not merelya matter of venue, which is waivable, but of a matter of jurisdiction. owever, the action may prosper if jurisdiction isnot in issue, because venue can be waived.

AL'ERNA'I:E ANS)ER*

Qes, if the defendant would not Ele a motion to dismiss onground of improper venue and the parties proceeded to trial.

(b2 =ill your answer be the same if the action was forforeclosure of the mortgageover the two parcels of land> =hy or why not>

S&GGES'E( ANS)ER*

'#, the answer would not be the same. %he foreclosure actionshould be brought in the proper court of the province wherethe land or any part thereof is situated, ither in ampangaor in Bulacan. #nly one foreclosure action need be Eledunless each parcel of land is covered by distinct mortgagecontract. &n foreclosure suit, the cause of action is for the violation of the terms and conditions of the mortgagecontract/ hence, one foreclosure suit per mortgage contract violated is necessary.

Jurisdiction- R'C !0110%

sued A in the 1%C-)anila to recover the following sumsN (42

0,. on an overdue promissory note, (02 ,. on the

purchase price of a computer, (62 4,. for damages to his

car and

(2 4,. for attorneyMs fees and litigation e@penses. Can A

move to dismiss the case on the ground that the court has no

jurisdiction over the subject matter> "@plain. (072

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ""




'o, because the 1%C-)anila has jurisdiction over the subject

matter. may sue A in one complaint asserting as many causes of

action as he may have and since all the claims are principally forrecovery of money, the aggregate amount claimed shall be the test

of jurisdiction. 51ule 0, sec. (d28. %he aggregate amount claimed is

,., e@clusive of the amount of 4,. for attorneyMs

fees and e@penses of litigation. ence, the 1%C-)anila has

jurisdiction.

Jurisdiction- R'C- Counterclaim !011,% $e Eled a suit for collection of 6*, against 1amon in

the 1%C of Davao City. Aside from alleging payment as adefense, 1amon in his answer set up counterclaims for4, as damages and 6, as attorneyMs fees as a result of the baseless Eling of the complaint, as well as for 0,as the balance of the purchase price of the 6 units of airconditioners he sold to $e.

(a2 Does the 1%C have jurisdiction over 1amonMs counterclaim,and if so, does hehave to pay doc<et fees therefore>

S&GGES'E( ANS)ER*

Qes, applying the totality rule which sums up the totalamount of claims of the parties, the 1%C has jurisdiction overthe counter claims. nli<e in the case of compulsorycounterclaims, a defendant who raises a permissivecounterclaim must Erst pay doc<et fees before the court can validly acHuire jurisdiction. #ne compelling test of compulsoriness is the logical relation between the claimalleged in the complaint and the counterclaim (Bayer hil,&nc. vs. C.A., ;.1. 'o. 4+0+, 4 !eptember 02. 1amondoes not have to pay doc<et fees for his compulsorycounterclaims. 1amon is liable for doc<et fees only on hispermissive counterclaim for the balance of the purchase priceof 6 units of air conditioners in the sum of 0,, as itneither arises out of nor is it connected with the transactionor occurrence constituting $e‟s claim (!ec. 4+ 58 and 66 548,B.. 40+/ A# -+, implementing 1.A. *+4, approved )arch0, 4++, the jurisdictional/ amount for )%C Davao being6, at this time/ Alday vs. $; &nsurance Corporation,;.1. 'o. 4600, 06 3anuary 042.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%




(b2 !uppose 1amonMs counterclaim for the unpaid balance is64,, what will happen to his counterclaims if the courtdismisses the complaint after holding apreliminary hearing on 1amonMs airmative defenses>

S&GGES'E( ANS)ER*

%he dismissal of the complaint shall be without prejudice tothe prosecution inthe same or separate action of a counterclaim pleaded in theanswer (!ec. 6, 1ule 4*/ inga vs. eirs of ;erman !antiago,;.1. 'o. 4*6, 3une 6, 02.

(c2 nder the same premise as paragraph (b2 above, supposethat instead of allegingpayment as a defense in his answer, 1amon Eled a motion todismiss on that ground, atthe same time setting up his counterclaims, and the court grantshis motion. =hat willhappen to his counterclaims>

S&GGES'E( ANS)ER* is counterclaims can continue to be prosecuted or may be

pursued separately at his option (!ec. , 1ule 4/ inga vs.eirs of ;erman !antiago, ;.1. 'o. 4*6, 3une 6, 02.

Jurisdiction- Subdivision ;omeo8ner !0113%

=hat court has jurisdiction over an action for speciEc performance

Eled by a subdivision homeowner against a subdivision developer>

Choose the correct answer. "@plain.

4 %he ousing and :and se 1egulatory Board

0 %he !ecurities and "@change Commission

6 %he 1egional %rial Court

%he Commercial Court or the 1egional %rial Court designated

by the !upreme Court to hear and decide Lcommercial cases.L

S&GGES'E( ANS)ER*

An action for speciEc performance by a subdivision homeowner

against a subdivision developer is within the jurisdiction of theousing and :and se 1egulatory Board. !ec. 4 of .D. 46

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$




provides that the :1B has jurisdiction over cases involving

speciEc performance of contractual and statutory obligations Eled

by buyers of subdivision lots and condominium units against theowner, developer, dealer, bro<er or salesman ()anila Ban<ers :ife

&nsurance Corp. v. "ddy 'g ?o< =ei, ;.1. 'o. 46+*+4, December

40, 06/ ?a<ilala v. $araon, ;.1. 'o. 46066, #ctober 4, 0/

!ec. 4, .D. 462.

Katarungang Pambarangay; Lupon- Etent o Aut4ority-

!011"%

An amicable settlement was signed before a u2on 0a$a2ama%a2a

on 3anuary 6, 04. #n 3uly , 04, the prevailing party as<ed the u2on to e@ecute the amicable settlement because of the non-

compliance by the other party of the terms of the agreement. %he

u2on concerned refused to e@ecute the settlementFagreement. a2

&s the u2on correct in refusing to e@ecute the

settlementFagreement> (672 b2 =hat should be the course of action

of the prevailing party in such a case> (072

!;;"!%"D A'!="1N

a2 Qes, the u2on is correct in refusing to e@ecute thesettlementFagreement because the e@ecution sought is already

beyond the period of si@ months from the date of the settlement

within which the u2on is authoriJed to e@ecute. (!ec. 4*, :ocal

;overnment Code of 4++42

b2 After the si@-month period, the prevailing party should move to

e@ecute the settlementFagreement in the appropriate city or

municipal trial court. (&d.2

III. CI:IL PR2CE(&RE

Actions- Cause o Action vs. Action !"###%

Distinguish action from cause of action. (072

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&




S&GGES'E( ANS)ER*

An AC%&#' is one by which a party sues another for the

enforcement or protection of a right, or the prevention or redress

of a wrong. (!ec. 6(A2, 1ule 2

A CA!" #$ AC%&#' is the act or omission by which a party

violates a right of another. (!ec. 0, 1ule 0 of the 4++* 1ules2 An

action must be based on a cause of action. (!ec. 4, 1ule 0 of the

4++* 1ules2

Actions- Cause o Action !01"6%

=hile leisurely wal<ing along the street near her house in)ari<ina, atty un<nowingly stepped on a garden tool leftbehind by CCC, a construction companybased in )a<ati. !he lost her balance as a conseHuence andfell into an open manhole.$ortunately, atty suered no major injuries e@cept forcontusions, bruises andscratches that did not reHuire any hospitaliJation. owever,she lost self- esteem, suered embarrassment and ridicule, andhad bouts of an@iety and bad dreams about the accident. !he

wants vindication for her uncalled for e@perience and hires youto act as counsel for her and to do whatever is necessary torecover at least hp4, for what she suered. =hat actionor actions may atty pursue, against whom, where (court and venue2, and under what legal basis> (*72

S&GGES'E( ANS)ER*

atty may avail any of the following remediesNa2 !he may Ele a complaint for damages arising from fault ornegligence under

the 1ules on !mall Claims against CCC Company before the)%C of )ari<inaCity where she resides or )a<ati City where the defendantcorporation is holding oice, at her option (A.). 'o. - -*-!C inrelation to !ection 0, 1ule , 1ules of Court2.

b2 !he may also Ele an action to recover moral damages basedon Huasi-delict under Article 04* of the 'ew Civil Code. %helaw states that, whoever by act or omission causes damage toanother, there being fault or negligence is obliged to pay forthe damage done.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'




!uch fault or negligence, if there is no pre-e@isting contractualrelation between the parties, is called a Huasi-delict. nder Article 004* of the 'ew Civil Code, moral damages includephysical suering, mental anguish, fright, serious an@iety,besmirched reputation, wounded feelings, moral shoc<, socialhumiliation, and similar injury. %hough incapable of pecuniarycomputation, moral damages may be recovered if theyare the pro@imate result of the defendant‟s wrongful act oromission. !ince moral damages are incapable of pecuniaryestimation, atty should Ele the action before the 1egional%rial Court of )ari<ina City where she resides or )a<ati City,where the defendant corporation is holding oice, at heroption (!ection 4+(42, B.. 40+2.

c2 atty can also Ele a civil action for damages against theCity of )ari<ina formaintaining an open manhole where she unfortunately fell.nder article 04+ ofthe Civil Code, provinces, cities, and municipalities shall beliable for damagesfor the death of, or injuries suered by, any person by reasonof the defectivecondition of roads, streets, bridges, public buildings, andother public wor<sunder their control or supervision. %he proper court having jurisdiction over thecase is at least hp 4, for as long as the aggregate ofthe claims for damages does not e@ceed hp ,.

Actions- S+ecic Perormance !01"0%

A bought a 9olvo !edan from ABC Cars for .). ABC Cars,before delivering to A, had the car rust proofed and tintedby KQO Detailing. =hen delivered to A, the carRs upholstery

was found to be damaged. ABC Cars and KQO Detailing bothdeny any liability. =ho can A sue and on what cause(s2 of action> "@plain. (72

S&GGES'E( ANS)ER*

A can Ele an action for speciEc performance and damagesagainst ABC Cars since the damage to the 9olvo !edan‟supholstery was caused before the delivery of the same to A,and therefore prior to the transfer of ownership to the latter.(Article 4**, 'ew Civil Code2. nder Article 44* of the

'ew Civil Code, those who

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!




contravene the tenor of the obligation are liable for damages.ence, an action for speciEc performance against ABCCorporation to deliver the agreed 9olvo !edan in the contract,free from any damage or defects, with corresponding damageswill lie against ABC Cars.

A can sue ABC Cars for speciEc performance or rescissionbecause the former has contractual relations with the latter.

Actions- Cause o Action- Joinder 5 S+litting !"##,%

;ive the eects of the followingN

4 !plitting a single cause of actionN and (67T

0 'on-joinder of a necessary party. 5078

S&GGES'E( ANS)ER*

4. %he eect of splitting a single cause of action is found in the rule

as followsN &f two or more suits are instituted on the basis of the

same cause of action, the Eling of one or a judgment on the merits

in any one is available as a ground for the dismissal of the others.

(!ec. of 1ule 02

0. %he eect of the non-joinder of a necessary party may be stated

as followsN %he court may order the inclusion of an omitted

necessary party if jurisdiction over his person may be obtained. %he

failure to comply with the order for his inclusion without justiEable

cause to a waiver of the claim against such party. %he court may

proceed with the action but the judgment rendered shall be without

prejudice to the rights of each necessary party. (!ec. + of 1ule 62

Actions/ Cause of Action/ 3oinder of Action (4+++2

a2 =hat is the rule on joinder of causes of action> (072

b2 A secured two loans from B> one for ,. and the

other for 4,,., payable on dierent dates. Both have

fallen due. &s B obliged to Ele only one complaint against A for the

recovery of both loans> "@plain. (072

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "(




a. %he rule on 3#&'D"1 #$ CA!"! #$ AC%&#' is that a party

may in one pleading assert, in the alternative or otherwise join as

many causes of action as he may have against an opposing party,provided that the rule on joinder of parties is complied with/

4.8 the joinder shall not include special civil actions or actions

governed by special rules, but may include causes of action

pertaining to dierent venues or jurisdictions provided one cause of

action falls within the jurisdiction of a 1%C and venue lies therein/

and

0.8 the aggregate amount claimed shall be the test of jurisdiction

where the claims in all the causes of action are principally for therecovery of money. (!ec. , 1ule 0 of the 4++* 1ules2

b. 'o. 3oinder is only permissive since the loans are separate

loans which may be governed by the dierent terms and conditions.

%he two loans give rise to two separate causes of action and may be

the basis of two separate complaints.

Actions- Cause o Action- Joinder o Action !011<%

erry is a resident of )anila, while 1ic<y and )arvin are residents

of Batangas City. %hey are the coSowners of a parcel of residential

land located in asay City with an assessed value of 4,..

erry borrowed 4,. from 1ic<y which he promised to pay

on or before December 4, 0. owever, erry failed to pay his

loan. erry also rejected 1ic<y and )arvinRs proposal to partition

the property. 1ic<y Eled a complaint against erry and )arvin in

the 1%C of asay City for the partition of the property. e also

incorporated in his complaint his action against erry for thecollection of the latterRs 4,. loan, plus interests and

attorneyRs fees.

!tate with reasons whether it was proper for 1ic<y to join his

causes of action in his complaint for partition against erry and

)arvin in the 1%C of asay City. (72

S&GGES'E( ANS)ER*

&t was not proper for 1ic<y to join his causes of action against erry

in his complaint for partition against erry and )arvin. %he causes





of action may be between the same parties, 1ic<y and erry, with

respect to the loan but not with respect to the partition which

includes )arvin. %he joinder is between a partition and a sum of money, but A1%&%&#' is a special civil action under 1ule +,

which cannot be joined with other causes of action. (!ee. 5b8, 1ule

0,2 Also, the causes of action pertain to dierent venues and

jurisdictions. %he case for a sum of money pertains to the municipal

court and cannot be Eled in asay City because the plainti is from

)anila while 1ic<y and )arvin are from Batangas City. (!ec. ,

1ule 0,2

Actions- Cause o Action- S+litting !"###%

a2 =hat is the rule against splitting a cause of action and its

eect on the respective rights of the parties for failure to comply

with the same> (072

b2 A purchased a lot from B for l,,.. e gave a down

payment of ,, signed a promissory note payable thirty days

after date, and as a security for the settlement of the obligation,

mortgaged the same lot to B. =hen the note fell due and A failed to

pay, B commenced suit to recover from A the balance of

4,,.. After securing a favorable judgment on his claim, Bbrought another action against A before the same court to

foreclose the mortgage. A now Eles a motion to dismiss the second

action on the ground of bar by prior judgment. 1ule on the motion.

(072

S&GGES'E( ANS)ER*

a. %he rule against splitting a cause of action and its eect are that

if two or more suits are instituted on the basis of the same cause of

action, the Eling of one or a judgment upon the merits in any one is

available as a ground for the dismissal of the others. (!ec. , 1ule

02

b. %he motion to dismiss should be granted. =hen B commenced

suit to collect on the promissory note, he waived his right to

foreclose the mortgage. B split his cause of action.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %#




Actions- Cause o Action- S+litting !011<%

1aphael, a warehouseman, Eled a complaint against 9 Corporation,

K Corporation and Q Corporation to compel them to interplead. e

alleged therein that the three corporations claimed title and right

of possession over the goods deposited in his warehouse and that

he was uncertain which of them was entitled to the goods. After

due proceedings, judgment was rendered by the court declaring

that K Corporation was entitled to the goods. %he decision became

Enal and e@ecutory.

byN sirdondeeUgmail.com age 4 of 1aphael Eled a complaint

against K Corporation for the payment of 4,. for storagecharges and other advances for the goods. K Corporation Eled a

motion to dismiss the complaint on the ground of res judicata. K

Corporation alleged that 1aphael should have incorporated in his

complaint for interpleader his claim for storage fees and advances

and that for his failure he was barred from interposing his claim.

1aphael replied that he could not have claimed storage fees and

other advances in his complaint for interpleader because he was

not yet certain as to who was liable therefor. 1esolve the motion

with reasons. (72S&GGES'E( ANS)ER*

%he motion to dismiss should be granted. 1aphael should have

incorporated in his complaint for interpleader his claim for storage

fees and advances, the amounts of which were obviously

determinable at the time of the Eling of the complaint. %hey are

part of 1aphaelRs cause of action which he may not be split. ence,

when the warehouseman as<s the court to ascertain who among

the defendants are entitled to the goods, he also has the right toas< who should pay for the storage fees and other related

e@penses. %he Eling of the interpleader is available as a ground for

dismissal of the second case. (!ec. , 1ule 0,2 &t is a<in to a

compulsory counterclaim which, if not set up, shall be barred. (!ec.

0, 1ule +,/ ArreJa v. DiaJ, ;.1. 'o. 466446, August 6, 042

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %1




Actions- Cause o Actions- =otion to (ismiss- bar by +rior

7udgment !0110%

1olando Eled a petition for declaration of the nullity of his marriage

to Carmela because of the alleged psychological incapacity of the

latter.

After trial, the court rendered judgment dismissing the petition on

the ground that 1olando failed to prove the psychological

incapacity of his wife. %he judgment having become Enal, 1olando

Eled another petition, this time on the ground that his marriage to

Carmela had been celebrated without a license. &s the second

action barred by the judgment in the Erst> =hy> (072

S&GGES'E( ANS)ER*

'o, the second action is not barred by the judgment in the Erst

because they are dierent causes of action. %he Erst is for

annulment of marriage on the ground of psychological incapacity

under Article 6 of the $amily Code, while the second is for

declaration of nullity of the marriage in view of the absence of a

basic reHuirement, which is a marriage license. 5Arts, + V 6(62,

$amily Code8. %hey are dierent causes of action because theevidence reHuired to prove them are not the same. 5agsisihan v.

Court of Appeals, + !C1A (4+2 and other cases8.

Actions- Counterclaim !0110%

%he plainti sued the defendant in the 1%C for damages allegedly

caused by the latterMs encroachment on the plaintiMs lot. &n his

answer, the defendant denied the plaintiMs claim and alleged that

it was the plainti who in fact had encroached on his (defendantMs2

land. Accordingly, the defendant counterclaimed against theplainti for damages resulting from the alleged encroachment on

his lot. %he plainti Eled an e@ parte motion for e@tension of time to

answer the defendantMs counterclaim, but the court denied the

motion on the ground that it should have been set for hearing. #n

the defendantMs motion, therefore, the court declared the plainti

in default on the counterclaim. =as the plainti validly declared in

default> =hy> (72

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %"




'o, the plainti was not validly declared in default. A motion for

e@tension of time to Ele an answer may be Eled e@ parte and need

not be set for hearing. 5Amante vs. !unga, !C1A 4+0 (4+*28.

AL'ERNA'I:E ANS)ER*

%he general rule is that a counterclaim must be answered within

ten (42 days from service. (1ule 44, sec. 2. owever, a

counterclaim that raises issues which are deemed automatically

joined by the allegations of the Complaint need not be answered.5;ojo v. ;oyala, 6 !C1A * (4+*28.

&n this case, the defendantMs counterclaim is a compulsory

counterclaim which arises out or is connected with the transaction

and occurrence constituting the subject matter of the plaintiMs

claim. &t raises the same issue of who encroached on whose land.

ence, there was no need to answer the counterclaim.

Actions- Counterclaim vs. Crossclaim !"###%

a2 =hat is a counterclaim> (072 b2 Distinguish a counterclaim from

a crossclaim. (072

c2 A, who is engaged in tile installation business, was sued by

"" &ndustries for breach of contract for installing dierent marble

tiles in its oices as provided in their contract. =ithout Eling any

motion to dismiss, A Eled its Answer with Counterclaim theoriJing

that "" &ndustries has no legal capacity to sue because it is not a

duly registered corporation. By way of counterclaim, A as<ed for

moral and actual damages as her business depleted as a result of the withdrawal and cancellation by her clients of their contracts

due to the Eling of the case. %he case was dismissed after the trial

court found that "" &ndustries is not a registered corporation and

therefore has no legal capacity to sue. owever, it set a date for the

reception of evidence on ARs counterclaim. "" &ndustries opposed

on the ground that the counterclaim could no longer be prosecuted

in view of the dismissal of the main

byN sirdondeeUgmail.com age 4 of case. &s the stand of ""

&ndustries sustainable> "@plain. 5078

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %%




S&GGES'E( ANS)ER*

a2 A C#'%"1C:A&) is any claim which a defending party may

have against an opposing party. (!ec. , 1ule 2

b2 A counterclaim is distinguished from a C1#!!SC:A&) in

that a cross-claim is any claim by one party against a co-party

arising out of the transaction or occurrence that is the subject

matter either of the original action or of a counterclaim therein. A

counterclaim is against an opposing party while a cross-claim is

against a co-party. (!ec. , 1ule 2

c2 'o, because if no motion to dismiss has been Eled, any of the

grounds for dismissal provided in the 1ules may be pleaded as an

airmative defense in the answer which may include a

counterclaim. %his is what A did by Eling an Answer alleging the

lac< of legal capacity of "" &ndustries to sue because it is not a

duly registered corporation with a counterclaim for damages. %he

dismissal of the complaint on this ground is without prejudice to

the prosecution of the counterclaim in the same action because it is

a compulsory counterclaim. (!ec. of 1ule 4.2

Actions- CrossClaims- '4ird Party Claims !"##$%

B and C borrowed ,. from A. %he promissory note was

e@ecuted by B and C in a 3oint and several capacity. B, who

received the money from A, gave C 0,.. C, in turn, loaned

4,. out of the 0,. he received to D. a2 &n an

action Eled by A against B and C with the

1%C of PueJon City, can B Ele a cross-claim against C for the

amount of 0,.> b2 Can C Ele a third party complaint

against D for the amount of 4,.>

S&GGES'E( ANS)ER*

(a2 Qes. B can Ele a cross-claim against C for the amount of

0,. given to C. A cross-claim is a claim Eled by one party

against a co-party arising out of the transaction or occurrence that

is the subject matter of the original action or a counterclaim

therein and may include a claim that the party against whom it is

asserted is or may be liable to the cross-claimant for all or part of a

claim asserted against the cross-claimant. (!ec. 1ule 2

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %$




(b2 'o, C cannot Ele a third-party complaint against D because the

loan of 4, has no connection with the opponentRs claim. C

could have loaned the money out of other funds in his possession.

AL'ERNA'I:E ANS)ER*

Qes, C can Ele a third-party complaint against D because the loan of

4,. was ta<en out of the 0, received from B and

hence the loan see<s contribution in respect to his opponentRs

claim. (!ec. 44 of 1ule 2

Actions- (erivative Suit vs. Class Suit !011<%

Distinguish a derivative suit from a class suit.

!;;"!%"D A'!="1N

A D"1&9A%&9" !&% is a suit in eHuity that is Eled by a minority

shareholder in behalf of a corporation to redress wrongs committed

against it, for which the directors refuse to sue, the real party in

interest being the corporation itself (:int v. :im-Qu, ;.&: 'o.

4666, $ebruary 4+, 042, while a C:A!! !&% is Eled regarding

a controversy of common or general interest in behalf of many

persons so numerous that it is impracticable to join all as parties, anumber which the court Ends suiciently representative who may

sue or defend for the beneEt of all. (!ec. 40, 1ule 62 &t is worth

noting that a derivative suit is a represenStative suit, just li<e a

class suit.

Actions- /iling- Civil Actions 5 Criminal Action !011<%

=hile cruising on a highway, a ta@icab driven by )ans hit an

electric post. As a result thereof, its passenger, 3ovy, suered

serious injuries. )ans was subseHuently charged before the)unicipal %rial Court with rec<less imprudence resulting in serious

physical injuries.

%hereafter, 3ovy Eled a civil action against :ourdes, the owner of

the ta@icab, for breach of contract, and )ans for Huasi-delict.

:ourdes and )ans Eled a motion to dismiss the civil action on the

ground of litis pendentia, that is, the pendency of the civil action

impliedly instituted in the criminal action for rec<less imprudence

resulting in serious physical injuries. 1esolve the motion with

reasons. (72

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %&




S&GGES'E( ANS)ER*

%he motion to dismiss should be denied. %he action for breach of

contract against the ta@icab owner cannot be barred by the

criminal action against the ta@icab driver, although the ta@icab

owner can be held subsidiarily liable in the criminal case, if the

driver is insolvent. #n the other hand, the civil action for Huasi-

delict against the driver is an independent civil action under Article

66 of the Civil Code and !ec. 6, 1ule 444 of the 1ules of Court,

which can be Eled separately and can proceed independently of the

criminal action and regardless of the result of the latter. (!amson v.

Daway, ;.1. 'os. 4-, 3uly 04, 02

Actions- Intervention- ReDuisites !0111%

=hat are the reHuisites for an intervention by a nonSparty in an

action pending in court> (72

S&GGES'E( ANS)ER*

%he reHuisites for intervention areN

4 :egal interest in the matter in a controversy/ or

0 :egal interest in the success of either of the parties/ or

4 :egal interest against both/ or

0 !o situated as to be adversely aected by a distribution or

other disposition or property in the custody of the court or of an

oicer thereof.

6 &ntervention will not unduly delay or prejudice the

adjudication of the rights or original parties/

&ntervenorMs rights may not be fully protected in a separate

proceedings.

(Acenas && v. Court of Appeals, 0* !C1A **6 54++8/ !ec. 4, 1ule

4+, 4++* 1ules of Civil rocedure.2

Actions- Real Actions 5 Personal Actions !0113%

=hat do you mean by a2 real actions/ and b2 personal action> (072

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %'




a. 1"A: AC%&#'! are actions aecting title to or possession of real

property or an interest therein ($ortune )otors, &nc. v. CA, ;. 1.

'o. *64, #ctober 4, 4++/ 1ule , !ec. 42.

b. All other actions are "1!#'A: AC%&#'! (1ule , !ection &2

which include those arising from privity of contract.

Actions- Survives (eat4 o t4e (eendant !0111%

3 engaged the services of Atty. !% to represent him in a civil case

Eled by # against him which was doc<eted as Civil Case 'o. 406.

A retainership agreement was e@ecuted between 3 and Atty. !%

whereby 3 promised to pay Atty. !% a retainer sum of 0,. a

year and to transfer the ownership of a parcel of land to Atty. !%

after presentation of 3Ms evidence. 3 did not comply with his

underta<ing. Atty. !% Eled a case against 3 which was doc<eted as

Civil Case 'o. . During the trial of Civil Case 'o. , 3 died.

4 &s the death of 3 a valid ground to dismiss the money claim

of Atty. !% in Civil Case 'o. > "@plain. (072

0 =ill your answer be the same with respect to the real

property being claimed by Atty. !% in Civil Case 'o. > "@plain

(072

S&GGES'E( ANS)ER*

4 'o. nder !ec. 0, 1ule 6, 4++* 1ules of Civil rocedure,

when the action is for recovery of money arising from contract,

e@press or implied, and the defendant dies before entry of Enal

judgment in the court in which the action is pending at the time of

such death, it shall not be dismissed but shall instead be allowed to

continue until entry of Enal judgment. A favorable judgment

obtained by the plainti shall be enforced in the manner especially

provided in the 1ules for prosecuting claims against the estate of a

deceased person.

0 Qes, my answer is the same. An action to recover real

property in any event survives the death of the defendant. (!ec. 4,

1ule *, 1ules of Court2. owever, a favorable judgment may be

enforced in accordance with !ec. *(b2 1ule 6+ (4++* 1ules of Civil

rocedure2 against the e@ecutor or administrator or successor in

interest of the deceased.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %!




A++eal- Remedy !01">%

)r. BoaJ Eled an action for ejectment against )r. 3achin before the)etropolitan %rial Court ()e%C2. )r. 3achin actively participated inevery stage of the proceedings <nowing fully well that the )e%Chad no jurisdiction over the action. &n his mind, )r. 3achin wasthin<ing that if the )e%C rendered judgment against him, he couldalways raise the issue on the jurisdiction of the )e%C. After trial,the )e%C rendered judgment against )r. 3achin. =hat is theremedy of)r. 3achin> !"?%

!A% $ile an appeal!B% $ile an action for nulliEcation of judgment

!C% $ile a motion for reconsideration!(% $ile a petition for certiorari under 1ule

!;;"!%"D A'!="1N

(A2 !ee ! 1. 1* is not available since appeal is still available.'ot C since a prohibited pleading.

A++eals !01">%

=hich of the following decisions may be appealed directly to the!upreme Court (SC2> (Assume that the issues to be raised on

appeal involve purely Huestions of law2 !"?%!A% Decision of the 1egional %rial Court ( R0C2 rendered in thee@ercise of its appellate jurisdiction.!B% Decision of the 1%C rendered in the e@ercise of its original jurisdiction.!C% Decision of the Civil !ervice Commission.!(% Decision of the #ice of the resident.

!;;"!%"D A'!="1N

(B2 'oteN &n an appeal from 1%C judgment in the e@ercise of itsappellate jurisdiction, the appeal should be to the CA even if theHuestions are only legal. ence A should be e@cluded. (!05c8 102.

A++eals* uestions o /acts- uestion o La8 !01">%

oo!fea#er Cor2ora#ion, through its resident, &l a8ino, Eledwith the 1egional %rial Court ( R0C2 a complaint for speciEcperformance against Rober# *i#e. &nstead of Eling an answer tothe complaint, Rober# *i#e Eled a motion to dismiss the complaint

on the ground of lac< of the appropriate board resolution from the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO %(




Board of Directors of oo!fea#er Cor2ora#ion to show theauthority of &l a8ino to represent the corporation and Ele thecomplaint in its behalf. %he 1%C granted the motion to dismiss and,accordingly, it ordered the dismissal of the complaint. &l a8ino Eled a motion for reconsideration which the 1%C denied. Asnothing more could be done by &l a8ino before the 1%C, he Eledan appeal before the Court of Appeals (C&2. Rober# *i#e moved fordismissal of the appeal on the ground that the same involved purelya Huestion of law and should have been Eled with the !upremeCourt (SC2. owever, &l a8ino claimed that the appeal involvedmi@ed Huestions of fact and law because there must be a factualdetermination if, indeed, &l a8ino was duly authoriJedby oo!fea#er Cor2ora#ion to Ele the complaint. =hose position is

correct> "@plain. !>?%

S&GGES'E( ANS)ER*

1obert =hiteMs position is correct. &n a case involvingsimilar facts, the !upreme Court held that the issue of whether ornot the trial court erred in dismissing the complaint on the groundthat the person who Eled the complaint in behalf of the plainticorporation was not authoriJed to do so is a legal issue, reviewableonly by the !upreme Court in a petition for review on certiorariunder 1ule . (%amondong v. Court of Appeals, 0 'ovember02.

('oteN An alternative answer would be that the appealraises a factual Huestion of whether or not Al a<ino was indeedauthoriJed to Ele the complaint in behalf of ;oodfeatherCorporation. A reading of 0amon!on$ would show that theappellant only raised a legal Huestion of whether it was proper todismiss the complaint for failure to state a cause of action but didnot raise a factual issue as to whether the Eler was in factauthoriJed by the corporation.2.

A++eals- Period o A++eal- /res4 Period Rule !0116%

Defendant K received an adverse Decision of the 1%C in an

ordinary civil case on 0 3anuary 06. e Eled a 'otice of Appeal

on 4 3anuary 06. #n the other hand, plainti A received the

same Decision on 3anuary 06 and, on 4+ 3anuary 06, Eled a

)otion for 1econsideration of the Decision. #n 46 3anuary 06,

defendant K Eled a )otion withdrawing his notice of appeal in

order to Ele a )otion for 'ew %rial which he attached. #n 0 3anuary 06, the court denied AMs )otion for 1econsideration and





KMs )otion to =ithdraw 'otice of Appeal. lainti A received the

#rder denying his )otion for 1econsideration on 6 $ebruary 06

and Eled his 'otice of Appeal on $ebruary 06. %he courtdenied due course to AMs 'otice of Appeal on the ground that he

period to appeal had already lapsed. 7

(a2 &s the courtMs denial of KMs )otion to =ithdraw 'otice of Appeal

proper>

(b2 &s the courtMs denial of due course to AMs appeal correct>

S&GGES'E( ANS)ER*

(a2 'o, the courtMs denial of KMs )otion to =ithdraw 'otice of Appeal is not proper, because the period of appeal of K has not yet

e@pired. $rom 3anuary 0, 06 when K received a copy of the

adverse decision up to 3anuary 46, 06 when he Eled his

withdrawal of appeal and )otion for 'ew %rial, only ten (42 days

had elapsed and he had Efteen (42 days to do so.

(b2 'o, the courtMs denial of due course to AMs appeal is not correct

because the appeal was ta<en on time. $rom 3anuary , 06 when

A received a copy of the decision up to 3anuary 4+, 06 when he

Eled a )otion for 1econsideration, only twelve (402 days had

elapsed. ConseHuently, he had three (62 days from receipt on

$ebruary 6, 06 of the #rder denying his )otion for

1econsideration within which to appeal. e Eled is notice of appeal

on $ebruary , 06, or only two (02 days later.

AL'ERNA'I:E ANS)ER*

!ince AMs )otion for 1econsideration was Eled on 3anuary 4+, 06

and it was denied on 3anuary 0, 06, it was clearly not set for

hearing with at least three daysM notice. %herefore, the motion was

pro forma and did not interrupt the period of appeal which e@pired

on 3anuary 04, 06 or Efteen (42 days after notice of the decision

on 3anuary , 06.

'#%"N %o standardiJe the appeal periods provided in the 1ules and

to aord litigants fair opportunity to appeal their cases, the Court

deems it practical to

byN sirdondeeUgmail.com age 4* of allow a $1"! "1&#D of

4 days within which to Ele the notice of appeal in the 1%C,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $#




counted from receipt of the order dismissing a motion for a new

trial or motion for reconsideration. 5'eypes et. al. vs. CA, ;.1. 'o.

440, !eptember 4, 08

A++eals- Abandonment o a Perected A++eal !011#% %he Eling of a motion for the reconsideration of the trialcourtMs decisionresults in the abandonment of a perfected appeal.

S&GGES'E( ANS)ER*

$A:!". %he trial court has lost jurisdiction after perfection of the appeal and so it can no longer entertain a motion forreconsideration.

AL'ERNA'I:E ANS)ER*

$A:!", because the appeal may be perfected as to one partybut not yet perfected as to the other party who may still Ele amotion for reconsideration without abandonment of his rightof appeal even though the appeal of the case is perfectedalready as to the other party.

A++eals- =odes o A++eal !01"0%

. =here and how will you appeal the followingN(42 An order of e@ecution issued by the 1%C. (472

S&GGES'E( ANS)ER N

A petition for certiorari under 1ule before the Court of Appeals.

AL'ERNA'I:E ANS)ER* %he mode of elevation may be either by appeal (writ of error orcertiorari2, or by aspecial civil action of certiorari, prohibition, or mandamus.(Banaga vs. )ajaducon cited in ;eneral )illing Corporation-&ndependent :abor nion vs. ;eneral )illing Corporation, ;.1.'o. 46400, 3une 4, 044, ereJ, 3.2.

(02 3udgment of 1%C denying a petition for =rit of Amparo.

(472

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S&GGES'E( ANS)ER*

Any party may appeal from the Enal judgment or order to the!upreme Court by way of a petition for review on certiorariunder 1ule of the 1ules of Court. the period of appealshall be Eve (2 wor<ing days from the date of notice of theadverse judgment, and the appeal may raise Huestions of factor law or both. (sec. 4+, 1ule on =rit of Amparo, A.). 'o.*-+-40-!C, 0 !eptember 0*2.

(62 3udgment of )%C on a land registration case based on itsdelegated jurisdiction. (472

S&GGES'E( ANS)ER*

%he appeal should be Eled with the Court of Appeals byEling a 'otice of Appeal within 4 days from notice of judgment or Enal order appealed from. (!ec. 6, Batasambansa Blg. 40+, or the 3udiciary 1eorganiJation Act of 4+, as amended by 1epublic Act 'o. *+4, )arch 0, 4++2.

(2 A decision of the Court of %a@ AppealRs $irst Division. (472

S&GGES'E( ANS)ER*

%he decision of the Court of %a@ Appeals Division may beappealed to the C%A enbanc. %he decisions of the Court of %a@ Appeals are nolonger appealable to theCourt of Appeals. nder the modiEed appeal procedure, thedecision of a division of the C%A may be appealed to theC%A en banc. %he decision of the C%A en banc may in turnbe directly appealed to the !upreme Court by way of a petitionfor review on certiorari under 1ule on Huestions of law.

(!ection 44, 1.A. +00, )arch 6, 02.

A++eals- =odes o A++eal !011#%

#n 3uly 4, 0+, Atty. )anananggol was served copies of numerous unfavorable judgments and orders. #n 3uly 0+,0+, he Eled motions for reconsideration which were denied.e received the notices of denial of the motions forreconsideration on #ctober 0, 0+, a $riday. e immediatelyinformed his clients who, in turn, uniformly instructed him to

appeal. ow, when and where should he pursue theappropriate remedy for each of the followingN

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $"




(a2 3udgment of a )unicipal %rial Court ()%C2 pursuant to itsdelegated jurisdictiondismissing his clientMs application for land registration>

S&GGES'E( ANS)ER*

By notice of appeal, within 4 days from notice of judgment orEnal order appealed from, to the Court of Appeals/

(b2 3udgment of the 1egional %rial Court (1%C2 denying hisclientMs petition for a writof habeas data>

S&GGES'E( ANS)ER*

By veriEed petition for review on certiorari under 1ule ,with the modiEcation that appellant may raise Huestions of factor law or both, within wor< days from date of notice of the judgment or Enal order to the !upreme Court (!ec. 4+, A.).'o. -4-4-!C2.

(c2 #rder of a family court denying his clientMs petition forhabeas corpus in relation to custody of a minor child>

S&GGES'E( ANS)ER* By notice of appeal, within hours from notice of judgment orEnal order to the Court of appeals (!ec. 4, 1.A. 'o. 6+ inrelation to !ec. 6, 1ule 4, 1ules of Court2.

(d2 #rder of the 1%C denying his clientMs petition forcertiorari Huestioning the)etropolitan %rial CourtMs denial of a motion to suspend

criminal proceedings>S&GGES'E( ANS)ER*

By notice of appeal, within 4 days from notice of the Enal order,to the Court of appeals ()ajestrado vs. eople, 0* !C1A 4050*82.

(e2 3udgment of the $irst Division of the Court of %a@ Appeals airming the 1%Cdecision convicting his client for violation of the 'ational &nternal

1evenue Code>

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $%




S&GGES'E( ANS)ER*

By petition for review Eled with the court of %a@ Appeals(C%A2 en banc, within 6 days from receipt of the decision orruling in Huestion (!ec. + 5b8, 1ule +, 1ev. 1ules of C%A2.

A++eals- =odes o A++eal- R'C CA !011#%

Distinguish the two modes of appeal from the judgment ofthe 1egional %rial Court to the Court of Appeals.

S&GGES'E( ANS)ER*

&n cases decided by the 1egional %rial Courts in the e@erciseof their original jurisdiction, appeals to the Court of Appealsshall be ordinary appeal by Eling written notice of appealindicating the parties to the appeal/ specifying the judgmentFEnal order or part thereof appealed from/ specifyingthe court to which the appeal is being ta<en/ and stating thematerial dates showing the timeliness of the appeal. %henotice of appeal shall be Eled with the 1%C which rendered the judgment appealed from and copy thereof shall be servedupon the adverse party within 4 days fromnotice of judgment or Enal order appealed from. But if the

case admits of multiple appeals or is a special proceeding, arecord on appeal is reHuired aside from the written notice of appeal to perfect the appeal, in which case the period forappeal and notice upon the adverse party is not only 4 daysbut 6 days from notice of judgment or Enal order appealed from. %he full amount of the appellate court doc<et fee and other lawful fees reHuiredmust also be paid within the period forta<ing an appeal, to the cler< of the court which renderedthe judgment or

Enal order appealed from (!ecs. and , 1ule 4, 1ules of Court2. %he periods of4 or 6 days above-stated are non- e@tendible. &n casesdecided by the 1egional %rial Court in the e@ercise of itsappellate jurisdiction, appeal to the Court of Appeals shall be by Eling a veriEed petition for review withthe Court of Appeals and furnishing the 1%C and the adverse party withcopy thereof, within4 days from notice of judgment or Enal order appealed from.=ithin the same

period for appeal, the doc<et fee and other lawful feesreHuired with the deposit for cost should be paid. %he 4- day

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $$




period may be e@tended for 4 days and another 4 days forcompelling reasons.

A++eals- Second Notice o A++eal !011,%

After receiving the adverse decision rendered against hisclient, the defendant, Atty. !i<at duly Eled a notice of appeal. $orhis part, the plainti timely Eled a motion for partial newtrial to see< an increase in the monetary damages awarded.%he 1%C instead rendered an amended decision furtherreducing the monetary awards. &s it necessary for Atty. !i<at toEle a second notice of appeal after receiving the amended

decision>

S&GGES'E( ANS)ER*

Qes, it is necessary for Atty. !i<at to Ele a second notice of appealafter receiving the amended decision. &n )agdalena "state vs.Caluag (44 !C1A 666 54+82, the Court ruled that a party mustre-ta<e an appeal within Efteen 542 days from receipt of theamended ruling or decision, which stands in place of the olddecision. &t is in ect, a new decision.

Certiorari- Rule >< vs. Rule 3< !011,%

Compare the certiorari jurisdiction of the !upreme Court underthe Constitution with that under 1ule of the 1ules of Civilrocedure>

S&GGES'E( ANS)ER*

%he certiorari jurisdiction of the !upreme Court under theConstitution is the mode by which the Court e@ercises itse@panded jurisdiction, allowing it to ta<e corrective actionthrough the e@ercise of its judicial power. Constitutionalcertiorari jurisdictionapplies even if the decision was not rendered by a judicial orHuasi-judicial body, hence, it is broader than the writ of certiorari under 1ule , which is limited to cases involving agrave abuse of discretion amounting to lac< or e@cess of jurisdiction on the part of any branch or instrumentality of the government and there is no other claim speedy remedyavailable to a party in the ordinary course of law.

Certiorari- =ode o Certiorari !0113%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $&




"@plain each mode of certiorariN

4. As a mode of appeal from the 1egional %rial Court or the

Court of Appeals to the !upreme Court. (0.72

S&GGES'E( ANS)ER*

Certiorari as a mode of appeal is governed by 1ule of the 1ules

of Court which allows appeal from judg-ment, Enal order of

resolution of the Court of Appeals, !andiganbayan, the 1%C or

other courts whenever authoriJed by law to the !upreme Court by

veriEed petition for review raising only Huestions of law distinctly

set forth.

0. As a special civil action from the 1egional %rial Court or the

Court of Appeals to the !upreme Court. (0.72

S&GGES'E( ANS)ER*

Certiorari as a !pecial Civil Action is governed by 1ule of the

1ules of Court when an aggrieved party may Ele a veriEed petition

against a decision, Enal order or resolution of a tribunal, body or

board that has acted without or in e@cess of its jurisdiction or grave

abuse of discretion amounting to lac< or e@cess of jurisdiction,when there is no appeal or any other plain, speedy and adeHuate

remedy in the ordinary course of law.

6. As a mode of review of the decisions of the 'ational :abor

1elations Commission and the Constitutional Commissions. (0.72

S&GGES'E( ANS)ER*

Certiorari as a mode of review of the decision of the ':1C is

elevated to the Court of Appeals under 1ule , as held in the caseof !t. )artinRs $uneral ome v. ':1C, ;.1. 'o. 46, !eptember

4, 4++. Certiorari as a mode of review from the Commission on

Audit (C#A2 and C#)":"C is elevated to the !upreme Court

within 6 days from notice of the judgment, decision or Enal order

or resolution sought to be reviewed, as provided for under the 1ule

of the 4++* 1ules of Civil rocedure. &n the case of the Civil

!ervice Commission (C!C2, review of its judgments is through

petitions for review under !ec. of 1ule 6 of the 4++* 1ules of

Civil rocedure.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $'




Certiorari- Rule >< vs. Rule 3< !"##,%

Dierentiate certiorari as an original action from certiorari as a

mode of appeal. T678

S&GGES'E( ANS)ER*

Certiorari as an original action and certiorari as a mode of appeal

may be distinguished as followsN

4. %he Erst is a special civil action under 1ule of the 1ules of

Court, while the second is an appeal

1emedial :aw Bar "@amination P V A (4++*-02

to the !upreme Court from the Court of Appeals, !andiganbayan

and the 1%C under 1ule

.

4 %he Erst can be Eled only on the grounds of lac< or e@cess of

jurisdiction or grave abuse of discretion tantamount to lac< or

e@cess of jurisdiction, while the second is based on the errors of law of the lower court.

0 %he Erst should be Eled within si@ty (2 days from notice of

the judgment, order or resolution sought to be assailed (!ec. .

1ule 2, while the second should be Eled within Efteen (42 days

from notice of the judgment or Enal order or resolution appealed

from, or of the denial of the petitionerRs motion for new trial or

reconsideration Eled in due time after notice of the judgment. (!ec.

0, 1ule 2

6 %he Erst cannot generally be availed of as a substitute for a

lost appeal under 1ules , 4, 0, 6 and .

nder the Erst, the lower court is impleaded as a party

respondent (!ec. of 1ule 2, while under the second, the lower

court is not imp leaded. (!ec. of 1ule of 2

Certiorari- Rule >< vs. Rule 3< !011<%

)ay the aggrieved party Ele a petition for certiorari in the!upreme Court under 1ule of the 4++* 1ules of Civil rocedure,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $!




instead of Eling a petition for review on certiorari under 1ule

thereof for the nulliEcation of a decision of the Court of Appeals in

the e@ercise either of its original or appellate jurisdiction> "@plain.

S&GGES'E( ANS)ER*

%o '::&$Q A D"C&!&#' of the Court of Appeals the aggrieved

party should Ele a "%&%&#' $#1 1"9&"= #' C"1%&#1A1& in the

!upreme Court under 1ule of the 1ules of Court instead of Eling

a petition for certiorari under 1ule e@cept under very

e@ceptional circumstances. A long line of decisions of the !upreme

Court, too numerous to mention, holds that certiorari is not a

substitute for a lost appeal. &t should be noted, however, when theCourt of Appeals imposes the death penalty, or a lesser penalty for

oenses committed on such occasion, appeal by petition for review

or ordinary appeal. &n cases when the Court of Appeals imposes

reclusion perpetua, life imprisonment or a lesser penalty, appeal is

by notice of appeal Eled with the Court of Appeals.

Contem+t- (eat4 o a Party- E@ect !"##,%

A Eled a complaint for the recovery of ownership of land against B

who was represented by her counsel K. &n the course of the trial, Bdied. owever, K failed to notify the court of BRs death. %he court

proceeded to hear the case and rendered judgment against B. After

the 3udgment became Enal, a writ of e@ecution

byN sirdondeeUgmail.com age 4 of was issued against C, who

being BRs sole heir, acHuired the property. Did the failure of counsel

K to inform the court of BRs death constitute direct contempt> (072

S&GGES'E( ANS)ER*

'o. &t is not direct contempt under !ec. 4 of 1ule *4, but it is

indirect contempt within the purview of !ec 6 of 1ule *4. %he

lawyer can also be the subject of disciplinary action. (!ec. 4, 1ule

62

(eault !0111%

Defendant was declared in default by the 1%C (1%C2. lainti was

allowed to present evidence in support of his complaint.

hotocopies of oicial receipts and original copies of aidavits

were presented in court, identiEed by plainti on the witness stand

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO $(




and mar<ed as e@hibits. !aid documents were oered by plainti

and admitted in evidence by the court on the basis of which the

1%C rendered judgment in favor of the plainti, pursuant to therelief prayed for. pon receipt of the judgment, defendant appeals

to the Court of Appeals claiming that the judgment is not valid

because the 1%C based its judgment on mere photocopies and

aidavits of persons not presented in court. &s the claim of

defendant valid> "@plain. (672

S&GGES'E( ANS)ER*

%he claim of defendant is not valid because under the 4++* 1ules,

reception of evidence is not reHuired. After a defendant is declaredin default, the court shall proceed to render judgment granting the

claimant such relief as his pleading may warrant, unless the court

in its discretion reHuires the claimant to submit evidence, which

may be delegated to the cler< of court. (!ec. 6, 1ule +2

AL'ERNA'I:E ANS)ER*

%he claim of defendant is valid, because the court received

evidence which it can order in its own discretion, in which case the

evidence of the plainti must pass the basic reHuirements of admissibility.

(eault !011"%

)ario was declared in default but before judgment was rendered,

he decided to Ele a motion to set aside the order of default. a2 =hat

should )ario state in his motion in order

to justify the setting aside of the order of default> (672 b2 &n what

form should such motion be> (072

S&GGES'E( ANS)ER*

a2 &n order to justify the setting aside of the order of default, )ario

should state in his motion that his failure to answer was due to

fraud, accident, mista<e or e@cusable negligence and that he has a

meritorious defense. 5!ec. 6(b2 of 1ule +,8.

b2 %he motion should be under oath. (&d.2

(eault- 2rder o (eault- E@ects !"###%

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4 =hen may a party be declared in default> (072

0 =hat is the eect of an #rder of Default> (072

6 $or failure to seasonably Ele his Answer despite due notice, A

was declared in default in a case instituted against him by B. %he

following day, ARs mistress who is wor<ing as a cler< in the sala of

the 3udge before whom his case is pending, informed him of the

declaration of default. #n the same day, A presented a motion

under oath to set aside the order of default on the ground that his

failure to answer was due to fraud and he has a meritorious

defense. %hereafter, he went abroad. After his return a wee< later,

with the case still undecided, he received the order declaring himin default. %he motion to set aside default was opposed by B on the

ground that it was Eled before A received notice of his having been

declared in default, citing the rule that the motion to set aside may

be made at anytime after notice but before judgment. 1esolve the

)otion. (072

S&GGES'E( ANS)ER*

4. A party may be declared in default when he fails to answer

within the time allowed therefor, and upon motion of the claimingparty with notice to the defending party, and proof of such failure.

(!ec. 6, 1ule +2

0. %he eect of an #rder of Default is that the court may

proceed to render judgment granting the claimant such relief as his

pleading may warrant unless the court in its discretion reHuires the

claimant to submit evidence (&d.2 %he party in default cannot ta<e

part in the trial but shall be entitled to notice of subseHuent

proceedings. (!ec. 65A82

6. Assuming that the motion to set aside complies with the other

reHuirements of the rule, it should be granted. Although such a

motion may be made after notice but before judgment (!ec. 65B8 of

1ule +2, with more reason may it be Eled after discovery even

before receipt of the order of default.

(eault- Remedies- Party (eclared in (eault !"##,%

=hat are the available remedies of a party declared &n defaultN

4 Before the rendition of judgment/ 5478

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0 After judgment but before its Enality/ and 5074

6 After Enality of judgment> 5078

S&GGES'E( ANS)ER*

%he available remedies of a party declared in default are as followsN

4. B"$#1" %" 1"'D&%&#' #$ 3D;)"'%

(a2 he may Ele a motion under oath to set aside the order of default

on the grounds of fraud, accident, mista<e or e@cusable negligence

and that he has a meritorious defense (!ec. 65b8, 1ule +2/ and if it is

denied, he may move to reconsider, and if reconsideration isdenied, he may Ele the special civil action of certiorari for grave

abuse of discretion tantamount to lac< or e@cess of the lower

courtRs jurisdiction. (!ec. 4, 1ule 2 or

(b2 he may Ele a petition for certiorari if he has been illegally

declared in default, e.g. during the pendency of his motion to

dismiss or before the e@piration of the time to answer. ()atute vs.

Court of Appeals, 0 !C1A */ Acosta-#falia vs. !undiam,

!C1A 40.2

0. A$%"1 3D;)"'% B% B"$#1" &%! $&'A:&%Q, he may Ele a

motion for new trial on the grounds of fraud, accident, mista<e,

e@cusable negligence, or a motion for reconsideration on the

ground of e@cessive damages, insuicient evidence or the decision

or Enal order being contrary to law (!ec. 0, 1ule 6*2N and

thereafter. &f the motion is denied, appeal to available under 1ules

or 4, whichever to applicable.

6. A$%"1 $&'A:&%Q #$ %" 3D;)"'%, there are three ways to

assail the judgment, which areN

a2 a petition for relief under 1ule 6 on the grounds of fraud,

accident, mista<e or e@cusable negligence/

b2 annulment of judgment under 1ule * for e@trinsic fraud or lac<

of jurisdiction/ or c2 certiorari if the judgment to void on its face or

by the judicial record. (Balangcad vs. 3ustices of the Court of

Appeals, ;.1. 'o. 6. $ebruary 40, 4++0, 0 C1A 4*42.

(eault- Remedies- Party (eclared in (eault !0113%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &1




3ojie Eled with the 1egional %rial Court of :aguna a complaint for

damages against 3oe. During the pre-trial, 3ojie (sic2 and her (sic2

counsel failed to appear despite notice to both of them. pon oralmotion of 3ojie, 3oe was declared as in default and 3ojie was allowed

to present her evidence e@ parte. %hereafter, the court rendered its

Decision in favor of 3ojie. 3oe hired 3ose as his counsel. =hat are

the remedies available to him> "@plain. (72

S&GGES'E( ANS)ER*

%he remedies available to a party against whom a default decision

is rendered are as followsN

4. B"$#1" the judgment in default becomes Enal and e@ecutoryN

)otion for 1econsideration under 1ule 6*/

)otion for 'ew %rial under 1ule 6*/ and

Appeal under 1ule 4.

0. A$%"1 the judgment in default becomes Enal and e@ecutoryN

etition for 1elief under 1ule 6/

Annulment of 3udgment under 1ule */ and

c. Certiorari under 1ule . (!ee %alsan "nterprises, &nc. v.

Baliwag %ransit, &nc., ;.1. 'o. 400, 3uly , 4+++2

(eault- Remedies- Substantial Com+liance !0111%

$or failure of ?.3. to Ele an answer within the reglementary period,

the Court, upon motion of :), declared ?3 in default. &n due time,

?3 Eled an unveriEed motion to lift the order of default without anaidavit of merit attached to it. ?3 however attached to the motion

his answer under oath, stating in said answer his reasons for his

failure to Ele an answer on time, as well as his defenses. =ill the

motion to lift the order of default prosper> "@plain. (672

S&GGES'E( ANS)ER*

Qes, there is substantial compliance with the rule. Although the

motion is unveriEed, the answer attached to the motion is veriEed.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &"




%he answer contains what the motion to lift the order of default and

the aidavit of merit should contain, which are the reasons of

movantMs failure to answer as well as his defenses. (!ec. 6 5b8 of 1ule +, 4++* 1ules of Civil rocedure/ Cf. Citiban<, '.A. v. Court of

Appeals, 6 !C1A *+, 54+++8/ Consul v. Consul, 4* !C1A *,

*4 54+8/ %olentino v. Carlos, hil, 4, 46-4 54+68,

'asser v. Court of Appeals, 4+4 !C1A *6 54++082.

(emurrer to Evidence !011"%

Carlos Eled a complaint against edro in the 1%C of #Jamis City for

the recovery of the ownership of a car. edro Eled his answer

within the reglementary period. After the pre-trial and actual trial,and after Carlos has completed the presentation of his evidence,

edro moved for the dismissal of the complaint on the ground that

under the facts proven and the law applicable to the case, Carlos is

not entitled to the ownership of the car. %he 1%C granted the

motion for dismissal. Carlos appealed the order of dismissal and

the appellate court reversed the order of the trial court. %hereafter,

edro Eled a motion with the 1%C as<ing the latter to allow him to

present his evidence. Carlos objected to the presentation of

evidence by edro. !hould the 1%C grant edroMs motion to presenthis evidence> =hy> (72

S&GGES'E( ANS)ER*

'o. edroMs motion should be denied. e can no longer present

evidence. %he 1ules provide that if the motion for dismissal is

granted by the trial court but on appeal the order of dismissal is

reversed, he shall be deemed to have waived the right to present

evidence. (!ec. 4 of 1ule 66, 1ules of Civil rocedure2

AL'ERNA'I:E ANS)ER*

'o, because when the appellate court reversed the order of the

trial court it should have rendered judgment in favor of Carlos.

(Puebral v. Court of Appeals, 00 !C1A 66, 4++2 Demurrer to

"vidence/ Civil Case vs. Criminal Case (062 Compare the eects

of a denial of demurrer to evidence in a civil case with those of a

denial of demurrer to evidence in a criminal case. 7

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &%




&n a civil case, the defendant has the right to Ele a demurrer to

evidence without leave of court. &f his demurrer is denied, he has

the right to present evidence. &f his demurrer is granted and onappeal by the plainti, the appellate court reverses the order and

renders judgment for the plainti, the defendant loses his right to

present evidence. (1ule 662.

&n a criminal case, the accused has to obtain leave of court to Ele a

demurrer to evidence. &f he obtains leave of court and his demurrer

to evidence is denied, he has the right to present evidence in his

defense. &f his demurrer to evidence is granted, he is acHuitted and

the prosecution cannot appeal.

&f the accused does not obtain leave of court and his demurrer to

evidence is denied, he waives his right to present evidence and the

case is decided on the basis of the evidence for the prosecution.

%he court may also dismiss the action on the ground of

insuiciency of the evidence on its own initiative after giving the

prosecution the opportunity to be heard. (!ec. 06 of 1ule 44+2

(emurrer to Evidence !011#%

After the prosecution had rested and made its formal oer of evidence, with the court admitting all of the prosecutionevidence, the accused Eled a demurer toevidence with leave of court. the prosecution was allowed tocomment thereon. %hereafter, the court granted the demurer,Ending that the accused could not have committed the oensecharged. &f the prosecution Eles a motion for reconsiderationon the ground that the court order granting the demurer wasnot in accord with law and jurisprudence, will the motion

prosper>

S&GGES'E( ANS)ER*

'#, the motion will not prosper. =ith the granting of thedemurrer, the case shall be dismissed and the legal eect is theacHuittal of the accused. A judgment of acHuittal is immediatelye@ecutor and no appeal can be made therefrom. #therwise theConstitutional protection against double jeopardy would be violated.

(emurrer to Evidence- Civil Case vs. Criminal Case !011$%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &$




Distinguish the eects of the Eling of a demurrer to the evidencein a criminal case and its Eling in a civil case. (72

S&GGES'E( ANS)ER*

%he following are the distinctions in eects of demurrer tothe evidence in criminal cases from that in civil casesN

(42 &n criminal cases, demurrer to the evidence reHuires leaveof court, otherwise, the accused would lose his right topresent defense evidence if Eled and denied/ in civil cases, noleave of court is reHuired for Eling such demurrer.

(02 &n criminal cases, when such demurrer is granted, thedismissal of the case is not appealable inasmuch as thedismissal would amount to an acHuittal, unless made by a courtacting without or in e@cess of jurisdiction/ in civil cases, whensuch demurrer is granted, the dismissal of the case can beappealed by the plainti.

(62 &n criminal cases, the accused loses his right to present hisdefense-evidence in the trial court when he Eled the demurrerwithout prior leave of court/ while in civil cases, the

defendant loses his right to present his defense-evidence only ifthe plainti appealed such dismissal and the case is beforethe appellate court already since the case would be decideonly on the basis of plainti ‟s evidence on record.

(iscovery- =odes o (iscovery- Reusal to Com+ly !01"1%

#n August 46, 0, A, as shipper and consignee, loaded onthe )F9 Atlantis in :egaspi City 4, pieces of centuryeggs. %he shipment arrived in )anila totally damaged on August 4, 0. A Eled before the )etropolitan %rial Court

()e%C2 of )anila a complaint against B !uper :ines, &nc. (B:ines2, owner of the )F9 Atlantis, for recovery of damagesamounting to 4*,++. e attached to the complaint the Bill of :ading. (c2 #n 3uly 04, 0+, B :ines served on A a L'otice to%a<e Deposition,L setting the deposition on 3uly 0+, 0+ at N6a.m. at the oice of its counsel in )a<ati. A failed to appearat the deposition-ta<ing, despite notice. As counsel for B:ines, how would you proceed> (672

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &&




As counsel for B lines (which gave notice to ta<e the deposition2,& shall proceed as followsN

(a2 $ind out why A failed to appear at the deposition ta<ing,despite notice/

(b2 &f failure was for valid reason, then set another date forta<ing the deposition.

(c2 &f failure to appear at deposition ta<ing was without validreason, then & would Ele a motionFapplication in the courtwhere the action is pending, for and order to show cause forhis refusal to submit to the discovery/ and (d2 $or the court to

issue appropriate

#rder provided under 1ule 0+ of the 1ules, for noncompliancewith the show-cause order, aside from contempt of court.

(iscovery- =odes o (iscovery !0111%

Describe brieGy at least Eve (2 modes of discovery under the 1ules

of Court. (72

S&GGES'E( ANS)ER*

$ive modes of discovery under the 1ules of Court areN

4 D"#!&%&#'. By leave of court after jurisdiction has been

obtained over any defendant or over property which is the subject

of the action, or without such leave after an answer has been

served, the testimony of any person, whether a party or not, may be

ta<en, at the instance of any party, by deposition upon orale@amination or written interrogatories. (!ec. 4, 1ule 06, 4++* 1ules

of Civil rocedure.2

0 &'%"11#;A%#1&"! %# A1%&"!. nder the same conditions

speciEed in section 4 of 1ule 06, any party shall Ele and serve upon

any adverse party written interrogatories regarding material and

relevant facts to be answered by the party served. (!ec. 4, 1ule 0,

4++* 1ules of Civil rocedure.2

6 AD)&!!&#' BQ AD9"1!" A1%Q. At any time after issueshave been joined, a party may Ele and serve upon any other party a

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &'




written reHuest for the admission by the latter of the genuineness

of any material and relevant document or of the truth of any

material and relevant matter of fact. (!ec. 4, 1ule 0, 4++* 1ules of Civil rocedure.2

. 1#DC%&#' #1 &'!"C%&#' #$ D#C)"'%! #1

%&';!. pon motion of any party showing good cause therefore,

a court may order any party to produce and permit the inspection

and copying or photographing of any designated documents, etc. or

order any party to permit entry upon designated land or property

for inspecting, measuring, surveying, or photographing the

property or any designated relevant object or operation thereon.

(!ec. 4, 1ule 0*, 4++* 1ule 0* 1ules of Civil rocedure.2

(iscovery- =odes- Sub+oena (uces 'ecum !"##$%

&n an admiralty case Eled by A against Q !hipping :ines (whose

principal oices are in )anila2 in the 1%C, Davao City, the court

issued a subpoena duces tecum directing Q, the president of the

shipping company, to appear and testify at the trial and to bring

with him several documents.

(a2 #n what valid ground can Q refuse to comply with the subpoenaduces tecum>

(b2 ow can A ta<e the testimony of Q and present the documents

as e@hibits other than through the subpoena from the 1%C>

S&GGES'E( ANS)ER*

(a2 Q can refuse to comply with the subpoena duces tecum on the

ground that he resides more than (now 42 <ilometers from the

place where he is to testify, (!ec. + of former 1ule 06/ !ec. 4 of

new 1ule 042.

(b2 A can ta<e the testimony of Q and present the documents as

e@hibits by ta<ing his deposition through oral e@amination or

written interrogatories. (1ule 0/ new 1ule 062 e may also Ele a

motion for the production or inspection of documents. (1ule 0*2.

AL'ERNA'I:E ANS)ER*

(a2 %he witness can also refuse to comply with the subpoena duces

tecum on the ground that the documents are not relevant and there

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &!




was no tender of fees for one dayRs attendance and the <ilometrage

allowed by the rules.

Discovery/ roduction and &nspection of Documents (002

%he plainti sued the defendant in the 1%C to collect on a

promissory note, the terms of which were stated in the complaint

and a photocopy attached to the complaint as an anne@. Before

answering, the defendant Eled a motion for an order directing the

plainti to produce the original of the note so that the defendant

could inspect it and verify his signature and the handwritten

entries of the dates and amounts.

4 !hould the judge grant the defendantMs motion for production

and inspection of the original of the promissory note> =hy> (072

0 Assuming that an order for production and inspection was

issued but the plainti failed to comply with it, how should the

defendant plead to the alleged e@ecution of the note> (672

S&GGES'E( ANS)ER*

(42 Qes, because upon motion of any party showing good cause, the

court in which the action is pending may order any party toproduce and permit the inspection of designated documents. (1ule

0*2. %he defendant has the right to inspect and verify the original

of the promissory note so that he could intelligently prepare his

answer.

(02 %he defendant is not reHuired to deny under oath the

genuineness and due e@ecution of the promissory note, because of

the non-compliance by the plainti with the order for production

and inspection of the original thereof. (1ule , sec. 2.

AL'ERNA'I:E ANS)ER*

(02 %he defendant may Ele a motion to dismiss the complaint

because of the refusal of the plainti to obey the order of the court

for the production and inspection of the promissory note. 51ule 0+

!ec. 6(c28.

(iscovery- Production and Ins+ection !011#%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO &(




Continental Chemical Corporation (CCC2 Eled a complaint fora sum of money against Barstow %rading Corporation (B%C2for the latterMs failure to pay for its purchases of industrialchemicals. &n its answer, B%C contended that it refused topay because CCC misrepresented that the products it soldbelonged to a new line, when in fact they were identical withCCCMs e@isting products.

%o substantiate its defense, B%C Eled a motion to compel CCCto give a detailed listof the productsM ingredients and chemical components, relyingon the right to avail ofthe modes of discovery allowed under 1ule 0*. CCC objected,

invo<ing conEdentiality of the information sought by B%C.1esolve B%CMs motion with reasons. (672

S&GGES'E( ANS)ER*

& will deny the motion. %he ingredients and chemicalcomponents of CCCWs products are trade secrets within thecontemplation of the law. %rade secrets may not be thesubject of compulsory disclosure by reason of their conEdentialand privileged character. #therwise, CCC would eventually bee@posed to unwarranted business competition with others whomay imitate and mar<et the same <inds of products in violation of CCCWs proprietary rights. Being privileged, thedetailed list of ingredients and chemical components may notbe the subject of mode ofdiscovery under 1ule 0*, !ection 4 which e@pressly ma<esprivileged information an e@ception from its coverage (Airhilippines Corporation vs. ennswell, &nc., !C1A 04 50*82.

=otion to (ismiss* Grounds !01">%

'r. &ven$er Eled with the 1egional %rial Court ( R0C2 a complaintagainst 's. -ri$# for annulment of deed of sale and otherdocuments. 's. -ri$# Eled a motion to dismiss the complaint onthe ground of lac< of cause of action. 'r. &ven$er Eled anopposition to the motion to dismiss. !tate and discuss theappropriate remedyFremedies under each of the followingsituationsN !3?%

!A% &f the 1%C grants 's. -ri$#Ms motion to dismiss and dismissesthe complaint on the ground of lac< of cause of action, what will be

the remedyFremedies of 'r. &ven$er >





S&GGES'E( ANS)ERS*

&f the 1%C grants )s. BrightsMs motion to dismiss, the

remedies of )r. Avenger areN

(a2 $ile a motion for reconsideration under 1ule 6*.

(b2 1e-Ele the complaint. %he dismissal does not bar the re-Elingof the case (! 142.

(c2 Appeal from the order of dismissal. %he dismissal order is aEnal order as it completely disposes of the case/ hence it isappealable.

(d2 $ile an amended complaint as a matter of right curing the

defect of lac< of cause of action before the dismissal order becomesEnal. %his is because a motion to dismiss is not a responsivepleading/ hence )r. Avenger can amend the complaint as a matterof right. (!0 142.

!B% &f the 1%C denies 's. -ri$#Ms motion to dismiss, what will beher remedyFremedies>

S&GGES'E( ANS)ERS*

&f the 1%C denies )s. BrightMs motion to dismiss, herremedies areN

(a2 $ile a motion for reconsideration.

(b2 roceed to trial and if she loses, appeal and assign the failure todismiss as a reversible error.

(c2 $ile a special civil action for certiorari andFor mandamus if thedenial of the order to dismiss is made with grave abuse ofdiscretion amounting to lac< of or e@cess of jurisdiction.

!C% &f the 1%C denies 's. -ri$#Ms motion to dismiss and, furtherproceedings, including trial on the merits, are conducted until the1%C renders a decision in favor of 'r. &ven$er , what will be theremedyFremedies of 's. -ri$#>

S&GGES'E( ANS)ERS*

&f the 1%C renders a decision in favor of )r. Avenger, )s.BrightMs remedies areN

(a2 $ile a motion for reconsideration or new trial under 1ule 6*.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '#




(b2 $ile an appeal to the Court of Appeals under 1ule 4.

(c2 $ile an appeal to the !upreme Court under 1ule if the

appeal will raise only Huestions of law.

(d2 $ile a petition for relief from judgment under 1ule 6.

(e2 $ile an action for annulment of judgment under 1ule * on theground of e@trinsic fraud or lac< of jurisdiction.

(ismissal- =otion to (ismiss- Res Judicata !0111%

AB, as mother and in her capacity as legal guardian of her

legitimate minor son, CD, brought action for support against "$, asfather of CD and ABMs lawfully wedded husband. "$ Eled his

answer denying his paternity with counterclaim for damages.

!ubseHuently, AB Eled a manifestation in court that in view of the

denial made by "$, it would be futile to pursue the case against "$.

AB agreed to move for the dismissal of the complaint, subject to the

condition that "$ will withdraw his counter claim for damages. AB

and "$ Eled a joint motion to dismiss. %he court dismissed the case

with prejudice. :ater on, minor son CD, represented by AB, Eled

another complaint for support against "$. "$ Eled a motion to

dismiss on the ground of res judicata. a2 &s res judicata a valid

ground for dismissal of the second complaint> "@plain your answer

(672 b2 =hat are the essential reHuisite of res judicata> (072

S&GGES'E( ANS)ER*

(a2 'o, res judicata is not a defense in an action for support even if

the Erst case was dismissed with prejudice on a joint motion to

dismiss. %he plaintiMs mother agreed to the dismissal of the

complaint for support in view of the defendantMs answer denying

his paternity with a counterclaim for damages. %his was in the

nature of a compromise of the right of support which is prohibited

by law. (Art, 06, Civil Code/ De Asis v. Court of Appeals, 66

!C1A 4* 54+++82.

(b2 %he "ssential 1eHuisites of 1es 3udicata areN

4 the judgment or order rendered must be Enal/

0 the court rendering the same must have jurisdiction of the

subject matter and of the parties/

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '1




6 it must be a judgment or order on the merits/ and

. there must be between the two cases identity of parties,

identity of subject matter, and identity of causes of action. (!an

Diego v. Cardona, * hil, 04 54+82

/orum S4o++ing- (enition !0113%

=hat is forum shopping> (0.72

!;;"!%"D A'!="1N

$orum shopping is the act of a party which consists of Eling

multiple suits, simultaneously or successively, for the purpose of obtaining a favorable judgment (:eyson v. #ice of the

#mbudsman, ;.1. 'o. 46++, April 0*, 0/ Qulienco v. CA, ;.1.

'o. 464+0, 3une 4,4+++/ Chemphil "@port V &mport Corp. v. CA,

;.1. 'os. 4406-6+, December 40, 4++2.

/orum S4o++ing !01">%

'r. um2#% Eled with the 1egional %rial Court ( R0C2 a complaintagainst 's. :um2#% for damages. %he 1%C, after due proceedings,

rendered a decision granting the complaint and ordering 's.

:um2#% to pay damages to 'r. um2#% . 's. :um2#% timely Eled anappeal before the Court of Appeals (C&2, Huestioning the 1%Cdecision. )eanwhile, the 1%C granted 'r. um2#%/s motion fore@ecution pending appeal. pon receipt of the 1%CMs ordergranting e@ecution pending appeal, 's. :um2#% Eled with theCAanother case, this time a special civil action for cer#iorari assailingsaid 1%C order. &s there a violation of the rule against forumshopping considering that two (02 actions emanating from the samecase with the 1%C were Eled by 's. :um2#% with the CA>"@plain. !>?%

S&GGES'E( ANS)ER*

'o, there is no violation of the rule against forum shopping.

$orum shopping applies where two or more initiatory pleadingswere Eled by the same party. %his is discernible from the use of thephrase Xcommenced any action or Eled any claimY in ! 1*.

ere the Erst case involves the Eling by )s. Dumpty of a notice ofappeal which is not an initiatory pleading. ence there is no forumshopping.

/orum S4o++ing- Certication !011#%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '"




Amorsolo, a $ilipino citiJen permanently residing in 'ew Qor< City, Eled with the 1%C of :ipa City a complaint for1escission of Contract of !ale of :and against Brigido, aresident of Barangay !an )iguel, !to. %omas, Batangas. %hesubject property, located in Barangay %alisay, :ipa City, hasan assessed value of 4+,*. Appended to the complaint is AmorsoloMs veriEcation and certiEcation of non-forum shoppinge@ecuted in 'ew Qor< City, duly notariJed by )r. 3osephBrown, "sH., a notary public in the !tate of 'ew Qor<.

Brigod Eled a motion to dismiss the complaint on the followinggroundsN

(c2 %he veriEcation and certiEcation of non- forum shopping arefatally defectivebecause there is no accompanying certiEcation issued by thehilippineConsulate in 'ew Qor<, authenticating that )r. Brown is dulyauthoriJed to notariJethe document. (672 1ule on the foregoing grounds withreasons.

S&GGES'E( ANS)ER*

%he third ground raised Huestioning the validity of the veriEcation and certiEcation of non-forum shopping for lac< of certiEcation from the hilippine Consulate in 'ew Qor<,authenticating that )r. Brown is duly authoriJed to notariJethe document, is li<ewise without merit. %he reHuiredcertiEcation alluded to, pertains to oicial acts, or records of oicial bodies, tribunals, and public oicers, whether of thehilippines or of a foreign countryN the reHuirement in !ec.0, 1ule 460 of the4++* 1ules refers only to paragraph (a2 of !ec. 0+ which does

not cover notarial documents. &t is enough that the notarypublic who notariJed the veriEcation andcertiEcation of non-forum shopping is clothed with authority toadminister oath in that !tate or foreign country.

/orum S4o++ing- E@ects- LacF o Certication !0113%

oney Eled with the 1egional %rial Court, %aal, Batangas a

complaint for speciEc performance against Bernie. $or lac< of

certiEcation against forum shopping, the judge dismissed the

complaint. oneyRs lawyer Eled a motion for reconsideration,

attaching thereto an amended complaint with the certiEcation

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '%




against forum shopping. &f you were the judge, how will you resolve

the motion> (72

S&GGES'E( ANS)ER*

&f & were the judge, the motion should be denied after hearing

because, as e@pressly provided in the 1ules, failure to comply with

the reHuirement of forum shopping is not curable by mere

amendment of the complaint or other initiatory pleading, but shall

be cause for the dismissal of the case, without prejudice, unless

otherwise provided (!ec. , 1ule *, 4++* 1ules of Civil rocedure2.

owever, the trial court in the e@ercise of its sound discretion, may

choose to be liberal and consider the amendment as substantialcompliance (;reat !outhern )aritime !ervices Corp. v. Acuna, ;.1.

'o. 44+, $ebruary 0,0/ Chan v. 1%C of Oamboanga del

'orte, ;.1. 'o. 4+06, April 4, 0/ y v. :and Ban<, ;.1.

464, 3uly 0, 02.

Gen. Princi+les- uestions o La8 vs. uestions o /act

!011>%

Distinguish Puestions of law from Puestions of fact.

S&GGES'E( ANS)ER*

A P"!%&#' #$ :A= is when the doubt or dierence arises as to

what the law is on a certain set of facts, while a P"!%&#' #$

$AC% is when the doubt or dierence arises as to the truth or

falsehood of alleged facts. (1amos v. epsi-Cola Bottling Co., 4+

!C1A 0+, 54+*82.

Judgment- Enorcement- <year Period !011$%

(b2 A Eles a case against B. =hile awaiting decision on thecase, A goes to the nited !tates to wor<. pon her return tothe hilippines, seven years later, A discovers that a decisionwas rendered by the court in here favor a few months aftershe had left. Can A Ele a motion for e@ecution of the judgment> 1eason brieGy. (72

!;;"!%"D A'!="1N#n the assumption that the judgment had been Enal ande@ecutory for more than Eve (2 years as of A ‟s return to the

hilippines seven (*2 years later, a motion for e@ecution ofthe judgment is no longer availing because the e@ecution of

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '$




judgment by mere motion is allowed by the 1ules only withinEve (2 years from entry of judgment/ thereafter, and withinten (42 years from entry of judgment, an action to enforcethe judgment is reHuired.

Judgment- Eecution- Judgment 2bligor ’s (eat4 !011#%

Cresencio sued Dioscoro for colletion of a sum of money.During the trial, but after the presentation of plaintiMs evidence,Dioscoro died. Atty. CruJ, DioscoroMs counsel, then Eled amotion to dismiss the action on the ground of his clientMsdeath. %he court denied the motion to dismiss and, instead,directed counsel to furnish the court with the names and

addresses of DioscoroMs heirs and ordered that the designatedadministrator of DioscoroMs estate be substituted asrepresentative party.

After trial, the court rendered judgment in favor of Cresencio. =hen the decision had become Enal and e@ecutory,Cresencio moved for the issuance of a writ of e@ecutionagainst DioscoroMs estate to enforce his judgment claim. %hecourt issued the writ of e@ecution. =as the courtMs issuanceof the writ of e@ecution proper> "@plain.

S&GGES'E( ANS)ER*

'o, the issuance of a writ of e@ecution by the court is notproper and is in e@cess of jurisdiction, since the judgmentobligor is already dead when the writ was issued. %he judgment for money may only be enforced against the estate of the deceased defendant in the probate proceedings, by way of a claim Eled with the probate court. Cresencio should enforcethat judgment in his favor in the settlement proceedings of the estate of Dioscoro as a money claim in accordance withthe 1ule or 1ule as the case may be.

Judgment- Eecution- Stay !011#%

)i<e was renting an apartment unit in the building owned by 3onathan. =hen )i<e failed to pay si@ monthsM rent, 3onathanEled an ejectment suit. %he )unicipal %rial Court ()%C2rendered judgement in favor of 3onathan, who then Eled amotion for the issuance of a writ of e@ecution. %he )%C issued

the writ.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '&




(a2 ow can mi<e stay the e@ecution of the )%C judgment>(072

S&GGES'E( ANS)ER*

"@ecution shall issue immediately upon motion, unless )i<e(a2 perfects his appeal to the 1%C, (b2 Eles a suicientsupersedeas bond to pay the rents, damages and costsaccruing up to the time of the judgment appealed from, and (c2deposits monthly with the 1%C during the pendency of theappeal the amount of rent due from time to time (1ule *,!ec. 4+2.

(b2 )i<e appealed to the 1egional %rial Court, which airmedthe )%C decision.)i<e then Eled a petition for review with the Court of Appeals.%he CA dismissed thepetition on the ground that the sheri had already e@ecutedthe )%C decision and hadejected )i<e from the premises, thus rendering the appealmoot and academic. &s the CA correct> (672 1easons.

S&GGES'E( ANS)ER*

'#. %he Court of Appeals is not correct. %he dismissal of theappeal is wrong,because the e@ecution of the 1%C judgment is only in respectof the eviction of the defendant from the leased premises.!uch e@ecution pending appeal has no eect on the merits of theejectment suit which still has to be resolved in the pendingappeal. 1ule *, !ec. 04 of the 1ules provides that the 1%C judgment against the defendant shall be immediately e@ecutor,Xwithout prejudice to a further appealY that may be ta<entherefrom (y vs. !antiago, 66 !C1A 5082.

Judgment- Eecution- Successors in Interest !011,%

alf-brothers 1oscoe and !alvio inherited from their father a vast tract of unregistered land. 1oscoe succeeded in gainingpossession of the parcel of land in its entirety andtransferring the ta@ declaration thereon in his name. 1oscoesold the northern half to Bono, !alvioMs cousin. pon learningof the sale, !alvio as<ed 1oscoe to convey the southern half tohim. 1oscoe refused as he even sold one-third of the southernhalf along the =est to Carlo. %hereupon, !alvio Eled an action

for reconveyance of the southern half against 1oscoe only.Carlo was not impleaded. After

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ''




Eling his answer, 1oscoe sold the middle third of thesouthern half to 'ina. !alviodid not amend the complaint to implead 'ina.

After trial, the court rendered judgment ordering 1oscoe toreconvey the entire southern half to !alvio. %he judgmentbecame Enal and e@ecutory. A writ of e@ecution having beenissued, the sheri reHuired 1oscoe, Carlo and 'ina to vacatethe southern half and yield possession thereof to !alvio asthe prevailing party. Carlo and 'ina refused, contending thatthey are not bound by the judgment as theyare not parties to the case. &s the contention tenable> "@plainfully. (72

S&GGES'E( ANS)ER*

As a general rule, no stranger should be bound to a judgment where he is notincluded as a party. %he rule on transfer of interest pendinglitigation is found in !ec. 4+, 1ule 6, 4++* 1ules of Civilrocedure. %he action may continue unless the court, uponmotion directs a person to be substituted in the action or joinedwith the original party. Carlo is not bound by the judgment. ebecame a co-owner before the case was Eled ()atuguina

&ntegrated =ood roducts, &nc. vs. C.A., ;.1. 'o. +64, 0#ctober 4++/ olaris vs. lan, + !C1A +6/ !ee also AssetrivatiJation %rust vs. C.A., ;.1. 'o. 4044*4, 0+ December4++2. owever, 'ina is a privy or a successorin interest and is bound by the judgment even if she is not aparty to the case(!ec. 4+, 1ule 6, 4++* 1ules of Civil rocedure/ Cabresos vs.

%iro, 4 !C1A 54++82. A judgment is conclusive between the parties andtheir successors-in-interest by title subseHuent to the case (!ec.

*, 1ule 6+, 4++* 1ules of Civil rocedure2. Judgment- /oreign Judgments- /oreign Arbitral A8ard!011$%

(a2 =hat are the rules on the recognition and enforcement offoreign judgments in our courts> (72

S&GGES'E( ANS)ER*

3udgments of foreign courts are given recognition in our courts

thusN &n case of judgment upon a speciEc thing, the judgmentis conclusive upon the title to the thing, unless otherwise

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO '!






convenience, nations have established a usage among civiliJedstates by which Enal judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered eicaciousunder certain conditions that may vary in dierentcountries (!t. Aviation !ervices Co., te., :td. v. ;rand&nternational Airways, &nc., !C1A 6508/ Asiavest)erchant Ban<ers 5)8 Berhad v. Court of Appeals, 64 !C1A+ 50482.

Judgment- Judgment on t4e Pleadings !01"0%

lainti Eles a reHuest for admission and serves the same onDefendant who fails, within the time prescribed by the rules,

to answer the reHuest. !uppose the reHuest for admission as<edfor the admission of the entire material allegations stated in thecomplaint, what should plainti do> (72

S&GGES'E( ANS)ER*

%he lainti should Ele a )otion for 3udgment on theleadings because thefailure of the defendant to answer a reHuest for admissionresults to an implied admission of all the matters which anadmission is reHuested. ence, a motion for judgment on the

pleadings is the appropriate remedy where the defendant isdeemed to have admitted the matters contained in the 1eHuestfor admission by the plainti. (1ule 6 in connection with!ec.0, 1ule 0, 1ules of Court2.

Judgment- Judgment on t4e Pleadings !011#%

)odesto sued "rnesto for a sum of money, claiming that thelatter owed him 4), evidenced by a promissory note, Huotedand attached to the complaint. &n his answer withcounterclaim, "rnesto alleged that )odesto coerced him intosigning the promissory note, but that it is )odesto who reallyowes him 4.). )odesto Eled an answer to "rnestoMscounterclaim admitting that he owed "rnesto, but only in theamount of .). at the pre-trial, )odesto mar<ed andidentiEed "rnestoMs promissory note. e also mar<ed andidentiEed receipts covering payments he made to "rnesto, to thee@tent of .), which "rnesto did not dispute. After pre-trial,)odesto Eled a motion for judgment on the pleadings, while"rnesto Eled a motion for summary judgment on his counterclaim.1esolve the two motions with reasons.

S&GGES'E( ANS)ER*





)odesto‟s motion for judgment on the pleadings should be

denied. =hile it is true that under the actionable document rule,"rnesto‟s failure to deny under oath the promissory note inhis answer amounted to an implied admission of its genuinenessand due e@ecution, his allegation in his answer that he wascoerced into signing the romissory note tendered an issue whichshould be tried. %he issue of coercion is not inconsistent with thedue e@ecution and genuineness of the instrument. %hus,"rnesto‟s failure to deny the genuineness of the promissorynote cannot be considered a waiver to raise the issue that hewas coerced in signing the same. !aid claim of coercion mayalso be proved as an e@ception to the arol "vidence 1ule. #n

the other hand, "rnesto‟s motion for summary judgment maybe granted. )odesto‟s answer to "rnesto‟s counterclaim Z thathe owed the latter a sum less than what was claimed Zamounted to an admission of a material fact and if theamount thereof could summarily be proved by aidavits,deposition, etc., without the need of going to trial, then nogenuine issue of fact e@ists.

AL'ERNA'I:E ANS)ER*

)odesto‟s motion for judgment on the pleadings should bedenied because there is an issue of fact. =hile "rnesto did

not speciEcally deny under oath the promissory note attachedto )odesto‟s complaint as an actionable document, such non-denial will not bar "rnesto‟s evidence that )odesto coercedhim into signing the promissory note. :ac< of consideration,as a defense, does not relate to the genuineness and duee@ecution of the promissory note.

:i<ewise, "rnesto‟s motion for summary judgment should bedenied because there is an issue of fact Z the alleged

coercion Z raised by "rnesto which he has yet to prove in atrial on its merits. &t is a@iomatic that summary judgment isnot proper or valid whent there is an issue of fact remainingwhich reHuires a hearing. And this is so with respect to thecoercion alleged by "rnesto as his defense, since coercion isnot capable of being established by documentary evidence.

Judgment- Annulment o Judgment- Grounds !"##,%

=hat are the grounds for the annulment of a judgment of the 1%C

(1%C2> 5078

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !#




S&GGES'E( ANS)ER*

%he grounds for annulment of judgment of the 1%C are "@trinsic

$raud and :ac< of 3urisdiction. (!ec, 0, 1ule *, 4++* 1ules of Civil

rocedure.2

Judgment- Enorcement- <year +eriod !"##$%

A, a resident of Dagupan City, secured a favorable judgment in an

ejectment case against K, a resident of PueJon City, from the

)%Cof )anila. %he judgment, entered on 4 3une 4++4, had not as

yet been e@ecuted. a2 &n 3uly 4++, A decided to enforce the

judgment of the )%Cof )anila. =hat is the procedure to be

followed by A in enforcing the judgment> b2 =ith what court should

A institute the proceedings>

S&GGES'E( ANS)ER*

(a2 A can enforce the judgment by another action reviving the

3udgment because it can no longer be enforced by motion as the

Eve-year period within which a judgment may be enforced by

motion has already e@pired. (!ec. of former and new 1ule 6+2.

(b2 A may institute the proceedings in the 1%C in accordance withthe rules of venue because the enforcement of the 3udgment is a

personal action incapable of pecuniary estimation.

AL'ERNA'I:E ANS)ER*

(b2 A may institute the proceeding in a )%Cwhich has jurisdiction

over the area where the real property involved is situated. (!ec. 4

of 1ule 2.

Judgment- Enorcement- /oreign Judgment !011<%

nder Article 44 of the 'ew Civil Code, an action upon a

judgment must be brought within 4 years from the time the right

of action accrues. &s this provision applicable to an action Eled in

the hilippines to enforce a foreign judgment> "@plain. (472

AL'ERNA'I:E ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !1




Article 44 of the Civil Code which reHuires that an action upon a

judgment (though without distinction2 must be brought within 4

years from the time the right of action accrues, does not apply toan action Eled in the hilippines to enforce a foreign judgment.

=hile we can say that where the law does not distinguish, we

should not distinguish, still the law does not evidently contemplate

the inclusion of foreign judgments. A local judgment may be

enforced by motion within Eve years and by action within the ne@t

Eve years. (1ule 6+2 %hat is not the case with respect to foreign

judgments which cannot be enforced by mere motion.

AL'ERNA'I:E ANS)ER*

Article 44 of the Civil Code reHuires that an action upon a

judgment (though without distinction2 must be brought within 4

years from the time the right of action accrues. %here seems no

cogent reason to e@clude foreign judgments from the operation of

this rule, subject to the reHuirements of 1ule 6+, !ec. of the

1ules of Court which establishes certain reHuisites for proving the

foreign judgment. ursuant to these provisions, an action for the

enforcement of the foreign judgment may be brought at any time

within 4 years from the time the right of action accrues. Judgment- Eecution +ending A++eal !0110%

%he trial court rendered judgment ordering the defendant to pay

the plainti moral and e@emplary damages. %he judgment was

served on the plainti on #ctober 4, 04 and on the defendant on

#ctober , 04. #n #ctober , 04, the defendant Eled a notice

of appeal from the judgment, but the following day, #ctober +,

04, the plainti moved for the e@ecution of the judgment pending

appeal. %he trial court granted the motion upon the posting by theplainti of a bond to indemnify the defendant for damages it may

suer as a result of the e@ecution. %he court gave as a special

reason for its order the imminent insolvency of the defendant. &s

the order of e@ecution pending appeal correct> =hy> (72

S&GGES'E( ANS)ER*

'o, because awards for moral and e@emplary damages cannot be

the subject of e@ecution pending appeal. %he e@ecution of any

award for moral and e@emplary damages is dependent on theoutcome of the main case. :iabilities for moral and e@emplary

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !"




damages, as well as the e@act amounts remain uncertain and

indeEnite pending resolution by the Court of Appeals or !upreme

Court. 51C& v. :antin, 46 !C1A 6+ (4+2/ &nternational !chool,&nc. v. Court of Appeals, 6+ !C1A * (4+++28.

AL'ERNA'I:E ANS)ER*

Qes, because only moral and e@emplary damages are awarded in

the judgment and they are not dependent on other types of

damages.

)oreover, the motion for e@ecution was Eled while the court had jurisdiction over the case and was in possession of the original

record.

&t is based on good reason which is the imminent insolvency of the

defendant. (1ule 6+, sec. 02

byN sirdondeeUgmail.com age 06 of 3udgment/ &nterlocutory

#rder/ artial !ummary 3udgments (02 After defendant has

served and Eled his answer to plaintis complaint for damages

before the proper 1%C, plainti served and Eled a motion (withsupporting aidavits2 for a summary judgment in his favor upon all

of his claims. Defendant served and Eled his opposition (with

supporting aidavits2 to the motion. After due hearing, the court

issued an order

(42 stating that the court has found no genuine issue as to any

material fact and thus concluded that plainti is entitled to

judgment in his favor as a matter of law e@cept as to the amount of

damages recoverable, and (02 accordingly ordering that plainti

shall have judgment summarily against defendant for such amount

as may be found due plainti for damages, to be ascertained by

trial on #ctober *, 0, at N6 oRcloc< in the morning. )ay

defendant properly ta<e an appeal from said order> #r, may

defendant properly challenge said order thru a special civil action

for certiorari> 1eason. (72

S&GGES'E( ANS)ER*

'o, plainti may not properly ta<e an appeal from said order

because it is an interlocutory order, not a Enal and appealable

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !%




order (!ec. of 1ule 62. &t does not dispose of the action or

proceeding (!ec. 4 of 1ule 6+2.

A1%&A: !))A1Q 3D;)"'%! are interlocutory. %here is still

something to be done, which is the trial for the adjudication of

damages

(rovince of angasinan v. Court of Appeals, 00 !C1A *0 54++63/

;uevarra v. Court of Appeals, 0+ hil. 04 54+682, but the

defendant may properly challenge said order thru a special civil

action for certiorari. (!ec. 4 5c8 and last par. of 1ule 42

Judgment- Judgment on t4e Pleadings !"###%

a2 =hat are the grounds for judgment on the pleadings> (072

b2 ARs Answer admits the material allegations of BRs Complaint.

)ay the court motu proprio render judgment on the pleadings>

"@plain. (072

c2 A brought an action against her husband B for annulment of

their marriage on the ground of psychological incapacity, B Eled

his Answer to the Complaint admitting all the allegations therein

contained. )ay A move for judgment on the pleadings> "@plain.(072

S&GGES'E( ANS)ER*

a2 %he grounds for judgment on the pleadings are where an

answer fails to tender an issue, or otherwise admits the material

allegations of the adverse partyRs pleading. (!ec. 4, 1ule 62.

b2 'o, a motion must be Eled by the adverse party. (!ec. 4, 1ule

62 %he court cannot motu proprio render judgment on thepleadings.

c2 'o, because even if BRs answer to ARs complaint for

annulment of their marriage admits all the allegations therein

contained, the material facts alleged in the complaint must always

be proved. (!ec. 4 of 1ule 6.2

A'#%"1 A'!="1N

c. 'o. %he court shall order the prosecutor to investigate whether

or not a collusion between the parties e@ists, and if there is no

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !$




collusion, to intervene for the !tate in order to see to it that the

evidence submitted is not fabricated. (!ec. 65"8, 1ule +2 "vidence

must have to be presented in accordance with the reHuirements setdown by the !upreme Court in 1epublic vs. Court of Appeals and

)olina (0 !C1A 4+.2

Judgment* Summary !01">%

lain#i Eled a complaint denominated as accion 2ubliciana,against !efen!an#. &n his answer, !efen!an# alleged that he had nointerest over the land in Huestion, e@cept as lesseeof < . lain#i subseHuently Eled an aidavit of < , the lessorof !efen!an#, stating that < had sold to 2lain#i all his rights and

interests in the property as shown by a deed of transfer attached tothe aidavit. %hus, 2lain#i may as< the court to renderN !"?%

!A% summary judgment!B% judgment on the pleadings!C% partial judgment!(% judgment by default

S&GGES'E( ANS)ER*

(A2 (!4 V 6, 162

Judgment- Judgment on t4e Pleadings !011<%

&n a complaint for recovery of real property, the plainti averred,

among others, that he is the owner of the said property by virtue of

a deed of sale e@ecuted by the defendant in his favor. Copy of the

deed of sale was appended to the complaint as Anne@ LAL thereof.

&n his unveriEed answer, the defendant denied the allegation

concerning the sale of the property in Huestion, as well as the

appended deed of sale, for lac< of <nowledge or information

suicient to form a belief as to the truth thereof. &s it proper for thecourt to render judgment without trial> "@plain. (72

S&GGES'E( ANS)ER*

Defendant cannot deny the sale of the property for lac< of

<nowledge or information suicient to form a belief as to the truth

thereof. %he answer amounts to an admission. %he defendant must

aver or state positively how it is that he is ignorant of the facts

alleged. (hil, Advertising Counselors, &nc. v. 1evilla, ;.1. 'o. :-

64+, August , 4+*6/ !ec. 4, 1ule 2

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !&




)oreover, the genuineness and due e@ecution of the deed of sale

can only be denied by the defendant under oath and failure to do so

is also an admission of the deed. (!ec. , 1ule 2 ence, a judgmenton the pleadings can be rendered by the court without need of a

trial.

Judgment- =andamus vs. uo )arranto !011"%

etitioner $abian was appointed "lection 1egistrar of the

)unicipality of !evilla supposedly to replace the respondent

"lection 1egistrar ablo who was transferred to another

municipality without his consent and who refused to accept his

aforesaid transfer, much less to vacate his position in Bogo town aselection registrar, as in fact he continued to occupy his aforesaid

position and e@ercise his functions thereto. etitioner $abian then

Eled a petition for mandamus against ablo but the trial court

dismissed $abianMs petition contending that Huo warranto is the

proper remedy. &s the court correct in its ruling> =hy> (72

S&GGES'E( ANS)ER*

Qes, the court is correct in its ruling. )andamus will not lie. %his

remedy applies only where petitionerMs right is founded clearly inlaw, not when it is doubtful. ablo was transferred without his

consent which is tantamount to removal without cause, contrary to

the fundamental guarantee on non-removal e@cept for cause.

Considering that edro continued to occupy the disputed position

and e@ercise his functions therein, the proper remedy is Huo

warranto, not mandamus. [;arces v. Court of Appeals, 0+ !C1A

++ (4++28

AL'ERNA'I:E ANS)ER*

Qes, the court is correct in its ruling. )andamus lies when the

respondent unlawfully e@cludes another from the use and

enjoyment of a right or oice to which such other is entitled. (!ec.

0, 1ule 2. &n this case, ablo has not unlawfully e@cluded $abian

from the #ice of "lection 1egistrar. %he remedy of $abian is to Ele

an action of Huo warranto in his name against ablo for usurping

the oice. (!ec. , 1ule 2

Judgment- Soundness- Attac4ment !0110%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !'




%he plainti obtained a writ of preliminary attachment upon a bond

of 4 million. %he writ was levied on the defendantMs property, but

it was discharged upon the posting by the defendant of acounterbond in the same amount of 4 million. After trial, the court

rendered judgment Ending that the plainti had no cause of action

against the defendant and that he had sued out the writ of

attachment maliciously. Accordingly, the court dismissed the

complaint and ordered the plainti and its surety to pay jointly to

the defendant 4. million as actual damages, . million as moral

damages and . million as e@emplary damages. "valuate the

soundness of the judgment from the point of view of procedure.

(72S&GGES'E( ANS)ER*

%he judgment against the surety is not sound if due notice was not

given to him of the applicant for damages. (1ule *, sec. 02

)oreover, the judgment against the surety cannot e@ceed the

amount of its counterbond of 4 million.

Judgments- Enorcement- Eamination o (eendant !0110%

%he plainti, a )anila resident, sued the defendant, a resident of )alolos Bulacan, in the 1%C-)anila for a sum of money. =hen the

sheri tried to serve the summons with a copy of the complaint on

the defendant at his Bulacan residence, the sheri was told that the

defendant had gone to )anila for business and would not be bac<

until the evening of that day. !o, the sheri served the summons,

together with a copy of the complaint, on the defendantMs 4-year-

old daughter, who was a college student. $or the defendantMs

failure to answer the complaint within the reglementary period, the

trial court, on motion of the plainti, declared the defendant indefault. A month later, the trial court rendered judgment holding

the defendant liable for the entire amount prayed for in the

complaint.

A. After the judgment had become Enal, a writ of e@ecution was

issued by the court. As the writ was returned unsatisEed, the

plainti Eled a motion for an order reHuiring the defendant to

appear before it and to be e@amined regarding his property and

income. ow should the court resolve the motion> (072

Jurisdiction- ;abeas Cor+us- Custody o =inors !011<%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !!




=hile )arietta was in her place of wor< in )a<ati City, her

estranged husband Carlo barged into her house in aranaHue City,

abducted their si@-year old son, ercival, and brought the child tohis hometown in Baguio City. Despite )ariettaRs pleas, Carlo

refused to return their child. )arietta, through counsel, Eled a

petition for habeas corpus against Carlo in the Court of Appeals in

)anila to compel him to produce their son, before the court and for

her to regain custody. !he alleged in the petition that despite her

eorts, she could no longer locate her son.

&n his comment, Carlo alleged that the petition was erroneously

Eled in the Court of Appeals as the same should have been Eled in

the $amily Court in Baguio City which, under 1epublic Act 'o.6+, has e@clusive jurisdiction, over the petition. )arietta replied

that under 1ule 40 of the 1ules of Court, as amended, the petition

may be Eled in the Court of Appeals and if granted, the writ of

habeas corpus shall be enforceable anywhere in the hilippines.

=hose contention is correct> "@plain. (72

!;;"!%"D A'!="1N

)ariettaRs contention is correct. %he Court of Appeals has

concurrent jurisdiction with the family courts and the !upremeCourt in petitions for habeas corpus where the custody of minors is

at issue, notwithstanding the provision in the $amily Courts A.

(1.A. 'o. 6+2 that family courts have e@clusive jurisdiction in

such cases. (%hornton v. %hornton, ;.1. 'o. 4+, August, 02

Jurisdiction- LacF o Jurisdiction- Pro+er Action o t4e Court

!011>%

lainti Eled a complaint for a sum of money against defendant

with the )e%C-)a<ati, the total amount of the demand, e@clusiveof interest, damages of whatever <ind, attorneyRs fees, litigation

e@penses, and costs, being 4,,. &n due time, defendant Eled

a motion to dismiss the complaint on the ground of the )e%CRs lac<

of jurisdiction over the subject matter. After due hearing, the )e%C

(42 ruled that the court indeed lac<ed jurisdiction over the subject

matter of the complaint/ and (02 ordered that the case therefore

should be forwarded to the proper 1%C immediately. =as the

courtRs ruling concerning jurisdiction correct> =as the courtRs

order to forward the case proper> "@plain brieGy. (72

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO !(




S&GGES'E( ANS)ER*

Qes. %he )e%C did not have jurisdiction over the case because the

total amount of the demand e@clusive of interest, damages of

whatever <ind, attorneyRs fees, litigation e@penses, and costs, was

4). &ts jurisdictional amount at this time should not e@ceed

.. (!ec. 66 of B.. Big. 40+, as amended by 1.A. 'o.

*+42.

%he courtRs order to forward the case to the 1%C is not proper. &t

should merely dismiss the complaint. nder !ec. 6 of 1ule 4, the

court may dismiss the action or claim, deny the motion or order the

amendment of the pleading but not to forward the case to anothercourt.

Nunc +ro tunc !01">%

An order of the court reHuiring a retroactive re-dating of an order, judgment or document Eling be entered or recorded in a judgmentisN (472(A2 pro hac vice(B2 non pro tunc(C2 confession relicta veriEcatione

(D2 nolle proseHui

ANS)ER*

(B2 ('oteN !hould be Xnunc pro tunc.Y2.

Parties- (eat4 o a Party- E@ect !"##,%

A Eled a complaint for the recovery of ownership of land against B

who was represented by her counsel K. &n the course of the trial, B

died. owever, K failed to notify the court of BRs death. %he courtproceeded to hear the case and rendered judgment against B. After

the 3udgment became Enal, a writ of e@ecution was issued against

C, who being BRs sole heir, acHuired the property. &f you were

counsel of C, what course of action would you ta<e> 5678

S&GGES'E( ANS)ER*

As counsel of C, & would move to set aside the writ of e@ecution and

the judgment for lac< of jurisdiction and lac< of due process in the

same court because the judgment is void. &f K had notiEed the courtof BRs death, the court would have ordered the substitution of the





deceased by C, the sole heir of B. (!ec. 4 of 1ule 62 %he court

acHuired no jurisdiction over C upon whom the trial and the

judgment are not binding. ($erreira us. &barra 9da. de ;onJales,4 hil. 46/ 9da. de la CruJ vs. Court of Appeals, !C1A +/

:awas us. Court of Appeals, 4 !C1A 4*6.2 & could also Ele an

action to annul the judgment for lac< of jurisdiction because C, as

the successor of B, was deprived of due process and should have

been heard before judgment. (1ule *2

AL'ERNA'I:E ANS)ER*

=hile there are decisions of the !upreme Court which hold that if

the lawyer failed to notify the court of his clientRs death, the courtmay proceed even without substitution of heirs and the judgment is

valid and binding on the heirs of the deceased ($lorendo vs.

Coloma, 40+ !C1A 6.2, as counsel of C, & will assail the judgment

and e@ecution for lac< of due process.

Parties- (eat4 o a Party- E@ect !"###%

=hat is the eect of the death of a party upon a pending action>

(072

S&GGES'E( ANS)ER*

4 =hen the claim is not purely personal and is not thereby

e@tinguished, the party should be substituted by his heirs or his

e@ecutor or administrator. (!ec. 4, 1ule 62

0 &f the action is for recovery of money arising from contract,

e@press or implied, and the defendant dies before entry of Enal

judgment in the court in which the action was pending at the time

of such death, it shall not be dismissed but shall instead be allowed

to continue until entry of Enal judgment. A favorable judgment

obtained by the plainti shall be enforced in the manner provided

in the rules for prosecuting claims against the estate of a deceased

person. (!ec. 0, 1ule 62

Parties- (eat4 o a Party- E@ect !"###%

=hen A (buyer2 failed to pay the remaining balance of the contract

price after it became due and demandable, B (seller2 sued him for

collection before the 1%C. After both parties submitted their

respective evidence, A perished in a plane accident. ConseHuently,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO (#




his heirs brought an action for the settlement of his estate and

moved for the dismissal of the collection suit.

4 =ill you grant the motion> "@plain. (072

0 =ill your answer be the same if A died while the case is

already on appeal to the Court of Appeals> "@plain. (072

6 &n the same case, what is the eect if B died before the 1%C

has rendered judgment> (072

S&GGES'E( ANS)ER*

4 'o, because the action will not be dismissed but shall insteadbe allowed to continue until entry of Enal judgment. (&d.2

0 'o. &f A died while the case was already on appeal in the

Court of Appeals, the case will continue because there is no entry

yet of Enal judgment. (&d.2

6 %he eect is the same. %he action will not be dismissed but

will be allowed to continue until entry of Enal judgment. (&d.2

Parties- '4ird Party Claim !0111%

3?Ms real property is being attached by the sheri in a civil action

for damages against :). 3? claims that he is not a party to the

case/ that his property is not involved in said case/ and that he is

the sole registered owner of said property. nder the 1ules of

Court, what must 3? do to prevent the !heri from attaching his

property> (72

S&GGES'E( ANSER*

&f the real property has been attached, the remedy is to Ele a third-party claim. %he third-party claimant should ma<e an aidavit of

his title to the property attached, stating the grounds of his title

thereto, and serve such aidavit upon the sheri while the latter

has possession of the attached property, and a copy thereof upon

the attaching party. (!ec. 4, 1ule *2 %he third-party claimant may

also intervene or Ele a separate action to vindicate his claim to the

property involved and secure the necessary reliefs, such as

preliminary injunction, which will not be considered as interference

with a court of coordinate jurisdiction. (#ng v. %ating, 4+ !C1A 0, 54+*82

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO (1




Parties- '4irdParty Claim !011<%

A obtained a money judgment against B. After the Enality of the

decision, the court issued a writ of e@ecution for the enforcement

thereof. Conformably with the said writ, the sheri levied upon

certain properties under BRs name. C Eled a third-party claim over

said properties claiming that B had already transferred the same to

him. A moved to deny the third-party claim and to hold B and C

jointly and severally liable to him for the money judgment alleging

that B had transferred said properties to C to defraud him (A2.

After due hearing, the court denied the third-party claim and

rendered an amended decision declaring B and C jointly andseverally liable to A for the money judgment. &s the ruling of the

court correct> "@plain. (72

S&GGES'E( ANS)ER*

'#. C has not been properly impleaded as a party defendant. e

cannot be held liable for the judgment against A without a trial. &n

fact, since no bond was Eled by B, the sheri is liable to C for

damages. C can Ele a separate action to enforce his third-party

claim. &t is in that suit that B can raise the ground of fraud againstC. owever, the e@ecution may proceed where there is a Ending

that the claim is fraudulent. (%anongan v. !amson, ;.1. 'o. 4+,

)ay +, 002

Petition or Certiorari !0111%

AB mortgaged his property to CD. AB failed to pay his obligation

and CD Eled an action for foreclosure of mortgage. After trial, the

court issued an #rder granting CDMs prayer for foreclosure of

mortgage and ordering AB to pay CD the full amount of themortgage debt including interest and other charges not later than

40 days from date of receipt of the #rder. AB received the #rder

on August 4, 4+++. 'o other proceeding too< place thereafter. #n

December 0, 4+++, AB tendered the full amount adjudged by the

court to CD but the latter refused to accept it on the ground that

the amount was tendered beyond the 40-day period granted by

the court. AB Eled a motion in the same court praying that CD be

directed to receive the amount tendered by him on the ground that

the #rder does not comply with the provisions of !ection 0, 1ule of the 1ules of Court which give AB 40 days from entry of

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ("




judgment, and not from date of receipt of the #rder. %he court

denied his motion on the ground that the #rder had already

become Enal and can no longer be amended to conform with!ection 0, 1ule . Aggrieved, AB Eles a petition for certiorari

against the Court and CD. =ill the petition for certiorari prosper>

"@plain. (72

S&GGES'E( ANS)ER*

Qes. %he court erred in issuing an #rder granting CDMs prayer for

foreclosure of mortgage and ordering AB to pay CD the full amount

of the mortgage debt including interest and other charges not later

than 40 days from receipt of the #rder. %he court should haverendered a judgment which is appealable. !ince no appeal was

ta<en, the judgment became Enal on August 0, 4+++, which is the

date of entry of judgment. (!ec 0, 1ule 62 ence, AB had up to

December 0, 4+++ within which to pay the amount due. (!ec. 0,

1ule 2 %he court gravely abused its discretion amounting to lac<

or e@cess of jurisdiction in denying ABMs motion praying that CD be

directed to receive the amount tendered.

Petition or Relie- In7unction !011#%

aving obtained favorable judgment in his suit for a sum of money against atricio, #rencio sought the issuance of a writof e@ecution. =hen the writ was issued, the sheri leviedupon a parcel of land that atricio owns, and a date was setfor the e@ecution sale.(a2 ow may atricio prevent the sale of the property on e@ecution>

S&GGES'E( ANS)ER*

atricio may Ele a etition for 1elief with preliminaryinjunction (1ule 62, posting a bond eHuivalent to the value of theproperty levied upon/ or assail the levy as invalid if grounde@ists. atricio may also simply pay the amount reHuired bythe writ and the costs incurred therewith.

b2 &f #rencio is the purchaser of the property at thee@ecution sale, how much does he have to pay>

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO (%




#rencio, the judgment creditor should pay only the e@cessamount of the bid over the amount of the judgment.

(c2 &f the property is sold to a third party at the e@ecution sale,what can atricio do to rrecover the property>

S&GGES'E( ANS)ER*

atricio can e@ercise his right of legal redemption within 4 year from date of registration of the certiEcate of sale bypaying the amount of the purchase price with interests of 47monthly, plus assessment and ta@es paid by the purchaser,

with interest thereon, at the same rate.

Petition or Relie !011$%

(b2 A defendant who has been declared in default can avail of apetition for relief from the judgment subseHuently rendered inthe case. (672

S&GGES'E( ANS)ER*

$alse. %he remedy of petition for relief from judgment isavailable only when the judgment or order in Huestion isalready Enal and e@ecutor, i.e., no longer appealable. As ane@traordinary remedy, a petition for relief from judgment maybe availed only in e@ceptional cases where no other remedy isavailable.

Petition or Relie 5 Action or Annulment !0110%

)ay an order denying the probate of a will still be overturned after

the period to appeal therefrom has lapsed> =hy> (672

S&GGES'E( ANS)ER*

Qes, an order denying the probate of a will may be overturned after

the period to appeal therefrom has lapsed. A "%&%&#' $#1

1":&"$ may be Eled on the grounds of fraud, accident, mista<e or

e@cusable negligence within a period of si@ty (2 days after the

petitioner learns of the judgment or Enal order and not more than

si@ (2 months after such judgment or Enal order was entered 51ule

6, secs. 4 V 6/ !oriano v. Asi, 4 hil. * (4+*28.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ($




An AC%&#' $#1 A'':)"'% may also be Eled on the ground of

e@trinsic fraud within four (2 years from its discovery, and if based

on lac< of jurisdiction, before it is barred by laches or estoppel.(1ule *, secs. 0 V 62

Petition or Relie- In7unction !0110%

A default judgment was rendered by the 1%C ordering D to pay a

sum of money. %he judgment became Enal, but D Eled a petition for

relief and obtained a writ of preliminary injunction staying the

enforcement of the judgment. After hearing, the 1%C dismissed DMs

petition, whereupon immediately moved for the e@ecution of the

judgment in his favor. !hould Ms motion be granted> =hy> (672

S&GGES'E( ANS)ER*

Ms immediate motion for e@ecution of the judgment in his favor

should be granted because the dismissal of DMs petition for relief

also dissolves the writ of preliminary injunction staying the

enforcement of the judgment, even if the dismissal is not yet Enal.

5;oleJ v. :eonidas, 4* !C1A 4* (4+428.

Pleadings- Amendment o Com+laint !011#%

pon termination of the pre-trial, the judge dictated the pre-trialorder in the presence of the parties and their counsel,reciting what had transpired and deEning three (62 issues to betried.

(a2 &f, immediately upon receipt of his copy of the pre-trialorder, plaintiMs counsel should move for its amendment toinclude a fourth (th2 triable issue which he allegedlyinadvertently failed to mention when the judge dictated the

order. !hould the motionto amend be granted> 1easons. (072

S&GGES'E( ANS)ER*

Depending on the merit of the issue sought to be brought inby the amendment, the motion to amend may be granted upondue hearing. &t is a policy of the 1ules that parties should beaorded reasonable opportunity to bring about a completedetermination of thecontroversy between them, consistent with substantial justice.

=ith this end in view, the amendment before trial may be granted

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO (&




to prevent manifest injustice. %he matter is addressed to thesound and judicious discretion of the trial court.

(b2 !uppose trial had already commenced and after theplaintiMs second witness had testiEed, the defendantMs counselmoves for the amendment of the pre-trial order toinclude a Efth (th 2 triable issue vital to his clientMs defense.!hould the motion be granted over the objection of plaintiMscounsel> 1easons. (672

S&GGES'E( ANS)ER*

%he motion may be denied since trial had already commenced

and two witnesses for the plainti had already testiEed.Courts are reHuired to issue pre-trial #rder after the pre-trialconference has been terminated and before trial begins,precisely because the reason for such #rder is to deEne thecourse of the action during the trial.

=here trial had already commenced, more so the adverseparty had already presented witnesses, to allow anamendment would be unfair to the party who had alreadypresented his witnesses. %he amendment would simply rendernugatory the reason for or purpose of the

pre-trial #rder. !ec.* of 1ule 4 on pre-trial in civil actions ise@plicit in allowing amodiEcation of the pre-trial #rder XbeforeY trial begins toprevent manifest injustice.

Pleadings- Amendment o Com+laint !011,% Arturo lent 4) to his friend 1obert on the condition that1ober e@ecute a promissory note or the loan and a real estatemortgage over his property located in %agaytay City. 1obertcomplied. &n his promissory note dated !eptember 0, 0,1obert undertoo< to pay the loan within a year from its dateat 407 per annum interest. &n 3une 0*, Arturo reHuested1obert to pay ahead of time but the latter refused andinsisted on the agreement.

Arturo issued a demand letter and when 1obert did notcomply, Arturo Eled an action to foreclose the mortgage.1obert moved to dismiss the complaint for lac< of cause of actionas the debt was not yet due.

%he resolution of the motion to dismiss was delayed because of the retirement of the 3udge.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ('




(a2 #n #ctober 4, 0*, pending resolution of the motion todismiss, Arturo Eled anamended complaint alleging 1obertMs debt had in themeantime become due but that 1obert still refused to pay.!hould the amended complaint be allowed considering that noanswer has been Eled>

S&GGES'E( ANS)ER*

'o, the complaint may not be amended under the

circumstances. A complaint may be amended as of rightbefore answer (!ec. 0, 1ule 4/ !ee #ng eng vs. Custodio,;.1. 'o. 4+44, 40 )arch 4+4/ %oyota )otors 5hils\ vs. C.A.,;.1. 'o. 404, * December 4++0/ 1C& vs. C.A., ;.1. 'o.4046+*, 4* April 4++*, citing rudence 1ealty V Dev‟t. Corp. vs.C.A., ;.1. 'o. 440*, 04 )arch 4++/ !oledad vs. )amangun, !C1A 442, but the amendment should refer to facts whichoccurred prior to the Eling of the original complaint. &t thusfollows that a complaint whose cause of action has not yetaccrued cannot be cured or remedied by an amended orsupplemental pleading alleging the e@istence or accrual of acause of action while the case is pending (!wagman otels V%ravel, &nc. vs. C.A., ;.1. 'o. 4446, April 02.

(b2 =ould your answer be dierent had Arturo Eled instead asupplemental complaint stating that the debt became due afterthe Eling of the original complaint>

S&GGES'E( ANS)ER*

A supplemental complaint may be Eled with leave of court to

allege an event that arose after the Eling of the originalcomplaint that should have already contained a cause of action(!ec. , 1ule 42. owever, if no cause of action is alleged inthe original complaint, it cannot be cured by the Eling of asupplement or amendment to allege the subseHuent acHuisitionof a cause of action (!wagman otels V %ravel, &nc. vs. C.A.,;.1. 'o. 4446, April 02.

Pleadings- Amendment o Com+laint- By Leave o Court

!0116%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO (!




After an answer has been Eled, can the plainti amend his

complaint, with leave of court, by changing entirely the nature of

the action> 7

S&GGES'E( ANS)ER*

Qes, the present rules allow amendments substantially altering the

nature of the cause of action. (!ec. 6, 1ule 4, 4+** 1ules of Civil

rocedure/ eirs of )arcelino agobo v. Court of Appeals, 0

!C1A * 54++*82.

%his should only be true, however, when the substantial change or

alteration in the cause of action or defense shall serve the higher

interests of substantial justice and prevent delay and eHually

promote the laudable objective of the rules which is to secure a

just, speedy and ine@pensive disposition of every action and

proceeding. (9alenJuela v. Court of Appeals, 66 !C1A **+ 50482.

Pleadings- Amendment o Com+laint- By Leave o Court-

Prescri+tive Period !0111%

K, an illegitimate child of Q, celebrated her 4th birthday on )ay 0,4++. A month before her birthday, Q died. %he legitimate family of

Q refused to recogniJe K as an illegitimate child of Q. After

countless eorts to convince them, K Eled on April 0, 0 an

action for recognition against O, wife of Q. After O Eled her answer

on August 4, 0, K Eled a motion for leave to Ele an amended

complaint and a motion to admit the said amended complaint

impleading the three (62 legitimate children of Q. %he trial court

admitted the amended complaint on August 00, 0. =hat is the

eect of the admission of the amended complaint> as the action of K prescribed> "@plain. (72

S&GGES'E( ANS)ER*

'o. %he action Eled on April 0, 0 is still within the four-year

prescriptive period which started to run on )ay 0, 4++. %he

amended complaint impleading the three legitimate children,

though admitted on August 00, 0 beyond the four-year

prescriptive period, retroacts to the date of Eling of the original

complaint. Amendments impleading new defendants retroact to thedate of the Eling of the complaint because they do not constitute a

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ((




new cause of action. (9erJosa v. Court of Appeals, 0++ !C1A 4

54++82.

('oteN %he four-year period is based on Article 0 of the Civil

Code2

AL'ERNA'I:E ANS)ER*

nder the 4++* 1ules of Civil rocedure, if an additional defendant

is impleaded in a later pleading, the action is commenced with

regard to him on the date of the Eling of such later pleading,

irrespective of whether the motion for its admission, if necessary, is

denied by the court. (!ec. of 1ule 42.

ConseHuently, the action of K has prescribed with respect to the

three (62 legitimate children of Q who are indispensable parties.

AN2';ER AL'ERNA'I:E ANS)ER*

nder Article 4* of the $amily Code, the action must be brought

within the lifetime of K if the action is based on a record of birth or

an admission of Eliation in a public document or a private

handwritten instrument signed by Q. &n such case, the action of K

has not prescribed.

owever, if the action is based on the open and continuous

possession of the status of an illegitimate child, the action should

have been brought during the lifetime of Q. &n such case, the action

of K has prescribed.

Pleadings- Amendment o Com+laint- =atter o Rig4t !011<%

#n )ay 40, 0, the plainti Eled a complaint in the 1%C of

PueJon City for the collection of 0,.. %he defendant Eled a

motion to dismiss the complaint on the ground that the court had

no jurisdiction over the action since the claimed amount of

0,. is within the e@clusive jurisdiction of the )etropolitan

%rial Court, of PueJon City. Before the court could resolve the

motion, the plainti, without leave of court, amended his complaint

to allege a new cause of action consisting in the inclusion of an

additional amount of 0,., thereby increasing his total

claim to ,.. %he plainti thereafter Eled his opposition

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO (




to the motion to dismiss, claiming that the 1%C had jurisdiction,

over his action. 1ule on the motion of the defendant with reasons.

(72

S&GGES'E( ANS)ER*

%he motion to dismiss should be denied. Basic is the rule that a

motion to dismiss is not a responsive pleading. nder the 1ules, a

pleader may amend his pleading as a matter of right before the

other party has served his responsive pleading. (!ec. 0, 1ule 4,

1ules of Court2 %he court, in allowing the amendment, would not

be acting without jurisdiction because allowing an amendment as a

matter of right does not reHuire the e@ercise of discretion. %hecourt therefore would not be LactingL and thus, could not have

acted without jurisdiction. &t would have been dierent had the

amendments been made after a responsive pleading had been

served. %he court then would have been e@ercising its discretion in

allowing or disallowing the amendment. &t cannot do so however,

because it would be then acting on an amendment of a complaint

over which it has no jurisdiction. (!oledad v. )amangun, ;.1. 'o.

:-4*+6,

)ay 6, 4+6/ ;umabay v. Baralin, ;.1. 'o. :-66, )ay 64,4+**/ rudence 1ealty v. CA, ;.1. 'o. 440*, )arch 04, 4++2

AL'ERNA'I:E ANS)ER*

byN sirdondeeUgmail.com age 0 of %he motion to dismiss

should be granted. 3urisdiction must be conferred by the contents

of the original complaint. Amendments are not proper and should

be denied where the court has no jurisdiction over the original

complaint and the purpose of the amendment is to confer

jurisdiction on the court. (1osario v. Carandang, ;.1. 'o. :-**, April 0, 4+2

=hile a plainti is entitled to amend the complaint before a

responsive pleading is served (!ec. 0, 1ule 4, 4++* 1ules of Civil

rocedure/ 1emington &ndustrial !ales Corporation v. Court of

Appeals, ;.1. 'o. 466*, )ay 0+, 002, still, a complaint cannot

be amended to confer jurisdiction on a court where there was none

to begin with.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO #




Pleadings- Amendment o Com+laint- 'o Conorm 8

Evidence !011>%

During trial, plainti was able to present, without objection on the

part of defendant in an ejectment case, evidence showing that

plainti served on defendant a written demand to vacate the

subject property before the commencement of the suit, a matter

not alleged or otherwise set forth in the pleadings on Ele. )ay the

corresponding pleading still be amended to conform to the

evidence> "@plain. (72

S&GGES'E( ANS)ER*

Qes. %he corresponding pleading may still be amended to conform

to the evidence, because the written demand to vacate, made prior

to the commencement of the ejectment suit, was presented by the

plainti in evidence without objection on the part of the defendant.

"ven if the demand to vacate was jurisdictional, still, the

amendment proposed was to conform to the evidence that was

already in the record and not to confer jurisdiction on the court,

which is not allowed. $ailure to amend, however, does not aect the

result of the trial on these issues. (!ec. of 1ule 42.

A:%"1'A%&9" A'!="1N &t depends. &n forcible entry, the motion

may be allowed at the discretion of the court, the demand having

been presented at the trial without objection on the part of the

defendant. &n unlawful detainer, however, the demand to vacate is

jurisdictional and since the court did not acHuire jurisdiction from

the very beginning, the motion to conform to the evidence cannot

be entertained. %he amendment cannot be allowed because it will

in eect confer jurisdiction when there is otherwise no jurisdiction.

Pleadings- Counterclaim !01"1%

AntiHue dealer )ercedes borrowed 4,, from antiHuecollector Benjamin. )ercedes issued a postdated chec< in thesame amount to Benjamin to cover the debt.

#n the due date of the chec<, Benjamin deposited it but itwas dishonored. As despite demands, )ercedes failed to ma<egood the chec<, Benjamin Eled in 3anuary 0+ a omplaint forcollection of sum of money before the 1%C of Davao. )ercedes

Eled in $ebruary 0+ her Answer with Counterclaim, allegingthat before the Eling of the case, she and Benjamin had





entered into a dacion en pagoagreement in which her vintage4,, 1ole@ watch which was ta<en by Benjamin for saleon commission was applied to settle her indebtedness/ and thatshe incurred e@penses in defending what she termed afrivolous lawsuit.L !he accordingly prayed for , damages.

(a2 Benjamin soon after moved for the dismissal of the case.%he trial court accordingly dismissed the complaint. And it alsodismissed the Counterclaim. )ercedes moved for a reconsiderationof the dismissal of the Counterclaim. ass upon )ercedesMmotion. (672

S&GGES'E( ANS)ER*

)ercedes‟ )otion for 1econsideration is impressed withmeritN the trial courts should not have dismissed her counter-claim despite the dismissal of the Complaint. !ince it was theplainti (Benjamin2 who moved for the dismissal of hisComplaint, and at a time when thedefendant ()ercedes2 had already Eled her Answer theretoand with counterclaim, the ismissal of the counterclaimwithout conformity of the defendant-counterclaimant. %he1evised 1ules of Court now provides in 1ule 4*, !ec. 0thereof that X&f a counterclaimhas been pleaded by a defendant prior to the service upon himof the plainti ’s motion for dismissal, the dismissal shall belimited to the complaint. %he dismissal shall be withoutprejudice to the right of the defendant to prosecute hiscounterclaim @ @ @ @.Y

(b2 !uppose there was no Counterclaim and BenjaminMs complaintwas not dismissed, and judgment was rendered against)ercedes for 4,,. %he judgment became Enal ande@ecutory and a writ of e@ecution was correspondingly issued.

!ince )ercedes did not have cash to settle the judgmentdebt, she oered her %oyota Camry model 0 valued at4.0 million.

%he !heri, however, on reHuest of Benjamin, seiJed)ercedesM 4*th century ivory image of the :a !agrada $amiliaestimated to be worth over 4,,. =as the !heriMs actionin order> (672

S&GGES'E( ANS)ER*





'o, the !heri ‟s action was not in order. e should not havelistened to Benjamin, the judgment obligeF creditor, in levying on

the properties of )ercedes, the judgment obligorFdebtor. %heoption to immediately choose which property or part thereof maybe levied upon, suicient to satisfy the judgment, is vested bylaw (1ule 6+, !ec. + (b2 upon the judgment obligor, )ercedes,not upon the judgment obligee, Benjamin, in this case. #nly if the udgment obligor does not e@ercise the option, is the!heri authoriJed to levy on personal properties if any, andthen on the real properties if the personal properties areinsuicient to answer for the judgment.

Pleadings- Counterclaim !011$%

(d2 A counterclaim is a pleading. (072

S&GGES'E( ANS)ER*%rue. A counterclaim is a pleading by which a defendingparty ma<es a claim against an opposing party (!ec. , 1ule, 1ules of Court2.

Pleadings- =otion !011$%

(c2 A motion is a pleading. (072

S&GGES'E( ANS)ER*

$alse. A motion is not a pleading but a mere application forrelief other than by a pleading (1ule 4, !ec. 4, 1ules of Court2.

Pleadings- =otions- Bill o Particulars !011,%

=ithin the period for Eling a responsive pleading, thedefendant Eled a motion for bill of particulars that he set forhearing on a certain date. owever, the defendant wassurprised to End on the date set for hearing that the trial courthad already denied the motion on the day of its Eling, statingthat the allegations of the complaint were suiciently made.

(a2 Did the judge gravely abuse his discretion in acting on themotion without waiting for the hearing set for the motion>

S&GGES'E( ANS)ER*







improper venue as an issue after its Erst motion to dismiss wasdenied.

nder the Xomnibus motion ruleY (1ule 4, !ec. , 1ules of Court2 which governs the ban< ‟s motion to dismiss, such motionshould include all objections then available/ otherwise, allobjections not so included shall be deemed waived.

Although the improper venue became <nown only in the courseof the trial, the same should not be allowed to obstruct ordisturb the proceedings since venue of civil actions is deEnedfor the convenience of the parties, nay jurisdictional.

AL'ERNA'I:E ANS)ER* %he Xomnibus motion ruleY should not apply, because theimproper venue became <nown and thus available only to themovant ban< after the motions to dismiss were Eled andresolved by the court, and in the course of the trial of thecase. &n fairness to the defendant ban<, it should not beprecluded by the Xomnibus motion ruleY from raising objectionto the improper venue only when said ground for objectionbecame <nown to it.

%he court may not resolve the second motion to dismissprecisely because of the Xomnibus motion ruleY, since the ban< Eled an earlier motion to dismiss but did not raise the ground of improper venue, and subseHuently Eled an Answer wherein theimproper venue has not again been raised. ence, the Huestion of improper venue has become moot and academic.%he only grounds not barred by the Xomnibus motion ruleYare (a2 lac< of jurisdiction over the subject matter/ (b2 litispendencia/ and (c2 bar by prior judgment or by statute of

limitations.

(b2 !uppose Charisse did not raise the Lomnibus motion rule,Lcan the judge proceed to resolve the motion to dismiss>"@plain. (672

S&GGES'E( ANS)ER*

Qes, the judge can proceed to resolve the motion to dismiss,because the ground raised therefore became <nown to themovant only during the trial, such that it was only then that

the objection became available to him.





(c2 !uppose the judge correctly denied the second motion todismiss and rendered judgment in favor of Charisse, ordering theban< to pay her 4, in damages plus legal interest. %he judgment became Enal and e@ecutory in 0. %o date,Charisse has not moved to e@ecute the judgment.

%he ban< is concerned that its liability will increase with thedelay because of the interest on the judgment award.

As counsel of the ban<, what move should you ta<e> (672

S&GGES'E( ANS)ER*

As counsel of the ban<, & shall recommend to the ban< as judgment obligor, to ma<e a tender of payment to the judgmentoblige and thereafter ma<e a consignation of the amount due byEling an application therefor placing the same at the disposal of the court which rendered the judgment (Arts. 40 and 40,Civil Code2.

Pleadings- Ans8er- (eense- S+ecic (enial !011>%

&n his complaint for foreclosure of mortgage to which was duly

attached a copy of the mortgage deed, plainti alleged inter alia

as followsN (42 that defendant DD duly e@ecuted the mortgage deed,copy of which is Anne@ LAL of the complaint and made an integral

part thereof/ and (02 that to prosecute his complaint, plainti

contracted a lawyer, CC, for a fee of .. &n his answer,

defendant alleged, inter alia, that he had no <nowledge of the

mortgage deed, and he also denied any liability for plaintis

contracting with a lawyer for a fee.

Does defendantRs answer as to plaintiMs allegation no. 4 as well as

no. 0 suiciently raise an issue of fact> 1eason brieGy. (72S&GGES'E( ANS)ER*

As to plaintis allegation no. 4, defendant does not suiciently

raise an issue of fact, because he cannot allege lac< of <nowledge

of the mortgage deed since he should have personal <nowledge as

to whether he signed it or not and because he did not deny under

oath the genuineness and due e@ecution of the mortgage deed,

which is an actionable document. As to plaintiMs allegation no. 0,

defendant did not properly deny liability as to plaintis contracting





with a lawyer for a fee. e did not even deny for lac< of <nowledge.

(!ec. 4 of 1ule 2.

Pleadings- Certication Against /orum S4o++ing !0111%

As counsel for A, B, C and D, Atty. KQ prepared a complaint for

recovery of possession of a parcel of land against O. Before Elling

the complaint, KQ discovered that his clients were not available to

sign the certiEcation of non-forum shopping. %o avoid further

delays in the Eling of the complaint, KQ signed the certiEcation and

immediately Eled the complaint in court. &s KQ justiEed in signing

the certiEcation> =hy> (72

S&GGES'E( ANS)ER*

'#, counsel cannot sign the anti-forum shopping certiEcation

because it must be e@ecuted by the Xplainti or principal partyY

himself (!ec. , 1ule */ "@corpiJo v. niversity of Baguio, 6

!C1A +*, 54+++82, since the rule reHuires personal <nowledge by

the party e@ecuting the certiEcation, ':"!! counsel gives a good

reason why he is not able to secure his clientsM signatures and

shows that his clients will be deprived of substantial justice (#rtiJ

v. Court of Appeals, 0++ !C1A *, 54++82 or unless he isauthoriJed to sign it by his clients through a special power of

attorney.

Pleadings- Counterclaim against t4e Counsel o t4e Plainti@

!011>%

K Eled a suit for damages against DQ. &n his answer, DQ

incorporated a counterclaim for damages against K and AC,

counsel for plainti in said suit, alleging in said counterclaim, inter

alia, that AC, as such counsel, maliciously induced K to bring thesuit against DQ despite ACRs <nowledge of its utter lac< of factual

and legal basis. &n due time, AC Eled a motion to dismiss the

counterclaim as against him on the ground that he is not a proper

party to the case, he being merely plaintiMs counsel. &s the

counterclaim of DQ compulsory or not> !hould ACRs motion to

dismiss the counterclaim be granted or not> 1eason. (72

S&GGES'E( ANS)ER*

Qes. %he counterclaim of DQ is compulsory because it is one whicharises out of or is connected with the transaction or occurrence







K Eles a complaint in the 1%C for the recovery of a sum of money

with damages against Q. Q Eles his answer denying liability under

the contract of sale and praying for the dismissal of the complainton the ground of lac< of cause of action because the contract of

sale was superseded by a contract of lease, e@ecuted and signed by

K and Q two wee<s after the contract of sale was e@ecuted. %he

contract of lease was attached to the answer. K does not Ele a reply.

=hat is the eect of the non-Eling of a reply> "@plain. (672

S&GGES'E( ANS)ER*

A reply is generally optional. &f it is not Eled, the new matters

alleged in the answer are deemed controverted. (!ec. 4 of 1ule 2.owever, since the contract of lease attached to the answer is the

basis of the defense, by not Eling a reply denying under oath the

genuineness and due e@ecution of said contract, the plainti is

deemed to have admitted the genuineness and due e@ecution

thereof. (!ecs. * and 1ule / %oribio v. Bidin, 460 !C1A 40

54+82.

Pre7udicial uestion- E7ectment vs. S+ecic Perormance

!0111%

BB Eles a complaint for ejectment in the )%Con the ground of non-

payment of rentals against 33. After two days, 33 Eles in the 1%C a

complaint against BB for speciEc performance to enforce the option

to purchase the parcel of land subject of the ejectment case. =hat

is the eect of 33Ms action on BBMs complaint> "@plain. (72

S&GGES'E( ANS)ER*

%here is no eect. %he ejectment case involves possession de facto

only. %he action to enforce the option to purchase will not suspendthe action of ejectment for non-payment of rentals. (=illman Auto

!upply Corp. v. Court of Appeals, 0 !C1A 4 54++082.

Pre'rial- ReDuirements !011"%

:ilio Eled a complaint in the )unicipal %rial Court of :anuJa for the

recovery of a sum against 3uan. %he latter Eled his answer to the

complaint serving a copy thereof on :ilio. After the Eling of the

answer of 3uan, whose duty is it to have the case set for pre-trial>

=hy> (72

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO




S&GGES'E( ANS)ER*

After the Eling of the answer of 3uan, the :A&'%&$$ has the duty

to promptly move e@ parte that the case be set for pre-trial. (!ec. 4,

1ule42. %he reason is that it is the plainti who <nows when the

last pleading has been Eled and it is the plainti who has the duty

to prosecute.

AL'ERNA'I:E ANS)ER*

&n the event the plainti Eles a reply, his duty to move that the case

be set for pre-trial arises after the reply has been served and Eled.

'rial- Court o A++eals as 'rial Court !011,%

;ive at least three instances where the Court of Appealsmay act as a trial court>

S&GGES'E( ANS)ER*

%he Court of Appeals may act as a trial court in the following

instancesN

(42 &n annulment of judgments (!ec. V , 1ule *2

(02 =hen a motion for new trial is granted by the Court of Appeals (!ec. ,1ule 62

(62 A petition for abeas Corpus shall be set for hearing +!ec. 40,1ule 402

(2 %o resolve factual issues in cases within its original andappellate jurisdiction (!ec. 40, 1ule 402(2 &n cases of new trial based on newly discovered evidence(!ec. 4, 1ule 40 of the 1ules on Criminal rocedure2.

(2 &n Cases involving claims for damages arising from provisionalremedies

(*2 &n Amparo proceedings (A.). 'o. *-+-40-!C2

Provisional Remedies !"###%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1##




=hat are the provisional remedies under the rules> (072

S&GGES'E( ANS)ER*

%he provisional remedies under the rules are preliminary

attachment, preliminary injunction, receivership, replevin, and

support pendente lite. (1ules * to 4, 1ules of Court2.

Provisional Remedies- Attac4ment !01">%

-a%ani, an overseas wor<er based in Dubai, issued in favorof &$en#e, a special power of attorney to sell his house and

lot. &$en#e was able to sell the property but failed to remit theproceeds to -a%ani, as agreed upon. #n his return to thehilippines, -a%ani, by way of a demand letter duly receivedby &$en#e, sought to recover the amount due him. &$en#e failed toreturn the amount as he had used it for the construction of his ownhouse.

%hus, -a%ani Eled an action against &$en#e for sum of money withmages. -a%ani subseHuently Eled an e2ar#e motion for theissuance of a writ of preliminary attachment duly supported by an Aidavit. %he court granted the e2ar#e motion and issued a writ

of preliminary attachment upon -a%aniMs posting of the reHuiredbond. -a%ani prayed that the courtMs sheri be deputiJed to serveand implement the writ of attachment. #n 'ovember 4+, 046, the!heri served upon &$en#e the writ of attachment and levied onthe latterMs house and lot. #n 'ovember 0, 046, the !heriserved on &$en#e summons and a copy of the complaint. #n'ovember 00, 046, &$en#e Eled an &nswer wi# 'o#ion #o :iscar$e #e *ri# of &##acmen# alleging that at the time the writof preliminary attachment was issued, he has not been served withsummons and, therefore, it was improperly issued. !>?%

!A% &s &$en#e correct> S&GGES'E( ANS)ER*

'o, Agente is not correct.

nder the 1ules of Civil rocedure, a writ of attachment may issueeven before service of summons upon the defendant. (!0 1*2.

!B% =as the writ of preliminary attachment properly e@ecuted>

S&GGES'E( ANS)ER*'o, the writ of preliminary attachment not properly e@ecuted.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1#1




nder ! 1*, no levy on preliminary attachment shall beenforced unless there is prior or simultaneous service of thesummons and the accompanying papers. (! 1 %he !upreme Courthas held that subseHuent service of summons will not cure theirregularity that attended the enforcement of the writ (#nate v. Abrogar, 06 $ebruary 4++2.

ere the sheri levied upon the house and lot prior to the serviceof the summons and the complaint upon Agente. ence the writ ofpreliminary attachment was not properly e@ecuted. %hesubseHuent service of summons and the complaint did not cure theirregularity in the enforcement of the writ.

Provisional Remedies- Attac4ment !"###%

&n a case, the property of an incompetent under guardianship was

in custodia legis. Can it be attached> "@plain. (072

S&GGES'E( ANS)ER*

Although the property of an incompetent under guardianship is in

custodia legis, it may be attached as in fact it is provided that in

such case, a copy of the writ of attachment shall be Eled with the

proper court and notice of the attachment served upon the

custodian of such property. (!ec. *, last par., 1ule *2

Provisional Remedies- Attac4ment !"###%

)ay damages be claimed by a party prejudiced by a wrongful

attachment even if the judgment is adverse to him> "@plain. (072

S&GGES'E( ANS)ER*

Qes, damages may be claimed by a party prejudiced by a wrongful

attachment even if the judgment is adverse to him. %his is

authoriJed by the 1ules. A claim, for damages may be made onaccount of improper, irregular or e@cessive attachment, which shall

be heard with notice to the adverse party and his surety or

sureties. (!ec. 0, 1ule */ 3avellana v. D. #. laJa "nterprises &nc.,

60 !C1A 04.2

Provisional Remedies- Attac4ment !011"%

)ay a writ of preliminary attachment be issued e@-parte> BrieGy

state the reason(s2 for your answer. (672

!;;"!%"D A'!="1N

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1#"




Qes, an order of attachment may be issued e@-parte or upon motion

with notice and hearing. (!ec. 0 of 1ule *2 %he reason why the

order may be issued e@ parte isN that reHuiring notice to theadverse party and a hearing would defeat the purpose of the

provisional remedy and enable the adverse party to abscond or

dispose of his property before a writ of attachment issues.

()indanao !avings and :oan Association, &nc. v. Court of Appeals,

4*0 !C1A 2.

Provisional Remedies- Attac4ment !011<%

?aty Eled an action against %yrone for collection of the sum of 4

)illion in the 1%C, with an e@-parte application for a writ of preliminary attachment. pon posting of an attachment bond, the

court granted the application and issued a writ of preliminary

attachment. Apprehensive that %yrone might withdraw his savings

deposit with the ban<, the sheri immediately served a notice of

garnishment on the ban< to implement the writ of preliminary

attachment. %he following day, the sheri proceeded to %yroneRs

house and served him the summons, with copies of the complaint

containing the application for writ of preliminary attachment,

?atyRs aidavit, order of attachment, writ of preliminaryattachment and attachment bond.

=ithin Efteen (42 days from service of the summons, %yrone Eled a

motion to dismiss and to dissolve the writ of preliminary

attachment on the following groundsN (i2 the court did not acHuire

jurisdiction over his person because the writ was served ahead of

the summons/ (ii2 the writ was improperly implemented/ and (iii2

said writ was improvidently issued because the obligation in

Huestion was already fully paid. 1esolve the motion with reasons.

(72

S&GGES'E( ANS)ER*

%he motion to dismiss and to dissolve the writ of preliminary

attachment should be denied.

(42 %he fact that the writ of attachment was served ahead of the

summons did not aect the jurisdiction of the court over his person.

&t ma<es the writ, unenforceable. (!ec. , 1ule. *2 owever, all

that is needed to be done is to re-serve the writ. (#nate v. Abrogar,;). 'o. 4+*6+6, $ebruary 06, 4+2

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1#%




(02 %he writ was improperly implemented. !erving a notice of

garnishment, particularly before summons is served, is not proper.

&t should be a copy of the writ of attachment that should be servedon the defendant, and a notice that the ban< deposits are attached

pursuant to the writ. (!ec. *5d8, 1ule *2

(62 %he writ was improvidently issued if indeed it can be shown that

the obligation was already fully paid. %he writ is only ancillary to

the main action. (!ec. 46, 1ule *2 %he alleged payment of the

account cannot, serve as a ground for resolving the improvident

issuance of the writ, because this matter delves into the merits of

the case, and reHuires full-blown trial. ayment, however, serves as

a ground for a motion to dismiss.

)rit or Preliminary Attac4ment !01">%

As a rule, courts may not grant an application for provisionalremedy without complying with the reHuirements of notice andhearing. %hese reHuirements, however, may be dispensed with inan application forN !"?% !A% writ of preliminary injunction!B% writ for preliminary attachment!C% an order granting support 2en!en#e li#e!(% a writ of replevin

A'!="1N

(B2 writ for preliminary attachment

Provisional Remedies- Attac4ment vs. Garnis4ment !"###%

Distinguish attachment from garnishment. (072

S&GGES'E( ANS)ER*

Attachment and garnishment are distinguished from each other as

followsN A%%AC)"'% is a provisional remedy that eects a levy

on property of a party as security for the satisfaction of any

judgment that may be recovered, while ;A1'&!)"'% is a levy

on debts due the judgment obligor or defendant and other credits,

including ban< deposits, royalties and other personal property not

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1#$






)ay a 1egional %rial Court issue injunction without bond> (072

S&GGES'E( ANS)ER*

Qes, if the injunction that is issued is a Enal injunction. ;enerally,

however, preliminary injunction cannot issue without bond unless

e@empted by the trial court (!ec. 5b8 of 1ule 2.

Provisional Remedies- In7unctions- ReDuisites !0113%

=hat are the reHuisites for the issuance of (a2 a writ of preliminary

injunction/ and (b2 a Enal writ of injunction> 1eHuisites for the

issuance of aN

S&GGES'E( ANS)ER*

a. =rit of reliminary &njunction (!ec. , 1ule 4++* 1ules of

Civil rocedure2 are ]

(42 A veriEed complaint showing/

(02 %he e@istence of a right in :esse/

(62 9iolation or threat of violation of such right/

(2 Damages or injuries sustained or that will be sustained by

reason of such violation/

(2 'otice to all parties of raIe and of hearing/

(2 earing on the application/

(*2 $iling of an appropriate bond and service thereof.

S&GGES'E( ANS)ER*

b. =hile a Enal writ of injunction may be rendered by judgment

after trial, showing applicant to be entitled to the writ (!ec. +, 1ule

4++* 1ules of Civil rocedure2.

Provisional Remedies- Receivers4i+ !011"%

3oaHuin Eled a complaint against 3ose for the foreclosure of a

mortgage of a furniture factory with a large number of machinery

and eHuipment. During the pendency of the foreclosure suit,

3oaHuin learned from reliable sources that 3ose was Huietly and

gradually disposing of some of his machinery and eHuipment to a

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1#'




businessman friend who was also engaged in furniture

manufacturing such that from conErmed reports 3oaHuin gathered,

the machinery and eHuipment left with 3ose were no longersuicient to answer for the latterMs mortgage indebtedness. &n the

meantime judgment was rendered by the court in favor of 3oaHuin

but the same is not yet Enal.

?nowing what 3ose has been doing. &f you were 3oaHuinMs lawyer,

what action would you ta<e to preserve whatever remaining

machinery and eHuipment are left with 3ose> =hy> (72

S&GGES'E( ANS)ER*

%o preserve whatever remaining machinery and eHuipment are left

with 3ose, 3oaHuinMs lawyer should Ele a veriEed application for the

appointment by the court of one or more receivers. %he 1ules

provide that receivership is proper in an action by the mortgagee

for the foreclosure of a mortgage when it appears that the property

is in danger of being wasted or dissipated or materially injured and

that its value is probably insuicient to discharge the mortgage

debt. (!ec. 4 of 1ule +2.

Provisional Remedies- Re+levin !"###%

=hat is 1eplevin> (072

S&GGES'E( ANS)ER*

1eplevin or delivery of personal property consists in the delivery,

by order of the court, of personal property by the defendant to the

plainti, upon the Eling of a bond. (Calo v. 1oldan, * hil.

54+82

Provisional Remedies- Su++ort Pendente Lite !"###%

Before the 1%C, A was charged with rape of his 4-year old

daughter. During the pendency of the case, the daughter gave

birth to a child allegedly as a conseHuence of the rape. %hereafter,

she as<ed the accused to support the child, and when he refused,

the former Eled a petition for support pendente lite. %he accused,

however, insists that he cannot be made to give such support

arguing that there is as yet no Ending as to his guilt. =ould you

agree with the trial court if it denied the application for support

pendente lite> "@plain. (072

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1#!






temporary restraining order. &s the temporary restraining order

valid> =hy> (72

S&GGES'E( ANS)ER*

'o. &t is only the "@ecutive 3udge who can issue immediately a

temporary restraining order eective only for seventy-two (*02

hours from issuance. 'o other 3udge has the right or power to

issue a temporary restraining order e@ parte. %he 3udge to whom

the case is assigned will then conduct a summary hearing to

determine whether the temporary restraining order shall be

e@tended, but in no case beyond 0 days, including the original

*0Shour period. (!ec. of 1ule 2

AL'ERNA'I:E ANS)ER*

%he temporary restraining order is not valid because the Huestion

does not state that the matter is of e@treme urgency and the

applicant will suer grave injustice and irreparable injury. (!ec.

of 1ule 2

Provisional Remedies- 'R2 !0113%

DeEne a temporary restraining order (%1#2. (072

S&GGES'E( ANS)ER*

A temporary restraining order is an order issued to restrain the

opposite party and to maintain the status Huo until a hearing for

determining the propriety of granting a preliminary injunction (!ec.

5c8 and 5d8, 1ule ,4++* 1ules of Civil rocedure2.

Provisional Remedies- 'R2 vs. Status uo 2rder !0113%

Dierentiate a %1# from a status Huo order. (072

S&GGES'E( ANS)ER*

A status Huo order (!P#2 is more in the nature of a cease and

desist order, since it does not direct the doing or undoing of acts,

as in the case of prohibitory or mandatory injunctive relief. A %1#

is only good for 0 days if issued by the 1%C/ days if issued by

the CA/ until further notice if issued by the !C. %he !P# is without

any prescriptive period and may be issued without a bond. A %1#

dies a natural death after the allowable period/ the !P# does not. A





%1# is provisional. !P# lasts until revo<ed. A %1# is not

e@tendible, but the !P# may be subject to agreement of the

parties.

Provisional Remedies- 'R2- CA Justice (e+t. !0113%

)ay a justice of a Division of the Court of Appeals issue a %1#>

(072

S&GGES'E( ANS)ER*

Qes, a justice of a division of the Court of Appeals may issue a %1#,

as authoriJed under 1ule and by !ection , 1ule &9 of the &1CA

which additionally reHuires that the action shall be submitted onthe ne@t wor<ing day to the absent members of the division for the

ratiEcation, modiEcation or recall (eirs of the late 3ustice 3ose B.:.

1eyes v. Court of Appeals, ;.1. 'os. 460-0, 'ovember 4,

02.

Provisional Remedies- 'R2- (uration !0113%

=hat is the duration of a %1# issued by the "@ecutive 3udge of a

1egional %rial Court> (072

S&GGES'E( ANS)ER*

&n cases of e@treme urgency, when the applicant will suer grave

injustice and irreparable injury, the duration of a %1# issued e@

parte by an "@ecutive 3udge of a 1egional %rial Court is *0 hours

(0nd par. of !ec. , 1ule 4++* 1ules of Civil rocedure2. &n the

e@ercise of his regular functions over cases assigned to his sala, an

"@ecutive 3udge may issue a %1# for a duration not e@ceeding a

total of 0 days.

Reglementary Period- Su++lemental Pleadings !0111%

%he 1%C rendered judgment against !%, copy of which was

received by his counsel on $ebruary 0, 0. #n )arch 4, 0,

!%, through counsel, Eled a motion for reconsideration of the

decision with notice to the Cler< of Court submitting the motion for

the consideration of the court. #n )arch 4, 0, realiJing that





the )otion lac<ed a notice of hearing, !%Ms counsel Eled a

supplemental pleading.

=as the motion for 1econsideration Eled within the reglementary

period> "@plain. (72

S&GGES'E( ANS)ER*

Qes, because the last day of Eling a motion for reconsideration was

)arch 4 if $ebruary had 0 days or )arch 4 if $ebruary had 0+

days. Although the original motion for reconsideration was

defective because it lac<ed a notice of hearing, the defect was

cured on time by its Eling on )arch 4 of a supplemental pleading,

provided that motion was set for hearing and served on the adverse

party at least three (62 days before the date of hearing.(!ec. , 1ule

42.

AL'ERNA'I:E ANS)ER*

!ince the supplemental pleading was not set for hearing, it did not

cure the defect of the original motion.

Remedies- Annulment o Judgment !01">%

0om *allis Eled with the 1egional %rial Court ( R0C2 a etition forDeclaration of 'ullity of his marriage with :ebi *allis on theground of psychological incapacity of the latter. Before Eling thepetition, 0om *allis had told :ebi *allis that he wanted theannulment of their marriage because he was already fed up withher irrational and eccentric behavior. owever, in the petition fordeclaration of nullity of marriage, the correct residential addressof :ebi *allis was deliberately not alleged and instead, theresidential address of their married son was stated. !ummons wasserved by substituted service at the address stated in the petition.$or failure to Ele an answer, :ebi *allis was declared in!efaul# and 0om *allis presented evidence e2ar#e. %he 1%Crendered judgment declaring the marriage null and void on theground of psychological incapacity of :ebi *allis. %hree (62 yearsafter the 1%C judgment was rendered, :ebi *allis got hold of acopy thereof and wanted to have the 1%C judgment reversed andset aside.

&f you are the lawyer of :ebi *allis, what judicial remedy orremedies will you ta<e> Discuss and specify the ground or grounds

for said remedy or remedies.!<?%





S&GGES'E( ANS)ER*

&f & were the lawyer of Debi =allis, the judicial remedy & would

ta<e is to Ele with the Court of Appeals an action for annulment of the 1%C judgment under 1ule *. An action for annulment of judgment may be resorted to since the remedies of appeal andpetition for relief are no longer available through no fault of Debi=allis. (!4 1*2.

%he ground for annulment of judgment would be lac< of jurisdiction. :ac< of jurisdiction also covers lac< of jurisdictionover the person of the defendant since the judgment would be void. (4 $:#1"'O D. 1";A:AD#, 1")"D&A: :A=C#)"'D&) 5*th rev. ed., 6rd printing82.

ere the court did not acHuire jurisdiction over the person of Debisince there was no valid substituted service of summons.!ubstituted service of summons should have been made at DebiMsresidence. (!* 142. ence the judgment of the 1%C was void.!ince the judgment is void, the petition for annulment thereof isimprescriptible. (!6 1*2.

$urthermore, default judgments are not allowed in declaration of nullity of marriage. (!65e8 1+2. ence the trial courtMs rendition of a default judgment was made with grave abuse of discretionamounting to lac< of jurisdiction.

Remedies- A++eal to SC- A++eals to CA !0110%

a2 =hat are the modes of appeal to the !upreme Court> (072

b2 Comment on a proposal to amend 1ule 400, !ection 0(b2, in

relation to !ection 6(c2, of the 1evised 1ules of Criminal rocedure

to provide for appeal to the Court of Appeals from the decisions of

the 1%C in criminal cases, where the penalty imposed is reclusion

perpetua or life imprisonment, subject to the right of the accused

to appeal to the !upreme Court. (672

S&GGES'E( ANS)ER*

A. %he modes of appeal to the !upreme Court areN (a2 A"A: BQ

C"1%&#1A1& on pure Huestions of law under 1ule through a

petition for review on certiorari/ and (b2 #1D&'A1Q A"A: in

criminal cases through a notice of appeal from convictions

imposing reclusion perpetua or life imprisonment or where a lesser

penalty is involved but for oenses committed on the same

occasion or which arose out of the same occurrence that gave rise





to the more serious oense. (1ule 400, sec. 62 Convictions imposing

the death penalty are elevated through automatic review.

B. %here is no constitutional objection to providing in the 1ules of

Court for an appeal to the Court of Appeals from the decisions of

the 1%C in criminal cases where the penalty imposed is reclusion

perpetua or life imprisonment subject to the right of the accused to

appeal to the !upreme Court, because it does not deprive the

!upreme Court of the right to e@ercise ultimate review of the

judgments in such cases.

Remedies- A++eal ='C to CA !01">%

=hen a )unicipal %rial Court ( '0C2, pursuant to its delegated jurisdiction, renders an adverse judgment in an application for landregistration, the aggrieved partyMs remedy isN !"?%!A% ordinary appeal to the 1egional %rial Court!B% petition for review on cer#iorari to the !upreme Court!C% ordinary appeal to the Court of Appeals!(% petition for review to the Court of Appeals

S&GGES'E( ANS)ER*

(C2 (See !ec. 6, B.. Blg. 40+2

Remedies- A++eal- R'C to CA !"###%

=hen is an appeal from the 1%C to the Court of Appeals

deemed perfected> (07\

KKK received a copy of the 1%C decision on 3une +, 4+++/ QQQ

received it on the ne@t day, 3une 4, 4+++. KKK Eled a 'otice of

Appeal on 3une 4, 4+++. %he parties entered into a compromise on

3une 4, 4+++. #n 3une 46, 4+++, QQQ, who did not appeal, Eledwith the 1%C a motion for approval of the Compromise Agreement.

KKK changed his mind and opposed the motion on the ground that

the 1%C has no more jurisdiction. 1ule on the motion assuming that

the records have not yet been forwarded to the CA. (072

S&GGES'E( ANS)ER*

An appeal from the 1%C to the Court of Appeals is deemed

perfected as to the appellant upon the Eling of a notice of appeal in

the 1%C in due time or within the reglementary period of appeal.





An appeal by record on appeal is deemed perfected as to the

appellant with respect to the subject matter thereof upon the

approval of the record on appeal Eled in due time. (!ec. +, 1ule 42

%he contention of KKK that the 1%C has no more jurisdiction

over the case is not correct because at the time that the motion to

approve the compromise had been Eled, the period of appeal of QQQ

had not yet e@pired. Besides, even if that period had already

e@pired, the records of the case had not yet been forwarded to the

Court of Appeals. %he rules provide that in appeals by notice of

appeal, the court loses jurisdiction over the case upon the

perfection of the appeals Eled in due time and the e@piration of the

time to appeal of the other parties. (!ec. +, third par., 1ule 42

%he rules also provide that prior to the transmittal of the record,

the court may, among others, approve compromises. (!ec. +, Efth

par., 1ule 42 ('oteN 3une 46, the date of the Eling of the motion for

approval of the Compromise Agreement, appears to be a clerical

error2

Remedies- A++eal- Rule >< vs. Rule 3< !"###%

a2 Distinguish a petition for certiorari as a mode of appeal froma special civil action for certiorari. (072

b2 )ay a party resort to certiorari when appeal is still available>

"@plain. (072

S&GGES'E( ANS)ER*

a. A "%&%&#' $#1 1"9&"= #' C"1%&#1A1& as a mode of appeal

may be distinguished from a special civil action for certiorari in

that the petition for certiorari as a mode of appeal is governed by

1ule and is Eled from a judgment or Enal order of the 1%C, the

!andiganbayan or the Court of Appeals, within Efteen (42 days

from notice of the judgment appealed from or of the denial of the

motion for new trial or reconsideration Eled in due time on

Huestions of law only (!ecs. 4 and 02/ !"C&A: C&9&: AC%&#' $#1

C"1%&#1A1& is governed by 1ule and is Eled to annul or modify

judgments, orders or resolutions rendered or issued without or in

e@cess of jurisdiction or with grave abuse of discretion tantamount

to lac< or e@cess of jurisdiction, when there is no appeal nor any

plain, speedy and adeHuate remedy in the ordinary course of law, to





be Eled within si@ty (2 days from notice of the judgment, order or

resolution subject of the petition. (!ecs. 4 and .2

A((I'I2NAL ANS)ER*

42 &n appeal by certiorari under 1ule , the petitioner and

respondent are the original parties to the action and the lower

court is not impleaded. &n certiorari, under 1ule , the lower court

is impleaded.

02 &n appeal by certiorari, the Eling of a motion for reconsideration

is not reHuired, while in the special civil action of certiorari, such a

motion is generally reHuired.

S&GGES'E( ANS)ER*

b. '#, because as a general rule, certiorari is proper if there is no

appeal (!ec. 4 of 1ule .2 owever, if appeal is not a speedy and

adeHuate remedy, certiorari may be resorted to. ("chaus v. Court of

Appeals, 4++ !C1A 64.2 Certiorari is sanctioned, even if appeal is

available, on the basis of a patent, capricious and whimsical

e@ercise of discretion by a trial judge as when an appeal will not

promptly relieve petitioner from the injurious eects of the

disputed order (9asHueJ vs. 1obilla-Alenio, 0*4 !C1A *2

Remedies- :oid (ecision- Pro+er Remedy !011>%

After plainti in an ordinary civil action before the 1%C/ OO has

completed presentation of his evidence, defendant without prior

leave of court moved for dismissal of plaintis complaint for

insuiciency of plaintiMs evidence. After due hearing of the motion

and the opposition thereto, the court issued an order, reading as

followsN %he Court hereby grants defendantRs motion to dismiss and

accordingly orders the dismissal of plaintiMs complaint, with the

costs ta@ed against him. &t is so ordered.L &s the order of dismissal

valid> )ay plainti properly ta<e an appeal> 1eason. (72

S&GGES'E( ANS)ER*

%he order or decision is void because it does not state Endings of

fact and of law, as reHuired by !ec. 4, Article 9&&& of the

Constitution and !ec. 4, 1ule 6. Being void, appeal is not

available. %he proper remedy is certiorari under 1ule .





AN2';ER ANS)ER*

"ither certiorari or ordinary appeal may be resorted to on the

ground that the judgment is void. Appeal, in fact, may be the more

e@pedient remedy.

AL'ERNA'I:E ANS)ER*

Qes. %he order of dismissal for insuiciency of the plaintis

evidence is valid upon defendantRs motion to dismiss even without

prior leave of court. (!ec. 4 of 1ule 662. Qes, plainti may properly

ta<e an appeal because the dismissal of the complaint is a Enal and

appealable order. owever, if the order of dismissal is reversed on

appeal, the plainti is deemed to have waived his right to present

evidence. (&d.2

I:. SPECIAL CI:IL AC'I2NS

S+ecial Civil Action- E7ectment !"##$%

#n 4 3anuary 4++, K leased the warehouse of A under a lease

contract with a period of Eve years. #n 3une 4++, A Eled an

unlawful detainer case against K without a prior demand for K to

vacate the premises.

(a2 Can K contest his ejectment on the ground that there was noprior demand for him to vacate the premises>

(b2 &n case the )unicipal %rial Court renders judgment in favor of

A, is the judgment immediately e@ecutory>

S&GGES'E( ANS)ER*

(a2 Qes. K can contest his ejectment on the ground that there was

no prior demand to vacate the premises. (!ec. 0 of 1ule */ Casilan

vs.%omassi l !C1A 04/ &esaca vs.Cuevas. 40 !C1A 662.





(b2 Qes, because the judgment of the )unicipal %rial Court against

the defendant K is immediately e@ecutory upon motion unless an

appeal has been perfected, a supersedeas bond has been Eled andthe periodic deposits of current rentals. &f any, as determined by

the judgment will be made with the appellate court. (!ec. of

former 1ule */ !ec. 4+ of new 1ule *2.

AL'ERNA'I:E ANS)ER*

(a2 Qes, K can contest his ejectment on the ground that since he

continued enjoying the thing leased for Efteen days after the

termination of the lease on 3anuary +, 4++ with the acHuiescence

of the lessor without a notice to the contrary, there was an&):&"D '"= :"A!". (Art. 4*. Civil Code2.

S+ecial Civil Action- E7ectment !"##,%

&n an action for unlawful detainer in the )unicipal %rial Court

()%C2, defendant K raised in his Answer the defense that plainti A

is not the real owner of the house subject of the suit. K Eled a

counterclaim against A for the collection of a debt of , plus

accrued interest of 4, and attorneyRs fees of 0,.

4. &s KRs defense tenable> 5678

0. Does the )%C have jurisdiction over the counterclaim> 5078

S&GGES'E( ANS)ER*

4. 'o. KRs defense is not tenable if the action is Eled by a lessor

against a lessee. owever, if the right of possession of the plainti

depends on his ownership then the defense is tenable.

0. %he counterclaim is within the jurisdiction of the )unicipal %rialCourt which does not e@ceed 4,, because the principal

demand is ,, e@clusive of interest and attorneyRs fees. (!ec.

66, B.. Big. 40+, as amended.2 owever, inasmuch as all actions of

forcible entry and unlawful detainer are subject to summary

procedure and since the counterclaim is only permissive, it cannot

be entertained by the )unicipal Court. (1evised 1ule on !ummary

rocedure.2

S+ecial Civil Action- /oreclosure !0116%





A borrowed from the Development Ban< of the hilippines (DB2

the amount of 4 million secured by the titled land of his friend B

who, however, did not assume personal liability for the loan. A defaulted and DB Eled an action for judicial foreclosure of the real

estate mortgage impleading A and B as defendants. &n due course,

the court rendered judgment directing A to pay the outstanding

account of 4. million (principal plus interest2 to the ban<. 'o

appeal was ta<en by A on the Decision within the reglementary

period. A failed to pay the judgment debt within the period

speciEed in the decision. ConseHuently, the court ordered the

foreclosure sale of the mortgaged land. &n that foreclosure sale, the

land was sold to the DB for 4.0 million. %he sale wassubseHuently conErmed by the court, and the conErmation of the

sale was registered with the 1egistry of Deeds on 3anuary 00.

#n 4 3anuary 06, the ban< Eled an e@-parte motion with the

court for the issuance of a writ of possession to oust B from the

land. &t also Eled a deEciency claim for ,. against A and

B. the deEciency claim was opposed by A and B.

(a2 1esolve the motion for the issuance of a writ of possession.

(b2 1esolve the deEciency claim of the ban<. 7

S&GGES'E( ANS)ER*

(a2 &n judicial foreclosure by ban<s such as DB, the mortgagor or

debtor whose real property has been sold on foreclosure has the

right to redeem the property sold within one year after the sale (or

registration of the sale2. owever, the purchaser at the auction sale

has the right to obtain a writ of possession after the Enality of the

order conErming the sale. (!ec. 6 of 1ule / !ec. * of 1A *+4.

%he ;eneral Ban<ing :aw of 02. %he motion for writ of possession, however, cannot be Eled e@ parte. %here must be a

notice of hearing.

(b2 %he deEciency claim of the ban< may be enforced against the

mortgage debtor A, but it cannot be enforced against B, the owner

of the mortgaged property, who did not assume personal liability

for the loan.

/oreclosure- Certication Against Non /orum S4o++ing

!011$%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 11(




(a2 1C Eled a complaint for annulment of the foreclosure saleagainst Ban< 9. &n its answer, Ban< 9 set up a counterclaimfor actual damages and litigation e@penses. 1C Eled a motionto dismiss the counterclaim on the ground that Ban< 9Ms Answer with counterclaim was not accompanied by acertiEcation against forum shopping. 1ule. (72

S&GGES'E( ANS)ER*

A certiEcation against forum shopping is reHuired only ininitiatory pleadings. &n this case, the counterclaim pleaded inthe defendant’s Answer appears to have arisen from theplainti ‟s complaint or compulsory in nature and thus, may not

be regarded as an initiatory pleading.%he absence thereof in the Ban< ’s Answer is not a fataldefect. %herefore, the motion to dismiss on the ground raisedlac<s merit and should be denied (!% v. !uria, 0+ !C1A 6054++82.#n the other hand, if the counterclaim raised by thedefendant Ban< ’s Answer was not predicated on theplainti ’s claim or cause of action, it is considered a permissivecounterclaim. &n which case, tit would parta<e an initiatorypleading which reHuires a certiEcation against forum shopping.

Correspondingly, the motion to dismiss based on lac< of thereHuired certiEcate against forum shopping should be granted.

S+ecial Civil Action- Petition or Certiorari !0110%

%he defendant was declared in default in the 1%C for his failure to

Ele an answer to a complaint for a sum of money. #n the basis of

the plaintiMs e@ parte presentation of evidence, judgment by

default was rendered against the defendant. %he default judgment

was served on the defendant on #ctober 4, 04. #n #ctober 4,

04, he Eles a veriEed motion to lift the order of default and to set

aside the judgment. &n his motion, the defendant alleged that,

immediately upon receipt of the summon, he saw the plainti and

confronted him with his receipt evidencing his payment and that

the plainti assured him that he would instruct his lawyer to

withdraw the complaint. %he trial court denied the defendantMs

motion because it was not accompanied by an aidavit of merit.

%he defendant Eled a special civil action for certiorari under 1ule

challenging the denial order.

A. &s certiorari under 1ule the proper remedy> =hy> (072





B. Did the trial court abuse its discretion or act without or in e@cess

of its jurisdiction in denying the defendantMs motion to lift the order

of default judgment> =hy> (672

S&GGES'E( ANS)ER*

A. %he petition for certiorari under 1ule Eled by the defendant is

the proper remedy because appeal is not a plain, speedy and

adeHuate remedy in the ordinary course of law. &n appeal, the

defendant in default can only Huestion the decision in the light of

the evidence of the plainti. %he defendant cannot invo<e the

receipt to prove payment of his obligation to the plainti.

AL'ERNA'I:E ANS)ER*

A. nder ordinary circumstances, the proper remedy of a party

wrongly declared in default is either to appeal from the judgment

by default or Ele a petition for relief from judgment. 53ao, &nc. v.

Court of Appeals, 04 !C1A 6+4 (4++2

S&GGES'E( ANS)ER*

B. Qes, the trial court gravely abused its discretion or acted without

or in e@cess of jurisdiction in denying the defendantMs motionbecause it was not accompanied by a separate aidavit of merit. &n

his veriEed motion to lift the order of default and to set aside the

judgment, the defendant alleged that immediately upon the receipt

of the summons, he saw the plainti and confronted him with his

receipt showing payment and that the plainti assured him that he

would instruct his lawyer to withdraw the complaint. !ince the

good defense of the defendant was already incorporated in the

veriEed motion, there was not need for a separate aidavit of

merit. 5CapuJ v. Court of Appeals, 066 !C1A *4 (4++2/ )ago v.Court of Appeals, 66 !C1A (4+++28.

S+ecial Civil Action Certiorari- Petition or Certiorari Rule3< !01"0%

(a2 After an information for rape was Eled in the 1%C, theD#3 !ecretary, acting on the accusedRs petition for review,reversed the investigating prosecutorRs Ending of probable cause.pon order of the D#3 !ecretary, the trial prosecutor Eled a)otion to =ithdraw &nformation which the judge granted. %heorder of the judge stated only the followingN

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1"#




LBased on the review by the D#3 !ecretary of the Endings of the investigating prosecutor during the preliminaryinvestigation, the Court agrees that there is no suicientevidence against the accused to sustain the allegation in theinformation. %he motion to withdraw &nformation is, therefore,granted.L

&f you were the private prosecutor, what should you do>"@plain. (72

S&GGES'E( ANS)ER*

&f & were the private prosecutor, & would Ele a petition forcertiorari under 1ule with the Court of Appeals (CereJo vs.eople, ;.1. 'o.406, 3une 4, 0442.

&t is well-settled that when the trial court is confronted with amotion to withdraw and &nformation (on the ground of lac< of probable cause to hold the accused for trial based on resolutionof the D#3 !ecretary2, the trial court has the duty to ma<e anindependent ssessment of the merits of the motion. &t mayeither agree or disagree with the recommendation of the!ecretary. 1eliance alone on the resolution of the !ecretary

would be an abdication of the trial court‟s duty and jurisdiction to determine a prima facie case. %he court mustitself be convinced that there is indeed no suicient evidenceagainst the accused. #therwise, the judge acted with grave abuseof discretion if he grants the )otion to =ithdraw &nformation bythe trial prosecutor. (arold %amargo vs. 1omulo Awingan et.al. ;.1. 'o. 4***0*, 3anuary 4+, 042.

AL'ERNA'I:E ANS)ER*

&f & were the private prosecutor, & would Ele a )otion for1econsideration of the #rder of the trial court. if the samehas been denied, & would Ele a petition for review oncertiorari under 1ule on pure Huestion of law, whichactually encompasses both the criminal and civil aspectsthereof. %he Eling of the petition is merely a continuation of theappellate process.

Certiorari- Petition or Certiorari- Contem+t !01"0%

)r. !heri attempts to enforce a =rit of "@ecution against K,

a tenant in a condominium unit, who lost in an ejectmentcase. K does not want to budge and refuses to leave. Q, the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1"1




winning party, moves that K be declared in contempt and afterhearing, the court held K guilty of indirect contempt. &f youwere KRs lawyer, what would you do> =hy> (72

S&GGES'E( ANS)ER* &f & were K’s :awyer, & would Ele a petition for certiorariunder 1ule . %he judge should not have acted on QMs motionto declare K in contempt. %he charge of indirect contempt isinitiated through a veriEed petition. (1ule *4, !ec. , 1ules of Court2. %he writ was not directed to K but to the sheri whowas directed to deliver the property to Q. As the writ did notcommand the judgment debtor to do anything, he cannot be

guilty of the facts described in 1ule *4 which isXdisobedience of or resistance to a lawful writ, process, order, judgment, or command any court.Y the proper procedure isfor the sheri to oust K availing of the assistance of peaceoicers pursuant to !ection 4 (c2 of 1ule 6+ (:ipa vs.%utaan, :-46, 0+ !eptember 4+6/ )edina vs. ;arces, :-0+06, 3uly 4, 4+/ ascua vs. eirs of !egundo !imeon,44 !C1A 4/ atagan et. al. 9s. anis, ;.1. 'o. 6, April , 4+2.

&s a petition for mandamus an appropriate remedy to enforce

contractual obligations> (72

S&GGES'E( ANS)ER*

'o, the petition for mandamus is not an appropriate remedy

because it is not available to enforce a contractual obligation.

)andamus is directed only to ministerial acts, directing or

commanding a person to do a legal duty (C#)":"C v. Puijano-

adilla, ;.1. 'o. 44++0, !eptember 4, 00/ !ec. 6, 1ule 2.

S+ecial Civil Action- uo )arranto !011"%

A group of businessmen formed an association in Cebu City calling

itself Cars C. to distribute F sell cars in said city. &t did not

incorporate itself under the law nor did it have any government

permit or license to conduct its business as such. %he !olicitor

;eneral Eled before a 1%C in )anila a veriEed petition for Huo

warranto Huestioning and see<ing to stop the operations of Cars

Co. %he latter Eled a motion to dismiss the petition on the ground

of improper venue claiming that its main oice and operations are

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1""




in Cebu City and not in )anila. &s the contention of Cars Co.

correct> =hy> (72

S&GGES'E( ANS)ER*

'o. As e@pressly provided in the 1ules, when the !olicitor ;eneral

commences the action for Huo warranto, it may be brought in a

1%C in the City of )anila, as in this case, in the Court of Appeals or

in the !upreme Court. (!ec. * of 1ule 2

S+ecial Civil Actions- =andamus !0113%

&n 4++, Congress passed 1epublic Act 'o. 4+, otherwise <nown

as the 9oterRs 1egistration Act of 4++, providing forcomputeriJation of elections. ursuant thereto, the C#)":"C

approved the 9oterRs 1egistration and &dentiEcation !ystem (91&!2

roject. &t issued invitations to pre-Hualify and bid for the project.

After the public bidding, $oto<ina was declared the winning bidder

with a bid of billion and was issued a 'otice of Award. But

C#)":"C Chairman ;ener ;o objected to the award on the

ground that under the Appropriations Act, the budget for the

C#)":"CRs moderniJation is only 4 billion. e announced to the

public that the 91&! project has been set aside. %woCommissioners sided with Chairman ;o, but the majority voted to

uphold the contract.

)eanwhile, $oto<ina Eled with the 1%C a petition for mandamus

compel the C#)":"C to implement the contract. %he #ice of the

!olicitor ;eneral (#!;2, representing Chairman ;o, opposed the

petition on the ground that mandamus does not lie to enforce

contractual obligations. During the proceedings, the majority

Commissioners Eled a manifestation that Chairman ;o was not

authoriJed by the C#)":"C "n Banc to oppose the petition.

=andamus !01"02

A Eles a Complaint against for recovery of title andpossession of land situated in )a<ati with the 1%C of asig. BEles a )otion to Dismiss for improper venue. %he 1%C asig 3udge denies BRs )otion to Dismiss, which obviously wasincorrect. Alleging that the 1%C 3udge Lunlawfully neglectedthe performance of an act which the law speciEcally enjoins as

a duty resulting from an oiceL, Eles a etition for)andamus against the judge.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1"%




=ill )andamus lie> 1easons. (672

S&GGES'E( ANS)ER*

'o, mandamus will not lie. %he proper remedy is a petitionfor prohibition. (!erana vs. !andiganbayan, ;.1. 'o. 40+, 3anuary 00, 02. %he dismissal of the case based onimproper venue is not a ministerial duty. )andamus does notlie to compel the performance of a discretionary duty. ('iloaloma vs. Danilo )ora, ;.1. 'o. 4**6, !eptember 06,02.

Partition- Non7oinder !011#%

$lorencio sued ;uillermo for partition of a property theyowned in common. ;uillermo Eled a motion to dismiss thecomplaint because $lorencio failed to implead erando and&nocencio, the other co-owners of the property. As 3udge, will you grant the motion to dimiss> "@plain. (672

S&GGES'E( ANS)ER*

'#, because the non-joinder of parties is not a ground fordismissal of action (1ule 6, !ec. 42. %he motion to dismiss

should be denied.

S+ecial Civil Actions* E+ro+riation- =otion to (ismiss!011#%

%he 1epublic of the hilippines, through the department of ublic =or<s and ighways (D=2 Eled with the 1%C acomplaint for the e@propriation of the parcel of land owned by 3ovito. %he land is to be used as an e@tension of the nationalhighway. Attached to the complaint is a ban< certiEcateshowing that there is, on deposit with the :and Ban< of thehilippines, an amount eHuivalent to the assessed value of theproperty. %hen D= Eled a motion for the issuance of a writ of possession. 3ovito Eled a motion to dismiss the complaint on theground that there are other properties which would better servethe purpose.

(a2 =ill 3ovitoMs motion to dismiss prosper> "@plain

S&GGES'E( ANS)ER*

'#. the present 1ule of rocedure governing e@propriation(1ule *2, as amended by the 4++* 1ules of Civil rocedure,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1"$








S&GGES'E( ANS)ER* Qes, the Court of Appeals is correct in remanding the case tothe 1%C for the latter to try the same on the merits. %he 1%C,having jurisdiction over the subject matter of the case appealedfrom )%C should try the case on the merits as if the casewas originally Eled with it, and not just to airm thedismissal of the case. 1.A. 'o. *+4, however, vested jurisdiction over speciEed accion publiciana with courts of theErst level ()etropolitan %rial Courts, )unicipal %rial Courts,and )unicipal Circuit %rial Courts2 in cases where theassessed value of the real property involved does not e@ceed

0,. outside )etro)anila, or in )etro )anila, where such value does not e@ceed,..

Jurisdiction- &nla8ul (etainer !011,%

'o.&9. $ilomeno brought an action in the )etropolitan %rialCourt ()"%C2 of asayCity against )arcelino pleading two causes of action. %he Erstwas a demand for therecovery of physical possession of a parcel of land situated in

asay City with anassessed value of ,/ the second was a claim for damages of , for )arcelinoMs unlawful retention of the property.)arcelino Eled a motion to dismiss on the ground that thetotal amount involved, which is ,, is beyond the jurisdiction of the )e%C. &s)arcelino correct>

S&GGES'E( ANS)ER* 'o, )etropolitan or )unicipal trial Courts have e@clusive jurisdiction over a complaint for forcible entry and unlawfuldetainer regardless of the amount of the claim for damages (!ec.66 508, B.. 40+2.

Also, !ec. 6, 1ule * gives jurisdiction to the said courtsirrespective of the amount of damages. %his is the sameprovision in the 1evised 1ules of !ummary rocedure thatgoverns all ejectment cases (!ec. 45A8548, 1evised 1ule on!ummary rocedure2. %he 1ule,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1"!




however, refers to the recovery of a reasonable amount of damages. &n this case, the property is worth only ,, butthe claim for damages is ,.

&nla8ul (etainer- Preliminary Conerence !011$%

(a2 K Eles an unlawful detainer case against Q before theappropriate )etropolitan %rial Court. &n his answer, Q avers asa special and airmative defense that he is a tenant of KMsdeceased father in whose name the property remains registered.=hat should the court do> "@plain brieGy. (72

S&GGES'E( ANS)ER*

%he court should hold a preliminary conference not later thanthirty (62 days after the defendant’ Answer was Eled, sincethe case is governed by summary procedure under 1ule *,1ules of Court, where a 1eply is not allowed. %he courtshould receive evidence to determine the allegations of tenancy.&f tenancy had in fact been shown to be the real issue, thecourt should dismiss the case for lac< of jurisdiction.

&f it would appear that Q ‟s occupancy of the subject propertywas one of agricultural tenancy, which is governed by agrarianlaws, the court should dismiss the case because it has no jurisdiction over agricultural tenancy cases. Defendant’sallegation that he is a XtenantY of plainti ’s deceased fathersuggests that the case is one of landlord-tenant relation andtherefore, not within the jurisdiction of ordinary courts.

&nla8ul- (etainer- Prior Possession !011,%

Ben sold a parcel of land to Del with right to repurchase withinone(42 year. Ben remained in possession of the property. =henBen failed to repurchase the same, title was consolidated infavor of Del. Despite demand, Ben refused to vacate the land,constraining Del to Ele a complaint for unlawful detainer. &n hisdefense, Ben averred that the case should be dismissedbecause Del had never been in possession of the property. &sBen correct>

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1"(




'o, for unlawful detainer, the defendant need not have beenin prior possession of the property. %his is upon the theorythat the vendee steps into the shoes of the vendor andsucceeds to his rights and interests. &n contemplation of law,the vendee‟s possession is that of the vendor‟s ()aninang vs.C.A., ;.1. 'o. 404*4+, 4 !eptember 4+++/ Dy !un vs.Brillantes, +6 hil. 4* 54+682/ (harma &ndustries, &nc., vs.ajarillaga, ;.1. 'o. :-6*, 4* #ctober 4+2.

Summons !"###%

a2 =hat is the eect of absence of summons on the judgment

rendered in the case> (072

b2 =hen additional defendant is impleaded in the action, is it

necessary that summons be served upon him> "@plain. (072

c2 &s summons reHuired to be served upon a defendant who was

substituted for the deceased> "@plain. (072

d2 A sued KK Corporation (KKC2, a corporation organiJed under

hilippine laws, for speciEc performance when the latter failed to

deliver %-shirts to the former as stipulated in their contract of sale.

!ummons was served on the corporationRs cashier and director.=ould you consider service of summons on either oicer suicient>

"@plain. (072

S&GGES'E( ANS)ER*

a2 %he eect of the absence of summons on a judgment would

ma<e the judgment null and void because the court would not have

jurisdiction over the person of the defendant, but if the defendant

voluntarily appeared before the court, his appearance is eHuivalent

to the service of summons. (!ec. 0, 1ule 42

b2 Qes. !ummons must be served on an additional defendant

impleaded in the action so that the court can acHuire jurisdiction

over him, unless he ma<es a voluntary appearance.

c2 'o. A defendant who was substituted for the deceased need

not be served with summons because it is the court which orders

him as the legal representative of the deceased to appear and

substitute the deceased. (!ec. 4 of 1ule 6.2





d2 !ummons on a domestic corporation through its cashier and

director are not valid under the present rules. (!ec. 44, 1ule 42

%hey have been removed from those who can be served withsummons for a domestic corporation. Cashier was substituted by

treasurer. (&d.2

Summons- Substituted Service !011>%

!ummons was issued by the )) 1%C and actually received on time

by defendant from his wife at their residence. %he sheri earlier

that day had delivered the summons to her at said residence

because defendant was not home at the time. %he sheris return or

proof of service Eled with the court in sum states that thesummons, with attached copy of the complaint, was served on

defendant at his residence thru his wife, a person of suitable age

and discretion then residing therein. Defendant moved to dismiss

on the ground that the court had no jurisdiction over his person as

there was no valid service of summons on him because the sheris

return or proof of service does not show that the sheri Erst made

a genuine attempt to serve the summons on defendant personally

before serving it thru his wife. &s the motion to dismiss

meritorious> =hat is the purpose of summons and by whom may itbe served> "@plain. (72

S&GGES'E( ANS)ER*

%he motion to dismiss is not meritorious because the defendant

actually received the summons on time from his wife. !ervice on

the wife was suicient. (Boticano v. Chu, 4 !C1A 4 54+*82. &t

is the duty of the court to loo< into the suiciency of the service.

%he sheris negligence in not stating in his return that he Erst

made a genuine eort to serve the summons on the defendant,should not prejudice the plainti. ()apa v. Court of Appeals, 04

!C1A 4*F4++02. %he purpose of the summons is to inform the

defendant of the complaint Eled against him and to enable the

court to acHuire jurisdiction over his person. &t maybe served by

the sheri or his deputy or any person authoriJed by the court.

AL'ERNA'I:E ANS)ER*

Qes. %he motion to dismiss is meritorious. !ubstituted service

cannot be eected unless the sheris return shows that he made agenuine attempt to eect personal service on the husband.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%#




Summons- :alidity o Service- E@ects !0113%

%ina ;uerrero Eled with Eled the 1egional %rial Court of Binan,

:aguna, a complaint for sum of money amounting to 4 )illion

against Carlos Corro. %he complaint alleges, among others, that

Carlos borrowed from %ina the said amount as evidenced by a

promissory note signed by Carlos and his wife, jointly and severally.

Carlos was served with summons which was received by :inda, his

secretary. owever, Carlos failed to Ele an answer to the complaint

within the 4-day reglementary period. ence, %ina Eled with the

court a motion to declare Carlos in default and to allow her to

present evidence e@ parte. $ive days thereafter, Carlos Eled his

veriEed answer to the complaint, denying under oath thegenuineness and due e@ecution of the promissory note and

contending that he has fully paid his loan with interest at 407 per

annum.

4. =as the summons validly served on Carlos> (0.72

AL'ERNA'I:E ANS)ER*

%he summons was not validly served on Carlos beScause it was

served on his secretary and the reHuirements for substitutedservice have not been followed, such as a showing that eorts have

been e@erted to serve the same on Carlos and such attempt has

failed despite due diligence ()anotoc v. CA, ;.1. 'o. 46+*,

August 4, 0/ Anging v. CA, ;.1. 'o. 40+*, 3uly 4, 4+++2.

AL'ERNA'I:E ANS)ER*

!ervice of !ummons on Carlos was validly served upon him if the

1eturn will show that it was done through !ubstituted !ervice

because the defendant can not be served personally within areasonable time despite diligent eorts made to serve the summons

personally. :inda, the secretary of defendant Carlos, must li<ewise

be shown to be a competent person in charge of defendantRs oice

where summons was served (!ec. *, 1ule 42.

0. &f you were the judge, will you grant %inaRs motion to declare

Carlos in default> (0.72

AL'ERNA'I:E ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%1




&f & were the judge, & will not grant %inaRs motion to declare Carlos

in default because summons was not properly served and anyway, a

veriEed answer to the complaint had already been Eled. )oreover,it is better to decide a case on the merits rather than on

technicality.

AL'ERNA'I:E ANS)ER*

Qes. &f it was shown that summons was validly served, and that the

motion to declare Carlos in default was duly furnished on Carlos,

and after conducting a hearing on the same motion.

Summons- By Publication !011,%

'o. &. :ani Eled an action for partition and accounting in the1egional %rial Court (1%C2 of )anila against her sister )ary1ose, who is a resident of !ingapore and is not found in thehilippines. pon moition, the court ordered the ublication of the summons for three wee<s in a local tabloid, Bulgar. :inda, an#$= vacationing in the hilippines, saw the summons inBulgar and brought a copy of the tabloid when she returned to!ingapore. :inda showed thetabloid and the page containing the summons to )ary 1ose,

who said, XQes & <now, my <umara Anita scanned and e-mailedthat page of Bulgar to me^Y Did the court acHuire jurisdiction over)ary 1ose>

S&GGES'E( ANS)ER* artition is an action Huasi in rem. !ummons by publicationis proper when the defendant does not reside and is not found inthe hilippines, provided that a copy of the summons and orderof the court are sent by registered mail to the last <nownaddress of the defendant

(!ec. 4, 1ule 42. ublication of the notice in Bulgar, anewspaper of general circulation, satisEes the reHuirements of summons by publication (ereJ vs. ereJ, ;.1. 'o 46, 0)arch 02.

Summons- Served by Email !011#%

!ummons may be served by mail.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%"




S&GGES'E( ANS)ER*

$A:!". 1ule 4 of the 1ules of Court, on !ummons, provide onlyfor serving !ummons (a2 to the defendant in person/ or (b2 if this is not possible within a reasonable time, then bysubstituted service in accordance with !ec. * thereof/ or (c2 if any of the foregoing two ways is not possible, then with leaveof court, by publication in accordance with the same 1ule.

AL'ERNA'I:E ANS)ER*

%1", but only in e@traterritorial service under !ec. 4 of the1ule on !ummons where service may be eected Xin any other

manner the court may deem suicient.Y

Summons- :alid Service !01"6%

AlEe Bravo Eled with the 1egional %rial Court of Caloocan, acomplaint for a sum of money against Charlie Delta. %he claimis for hp4.)illion. %he complaint alleges that Charlieborrowed the amount from AlEe and duly e@ecuted apromissory note as evidence of the loan. CharlieMs oice secretary,"sther, received the summons at CharlieMs oice. Charlie failed toEle an answer within the reHuired period, and AlEe moved to

declare Charlie in default and to be allowed to presentevidence e@ parte. %en days later, Charlie Eled his veriEedanswer, raising the defense of full payment with interest.

(A2 =as there proper and valid service of summons on Charlie>(672

S&GGES'E( ANS)ER*

'o. %here is no showing that earnest eorts were e@erted to

personally serve the summons on the defendant beforesubstituted service was resorted toN hence, the service of summons was improper.

&n an action strictly in personam li<e a complaint for a sumof money, personal service on the defendant is the preferred modeof service, that is, by handing a copy of the summons to thedefendant in person. &f defendant, for e@cusable reasons,cannot be served with thesummons within a reasonable period, then substituted servicecan be resorted to ()anotoc vs. Court of Appeals, ;.1. 'o.

46+*, August 4, 0, 9elasco, 3.2.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%%




#therwise stated, it is only when the defendant cannot beserved personally within a reasonable time that a substitutedservice may be made. &mpossibility of prompt service should beshown by stating the eorts made to End the defendantpersonally and thefact that such eorts failed. %his statement should be madein the proof of service (;alura vs. )ath-Agro Corporation, ;.1.'o. 4*06, August 4, 0+, 4st Division, Carpio, 3.2.

AL'ERNA'I:E ANS)ER* Qes. &f earnest eorts were e@erted to serve the summons inpersons but the same proved futile, then substituted service

through defendant‟s secretary is valid.

&n ;entle !upreme hilippines, &nc. vs. 1icardo Consulta, ;.1.'o. 4640, !eptember 4, 04, the !upreme Court held thatit is not necessary that the person in charge of thedefendant’s regular place of business be speciEcallyauthoriJed to receive the summons. &t isenough that he appears to be in charge. ConseHuently, thesubstituted service ofsummons to the defendant’s secretary in the oice is valid.

(B2 &f declared in default, what can Charlie do to obtain relief>(72

S&GGES'E( ANS)ER*

&f Charlie is declared in default, he has the following remediesto witN

42 he may, at any time after discovery of the default but before judgment, Ele a motion, under oath, to set aside the order of

default on the ground that his failure to answer was due tofraud, accident, mista<e, or e@cusable neglect, and that he hasa meritorious defense/

02 if judgment has already been rendered when he discoveredthe default, but before the same has become Enal ande@ecutor, he may Ele a motion for new trial under !ection 4(a2of 1ule 6*N

62 if he discovered the default after the judgment has becomeEnal and e@ecutor, he may Ele a petition for relief under

!ection 0 of 1ule 6/ and

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%$




2 he may also appeal from the judgment rendered against himas contrary to the evidence or to the law, even if no petitionto set aside the order of default has been presented by him.(B.D. :ongspan Builders, &nc. vs. 1.!. AmpeloHuio 1ealtyDevelopment, ;.1. 'o. 4++4+, !eptember 44, 0+2.

5'oteN there are additional remedies to address judgments bydefaultN )otion for reconsideration (1ule 6*2, Annulment of 3udgment (1ule *2 and etition for Certiorari (1ule 28.

AL'ERNA'I:E ANS)ER*

%he court committed grave abuse of discretion when it

declared the defending party in default despite the latter‟s

Eling of an Answer. %hus, a petition for certiorari under 1ule is the proper remedy.

&n !an edro Cineple@ roperties vs. eirs of )anuel umada"nano, ;.1. 'o. 4+*, 'ovember 4*, 04, the !upremeCourt held that where the answer is Eled beyond thereglementary period but before the defendant is declared indefault and there is noshowing that defendant intends to delay the case, the answershould be admitted. %hus, it was error to declare the defending party in defaultafter the Answer was Eled (!ee !ablas vs. !ablas, ;.1. 'o.4, 3uly 6, 0*2.

After all, the defect in the service of summons was cured byCharlie’s Eling of a veriEed answer raising only the defense of full payment. %he belated Eling of veriEed Answer amounts to voluntary submission to the jurisdiction of the court andwaiver of any defect in the service of summons.

Sub+oena- :iatory Rig4t o )itness !011#%

%he viatory right of a witness served with a subpoena adtestiEcandum refers to his right not to comply with thesubpoena.

S&GGES'E( ANS)ER*

$A:!". %he viatory right of a witness, embodied in !ec. 4,1ule 04 of the 1ules of Civil rocedure, refers to his right not

to be compelled to attend upon a subpoena, by reason of the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%&






counterclaim may be considered compulsory regardless of the

amount. (!ec. * of 1ule 2

:enue- Personal Actions !"##$%

K, a resident of Angeles City, borrowed 6,. from A, a

resident of asay City. &n the loan agreement, the parties stipulated

that Lthe parties agree to sue and be sued in the City of )anila.L a2

&n case of non-payment of the loan, can A Ele his complaint to

collect the loan from K in Angeles City>

b2 !uppose the parties did not stipulate in the loan agreement

as to the venue, where can A Ele his complaint against K>

c2 !uppose the parties stipulated in their loan agreement that

Lvenue for all suits arising from this contract shall be the courts in

PueJon City,L can A Ele his complaint against K in asay City>

S&GGES'E( ANS)ER*

(a2 Qes, because the stipulation in the loan agreement that Lthe

parties agree to sue and be sued in the City of )anilaL does not

ma<e )anila the Le@clusive venue thereof.L (!ec, of 1ule , as

amended by Circular 'o. 46S

+N !ec. of new 1ule 2 ence, A can Ele his complaint in Angeles

City where he resides, (!ec, 0 of 1ule 2.

(b2 &f the parties did not stipulate on the venue, A can Ele his

complaint either in Angeles City where he resides or in asay City

where K resides, (&d2.

(c2 Qes, because the wording of the stipulation does not ma<e

PueJon City the e@clusive venue. (hilban<ing v. %ensuan. 06!C1A 46/ nimasters Conglomeration, &nc. v. CA. C1-44+*,

$eb. *, 4++*2

AL'ERNA'I:E ANS)ER*

(c2 'o. &f the parties stipulated that the venue Lshall be in the

courts in PueJon CityL, A cannot Ele his complaint in asay City

because the use of the word LshallL ma<es PueJon City the

e@clusive venue thereof. (oechst hilippines vs. %orres, 6 !C1A

0+*2.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%!




:enue- Real Actions !011,%

'o.&&&. (a2 Angela, a resident of PueJon City, sued Antonio, aresident of )a<ati City before the 1%C of PueJon City forthe reconveyance of two parcels of land situated in %arlac and'ueva "cija, respectively. )ay her action prosper>

S&GGES'E( ANS)ER*

'o, the action will not prosper because it was Eled in the wrong venue. !ince the action for reconveyance is a real action, itshould have been Eled separately in %arlac and 'ueva "cija,where the parcels of land are located (!ection 4, 1ule /

nited #verseas Ban< of the hilippines vs. 1osemoore)ining V Development Corp., et al., ;.1. nos. 4++ V4604, )arch 40, 0*2.

owever, an improperly laid venue may be waived, if notpleaded in a timely motion to dismiss (!ec. , 1ule 2.=ithout a motion to dismiss on the ground of improperly laid venue, it would be incorrect for the Court to dismiss the actionfor improper venue.

(b2 Assuming that the action was for foreclosure on themortgage of the same parcels of land, what is the proper venue for the action>

S&GGES'E( ANS)ER*

%he action must be Eled in any province where any of the landsinvolved lies Z either in %arlac or in 'ueva "cija, because theaction is a real action (B& vs. ;reen, * hil. *40/ !ec. 4,1ule / Ban< of America vs. American 1ealty Corp., ;.1. 'o.466*, 0+ December 4+++2. owever, an improperly laid

venue may be waived if not pleaded as aground for dismissal (!ec. , 1ule 2. 5'oteN %he Huestion is thesame as 0+ 1emedial :aw Bar Huestion 'o.&&. 3urisdictionN 3urisdiction/ 1%C, !upra Z rovisional 1emedies (1ules *-42

:enue- Real Actions !01"0%

A, a resident of PueJon City, wants to Ele an action against B, aresident of

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1%(




asay, to compel the latter to e@ecute a Deed of !alecovering a lot situated in )ari<ina and that transfer of title beissued to him claiming ownership of the land.

=here should A Ele the case> "@plain. (72

S&GGES'E( ANS)ER* A should Ele the case in )ari<ina, the place where the realproperty subject matter of the case is situated. An action forspeciEc performance would still be considered a real actionwhere it see<s the conveyance or transfer of real property, orultimately, the e@ecution of

deeds of conveyance of real property. (;ochan vs. ;ochan,06 hil. +4, 45048/ Copioso vs. Copioso, 6+4 !C1A 60 50082

Attac4ment- Bond !011,%

After his properties were attached, defendant orErio Eled asuicient counterbond. %he trial court discharged the attachment.'onetheless, orErio suered substantial prejudice due to theunwarranted attachment. &n the end, the trial court rendered a judgment in orErioMs

favor by ordering the plainti to pay damages because theplainti was not entitled to the attachment. orErio moved tocharge the plaintiMs attachment bond.

%he plainti and his sureties opposed the motion, claimingthat the Eling of the counterbond had relieved the plaintiMsattachment bond from all liability for the damages. 1ule onorErioMs motion.

S&GGES'E( ANS)ER*

orErio‟s motion to charge the plainti

’

s attachment bond isproper. %he Eling of the counterbond by the defendant doesnot mean that he has waived his right to proceed against theattachment bond for damages. nder the law (!ec. 0, 1ule*2, an application for damages on account of improper,irregular, or e@cessive attachment is allowed. !uch damagesmay be awarded only after proper hearing and shall beincluded in the judgment on the main case.

)oreover, nothing shall prevent the party against whom theattachment was issued from recovering in the same action the

damages awarded to him from any property of the attachingparty not e@empt from e@ecution should the bond or deposit





given by the latter be insuicient or fail to fully satisfy theaward. (D.). =enceslao V Associates, &nc. vs. 1eadycon%rading V Construction Corp., ;.1. 'o. 44, 0+ 3une 02.

Attac4ment- Garnis4ment !011,%

(a2 %he writ of e@ecution was returned unsatisEed. %he judgment obligee subseHuently received information that aban< holds a substantial deposit belonging to the judgmentobligor. &f you are the counsel of the judgment oblige, whatsteps would you ta<e to reach the deposit to satisfy the judgment>

S&GGES'E( ANS)ER*

& will as< for a writ of garnishment against the deposit inthe ban< (!ec. +5c8, 1ule *2.

AL'ERNA'I:E ANS)ER*

& shall move the court to apply to the satisfaction of the judgment the property of the judgment obligor or the moneydue him in the hands of another person or corporation under!ec. , 1ule 6+.

(b2 &f the ban< denies holding the deposit in the name of the judgment obligor but yourclientMs informant is certain that the deposit belongs to the judgment obligor under anassumed name, what is your remedy to reach the deposit>

S&GGES'E( ANS)ER*

& will move for the e@amination under oath of the ban< as adebtor of the judgment debtor (!ec. 6*, 1ule 6+2. & will as< thecourt to issue an #rder reHuiring the judgment obligor, or theperson who has property of such judgment obligor, to appearbefore the court and be e@amined in accordance with !ecs.6 and 6* of the 1ules of Court for the complete satisfactionof the judgment award (Co vs. !illador, A.). 'o. -*- 060,64 August 0*2.

AL'ERNA'I:E ANS)ER*

%he judgment oblige may invo<e the e@ception under !ec. 0 of the !ecrecy of Ban< Deposits Act. Ban< Deposits may be

e@amined upon order of a competent court in cases if the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$#




money deposited is the subject matter of the litigation (1.A.42.

Attac4ment- Hinds o Attac4ment !01"0%

BrieGy discussFdierentiate the following <inds of AttachmentNpreliminary attachment, garnishment, levy on e@ecution,warrant of seiJure and warrant of distraint and levy. (72

S&GGES'E( ANS)ER*

1":&)&'A1Q A%%AC)"'%- is a provisional remedy under1ule * of the 1ules of Court. it may be sought at thecommencement of an action or at any time before entry judgment where property of an adverse party may be attachedas security for the atisfaction of any judgment, where thisadverse party is about to depart from the hilippines, wherehe has intent to defraud or has committed fraud, or is notfound in the hilippines. An aidavit and a bond is reHuiredbefore the preliminary attachment issues. &t is discharged uponthe payment of a counterbond.

;A1'&!)"'%- is a manner of satisfying or e@ecuting judgmentwhere the sheri may levy debts, credits, royalties,commissions, ban< deposits, and other personal property notcapable of manual delivery that are in the control orpossession of third persons and are due the judgment obligor.'otice shall be served on third parties. %he third partygarnishee must ma<e a written report on whether or not the judgment obligor has suicient funds or credits to satisfy theamount of the judgment. &f not, the report shall state howmuch fund or credits the garnishee holds for the judgment

obligor. !uch garnish amountsshall be delivered to the judgment oblige-creditor (1ule 6+,!ec.+ 5c82.

:"9Q #' "K"C%&#'- is a manner of satisfying or e@ecuting judgment where the sheri may sell property of the judgmentobligor if he is unable to payall or part of the obligation in cash, certiEed ban< chec< orany other manner acceptable to the oblige. &f the obligor doesnot chose which among his property may be sold, the sheri shall sell personal property Erst and then real property second.

e must sell only so much of the personal and real property

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$1




as is suicient to satisfy judgment and other lawful fees. (1ule6+, !ec.+ 5b82.

=A11A'% #$ !"&O1"- is normally applied for, with a searchwarrant, in criminal cases. %he warrant of seiJure mustparticularly describe the things to be seiJed. =hile it is truethat the property to be seiJed under a warrant must beparticularly described therin and no other property can beta<en thereunder, yet the description is reHuired to be speciEconly insofar as the circumstances will ordinarily allow.

An application for search and seiJure warrant shall be Eled withthe followingN (a2 Any court within whose territorial jurisdiction

a crime was committed. (b2 $or compelling reasons stated inthe application, any court within the judicial region where thecrime was committed if the place of the commission of the crime is<nown, or any court within the judicial region where thewarrant shall be enforced. owever, if the criminal action hasalready been Eled, the application shall only be made in thecourt where the criminal action is pending.

=A11A'% #$ D&!%1A&'% A'D :"9Q- is remedy available tolocal governments and the B&1 in ta@ cases to satisfydeEciencies or delinHuencies in inheritance and estate ta@es,

and real estate ta@es. Distraint is the seiJure of personalproperty to be sold in an authoriJed auction sale. :evy is theissuance of a certiEcation by the proper oicer showing thename of the ta@payer and the ta@, fee, charge, or penalty duehim. :evy is made by writing upon said certiEcate thedescription of the property upon which levy is made.

Attac4ment- Preliminary Attac4ment !01"0%

(a2 A sues B for collection of a sum of money. Alleging fraud

in the contracting of the loan, A applies for preliminaryattachment with the court. %he Court issues the preliminaryattachment after A Eles a bond. =hile summons on B was yetunserved, the sheri attached BRs properties. Afterwards,summons was duly served on B. moves to lift the attachment.1ule on this. (72

S&GGES'E( ANS)ER*

& will grant the motion since no levy on attachment pursuantto the writ shall be enforced unless it is preceded or

contemporaneously accompanied by service of summons. %here

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$"




must be prior or contemporaneous service of summons with thewrit of attachment. (1ule *, !ec., 1ules of Court2.

In7unction- Preliminary In7unction !011#%

A suit for injunction is an action in rem.

S&GGES'E( ANS)ER*

$A:!". A suit for injunction is an action in personam. &n the earlycase of Auyong ian vs. Court of %a@ Appeals 5+ !C1A 4454+*82, it was held that a restraining order li<e an injunction,operates upon a person. &t is granted in the e@ercise of eHuity

of jurisdiction andhas no in rem eect to invalidate an act done in contempt of anorder of the court e@cept where by statutory authoriJation, thedecree is so framed as to act in rem on property. (Air )ateriel=ing !avings and :oan Association, &nc. vs. manay, 6 !C1A 6 50*82.

:. CRI=INAL PR2CE(&RE

AcDuittal- E@ect !0110%

Delia sued 9ictor for personal injuries which she allegedly

sustained when she was struc< by a car driven by 9ictor. )ay the

court receive in evidence, over proper and timely objection by

Delia, a certiEed true copy of a judgment of acHuittal in a criminal

prosecution charging 9ictor with hit-and-run driving in connection

with DeliaMs injuries> =hy> (672

!;;"!%"D A'!="1N

1emedial :aw Bar "@amination P V A (4++*-02

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$%




&f the judgment of acHuittal in the criminal case Ends that the act

or omission from which the civil liability may arise does not e@ist,

the court may receive it in evidence over the objection by Delia.51ule 444, sec. 0, last paragraph8.

A:%"1'A%&9" A'!="1N

&f the judgment of acHuittal is based on reasonable doubt, the court

may receive it in evidence because in such case, the civil action for

damages which may be instituted reHuires only a preponderance of

the evidence. (Art. 0+, Civil Code2.

Actions- Commencement o an Action !01"0%

K was arrested, en Gagrante, for robbing a ban<. After aninvestigation, he was brought before the oice of theprosecutor for inHuest, but unfortunately no inHuest prosecutorwas available. )ay the ban< directly Ele the complaint with theproper court> &f in the airmative, what document should beEled> (72

!;;"!%"D A'!="1N Qes, the ban< may directly Ele the complaint with the proper

court. &n the absence or unavailability of an inHuest prosecutor,the complaint may be Eled by the oended party or a peaceoicer directly with the proper court on the basis of theaidavit of the oendedparty or arresting oicer or person (!ection , 1ule 440 of the 1evised 1ules of Criminal rocedure2.

Actions- Commencement o an Action- Criminal Civil !01"6%

=hile in his 'issan atrol and hurrying home to PueJon Cityfrom his wor< in )a<ati, ;ary Egured in a vehicular mishap along

that portion of "D!A within the City of )andaluyong. e wasbumped from behind by a $ord "@pedition !9 driven byorace who was observed using his cellular phone at the timeof the collision. Both vehicles - more than years old Z no longercarried insurance other than the compulsory third party liabilityinsurance. ;ary suered physical injuries while his 'issanatrol sustained damage in e@cess of hp,.

(A2 As counsel for ;ary, describe the process you need tounderta<e starting from the point of the incident if ;ary wouldproceed criminally against orace, and identify the court with jurisdiction over the case. (672

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$$




S&GGES'E( ANS)ER*

A2 As counsel for ;ary, & will Erst have him medicallye@amined in order to ascertain the gravity and e@tent of theinjuries sustained from the accident. !econd, & will secure anaccurate police report relative to the mishap unless oraceadmits his fault in writing, andreHuest ;ary to secure a car damage estimate from a car repairshop. %hird, & will as< him to e@ecute his !inumpaang !alaysay.%hereafter, & will use his !inumpaang !alaysay or prepare aComplaint-aidavit and Ele the same in the #ice of the Cityrosecutor of )andaluyong City (!ections 4 and 4 1ule 44,

1ules of Criminal rocedure2. %his being a case of simplenegligence and the penalty for the oense does not e@ceed si@months imprisonment, thecourt with original and e@clusive jurisdiction is the)etropolitan %rial Court of )andaluyong City.

(B2 &f ;ary chooses to Ele an independent civil action fordamages, e@plain brieGy thistype of actionN its legal basis/ the dierent approaches inpursuing this type of action/the evidence you would need/ and types of defenses you could

e@pect. (72

S&GGES'E( ANS)ER* An independent civil action is an action which is entirelydistinct and separate from the criminal action. !uch civil actionshall proceed independently of the criminal prosecution andshall reHuire only a preponderance of evidence. !ection 6 of 1ule 444 allows the Eling of an independent civil action bythe oended party based on Article 66 and 04* of the 'ewCivil Code. %he dierent approaches that the plainti can pursuein this type of actionare as followsN

(a2 $ile the independent civil action and prosecute the criminalcase separately.(b2 $ile the independent civil action without Eling the criminalcase.(c2 $ile the criminal case without need of reserving theindependent civil action.

Aside from the testimony of ;ary, the pieces of evidence thatwould be reHuired in an independent civil action are the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$&






committed abroad. ence, the contemplated criminal action isnot viable as the same was committed outside of the hilippinecourts.

(B2 &s a civil action to impugn the paternity of the baby boyfeasible, and if so, in what proceeding may such issue bedetermined> (72

S&GGES'E( ANS)ER*

Qes, under Article 4*4 of the $amily Code, the heirs of thehusband may impugn the Eliation of the child in the followingcasesNa2 &f the husband should die before the e@piration of theperiod E@ed for bringing his actionNb2 &f he should die after the Eling of the complaint, withouthaving desisted therefrom/ orc2 &f the child was born after the death of the husband. !inceDario is already dead when the baby was, his heirs have theright toimpugn the Eliation of the child.

ConseHuently, the heirs may impugn the Eliation either by adirect action to impugn such Eliation or raise the same in aspecial proceeding for settlement of the estate of the decedent.&n the said proceeding, the robate court has the power todetermine Huestions as to who are the heirs of the decedent(1eyes vs. Qsip, et. al., +* hil. 44, 3imeneJ vs.&AC, 4 !C1A 6*2.

&ncidentally, the heirs can also submit the baby boy for D'A

testing (A.). 'o. - 44--!C, 1ules on D'A "vidence2 or evenblood-test in order to determine paternity and Eliation.

&n 3ao vs. Court of Appeals, ;.1. 'o. :- +40, 3uly 0, 4+*,the !upreme Court held that blood grouping tests areconclusive as to non-paternity, although inconclusive as topaternity. %he fact that the blood type of the child is apossible product of the mother and alleged father does notconclusively prove that the child is born by such parents/ but,if the blood type of the child is not the possible blood type whenthe blood of the mother and the alleged father are cross

matched, then the child cannot possibly be that of the allegedfather.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$!




AL'ERNA'I:E ANS)ER* 'o, there is no showing in the problem of any ground that wouldserve as a basis for an action to impugn paternity of the babyboy.&n Concepcion vs. Almonte, ;.1. 'o. 406, August 64,0 citing Cabatania vs. Court of Appeals, the !upreme Courtheld that the law reHuires that every reasonable presumptionbe made in favour of legitimacy.

%he presumption of legitimacy does not only Gow out of declaration in the statute but is based on the broadprinciples of natural justice and the supposed virtue of the

mother. &t is grounded on the policy to protect the innocentospring from the odium of illegitimacy. %he presumption of legitimacy proceeds from the se@ual union in marriage,particularly during the period of conception. %o overthrow thispresumption on the basis of Article 4 (42 (b2 of the $amilyCode, it must be shown beyond reasonable doubt that therewas no access that could have enabled the husband to fatherthe child. !e@ual &ntercourse is to be presumed where personalaccess is not disposed, unless such presumption is rebutted byevidence to the contrary. ence, a child born to a husband andwife during a valid marriage is presumed legitimate. %hus, the

child‟s legitimacy may be impugned only under the strictstandards provided by law (errera vs. Alba, ;.1. 'o. 400, 3une 4, 02.

5'oteN %he $amily Code is not covered by the 046 bar "@amination!yllabus for 1emedial :aw8.

Actions- Com+laint- /orum S4o++ing !01"1%

K was driving the dump truc< of Q along Cattleya !treet in!ta. )aria, Bulacan. Due to his negligence, K hit and injured 9 who was crossing the street. :awyer :, who witnessed theincident, oered his legal services to 9. 9, who suered physicalinjuries including a fractured wrist bone, underwent surgery toscrew a metal plate to his wrist bone. #n complaint of 9, acriminal case for 1ec<less &mprudence 1esulting in !erioushysical &njuries was Eled against K before the )unicipal %rialCourt ()%C2 of !ta.)aria. Atty. :, the private prosecutor, did not reserve theEling of a separate civilaction. 9 subseHuently Eled a complaint for Damages against K

and Q before the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1$(




1egional %rial Court of angasinan in rdaneta where heresides. &n his LCertiEcation Against $orum !hopping,L 9 madeno mention of the pendency of the criminal case in !ta. )aria.

(a2 &s 9 guilty of forum shopping> (072

S&GGES'E( ANS)ER*

'o, 9 is not guilty of forum shopping because the case in!ta. )aria, Bulacan, is a criminal action Eled in the name of the eople of the hilippines, where civil liability arising from thecrime is deemed also instituted therewith/ whereas the caseEled in rdaneta,

angasinan, is a civil action for Huasi-delict in the name of 9 and against both K and Q for all damages caused by K and Q to 9,which may be beyond the jurisdiction of )%C. ence, thetests of forum shopping, which is res adjudicate or litispendencia, do not obtain here.)oreover, substantive law (Art. 66, Civil Code2 and !ec. 6,1ule 444, 1evised 1ules of Criminal rocedure, e@presslyauthoriJe the Eling such action for damages entirely separateand distinct from the criminal action.

(b2 &nstead of Eling an Answer, K and Q move to dismiss the

complaint for damages on the ground of litis pendentia. &s themotion meritorious> "@plain. (072

S&GGES'E( ANS)ER*'o, the motion to dismiss base on alleged litis pendencia iswithout merit because there is no identity of parties andsubject matter in the two cases. Besides, Art. 66 of the CivilCode and 1ule 444, !ec. 6 of the 1ules of Criminal rocedureauthoriJe the separate civil

action for damages arising from physical injuries to proceedindependently.(c2 !uppose only K was named as defendant in the complaint fordamages, may he movefor the dismissal of the complaint for failure of 9 to implead Q asan indispensableparty> (072

S&GGES'E( ANS)ER* 'o, K may not move for dismissal of the civil action for damages

on the contention that Q is an indispensable party who shouldbe impleaded. Q is not an indispensable party but only





necessary party. Besides, nonjoinder and misjoinder of parties isnot a ground for dismissal of actions (1ule 6, !ec. 44, 1ules of Court2.

(d2 K moved for the suspension of the proceedings in thecriminal case to await the decision in the civil case. $or his part, Q moved for the suspension of the civil case to await thedecision in the criminal case. =hich of them is correct> "@plain.(072

S&GGES'E( ANS)ER* 'either of them is correct. Both substantive law (Art. 66 of

the Civil Code2 and procedural law (1ule 444, !ec. 6, 1ules of Criminal rocedure2 provide for the two actions to proceedindependently of each other, therefore, no suspension of action isauthoriJed.

(e2 Atty. : oered in the criminal case his aidavit respectingwhat he witnessed during the incident. KMs lawyer wanted tocross-e@amine Atty. : who, however, objected on the ground of lawyer-client privilege. 1ule on the objection. (072

S&GGES'E( ANS)ER*

%he objection should be overruled. :awyer-client privilege isnot involved here. %he subject on which the counsel would bee@amined has been made public in the aidavit he oered andthus, no longer privileged, aside from the fact that it is inrespect of what the counselwitnessed during the incident and not to the communication madeby the client to him or the advice he gave thereon in hisprofessional capacity.

Actions- ;old (e+arture 2rder !01"1%

=hile window-shopping at the mall on August , 0, Dantelost his organiJer including his credit card and billingstatement. %wo days later, upon reporting the matter to thecredit card company, he learned that a one-way airplane tic<etwas purchased online usinghis credit card for a Gight to )ilan in mid- August 0.

pon e@tensive inHuiry with

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&#




the airline company, Dante discovered that the plane tic<et wasunder the name of oneDina )eril. Dante approaches you for legal advice.

(a2 =hat is the proper procedure to prevent Dina from leaving thehilippines> (072

S&GGES'E( ANS)ER*

& would adviseN

(42 %he Eling of an appropriate criminal action cogniJable bythe 1%C against

Dina and the Eling in said criminal action a )otion for theissuance of a old Departure #rder/(02 thereafter, a written reHuest with the Commissioner of the

Bureau of &mmigration for a =atch :ist #rder pending theissuance of the old Departure #rder should be Eled/(62 then, the airline company should be reHuested to cancelthe tic<et issued to Dina.(b2 !uppose an &nformation is Eled against Dina on August 40,0 and she isimmediately arrested. =hat pieces of electronic evidence willDante have to

secure in order to prove the fraudulent online transaction> (072

S&GGES'E( ANS)ER*

e will have to present (a2 his report to the ban< that helost his credit card (b2that the tic<et was purchased after the report of the lost and (c2the purchase of one-way tic<et. Dante should bring an original(or an eHuivalent copy2 printout ofN 42 the online tic<etpurchase using his credit card/ 02 the phone call log to show

that he already alerted the credit card company of his loss/and 62 his credit card billing statement bearing theonline tic<et transaction.

Actions- BP 00- Civil Action deemed included !011"%

!aturnino Eled a criminal action against Ale@ for the latterMs

bouncing chec<. #n the date of the hearing after the arraignment,

!aturnino manifested to the court that he is reserving his right to

Ele a separate civil action. %he court allowed !aturnino to Ele a

civil action separately and proceeded to hear the criminal case.

Ale@ Eled a motion for reconsideration contending that the civil

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&1




action is deemed included in the criminal case. %he court

reconsidered its order and ruled that !aturnino could not Ele a

separate action. &s the courtMs order granting the motion forreconsideration correct> =hy> (72

S&GGES'E( ANS)ER*

Qes, the courtMs order granting the motion for reconsideration is

correct. %he 1ules provide that the criminal action for violation of

B.. Blg. 00 shall be deemed to include the corresponding civil

action, and that no reservation to Ele such civil action separately

shall be allowed. 5!ec. 4(b2, 1ule 444, 1evised 1ules of Criminal

rocedure8

Actions- BP00- (emurrer to Evidence !0116%

&n an action for violation of Batas ambansa Big. 00, the court

granted the accusedMs demurrer to evidence which he Eled without

leave of court. Although he was acHuitted of the crime charged, he,

however, was reHuired by the court to pay the private complainant

the face value of the chec<. %he accused Eled a )otion of

1econsideration regarding the order to pay the face value of the

chec< on %he following groundsN a2 the demurrer to evidenceapplied only too the criminal aspect of the case/ and b2 at the very

least, he was entitled to adduce controverting evidence on the civil

liability. 1esolve the )otion for 1econsideration. (72

S&GGES'E( ANS)ER*

(a2 %he )otion for 1econsideration should be denied. %he ground

that the demurrer to evidence applied only to the criminal aspect of

the case was not correct because the criminal action for violation of

Batas ambansa Blg. 00 included the corresponding civil action.(!ec. 4(b2 of 1ule 4442.

(b2 %he accused was not entitled to adduce controverting evidence

on the civil liability, because he Eled his demurrer to evidence

without leave of court. (!ec. 06 of 1ule 44+2.

Actions- Commencement o an Action- (ouble Jeo+ardy

!011>%

!#4 C'C Eled with the )%C in PueJon City ()e%C-PC2 a sworn

written statement duly subscribed by him, charging 1;1 (an actual

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&"




resident of Cebu City2 with the oense of slight physical injuries

allegedly inGicted on !! (an actual resident of PueJon City2. %he

3udge of the branch to which the case was raIed thereupon issuedan order declaring that the case shall be governed by the 1ule on

!ummary rocedure in criminal cases. !oon thereafter, the 3udge

ordered the dismissal of the case for the reason that it was not

commenced by information, as reHuired by said 1ule.

!ometime later, based on the same facts giving rise to the slight

physical injuries case, the City rosecutor Eled with the same

)e%C-PC an information for attempted homicide against the same

1;1. &n due time, before arraignment, 1;1 moved to Huash the

information on the ground of double jeopardy and after duehearing, the 3udge granted his motion. =as the dismissal of the

complaint for slight physical injuries proper> =as the grant of the

motion to Huash the attempted homicide information correct>

1eason (72

S&GGES'E( ANS)ER*

Qes, the dismissal of the complaint for slight physical injuries is

proper because in )etropolitan )anila and in chartered cities, the

case has to be commenced only by information. (!ec. 44, 1evised1ule on !ummary rocedure2.

'o, the grant of the motion to Huash the attempted homicide

information on the ground of double jeopardy was not correct,

because there was no valid prosecution for slight physical injuries.

Actions- (iscretionary Po8er o /iscal !"###%

A Eled with the #ice of the $iscal a Complaint for estafa against

B. After the preliminary investigation, the $iscal dismissed the

Complaint for lac< of merit. )ay the $iscal be compelled by

mandamus to Ele the case in court> "@plain. (072

S&GGES'E( ANS)ER*

'o. %he public prosecutor may not be compelled by mandamus to

Ele the case in court because the determination of probable cause

is within the discretion of the prosecutor. %he remedy is an appeal

to the !ecretary of 3ustice. (!ec. 1ule 440.2

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&%






'o. %he warrantless arrest is not valid because the alleged oense

has not just been committed. %he crime was allegedly committed

one year before the arrest. (!ec. (b2 of 1ule 4462.

Qes, he is entitled to a preliminary investigation because he was not

lawfully arrested without a warrant (!ee !ec. * of 1ule 4402. e

can move for a reinvestigation.

AL'ERNA'I:E ANS)ER*

e is not entitled to a preliminary investigation because the

penalty for estafa is the sum of 4, does not e@ceed years

and 0 months. nder !ec. 4, second par., 1ule 440, a preliminary

investigation is not reHuired. ('oteN %he penalty is not stated in the

Huestion.2

Arrest- )arrantless Arrests 5 Searc4es !"##$%

A was <illed by B during a Huarrel over a hostess in a nightclub.

%wo days after the incident, and upon complaint of the widow of A,

the police arrested B without a warrant of arrest and searched his

house without a search warrant. a2 Can the gun used by B in

shooting A, which was seiJed during the search of the house of B,

be admitted in evidence> b2 &s the arrest of B legal> c2 nder the

circumstances, can B be convicted of homicide>

S&GGES'E( ANS)ER*

(a2 'o. %he gun seiJed during the search of the house of B without

a search warrant is not admissible in evidence. (!ecs. 0 and 6508,

Art. &&& of Constitution2. )oreover, the search was not an incident

to a lawful arrest of a person under !ec. 40 of 1ule 40.

(b2 'o. A warrantless arrest reHuires that the crime has in fact just

been committed and the police arresting has personal <nowledge of

facts that the person to be arrested has committed it. (!ec. , 1ule

4462. ere, the crime has not just been committed since a period of

two days had already lapsed, and the police arresting has no such

personal <nowledge because he was not present when the incident

happened. (;o vs. Court of Appeals. 0 !C1A 462.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&&




(c2 Qes. %he gun is not indispensable in the conviction of A because

the court may rely on testimonial or other evidence.

Arrest- )arrantless Arrests 5 Seiures !0116%

&n a buy-bust operation, the police operatives arrested the accused

and seiJed from him a sachet of shabu and an unlicensed Erearm.

%he accused was charged in two &nformations, one for violation of

the XDangerous Drug ActY, as amended, and another for illegal

possession of Erearms.

%he accused Eled an action for recovery of the Erearm in another

court against the police oicers with an application for the issuance

of a writ of replevin. e alleged in his Complaint that he was a

military informer who had been issued a written authority to carry

said Erearm. %he police oicers moved to dismiss the complaint on

the ground that the subject Erearm was in custodia legis. %he court

denied the motion and instead issued the writ of replevin.

(a2 =as the seiJure of the Erearm valid>

(b2 =as the denial of the motion to dismiss proper> 7

S&GGES'E( ANS)ER*

(a2 Qes, the seiJure of the Erearm was valid because it was seiJed in

the course of a valid arrest in a buy-bust operation. (!ec. 40 and 46

of 1ule 402 A search warrant was not necessary. (eople v.

!alaJar, 0 !C1A * 54++*82.

(b2 %he denial of the motion to dismiss was not proper. %he court

had no authority to issue the writ of replevin whether the Erearm

was in custodia legis or not. %he motion to recover the Erearm

should be Eled in the court where the criminal action is pending.

Arrest- )arrantless Arrests 5 Searc4es !011$% (a2 #n his way home, a member of the Caloocan City police

force witnesses a bus robbery in asay City and eects thearrest of the suspect. Can he bring the suspect to CaloocanCity for boo<ing since that is where his station is> "@plain brieGy.(72

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&'






Any objection to the illegality of the arrest of the accused without a

warrant is deemed waived when he pleaded not guilty at the

arraignment without raising the Huestion. % is too late to complainabout a warrantless arrest after trial is commenced and completed

and a judgment of conviction rendered against the accused. (eople

v. Cabiles, 0 !C1A 4++, 54+++82

Searc4 5 Seiure- Plain :ie8 !01">%

A search warrant was issued for the purpose of loo<ing forunlicensed Erearms in the house of &ssasin, a notorious gun forhire. =hen the police served the warrant, they also sought theassistance of baran$a% #ano!s who were assigned to loo< at otherportions of the premises around the house. &n a ni2a hut thirty (62meters away from the house of &ssasin, a baran$a% #ano! cameupon a <ilo of marijuana that was wrapped in newsprint. e too< itand this was later used by the authorities to charge &ssasin withillegal possession of marijuana. &ssasin objected to theintroduction of such evidence claiming that it was illegally seiJed.&s the objection of &ssasin valid> !>?%

S&GGES'E( ANS)ER*

Qes, the objection of Ass-asin is valid.

nder the Constitution, the right of the people against unlawfulsearch is inviolable e@cept in cases where a valid search warrantwas issued or in e@ceptional cases where the law provides for awarrantless search. (!ec. 0, Art. &&&, Constitution2. nder the fruitof the poisonous tree doctrine, items seiJed by virtue of an unlawfulsearch are inadmissible in evidence. (!ec. 6508, Art. &&&,Constitution2.

ere the the seiJure of the marijuana was illegal since it was notpursuant to a search warrant. %he search warrant was for thesearch and seiJure of unlicensed Erearms not marijuana. 'orwould the e@ception regarding items seiJed under plain view apply.%he marijuana was wrapped in newsprint and clearly not in plainsight. ence the marijuana may not be introduced in evidence over Ass-asinMs objection.

Searc4 5 Seiure- Plain :ie8 !011,%

%he search warrant authoriJed the seiJure of Xundetermined

Huantity of shabu.Y During the service of the search warrant,the raiding team also recovered a <ilo of dried marijuana

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1&(




leaves wrapped in newsprint. %he accused moved to suppressthe marijuana leaves as evidence for the violation of !ection44 of the Comprehensive Dangerous Drugs Act of00 since they were not covered by the search warrant. %he!tate justiEed the seiJure of the marijuana leaves under theXplain viewY doctrine. %here was no indication of whether themarijuana leaves were discovered and seiJed before or afterthe seiJure of the shabu. &f you are the judge, how would yourule on the motion to suppress>

S&GGES'E( ANS)ER*

%he Xplain viewY doctrine cannot be invo<ed because the

marijuana leaves were wrapped in newsprint and there was noevidence as to whether the marijuana leaves were discovered andseiJed before or after the seiJure of the shabu. &f they werediscovered after the seiJure of theshabu, then the marijuana could not have been seiJed in palin view (C$. eo vs. )ua, ;.1. 'o. +4**, 0* 3anuary 4++*2. &nany case, the marijuana should be conEscated as a prohibitedarticle.

Searc4 5 Seiure- )arrantless Searc4 !01"1%

As Cicero was wal<ing down a dar< alley one midnight, he sawan Lowner-type jeepneyL approaching him. !ensing that theoccupants of the vehicle were up to no good, he darted intoa corner and ran. %he occupants of the vehicle _ elementsfrom the =estern olice District _ gave chase and apprehendedhim. %he police apprehended Cicero, fris<ed himand found a sachet of .+ gram of shabu tuc<ed in his waistand a !wiss <nife in his secret poc<et, and detained himthereafter. &s the arrest and body-searchlegal> (672

S&GGES'E( ANS)ER*

%he arrest and body-search was legal. Cicero appears to bealone `wal<ing down the dar< alleyY and at midnight. %hereappears probable cause for the policemen to chec< him,especially when he darted into a corner (presumably also dar<2and run under such circumstance. Although the arrest came after the body- search where Cicerowas found with shabu and a !wiss <nife, the body-search is legalunder the X%erry searchY rule or the Xstop and fris<Y rule.

And because the mere possession, with animus, of dangerous





drug (the shabu2 is a violation of the law (1.A. +42, the suspect isin a continuing state of committing a crimewhile he is illegally possessing the dangerous drug, thusma<ing the arrest tantamount to an arrest in GagranteN so thearrest is legal and correspondingly, the search and seiJure of the shabu and the concealed <nife may be regarded asincident to a lawful arrest.

AL'ERNA'I:E ANS)ER* 'o, the arrest and the body-search were not legal. &n this case,Cicero did not run because the occupants of the vehicleidentiEed themselves as police oicers. e darted into the

corner and ran upon the belief that the occupants of the vehicle were up to no good. CiceroMs act of running does notshow any reasonable ground to believe that a crime has beencommitted or is about to be committed for the police oicers toapprehend him and conduct body search.ence, the arrest was illegal as it does not fall under any of the circumstances for a valid warrantless arrest provided in !ec. of 1ule 446 of the 1ules of Criminal rocedure.

Searc4 )arrant- A++lication- :enue !01"0%

A D"A assetFinformant tipped the D"A Director !habunotthat a shabu laboratory was operating in a house at !ta. CruJ,:aguna, rented by two (02 Chinese nationals, o ia and !ioao. D"A Director !habunot wants to apply for a searchwarrant, but he is worried that if he applies for a search warrant inany :aguna court, their plan might lea< out. (a2 =here can heEle an application for search warrant> (072

S&GGES'E( ANS)ER* D"A Director !habunot may Ele an application for searchwarrant in any court within the judicial region where thecrime was committed. (1ule 40, !ec.05b82.

AL'ERNA'I:E ANS)ER*

D"A Director !habunot may Ele an application for searchwarrant before the "@ecutive 3udge and 9ice "@ecutive 3udgesof the 1egional %rial Courts of )anila or PueJon Cities. (A.).'o. ++-4-+-!C, 3anuary 0, 02.

(b2 =hat documents should he prepare in his application forsearch warrant> (072

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'#




S&GGES'E( ANS)ER* e should prepare a petition for issuance of a search warrantand attach therein sworn statements and aidavits. (c2 Describethe procedure that should be ta<en by the judge on theapplication. (072

S&GGES'E( ANS)ER*

%he judge must, before issuing the warrant, e@aminepersonally in the form of searching Huestions and answers, inwriting and under oath, the complainant and the witnesses he

may produce on facts personally <nown to them and attach tothe record their swornstatements, together with the aidavits submitted. (1ule 40,!ec., 1ules of Court2. if the judge is satisEed of the e@istenceof facts upon which the application is based or that there isprobable cause to believe that they e@ist, he shall issue thewarrant, which must be substantially in the form prescribed bythe 1ules. (1ule 40, !ec., 1ules of Court2. !uppose the judge issues the search warrant worded in this wayN

"#:" #$ %" &:&&'"!

lainti-versus-

Criminal Case 'o. * for 9iolation of 1.A. +4

o ia and !io ao, Accused.

@- - - - - - - - - - - - - - - - - - - - - -@%# A'Q "AC" #$$&C"1

;reetingsN

&t appearing to the satisfaction of the undersigned aftere@amining under oath D"A Director shabu not that there isprobable cause to believe that violations of !ection 4 and 4of 1.A. +4 have been committed and that there are goodand suicient reasons to believe that o ia and !io aohave in their possession or control, in a two (02 door apartmentwith an iron gate located at 3upiter !t., !ta. CruJ, :aguna,undetermined amount of LshabuL and drug manufacturingimplements and paraphernalia which should be seiJed and

brought to the undersigned, Qou are hereby commanded to ma<ean immediate search, at any time in the day or night, of the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'1




premises above described and forthwith seiJe and ta<epossession of the abovementioned personal property, and bringsaid property to the undersigned to be dealt with as the lawdirects. =itness my hand this 4st day of )arch, 040.

(signed2 3udge KQO

(d2 CiteFenumerate the defects, if any, of the search warrant.(672

S&GGES'E( ANS)ER*

(42 %he search warrant failed to particularly describe the placeto be searched and the things to be seiJed (1ule 40, !ec.,1ules of Court2. (02 %he search warrant commanded the immediate search, atany time in the day or night. %he general rule is that asearch warrant must be served in the day time (1ule 40,!ec., 1evised 1ules on Criminal rocedure2, or that portion of the twenty-four hours in which a man’s person andcountenance are distinguishable (4* C.3. 4462. By way of e@ception, a search warrant may be made at night when it is

positively asserted in the aidavit that the property is on theperson or in the place ordered to be searched (Alvares vs. C$&of %ayabas, hil. 662. %here is no showing that the e@ceptionapplies.

(e2 !uppose the search warrant was served on )arch 4,040 and the search yieldedthe described contraband and a case was Eled against theaccused in 1%C, !ta. CruJ, :aguna and you are the lawyer of !io ao and o ia, what will you do> (672

S&GGES'E( ANS)ER*

)otion to Puash the search warrant for having been servedbeyond its period of validity. (1ule 40, !ec. 4, 1ules of Court2. A search warrant shall be valid only for ten (42 daysfrom its date. %hereafter, it shall be void. (1ule 40, !ec.4,1evised 1ules of Court2.

(f2 !uppose an unlicensed armalite was found in plain view bythe searchers and the warrant was ordered Huashed, should

the court order the return of the same to the Chinesenationals>

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'"




"@plain your answer. (672

S&GGES'E( ANS)ER*

'o, the court should not order the return of the unlicensedarmalite because it is contraband or illegal per se. (D"A vs.Brodett, ;.1. 'o. 4+6+, !eptember 0, 0442. %he possessionof an unlicensed armalite found in plain view is malaprohibita. %he same should be <ept in custodial legis.

Bail- A++lication !01"0%

'o.&.B. A was charged with a non-bailable oense. At the timewhen the warrant of arrest was issued, he was conEned inthe hospital and could not obtain a valid clearance to leavethe hospital. e Eled a petition for bail saying therein that hebe considered as having placed himself under the jurisdictionof the court. )ay the court entertain his petition> =hy orwhy not> (72

S&GGES'E( ANS)ER*'o, the court may not entertain his petition as he has not yetbeen placed under arrest. A must be XliterallyY placed under the

custody of the law before his petition for bail could beentertained by the court ()iranda vs. %uliao, ;.1. 'o. 4*6,)arch 64, 02.

AL'ERNA'I:E ANS)ER*

Qes, a person is deemed to be under the custody of the laweither when he hasbeen arrested or has surrendered himself to the jurisdiction of the court. %he accused who is conEned in a hospital may be

deemed to be in the custody of the law if he clearlycommunicates his submission to the court while he is conEnedin the hospital. (aderanga vs. Court of Appeals, ;.1. 'o. 'o.44*, August 0, 4++2.

Bail !0110%

D was charged with murder, a capital oense. After arraignment,

he applied for bail. %he trial court ordered the prosecution to

present its evidence in full on the ground that only on the basis of

such presentation could it determine whether the evidence of DMs

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'%




guilt was strong for purposes of bail. &s the ruling correct> =hy>

(672

S&GGES'E( ANS)ER*

'o, the prosecution is only reHuired to present as much evidence

as is necessary to determine whether the evidence of DMs guilt is

strong for purposes of bail.(1ule 44, sec. 2.

Bail- A++eal !01">% & was charged with murder in the lower court. is e#i#ion for -ail was denied after a summary hearing on the ground that the

prosecution had established a strong evidence of guilt. 'o 'o#ion for Reconsi!era#ion was Eled from the denial of the e#i#ion for -ail. During the reception of the evidence of the accused, theaccused reiterated his petition for bail on the ground that thewitnesses so far presented by the accused had shown that noHualifying aggravating circumstance attended the <illing. %he courtdenied the petition on the grounds that it had already ruled thatN (i2the evidence of guilt is strong/ (ii2 the resolution for the e#i#ion for -ail is solely based on the evidence presented by the prosecution/and (iii2 no )otion for 1econsideration was Eled from the denial of the e#i#ion for -ail. !3?%

!A% &f you are the 3udge, how will you resolve the incident>

S&GGES'E( ANS)ERS*

&f & were the judge, & will grant the etition for Bail if theevidence does not show any Hualifying aggravating circumstance.&n such a case the oense would be only homicide which isbailable.

(i2 %he ground that the court had already ruled that the evidenceof guilt is strong is improper. An order denying an application forbail is interlocutory and remains at the control of the court untilEnal judgment. ence the court is not bound by its earlier rulingand may reconsider the same if the evidence or law warrants thesame.

(ii2 %he ground that the resolution for the etition for Bail is solelybased on the evidence presented by the prosecution is improper.=hile ! 144 provides that the prosecution has the burden ofproof to show that the evidence of guilt is strong, it should not beta<en to mean that the resolution of the bail application is basedsolely on the prosecution evidence. At the hearing for the bailapplication, both the prosecution and the accused must be given

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'$




reasonable opportunity to prove or to disprove, respectively, thatthe evidence of guilt is strong. (!antos v. #Elada, 0 !C1A 2.

(iii2 %he ground that no motion for reconsideration was Eled fromthe order denying the petition for bail is improper. As previouslydiscussed, an order denying bail is merely interlocutory. ence thefailure to move for reconsideration thereof during the trial will notrender the order Enal and conclusive.

!B% !uppose the accused is convicted of the crime of homicide andthe accused Eled a 'otice of Appeal, is he entitled to bail>

S&GGES'E( ANS)ER*

'o, after conviction by the 1%C of an oense not punishable by

death, reclusion 2er2e#ua, or life imprisonment, admission to bail isdiscretionary. (! 1442.

Bail- A++eal !"##,%

&n an information charging them of )urder, policemen A, B and C

were convicted of omicide. A appealed from the decision but B

and C did not. B started serving his sentence but C escaped and is

at large. &n the Court of Appeals, A applied for bail but was denied.

$inally, the Court of Appeals rendered a decision acHuitting A on

the ground that the evidence pointed to the 'A as the <illers of the victim.

4 =as the Court of AppealRs denial of ARs application for bail

proper> 5078

0 Can B and C be beneEted by the decision of the Court of

Appeals> 5678

S&GGES'E( ANS)ER*

4, Qes, the Court of Appeals properly denied ARs application for bail.%he court had the discretion to do so. Although A was convicted of

homicide only, since he was charged with a capital oense, on

appeal he could be convicted of the capital oense. (#bosa vs.

Court of Appeals, 0 !C1A 04.2

AL'ERNA'I:E ANS)ER*

nder Circular 'o. 0-+0, A is entitled to bail because he was

convicted of homicide and hence the evidence of guilt of murder is

not strong.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'&




S&GGES'E( ANS)ER*

0. B, who did not appeal, can be beneEted by the decision of the

Court of Appeals which is favorable and applicable to him. (!ec.

44 5a8. 1ule 400, 1ules of Criminal rocedure.2 %he beneEt will also

apply to C even if his appeal is dismissed because of his escape.

Bail- A++lication- :enue !0110%

&f an information was Eled in the 1%C-)anila charging D with

homicide and he was arrested in PueJon City, in what court or

courts may he apply for bail> "@plain. (672

S&GGES'E( ANS)ER*

D may apply for bail in the 1%C-)anila where the information was

Eled or in the 1%C-PueJon City where he was arrested, or if no

judge, thereof is available, with any metropolitan trial judge,

municipal trial judge or municipal circuit trial judge therein. (1ule

44, sec. 4*2.

Bail- /orms o Bail !"###%

&n what forms may bail be given> (072

S&GGES'E( ANS)ER*

Bail may be given by a corporate surety, or through a property

bond, cash deposit or recogniJance.Bail/ )atter of 1ight (4+++2

=hen the accused is entitled as a matter of right to bail, may the

Court refuse to grant him bail on the ground that there e@ists a

high degree of probability that he will abscond or escape> "@plain.

(072

S&GGES'E( ANS)ER*

&f bail is a matter of right, it cannot be denied on the ground thatthere e@ists a high degree of probability that the accused will

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1''




abscond or escape. =hat the court can do is to increase the amount

of the bail. #ne of the guidelines that the judge may use in E@ing a

reasonable amount of bail is the probability of the accusedappearing in trial.

Bail- =atter o Rig4t vs. =atter o (iscretion !"###%

=hen is bail a matter of right and when is it a matter of discretion>

(072

S&GGES'E( ANS)ER*

=hen Bail is a matter of rightN

All persons in custody shall (a2 before or after conviction by the

metropolitan and municipal trial courts, and (b2 before conviction

by the 1%C of an oense not punishable by death, reclusion

perpetua or life imprisonment, be admitted to bail as a matter of

right, with suicient sureties, or be released on recogniJance as

prescribed by law or 1ule 44. (!ec. ,

1ule 44, 1ules of Court, as amended by Circular 'o. 40-+.2

=hen bail is a matter of discretionN

pon conviction by the 1%C of an oense not punishable by death,

reclusion perpetua or life imprisonment, on application of the

accused. &f the penalty of imprisonment e@ceeds si@ years but not

more than 0 years, bail shall be denied upon a showing by the

prosecution, with notice to the accused, of the following or other

similar circumstancesN

4 %hat the accused is a recidivist, Huasi-re-cidivist or habitual

delinHuent, or has committed the crime aggravated by the

circumstance of reiteration/

0 %hat the accused is found to have previously escaped from

legal conEnement, evaded sentence, or has violated the conditions

of his bail without valid justiEcation/

6 %hat the accused committed the oense while on probation,

parole, or under conditional pardon/

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1'!






%1". %he accused has the right to move for the production orinspection of material evidence in the possession of theprosecution. &t authoriJes the defense to inspect, copy orphotograph any evidence of the prosecution in its possessionafter obtaining permissionfrom the court (1ule 44, !ec. 4/ =ebb vs. De :eon, 0*!C1A 0 54++82.

AL'ERNA'I:E ANS)ER* $A:!". %he accused in criminal case only has the right to availof conditional e@amination of his witness before a judge, or, if not practicable, a member of a Bar in good standing so

designated by the judge in the order, or if the order be made by acourt of superior jurisdiction,before an inferior court to be designated therein. (sec.40 V46, 1ule44+2. )odes of discovery under civil actions does not apply tocriminal proceedings because the latter is primarily governedby the 1"9&!"D 1:"! #$ C1&)&'A: 1#C"D1" (9da. de)anguerravs 1isos Z 6 !C1A ++2.

(emurrer to Evidence- Contract o Carriage !011>%

AK, a )a<ati-bound paying passenger of B, a public utility bus,

died instantly on board the bus on account of the fatal head wounds

he sustained as a result of the strong impact of the collision

between the bus and a dump truc< that happened while the bus

was still travelling on "D!A towards )a<ati. %he foregoing facts,

among others, were duly established on evidence-in-chief by the

plainti %Q, sole heir of AK, in %QMs action against the subjectcommon carrier for breach of contract of carriage. After %Q had

rested his case, the common carrier Eled a demurrer to evidence,

contending that plaintiMs evidence is insuicient because it did not

show (42 that defendant was negligent and (02 that such negligence

was the pro@imate cause of the collision. !hould the court grant or

deny defendantRs demurrer to evidence> 1eason brieGy. (72

S&GGES'E( ANS)ER*

'o. %he court should not grant defendantRs demurrer to evidencebecause the case is for breach of contract of carriage. roof that







6. Qes. =ithout any evidence from the accused, the prima facie

evidence of the prosecution has been converted to proof beyond

reasonable doubt.

AL'ERNA'I:E ANS)ER*

&f the evidence of guilt is not strong and beyond reasonable doubt

then the court cannot legally convict K for murder.

(emurrer to Evidence- 8o Leave o Court !011"%

Carlos, the accused in a theft case, Eled a demurrer to evidence

without leave of court. %he court denied the demurrer to evidence

and Carlos moved to present his evidence. %he court denied CarlosMmotion to present evidence and instead judgment on the basis of

the evidence for the prosecution. =as the court correct in

preventing Carlos from presenting his evidence and rendering

judgment on the basis of the evidence for the prosecution> =hy>

(72

S&GGES'E( ANS)ER*

Qes, because the demurrer to the evidence was Eled without leave

of court. %he 1ules provide that when the demurrer to evidence isEled without leave of court, the accused waives the right to present

evidence and submits the case for judgment on the basis of the

evidence for the prosecution. (!ec. 06 of 1ule 44+, 1evised 1ules of

Criminal rocedure2

(emurrer to Evidence- 8o Leave o Court !011>%

%he information for illegal possession of Erearm Eled against the

accused speciEcally alleged that he had no license or permit to

possess the caliber . pistol mentioned therein. &n its evidence-in-chief, the prosecution established the fact that the subject Erearm

was lawfully seiJed by the police from the possession of the

accused, that is, while the pistol was tuc<ed at his waist in plain

view, without the accused being able to present any license or

permit to possess the Erearm. %he prosecution on such evidence

rested its case and within a period of Eve days therefrom, the

accused Eled a demurrer to evidence, in sum contending that the

prosecution evidence has not established the guilt of the accused

beyond reasonable doubt and so prayed that he be acHuitted of theoense charged.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1!1






consent to the provisional dismissal of the case. %he oended party

was notiEed of the dismissal but she refused to give her consent.

!ubseHuently, the private complainant urged the public prosecutor

to reEle the murder charge because the accused failed to pay the

consideration which he had promised for the e@ecution of the

Aidavit of Desistance. %he public prosecutor obliged and reEled

the murder charge against the accused on 4 $ebruary 06, the

accused Eled a )otion to Puash the &nformation on the ground that

the provisional dismissal of the case had already become

permanent. (72

a2 =as the provisional dismissal of the case proper> b2 1esolve the)otion to Puash.

S&GGES'E( ANS)ER*

(a2 %he provisional dismissal of the case was proper because the

accused gave his e@press consent thereto and the oended party

was notiEed. &t was not necessary for the oended party to give her

consent thereto. (!ec. of 1ule 44*2.

(b2 %he motion to Huash the information should be denied because,

while the provisional dismissal had already become permanent, the

prescriptive period for Eling the murder charge had not prescribed.

%here was no double jeopardy because the Erst case was dismissed

before the accused had pleaded to the charge. (!ec. * of 1ule 44*2.

(ouble Jeo+ardy !0110%

D was charged with slight physical injuries in the )%C. e pleaded

not guilty and went to trial. After the prosecution had presented its

evidence, the trial court set the continuation of the hearing on

another date. #n the date scheduled for hearing, the prosecutor

failed to appear, whereupon the court, on motion of D, dismissed

the case. A few minutes later, the prosecutor arrived and opposed

the dismissal of the case. %he court reconsidered its order and

directed D to present his evidence. Before the ne@t date of trial

came, however, D moved that the last order be set aside on the

ground that the reinstatement of the case had placed him twice in

jeopardy. Acceding to this motion, the court again dismissed the

case. %he prosecutor then Eled an information in the 1%C, charging

D with direct assault based on the same facts alleged in the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1!%




information for slight physical injuries but with the added

allegation that D inGicted the injuries out of resentment for what

the complainant had done in the performance of his duties aschairman of the board of election inspectors. D moved to Huash the

second information on the ground that its Eling had placed him in

double jeopardy. ow should DMs motion to Huash be resolved> (72

S&GGES'E( ANS)ER*

DMs motion to Huash should be granted on the ground of double

jeopardy because the Erst oense charged is necessarily included

in the second oense charged. 5Draculan v. Donato, 4 !C1A 0

(4+28.

AL'ERNA'I:E ANS)ER*

DMs motion to Huash should be denied because the two dismissals of

the case against him were on his motion (hence with his e@press

consent2 and his right to a speedy trial was not violated.

(ouble Jeo+ardy- &+grading- 2riginal C4arges !011<%

$or the multiple stab wounds sustained by the victim, 'oel was

charged with frustrated homicide in the 1%C. pon arraignment,he entered a plea of guilty to said crime. 'either the court nor the

prosecution was aware that the victim had died two days earlier on

account of his stab wounds. Because of his guilty plea, 'oel was

convicted of frustrated homicide and meted the corresponding

penalty. =hen the prosecution learned of the victimRs death, it Eled

within Efteen (42 days therefrom a motion to amend the

information to upgrade the charge from frustrated homicide to

consummated homicide. 'oel opposed the motion claiming that the

admission of the amended information would place him in double jeopardy. 1esolve the motion with reasons. (72

S&GGES'E( ANS)ER*

%he amended information to consummated homicide from

frustrated homicide does not place the accused in double jeopardy.

As provided in the second paragraph of !ec. *, 1ule 44*,0

1ules of Criminal rocedure, the conviction of the accused shall not

be a bar to another prosecution for an oense which necessarily

includes the oense charged in the former complaint orinformation whenN (a2 the graver oense developed due to

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1!$






subject of an arrest warrant duly issued by the proper criminal

court of !tate KK in connection with a criminal case for ta@ evasion

and fraud before his return to 1 as a bali<bayan. etitioner praysthat 3uan be e@tradited and delivered to the proper authorities of

!tate KK for trial, and that to prevent 3uanRs Gight in the interim, a

warrant for his immediate arrest be issued. Before the 1%C could

act on the petition for e@tradition, 3uan Eled before it an urgent

motion, in sum praying (42 that !o3Rs application for an arrest

warrant be set for hearing and (02 that 3uan be allowed to post bail

in the event the court would issue an arrest warrant. !hould the

court grant or deny 3uanRs prayers> 1eason. (72

S&GGES'E( ANS)ER*

nder the "@tradition %reaty and :aw, the application of the

!ecretary of 3ustice for a warrant of arrest need not be set for

hearing, and 3uan cannot be allowed to post bail if the court would

issue a warrant of arrest. %he provisions in the 1ules of Court on

arrest and bail are not basically applicable. (;overnment of the

nited !tates of America v. uruganan, 6+ !C1A 06 50082

Inormation !011"%

%he prosecution Eled an information against 3ose for slight physical

injuries alleging the acts constituting the oense but without

anymore alleging that it was committed after 3oseMs unlawful entry

in the complainantMs abode. =as the information correctly prepared

by the prosecution> =hy> (72

S&GGES'E( ANS)ER*

'o. %he aggravating circumstance of unlawful entry in the

complainantMs abode has to be speciEed in the information/otherwise, it cannot be considered as aggravating. (!ec. of 1ule

44, 1evised 1ules of Criminal rocedure2

AL'ERNA'I:E ANS)ER*

%he information prepared by the prosecutor is not correct because

the accused should have been charged with HualiEed trespass to

dwelling.

Com+laint vs. Inormation !"###%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1!'




Distinguish a Complaint from &nformation. (072

S&GGES'E( ANS)ER*

&n criminal procedure, a complaint is a sworn written statement

charging a person with an oense, subscribed by the oended

party, any peace oicer or other peace oicer charged with the

enforcement of the law violated. (!ec. 6, 1ule 44, 4+ 1ules of

Criminal rocedure2/ while an information is an accusation in

writing charging a person with an oense subscribed by the

prosecutor and Eled with the court. (!ec. , &d.2

Inormation- =otion to uas4 !011#%

edrito and %omas, )ayor and %reasurer, respectively, of the)unicipality of !an )iguel, :eyte, are charged before the!andiganbayan for violation of !ection 6(e2, 1A no. 64+ (Anti-;raft and Corrupt ractices Act2. %he information alleges,among others, that the two conspired in the purchase of severalunits of computer through personal canvass instead of a publicbidding, causing undue injury to the municipality. Beforearraignment, the accused moved for reinvestigation of thecharge, which the court granted. After reinvestigation, the

#ice of the !pecial rosecutor Eled an amended informationduly singed and approved by the !pecial rosecutor, alleging thesame delictual facts, but with an additional allegation that theaccused gave unwarranted beneEts to !B enterprises owned by!amuel. !amuel was also indicted under the amendedinformation. Before !amuel was arraigned, he moved to Huashthe amended information on the ground that the oicer whoEled had no authority to do so. 1esolve the motion to Huashwith reasons.

S&GGES'E( ANS)ER*

%he motion to Huash Eled by !amuel should be granted. %hereis no showing that the special prosecutor was duly authoriJedor deputiJed to prosecute !amuel. nder 1.A. 'o. **, also<nown as the #mbudsman Act of 4++, the !pecial rosecutorhas the power and authority, under the supervision and control of the #mbudsman, to conduct preliminary investigation andprosecute criminal cases before the !andiganbayan and performsuch other duties assigned to him by the #mbudsman(Calingin vs. Desierto, 0+ !C1A *0 50*82.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1!!




Absent a clear delegation of authority from the #mbudsman tothe !pecial rosecutor to Ele the information, the latter wouldhave no authority to Ele the same. %he !pecial rosecutor cannotbe considered an alter ego of the #mbudsman as the doctrineof HualiEed political agency does not apply to the oice of the#mbudsman. &n fact, the powers of the oice of the !pecialrosecutor under the law may be e@ercised only under thesupervision and control and upon authority of the #mbudsman(ereJ vs. !andiganbayan, 6 !C1A 00 5082.

AL'ERNA'I:E ANS)ER*

%he motion to Huash should be denied for lac< of merit. %hecase is already Eled in court which must have been done withthe approval of the #mbudsman, and thus the !pecialrosecutor’s oice of the #mbudsman ta<es over. As it is thecourt which ordered the reinvestigation, the #ice of the !pecialrosecutor which is handling the case in court, has theauthority to act and when warranted, reEle the case. %heamendment made is only a matterof form which only particulariJed the violation of the sameprovision of 1ep. Act 64+, as amended.

Inormation- =otion to uas4 !011#%

A criminal information is Eled in court charging Anselmowith homicide. Anselmo Eles a motion to Huash information onthe ground that no preliminary investigation was onducted.

=ill the motion be granted> =hy or why not>

S&GGES'E( ANS)ER* '#, the motion to Huash will not be granted. %he lac< of preliminary investigation is not a ground for a motion to Huashunder the 1ules of Criminal rocedure. reliminaryinvestigation is only a statutory right and can be waived. %heaccused should instead Ele a motion for reinvestigation withinEve (2 days after he learns of the Eling in Court of the caseagainst him (!ec. , 1ule 440, as amended2.

Inormation- Amendment !011"%

Amando was charged with frustrated homicide. Before he enteredhis plea and upon the advice of his counsel, he manifested his

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1!(




willingness to admit having committed the oense of serious

physical injuries. %he prosecution then Eled an amended

information for serious physical injuries against Amando. =hatsteps or action should the prosecution ta<e so that the amended

information against Amando which downgrades the nature of the

oense could be validly made> =hy> (72

S&GGES'E( ANS)ER*

&n order that the amended information which downgrades the

nature of the oense could be validly made, the prosecution should

Ele a motion to as< for leave of court with notice to the oended

party. (!ec.4 of 1ule 44, 1evised 1ules of Criminal rocedure2.%he new rule is for the protection of the interest of the oended

party and to prevent possible abuse by the prosecution.

Inormation- Amendment- (ouble Jeo+ardy- Bail !0110%

A. D and " were charged with homicide in one information.

Before they could be arraigned, the prosecution moved to amend

the information to e@clude " therefrom. Can the court grant the

motion to amend> =hy> (072

B. #n the facts above stated, suppose the prosecution, instead

of Eling a motion to amend, moved to withdraw the information

altogether and its motion was granted. Can the prosecution re-Ele

the information although this time for murder> "@plain (672

!;;"!%"D A'!="1N

A. Qes, provided notice is given to the oended party and the court

states its reasons for granting the same. (1ule 44, sec. 42.

B. Qes, the prosecution can re-Ele the information for murder insubstitution of the information for homicide because no double

jeopardy has as yet attached. 5;alveJ v. Court of Appeals, 06*

!C1A (4++28.

Inormation- Amendment- Su+ervening Events !"##$%

A was accused of homicide for the <illing of B. During the trial, the

public prosecutor received a copy of the marriage certiEcate of A

and B.





(a2 Can the public prosecutor move for the amendment of the

information to charge A with the crime of parricide>

(b2 !uppose instead of moving for the amendment of the

information, the public prosecutor presented in evidence the

marriage certiEcate without objection on the part of the defense,

could Abe convicted of parricide>

S&GGES'E( ANS)ER*

(a2 'o. %he &nformation cannot be amended to change the oense

charged from homicide to parricide. $irstly, the marriage is not a

supervening fact arising from the act constituting the charge of

homicide. (!ec. *5a8 of 1ule 44*2. !econdly, after plea, amendments

may be done only as to matters of form. %he amendment is

substantial because it will change the nature of the oense. (!ec.

4 of 1ule 44/ Dionaldo us. Dacuycuy. 4 !C1A *62.

(b2 'o. A can be convicted only of homicide not of parricide which

is a graver oense. %he accused has the constitutional rights of

due process and to be informed of the nature and the cause of the

accusation against him. (!ecs. 4, 4 (42 and (0\ Art. &&&. 4+*

Constitution2, &nformation/ Bail (062

After the reHuisite proceedings, the rovincial rosecutor Eled an

&nformation for homicide against

K. %he latter, however, timely Eled a etition for 1eview of the

1esolution of the rovincial rosecutor with the !ecretary of

3ustice who, in due time, issued a 1esolution reversing the

resolution of the rovincial rosecutor and directing him to

withdraw the &nformation.

Before the rovincial rosecutor could comply with the directive of

the !ecretary of 3ustice, the court issued a warrant of arrest

against K.

%he ublic rosecutor Eled a )otion to Puash the =arrant of

Arrest and to =ithdraw the &nformation, attaching to it the

1esolution of the !ecretary of 3ustice. %he court denied the motion.

(72 a2 =as there a legal basis for the court to deny the motion> b2

&f you were the counsel for the accused, what remedies, if any,

would you pursue>

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1(#






unlicensed . caliber gun is punishable by prision mayor in its

minimum period and a Ene of 6.., while possession of an

unlicensed .60 caliber gun is punishable by prision correctional inits ma@imum period and a Ene of not less than 4,.. As

counsel of the accused, you intend to Ele a motion to Huash the

&nformation. =hat ground or grounds should you invo<e> "@plain.

(72

S&GGES'E( ANS)ER*

%he ground for the motion to Huash is that more than one oense is

charged in the information. (!ec. 65f8, 1ule 44*, 0 1ules of

Criminal rocedure2 :i<ewise, the 1%C has no jurisdiction over thesecond oense of possession of an unlicensed .60 caliber gun,

punishable by prision correctional in its ma@imum period and a Ene

of not less than 4... &t is the )%C that has e@clusive and

original jurisdiction over all oenses punishable by imprisonment

not e@ceeding si@ years. (!ec. 0, 1.A. 'o. *+4, amending B.. Blg.

40+2

Inormation- =otion to uas4- Grounds !"##,%

4 ;ive two (02 grounds to Huash an &nformation.5078

0 &f the &nformation is not accompanied by a certiEcation that a

preliminary investigation has been conducted. &s the &nformation

void> 5678

S&GGES'E( ANS)ER*

4. %wo grounds to Huash an &nformation areN a2 %hat the facts

charged do not constitute an oense/ and

b2 %hat the court trying the case has no jurisdiction over the

oense charged or the person of the accused.

c2 %hat the oicer who Eled the information had no authority to do

so/ d2 %hat it does not conform substantially to the prescribed form/

e2 %hat more than one oense is charged e@cept in those cases

in which e@isting laws prescribe a single punishment for various

oenses/

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1("




f2 %hat the criminal action or liability has been e@tinguished/

g2 %hat it contains averments which, if true, would constitute a

legal e@cuse or justiEcation/ and

h2 %hat the accused has been previously convicted or in

jeopardy of being convicted, or acHuitted of the oense charged.

(!ec. 6, 1ule 44*. 1ules of Criminal rocedure.2

S&GGES'E( ANS)ER*

0. 'o. %he certiEcation which is provided in !ec. , 1ule 440. 1ules

of Criminal rocedure, is not an indispensable part of the

information. (eople vs. :apura, 0 !C1A .2

=otion to (issmiss* Grounds !01">%

Co Batong, a %aipan, Eled a civil action for damages with the1egional %rial Court (1%C2 of araaHue City against 3ose endu<o,a news reporter of the hilippine %imes, a newspaper of generalcirculation printed and published in araaHue City. %he complaintalleged, among others, that 3ose endu<o wrote malicious anddefamatory imputations against Co Batong/ that Co BatongMsbusiness address is in )a<ati City/ and that the libelous article was

Erst printed and published in araaHue City. %he complaint prayedthat 3ose endu<o be held liable to pay 0,., as moraldamages/ 4,., as e@emplary damages/ and ,., asattorneyMs fees. 3ose endu<o Eled a )otion to Dismiss on thefollowing groundsN 4. %he 1%C is without jurisdiction because under the %otality 1ule,the claim for damages in the amount of 6,. fall within thee@clusive original jurisdiction of the )etropolitan %rial Court()e%C2 of araaHue City.

0. %he venue is improperly laid because what the complaint allegedis Co BatongMs business address and not his residence address.

Are the grounds invo<ed in the )otion to Dismiss proper> !>?%

S&GGES'E( ANS)ER*

'o, the grounds invo<ed in the motion to dismiss improper.

%he invocation of the %otality 1ule is misplaced. nder Art.6 of the 1evised enal Code, jurisdiction over a civil action fordamages in case of libel is with the Court of $irst &nstance, now the

1egional %rial Court. ('ocum v. %an, 06 !eptember 02. %he said

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1(%






Described as Xres judicata in prison grey,Y the right againstdouble jeopardy prohibits the prosecution of a person for a crimeof which he has been previously acHuitted or convicted. %hepurpose is to set the eects of the Erst prosecution forever atrest, assuring the accused thathe shall not thereafter be subjected to the danger and an@ietyof a second charge against him for the same oense (3oel B.Caes vs. &ntermediate Appellate Court, 'ovember , 4++2.

Jurisdiction- Com+le Crimes !01"6%

#n his way to the ' Academy in !ilang, Cavite on board apublic transport bus as a passenger, olice &nspector )asigasig

of the 9alenJuela olice witnessed an on-going armed robberywhile the bus was traversing )a<ati. is alertness and trainingenabled him to foilthe robbery and to subdue the malefactor. e disarmed thefelon and while fris<inghim, discovered another handgun tuc<ed in his waist. e seiJedboth handguns and themalefactor was later charged with the separate crimes of robbery and illegal possession of Erearm.

A2 =here should olice &nspector )asigasig bring the felon for

criminal processing> %o !ilang, Cavite where he is bound/ to)a<ati where the bus actually was when the felonies too< place/ or bac< to 9alenJuela where he is stationed> =hichcourt has jurisdiction over the criminal cases> (672

S&GGES'E( ANS)ER*

olice &nspector )asigasig should bring the felon to the nearestpolice station or jail in )a<ati City where the bus actually waswhen the felonies too< place. &n cases of warrantless arrest,

the person arrested without a warrant shall be forthwithdelivered to the nearest police station or jail and shall beproceeded against in accordance with section * of 1ule 44(!ection 446, 1ules of Criminal rocedure2. ConseHuently, thecriminal case for robbery and illegal possession of Erearms can beEled in 1egional %rial Court of )a<ati City or on any of theplaces of departure or arrival of the bus.

(B2 )ay the charges of robbery and illegal possession of Erearm be Eled directly by theinvestigating prosecutor with the appropriate court without a

preliminary investigation> (72

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1(&




S&GGES'E( ANS)ER*

Qes. !ince the oender was arrested in Gagrante delictowithout a warrant of arrest, an inHuest proceeding should beconducted and thereafter a case may be Eled in court evenwithout the reHuisite preliminary investigation.

nder !ection , 1ule 440, 1ules of Criminal rocedure, whena person is lawfully arrested without a warrant involving anoense which reHuires a preliminary investigation, thecomplaint or information may be Eled by a prosecutor withouta need of such investigation provided an inHuest has beenconducted in accordance with e@isting rules.

3urisdiction/ 1einvestigation/ Arrest (02

3ose, Alberto and 1omeo were charged with murder. ponEling the information, the 1%C judge issued warrants for theirarrest. :earning of the issuance of the warrants, the three accused jointly Eled a motion for reinvestigation and for the recall of thewarrants of arrest. #n the date set for hearing of their motion,none of accused showed up in court for fear of being arrested.%he 1%C judge denied their motion because the 1%C did notacHuire jurisdiction over the persons of the movants. Did the

1%C rule correctly>

S&GGES'E( ANS)ER*

%he 1%C was not entirely correct in stating that it had no jurisdiction over the persons of the accused. By Eling motionsand see<ing airmative reliefs from the court, the accused voluntarily submitted themselves to the jurisdiction of the court.owever, the 1%C correctly denied the motion forreinvestigation. Before an accused can move for reinvestigation

and the recall of his warrant of arrest, he must Erst surrenderhis person to the court ()iranda, et al. vs. %uliao, ;.1. 'o.4*6, 64 )arch 02.

Jurisdiction- Com+le Crimes !0116%

&n comple@ crimes, how is the jurisdiction of a court determined>

7

S&GGES'E( ANS)ER*

&n a comple@ crime, jurisdiction over the whole comple@ crime mustbe lodged with the trial court having jurisdiction to impose the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1('




ma@imum and most serious penalty imposable on an oense

forming part of the comple@ crime. (Cuyos v. ;arcia, 4 !C1A 60

54+82.

Jurisdiction- /inality o a Judgment !011<%

)ariano was convicted by the 1%C for raping 9ictoria and meted

the penalty of reclusion perpetua. =hile serving sentence at the

'ational enitentiary, )ariano and 9ictoria were married. )ariano

Eled a motion in said court for his release from the penitentiary on

his claim that under 1epublic Act 'o. 66, his marriage to

9ictoria e@tinguished the criminal action against him for rape, as

well as the penalty imposed on him. owever, the court denied themotion on the ground that it had lost jurisdiction over the case

after its decision had become Enal and e@ecutory. (*72

a2 &s the Eling of the court correct> "@plain.

S&GGES'E( ANS)ER*

'o. %he court can never lose jurisdiction so long as its decision has

not yet been fully implemented and satisEed. $inality of a judgment

cannot operate to divest a court of its jurisdiction. %he court retains

an interest in seeing the proper e@ecution and implementation of

its judgments, and to that e@tent, may issue such orders necessary

and appropriate for these purposes. ("chegaray v. !ecretary of

3ustice, ;.1. 'o. 460, 3anuary 4+, 4+++2

b2 =hat remedyFremedies should the counsel of )ariano ta<e to

secure his proper and most e@peditious release from the 'ational

enitentiary> "@plain.

S&GGES'E( ANS)ER*

%o secure the proper and most e@peditious release of )ariano from

the 'ational enitentiary, his counsel should EleN (a2 a petition for

habeas corpus for the illegal conEnement of )ariano (1ule 402, or

(b2 a motion in the court which convicted him, to nullify the

e@ecution of his sentence or the order of his commitment on the

ground that a supervening development had occurred ()elo v.

eople, ;.1. 'o. :-6, )arch 00, 4+2 despite the Enality of the

judgment.

Parties- Prosecution o 2@enses !0111%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1(!




Qour friend QQ, an orphan, 4 years old, see<s your legal advice.

!he tells you that OO, her uncle, subjected her to acts of

lasciviousness/ that when she told her grandparents, they told herto just <eep Huiet and not to Ele charges against OO, their son.

$eeling very much aggrieved, she as<s you how her uncle OO can

be made to answer for his crime. a2 =hat would your advice be>

"@plain. (672 b2 !uppose the crime committed against QQ by her

uncle OO is rape, witnessed by your mutual friend KK. But this time,

QQ was prevailed upon by her grandparents not to Ele charges. KK

as<s you if she can initiate the complaint against OO. =ould your

answer be the same> "@plain. (072.

S&GGES'E( ANS)ER*

(a2 & would advise the minor, an orphan of 4 years of age, to Ele

the complaint herself independently of her grandparents, because

she is not incompetent or incapable to doing so upon grounds other

than her minority. (!ec. , 1ule 44, 1ules of Criminal rocedure.2

(b2 !ince rape is now classiEed as a Crime Against ersons under

the Anti-1ape :aw of 4++* (1A 662, & would advise KK to initiate

the complaint against OO.

Plea o Guilty- to a Lesser 2@ense !0110%

D was charged with theft of an article worth p4,.. pon

being arraigned, he pleaded not guilty to the oense charged.

%hereafter, before trial commenced, he as<ed the court to allow

him to change his plea of not guilty to a plea of guilt but only to

estafa involving ,.. Can the court allow D to change his

plea> =hy> (072

S&GGES'E( ANS)ER*

'o, because a plea of guilty to a lesser oense may be allowed if

the lesser oense is necessarily included in the oense charged.

(1ule 44, sec. 02. "stafa involving ,. is not necessarily

included in theft of an article worth 4,.

Pre7udicial uestion !"###%

=hat is a prejudicial Huestion> (072

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1((




A prejudicial Huestion is an issue involved in a civil action which is

similar or intimately related to the issue raised in the criminal

action, the resolution of which determines whether or not thecriminal action may proceed. (!ec. of 1ule 444.2

AN2';ER ANS)ER*

A prejudicial Huestion is one based on a fact distinct and separate

from the crime but so intimately connected with it that it

determines the guilt or innocence of the accused.

Pre7udicial uestion !0111%

CK is charged with estafa in court for failure to remit to )) sumsof money collected by him (CK2 for )) in payment for goods

purchased from )), by depositing the amounts in his (CKMs2

personal ban< account. CK Eles a motion to suspend proceedings

pending resolution of a civil case earlier Eled in court by CK against

)) for accounting and damages involving the amounts subject of

the criminal case. As the prosecutor in the criminal case, brieGy

discuss your grounds in support of your opposition to the motion to

suspend proceedings. (72.

S&GGES'E( ANS)ER*

As the prosecutor, & will argue that the motion to suspend is not in

order for the following reasonsN

4 %he civil case Eled by CK against )) for accounting and

damages does not involve an issue similar to or intimately related

to the issue of estafa raised in the criminal action.

0 %he resolution of the issue in the civil case for accounting will

not determine whether or not the criminal action for estafa mayproceed. (!ec. , 1ule 444, 1ules of Criminal rocedure.2

Pre7udicial uestion !01">%

Solomon and +ai# got married in 0. &n04, Solomon contracted a second marriage with o2e.=hen +ai# found out about the second marriageof Solomon and o2e, she Eled a criminal case for bigamy beforethe 1egional %rial Court ( R0C2 of )anila sometime in 044.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO 1(






void, there would be no double sale and A would be innocent of the

oense of estafa. (1as v. 1asul, 4 !C1A 40.2

Pre'rial Agreement !011>%

)ayor %) was charged of malversation through falsiEcation of

oicial documents. Assisted by Atty. # as counsel de parte during

pre-trial, he signed together with #mbudsman rosecutor %; a

L3oint !tipulation of $acts and Documents,L which was presented to

the !andiganbayan. Before the court could issue a pre-trial order

but after some delay caused by Atty. #, he was substituted by Atty.

P1 as defense counsel. Atty. P1 forthwith Eled a motion to

withdraw the L3oint !tipulation,L alleging that it is prejudicial to theaccused because it contains, inter

byN sirdondeeUgmail.com age of alia, the statement that the

LDefense admitted all the documentary evidence of the

rosecution,L thus leaving the accused little or no room to defend

himself, and violating his right against self-incrimination. !hould

the court grant or deny P1Rs motion> 1eason. (72

S&GGES'E( ANS)ER*

%he court should deny P1Rs motion. &f in the preStrial agreement

signed by the accused and his counsel, the accused admits the

documentary evidence of the prosecution, it does not violate his

right against self-incrimination. is lawyer cannot Ele a motion to

withdraw. A pre-trial order is not needed. (Bayas v. !andiganbayan,

6+4 !C1A 4(00\2. %he admission of such documentary

evidence is allowed by the rule. (!ec. 0 of 1ule 44/ eople v.

ernandeJ, 0 !C1A 0 54++82.

Pre'rial- Criminal Case vs. Civil Case !"##$%

;ive three distinctions between a pre-trial in a criminal case and a

pre-trial in a civil case.

S&GGES'E( ANS)ER*

%hree distinctions between a pre-trial in a criminal case and a pre-

trial in a civil case are as followsN

4. %he pre-trial in a criminal case is conducted only Lwhere the

accused and counsel agreeL (1ule 44, !ec. 42N while the pre-trial





in a civil case is mandatory. (!ec. 4 of former 1ule 0/ !ec, 4 of new

1ule 42.

0. %he pre-trial in a criminal case does not consider the

possibility of a compromise, which is one important aspect of the

pre-trial in a civil case. (!ec. 4 of former 1ule 0/ !ec. 0 of new

1ule 42.

6. &n a criminal case, a pre-trial agreement is reHuired to be

reduced to writing and signed by the accused and his counsel (!ee/

1ule 44, !ec. 2/ while in a civil case, the agreement may be

contained in the pre-trial order. (!ec. of former 1ule 0/ !ee * of

new 1ule *2.

'rial- Remedies !01"6%

At the ublic AttorneyRs #ice station in %aguig where youare assigned, your wor< reHuires you to act as public defenderat the local 1egional %rial Court and to handle cases involvingindigents. (A2 &n one criminal action for HualiEed theft where youare the defense attorney, you learned that the woman accusedhas been in detention for si@ months, yet she has not been to acourtroom nor seen a judge. =hat remedy would you underta<e

toaddress the situation and what forum would you use to invo<ethis relief> (672

S&GGES'E( ANS)ER*

!ection *, 1ule 44+ provides, if the public attorney assignedto defend a person charged with a crime <nows that the latteris preventively detained, either because he is charged with abailable crime but has no means to post bail, or, is chargedwith a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do thefollowingN

(a2 !hall promptly underta<e to obtain the presence of theprisoner for trial or cause a notice to be served on the personhaving custody of the prisoner reHuiring such person to soadvise the prisoner of his right to demand trial. (b2 pon receiptof that notice, the custodian of the prisoner shall promptlyadvise the prisoner of the charge and of his right to demandtrial. &f at any time thereafter the prisoner informs his

custodian that he demands such trial, the latter shall causenotice to that eect to be sent promptly to the public attorney.





K@@ )oreover, !ection 4 (e2, 1ule 44 provides, when theaccused is underpreventive detention, his case shall be raIed and its recordstransmitted to the judge to whom the case was raIed withinthe three (62 days from the Eling of the information orcomplaint. %he accused shall be arraigned within ten (42 daysfrom the date of the raIe. %he pre-trial conference of his caseshall be held within ten (42 days after the arraignment.

#n the other hand, if the accused is not under preventivedetention, the arraignment shall be held within thirty (62 daysfrom the date the court acHuires jurisdiction over the personof the accused. (!ection 4 (g2, 1ule 442. !ince the accused has

not been brought for arraignment within the limit reHuired in theaforementioned 1ule, the &nformation may be dismissed uponmotion of the accused invo<ing his right to speedy trial (!ection+, 1ule 44+( or to a speedy disposition of cases (!ection 4, Article &&&, 4+* Constitution2.

AL'ERNA'I:E ANS)ER* A etition for )andamus is also feasible. &n eople vs. :umanlaw,;.1. 'o. 4+6, $ebruary 46, 0, the !upreme Court heldthat Xa writ of mandamus may be issued to control the

e@ercise of discretion when, in the performance of duty, thereis undue delay that can be characteriJed as a grave abuse of discretion resulting in manifest injustice. Due to the unwarranteddelays in the conduct of the arraignment of petitioner, he hasindeed the right to demand Z through a writ of mandamus Ze@peditious action from all oicial tas<ed with theadministration of justice. %hus, he may not only demand thathis arraignment be held but, ultimately, that the informationagainst him be dismissed on the ground of the violation of hisright to speedy trial.Y "rgo, a writ of mandamus is available to

the accused to compel the dismissal of the case.

AL'ERNA'I:E ANS)ER*

%he appropriate remedy of the detained accused is to applyfor bail since HualiEed theft is bailable, and she is in the1egional %rial Court (!ection , 1ule 44 of the 1ules of Criminalrocedure2. 5'oteN unless the aggregate value of the propertystolen is , and the above she will not be entitled to bailas a matter of right, because the penalty for the oense isreclusion perpetua pursuant to )emorandum #rder 'o. 44*8.





(B2 &n another case, also for HualiEed theft, the detained young domestic helper has been brought to court Eve times inthe last si@ months, but the prosecution has yet to commencethe presentation of its evidence. Qou End that the reason forthis is the continued absence of the employer-complainant whois wor<ing overseas. =hat remedy is appropriate and beforewhich forum would you invo<e this relief> (672

S&GGES'E( ANS)ER* & will Ele a motion to dismiss the information in the courtwhere the case is pending on the ground of denial of the accusedright to speedy trial (!ection +, 1ule 44+/ %an vs. eople, ;.1.

'o. 4*66*, April 04, 0+, %hird Division, Chico-'aJario, 3.2.this remedy can beinvo<ed, at any time, before trial and if granted will result toan acHuittal. !ince the accused has been brought to Court Evetimes and in each instance it was postponed, it is clear thather right to a !peedy %rial has been violated. )oreover, & mayreHuest the court toissue !ubpoena Duces %ecum and Ad %estiEcandum to thewitness, so in case he disobeys same, he may be cited incontempt. & may also Ele a motion to order the witnessemployer-complainant to post bail to secure his appearance in

court. (!ection 4, 1ule 44+2.

AL'ERNA'I:E ANS)ER*

& will move for the dismissal of the case for failure toprosecute. %he grant of the motion will be with prejudice unlessthe court says otherwise. %he )otion will be Eled with the Courtwhere the action is pending.

C2 !till in another case, this time for illegal possession of

dangerous drugs, the prosecution has rested but you saw fromthe records that the illegal substance allegedly involved has notbeen identiEed by any of the prosecution witnesses nor has it beenthe subject of any stipulation.

!hould you now proceed posthaste to the presentation of defense evidence or consider some other remedy> "@plainremedial steps you propose to underta<e. (672

S&GGES'E( ANS)ER*

'o. & will not proceed with the presentation of defenseevidence. & will Erst Ele a motion for leave to Ele demurrer to





evidence within Eve (2 days from the time the prosecution hasrested its case. &f the )otion is granted, & will Ele a demurrerto evidence within a non-e@tendible period of ten (42 days fromnotice on the ground of insuiciency of evidence. &n thealternative, & may immediately Ele a demurrer to evidencewithout leave of court (!ection 06, 1ule 44+, 1ules of Criminalrocedure2.&n eople vs. De ;uJman, ;.1. 'o. 4+, )arch 0, 04,the !upreme Court held that in a prosecution for violation of the Dangerous Drugs Act, the e@istence of the dangerous drugs isa condition sine Hua non for conviction. %he dangerous drug isthe very corpus delicti of the crime. !imilarly, in eople vs.!itco, ;.1. 'o. 4*00, )ay 4, 04, the igh Court held

that in prosecutions involving narcotics and other illegalsubstances, the substance itself constitutes part of the corpusdelicti of the oense and the fact of its e@istence is vital tosustain a judgment of conviction beyond reasonable doubt. (D2&n one other case, an indigent mother see<s assistance for her4-year old son who has been arrested and detained formalicious mischief. =ould an application for bail be theappropriate remedy or is there another remedy available> 3ustify your chosen remedy and outline the appropriate steps tota<e. (672

S&GGES'E( ANS)ER*

Qes. An application for bail is an appropriate remedy to secureprovisional liberty of the 4-year old boy. nder the 1ules, bail isa matter of right before or even after conviction before the)etropolitan %rial Court which has jurisdiction over the crimeof maliciousmischief. (!ection , 1ule 44 of the 1ules of Criminalrocedure2.

AL'ERNA'I:E ANS)ER* nder 1.A. +6 or otherwise <nown as the 3uvenile 3usticeand =elfare Act of 0 as amended by 1.A. 46, a child inconGict with the law has the right to bail and ecogniJance orto be transferred to a youth detention homeFyouth rehabilitationcenter. %husN

=here a child is detained, the court shall orderN(a2 the release of the minor on recogniJance to hisFherparents and other suitable person/

(b2 the release of the child in conGict with the law on bail/ or





(c2 the transfer of the minor to a youth detention homeFyouthrehabilitation center. %he court shall not order the detention of a child in a jail pending trial or hearing of his case. %he writ of habeas corpus shall e@tend to all cases of illegal conEnement ordetention by which any person is deprived of his liberty, or bywhich the rightful custody of any person is withheld from theperson entitled thereto (&' %" )A%%"1 #$ %" "%&%&#'#$ AB"A! C#1! #$ "$")&A ". 1#D1&;"O, Eled by"D;A1D# ". 9":O vs. :&!A 1. 9&::A'"9A and%"1"!&%A 1. AB"::#, ;.1. 'o. 4+0, 3anuary 0+, 0,C#1#'A, 3.2.

!ince minors Efteen (42 years of age and under are not

criminally responsible,the child may not be detained to answer for the alleged oense.%he arresting authority has the duty to immediately release thechild to the custody of his parents or guardians or in theirabsence to the child’s nearest relative (!ection 0, republic Act+62.$ollowing the hierarchy of courts, the etition must be Eled inthe 1egional trial Court having jurisdiction over the placewhere the child is being detained. 5'oteN 1.A. +6 is notcovered by the 046 Bar "@amination !yllabus for 1emediallaw8.

'rial- Reverse 'rial !011$%

'o.9. (b2 =hat is reverse trial and when may it be resorted to>"@plain brieGy. (72

S&GGES'E( ANS)ER*

A reverse trial is one where the defendant or the accusedpresent evidence ahead of the plainti or prosecution and thelatter is to present evidence by way of rebuttal to theformer’s evidence. %his <ind of trial may ta<e place in a civilcase when the defendant’s Answer pleads new matters by wayof airmative defense, to defeat or evade liability forplainti ’s claim which is not denied but controverted.

&n a criminal case, a reverse trial may ta<e place when theaccused <nown to the trial court, on arraignment, that headduce airmative defense of a justifying or e@emptingcircumstances and thus impliedly admitting the act imputed to

him. %he trial court may then reHuire the accused to presentevidence Erst, proving the reHuisites of the justifying or





e@empting circumstance he is invo<ing, and the prosecution topresent rebuttal evidence controverting the same.

'rial- S+eedy 'rial !011$%

: was charged with illegal possession of shabu before the 1%C. Although bail was allowable under his indictment, he could notaord to post bail, and so he remained in detention at theCity 3ail. $or various reasons ranging from the promotion of the residing 3udge, to the absence of the trial prosecutor,and to the lac< of notice to the City 3ail =arden, thearraignment of : was postpones nineteen times over a periodof two years. %wice during that period, :Ms counsel Eled

motions to dismiss, invo<ing the right of the accused tospeedy trial. Both motions were denied by the 1%C. Can : Ele apetition for mandamus. 1eason brieGy.

S&GGES'E( ANS)ER*

Qes, : can Ele a petition for mandamus to enforce hisconstitutional right to a speedy trial which was capriciouslydenied to him. %here is absolutely no justiEcation for postponingan arraignment of the accused nineteen (4+2 times and over aperiod of two (02 years. %he numerous, unreasonable

postponements of the arraignment demonstrate an abusivee@ercise of discretion (:umanlaw v. eralta, 0 !C1A 6+5082. Arraignment of an accused would not ta<e thirtyminutes of the precious time of the court, as against thepreventive imprisonment and deprivation of liberty of theaccused just because he does not have the means to post bailalthough the crime charged is bailable. %he right to a speedy trialis guaranteed by the Constitution to every citiJen accused of acrime, more so when is under preventive imprisonment. :, inthe given case, was merely invo<ing his constitutional rightwhen a motion to dismiss the case was twice Eled by hiscounsel. %he 1%C is virtually enjoined by the fundamental law torespect such right/ hence a duty. aving refused or neglectedto discharge the duty enjoined by law whereas there is noappeal nor any plain, speedy, and adeHuate remedy in theordinary course of law, the remedy of mandamus may be availedof.

'rial- 'rial in Absentia !01"1%







'o, because a case cannot be provisionally dismissed e@cept upon

the e@press consent of the accused and with notice to the oended

party. (1ule 44*, sec. 2.

Remedies- :oid Judgment !011>%

AK was charged before the QQ 1%C with theft of jewelry valued at

0., punishable with imprisonment of up to 4 years of prision

mayor under the 1evised enal Code. After trial, he was convicted

of the oense charged, notwithstanding that the material facts duly

established during the trial showed that the oense committed was

estafa, punishable by imprisonment of up to eight years of prision

mayor under the said Code. 'o appeal having been ta<en

therefrom, said judgment of conviction became Enal. &s the

judgment of conviction valid> &s the said judgment reviewable thru

a special civil action for certiorari> 1eason. (72

S&GGES'E( ANS)ER*

Qes, the judgment of conviction for theft upon an information for

theft is valid because the court had jurisdiction to render judgment.

owever, the judgment was grossly and blatantly erroneous. %he

variance between the evidence and the judgment of conviction is

substantial since the evidence is one for estafa while the judgment

is one for theft. %he elements of the two crimes are not the same.

(:auro !antos v. eople, 44 !C1A *2. #ne oense does not

necessarily include or is included in the other. (!ec. of 1ule 402.

%he judgment of conviction is reviewable by certiorari even if no

appeal had been ta<en, because the judge committed a grave abuse

of discretion tantamount to lac< or e@cess of his jurisdiction inconvicting the accused of theft and in violating due process and his

right to be informed of the nature and the cause of the accusation

against him, which ma<e the judgment void. =ith the mista<e in

charging the proper oense, the judge should have directed the

Eling of the proper information and thereafter dismissed the

original information. (!ec. 4+ of 1ule 44+2.

Searc4 )arrant- =otion to uas4 !011<%

olice operatives of the =estern olice District, hilippine 'ationalolice, applied for a search warrant in the 1%C for the search of the





house of 3uan !antos and the seiJure of an undetermined amount of

shabu. %he team arrived at the house of !antos but failed to End

him there. &nstead, the team found 1oberto Co. %he teamconducted a search in the house of !antos in the presence of

1oberto Co and barangay oicials and found ten (42 grams of

shabu. 1oberto Co was charged in court with illegal possession of

ten grams of shabu. Before his arraignment, 1oberto Co Eled a

motion to Huash the warrant on the following grounds (a2 it was not

the accused named in the search warrant/ and (b2 the warrant does

not describe the article to be seiJed with suicient particularity.

1esolve the motion with reasons. (72

S&GGES'E( ANS)ER*

%he motion to Huash should be denied. %he name of the person in

the search warrant is not important. &t is not even necessary that a

particular person be implicated ()antaring v. 1oman, A.). 'o. 1%3-

+6-+, $ebruary 0, 4++2, so long as the search is conducted in

the place where the search warrant will be served. )oreover,

describing the shabu in an undetermined amount is suiciently

particular. (eople v. %ee, ;.1.'os. 4-*, 3anuary 0, 062

'rial- 'rial in Absentia- Automatic Revie8 o Conviction

!"##,%

4. =hat are the reHuisites of a trial in absentia> 5078

0. &f an accused who was sentenced to death escapes, is there

still a legal necessity for the !upreme Court to review the decision

of conviction> 5678

S&GGES'E( ANS)ER*

4. %he reHuisites of trial in absentia areN (a2 the accused has

already been arraigned/ (b2 he has been duly notiEed of the trial/

and (c2 his failure to appear is unjustiEable. (!ec. 4 508, Article &&&.

Constitution/ arada vs. 9eneracion, 0+ !C1A 6*4 54++*8.2

0. Qes, there is still a legal necessity for the !upreme Court (as of

0 the Court of Appeals has the jurisdiction to such review2 to

review the decision of conviction sentencing the accused to death,

because he is entitled to an automatic review of the death

sentence. (!ees. 65e8 and 4, 1ule 400, 1ules of Criminalrocedure/ eople vs. "spargas, 0 !C1A 6+.2

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "##




A++eal- Remedy !01">%

u!on$, -ala#on$, and abon$ were charged with murder. Aftertrial, the court announced that the case was considered submittedfor decision. !ubseHuently, the Cler< of Court issued the notices of promulgation of judgment which were duly received. #npromulgation day, u!on$ and his lawyer appeared. %he lawyersof -ala#on$ and abon$ appeared but without their clients andfailed to satisfactorily e@plain their absence when Hueried by thecourt. %hus, the judge ordered the Cler< of Court to proceed withthe reading of the judgment convicting all the accused. =ithrespect to -ala#on$ and abon$, the judge ordered that the judgment be entered in the criminal doc<et and copies be furnished

their lawyers. %he lawyers of u!on$, -ala#on$, and abon$ Eledwithin the reglementary period a 3oint )otion for 1econsideration.%he court favorably granted the motion of u!on$ downgrading hisconviction from murder to homicide but denied the motion asregards -ala#on$ and abon$. !>?%

!A% =as the court correct in ta<ing cogniJance of the 3oint )otionfor 1econsideration>

S&GGES'E( ANS)ER*

'o, the court was not correct in ta<ing cogniJance of the 3oint )otion for 1econsideration insofaras -ala#on$ and abon$ were concerned.

nder !ection 1ule 40, if the judgment was for conviction andthe failure of the accused to appear was without justiEable cause,he shall lose the remedies available under the 1ules of Court andthe court shall order his arrest. %he accused may regain theremedies only if he surrenders and Eles a motion for leave to availof the remedies under the 1ules of Court.

ere the failure of -ala#on$ and abon$ to appear was without justiEable cause as even their lawyers were not aware of the reasonfor their absence. ence they lost their remedies under the 1ules.!ince -ala#on$ and abon$ did not surrender and Ele a motion forleave to avail of remedies, it was incorrect for the trial court to ta<ecogniJance of the joint motion for reconsideration insofaras -ala#on$ and abon$ were concerned. %he trial court shouldinstead have ordered their arrest. (eople v. De ;rano, 3une 0+,eralta, 3.2.

#n the other hand, it was correct for the trial court to ta<e

cogniJance of the joint motion for reconsideration insofar

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#1




as u!on$ was concerned since he and his lawyer were presentduring the promulgation.

!B% Can -ala#on$ and abon$ appeal their conviction incase u!on$ accepts his conviction for homicide> S&GGES'E( ANS)ER*

'o, -ala#on$ and abon$ cannot appeal their conviction incase u!on$ accepts his conviction for homicide.

!ince -ala#on$ and abon$ failed to appear during thepromulgation of the conviction without justiEable cause, they lostthe remedies under the 1ules of Court including the remedy of anappeal.

:enue !"##$%

=here is the proper venue for the Eling of an information in the

following cases> a2 %he theft of a car in asig City which was

brought to #bando, Bulacan, where it was cannibaliJed.

b2 %he theft by K, a bill collector of ABC Company, with main

oices in )a<ati City, of his collections from customers in %agaytay

City. &n the contract of employment, K was detailed to the Calambabranch oice, :aguna, where he was to turn in his collections.

c2 %he malversation of public funds by a hilippine consul

detailed in the hilippine "mbassy in :ondon.

S&GGES'E( ANS)ER*

(a2 %he proper venue is in asig City where the theft of the car was

committed, not in #bando where it was cannibaliJed. %heft is not a

continuing oense. (eople v )ercado, hil 2.(b2 &f the crime charged is theft, the venue is in Calamba where he

did not turn in his collections. &f the crime of K is estafa, the

essential ingredients of the oense too< place in %agaytay City

where he received his collections, in Calamba where he should

have turned in his collections, and in )a<ati City where the ABC

Company was based. %he information may therefore be Eled in

%agaytay City or Calamba or )a<ati which have concurrent

territorial 3urisdiction. (Catingub vs. Court of Appeals, 404 !C1A

42.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#"




(c2 %he proper court is the !andiganbayan which has jurisdiction

over crimes committed by a consul or higher oicial in the

diplomatic service. (!ec. (c2. D 4, as amended by 1A. 'o.*+*2. %he !andiganbayan is a national court. ('uneJ v.

!andiganbayan, 444 !C1A 66 54+08. &t has only one venue at

present, which is in )etro )anila, until 1A. 'o. *+*, providing for

two other branches in Cebu and in Cagayan de #ro, is

implemented.

AL'ERNA'I:E ANS)ERS*

(b2 %he information may be Eled either in Calamba or in )a<ati

City, not in %agaytay City where no oense had as yet beencommitted,

(c2 Assuming that the !andiganbayan has no jurisdiction, the

proper venue is the Erst 1%C in which the charge is Eled (!ec.

4(d2. 1ule 442.

:I. E:I(ENCE

Admissibility !"##,%

%he barangay captain reported to the police that K was illegally

<eeping in his house in the barangay an Armalite )4 riGe. #n the

strength of that information, the police conducted a search of the

house of K and indeed found said riGe. %he police raiders seiJed the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#%




riGe and brought K to the police station. During the investigation,

he voluntarily signed a !worn !tatement that he was possessing

said riGe without license or authority to possess, and a =aiver of 1ight to Counsel. During the trial of K for illegal possession of

Erearm, the prosecution submitted in evidence the riGe. !worn

!tatement and =aiver of 1ight to Counsel, individually rule on the

admissibility in evidence of theN

4. 1iGe/ 5078

0. !worn !tatement/ and 5074

6. =aiver of 1ight to Counsel of K. 5478

S&GGES'E( ANS)ER*

4. %he riGe is not admissible in evidence because it was seiJed

without a proper search warrant. A warrantless search is not

justiEed. %here was time to secure a search warrant. (eople us.

"ncinada ;.1. 'o. 44*0, #ctober 0. 4++* and other cases2

0. %he sworn statement is not admissible in evidence because it

was ta<en without informing him of his custodial rights and without

the assistance of counsel which should be independent andcompetent and preferably of the choice of the accused. (eople us.

3anuario, 0* !C1A .2

6. %he waiver of his right to counsel is not admissible because it

was made without the assistance of counsel of his choice. (eople

us. ;omeJ, 0* !C1A 66.2

Admissibility !0110%

Acting on a tip by an informant, police oicers stopped a car beingdriven by D and ordered him to open the trun<. %he oicers found a

bag containing several <ilos of cocaine. %hey seiJed the car and the

cocaine as evidence and placed D under arrest. =ithout advising

him of his right to remain silent and to have the assistance of an

attorney, they Huestioned him regarding the cocaine. &n reply, D

said, X& donMt <now anything about it. &t isnMt even my car.Y D was

charged with illegal possession of cocaine, a prohibited drug. pon

motion of D, the court suppressed the use of cocaine as evidence

and dismissed the charges against him. D commenced proceedings

against the police for the recovery of his car. &n his direct

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#$




e@amination, D testiEed that he owned the car but had registered it

in the name of a friend for convenience. #n cross-e@amination, the

attorney representing the police as<ed, XAfter your arrest, did younot tell the arresting oicers that it wasnMt your car>Y &f you were

DMs attorney, would you object to the Huestion> =hy> (72

S&GGES'E( ANS)ER*

Qes, because his admission made when he was Huestioned after he

was placed under arrest was in violation of his constitutional right

to be informed of his right to remain silent and to have competent

and independent counsel of his own choice. ence, it is

inadmissible in evidence. 5Constitution, Art. &&&, sec. 40/ 1.A. *6(4++02, sec, 0/ eople v. )ahinay, 60 !C1A 8.

AL'ERNA'I:E ANS)ER*

Qes, because the Huestion did not lay the predicate to justify the

cross-e@amination Huestion.

Admissibility- P4otoco+ies !0111%

&f the photocopies of oicial receipts and photocopies of aidavits

were attached to the position paper submitted by plainti in anaction for unlawful detainer Eled with )unicipal %rial Court on

which basis the court rendered judgment in favor of plainti>

"@plain. (072

S&GGES'E( ANS)ER N

%he claim of defendant is valid, because although summary

procedure reHuires merely the submission of position papers, the

evidence submitted with the position paper must be admissible in

evidence. (!ec. + of the 1evised 1ule on !ummary rocedure2.hotocopies of oicial receipts and aidavits are not admissible

without proof of loss of the originals. (!ec. 6 of 1ule 462

Admissibility !011>%

!gt. ;1 of =D arrested two 'A suspects, )a@ and Bri@, both

aged 00, in the act of robbing a grocery in "rmita. As he

handcued them he noted a pistol tuc<ed in )a@Rs waist and a

dagger hidden under Bri@Rs shirt, which he promptly conEscated. At

the police investigation room, )a@ and Bri@ orally waived their

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#&




right to counsel and to remain silent. %hen under oath, they freely

answered Huestions as<ed by the police des< oicer. %hereafter

they signed their sworn statements before the police captain, alawyer. )a@ admitted his part in the robbery, his possession of a

pistol and his ownership of the pac<et of shabu found in his poc<et.

Bri@ admitted his role in the robbery and his possession of a

dagger. But they denied being 'A hit men. &n due course, proper

charges were Eled by the City rosecutor against both arrestees

before the )) 1%C. )ay the written statements signed and sworn

to by )a@ and Bri@ be admitted by the trial court as evidence for

the prosecution> 1eason. (72

S&GGES'E( ANS)ER*

'o. %he sworn written statements of )a@ and Bri@ may not be

admitted in evidence, because they were not assisted by counsel.

"ven if the police captain before whom they signed the statements

was a lawyer, he was not functioning as a lawyer, nor can he be

considered as an independent counsel. =aiver of the right to a

lawyer must be done in writing and in the presence of independent

counsel. (eople v. )ahinay, 60 !C1A 44+++8/ eople v.

"spiritu, 60 !C1A 66 54+++82. Admissibility- Admission o Guilt- ReDuirements !0113%

=hat are the reHuirements in order that an admission of guilt of an

accused during a custodial investigation be admitted in evidence>

(0.72

S&GGES'E( ANS)ER*

4 %he admission must be voluntary.

0 %he admission must be in writing.

6 %he admission must be made with the assistance of

competent, independent counsel.

. %he admission must be e@press (eople v. rinsipe, ;.1. 'o.

460, )ay 0, 002.

. &n case the accused waives his rights to silence and to

counsel, such waiver must be in writing, e@ecuted with the

assistance of competent, independent counsel.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#'




Admissibility- Admission o Guilt !011,%

%he mutilated cadaver of a woman was discovered near a cree<.Due to witnesses attesting that he was the last person seenwith the woman when she was still alive, Carlito was arrestedwithin Eve hours after the discovery of the cadaver and brought tothe police station. %he crime laboratory determined that thewoman had been raped. =hile in police custody, Carlito bro<edown in the presence of an assisting counsel orally confessedto the investigator that he had raped and <illed the woman,detailing the acts he had performed up to his dumping of thebody near the cree<. e was genuinely remorseful. During thetrial, the state presented the investigator to testify on the oral

confession of Carlito. &s the oral confession admissible inevidence of guilt> (72

S&GGES'E( ANS)ER*

%he declaration of the accused e@pressly ac<nowledging his guilt,in the presence of assisting counsel, may be given in evidenceagainst him and any person, otherwise competent to testify asa witness, who heard the confession is competent to testify as tothe substance to what he heard and understood it. =hat is crucialhere is that the accused was informed of his right to anattorney and that what he says may be used in evidenceagainst him. As the custodial confession was given in thepresence of an assisting counsel, Carlito is deemed fully awareof the conseHuences of his statements (eople v. !ilvano, ;1 'o. 4, 0+ April 002.

Admissibility- (ocument- Not raised in t4e Pleading !011>%

&n a complaint for a sum of money Eled before the )) 1%C,

plainti did not mention or even just hint at any demand for

payment made on defendant before commencing suit. During thetrial, plainti duly oered "@h. LAL in evidence for the stated

purpose of proving the ma<ing of e@trajudicial demand on

defendant to pay ., the subject of the suit. "@h. LAL was a

letter of demand for defendant to pay said sum of money within 4

days from receipt, addressed to and served on defendant some two

months before suit was begun. =ithout objection from defendant,

the court admitted "@h. LAL in evidence. =as the courtRs admission

of "@h. LAL in evidence erroneous or not> 1eason. (72

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#!




%he courtRs admission of "@h. LAL in evidence is not erroneous. &t

was admitted in evidence without objection on the part of the

defendant. &t should be treated as if it had been raised in thepleadings. %he complaint may be amended to conform to the

evidence, but if it is not so amended, it does not aect the result of

the trial on this issue. (!ec. of 1ule 42.

Admissibility- Electronic Evidence !0116%

a2 !tate the rule on the admissibility of an electronic evidence. b2

=hen is an electronic evidence regarded as being the eHuivalent of

an original document under the

Best Evidence Rule >?

S&GGES'E( ANS)ER*

(a2 =henever a rule of evidence refers to the term writing,

document, record, instrument, memorandum or any other form of

writing, such term shall be deemed to include an electronic

document as deEned in these 1ules. (!ec. 4 of 1ule 6, 1ules of

"lectronic "vidence eective August 4, 042.

An electronic document is admissible in evidence if it complies withthe rules on admissibility prescribed by the 1ules of Court and

related laws and is authenticated in the manner prescribed by

these 1ules. (!ec. 0 of 1ule 6, &d.2. %he authenticity of any private

electronic document must be proved by evidence that it had been

digitally signed and other appropriate security measures have been

applied. (!ec. 0 of 1ule , &d.2.

(b2 An electronic document shall be regarded as the eHuivalent of

an original document under the Best "vidence 1ule if it is a

printout or output readable by sight or other means, shown to

reGect the data accurately. (!ec. 4 of 1ule 2

Admissibility- 2b7ect or Real Evidence !"##>%

At the trial of Ace for violation of the Dangerous Drugs Act, the

prosecution oers in evidence a photocopy of the mar<ed 4.

bills used in the Xbuy-bustY operation. Ace objects to the

introduction of the photocopy on the ground that the Best "vidence

1ule prohibits the introduction of secondary evidence in lieu of the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#(




original. a2 &s the photocopy real (object2 evidence or documentary

evidence> b2 &s the photocopy admissible in evidence>

S&GGES'E( ANS)ER*

a2 %he photocopy of the mar<ed bills is real (object2 evidence not

documentary evidence, because the mar<ed bills are real evidence.

b2 Qes, the photocopy is admissible in evidence, because the best

evidence rule does not apply to object or real evidence.

Admissibility- 2b7ections !"##$%

=hat are the two <inds of objections> "@plain each brieGy. ;iven ane@ample of each.

S&GGES'E( ANS)ER*

%wo <inds of objections areN (42 the evidence being presented is not

relevant to the issue/ and (02 the evidence is incompetent or

e@cluded by the law or the rules, (!ec. 6, 1ule 462. An e@ample of

the Erst is when the prosecution oers as evidence the alleged

oer of an &nsurance company to pay for the damages suered by

the victim in a homicide case. (!ee 4++* 'o. 42.

"@amples of the second are evidence obtained in violation of the

Constitutional prohibition against unreasonable searches and

seiJures and confessions and admissions in violation of the rights of

a person under custodial &nvestigation.

AL'ERNA'I:E ANS)ERS*

42 !peciEc objectionsN "@ampleN parol evidence and best evidencerule

;eneral #bjectionsN "@ampleN continuing objections (!ec. 6* of

1ule 4602.

02 %he two <inds of objections areN (42 objection to a Huestion

propounded in the course of the oral e@amination of the witness

and (02 objection to an oer of evidence in writing. #bjection to a

Huestion propounded in the course of the oral e@amination of a

witness shall be made as soon as the grounds therefor shall becomereasonably apparent otherwise, it is waived. An oer of objection in

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "#




writing shall be made within three (62 days after notice of the oer,

unless a dierent period is allowed by the court. &n both instances

the grounds for objection must be speciEed. An e@ample of the Erstis when the witness is being cross-e@amined and the cross

e@amination is on a matter not relevant. An e@ample of the second

is that the evidence oered is not the best evidence.

Admissibility- 2@er to =arry- Circumstantial Evidence

!"##,%

A was accused of having raped K. 1ule on the admissibility of the

following pieces of evidenceN

4 an oer of A to marry K/ and (678

0 a pair of short pants allegedly left by A at the crime which the

court, over the objection of A, reHuired him to put on, and when he

did, it Et him well. 5078

!;;"!%"D A'!="1N

4. ARs oer to marry K is admissible in evidence as an &mplied

admission of guilt because rape cases are not allowed to be

compromised. (!ec. 0* of 1ule 46#/ eople vs. Domingo, 00 !C1A 4.2

0. %he pair of short pants, which Et the accused well, is

circumstantial evidence of his guilt, although standing alone it

cannot be the basis of conviction. %he accused cannot object to the

court reHuiring him to put the short pants on. &t is not part of his

right against self-incrimination because it is a mere physical act.

Admissibility- 2@er to Pay E+enses !"##$%

A, while driving his car, ran over B. A visited B at the hospital and

oered to pay for his hospitaliJation e@penses. After the Eling of

the criminal case against A for serious physical injuries through

rec<less imprudence. ARs insurance carrier oered to pay for the

injuries and damages suered by B. %he oer was rejected because

B considered the amount oered as inadeHuate. a2 &s the oer by A

to pay the hospitaliJation e@penses of B admissible in evidence> b2

&s the oer by ARs insurance carrier to pay for the injuries and

damages of B admissible in evidence>

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "1#






certiEcates of the parish priest are evidence only of the

administration of the sacrament of baptism and they do not prove

Eliation of the alleged collateral relatives of the deceased/ 02 entryin the family bible is hearsay/ 62 the certiEcation of the registrar on

non-availability of the records of birth does not prove EliationN 2 in

partition cases where Eliation to the deceased is in dispute, prior

and separate judicial declaration of heirship in a settlement of

estate proceedings is necessary/ and 2 there is need for

publication as real property is involved. As counsel for 3ocelyn and

her co-petitioners, argue against the objections of the spouses

Ceres so as to convince the court to allow the partition. Discuss

each of the Eve (2 arguments brieGy but completely. (472S&GGES'E( ANS)ER*

(42 %he baptismal certiEcate can show Eliation or prove pedigree. &t

is one of the other means allowed under the 1ules of Court and

special laws to show pedigree. (%rinidad v. Court of Appeals, 0+

!C1A 4 54++8/ eirs of &:gnacio Conti v. Court of Appeals, 6

!C1A 6 54++82.

(02 "ntries in the family bible may be received as evidence of

pedigree. (!ec. , 1ule 46, 1ules of Court2.

(62 %he certiEcation by the civil registrar of the non-availability of

records is needed to justify the presentation of secondary evidence,

which is the photocopy of the birth certiEcate of 3ocelyn. (eirs of

&gnacio Conti v. Court of Appeals, supra.2

(2 Declaration of heirship in a settlement proceeding is not

necessary. &t can be made in the ordinary action for partition

wherein the heirs are e@ercising the right pertaining to the

decedent, their predecessor-inSinterest, to as< for partition as co-owners (&d.2

(2 "ven if real property is involved, no publication is necessary,

because what is sought is the mere segregation of :indaMs share in

the property. (!ec. 4 of 1ule +/ &d.2

Admissibility- Rules o Evidence !"##$%

;ive the reasons underlying the adoption of the following rules of

evidenceN

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "1"






endeavor to persuade the litigants in a civil case to agree upon

some fair compromise. (Art. 00+, Civil Code2. During pre-trial,

courts should direct the parties to consider the possibility of anamicable settlement. (!ec. 45a8 of former 1ule 0N !ec. 0 5a8 of new

1ule 42.

Admissibility- (eat4 o Adverse Party !011$%

(a2 %he surviving parties rule bars )aria from testifying for theclaimant as to what the deceased 3ose had said to her, in a claimEled by edro against the estate of 3ose. (672

S&GGES'E( ANS)ER*

$alse. %he said rule bars only parties-plainti and theirassignors, or persons prosecuting a claim against the estate of adeceased/ it does not cover )aria who is a mere witness.$urthermore, the disHualiEcation is in respect of any matter of fact occurring before the deathof said deceased (!ec. 06, 1ule 46, 1ules of Court, 1aJon v.&ntermediate Appellate Court, 0* !C1A 06 54++082. &t isedro who Eled the claim against the estate of 3ose.

Admissibility- (NA Evidence !01"1%

'o.&K. &n a prosecution for rape, the defense relied onDeo@yribonucleic Acid (D'A2 evidence showing that the semenfound in the private part of the victim was not identical withthat of the accusedMs. As private prosecutor, how will you disputethe veracity and accuracy of the results of the D'A evidence>(672

S&GGES'E( ANS)ER*

As a private prosecutor, & shall try to discredit the results of the D'A test by Huestioning and possibly impugning theintegrity of the D'A proEle by showing a GawFerror in obtainingthe biological sample obtained/ the testing methodologyemployed/ the scientiEc standard observed/ the forensic D'A laboratory which conducted the test/ and the HualiEcation,training and e@perience of the forensic laboratory personnelwho conducted the D'A testing.

Admissibility- (NA Evidence !011#%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "1$






Bembol was charged with rape. BembolMs father, 1amil,approached Artemon, the victimMs father, during the preliminaryinvestigation and oered 4 )illion to Artemon to settle thecase. Artemon refused the oer. (A2 During trial, the prosecutionpresented Artemon to testify on 1amilMs oer and therebyestablish and implied admission of guilt. &s 1amilMs oer to settleadmissible in evidence> (672

S&GGES'E( ANS)ER*

Qes, the oer to settle by the father of the accused, is admissible inevidence as an implied admission of guilt. (eo v. !alvador, ;1 'o.46*-*0, 0 3anuary 062

AL'ERNA'I:E ANS)ER*

'o, nder !ec. 0*, 1ule 46 of the 1ules of Court, it is the oer of compromise by the accused that may be received in evidenceas an implied admission of guilt. %he testimony of rtemonwould cover the oer of 1amil and not an oer of the accusedhimself. (eo v. 9iernes, ;1 'os. 46*66-6, 46 December 042(B2 During the pretrial ,Bembol personallyoered to settle the case for 4 )illion to the privateprosecutor, who immediately put the oer on record in thepresence of the trial judge. &s BembolMsoer a judicialadmission of his guilt. (672

S&GGES'E( ANS)ER*

Qes, Bembol‟s oer is an admission of guilt (!ec. 66 1ule462. &f it was repeated by the private prosecutor in the presenceof judge at the pretrial the e@trajudicial confession becomestransposed into a judicial confession. %here is no need of assistance of counsel. (eo v. Buntag, ;1 'o. 406*, 4 April

02.

Best Evidence Rule- Electronic Evidence !011#%

5d8 An electronic evidence is the eHuivalent of an originaldocument under the Best "vidence 1ule if it is a printout orreadable by sight or other means, shown to reGect the dataaccurately.

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "1'




%1". %his statement is embodied in !ec. 4, 1ule of A.m. 'o.4-*-4-!C, reN 1ules on "lectronic "vidence.

C4ain o Custody !01"0%

'o.&&.A. (a2 Discuss the Lchain of custodyL principle withrespect to evidence seiJed under 1.A. +4 or theComprehensive Dangerous Drugs Act of 00. (72

S&GGES'E( ANS)ER* &n prosecutions involving narcotics and other illegal

substances, the substance itself constitutes part of the corpusdelicti of the oense and the fact of its e@istence is vital tosustain a judgment of conviction beyond reasonable doubt. %hechain of custody reHuirement is essential to ensure that doubtsregarding the identity of the evidence are removed through themonitoring and trac<ing of the movements of the seiJed drugsfrom the accused, to the police, to the forensic chemist, andEnally to the court. (eople vs. !itco, ;.1. 'o. 4*00, )ay4, 04, 9elasco, 3r. 3.2. "rgo, the e@istence of the dangerousdrug is a condition sine Hua non for conviction. (eople vs.De ;uJman Q DanJil, ;.1. 'o. 4+, )arch 0, 04 'achura

3.2. %he failure to establish, through convincing proof, that theintegrity of the seiJed items has been adeHuately preservedthrough an unbro<en chain of custody is enough to engenderreasonable doubt on the guilt of an accused (eople vs. De;uJman Q DanJil2. 'onetheless, non-compliance with theprocedure shall not render void and invalid the seiJure andcustody of the drugs whenN (42 such non-compliance is attendedby justiEable grounds/ and (02 the integrity and theevidentiary value of the seiJed items are properly preserved bythe apprehending team. %here must be proof that these two(02 reHuirements were met before such non-compliance may besaid to fall within the scope of then proviso. (eople vs. DelaCruJ, ;.1. 'o. 4**000, #ctober 0+, 0, * !C1A 0*62.

AL'ERNA'I:E ANS)ER* Crucial in proving chain of custody is the mar<ing of the seiJeddrugs or other related items immediately after they are seiJedfrom the accused. )ar<ing after seiJure is the starting pointin the custodial lin<, thus, it is vital that the seiJedcontraband are immediately mar<ed because succeeding

handlers of the specimens will use the mar<ings as reference.%hus, non-compliance by the apprehendingFbuy-bust team with

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "1!




!ec.04 of 1.A. +4 is not fatal as long as there is justiEableground therefore, and as long as the integrity and theevidentiary value of the conEscatedFseiJed items are properlypreserved by the apprehending oicerFteam. (eople vs.)antalaba, ;.1. 'o. 400*, 3uly 0, 0442.

C4aracter Evidence- Bad Re+utation !01"1%

&n a prosecution for murder, the prosecutor as<s accusedDarwin if he had been previously arrested for violation of the Anti- ;raft and Corrupt ractices Act. As defense counsel, youobject. %he trial court as<s you on what groundFs. 1espond. (672

S&GGES'E( ANS)ER*

%he objection is on the ground that the fact sought to beelicited by the prosecution is irrelevant and immaterial to theoense under prosecution and trial. )oreover, the 1ules donot allow the prosecution to adduce evidence of bad moralcharacter of the accused pertinent to the oense charged,e@cept on rebuttal and only if it involves a prior conviction by Enal judgment (1ule 46, !ec. 4, 1ules of Court2.

(octrine o Ado+tive Admission !011#%

'o.&.D. nder the doctrine of adoptive admission, a thirdpartyMs statement becomes the admission of the partyembracing or espousing it.

S&GGES'E( ANS)ER* %1". %he eect or conseHuence of the admission will bindalso the party who adopted or espoused the same, as appliedin "strada vs. Desierto, 6 !C1A 4 5048. An adoptiveadmission is a party’s reaction to a statement or action byanother person when it is reasonable to treat the party’s reactionas an admission of something stated or implied by the otherperson.

Best Evidence Rule !"##$%

=hen A loaned a sum of money to B. A typed a single copy of the

promissory note, which they both signed A made two photo

(@ero@ed2 copies of the promissory note, giving one copy to B and

retaining the other copy. A entrusted the typewritten copy to his

counsel for safe<eeping. %he copy with ARs counsel was destroyed

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "1(








:egislative facts and adjudicative facts.

S&GGES'E( ANS)ER*

:egislative facts refer to facts mentioned in a statute or in an

e@planatory note, while adjudicative facts are facts found in a court

decision.

;earsay Rule !011$%

(a2 =hat is the hearsay rule> (72

S&GGES'E( ANS)ER*

%he hearsay rule is a rule of evidence to the eect that a witnesscan testify only to those facts which he <nows of his own<nowledge or derived from his own perceptions, e@cept asotherwise provided in the rules of court (1ule 46, !ec. 6 1ules of Court2.

(b2 &n relation to the hearsay rule, what do the followingrules of evidence have in common> (72

(42 %he rule on statements that are part of the res gestae.

(02 %he rule on dying declarations.(62 %he rule on admissions against interest.

S&GGES'E( ANS)ER*

%he rules on the evidence speciEed in the Huestion as<ed, havein common the followingN

(42 %he evidence although hearsay, are allowed by the 1ulesas e@ceptions to the hearsay rule/

(02 %he facts involved are admissible in evidence for reasonsof necessity and trustworthiness/ and

(62 %he witness is testifying on facts which are not of hisown <nowledge or derived from his own perception.

;earsay Evidence !0110%

1omeo is sued for damages for injuries suered by the plainti in a

vehicular accident. 3ulieta, a witness in court, testiEes that 1omeo

told her (3ulieta2 that he (1omeo2 heard Antonio, a witness to the

accident, give an e@cited account of the accident immediately after

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ""1






earsay evidence and opinion evidence.

!;;"!%"D A'!="1N

earsay evidence consists of testimony that is not based on

personal <nowledge of the person testifying, (see !ec. 6, 1ule

462, while opinion evidence is e@pert evidence based on the

personal <nowledge s<ill, e@perience or training of the person

testifying (!ec. +, &d.2 and evidence of an ordinary witness on

limited matters (!ec. , &d.2.

;earsay Evidence- 2b7ection !01"0%

(a2 Counsel A objected to a Huestion posed by opposing CounselB on the grounds that it was hearsay and it assumed a fact not yetestablished. %he judge banged his gavel and ruled by sayingL#bjection !ustainedL. Can Counsel as< for a reconsiderationof the ruling> =hy> (72

S&GGES'E( ANS)ER* Qes, Counsel B may as< the 3udge to specify the ground’srelied upon for sustaining the objection and thereafter move its

reconsideration thereof. (1ule 460, !ec.6, 1ules of Court2.

;earsay- Ece+tion- (ead =an Statute !011"%

)a@imo Eled an action against edro, the administrator of the

estate of deceased 3uan, for the recovery of a car which is part of

the latterMs estate. During the trial, )a@imo presented witness

)ariano who testiEed that he was present when )a@imo and 3uan

agreed that the latter would pay a rental of 0,. for the use

of )a@imoMs car for one month after which 3uan should immediately

return the car to )a@imo. edro objected to the admission of

)arianoMs testimony. &f you were the judge, would you sustain

edroMs objection> =hy> (72

S&GGES'E( ANS)ER*

'o, the testimony is admissible in evidence because witness

)ariano who testiEed as to what )a@imo and 3uan, the deceased

person agreed upon, is not disHualiEed to testify on the agreement.

%hose disHualiEed are parties or assignors of parties to a case, or

persons in whose behalf a case is prosecuted, against the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ""%




administrator or 3uanMs estate, upon a claim or demand against his

estate as to any matter of fact occurring before 3uanMs death. (!ec.

06 of 1ule 462

;earsay- Ece+tion- (ying (eclaration !"##,%

1eHuisites of Dying Declaration. (072

S&GGES'E( ANS)ER*

%he reHuisites for the admissibility of a dying declaration areN (a2

the declaration is made by the deceased under the consciousness of

his impending death/ (b2 the deceased was at the time competent

as a witness/ (c2 the declaration concerns the cause andsurrounding circumstances of the declarantRs death/ and (d2 the

declaration is oered in a (criminal2 case wherein the declarantRs

death is the subject of inHuiry. (eople vs. !antos, 0* !C1A .2

AL'ERNA'I:E ANS)ER*

%he declaration of a dying person, made under the consciousness of

an impending death, may be received in any case wherein his death

is the subject of &nHuiry, as evidence of the cause and surrounding

circumstances of such death. (!ec. 6* of 1ule 46#.2

;earsay* Ece+tion Res Gestae !01">%

=hile passing by a dar< uninhabited part of their baran$a% , => &sin#a!o observed shadows and heard screams from adistance. => &sin#a!o hid himself behind the bushes and saw aman beating a woman whom he recogniJed as his neighbor, "ulasa.=hen "ulasa was already in agony, the man stabbed her and shefell on the ground. %he man hurriedly left thereafter.

=> &sin#a!o immediately went to "ulasaMs rescue. "ulasa, whowas then in a state of hysteria, <ept mentioning to => &sin#a!o XSi Rene, $us#o a8on$ 2a#a%in? Sina8sa8 ni%a a8o?Y=hen => &sin#a!o was about to carry her, "ulasa refused and saidX "a%a 8o. 'ababaw lan$ #o. abulin mo si Rene.@

%he following day, Rene learned of "ulasaMs death and, bothered byhis conscience, surrendered to the authorities with his counsel. Ashis surrender was broadcasted all over media, Rene opted torelease his statement to the press which goesN

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ""$






to the hearsay rule, especially here where the declarant is deadand thus unavailable to testify. (A'%#'&# 1. BA%&!%A, BA!&C"9&D"'C" 04-04 50 ed.82. &n A.S. v. il, 46 hil. 6 (4++2,the !upreme Court upheld dying declarations as an e@ception tothe confrontation clause since Xsuch declarations have always beenregarded as an e@ception to the general rule regarding hearsayevidence.Y

%he argument that the trial court erred in holding that ReneMsstatement to the press was a confession which, standing alone,would be suicient to warrant conviction is meritorious.

$irstly, 1eneMs statement is not a confession but an admission. A confession is one wherein a person ac<nowledges his guilt of a

crime, which 1ene did not do. !econdly, even assuming it is aconfession, standing alone it would not be suicient to warrantconviction since it is an e@trajudicial confession which is notsuicient ground for conviction unless corroborated by evidence of corpus delicti. (!6 14662.

'onetheless this was a harmless error since the admission of 1enewas corroborated by the testimony of #0 Asintado on ?ulasaMsstatement.

;earsay- Ece+tion- Res Gestae- 2+inion o 2rdinary )itness

!011<%

Dencio barged into the house of )arcela, tied her to a chair and

robbed her of assorted pieces of jewelry and money. Dencio then

brought Candida, )arcelaRs maid, to a bedroom where he raped

her. )arcela could hear Candida crying and pleadingN Luwag^

)aawa <a sa a<in^L After raping Candida, Dencio Ged from the

house with the loot. Candida then untied )arcela and rushed to the

police station about a <ilometer away and told olice #icer

1oberto )aawa that Dencio had barged into the house of )arcela,

tied the latter to a chair and robbed her of her jewelry and money.Candida also related to the police oicer that despite her pleas,

Dencio had raped her. %he policeman noticed that Candida was

hysterical and on the verge of collapse. Dencio was charged with

robbery with rape. During the trial, Candida can no longer be

located. (72

a2 &f the prosecution presents olice #icer 1oberto )aawa to

testify on what Candida had told him, would such testimony of the

policeman be hearsay> "@plain.

S&GGES'E( ANS)ER*Questions and Answers Remedial Law Year 1!-"#1$ Compiled by:

ADARAYAN, IRINCO, PRUDENCIADO ""'




'o. %he testimony of the policeman is not hearsay. &t is part of the

res gestae. &t is also an independently relevant statement. %he

police oicer testiEed of his own personal <nowledge, not to thetruth of CandidaRs statement, i.e., that she told him, despite her

pleas, Dencio had raped her. (eople v. ;addi,;.1. 'o. *,

$ebruary 0*,4++2

b2 &f the police oicer will testify that he noticed Candida to be

hysterical and on the verge of collapse, would such testimony be

considered as opinion, hence, inadmissible> "@plain.

S&GGES'E( ANS)ER*

'o, it cannot be considered as opinion, because he was testifying

on what he actually observed. %he last paragraph of !ec. , 1ule

46, 1evised 1ules of "vidence, e@pressly provides that a witness

may testify on his impressions of the emotion, behavior, condition

or appearance of a person.

;earsay- Ece+tion !01">%

A foreign !o$ trained to sni dangerous drugs from pac<ages, washired by +: Cor2ora#ion, a door to door forwarder company, tosni pac<ages in their depot at the international airport. &n one of the routinary inspections of pac<ages waiting to be sent to thenited !tates of America (AS&2, the !o$ sat beside one of thepac<ages, a signal that the pac<age contained dangerous drugs.%hereafter, the guards opened the pac<age and found two (02<ilograms of cocaine. %heowner of the pac<age was arrested andcharges were Eled against him. During the trial, the prosecution,through the trainer who was present during the incident and ane@pert in this <ind of Eeld, testiEed that the !o$ was highly trainedto sni pac<ages to determine if the contents were dangerous

drugs and the sniing techniHue of these highly trained dogs wasaccepted worldwide and had been successful in dangerous drugsoperations. %he prosecution moved to admit this evidence to justifythe opening of the pac<age. %he accused objected on the groundsthatN (i2 the guards had no personal <nowledge of the contents of the pac<age before it was opened/ (ii2 the testimony of the trainerof the !o$ is hearsay/ and (iii2 the accused could not cross-e@aminethe !o$. Decide. !>?%

S&GGES'E( ANS)ER*

%he accusedMs objections are overruled.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ""!




%he objection that the guards had no personal <nowledge of thecontents of the pac<age before it was opened is misplaced. %heone testifying is the trainer not the guards and he had personal<nowledge of the circumstances since he was present during theincident. Besides there is no rule of evidence that one cannottestify about the contents of a pac<age if he did not have priorpersonal <nowledge of its contents before opening it.

%he objection that the testimony of the trainer of the dog is hearsayis not valid. earsay is an out-of-court declaration made by aperson which is oered for the truth of the matter asserted.

ere what is involved is a dog who is not a person who can ma<ean out-of-court declaration. (:empert V !altJburg, A )#D"1'

A1#AC %# "9&D"'C" 6*-6*4 54+082. A dog is not treatedas a declarant or witness who can be cross-e@amined. (eople v.Centolella, 6 '.Q.!.0d 0*+2. ence testimony that the dog satbeside the pac<age is not testimony about an out-of-courtdeclaration and thus not hearsay.

%he objection that the accused could not cross-e@amine the dog iswithout merit. nder the Constitution, the accusedMs right of confrontation refers to witnesses. As previously discussed, a dog isnot a witness who can be cross-e@amined.

Bo#e # is ur$e! #a# u#mos# liberali#% be eercise! in $ra!in$#is number. 0e answer is no# foun! in ili22ine law an! 6uris2ru!ence an! even in commen#aries b% wri#ers on evi!ence.

;earsay Rule* Ece+tion- :icarious Admission !01">%

A vicarious admission is considered an e@ception to the hearsayrule. &t, however, does not coverN !"?%!A% admission by a conspirator!B% admission by a privy

!C% judicial admission!(% adoptive admission S&GGES'E( ANS)ER*

(C2 'oteN a vicarious admission is an e@trajudicial admission.ence C is not covered by the rule regarding vicarious admissions.

;earsay- Ece+tions !"###%

a2 DeEne hearsay evidence> (072 b2 =hat are the e@ceptions to thehearsay rule> (072

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ""(




S&GGES'E( ANS)ER*

earsay evidence may be deEned as evidence that consists of

testimony not coming from personal <nowledge (!ec. 6, 1ule 46,

1ules of Court2. earsay testimony is the testimony of a witness as

to what he has heard other persons say about the facts in issue.

%he e@ceptions to the hearsay rule areN dying declaration,

declaration against interest, act or declaration about pedigree,

family reputation or tradition regarding pedigree, common

reputation, part of the res gestae, entries in the course of business,

entries in oicial records, commercial lists and the li<e, learned

treatises, and testimony or deposition at a former proceeding. (6*to *, 1ule 46#, 1ules of Court2

;earsay- Ece+tions- (ying (eclaration !"###%

%he accused was charged with robbery and homicide. %he victim

suered several stab wounds. &t appears that eleven (442 hours

after the crime, while the victim was being brought to the hospital

in a jeep, with his brother and a policeman as companions, the

victim was as<ed certain Huestions which he answered, pointing to

the accused as his assailant. is answers were put down in writing,but since he was a in a critical condition, his brother and the

policeman signed the statement. &s the statement admissible as a

dying declaration> "@plain. (072

S&GGES'E( ANS)ER*

Qes. %he statement is admissible as a dying declaration if the victim

subseHuently died and his answers were made under the

consciousness of impending death (!ec. 6* of 1ule 462. %he fact

that he did not sign the statement point to the accused as hisassailant, because he was in critical condition, does not aect its

admissibility as a dying declaration. A dying declaration need not

be in writing (eople v. 9iovicente, 0 !C1A 42

;earsay- Ina++licable !0116%

K was charged with robbery. #n the strength of a warrant of arrest

issued by the court, K was arrested by police operatives. %hey

seiJed from his person a handgun. A charge for illegal possession

of Erearm was also Eled against him. &n a press conference called

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO ""




by the police, K admitted that he had robbed the victim of jewelry

valued at ,..

%he robbery and illegal possession of Erearm cases were tried

jointly. %he prosecution presented in evidence a newspaper clipping

of the report to the reporter who was present during the press

conference stating that K admitted the robbery. &t li<ewise

presented a certiEcation of the ' $irearms and "@plosive #ice

attesting that the accused had no license to carry any Erearm. %he

certifying oicer, however, was not presented as a witness. Both

pieces of evidence were objected to by the defense. (72 a2 &s the

newspaper clipping admissible in evidence against K> b2 &s the

certiEcation of the ' $irearm and

"@plosive #ice without the certifying oicer testifying on it

admissible in evidence against K>

S&GGES'E( ANS)ER*

(a2 Qes, the newspaper clipping is admissible in evidence against K.

regardless of the truth or falsity of a statement, the hearsay rule

does not apply and the statement may be shown where the fact that

it is made is relevant. "vidence as to the ma<ing of such statementis not secondary but primary, for the statement itself may

constitute a fact in issue or be circumstantially relevant as to the

e@istence of such fact. (;otesco &nvestment Corporation vs. Chatto,

04 !C1A 4 54++082

(b2 Qes, the certiEcation is admissible in evidence against K

because a written statement signed by an oicer having the

custody of an oicial record or by his deputy that after diligent

search no record or entry of a speciEed tenor is found to e@ist in

the records of his oice, accompanied by a certiEcate as aboveprovided, is admissible as evidence that the records of his oice

contain no such record or entry. (!ec. 0 of 1ule 4602.

Judicial Notice- Evidence !011<%

"@plain brieGy whether the 1%C may, motu proprio, ta<e judicial

notice ofN (72

4. %he street name of methamphetamine hydro-chloride is

shabu.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%#




S&GGES'E( ANS)ER*

%he 1%C may motu proprio ta<e judicial notice of the street name

of methamphetamine hydrochloride is shabu, considering the

chemical composition of shabu. (eople v. )acasling, ;), 'o.

+60, )ay 0*, 4++62

0. #rdinances approved by municipalities under its territorial

jurisdiction/

S&GGES'E( ANS)ER*

&n the absence of statutory authority, the 1%C may not ta<e judicial

notice of ordinances approved by municipalities under theirterritorial jurisdiction, e@cept on appeal from the municipal trial

courts, which too< judicial notice of the ordinance in Huestion. (.!.

v. Blanco, ;.1, 'o. 406, 'ovember +,4+4*/ .!. v. ernandeJ,

;.1. 'o. +++, August 0, 4+42

6. $oreign laws/

S&GGES'E( ANS)ER*

%he 1%C may not generally ta<e judicial notice of foreign laws (&nre "state of 3ohnson, ;.1. 'o. 40**, 'ovember 4, 4+4/ $luemer

v. i@, ;.1. 'o. 606, )arch 4*, 4+62, which must be proved li<e

any other matter of fact (!y 3oe :ieng v. !y Puia, ;.1. 'o. *4,

)arch 4+, 4+42 e@cept in a few instances, the court in the e@ercise

of its sound judicial discretion, may ta<e notice of foreign laws

when hilippine courts are evidently familiar with them, such as

the !panish Civil Code, which had ta<en eect in the hilippines,

and other allied legislation. (ardo v. 1epublic, ;.1. 'o. :S00

3anuary 06, 4+/ Delgado v. 1epublic, ;.1. 'o. :S0, 3anuary .

0, 4+2

. 1ules and 1egulations issued by Huasi-judicial bodies

implementing statutes/

S&GGES'E( ANS)ER*

%he 1%C may ta<e judicial notice of 1ules and 1egulations issued

by Huasi-judicial bodies implementing statutes, because they are

capable of unHuestionable demonstration (Chattamal v. Collector of

Customs, ;.1. 'o. 46*, 'ovember 6,4+02, unless the law itself

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%1




considers such rules as an integral part of the statute, in which

case judicial notice becomes mandatory.

. 1ape may be committed even in public places.

S&GGES'E( ANS)ER*

%he 1%C may ta<e judicial notice of the fact that rape may be

committed even in public places. %he Lpublic settingL of the rape is

not an indication of consent.

(eople v. %ongson, ;.1. 'o. +404, $ebruary 4, 4++42

%he !upreme Court has ta<en judicial notice of the fact that a manovercome by perversity and beastly passion chooses neither the

time, place, occasion nor victim. (eople v, Barcelona, ;.1. 'o.

0+, #ctober 64, 4++2

Judicial Notice- Evidence- /oreign La8 !"##$%

a2 ;ive three instances when a hilippine court can

ta<e judicial notice of a foreign law. b2 ow do you prove a written

foreign law> c2 !uppose a foreign law was pleaded as part of the

defense of defendant but no evidence was presented to prove the

e@istence of said law, what is the presumption to be ta<en by the

court as to the wordings of said lawL>

S&GGES'E( ANS)ER*

(a2 %he three instances when a hilippine court can ta<e judicial

notice of a foreign law areN (42 when the hilippine courts are

evidently familiar with the foreign law ()oran. 9ol. , p. 6, 4+

edition2/ (02 when the foreign law refers to the law of nations (!ec.4 of 1ule 40+2 and (62 when it refers to a published treatise,

periodical or pamphlet on the subject of law if the court ta<es

judicial notice of the fact that the writer thereof is recogniJed in his

profession or calling as e@pert on the subject (!ec. . 1ule 462.

(b2 A written foreign law may be evidenced by an oicial

publication thereof or by a copy attested by the oicer having the

legal custody of the record, or by his deputy, and accompanied. &f

the record is not <ept in the hilippines, with a certiEcate that such

oicer has the custody, if the oice in which the record is <ept is in

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%"




a foreign country, the certiEcate may be made by a secretary of the

embassy or legation, consul general, consul, vice-consul, or

consular agent or by any oicer in the foreign service of thehilippines stationed in the foreign country in which the record is

<ept, and authenticated by the seal of his oice (!ec. 0, 1ule 460,

Oalamea v. CA, 00 !C1A 062.

(c2 %he presumption is that the wordings of the foreign law are the

same as the local law. ('orthwest #rient Airlines v. Court of

Appeals, 04 !C1A 4+0/ )oran, 9ol. . page 6, 4+ edition/ :im

v. Collector of Customs, 6 hil. *02. %his is <nown as the

1#C"!!A: 1"!)%&#'.

=emorandum !"##3%

K states on direct e@amination that he once <new the facts being

as<ed but he cannot recall them now. =hen handed a written

record of the facts he testiEes that the facts are correctly stated,

but that he has never seen the writing before. &s the writing

admissible as past recollection recorded> "@plain,

S&GGES'E( ANS)ER*

'o, because for the written record to be admissible as past

recollection recorded. &t must have been written or recorded by K

or under his direction at the time when the fact occurred, or

immediately thereafter, or at any other time when the fact was

fresh in his memory and he <new that the same was correctly

written or recorded. (!ec. 4 of 1ule 4602 But in this case K has

never seen the writing before.

2@er o Evidence !"##$%

A trial court cannot ta<e into consideration in deciding a case an

evidence that has not been Lformally oeredL. =hen are the

following pieces of evidence formally oered>

(a2 %estimonial evidence

(b2 Documentary evidence

(c2 #bject evidence

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%%






allegedly confessed his guilt via an aidavit. After trial, he wasacHuitted on the groundthat his confession was obtained through torture, hence,inadmissible as evidence. &n a subseHuent criminal case fortorture against those who deprived him of sleep and subjectedhim to water torture. DominiHue was as<ed to testify and to,among other things, identify his above said aidavit of confession. As he was about to identify the aidavit, thedefense counsel objected on the ground that the aidavit is afruit of a poisonous tree. Can theobjection be sustained> "@plain. (672

S&GGES'E( ANS)ER*'o, the objection may not be sustained on the ground stated,because the aiant was only to identify the aidavit which isnot yet being oered in evidence. %he doctrine of the poisonoustree can only be invo<ed by Domingo as his defense in thecrime of 9iolation ofuman !ecurity Act Eled against him but not by the accusedtorture case Eled by him.&n the instant case, the presentation of the aidavit cannot beobjected to by the defense counsel on the ground that is afruit of the poisonous tree because the same is used in DomingMsfavor.

2@er o Evidence- /ruit o a Poisonous 'ree !011#%

'o.9&. Arrested in a buy-bust operation, "dmond was broughtto the police station where he was informed of his constitutionalrights. During the investigation, "dmond refused to give anystatement. owever, the arresting oicer as<ed "dmond toac<nowledge in writing that si@ (2 sachets of XshabuY wereconEscated from him. "dmond consented and also signed a

receipt for the amount of 6,, allegedly representing theXpurchase price of theshabu.Y At the trial, the arresting oicer testiEed andidentiEed the documents e@ecuted and signed by "dmond."dmondMs lawyer did not object to the testimony. After thepresentation of the testimonial evidence, the prosecutor madea formal oer of evidence which included thedocuments signed by "dmond. "dmondMs lawyer object to theadmissibility of the document for being the fruit of thepoisoned tree. 1esolve the objection with reasons. (672

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%&




%he objection to the admissibility of the documents which thearresting oicer as<ed "dmond to sign without the beneEt of counsel, is well-ta<en. !aid documents having been signed bythe accused while under custodial investigation, imply anXadmissionY without the beneEt of counsel, that the shabucame from him and that the 6,, was received by himpursuantto the illegal selling of the drugs. %hus, it was obtained bythe arresting oicer in clear violation of !ec. 40 (62, Art. &&& of the4+* Constitution, particularly the right to be assisted bycounsel during custodial investigation. )oreover, the objectionto the admissibility of the evidence was timely made, i.e.,when the same is formally oered.

2@er o Evidence- res inter alios acta !0116%

K and Q were charged with murder. pon application of the

prosecution, Q was discharged from the &nformation to be utiliJed

as a state witness. %he prosecutor presented Q as witness but

forgot to state the purpose of his testimony much less oer it in

evidence. Q testiEed that he and K conspired to <ill the victim but it

was K who actually shot the victim. %he testimony of Q was the only

material evidence establishing the guilt of K. Q was thoroughly

cross-e@amined by the defense counsel. After the prosecutionrested its case, the defense Eled a motion for demurrer to evidence

based on the following grounds.

(a2 %he testimony of Q should be e@cluded because its purpose was

not initially stated and it was not formally oered in evidence as

reHuired by !ection 6, 1ule 460 of the 1evised 1ules of "vidence/

and

(b2 QMs testimony is not admissible against K pursuant to the rule on

Xres inter alios actaY. 1ule on the motion for demurrer to evidenceon the above grounds. (72

S&GGES'E( ANS)ER*

%he demurrer to the evidence should be denied becauseN a2 %he

testimony of Q should not be e@cluded

because the defense counsel did not object to his testimony despite

the fact that the prosecutor forgot to state its purpose or oer it in

evidence. )oreover, the defense counsel thoroughly cross-e@amined Q and thus waived the objection.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%'




b2 %he res inter alios acta rule does not apply because Q

testiEed in open court and was subjected to cross e@amination.

2@er o Evidence- 'estimonial 5 (ocumentary !"##>%

=hat is the dierence between an oer of testimonial evidence and

an oer of documentary evidence>

S&GGES'E( ANS)ER*

An oer of testimonial evidence is made at the time the witness is

called to testify, while an oer of documentary evidence is made

after the presentation of a partyMs testimonial evidence. (!ec. 6,

1ule 4602.

2+inion Rule !"##>%

At 'olanMs trial for possession and use of the prohibited drug,

<nown as XshabuN, his girlfriend ?im, testiEed that on a particular

day, he would see 'olan very prim and proper, alert and sharp, but

that three days after, he would appear haggard, tired and overly

nervous at the slightest sound he would hear. 'olan objects to the

admissibility of ?imMs testimony on the ground that ?im merely

stated her opinion without having been Erst HualiEed as e@pertwitness. !hould you, as judge, e@clude the testimony of ?im>

S&GGES'E( ANS)ER*

'o. %he testimony of ?im should not be e@cluded. "ven though ?im

is not an e@pert witness, ?im may testify on her impressions of the

emotion, behavior, condition or appearance of a person. (!ec. ,

last par., 1ule 462.

Parol Evidence !01">%

arole evidence is anN !"?%!A% agreement not included in the document!B% oral agreement not included in the document!C% agreement included in the document!(% oral agreement included in the document

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%!




(A2 'oteN &t is suggested that either A or B be considered ascorrect. !trictly spea<ing parol evidence does not have to be anagreement/ it is simply any evidence, whether written or oral,which is not contained in a written agreement subject of a case andwhich see<s to modify, alter, or e@plain the terms of the writtenagreement.

Parol Evidence Rule !011"%

edro Eled a complaint against :ucio for the recovery of a sum of

money based on a promissory note e@ecuted by :ucio. &n his

complaint, edro alleged that although the promissory note says

that it is payable within 40 days, the truth is that the note is

payable immediately after + days but that if edro is willing, hemay, upon reHuest of :ucio give the latter up to 40 days to pay the

note. During the hearing, edro testiEed that the truth is that the

agreement between him and :ucio is for the latter to pay

immediately after ninety dayMs time. Also, since the original note

was with :ucio and the latter would not surrender to edro the

original note which :ucio <ept in a place about one dayMs trip from

where he received the notice to produce the note and in spite of

such notice to produce the same within si@ hours from receipt of

such notice, :ucio failed to do so. edro presented a copy of thenote which was e@ecuted at the same time as the original and with

identical contents. a2 #ver the objection of :ucio, will edro be

allowed to testify as to the true agreement or contents of the

promissory note> =hy> (072 b2 #ver the objection of :ucio, can

edro present a copy of the promissory note and have it admitted

as valid evidence in his favor> =hy> (672

S&GGES'E( ANS)ER*

a2 Qes, because edro has alleged in his complaint that the

promissory note does not e@press the true intent and agreement of

the parties. %his is an e@ception to the parol evidence rule. 5!ec.

+(b2 of 1ule 46, 1ules of Court8

b2 Qes, the copy in the possession of edro is a duplicate original

and with identical contents. 5!ec. (b2 of 1ule 468. )oreover, the

failure of :ucio to produce the original of the note is e@cusable

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%(




because he was not given reasonable notice, as reHuirement under

the 1ules before secondary evidence may be presented. (!ec. of

1ule 46, 1ules of Court2

'oteN %he promissory note is an actionable document and the

original or a copy thereof should have been attached to the

complaint. (!ec. * of 1ule +, 4++* 1ules of Civil rocedure2. &n such

a case, the genuineness and due e@ecution of the note, if not denied

under oath, would be deemed admitted. (!ec. of 1ule +, 4++*

1ules of Civil rocedure2

Pre+onderance vs. Substantial Evidence !0116%

Distinguish preponderance of evidence from substantial evidence.

7

S&GGES'E( ANS)ER*

1"#'D"1A'C" #$ "9&D"'C" means that the evidence as a

whole adduced by one side is superior to that of the other. %his is

applicable in civil cases. (!ec. 4 of 1ule 466/ )unicipality of

)oncada v. Cajuigan, 04 hil, 4 54+4082.

!B!%A'%&A: "9&D"'C" is that amount of relevant evidencewhich a reasonable mind might accept as adeHuate to justify a

conclusion. %his is applicable in case Eled before administrative or

Huasi-judicial bodies. (!ec. of 1ule 4662

Privilege Communication !"##,%

C is the child of the spouses and =. sued his wife = for judicial

declaration of nullity of marriage under Article 6 of the $amily

Code. &n the trial, the following testiEed over the objection of =N C,

and D, a doctor of medicine who used to treat =. 1ule on =Rsobjections which are the followingN

4. cannot testify against her because of the rule on marital

privilege/ 5478

0. C cannot testify against her because of the doctrine on

parental privilege/ and 5078

6. D cannot testify against her because of the doctrine of

privileged communication between patient and physician. 5078

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "%




S&GGES'E( ANS)ER*

4. %he rule of marital privilege cannot be invo<ed in the annulment

case under 1ule 6 of the $amily Code because it is a civil case

Eled by one against the other, (!ec. 00 , 1ule 46. 1ules of Court.2

0. %he doctrine of parental privilege cannot li<ewise be invo<ed by

= as against the testimony of C, their child. C may not be

compelled to testify but is free to testify against her. (!ec. 0.

1ule 46. 1ules of Court/ Art. 04, $amily Code.2

6. D, as a doctor who used to treat =, is disHualiEed to testify

against = over her objection as to any advice or treatment given by

him or any information which he may have acHuired in his

professional capacity. (!ec. 0 5c8, 1ule 46. 1ules of Court.2

AL'ERNA'I:E ANS)ER*

&f the doctorRs testimony is pursuant to the reHuirement of

establishing the psychological incapacity of =, and he is the e@pert

called upon to testify for the purpose, then it should be allowed.

(1epublic vs. Court of Appeals and )olina, 0! !C1A 4+.2

Privilege Communication !01"6%

$or over a year, 'enita had been estranged from her husband=alter because of the atterMs suspicion that she was having anaair with 9ladimir, a barangay <agawad who lived in nearby)andaluyong. 'enita lived in the meantime with her sister in)a<ati. #ne day, the house of 'enitaMs sister ine@plicably burnedalmost to the ground. 'enita and her sister were caught insidethe house but 'enita survived as she Ged in time, while her sistertried to save belongings and was caught inside when the house

collapsed. As she was running away from the burning house,'enita was surprised to see her husband also running awayfrom the scene.

Dr. Carlos, =alterMs psychiatrist who lived near the burnedhouse and whom =alter medically consulted after the Ere, alsosaw =alter in the vicinity some minutes before the Ere.Coincidentally, $r. latino, the parish priest who regularlyhears =alterMs confession and who heard it after the Ere, alsoencountered him not too far away from the burned house.

=alter was charged with arson and at his trial, theprosecution moved to introduce the testimonies of 'enita, the

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$#




doctor and the priest-confessor, who all saw =alter at the vicinity of the Ere at about the time of the Ere. (A2 )ay thetestimony of 'enita be allowed over the objection of =alter>(672

S&GGES'E( ANS)ER*

'o. 'enita may not be allowed to testify against =alter. nderthe )arital DisHualiEcation 1ule, during their marriage, neitherthe husband nor the wife may testify for or against the otherwithout the consent of the aected spouse, e@cept in a civil

case by one against the other, or in a criminal case for acrime committed by one against the other or the latter’sdirect descendants or ascendants (!ection 00, 1ule 46, 1uleson "vidence2. %he foregoing e@ceptions cannot apply since itonly e@tends to a criminal case of one spouse against the otheror the latter’s direct ascendants or descendants. Clearly,'enita is not the oended partyand her sister is not her direct ascendant or descendant forher to fall within the e@ception.

AL'ERNA'I:E ANS)ER* Qes. 'enita may be allowed to testify against =alter. &t is wellsettled that the marital disHualiEcation rule does not apply whenthe marital and domestic relations between spouses are strained.&n AlvareJ vs. 1amireJ, ;.1. 'o. 466+, #ctober 4, 0, the!upreme Court citing eople vs. Castaneda, 0*4 !C1A ,held that the act of private respondent in setting Ere to thehouse of his sister-in-law !usan 1amireJ, ?nowing fully well thathis wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and

conEdences of marital relation which the disHualiEcationprimarily see<s to protect. %he criminal act complained of hadthe eect of directly and vitally impairing the conjugal relation.&t underscored the fact that the marital and domestic relationsbetween her and the accused-husband have become so strainedthat there is no more harmony, peace or tranHuillity to bepreserved. ence, the identity is non-e@istent. &n such asituation, the security and conEdences of private life which thelaw aims to protect are nothing but ideals which throughtheir absence, merely leave a void in the unhappy home. %hus,there is no reason to apply the )arital DisHualiEcation 1ule.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$1




(B2 )ay the testimony of Dr. Carlos, =alterMs psychiatrist, beallowed over =alterMs ojection> (672

S&GGES'E( ANS)ER*

Qes. %he testimony of =alter’s psychiatrist may be allowed.%he privileged communication contemplated under !ec. 0 (c21ule 46 of the 1ules on "vidence involves only personsauthoriJed to practice medicine, surgery or obstetrics. &t doesnot include a sychiatrist. )oreover, the privilegedcommunication applies only in civil cases and not in acriminal case for arson. Besides, the subject of the testimonyof Dr. Carlos was not in connection with the advice or treatment

given by him to =alter, or any information he acHuired inattending to =alter in a professional capacity. %he testimonyof Dr. Carlos is limited only to what he perceived at the vicinity of the Ere and at the time of the Ere.

(C2 )ay the testimony of $r. latino, the priest-confessor, beallowed over =alterMs objection> (672

S&GGES'E( ANS)ER*

Qes. %he riest can testify over the objection of =alter. %he

disHualiEcation reHuires that the same were made pursuant toa religious duty enjoined in the course of discipline of thesect or denomination to which they belong and must beconEdential and penitential in character, e.g., under the sealof confession (!ec. 0 (d2 1ule 46, 1ules on "vidence2.

ere, the testimony of $r. latino was not previously subject of a confession of =alter or an advice given by him to =alter inhis professional character. %he %estimony was merely limited towhat $r. latino perceived Xat the vicinity of the Ere and at

about the time of the Ere.Y ence, $r. latino may be allowedto testify.

Privilege Communication- La8yerClient !011,% #n August 4, 0, "dgardo committed estafa againstetronilo in the amount of 6 illion. etronilo brought hiscomplaint to the 'ational Bureau of &nvestigation, which foundthat "dgardo had visited his lawyer twice, the Erst time on August 4, 0 and the second on

August 4, 0/ and that both visits concerned the swindlingof etronilo. During the trial of "dgardo, the 1%C issued a

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$"




subpoena ad testiEcandum to "dgardoMs lawyer for him totestify on the conversations during their Erst and secondmeetings. )ay the subpoena be Huashed on the ground of privileged communication> "@plain fully. (72

S&GGES'E( ANS)ER*

Qes, the mantle of privileged communication based on lawyer-client relationship protects the communication between a lawyerand his client against any adverse party as in this case. %hesubpoena reHuiring the lawyer to testify can be Huashed onthe ground of privileged communication (!ee 1egala v.!andiganbayan, ;1 'o. 4+6, 0 !eptember 4++2. !ec. 0

(b2 1ule 46 provides that an attorney cannot, without theconsent of his client be e@amined in any communication madeto him by his client to him, or his advice given thereon, includinghis secretary, stenographer, cler< concerning any fact the<nowledge of which has been acHuired in such capacity.owever, where the subject matter of the communicationinvolves the commission of the crime, in which the lawyer himself is a participant or conspirator, then the same is not coveredby the privilege.

)oreover, if the substance of the communication can beestablished by independent evidence, the lawyer maybe compelledto testify.

Privilege Communication- =arital Privilege !"#,#%

#dy sued spouses Cesar and Baby for a sum of money and

damages. At the trial, #dy called Baby as his Erst witness. Baby

objected, joined by Cesar, on the ground that she may not be

compelled to testify against her husband. #dy insisted and

contended that after all, she would just be Huestioned about a

conference they had with the barangay captain, a matter which isnot conEdential in nature. %he trial court ruled in favor of #dy. =as

the ruling proper> =ill your answer be the same if the matters to

be testiEed on were <nown to Baby or acHuired by her prior to her

marriage to Cesar> "@plain.

S&GGES'E( ANS)ER*

'o. nder the 1ules on "vidence, a wife cannot be e@amined for or

against her husband without his consent, e@cept in civil cases by

one against the other, or in a criminal case for a crime committed

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$%




by one against the other. !ince the case was Eled by #dy against

the spouses Cesar and Baby, Baby cannot be compelled to testify

for or against Cesar without his consent. (:eJama vs. 1odrigueJ, 06!C1A 442.

%he answer would be the same if the matters to be testiEed on

were <nown to Baby or acHuired by her prior to her marriage to

Cesar, because the marital disHualiEcation rule may be invo<ed

with respect to testimony on any fact. &t is immaterial whether such

matters were <nown to Baby before or after her marriage to Cesar.

Privilege Communication- =arital Privilege !0111%

9ida and 1omeo are legally married. 1omeo is charged to court

with the crime of serious physical injuries committed against

!elmo, son of 9ida, stepSson of 1omeo. 9ida witnessed the

inGiction of the injuries on !elmo by 1omeo. %he public prosecutor

called 9ida to the witness stand and oered her testimony as an

eyewitness. Counsel for 1omeo objected on the ground of the

marital disHualiEcation rule under the 1ules of Court. a2 &s the

objection valid> (672 b2 =ill your answer be the same if 9idaMs

testimony is oered in a civil case for recovery of personal property

Eled by !elmo against 1omeo> (072

S&GGES'E( ANS)ER*

(a2 'o. =hile neither the husband nor the wife may testify for or

against the other without the consent of the aected spouse, one

e@ception is if the testimony of the spouse is in a criminal case for a

crime committed by one against the other or the latterMs direct

descendants or ascendants. (!ec, 00, 1ule 462. %he case falls

under this e@ception because !elma is the direct descendant of the

spouse 9ide.

(b2 'o. %he marital disHualiEcation rule applies this time. %he

e@ception provided by the rules is in a civil case by one spouse

against the other. %he case here involves a case by !elmo for the

recovery of personal property against 9idaMs spouse, 1omeo.

Privilege Communication- La8yerClient !011,%

A tugboat owned by !peedy ort !ervice, &nc. (!!2 san< in

)anila Bay while helping tow another vessel, drowning Eve (2crews in the resulting shipwrec<. At the maritime board inHuiry,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$$




the four (2 survivors testiEed. !! engaged Atty. "ly to defend itagainst potential claims and to sue the company owning theother vessel for damages to tug. "ly obtained signedstatements from the survivors. e also interviewed otherpersons, in some instancema<ing memoranda. %he heirs of the Eve (2 victims Eled anaction for damages against!!. laintisM counsel sent written interrogatories to "ly,as<ing whether statements of witnesses were obtained/ if written copies were to be furnished/ if oral, the e@actprovision were to be set forth in detail. "ly refused to comply,arguing that the documents and information as<ed areprivileged communication. &s the contention tenable> "@plain (72

S&GGES'E( ANS)ER*

Qes, the lawyer-client privilege covers any communication madeby the client to the lawyer, or the lawyer’s advice giventhereon in the course of, or with a view to professionalemployment. %he documents and information sought weregathered and prepared pursuant to the engagement of "ly asa lawyer for the company (Air hilippines Corporation v.ennswell, &nc., ;1 'o. 4*06, 46 December 0*2. !ec. ,1ule 0 of the 1ules of Court provides that interrogatories mayrelate to any matter that can be reHuired into under !ec. 0,1ule 06 o depositions and discovery refers to privilegedconEdential communications under !ec. 0, 1ule 46.

Privilege Communication- =arital Privilege !011>%

KQO, an alien, was criminally charged of promoting and facilitating

child prostitution and other se@ual abuses under 1ep. Act 'o. *4.

%he principal witness against him was his $ilipina wife, ABC.

"arlier, she had complained that KQORs hotel was being used as a

center for se@ tourism and child traic<ing. %he defense counsel forKQO objected to the testimony of ABC at the trial of the child

prostitution case and the introduction of the aidavits she e@ecuted

against her husband as a violation of espousal conEdentiality and

marital privilege rule. &t turned out that D"$, the minor daughter of

ABC by her Erst husband who was a $ilipino, was molested by KQO

earlier. %hus, ABC had Eled for legal separation from KQO since last

year. )ay the court admit the testimony and aidavits of the wife,

ABC, against her husband, KQO, in the criminal case involving child

prostitution> 1eason. (72

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$&




S&GGES'E( ANS)ER*

Qes. %he court may admit the testimony and aidavits of the wife

against her husband in the criminal case where it involves child

prostitution of the wifeRs daughter. &t is not covered by the marital

privilege rule. #ne e@ception thereof is where the crime is

committed by one against the other or the latterRs direct

descendants or ascendants. (!ec. 00, 1ule 462. A crime by the

husband against the daughter is a crime against the wife and

directly attac<s or vitally impairs the conjugal relation. (#rdono v.

DaHuigan, 0 !C1A 0* 54+*82.

Privilege Communication- =arital Privilege !0113%

:eticia was estranged from her husband aul for more than a year

due to his suspicion that she was having an aair with )anuel their

neighbor. !he was temporarily living with her sister in asig City.

$or un<nown reasons, the house of :eticiaRs sister was burned,

<illing the latter. :eticia survived. !he saw her husband in the

vicinity during the incident. :ater he was charged with arson in an

&nformation Eled with the 1egional %rial Court, asig City. During

the trial, the prosecutor called :eticia to the witness stand and

oered her testimony to prove that her husband committed arson.Can :eticia testify over the objection of her husband on the ground

of marital privilege> (72

AL'ERNA'I:E ANS)ER*

'o, :eticia cannot testify over the objection of her husband, not

under marital privilege which is inapplicable and which can be

waived, but she would be barred under !ec. 00 of 1ule 46, which

prohibits her from testifying and which cannot be waived (AlvareJ

v. 1amireJ, ;.1. 'o. 466+, #ctober 4, 02.

AL'ERNA'I:E ANS)ER*

Qes, :eticia may testify over the objection of her husband. %he

disHualiEcation of a witness by reason of marriage under !ec. 00,

1ule 46 of the 1evised 1ules of Court has its e@ceptions as where

the marital relations are so strained that there is no more harmony

to be preserved. %he acts of aul eradicate all major aspects of

marital life. #n the other hand, the !tate has an interest in

punishing the guilty and e@onerating the innocent, and must have

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$'




the right to oer the testimony of :eticia over the objection of her

husband (AlvareJ v. 1amireJ, ;.1. 'o. 466+, #ctober 4, 02.

Remedy- Lost (ocuments- Secondary Evidence !"##0%

Aja@ ower Corporation, a utility company, sued in the 1%C to

enforce a supposed right of way over a property owned by

!implicio. At the ensuing trial, Aja@ presented its retired Eeld

auditor who testiEed that he <now for a fact that a certain sum of

money was periodically paid to !implicio for some time as

consideration for a right of way pursuant to a written contract. %he

original contract was not presented. &nstead, a purported copy,

identiEed by the retired Eeld auditor as such, was formally oeredas part of his testimony. 1ejected by the trial court, it was Enally

made the subject of an oer of proof by Aja@.

Can Aja@ validly claim that it had suiciently met its burden of

proving the e@istence of the contract establishing its right of way>

"@plain,

S&GGES'E( ANS)ER*

'o. Aja@ had not suiciently met the burden of proving the

e@istence of the written contract because. &t had not laid the basis

for the admission of a purported copy thereof as secondary

evidence. Aja@ should have Erst proven the e@ecution of the

original document and its loss or destruction. (!ec. of 1ule 462

Privilege Communication- =arital Privilege !01"1%

#n )arch 40, 0, )abini was charged with )urder forfatally stabbing "milio. %o prove the Hualifying circumstance of evident premeditation, the prosecution introduced on December

44, 0+ a te@t message, which )abiniMs estranged wife;regoria had sent to "milio on the eve of his death, readingNXoney, pa0tayin u ni )abini. )tgal n nyang plano i0. )gingat u b<a ma tsugi <.Y

(A2 A subpoena ad testiEcandum was served on ;regoria for herto be presented for the purpose of identifying her cellphone andthe te@ message. )abini objected to her presentation on theground of marital privilege. 1esolve.

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$!






sent under consciousness of an impending death, is evidentlyattendant from the victim‟s statementN XD na me ma<ahingaY

and the fact that he died shortly after he sent the te@t message. owever, cellphone messages are regarded as electronicevidence, and in a recent case (Ang vs. Court of Appeals etal., ;1 '#. 406, April 0, 042, the !upreme Court ruledthat the 1ules on "lectronic "vidence applies only to civilactions, Huasi-judicial proceedings and administrativeproceeding, not to criminal actions.

AL'ERNAN'I:E ANS)ER*

'o, the te@t message is not admissible as a dying declarationbecause it lac<s indication that the victim was underconsciousness of an impending death. %he statement XD na mema<ahingaY is still uneHuivocal in the te@t message sent thatdoes not imply consciousness of forth-coming death.

'estimony- Inde+endent Relevant Statement !"###%

A overheard B call K a thief. &n an action for defamation Eled by K

against B, is the testimony of A oered to prove the fact of

utterance i.e., that B called K a thief, admissible in evidence>

"@plain. (072

S&GGES'E( ANS)ER*

Qes. %he testimony of A who overheard B call K a thief is admissible

in evidence as an independently relevant statement. &t is oered in

evidence only to prove the tenor thereof, not to prove the truth of

the facts asserted therein. &ndependently relevant statements

include statements which are on the very facts in issue or those

which are circumstantial evidence thereof. %he hearsay rule does

not apply. (!ee eople vs. ;addi, 4* !C1A +2

)itness- Com+etency o t4e )itness vs. Credibility o t4e

)itness !011>%

Distinguish Competency of the witness and credibility of the

witness.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "$




S&GGES'E( ANS)ER*

Competency of the witness refers to a witness who can perceive,

and perceiving, can ma<e <nown his perception to others (!ec. 0

of 1ule 462, while credibility of the witness refers to a witness

whose testimony is believable.

=itness/ "@amination of a Child =itness/ via :ive-:in< %9 (02

=hen may the trial court order that the testimony of a child be

ta<en by live-lin< television> "@plain.

S&GGES'E( ANS)ER*

%he testimony of a child may be ta<en by live-lin< television if thereis a substantial li<elihood that the child would suer trauma from

testifying in the presence of the accused, his counsel or the

prosecutor as the case may be. %he trauma must of a <ind which

would impair the completeness or truthfulness of the testimony of

the child. (!ee !ec. 0, 1ule on "@amination of a Child =itness2.

)itness- Eamination o )itnesses !"##$%

a2 Aside from as<ing a witness to e@plain and supplement his

answer in the cross-e@amination, can the proponent as< in re-directe@amination Huestions on matters not dealt with during cross-

e@amination>

b2 Aside from as<ing the witness on matters stated in his re-

direct e@amination, can the opponent in his re-cross-e@amination

as< Huestions on matters not dealt with during the re-direct>

c2 After plainti has formally submitted his evidence, he

realiJed that he had forgotten to present what he considered an

important evidence. Can he recall a witness>

S&GGES'E( ANS)ER*

(a2 Qes, on redirect e@amination, Huestions on matters not dealt

with during the cross-e@amination may be allowed by the court in

its discretion. (!ec. * of 1ule 4602.

(b2 Qes, the opponent in his re-cross-e@amination may also as<

Huestions on such other matters as may be allowed by the court in

its discretion. (!ec. . 1ule 4602.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&#




(c2 Qes, after formally submitting his evidence, the plainti can

recall a witness with leave of court. %he court may grant or

withhold leave in its discretion as the interests of justice mayreHuire. (!ec. +. 1ule 4602.

)itness- Eamination o )itnesses !0110%

&s this Huestion on direct e@amination objectionableN X=hat

happened on 3uly 40, 4+++Y> =hy> (072

S&GGES'E( ANS)ER*

%he Huestion is objectionable because it has no basis, unless before

the Huestion is as<ed the proper basis is laid.

)itness- Eamination o )itness !011#%

'o.4.5b8 %he #ne-Day "@amination of witness 1ule abbreviatescourt proceedings by having a witness fully e@amined in onlyone day during trial.

S&GGES'E( ANS)ER*

%1". ar. (i2 of !upreme Court A.). 'o. 6-4-+-!CreHuires that a witness has to be fully e@amined in one (42day only. %his rule shall be strictly adhered to subject to thecourt’s discretion during trial on whether or not to e@tend thedirect andFor cross-e@amination for justiEable reasons. #n thelast hearing day allotted for each party, he is reHuired toma<e his formal oer of evidence after the presentation of hislast witness and the opposing party is reHuired to immediatelyinterpose his objection thereto. %hereafter, the judge shallma<e the ruling on the oer of evidence in open court.

owever, the judge has the discretion to allow the oer of evidence in writing in conformity with !ection 6, 1ule 460.

AL'ERNA'I:E ANS)ER*

$A:!". %his rule is not absoluteN it will still allow the trial judge the discretion whether to e@tend the direct andFor crosse@amination for justiEable reasons or not. %he e@ercise of thisdiscretion may still result in wrangling as to the proper

e@ercise of the trial court’s

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Absentee- (eclaration o Absence vs. (eclaration o Presum+tive (eat4 !011#%

$ran< and ;ina were married on 3une 40, 4+* in )anila.Barely a year after the wedding, $ran< e@hibited a violenttemperament, forcing ;ina, for reasons of personal safety, tolive with her parents. A year thereafter, ;ina foundemployment as a domestic helper in !ingapore, where shewor<ed for ten consecutive years. All the time she wasabroad, ;ina had absolutely no communications with $ran<, nordid she hear any news about him. =hile in !ingapore, ;inamet and fell in love with =illie.

#n 3uly , 0*, ;ina Eled a petition with the 1%C of manilato declare $ran< presumptively dead, so that she could marry=illie. %he 1%C granted ;inaMs petition. %he oice of the!olicitor ;eneral (#!;2 Eled a notice of Appeal with the 1%C,stating that it was appealing the decision of the Court of Appealson Huestions of fact and law.

(a2 &s a petition for declaration of resumptive Death a specialproceeding>

S&GGES'E( ANS)ER*

'o. the petition for Declaration of resumptive Death providedin Art. 4 of the X$amily CodeY is not the special proceedinggoverning absentees under 1ule 4* of the 1ules of Courtwhose rules of procedure will not be followed (1epublic vs.C.A., !C1A 5082. !aid petition for Declaration of resumptive Death under Article 4 of the $amily Code is asummary proceeding, authoriJed for purposes only of remarriageof the present spouse, to avoid incurring the crime of bigamy.'onetheless, it is in the nature of a special proceeding, being

an application to establish a status or a particular fact incourt.

AL'ERNA'I:E ANS)ER*

A petition for declaration of presumptive death may beconsidered a special proceeding, because it is so classiEed inthe 1ules of Court (1ule 4*, 1ules of Court2, asdierentiated from an ordinary action which is adversarial. &t is amere application or proceeding to establish the status of aparty or a particular fact, to viJN that a person has been

unheard of for a long time and under such circumstance that hemay be presumed dead.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&%




(b2 As the 1%C judge who granted ;inaMs petition, will yougive due course to the#!;Ms notice of appeal>

S&GGES'E( ANS)ER*

'#. Appeal is not a proper remedy since the decision isimmediately Enal and e@ecutor upon notice to the partiesunder Art. 0* of the $amily Code(1epublic vs BermudeJ-:orino, + !C1A * 5082. %he #!; may assail 1%C‟s

grant of the petition only on the premise of grave abuse of discretion amounting to lac< or e@cess of jurisdiction. %heremedy should be by certiorari under 1ule of the 1ules of Court.

Petition or C4ange o Name !01">%

& was adopted by - and C when & was only a toddler. :ater on inlife, & Eled with the 1egional %rial Court ( R0C2 a petition forchange of name under 1ule 46 of the 1ules of Court, as he wanted

to reassume the surname of his natural parents because thesurname of his adoptive parents sounded oensive and wasseriously aecting his business and social life.

%he adoptive parents gave their consent to the petition for changeof name. )ay & Ele a petition for change of name> &f the 1%Cgrants the petition for change of name, what, if any, will be theeect on the respective relations of & with his adoptive parents andwith his natural parents> Discuss. !>?%

S&GGES'E( ANS)ER*

Qes, A may Ele a petition for change of name. Changing name onthe ground that it is oensive and seriously aects the petitionerMsbusiness and social life is a valid ground especially where theadoptive parents had given their consent.

%he grant of the petition will not change AMs relations withhis adoptive and natural parents. %he !upreme Court has held thatchange of name under 1ule 46 aects only the name and not thestatus of the petitioner. (1epublic v. CA, 04 )ay 4++02.

Cancellation or Correction- Notice !011$%Questions and Answers Remedial Law Year 1!-"#1$ Compiled by:

ADARAYAN, IRINCO, PRUDENCIADO "&$




'o.9&&. (a2 B Eles a petition for cancellation of the birthcertiEcate of her daughter 1 on the ground of the falsiEedmaterial entries therein made by BMs husband as theinformant. %he 1%C sets the case for hearing and directs thepublication of the order for hearing and directs thepublication of the order once a wee< for three consecutivewee<s in a newspaper of general circulation. !ummons wasservice on the Civil 1egistrar but there was no appearanceduring the hearing. %he 1%C granted the petition. 1 Eled apetition for annulment of judgment before the Court of Appeals, saying that she was not notiEed of the petition andhence, the decision was issued in violation of due process. B

opposed saying that the publication of the court order wassuicient compliance with due process. 1ule. (72S&GGES'E( ANS)ER*

1 ’s petition for annulment of judgment before the Court of Appeals should be granted. Although there was publication of the court order acting the petition to cancel the birthcertiEcate, reasonable notice still has to be served on 1 as shehas an interest aected by the cancellation. (!ec. 6 and ,1ule 4, 1ules of Court2 !he is an indispensable party(1epublic v. Benemerito, 0 !C1A 5082, and notice has

to be served on her, not for the purpose of vesting the courtwith jurisdiction, but to comply with the reHuirements of fairplay and due process (Ceruila v. Delantar, ** !C1A 465082.

AL'ERNA'I:E ANS)ER*

%he petition for annulment of judgment should not begranted. =hile 1 is an indispensable party, it has been heldthat the failure to service notice on indispensable parties iscured by the publication made because the action is one inrem (Alba v. Court of Appeals, !C1A + 508/ Barco v.Court of Appeals, 0 !C1A 6+ 5082.

Cancellation or Correction- Entries Civil Registry !01">%

'ar% 5ane met Siela 'a% at the recruitment agency where theyboth applied for overseas employment. %hey e@changedpleasantries, including details of their personal circumstances.$ortunately, 'ar% 5ane was deployed to wor< as front des< receptionist at a hotel in Abu Dhabi where she met Sul#an

&me! who proposed marriage, to which she readily accepted.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&&




nfortunately for Siela 'a% , she was not deployed to wor< abroad, and this made her envious of 'ar% 5ane. 'ar% 5ane returned to the hilippines to prepare for her wedding.!he secured from the 'ational !tatistics #ice ( BS=2 a CertiEcateof 'o )arriage. &t turned out from the '!# records that 'ar% 5ane had previously contracted marriage with 5on S#arr , a BritishcitiJen, which she never did. %he purported marriagebetween 'ar% 5ane and 5on S#arr contained all the reHuiredpertinent details on 'ar% 5ane. 'ar% 5ane later on learnedthat Siela 'a% is the best friend of 5on S#arr . As a lawyer, 'ar% 5ane see<s your advice on her predicament. =hatlegal remedy will you avail to enable 'ar% 5ane to contractmarriage with Sul#an &me!>!>?%

S&GGES'E( ANS)ER*

%he legal remedy & would avail to enable )ary 3ane to contractmarriage with !ultan Ahmed is to Ele a petition under 1ule 4 tocancel entries in the marriage contract between 3ohn !tarr and)ary 3ane, particularly the portion and entries thereon relating tothe wife.

1ule 4 may be availed of to cancel erroneous or invalid entries inthe Civil 1egistry. ere the entry of )ary 3ane as the wife of 3ohn

!tarr is clearly erroneous and invalid as she never contractedmarriage with anybody, much less 3ohn !tarr. %here is no need toEle a petition for declaration of nullity of marriage since there wasno marriage to spea< of in the Erst place, the marriage contractbeing a sham contract. (1epublic v. #laybar, 4 $ebruary 04,eralta, 3.2.

Cancellation or Correction- Entries Civil Registry !011<%

elen is the daughter of "liJa, a $ilipina, and %ony, a Chinese, who

is married to another woman living in China. er birth certiEcate

indicates that elen is the legitimate child of %ony and "liJa and

that she is a Chinese citiJen. elen wants her birth certiEcate

corrected by changing her Eliation from LlegitimateL to

LillegitimateL and her citiJenship from LChineseL to L$ilipinoL

because her parents were not married. =hat petition should elen

Ele and what procedural reHuirements must be observed> "@plain.

(72

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&'




A petition to change the record of birth by changing the Eliation

from LlegitimateL to LillegitimateL and petitionerRs citiJenship from

LChineseL to L$ilipinoL because her parents were not married, doesnot involve a simple summary correction, which could otherwise be

done under the authority of 1.A. 'o. +. A petition has to be Eled

in a proceeding under 1ule 4 of the 1ules of Court, which has

now been interpreted to be adversarial in nature. (1epublic v.

9alencia, ;.1. 'o. :-6044, )arch , 4+2 rocedural

reHuirements includeN (a2 Eling a veriEed petition/ (b2 naming as

parties all persons who have or claim any interest which would be

aected/ (c2 issuance of an order E@ing the time and place of

hearing/ (d2 giving reasonable notice to the parties named in thepetition/ and (e2 publication of the order once a wee< for three

consecutive see<s in a newspaper of general circulation. (1ule 4,

1ules of Court2

Esc4eat Proceedings !0110%

!uppose the property of D was declared escheated on 3uly 4, 4++

in escheat proceedings brought by the !olicitor ;eneral. 'ow, K,

who claims to be an heir of D, Eled an action to recover the

escheated property. &s the action viable> =hy> (072S&GGES'E( ANS)ER*

'o, the action is not viable. %he action to recover escheated

property must be Eled within Eve years from 3uly 4, 4++ or be

forever barred. (1ule +4, sec. 2.

Etra7udicial Settlement o Estate !011<%

'estor died intestate in 06, leaving no debts. ow may his estate

be settled by his heirs who are of legal age and have legal

capacity> "@plain. (072

S&GGES'E( ANS)ER*

&f the decedent left no will and no debts, and the heirs are all of

age, the parties may, without securing letters of administration,

divide the estate among themselves by means of a public

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&!




instrument or by stipulation in a pending action for partition and

shall Ele a bond with the register of deeds in an amount eHuivalent

to the value of the personal property involved as certiEed to underoath by the parties concerned. %he fact of e@tra-judicial settlement

shall be published in a newspaper of general circulation once a

wee< for three consecutive wee<s in the province. (!ec. 4, 1ule *,

1ules of Court2

;abeas Cor+us !"##6%

1o@anne, a widow, Eled a petition for habeas corpus with the Court

of Appeals against )ajor Amor who is allegedly detaining her 4-

year old son Bong without authority of the law.

After )ajor Amor had a Eled a return alleging the cause of

detention of Bong, the Court of Appeals promulgated a resolution

remanding the case to the 1%C for a full-blown trial due to the

conGicting facts presented by the parties in their pleadings. &n

directing the remand, the court of Appeals relied on !ec.+(42, in

relation to !ec. 04 of B 40+ conferring upon said Court the

authority to try and decide habeas corpus cases concurrently with

the 1%Cs. Did the Court of Appeals act correctly in remanding the

petition to the 1%C> =hy>

S&GGES'E( ANS)ER*

'o, because while the CA has original jurisdiction over habeas

corpus concurrent with the 1%Cs, it has no authority for remanding

to the latter original actions Eled with the former. #n the contrary,

the CA is speciEcally given the power to receive evidence and

perform any and all acts necessary to resolve factual issues raised

in cases falling within its original jurisdiction.

AL'ERNA'I:E ANS)ER*

Qes, because there is no prohibition in the law against a superior

court referring a case to a lower court having concurrent

jurisdiction. %he !upreme Court has referred to the CA or the 1%C

cases falling within their concurrent jurisdiction.

;abeas Cor+us !"##,%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&(




A was arrested on the strength of a warrant of arrest issued by the

1%C in connection with an &nformation for omicide. =, the live-in

partner of A Eled a petition for habeas corpus against ARs jailer andpolice investigators with the Court of Appeals.

4. Does = have the personality to Ele the petition for habeas

corpus> 5078

0. &s the petition tenable> 5678

S&GGES'E( ANS)ER*

4. Qes. =, the live-in partner of A, has the personality to Ele the

petition for habeas corpus because it may be Eled by Lsome person

in his behalf.L (!ec. 6. 1ule 40. 1ules of Court.2

0. 'o. %he petition is not tenable because the warrant of arrest was

issued by a court which had 3urisdiction to issue it (!ec. , 1ule

40 1ules of Court2

;abeas Cor+us !0116%

=idow A and her two children, both girls, aged and 40 years old,

reside in Angeles City, ampanga. A leaves her two daughters in

their house at night because she wor<s in a brothel as a prostitute.

1ealiJing the danger to the morals of these two girls, B, the father

of the deceased husband of A, Eles a petition for habeas corpus

against A for the custody of the girls in the $amily Court in Angeles

City. &n said petition, B alleges that he is entitled to the custody of

the two girls because their mother is living a disgraceful life. %he

court issues the writ of habeas corpus. =hen A learns of the

petition and the writ, she brings her two children to Cebu City. Atthe e@pense of B the sheri of the said $amily Court goes to Cebu

City and serves the writ on A. A Eles her comment on the petition

raising the following defensesN a2 %he enforcement of the writ of

habeas corpus in

Cebu City is illegal/ and b2 B has no personality to institute the

petition. 7 1esolve the petition in the light of the above defenses

of A. (72

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "&




(a2 %he writ of habeas corpus issued by the $amily Court in Angeles

City may not be legally enforced in Cebu City, because the writ is

enforceable only within the judicial region to which the $amilyCourt belongs, unli<e the writ granted by the !upreme Court or

Court of Appeals which is enforceable anywhere in the hilippines.

(!ec. 0 of 1ule on Custody of )inors and =rit of abeas Corpus

in 1elation to Custody of )inors. (A.). 'o. 6---!C/ see also

!ec. of 1ule 40, 1ules of Court.2

(b2 B, the father of the deceased husband of A, has the personality

to institute the petition for habeas corpus of the two minor girls,

because the grandparent has the right of custody as against the

mother A who is a prostitute. (!ectioins 0 and 46, &d.2

;abeas Cor+us !011$%

usband Eles a petition for declaration of nullity of marriagebefore the 1%C of asig City. =ife = Eles a petition for habeascorpus before the 1%C of asay City, praying for custody overtheir minor child. Eles a motion to dismiss the wifeMs petitionon the ground of the pendency of the other case. 1ule.

S&GGES'E( ANS)ER*

%he motion to dismiss the petition for habeas corpus should begranted to avoid multiplicity of suits. %he Huestion of whobetween the spouses should have custody of their minor childcould also be determined in the petition for declaration of nullity of their marriagewhich is already pending in the 1%C of asig City. &n otherwords, the petitionEled in asig City, praying for custody of the minor child isunnecessary and violates only the cardinal rules of procedure

against multiplicity of suits. ence, the latter suit may be abatedby a motion to dismiss on the ground of litis pendentia (Qu v. Qu, !C1A 5082.

;abeas Cor+us- Bail !011,%

After Alma had started serving her sentence for violation of B 00, she Eled a petition for a writ of habeas corpus, citing 9aca vs CA where the sentence of imprisonment of a partyfound guilty of violation of B 00 was reduced to a EneeHual to double the amount of the chec< involved. !he

prayed that her sentence be similarly modiEed and that shebe immediately released from detention. &n the alternative, she

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'#




prayed that pending determination on whether the 9aca rulingapplies to her, she be allowed to post bail pursuant to 1ule40, !ec. 4, which provides that if a person is lawfullyimprisoned or restrained on a charge of having committed anoense not punishable by death, he may be admitted to bail inthe discretion of the court. Accordingly, the trial court allowed Alma to post bail and then ordered her release. &n youropinion, is the order of the trial court correct Z (a2 nder 1ule40>

S&GGES'E( ANS)ER*

'o, Alma, who is already convicted by Enal judgment, cannot

be entitled to bail under !ec. 4, 1ule 40. %he provisionpresupposes that she had not been convicted as yet. &tprovides that if she is lawfully imprisoned or restrained for anoense not punishable by death, she may be recommitted toimprisonment or admitted to bail in the discretion of the courtor judge (!ec. 4, 1ule 40/ Celeste vs. eople, 64 !C1A 6+4/ 9icente vs. 3udge )ajaducon, A.). 'o. 1%3-0-4+, 06 3une0/ !an edro vs. eo, ;.1. 'o. 4660+*, 4 August 002.

(b2 nder the 1ules of criminal procedure>

S&GGES'E( ANS)ER*

nder the 1ules of Criminal rocedure, 1ule 44, !ec. 0clearly prohibits the grant of bail after conviction by Enal judgment and after the convict has started to serve sentence. &nthe present case, Alma had already started serving hersentence. !he cannot, therefore,apply for bail (eo. vs. $itJgerald, ;.1. 'o. 4+*06, 0* #ctober02.

;abeas Cor+us- Jurisdiction- Sandiganbayan !011#% &n the e@ercise of its original jurisdiction, the !andiganbayanmay grant petitions for the issuance of a writ of habeascorpus.

S&GGES'E( ANS)ER*

$A:!". %he !andiganbayan may grant petitions for abeascorpus only in aid of its appellate jurisdiction (1.A. *+*, asamended by 1.A 0+2, not in the e@ercise of XoriginalY

jurisdiction.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'1




Settlement o Estate !01"1%

!al )ineo died intestate, leaving a 4 billion estate. e wassurvived by his wife Dayanara and their Eve children. DayanaraEled a petition for the issuance of letters of administration.Charlene, one of the children, Eled an opposition to thepetition, alleging that there was neither an allegation norgenuine eort to settle the estate amicably before the Eling of thepetition. 1ule on the opposition. (72

S&GGES'E( ANS)ER*

%he opposition should be overruled for lac< of merit. %heallegation that there was a genuine eort to settle the estateamicably before the Eling of the petition is not reHuired by the1ules. Besides, a petition for issuance of letters of administration may be contested oneither of two grounds N (42 the incompetency of the personfor whom letters are prayed therein/ and (02 the contestant’sown right to the administration. (!ec. , 1ule +2.Settlement o Estate !011#%

inoy died without a will. is wife, 1osie and three children

e@ecuted a deed of e@trajudicial settlement of his estate. %hedeed was properly published and registered with the #ice of the 1egister of Deeds. %hree years thereafter, !uJy appeared,claiming to be the illegitimate child of inoy. !he sought toannul the settlement alleging that she was deprived of herrightful share in the estate. 1osie and the %hree Childrencontended that (42 the publication of the deed constitutedconstructive notice to the whole world, and should therefore bind!uJy/ and (02 !uJyMs action had already prescribed. Are 1osie andthe %hree Children Correct> "@plain.

S&GGES'E( ANS)ER*

'#, the contention is not correct. !uJy can Ele a complaint toannul the e@trajudicial settlement and she can recover what isdue her as such heir if her status as an illegitimate child of thedeceased has been established. %he publication of thesettlement does not constitute constructive notice to the heirswho had no <nowledge or did not ta<e part in it because thesame was notice after the fact of e@ecution. %he reHuirementof publication is intended for the protection of creditors and

was never intended to deprive heirs of their lawful

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'"




participation in the decedent’s estate. !he can Ele the actiontherefore within four (2 years after the settlement was registered.

Letters o Administration- Interested Person !011,%

Domencio and ;en lived without beneEt of marriage for 0 years, during which time they purchased properties together. After Domencio died without a will, ;en Eled a petition forletters of administration. DomencioMs siblings opposed thesame on the ground that ;en has no legal personality. Decide.

S&GGES'E( ANS)ER*

A petition for letters of administration may be Eled by anyXinterested personY (!ec. 0, 1ule *+, 1ules of Court2. ;enwould be considered an interested person if she was notmarried to Domenico, because she can claim co- ownership of the properties left by himunder their property regime of a union without marriageunder conditions provided in the $amily Code +Arts. 4*- 4,$amily Code/ !an :uis vs. !an :uis, ;.1. 'o. 466*6, $ebruary ,0*2.

Probate o )ill !01"1%

CJarina died single. !he left all her properties by will to her friendDuHueJa. &n the will, CJarina stated that she did notrecogniJe )arco as an adopted son because of his disrespectfulconduct towards her. DuHueJa soon instituted an action forprobate of CJarinaMs will. )arco, on the other hand, institutedintestate proceedings. Both actions were consolidated beforethe 1%C of asig. #n motion of )arco, DuHueJaMs petitionwas ordered dismissed on the ground that the will is void fordepriving him of his legitime. Argue for DuHueJa. (72

S&GGES'E( ANS)ER* %he petition for probate of CJarinaMs will, as Eled by DuHuesashould not be dismissed on mere motion of )arco who instituted

intestate proceedings. %he law favors testacy over intestacy, hence,the probate of the will cannot be dispensed with. (!ee !ec. ,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'%




1ule *2 %hus, unless the will Z which shows the obvious intent todisinherit )arco Z is probated, the right of a person todispose of his property may be rendered nugatory (!ee !eanio vs. 1eyes, ;.1. 'os. 46*4-*0, 'ov. 0*, 02. Besides, theauthority of the probate court is generally limited only to adetermination of the e@trinsic validity of the will. &n this case,)arco Huestioned the intrinsic validity of the will.

Probate o )ill !011$%

(b2 %he heirs of agree among themselves that they willhonor the division of Ms estate as indicated in her :ast =illand %estament. %o avoid the e@pense of going to court in a

etition for robate of the =ill, can they instead e@ecute an"@trajudicial !ettlement Agreement among themselves> "@plainbrieGy. (72

S&GGES'E( ANS)ER*

%he heirs of cannot validly agree to resort to e@trajudicialsettlement of his estate and do away with the probate of ’slast will and testament. robate of the will is mandatory(;uevarra v. ;uevarra, * hil. *+ 54+682. %he policy of thelaw is to respect the will of the testator as manifested in the

other dispositions in his last will and testament, insofar asthey are not contrary to law, public morals and public policy."@trajudicial settlement of an estate of a deceased is allowedonly when the deceased left no last will and testament and alldebts, if any, are paid (1ule *, !ec. 4, 1ules of Court2.

Probate o )ill !01">%

3ohnny, a naturaliJed citiJen of the nited !tates of America (!A2but formerly a $ilipino citiJen, e@ecuted a notarial will inaccordance with the laws of the !tate of California, !A. 3ohnny, atthe ime of his death, was survived by his niece Anastacia, an American citiJen residing at the condominium unitof 3ohnnylocated at $ort Bonifacio, %aguig City/ a youngerbrother, Bartolome, who manages 3ohnnyMs Esh pond in :ingayen,angasinan/ and a younger sister,Christina, whomanages 3ohnnyMs rentalcondominium units in )a<atiCity. 3ohnnyMs entire estate which he inherited from his parents is valued at 0 million. 3ohnny appointed Anastacia as e@ecutri@ of his will. !>?%

!A% Can 3ohnnyMs notarial will be probated before the proper courtin the hilippines>

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'$




S&GGES'E( ANS)ER*

Qes, the formal validity of a will is governed also by the national lawof the decedent. (Article 4*, Civil Code2.

A will proved and allowed in a foreign country, according to thelaws of such country, may be allowed, Eled, and recorded by theproper 1egional %rial Court in the hilippines. (!4 1**2.

!B% &s Anastacia HualiEed to be the e@ecutri@ of 3ohnnyMs notarialwill>

S&GGES'E( ANS)ER*

Qes, assuming that Anastacia is of legal age, she is HualiEed to bean e@ecutor although an alien because she is a resident of thehilippines. (!4 1*2.

Probate o )ill- Jurisdictional /acts !01"0%

=hat are the jurisdictional facts that must be alleged in apetition for probate of a will> ow do you bring before the

court these jurisdictional facts> (672

S&GGES'E( ANS)ER*

%he jurisdictional facts in a petition for probate areN (42 thata person died leaving a will/ (02 in case of a resident, thathe resided within the territorial jurisdiction of the court/ and(62 in the case of a non-resident, that he left an estate withinsuch territorial jurisdiction.%he jurisdictional facts shall be contained in a petition forallowance of will.

Probate o )ill- A++lication o =odes o (iscovery !011,%

An heirFoppositor in a probate proceeding Eled a motion toremove the administrator on the grounds of neglect of dutiesas administrator and absence from the country. #n his part theheirFoppositor served written interrogatories to theadministrator preparatory to presenting the latter as a witness.%he administrator objected, insisting that the modes of discovery apply only to ordinary civil actions, not specialproceedings. 1ule on the matter.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'&




S&GGES'E( ANS)ER*

'o, the administrator is not correct. )odes of discovery applyalso to special proceedings. !ec. 0, 1ule *0 states that in theabsence of special provisions, the rules provided for inordinary actions shall be, as far as practicable, applicable inspecial proceedings.

Probate o )ill* )ill 2utside o t4e P4ili++ines !01"1%

edrillo, a $il-Am permanent resident of :os Angeles,California at the time of his death, beHueathed to =inston a sumof money to purchase an annuity. pon edrilloMs demise, his

will was duly probated in :os Angeles and the speciEed sumin the will was in fact used to purchase an annuity with KQOof ong ?ong so that =inston would receive the eHuivalentof !4, per month for the ne@t 4 years. =anting toreceive the principal amount of the annuity, =inston Eles for theprobate of edrilloMs will in the )a<ati 1%C. As prayed for, thecourt names =inston as administrator of the estate. =instonnow Eles in the )a<ati 1%C a motion to compel KQO toaccount for all sums in its possession forming part of edrilloMs estate. 1ule on the motion. (72

S&GGES'E( ANS)ER*

%he motion should be denied. )a<ati 1%C has no jurisdictionover KQO of hong<ong. %he letters of administration granted to=inston only covers all edrillo‟s estate in the hilippines. (1ule**, !ec. 2 %his cannot cover the annuities in ong<ong. At theoutset, )a<ati 1%C should not have ta<en cogniJance of thepetition Eled by =inston, because the will does not cover anyproperty of edrillo located here in the hilippines.

Probate o Lost )ills !"###%

=hat are the reHuisites in order that a lost or destroyed =ill may

be allowed> (072

ARs =ill was allowed by the Court. 'o appeal was ta<en from its

allowance. %hereafter, Q, who was interested in the estate of A,

discovered that the =ill was not genuine because ARs signature was

forged by K. A criminal action for forgery was instituted against K.

)ay the due e@ecution of the =ill be validly Huestioned in such

criminal action> (072

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "''




S&GGES'E( ANS)ER*

a. &n order that a lost or destroyed will may be allowed, the

following must be complied withN

4 the e@ecution and validity of the same should be established/

0 the will must have been in e@istence at the time of the death

of the testator, or shown to have been fraudulently or accidentally

destroyed in the lifetime of the testator without his <nowledge/ and

6 its provisions are clearly and distinctly proved by at least two

credible witnesses. (!ec. , 1ule * of the 1ules of Court2

S&GGES'E( ANS)ER*

b. 'o. %he allowance of the will from which no appeal was ta<en is

conclusive as to its due e@ecution. (!ec. 4 of 1ule *.2 Due

e@ecution includes a Ending that the will is genuine and not a

forgery. Accordingly, the due e@ecution of the will cannot again be

Huestioned in a subseHuent proceeding, not even in a criminal

action for forgery of the will.

Probate o )ill !0116%

A, a resident of )alolos, Bulacan, died leaving an estate located in

)anila, worth 0,.. &n what court, ta<ing into

consideration the nature of jurisdiction and of venue, should the

probate proceeding on the estate of A be instituted> (72

S&GGES'E( ANS)ER*

%he probate proceeding on the estate of A should be instituted in

the )unicipal %rial Court of )alolos, Bulacan which has

jurisdiction, because the estate is valued at 0,., and is the

court of proper venue because A was a resident of )alolos at the

time of his death. (!ec. 66 of B 40+ as amended by 1A *+4/ !ec.

4 of 1ule *62.

Probate o )ill !011<%

After :uluRs death, her heirs brought her last will to a lawyer to

obtain their respective shares in the estate. %he lawyer prepared a

deed of partition distributing :uluRs estate in accordance with the

terms of her will. &s the act of the lawyer correct> =hy> (072

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'!




S&GGES'E( ANS)ER*

'o. 'o will, shall pass either real or personal estate unless it is

proved and allowed in the proper court. (!ec. 4, 1ule *, 1ules of

Court2

Probate o )ill !0113%

!ergio unJalan, $ilipino, years old, married, and residing at

Ayala Alabang 9illage, )untinlupa City, of sound and disposing

mind, e@ecuted a last will and testament in "nglish, a language

spo<en and written by him proEciently. e disposed of his estate

consisting of a parcel of land in )a<ati City and cash deposit at the

City Ban< in the sum of 6 )illion. e beHueathed )illion

each to his 6 sons and 4 )illion to his wife. e devised a piece

of land worth 4 )illion to !usan, his favorite daughter-inSlaw.

e named his best friend, Cancio 9idal, as e@ecutor of the will

without bond. &s Cancio 9idal, after learning of !ergioRs death,

obliged to Ele with the proper court a petition of probate of the

latterRs last will and testament> (072

S&GGES'E( ANS)ER*

Cancio 9idal is obliged to Ele a petition for probate and for

accepting or refusing the trust within the statutory period of 0

days under !ec. 6, 1ule *, 1ules of Court.

!upposing the original copy of the last will and tes-tament was lost,

can Cancio compel !usan to proSduce a copy in her possession to

be submitted to the probate court. (072

S&GGES'E( ANS)ER*

Qes, Cancio can compel !usan to produce the copy in herpossession. A person having custody of the will is bound to deliver

the same to the court of competent jurisdiction or to the e@ecutor,

as provided in !ec. 0, 1ule *, 1ules of Court.

Can the probate court appoint the widow as e@ecutor of the will>

(072

S&GGES'E( ANS)ER*

Qes, the probate court can appoint the widow as e@ecutor of thewill if the e@ecutor does not Hualify, as when he is incompetent,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'(




refuses the trust, or fails to give bond (!ec. , 1ule *, 1ules of

Court2.

Can the widow and her children settle e@trajudicially among

themselves the estate of the deceased> (072

S&GGES'E( ANS)ER*

'o, the widow and her children cannot settle the es-tate

e@trajudicially because of the e@istence of the =ill. 'o will shall

pass either real or personal estate unless it is proved and allowed

in the proper court (!ec. 4, 1ule *, 1ules of Court2.

Can the widow and her children initiate a separate petition forpartition of the estate pending the probate of the last will and

testament by the court> (072

S&GGES'E( ANS)ER*

'o, the widow and her children cannot Ele a separate petition for

partition pending the probate of the will. artition is a mode of

settlement of the estate (!ec. 4, 1ule *, 1ules of Court2.

Probate o )ill- =andatory Nature !0110%

=hat should the court do if, in the course of intestate proceedings,

a will is found and it is submitted for probate> "@plain. (072

S&GGES'E( ANS)ER*

&f a will is found in the course of intestate proceedings and it is

submitted for probate, the intestate proceedings will be suspended

until the will is probated. pon the probate of the will, the intestate

proceedings will be terminated. (1ule 0, sec. 42.

Intestate Proceedings !0110%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "'




K Eled a claim in the intestate proceedings of D. DMs administrator

denied liability and Eled a counterclaim against K. KMs claim was

disallowed.

(42 Does the probate court still have jurisdiction to allow the claim

of DMs administrator by way of oset> =hy> (072

(02 !uppose DMs administrator did not allege any claim against K by

way of oset, can DMs administrator prosecute the claim in an

independent proceedingF whyF (672

S&GGES'E( ANS)ER*

(42 'o, because since the claim of K was disallowed, there is noamount against which to oset the claim of DMs administrator.

(02 Qes, DMs administrator can prosecute the claim in an

independent proceeding since the claim of K was disallowed. &f K

had a valid claim and DMs administrator did not allege any claim

against K by way of oset, his failure to do so would bar his claim

forever. (1ule , sec. 42.

Intestate Proceedings- (ebts o t4e Estate !0110%

A, B and C, the only heirs in DMs intestate proceedings, submitted a

project of partition to the partition, two lots were assigned to C,

who immediately entered into the possession of the lots. %hereafter,

C died and proceedings for the settlement of his estate were Eled

in the 1%C-PueJon City. DMs administrator then Eled a motion in the

probate court (1%C-)anila2, praying that one of the lots assigned toC in the project of partition be turned over to him to satisfy debts

corresponding to CMs portion. %he motion was opposed by the

administrator of CMs estate. ow should the 1%C-)anila resolve the

motion of DMs administrator> "@plain. (672

!;;"!%"D A'!="1N

%he motion of DMs administrator should be granted. %he assignment

of the two lots to C was premature because the debts of the estate

had not been fully paid. 51ule +, sec. 4/ 1eyes v. Barreto-Datu, 4+!C1A (4+*28.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!#




Judicial Settlement o Estate !011<%

!tate the rule on venue in judicial settlement of estate of deceased

persons. (072

S&GGES'E( ANS)ER*

&f the decedent is an inhabitant of the hilippines at the time ofR his

death, whether a citiJen or an alien, the venue shall be in the 1%C

in the province in which he resides at the time of his death, not in

the place where he used to live. (3ao v. Court of Appeals, ;.1. 'o.

4064, )ay 0+, 002

&f he is an inhabitant, of a foreign country, the 1%C of any provinceor city in which he had estate shall be the venue. %he court Erst

ta<ing cogniJance of the case shall e@ercise jurisdiction to the

e@clusion of all other courts. =hen the marriage is dissolved by the

death of the husband or wife, the community property shall be

inventoried, administered and liHuidated, and the debts thereof

paid, in the testate or intestate proceedings of the deceased

spouse. &f both spouses have died, the conjugal partnership shall be

liHuidated in the testate or intestate proceedings of either. (!ees. 4

and 0, 1ule *6, 1ules of Court2

Settlement o Estate !011"%

%he rules on special proceedings ordinarily reHuire that the estate

of the deceased should be judicially administered thru an

administrator or e@ecutor. =hat are the two e@ceptions to said

reHuirements> (72

S&GGES'E( ANS)ER*

%he two e@ceptions to the reHuirement areN

(a2 =here the decedent left no will and no debts and the heirs are

all of age, or the minors are represented by their judicial or legal

representatives duly authoriJed for the purpose, the parties may

without securing letters of administration, divide the estate among

themselves by means of public instrument Eled in the oice of the

register of deeds, or should they disagree, they may do so in an

ordinary action of partition. &f there is only one heir, he may

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!1




adjudicate to himself the entire estate by means of an aidavit Eled

in the oice of the register of deeds. %he parties or the sole heir

shall Ele simultaneously abound with the register of deeds, in anamount eHuivalent to the value of the personal property as certiEed

to under oath by the parties and conditioned upon the payment of

any just claim that may be Eled later. %he fact of the e@trajudicial

settlement or administration shall be published in a newspaper of

general circulation in the province once a wee< for three

consecutive wee<s. (!ec. 4 of 1ule *, 1ules of Court2

(b2 =henever the gross value of the estate of a deceased person,

whether he died testate or intestate, does not e@ceed ten thousand

pesos, and that fact is made to appear to the 1%C having jurisdiction or the estate by the petition of an interested person and

upon hearing, which shall be held not less than one

(42 month nor more than three (62 months from the date of the last

publication of a notice which shall be published once a wee< for

three consecutive wee<s in a newspaper of general circulation in

the province, and after such other notice to interested persons as

the court may direct, the court may proceed summarily, without the

appointment of an e@ecutor or administrator, to settle the estate.(!ec. 0 of 1ule *, 1ules of Court2

Settlement o Estate- Administrator !"##,%

A, claiming to be an illegitimate child of the deceased D, instituted

an &ntestate proceeding to settle the estate of the latter. e also

prayed that he be appointed administrator of said estate. !, the

surviving spouse, opposed the petition and ARs application to be

appointed the administrator on the ground that he was not the

child of her deceased husband D. %he court, however, appointed A as the administrator of said estate. !ubseHuently, !, claiming to be

the sole heir of D, e@ecuted an Aidavit of Adjudication,

adjudicating unto herself the entire estate of her deceased husband

D. ! then sold the entire estate to K. =as the appointment of A as

administrator proper> 5078 =as the action of ! in adjudicating the

entire estate of her late husband to herself legal> 5678

S&GGES'E( ANS)ER*

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!"




4. Qes, unless it is shown that the court gravely-abused its

discretion in appointing the illegitimate child as administrator,

instead of the spouse. =hile the spouse enjoys preference, itappears that the spouse has neglected to apply for letters of

administration within thirty (62 days from the death of the

decedent. (!ec. , 1ule *, 1ules of Court/ ;aspay, 3r. vs. Court of

Appeals. 06 !C1A 46.2

AL'ERNA'I:E ANS)ER*

!, the surviving spouse, should have been appointed administratri@

of the estate, in as much as she enjoys Erst preference in such

appointment under the rules. (!ec. (a2 of 1ule *, 1ules of Court.2

S&GGES'E( ANS)ER*

0. 'o. An aidavit of self-adjudication is allowed only if the aiant

is the sole heir of the. deceased. (!ec. 4, 1ule *, 1ules of Court2.

&n this case, A also claims to be an heir. )oreover, it is not legal

because there is already a pending juridical proceeding for the

settlement of the estate.

:enue- S+ecial Proceedings !"##$%

;ive the proper venue for the following special proceedingsN a2 A

petition to declare as escheated a parcel of land owned by a

resident of the hilippines who died intestate and without heirs or

persons entitled to the property.

b2 A petition for the appointment of an administrator over the

land and building left by an American citiJen residing in California,

who had been declared an incompetent by an American court.

c2 A petition for the adoption of a minor residing in ampanga.

S&GGES'E( ANS)ER*

(a2 %he venue of the escheat proceedings of a parcel of land in this

case is the place where the deceased last resided. (!ec. 4. 1ule +4,

1ules of Court2.

(b2 %he venue for the appointment of an administrator over land

and building of an American citiJen residing in California, declared

&ncompetent by an American Court, is the 1%C of the place wherehis property or part thereof is situated. (!ec. 4. 1ule +02.

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!%




(c2 %he venue of a petition for the adoption of a minor residing in

ampanga is the 1%C of the place in which the petitioner resides.

(!ec. 4. 1ule ++2

:III. S&==ARK PR2CE(&RE

Pro4ibited Pleadings !011>%

Charged with the oense of slight physical injuries under an

information duly Eled with the )e%C in )anila which in the

meantime had duly issued an order declaring that the case shall be

governed by the 1evised 1ule on !ummary rocedure, the accused

Eled with said court a motion to Huash on the sole ground that theoicer who Eled the information had no authority to do so. %he

)e%C denied the motion on the ground that it is a prohibited

motion under the said 1ule. %he accused thereupon Eled with the

1%C in )anila a petition for certiorari in sum assailing and see<ing

the nulliEcation of the )e%CRs denial of his motion to Huash. %he

1%C in due time issued an order denying due course to the

certiorari petition on the ground that it is not allowed by the said

1ule. %he accused forthwith Eled with said 1%C a motion for

reconsideration of its said order. %he 1%C in time denied saidmotion for reconsideration on the ground that the same is also a

prohibited motion under the said 1ule. =ere the 1%CRs orders

denying due course to the petition as well as denying the motion

for reconsideration correct> 1eason. (72

S&GGES'E( ANS)ER*

%he 1%CRs orders denying due course to the petition for certiorari

as well as denying the motion for reconsideration are both not

correct. %he petition for certiorari is a prohibited pleading under!ection 4+(g2 of the 1evised 1ule on !ummary rocedure and the

motion for reconsideration, while it is not prohibited motion (:ucas

v. $abros, A) 'o. )%3-++-400, 3anuary 64, 0, citing 3oven v.

Court of Appeals, 040 !C1A *, **-* (4++02, should be denied

because the petition for certiorari is a prohibited pleading.

Pro4ibited Pleadings !01"1%

)arinella is a junior oicer of the Armed $orces of the

hilippines who claims to have personally witnessed themalversation of funds given by ! authorities in connection

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!$




with the Bali<atan e@ercises. )arinella alleges that as a resultof her e@pos, there are operatives within the military who areout to <ill her. !he Eles a petition for the issuance of a writ of amparo against, among others, the Chief of !ta but withoutalleging that the latter ordered that she be <illed. Atty. Daro,counsel for the Chief of !ta, moves for the dismissal of theetition for failure to allege that his client issued any order to<ill or harm )arinella. 1ule on Atty. DaroMs motion. "@plain.(672

S&GGES'E( ANS)ER*

%he motion to dismiss must be denied on the ground that it

is a prohibited pleading under !ection 44 (a2 of the 1ule on the=rit of Amparo. )oreover, said 1ule does not reHuire thepetition therefor to allege a complete detail of the actual orthreatened violation of the victim‟s rights. &t is suicient that therebe an allegation of real threat against petitioner‟s life, liberty,andFor security (;en. A. 1aJon, 3r. vs. %agitis, ;.1. 'o. 40+,Dec. 6, 0+2.

I. =ISCELLANE2&S

Rules Summary Procedure !01">%

an!lor!, a resident of PueJon City, entered into a lease contractwith 0enan#, a resident of )ari<ina City, over a residential house in:as ias City. %he lease contract provided, among others, for amonthly rental of 0,., plus ten percent (472 interest ratein case of non-payment on its due date.!ubseHuently, an!lor! migrated to the nited !tates of America(AS&2 but granted in favor of his sister 'aria, a special power of attorney to manage the property and Ele and defend suits over theproperty rented out to 0enan#. 0enan# failed to pay the rentals duefor Eve (2 months. 'aria as<s your legal advice on how she cane@peditiously collect from 0enan# the unpaid rentals plus interestsdue. !3?%

!A% =hat judicial remedy would you recommend to 'aria>

S&GGES'E( ANS)ER*

%he judicial remedy that & would recommend to )aria is to Ele acollection suit for the 40, rentals in arrears and the 40,interest due. %he remedy would be e@peditious since it would be

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!&




governed by the 1ules on !ummary rocedure as the amount of thedemand, e@cluding interest, does not e@ceed 0,.

!B% =here is the proper venue of the judicial remedy which yourecommended>

S&GGES'E( ANS)ER*

%he proper venue of the collection suit would be in )ari<ina City,where %enant resides.

nder the 1ules of Civil rocedure, venue in personal actions iswith the residence of either the plainti or the defendant, at theplaintiMs election.

!ince the lainti does not reside in the hilippines, venue may belaid only in )ari<ina City where the defendant %enant resides.

!C% &f 'aria insists on Eling an ejectment suitagainst 0enan#, when do you rec<on the one (42-year period withinwhich to Ele the action>

S&GGES'E( ANS)ER*

&f )aria insists on Eling an ejectment suit against %enant, the one- year period within which to Ele the action shall be rec<oned fromthe e@piration of -days from notice of the last demand to pay and

vacate. (CruJ v. Atencio, 0 $ebruary 4++/ !y #h v. ;arcia, 6 3une 4++2.

Alternative (is+ute Resolution- Court (iversion- Stages!01"0%

Discuss the three (62 !tages of Court Diversion in connectionwith Alternative Dispute 1esolution. (72

S&GGES'E( ANS)ER*

%he three stages of diversion are Court-Anne@ed )ediation(CA)2, 3udicial Dispute 1esolution, and Appeals Court)ediation (AC)2. During CA), the judge refers the parties tothe hilippine )ediation Center ()C2 for the mediation of their dispute by trained and accredited mediators. &f CA)fails, the 3D1 is underta<en by the 3D1 judge, acting as amediator-conciliator-early neutral evaluator. %he third case isduring appeal, where covered cases are referred to AC).

A.=. No. 1#3,SC- Precautionary Princi+le !01"0%

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!'




'o.&&.B. =hat do you understand about the LprecautionaryprincipleL under the 1ules of rocedure for "nvironmental Cases>(72

S&GGES'E( ANS)ER* recautionary principles states that when human activities maylead to threats of serious and irreversible damage to theenvironment that is scientiEcally plausible but uncertain,actions shall be ta<en to avoid or diminish that threat. &n itsessence, the precautionary principle calls for the e@ercise of caution in the face of ris< and uncertainty (!ec. 5f8, 1ule 4,art 4, and 1ule 0, A.). 'o. +---!C, 1ules of rocedure

for "nvironmentCases2.

;abeas (ata !01"1%

AJenith, the cashier of %emptation &nvestments, &nc.(%emptation, &nc.2 with principal oices in Cebu City, is eHuallyhated and loved by her co-employees because she e@tendscash advances or Lvales L to her colleagues whom she li<es.#ne morning, AJenith discovers an anonymous letter insertedunder the door of her oice threatening to <ill her.

AJenith promptly reports the matter to her superior 3oshua,who thereupon conducts an internal investigation to verify thesaid threat.

Claiming that the threat is real, %emptation, &nc. opts to transfer AJenith to its alawan #ice, a move she resists in view of the companyMs refusal to disclose the results of its investigation.

Decrying the move as a virtual deprivation of her employment, AJenith Eles a petition for the issuance of a writ of habeas atabefore the 1egional %rial Court (1%C2to enjoin %emptation, &nc.from transferring her on the ground that the companyMs refusalto provide her with a copy of the investigation resultscompromises her right to life, liberty and privacy.1esolve the petition. "@plain. (72

S&GGES'E( ANS)ER*

AJenith’s petition for the issuance of a writ of habeas datamust be dismissed as

there is no showing that her right to privacy in life, liberty,or security is violated or threatened by an unlawful act or

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!!




omission. 'either was the company shown to be engaged inthe gathering, collecting nor storing of data or informationregarding the person, family, home and correspondence of theaggrieved party (!ec. 4, 1ule on the =rit of abeas Data2.

;abeas (ata !011#%

=hat is the writ of habeas data>

S&GGES'E( ANS)ER* A writ of habeas data is a remedy available to any personswhose right to privacy in life, liberty, or security is violated or

threatened with violation by unlawful act or omission of apublic oicial or employee, or of a private individual or entityengaged in the gathering, collecting, or storing of data orinformation regarding the person, family, home andcorrespondence of the aggrieved party.

R.A. 61"#- PreSus+ension ;earing !01"0%

K, an undersecretary of D"'1, was charged before the!andiganbayan for malversation of public funds allegedlycommitted when he was still the )ayor of a town in 1iJal. After

arraignment, the prosecution moved that K be preventivelysuspended. K opposed the motion arguing that he was nowoccupying a position dierent from that which the &nformationcharged him and therefore, there is no more possibility that he canintimidate witnesses and hamper the prosecution. Decide.

!uppose K Eles a )otion to Puash challenging the validity of the &nformation and the !andiganbayan denies the same, willthere still be a need to conduct a pre-suspension hearing>"@plain. (72

S&GGES'E( ANS)ER*

%here is no necessity for the court to conduct pre-suspensionhearing. nder !ection 46 of 1A 'o. 64+, an incumbentpublic oicer against whom any criminal prosecution under a valid information for graft-related crime such as malversation ispending in court, shall be suspended from oice. %he wordXoiceY, from which the public oicer charged shall bepreventively suspended, could apply to any oice, which hemight currently be holding and not necessarily the particular

oice under which he was charged. %he preventive suspensionof the following public oicers was sustainedN (42 a mayor,

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!(




who was charged with acts committed as a government auditorof the Commission on Audit (Bayot vs. !andiganbayan, ;.1. 'o.:-4** to :-44, )arch 06, 4+2/ (02 a public oicer, whowas already occupying the oice of governor and not theposition of municipal mayor that he held previously whencharged with having violated Anti-;raft :aw (Deloso vs.!andiganbayan, ;.1. 'o. ++, )ay 4, 4++2/ (62 a 9ice-;overnor, whose suspension is predicated on his actssupposedly committed while still a member of the !angguniangBayan (:ibanan vs. !andiganbayan, ;.1. 'o. 4406, 3une 4,4++2. %hus, the D"'1 undersecretary can be preventivelysuspended even though he was a mayor, when he allegedlycommitted

malversation.

!ettled is the rule that where the accused Eles a motion toHuash the information or challenges the validity thereof, a showcause order of the trial court would no longer be necessary.=hat is indispensable is that the trial court duly hear theparties at a hearing held for determining the validity of theinformation, and thereafter hand down its ruling, issuing thecorresponding order of suspension should it uphold the validity of the information (:uciano vs. )ariano, ;.1. 'o. :-60+, 3uly6, 4+*42. !ince a pre-suspension hearing is basically a due

process reHuirement, when an accused public oicial is givenan adeHuate opportunity to be heard on his possible defensesagainst the mandatory suspension under 1A 'o. 64+, then anaccused would have no reason to complain that no actualhearing was conducted ()iguel vs. %he onorable!andiganbayan, ;.1. 'o. 4*06, 3uly , 0402. &n the factsgiven, the D"'1 ndersecretary was already given opportunityto Huestion the validity of the &nformation for malversation byEling a motion to Huash, and yet, the !andiganbayan sustained its validity. %here is no necessity for the court to conduct pre-

suspension hearing to determine for the second time the validity of the information for purpose of preventively suspendingthe accused.

AL'ERNA'I:E ANS)ER* %he argument that K should not be suspended as he nowholds an oice dierent from that charged in the information isunavailing. nder !ection 46(e2 of 1A 64+, a public oicer maybe charged before the !andiganbayan for Xcausing undue injuryto any party, including the ;overnment, or giving any private

party any unwarranted beneEts, advantage or preference in thedischarge of his oicial, administrative or judicial function

Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "!




through manifest partiality, evident bad faith or grossine@cusable negligence.Y %he !upreme Court has held that!ection 46 of 1A 64+ is so clear and e@plicit that there ishardly room for any e@tended court rationaliJation of the law.reventive suspension is mandatory regardless of therespondent‟s change in position.

R.A. 61"#- Remedies !01"6%

Qou are the defense counsel of Angela Bituin who has beencharged under 1A 64+ ( Anti-;raft and Corrupt ractices Act 2before the !andiganbayan. =hile Angela has posted bail, shehas yet to be arraigned. Angela revealed to you that she has

not been investigated for any oense and that it was onlywhen police oicers showed up at her residence with a warrantof arrest that she learned of the pending case against her. !hewonders why she hasbeen charged before the !andiganbayan when she is not ingovernment service.

(A2 =hat Lbefore-trialL remedy would you invo<e in AngelaMsbehalf to address the factthat she had not been investigated at all, and how would youavail of this remedy>

(72

S&GGES'E( ANS)ER*

& will Ele a )otion for the conduct of preliminary investigationor reinvestigation and the Huashal or recall of the warrant of arrest in the Court where the case is pending with anadditional prayer to suspend the arraignment. nder !ection of 1ule 440 of the 1ules of Court, after the Eling of the complaintor information in court without a preliminary investigation, the

accused may within Eve days from the time he learns of itsEling as< for preliminary investigation with the same right toadduce evidence in his defense. )oreover, !ection 0, 1ule 44of the 1ules on Criminal rocedure provides that anapplication for or admission to bail shall not bar the accusedfrom challenging the validity of his arrest or legality of thewarrant issued therefor, or from assailing the regularity orHuestioning the absence of a preliminary investigation of thecharge against him, provided that he raises them beforeentering his plea. %he court shall resolve the matter as early aspracticable but not later than the start of the trial of the case.

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AL'ERNA'I:E ANS)ER*

& will Ele a )otion to Puash on the ground that the!andiganbayan has no jurisdiction over the person of theaccused (!ection 6, 1ule 44* of the 1ules of Criminalrocedure2.

%he !andiganbayan has e@clusive original jurisdiction over violations of 1.A. 64+ (Anti-graft and Corrupt ractices law2where one or more of the accused are oicials occupying theenumerated positions in the government whether in a permanent,acting, or interim incapacity, at the time of the commission of the oense (!ec. , 1.A. 0+2.

&n Bondoc vs. !andiganbayan, ;.1. 'o. *446-, 'ovember +,4++, the !upreme Court held that before the !andiganbayanmay lawfully try a private individual under D 4, thefollowing reHuisites must be establishedN (a2 he must becharged with a public oicerFemployee/ and (b2 he must betried jointly. !ince the aforementioned reHuisites are notpresent, the !andiganbayan has no jurisdiction.

(B2 =hat Lduring-trialL remedy can you use to allow an earlyevaluation of the prosecution evidence without the need of

presenting defense evidence/ when and how can you avail of thisremedy> (72

S&GGES'E( ANS)ER* & will Ele a )otion for :eave to Ele a Demurrer to "videncewithin Eve (2 days from the time the prosecution has restedits case. &f the motion is granted, & will Ele a demurrer toevidence within a non-e@tendible period of %en (42 days fromnotice. owever, if the motion for leave to Ele demurrer to

evidence is denied, & can adduce evidence for the accusedduring the trial to meet sHuarely the reasons for its denial(!ection 06, 1ule 44+, 1ules of Criminal rocedure2.

%his remedy would allow the early evaluation of thesuiciency of prosecution’s evidence without the need of presenting defense evidence. &t may be done through the court’sinitiative or upon motion of the accused and after theprosecution rested its case.

Small Claims (2013)

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As a new lawyer, Attorney 'ovato limited his practice to smallclaims cases, legal counseling and the notariJation of documents. e put up a solo practice law oice and wasassisted by his wife who served as his secretaryFhelper. eused a ma<eshift hut in a vacant lot near the local courts and alocal transport regulatory agency. =ith this practice andlocation, he did not have big-time clients but enjoyed heavypatronage assisting wal<-in clients.

(A2 =hat role can Attorney 'ovato play in small claims caseswhen lawyers are notallowed to appear as counsel in these cases> (672

S&GGES'E( ANS)ER*

Atty. 'ovata may provide legal assistance to his clients bygiving counselling and guidance in the preparation andaccomplishment of the necessary documents and Aidavits toinitiate or defend a small claims action including thecompilation and notariJation of the aforementioned documents,if necessary.

(B2 =hat legal remedy, if any, may Attorney 'ovato pursue for a

client who loses in asmall claims case and before which tribunal or court may this bepursued> (72

S&GGES'E( ANS)ER* Atty. 'ovata may Ele a petition for Certiorari under 1ule of the 1ules of Court before the 1%C since a decision in smallclaims cases is Enal and unappealable (!ec. 06, A.). 'o. --*!C, 1ules of rocedure for !mall Claims Cases2. %he petition for

certiorari should be Eled before the 1%C conformably to therinciple of judicial ierarchy.

Writ of Amparo; Habas Corpus (200!)

=hat is the writ of amparo> ow is it distinguished from thewrit of habeas corpus>

S&GGES'E( ANS)ER* A writ of amparo is a remedy available to any person whose right

to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public oicial or

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employee, or of a private individual or entity. %he writ shallcover e@tralegal <illings and enforced disappearances orthreats thereof.

=hereas a writ of habeas corpus is a remedy available to anyindividual who is deprived of liberty or whose rightful custodyof any person is withheld, by unlawful conEnement or detention.

A writ of amparo may be appealed to the !upreme Court under1ule raising Huestions of fact or law or both. %he appealshall be made within wor<ing days from the date of noticeof the adverse judgment.

%he period for appeal for habeas corpus shall be hoursfrom the notice of the judgment appealed from.

Administrative Proceedings !011<%

1egional Director A; of the Department of ublic =or<s and

ighways was charged with violation of !ection 6(e2 of 1epublic

Act 'o. 64+ in the #ice of the #mbudsman. An administrative

charge for gross misconduct arising from the transaction subject

matter of said criminal case was Eled against him in the same

oice. %he #mbudsman assigned a team

composed of investigators from the #ice of the !pecial rosecutor

and from the #ice of the Deputy #mbudsman for the )ilitary to

conduct a joint investigation of the criminal case and the

administrative case. %he team of investigators recommended to the

#mbudsman that A; be preventively suspended for a period not

e@ceeding si@ months on its Ending that the evidence of guilt is

strong. %he #mbudsman issued the said order as recommended bythe investigators.

A; moved to reconsider the order on the following groundsN (a2 the

#ice of the !pecial rosecutor had e@clusive authority to conduct

a preliminary investigation of the criminal case/ (b2 the order for

his preventive suspension was premature because he had yet to Ele

his answer to the administrative complaint and submit

countervailing evidence/ and (c2 he was a career e@ecutive service

oicer and under residential Decree 'o. * (Civil !ervice :aw2,

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his preventive suspension shall be for a ma@imum period of three

months. 1esolve with reasons the motion of respondent A;. (72

S&GGES'E( ANS)ER*

%he motion should be denied for the following reasonsN

4 %he #ice of the !pecial rosecutor does not have e@clusive

authority to conduct a preliminary investigation of the criminal

case but it participated in the investigation together with the

Deputy #mbudsman for the )ilitary who can handle cases of

civilians and is not limited to the military.

0 %he order of preventive suspension need not wait for theanswer to the administrative complaint and the submission of

countervailing evidence. (;arcia v. )ojica, ;.1. 'o. 46+6,

!eptember 4, 4+++2 &n 9asHueJ case, ;.1. 'o. 444, April ,

4++, the court ruled that preventive suspension pursuant to !ec.

0 of 1.A. 'o. ** (#mbudsman Act of 4++2, shall continue until

termination of the case but shall not e@ceed si@ (2 months, e@cept

in relation to 1.A. 'o, 64+ and .D. 'o. *. As a career e@ecutive

oicer, his preventive suspension under the Civil !ervice :aw may

only be for a ma@imum period of three months. %he period of thesuspension under the Anti-;raft :aw shall be the same pursuant to

the eHual protection clause. (;arcia v. )ojica, ;.1. 'o. 46+6,

!eptember 4, 4+++/ :ayno v. !andiganbayan, ;.1. 'o. :-,

)ay 04, 4+2

Congress- La8 E+ro+riating Pro+erty !0113%

)ay Congress enact a law providing that a , sHuare meter lot,

a part of the !% compound in !ampaloc )anila, be e@propriated

for the construction of a par< in honor of former City )ayor Arsenic :acson> As compensation to !%, the City of )anila shall

deliver its -hectare lot in !ta. 1osa, :aguna originally intended as

a residential subdivision for the )anila City all employees.

"@plain. (72

S&GGES'E( ANS)ER*

Qes, Congress may enact a law e@propriating property provided

that it is for public use and with just compensation. &n this case, the

construction of a par< is for public use (!ee !ena v. )anila 1ailroadCo., ;.1. 'o. 4+4, !eptember *, 4+04/ 1eyes v. 'A, ;1 'o.

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