2015 Bar Exam Suggested Answers in Remedial Law by the UP Law Complex

FEBRUARY 15, 2019

I.

Lender extended to Borrower a P100,000.00 loan covered by a promissory note. Later, Borrower
obtained another P100,000.00 loan again covered by a promissory note. Still later, Borrower obtained a
P300,000.00 loan secured by a real estate mortgage on his land valued at P500,000.00 Borrower
defaulted on his payments when the loans matured. Despite demand to pay the P500,000.00 loan,
Borrower refused to pay, Lender, applying the totality rule, filed against Borrower with the Regional Trial
Court (RTC) of Manila, a collection suit for P500,000.00.

(A) Did Lender correctly apply the totality rule and the rule on joinder of causes of action? (2%)

At the trial, Borrower’s lawyer, while cross-examining Lender, successfully elicited an admission from the
latter that the two promissory notes have been paid. Thereafter, Borrower’s lawyer filed a motion to
dismiss the case on the ground that as proven only P300,000.00 was the amount due to Lender and
which claim is within the exclusive original jurisdiction of the Metropolitan Trial Court. He further argued
that lack of jurisdiction over the subject matter can be raised at any stage of the proceedings.

(B) Should the court dismiss the case?(3%)

SUGGESTED ANSWER

(A) Yes. The Lender correctly applied the totality rule and the rule on joinder of causes of action because
where the claims in all the causes of action are principally for recovery of money, the aggregate amount
of the claim shall be the test of jurisdiction (Section 5 (d), Rule 2, Rules of Court). Here, the total amount
of the claim is P500,000.00. Hence, the Regional Trial Court (RTC) of Manila has jurisdiction over the suit.
At any rate, it is immaterial that one of the loans is secured by a real estate mortgage because the
Lender opted to file a collection of sum of money instead of foreclosure of the said mortgage.
(B) No. The court should not dismiss the case. What determines the jurisdiction of the court is the nature
of the action pleaded as appearing from the allegations in the complaint. The averments therein and the
character of the relief sought are the ones to be consulted (Navida v. Hon. Teodoro A. Dizon, Jr., G.R. No.
125078, May 30, 2011).

Accordingly, even if the defendant is able to prove in the course of the trial that a lesser amount is due,
the court does not lose jurisdiction and a dismissal of the case is not in order (Paadlan v. Dinglasan, G.R.
No. 180321, March 20, 2013).

II.

Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against siblings Scylla and
Charybdis, co-owners of the property and cosignatories to the mortgage deed. The siblings permanently
reside in Athens, Greece. Circe tipped oft Sherilt Pluto that Scylla is on a balikbayan and is billeted at the
Century Plaza Hotel in Pasay City, Sheriff Pluto went to the hotel and personally served Scylla the
summons, but the latter refused to receive summons for Charybdis as she was not authorized to do so.
Sheriff Pluto requested Scylla for the email address and has number of Charybdis which the latter readily
zave. Sheriff Pluto, in his return of the summons, stated that “Summons for Scylla was served personally
as shown by her signature on the receiving copy of the summons, Summons on Charybdis was served
pursuant to the amendment of Rule 14, by facsimile transmittal of the surmons and complaint on
defendant’s far number as evidenced by transmission verification report automatically generated by the
fax machine indicating that it was received by the fax number to which it was sent on the date and time
indicated therein.” Circe, sixty (60) days after her receipt of Sheriff Pluto’s return, filed a Motion to
Declare Charybdis in default as Charybdis did not file any responsive pleading.

A) Should the court declare Charybdis in default? (2%)

Scylla seasonably filed her answer setting forth therein as a defense that Charybdis had paid the
mortgage debt.
(B) On the premise that Charybdis was properly declared in default, what is the effect of Scylla’s answer
to the complaint? (2%)

SUGGESTED ANSWER

(A) No, the Court should not declare Charybdis in default because there was no proper service of
summons. Section 12, Rule 14 of the Rules of Court applies only to a foreign private juridical entity that
is not registered in the Philippines and has no resident agent in the country, and not to individuals (A.M.
No. 11-3-6-SC, March 15, 2011). The service of summons by facsimile under said rule is, therefore,
defective. A foreclosure of real estate mortgage is a quasi in rem action, thus, the court can render a
judgment as long as it has jurisdiction over the res and any of the modes of extra-territorial service of
summons under Sec. 15 of Rule 14 is complied with prior leave of court. There is, unfortunately, no
showing in the problem that a prior leave of court was obtained before resorting to extra-territorial
service of summons; hence, the service of summons is defective.

(B) Assuming that Charybdis was properly declared in default, the court shall try the case against all the
defendants upon the Answer filed by: Scylla, and render judgment upon the evidence presented (Section
3 (c), Rule 9, Rules of Court).

III.

Juliet, invoking the provisions of the Rule on Violence Against Women and their Children filed with the
RTC designated as a Family Court a petition for the Issuance of a Temporary Protection Order (TPO)
against her husband Romeo.

The Family Court issued a 30-day TPO against Romeo. A day before the expiration of the TPO, Juliet filed
a motion for extension. Romeo in his opposition raised, among others, the constitutionality of R.A. No.
1992 (The VAWC LAW) arguing that the law authorizing the issuance of the TPO violates the equal
protection and due process clauses of the 1987 Constitution. The Family Court judge, in granting the
motion for extension of the TPO, declined to rule on the constitutionality of R.A. No. 9262. The Family
Court judge reasoned that Family Courts are without jurisdiction to pass upon constitutional issues,
being a special court of limited jurisdiction and R.A. No. 8369, the law creating the Family Courts, does
not provide for such jurisdiction. Is the Family Court judge correct when he declined to resolve the
constitutionality of R.A. No. 9262? (3%)
SUGGESTED ANSWER

No, the Family Court Judge is not correct when it declined to resolve the constitutionality of R.A. No.
9262. In Garcia v. Hon. Ray Allan Drilon (G.R. No. 179267, June 25, 2013), the Supreme Court held that
the “Family Courts have authority and jurisdiction to resolve the constitutionality of a statute. Inspite of
its designation as a family court, the RTC remains possessed of authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land registration,
guardianship, naturalization, admiralty any or insolvency. This authority is embraced in the general
definition of the judicial power to determine the valid and binding laws in conformity with the
fundamental law.”

IV

Strauss filed a complaint against Wagner for cancellation of title. Wagner moved to dismiss the
complaint because Grieg, to whom he mortgaged the property as duly annotated in the TCT, was not
impleaded as defendant.

(A) Should the complaint be dismissed? (3%)

(B) If the case should proceed to trial without Grieg being impleaded as a party to the case, what is his
remedy to protect his interest? (2%)

SUGGESTED ANSWER

(A) No. The complaint should not be dismissed because the mere non-joiner of an indispensable party is
not a ground for the dismissal of the action (Section 11, Rule 3, Rules of Court; Republic v. Hon.
Mangotara, G.R. No. 170375, July 7, 2010, 624 SCRA 360, 431).
(B) If the case should proceed to trial without Grieg being impleaded as a party, he may intervene in the
action (Section 1, Rule 19, Rules of Court). He may also file a petition for annulment of judgment under
Rule 47 of the Rules of Court. In Metrobank v. Hon. Floro Alejo (G.R. No. 141970, September 10, 2001),
the Supreme Court held that in a suit to nullify an existing Torrens Certificate of Title (TCT) in which a real
estate mortgage is annotate the mortgagee is an indispensable party. In such suit, a decision canceling
the TCT and the mortgage annotation is subject to a per for annulment of judgment, because the non-
joinder of the mor 80% deprived the court of jurisdiction to pass upon the controversy. “

V.

Ernie filed a petition for guardianship over the person and properties of his father, Ernesto. Upon receipt
of the notice of hearing, Ernesto filed an opposition to the petition. Ernie, before the hearing of the
petition, filed a motion to order Ernesto to submit himself for mental and physical examination which
the court granted. After Ernie’s lawyer completed the presentation of evidence in support of the petition
and the court’s ruling on the formal offer of evidence, Ernesto’s lawyer filed a demurrer to evidence.
Ernie’s lawyer objected on the ground that a demurrer to evidence is not proper in a special proceeding.

(A) Was Ernie’s counsel’s objection correct?

(B) If Ernesto defies the court’s order directing him to submit to physical and mental examinations, can
the court order his arrest? (2%)

SUGGESTED ANSWER

(A) No. The Rule on demurrer to evidence is applicable to Special

(B) If the order for the conduct of physical and mental examination is issued as a mode of discovery and
Ernesto defies the said order, the court cannot validly order his arrest (Section 3 (d), Rule 29 of the Rules
of Court).

VI.

A law was passed declaring Mt. Karbungko as a protected area since it was a major watershed. The
protected area covered a portion located in Municipality of the Province I and a portion located in the
City of Z of Province II. Maingat is the leader of Samahang Tagapag-ingat ng Karbungko (STK), a people’s
organization. He learned that a portion of the mountain located in the City of Z of Province Il was
extremely damaged when it was bulldozed and leveled to the ground, and several trees and plants were
cut down and burned by workers of World Pleasure Resorts, Inc. (WPRI) for the construction of a hotel
and golf course. Upon inquiry with the project site engineer if they had a permit for the project, Maingat
was shown a copy of the Environmental Compliance Certificate (ECC) issued by the DENR-EMB, Regional
Director (RD-DENR-EMB). Immediately, Maingat and STK filed a petition for the issuance of a writ of
continuing mandamus against RD-DENR-EMB and WPRI with the RTC of Province I, a designated
environmental court, as the RD-DENR-EMB negligently issued the ECC to WPRI. On scrutiny of the
Petition, the Court determined that the area where the alleged actionable or omission subject of the
petition took place in the City of Z of Province II, and therefore cognizable by the RTC of Province II. Thus,
the court dismissed outright the petition for lack of jurisdiction.

(A) Was the court correct in motu proprio dismissing the petition? (3%)
Assuming that the court did not dismiss the petition, the RD-DENR–EMB in his Comment moved to
dismiss the petition on the ground that petitioners failed to appeal the issuance of the ECC and to
exhaust administrative remedies provided in the DENR Rules and Regulations.

(B) Should the court dismiss the petition? (3%)

SUGGESTED ANSWER

A) No. The court was not correct in motu propio dismissing the petition.

While it appears that the alleged actionable neglect or omission took place in the City of Z of Province II
and, therefore cognizable by the RTC of Province II, nonetheless, venue is not jurisdictional, and it can be
waived in a special civil action for continuing mandamus (Dolot v. Paje, G.R. No. 199199, August 27,
2013). Besides, under Section 1, Rule 9 of the Rules of Court, defenses and objections not pleaded in the
answer or in the motion to dismiss are deemed waived. Hence, the Court cannot motu proprio dismiss
the case on the ground of improper venue.

(B) Yes, the Court should dismiss the petition because the proper procedure to question a defect in an
ECC is to follow the DENR administrative appeal process in accordance with the doctrine of exhaustion of
administrative remedies (Dolot v. Hon. Paje, G.R. No. 199199, August 27, 2013; Paje v. Casiño, G.R. No,
207257, February 3, 2015).

ALTERNATIVE ANSWER

(B) No, the Court should not dismiss the petition because the doctrine of exhaustion of administrative
remedies finds no application when the matter is of extreme urgency that may cause great and
irreparable damage to the environment involving strong public interest. After all, the Court may suspend
the rules of procedure in order to achieve substantial justice, and to address urgent and paramount State
inter ests vital to the life of our nation (Boracay Foundation, Inc. v. Province of Aklan, G.R. No. 196870,
June 26, 2012; Paje v. Casiño, G.R. No, 207257, February 3, 2015).
VII.

Plaintiff sued defendant for collection of P1 million based on the la promissory note. The complaint
alleges, among others:

1) Defendant borrowed P1 million from plaintiff as evidenced by a duly executed promissory note;

2) The promissory note reads:

“Makati, Philippines Dec. 30, 2014

For value received from plaintiff, defendant ‘promises to pay plaintiff P1 million, Twelve (12) months
from the above indicated date without necessity of demand.

Signed defendant

A copy of the promissory note is attached as Annex “A.”

1) Defendant specifically denies the allegation in paragraphs 1 and 2 of the complaint, the truth being
defendant did not execute any promissory note in favor of plaintiff, or 2) Defendant has paid 1 million
claimed in the promissory note (Annex

“A” of the Complaint) as evidenced by an “Acknowledgment Receipt” duly executed by plaintiff on

A copy of the “Acknowledgment Receipt” is attached as Annex “1” hereof

Plaintiff filed a motion for judgment on the pleadings on the ground that defendant’s answer failed to
tender an issue as the allegations therein on his defenses are sham for being inconsistent; hence, no
defense at all, Defendant filed an opposition claiming his answer tendered an issue.

(A) Is judgment on the pleadings proper? (3%)

Defendant filed a motion for summary judgment on the ground that there are no longer any triable
genuine issues of facts.

(B) Should the court grant defendant’s motion for summary judgment?(3%)

SUGGESTED ANSWER
(A) No, the judgment on the pleadings is not proper. Judgment on the pleadings is proper only when the
answer fails to tender an issue, or otherwise admits the material allegation of the adverse party’s
pleading (Section 1, Rule 34, Rules of Court). When it appears, however, that not all the material
allegations of the complaint were admitted in the answer, because some of them were either denied or
disputed, and the defendant has set up certain special defenses which, it proven, would have the effect
of nullifying plaintiff’s main cause of action, judgment on the pleadings cannot be rendered (Philippine
National Bank v. Aznar, G.R. No.171805, May 30. 2011).

Clearly, since the defendant’s verified Answer specifically denied the execution of the promissory note,
or raised the affirmative of payment, judgment on the pleadings is not proper.

(B) No, the court should not grant the motion for summary judgment because the defense of payment is
a genuine issue as to a material fact that must be resolved by the court upon presentation of evidence.
For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the amount of damages, and (b) the party presenting
the motion for summary judgment must be entitled to a judgment as a matter of law. A genuine issue is
an issue of fact which requires the presentation of evidence as distinguished from an issue which is a
sham, fictitious, contrived or a false claim. Relative thereto, when the facts pleaded by the parties are
disputed or contested, proceedings for a summary judgment cannot take the place of a trial. The
evidence on record must be viewed in light most favorable to the party opposing the motion who must
be given the benefit of all favorable inferences as can reasonably be drawn from the evidence (Smart
Communications v. Aldecoa, G.R. No. 166330, September 11, 2013).

VIII

Aldrin entered into a contract to sell with Neil over a parcel of land. The contract stipulated a
P500,000.00 down payment upon signing and the balance payable in twelve (12) monthly installments of
P100,000.00. Aldrin paid the down payment and had paid three (3) monthly installments when he found
out that Neil had sold the same property to Yuri for P1.5 million paid in cash. Aldrin sued Neil for specific
performance with damages with the RTC. Yuri, with leave of court, filed an answer-in-intervention as he
had already obtained a TCT in his name. After trial, the court rendered judgment ordering Aldrin to pay
all the installments due, the cancellation of Yuri’s title, and Neil to execute a deed of sale in favor of
Aldrin. When the judgment became final and executory, Aldrin paid Neil all the installments but the
latter refused to execute the deed of sale in favor of the former. Aldrin filed a “Petition for the Issuance
of a Writ of Execution with proper notice of hearing. The petition alleged, among others, that the
decision had become final and executory and he is entitled to the issuance of the writ of execution as a
matter of right. Neil filed a motion to dismiss the petition on the ground that it lacked the required
affidavit against forum shopping.

(A) Should the court grant Neil’s Motion to Dismiss? (3%)

Despite the issuance of the writ of execution directing Neil to execute the deed of sale in favor of Aldrin,
the former obstinately refused to execute the deed.

(B) What is Aldrin’s remedy? (2%)

SUGGESTED ANSWER

(A) No. The motion to dismiss should be denied because certification against forum shopping is only
required in a complaint or other initiatory pleading (Section 5, Rule 7, Rules of Court; Arquiza v. CA, G.R.
NO 160479, June 8, 2005). Since a petition for the issuance of a writ of execution is not an initiatory
pleading, it does not require a certification against forum shopping.

[Note: The Committee respectfully recommends a liberal approach in checking the answer to Question
VIII, should the examinees consider the “Petition for the Issuance of a Writ of Execution” an initiatory
pleading or question the correct ness of the Trial Court’s decision. The contract with Aldrin is a contract
to sell with the purchase price not fully paid, while that of Yuri is a perfected contract of sale, plus
delivery of the public document and issuance of TCT, making Yuri the owner of the land].
(B) Aldrin may move for the issuance of a court order directing the execution of the Deed of Sale by
some other person appointed by it. Under Section 10, Rule 39 of the Rules of Court, if a judgment directs
a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or
to perform, any other specific act in connection therewith, and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done shall have like effect as if done by the party. If
real or personal property is situated v:ithin the Philippines, the court in lieu of directing a conveyance
thereof may by an order divest the title of any party and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law.

The phrase “some other person appointed by the court” may refer to the Branch Clerk of Court, Sheriff
or even the Register of Deeds, and their acts when done under such authority shall have the effect of
having been done by Neil himself.

ALTERNATIVE ANSWER

(B) Aldrin may also move that Neil be cited for contempt because of his obstinate refusal to comply with
the judgment of the court to execute a Deed of Sale.

IX

Hades, an American citizen, through a dating website, got acquainted with Persephone, a Filipina. Hades
came to the Philippines and proceeded to Baguio City where Persephone resides. Hades and Persephone
contracted marriage, solemnized by the Metropolitan Trial Court judge of Makati City, After the wedding,
Hades flew back to California, United States of America, to wind up his business affairs. On his return to
the Philippines, Hades discovered that Persephone had an illicit affair with Phanes. Immediately, Hades
returned to the United States and was able to obtain a valid divorce decree from the Superior Court of
the County of San Mateo, California, a court of competent jurisdiction against Persephone. Hades desires
to marry Hestia, also a Filipina, whom he met at Baccus Grill in Pasay City.
(A) As Hades’ lawyer, what petition should you file in order that your client can avoid prosecution for
bigamy if he desires to marry Hestia? (%)

(B) In what court should you file the petition? (1%)

(C) What is the essential requisite that you must comply with for the purpose of establishing
jurisdictional facts before the court can hear the petition? (3%)

SUGGESTED ANSWER

(A) As Hades’ lawyer, I would file a petition for recognition of a foreign divorce decree, or at least file a
special proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the
Rules of Court and include therein a prayer for recognition of the aforementioned divorce decree, CruZ
v. Sto. Tomas (G.R. No. 186571, August 11, 2010), the High declared that “[t]he recognition of the foreign
divorce decree made in a Rule 108 proceeding itself, as the object of special proceedings (such as that in
Rule 108 of the Rules of Court) is precisely establish the status or right of a party or a particular
fact”(Fujiki v. Marinay, G.R. No. 196049, June 26, 2013).

(B)

Petition for recognition of foreign divorce decree should be filed in the Regional Trial Court of the place
of residence of any of the parties, at the option of the petitioner; or

Petition for cancellation or correction of entries under Rule 108 should be filed in the Regional Trial
Court of Makati City, where the corresponding Local Civil Registry is located.

(c)

In a petition for recognition of foreign judgment, the petitioner only needs to prove the foreign
judgment as a fact under the Rules of Court. To be more specific, a copy of the foreign judgment may be
admitted in evidence and proven as a fact under Sections 24 and 25 of Rule 132 in relation to Section
48(b), Rule 39 of the Rules of Court (Fujiki v. Marinay G.R. No. 196049, June 26, 2013).
Before the court can hear the petition under Rule 108 of the Rules of Court, Hades must satisfy the
following procedural requirements;(a) filing a verified petition; (b) naming as parties all persons who
have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of
hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the
order once a week for three consecutive weeks in a newspaper of general circulation (Rule 108, Rules of
Court; Co v. Civil Register of Manila, G.R. No. 138496, February 23, 2004, 423 SCRA 420; Corpuz v. Tirol,
G.R. No. 186571, August 11, 2010).

ALTERNATIVE ANSWER

(A) As Hades’ counsel, I will not file any petition because my client is an American citizen, and only
Filipino citizens are required to file a petition for recognition of a foreign judgment. I will advise Hades,
nonetheless, to secure a certificate of legal capacity to marry in the Philippines if he desires to marry
Hestia, in order to avoid prosecution for bigamy.

X.

An information for murder was filed against Rapido. The RTC judge, after personally evaluating the
prosecutor’s resolution, documents and parties’ affidavits submitted by the prosecutor, found probable
cause and issued a warrant of arrest. Rapido’s lawyer examined the rollo of the case and found that it
only contained the copy of the information, the submissions of the prosecutor and a copy of the warrant
of arrest. Immediately, Rapido’s counsel filed a motion to quash the arrest warrant for being void, citing
as grounds:

a). The judge before issuing the warrant did not personally conduct a searching examination of the
prosecution witnesses in violation of his client’s constitutionally-mandated rights;

b) There was no prior order finding probable cause before the judge issued the arrest warrant.

May the warrant of arrest be quashed on the grounds cited by Rapido’s counsel? State your reason for
each ground. (4%)
SUGGESTED ANSWER

No, the warrant of arrest may not be quashed based on the grounds cited by Rapido’s counsel. In the
issuance of a warrant of arrest, the mandate of the constitution is for the judge to personally determine
the existence of probable cause. The words “personal determination,” was interpreted by the Supreme
Court in Soliven v. Makasiar, (G.R. No. 82585, November 14, 1988, 167 SCRA 393, 406), as the exclusive
and personal responsibility of the issuing judge to satisfy himself, as to the existence of probable cause.
What the law requires as personal determination on the part of a judge is that he should not rely solely
on the report of the investigating prosecutor. Thus, personal examination of the complainant and his
witnesses is, thus, not mandatory and indispensable in the determination of probable cause for the
issuance of a warrant of arrest (People v. Joseph “Jojo” Grey, G.R. No. 10109, July 26, 2010). At any rate,
there is no law or rule that requires the Judge to issue a prior Order finding probable cause before the
issuance of a warrant of arrest.

XI.

The Ombudsman found probable cause to charge with plunder d probable cause to charge with plunder
the provincial governor, vice governor, treasurer, budget officer, and accountant. An Information for
plunder was filed with the Sandiganbayan against the provincial officials except for the treasurer who
was granted immunity when he agreed to cooperate with the Ombudsman in the prosecution of the
case. Immediately, the governor filed with the Sandiganbayan a petition for certiorari against the
Ombudsman claiming there was grave abuse of discretion in excluding the treasurer from the
Information.

(A) Was the remedy taken by the governor correct? (2%)

(B) Will the writ of mandamus lie to compel the Ombudsman to include the treasurer in the
Information? (3%)

(C) Can the Special Prosecutor move for the discharge of the budget officer to corroborate the testimony
of the treasurer in the course of presenting its evidence. (2%)
SUGGESTED ANSWER

(A) No, the remedy taken by the Governor is not correct. The petition for certiorari is a remedy that is
only available when there is no plain, speedy and adequate remedy under the ordinary course of law;
hence, the Governor should have filed a Motion for Reconsideration. Besides, there is no showing that
the Ombudsman committed grave abuse of discretion in granting immunity to the treasurer who agreed
to cooperate in the prosecution of the case.

(B) No. Mandamus will not lie to compel the Ombudsman to include the treasurer in the Information. In
matters involving the exercise of judgment and discretion, mandamus may only be resorted to in order
to compel respondent tribunal, corporation, board, officer or person to take action, but it cannot be
used to direct the manner or the particular way discretion is to be exercised, or to compel the retraction
or reversal of an action already taken in the exercise of judgment or discretion (Ampatuan, Jr. v. Secretary
De Lima, G.R. No. 197291, April 3, 2013).

Evidently, the Ombudsman’s act of granting the treasurer immunity from prosecution under such terms
and conditions as it may deter mine (Section 17, R.A. 6770) is a discretionary duty that may not be
compelled by the extraordinary writ of mandamus.

(C) No. The special Prosecutor cannot move for the discharge of the budget officer to become a State
witness since his testimony is only corroborative to the testimony of the treasurer. Under Section 17,
Rule 119, the Court upon motion of the prosecution before resting its case, may direct one or more of
the accused to be discharged with their consent so that they may be witnesses for the State, provided
the following requisites are satisfied: (a) there is absolute necessity for the testimony of the accused
whose discharge is requested; (b) there is no other direct evidence available for the proper prosecution
of the offense committed, except the testimony of said accused; (c) the testimony of said accused can be
substantially corroborated in its material points; (d) said accused does not appear to be the most guilty;
and (e) said accused has not at any time been convicted of any offense involving moral turpitude.
Absolute necessity exists for the testimony of an accused sought to be discharged when he or she alone
has knowledge of the crime. In more concrete terms, necessity is not present when the testimony would
simply corroborate or otherwise strengthen the prosecution’s evidence. The requirement of absolute
necessity for the testimony of a state witness depends on the circumstances of each case regardless of
the number of the participating conspirators (Manuel J. Jimenez, Jr., v. People of the Philippines, G.R. No.
209195, September 17, 2014).
ALTERNATIVE ANSWER

(A) The remedy taken by the Governor is correct. A petition for Certiorari under Rule 65 is the
appropriate remedy if the Ombudsman committed grave abuse of discretion in granting immunity to the
treasurer who agreed to cooperate in the prosecution of the case.

(C) No, the special Prosecutor cannot move for the discharge of the budget officer to become a State
witness. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman
and may only act under the supervision and control, and upon authority of the Ombudsman (Uy v.
Sandiganbayan, G.R. No 105965 70, March 20, 2001). Accordingly, in the absence of any express
delegation and authority from the Ombudsman, the Special Prosecutor does not have the power to
move for the discharge of the budget officer to corroborate the testimony of the treasurer in the course
of presenting its evidence (Section 11 (3), R.A. 6770).

XII

Paz was awakened by a commotion coming from a condo unit next to hers. Alarmed, she called up the
nearby police station. PO1 Remus and PO2 Romulus proceeded to the condo unit identified by Paz. PO1
Remus knocked at the door and when a man opened the door, PO1 Remus and his companions
introduced themselves as police officers. The man readily identified himself as Oasis Jung and gestured
to them to come in. Inside, the police officers saw a young lady with her nose bleeding and face swollen.
Asked by PO2 Romulus what happened, the lady responded that she was beaten up by Oasis Jung. The
police officers arrested Oasis Jung and brought him and the young lady back to the police station. PO1
Remus took the young lady’s statement who identified herself as AA. She narrated that she is a sixteen-
year-old high school student; that previous to the incident, she had sexual intercourse with Oasis Jung at
least five times on different occasions and she was paid P5,000.00 each time and it was the first time
that Oasis Jung physically hurt her. PO2 Romulus detained Oasis Jung at the station’s jail. After the
inquest proceeding, the public prosecutor filed an information for Violation of R.A. No. 9262 (The VAWC
Law) for physical violence and five separate informations for violation of R.A. No. 7610 (The Child Abuse
Law). Oasis Jung’s lawyer filed a motion to be admitted to bail but the court issued an order that
approval of his bail bond shall be made only after his arraignment.

(A) Did the court properly impose that bail condition? (3%)

Before arraignment, Oasis Jung’s lawyer moved to quash the other four separate informations for
violation of the child abuse law invoking the single larceny rule.

(B) Should the motion to quash be granted? (2%) (C) After his release from detention on bail, can Oasis
Jung still question the validity of his arrest? (2%)

SUGGESTED ANSWER

(A) No. The court Revised Rules of Court court did not properly impose that bail condition. The Rules of
Criminal Procedure do not require the arraignment he accused as a prerequisite to the conduct of
hearings in the bail on. A person is allowed to file a petition for bail as soon as he is inrived of his liberty
by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing
the bail petition (Serapio v. Sandiganbayan, G.R. No. 149116, January 28, 2003).

Moreover, the condition that the approval of bail bonds shall be made only after arraignment would
place the accused in a position where he has to choose between: (1) filing a motion to quash (the
Information) and thus delay his released on bail because until his motion to quash can be resolved, his
arraignment cannot be held; and (2) foregoing the filing of a motion to quash (the Information) so that
he can be arraigned at once and thereafter be released on bail (Lavides v. Court of Appeals, G.R. No.
129670, February 1, 2000).

(B) No. The Court should not grant the motion to quash, because the “single larceny rule” does not find
application where the charges involve violations of R.A. 9262 (The VAWC Law) and R.A. No. 7610 (The
Child Abuse Law), considering that each criminal act is based on a different criminal impulse and intent.
In Santiago v. Garchitorena (G.R. No. 109266 December 2, 1993), the Supreme Court explained that the
“Single Larceny doctrine” applies only to crimes committed delito continuado, which exists if there
should be a plurality of acts performed during a period of time; unity of penal provision violated; and
unity of criminal intent or purpose, which means that two or more violations of the same penal
provisions are united in one and same instant or resolution leading to the perpetration of the same
criminal purpose or aim. The said rule applies in theft cases, where the taking of several things, whether
belonging to the same or different owners, at the same time and place constitutes but one larceny
(Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993).

[Note: The Committee respectfully recommends that the examinees be given full credit to any answer
provided to the question because the single larceny rule is not included in the 2015 BAR Examination
Syllabus in Remedial Law).

(C) Yes. Oasis Jung can still question the validity of his arrest even after his release from detention on
bail. Under Section 26, Rule 114 of the Rules of Court, an application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor,
or from assailing the regularity or questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea.

XIII.

Jaime was convicted for murder by the Regional Trial Court of Davao City. In a decision promulgated on
September 30, 2015. On October 5, 2015, Jaime filed a Motion for New Trial on the ground that errors of
law and irregularities prejudicial to his rights were committed during his trial. On October 7, 2015, the
private prosecutor, with the conformity of the public prosecutor, filed an Opposition to Jaime’s motion.
On October 9, 2015, the court granted Jaime’s motion. On October 12, 2015, the public prosecutor filed
a motion for reconsideration. The court issued an Order dated October 16, 2015 denying the public
prosecutor’s motion for reconsideration. The public prosecutor received his copy of the order of denial
on October 20, 2015, while the private prosecutor received his copy on October 26, 2015.
(A) What is the remedy available to the prosecution from the court’s order granting Jaime’s motion for
new trial? (3%)

(B) In what court and within what period should a remedy be availed of? (1%) (C) Who should pursue the
remedy? (2%)

SUGGESTED ANSWER

The remedy of the prosecution is to file a petition for certiorari under Rule 65 of the Rules of Court,
because the denial of a motion for reconsideration is merely an interlocutory order and there is no plain,
speedy and adequate remedy under the course of law. Be that as it may, it may be argued that appeal is
the appropriate remedy from an order denying a motion for reconsideration of an order granting a
motion for new trial because an order denying a motion for reconsideration was already removed in the
enumeration of matters that cannot be a subject of an appeal under Section 1, Rule 41 of the Rules of
Court.

(B) Following the principle of judicial hierarchy, the petition for certiorari should be filed before the Court
of Appeals within sixty (60) days from receipt of the copy of the order of denial of the public prosecutor’s
motion for reconsideration, or on October 20, 2015.

(C) The office of the Solicitor General should pursue the remedy. In criminal proceedings on appeal in the
Court of Appeals or in the Supreme Court, the authority to represent the people is vested solely in the
Solicitor General. Under Presidential Decree No. 478, among the specific powers and functions of the
OSG is to “represent the government in the Supreme Court and the Court of Appeals in all criminal
proceedings.” This provision has been carried over to the Revised Administrative Code particularly in
Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the appellate counsel of the People of
the Philippines in all criminal cases (Cariño v. de Castro, G.R. No. 176084, April 30, 2008).

XIV.
Pedro was charged with theft for stealing Juan’s cellphone worth 0000.00. Prosecutor Marilag at the pre-
trial submitted the judicial affidavit of Juan attaching the receipt for the purchase of the cellphone to
prove civil liability. She also submitted the judicial affidavit of Mario, an eyewitness who narrated therein
how Pedro stole Juan’s cellphone. At the trial, Pedro’s lawyer objected to the prosecution’s use of judicial
affidavits of her witnesses considering the imposable penalty on the offense with which his client was
charged.

(A) Is Pedro’s lawyer correct in objecting to the judicial affidavit of Mario? (2%)

(B) Is Pedro’s lawyer correct in objecting to the judicial affidavit of Juan? (2%)

At the conclusion of the prosecution’s presentation of evidence, Prosecutor Marilag orally offered the
receipt attached to Juan’s judicial affidavit, which the court admitted over the objection of Pedro’s
lawyer. After Pedro’s presentation of his evidence, the court rendered judg. ment finding him guilty as
charged and holding him civilly liable for P20,000.00 Pedro’s lawyer seasonably filed a motion for
reconsideration of the decision asserting that the court erred in awarding the civil liability on the basis of
Juan’s judicial affidavit, a documentary evidence which Prosecutor Marilag failed to orally offer.

(C) is the motion for reconsideration meritorious? (2%)

SUGGESTED ANSWER

(A) Yes, Pedro’s lawyer is correct in objecting to the judicial affidavit of Mario. The Judicial Affidavit Rules
shall apply only to criminal actions where the maximum of the imposable penalty does not exceed six
years (Section 9 (a) (1) of A.M. No. 12-8-8-SC or the Judicial Affidavit Rule). Here, the maximum
impossible penalty for the crime of theft of a cell phone worth P20,000.00 is prision mayor in its
minimum to medium periods, or six years and one day to eight years and one day. Thus, Pedro’s lawyer is
correct in objecting to the judicial affidavit of Mario.
[Note: The Committee respectfully recommends that the examinees be given full credit to any answer
given to the question, because the specific imposable penalties for crimes or offenses charged are not
included in the 2015 BAR Examination Syllabus in Remedial Law).

(B) No, Pedro’s lawyer is not correct in objecting to the judicial affidavit of

Juan because the Judicial Affidavit Rules apply with respect to the civil aspect of the actions, regardless
of the penalties involved (Section 9 of A.M. No. 12-8-8-SC or the Judicial Affidavit Rule). Here, the judicial
affidavit of Juan was offered to prove the civil liability of Pedro. Thus, the objection of Pedro’s lawyer to
the judicial affidavit of Juan is not correct.

(C) No. The motion for reconsideration is not meritorious. The judicial

affidavit is not required to be orally offered as separate documentary evidence, because it is filed in lieu
of the direct testimony of the witness. It is offered, at the time the witness is called to testify, and any
objection to it should have been made at the time the witness was presented (Sections 6 and 8, A.M. No.
12-8-8-SC or the Judicial Affidavit Rule). Since the receipt attached to the judicial affidavit was orally
offered, there was enough basis for the court to award civil liability.

ALTERNATIVE ANSWER (C) Yes the motion for reconsideration is meritorious The Judicial Affidavit Rules
require an oral offer of evidence upon the termination of the testimony of the last witness (Section 8,
AMNO, 12-8-8-SCO the Judicial Affidavit Rule).

XV.
Water Builders, a construction company based in Makati City, entered into a construction agreement
with Super Powers, Inc., an enero company based in Manila, for the construction of a mini hydro electric
plant. Water Builders failed to complete the project within the stipulated duration. Super Powers
cancelled the contract. Water Builders filed a request for arbitration with the Construction Industry
Arbitration Commission (CIAC). After due proceedings, CIAC rendered judgment in favor of Super
Powers, Inc. ordering Water Builders to pay the former P10 million, the full amount of the down
payment paid, and P2 million by way of liquidated damages. Dissatisfied with the CIAC’s judgment,
Water Builders, pursuant to the Special Rules of Court on Alternative Dispute Resolution (ADR Rules)
filed with the RTC of Pasay City a petition to vacate the arbitral award. Super Powers, Inc., in its
opposition, moved to dismiss the petition, invoking the ADR Rules, on the ground of improper venue as
neither of the parties were doing business in Pasay City.

Should Water Builders’ petition be dismissed? (3%)

SUGGESTED ANSWER

Yes, the petition should be dismissed on the ground of improper venue. Under the Special Rules of Court
on Alternative Dispute Resolution (ADR), the petition shall be filed with the Regional Trial Court having
jurisdiction over the place where one of the parties is doing business, where any of the parties reside or
where the arbitration proceedings were conducted (Rule 11.3 – A.M. No. 07-11-08-SC); hence, the venue
of the petition to vacate the arbitral award of Water Builders is improperly laid.

ANOTHER SUGGESTED ANSWER

Ves, the petition should be dismissed because venue is not included among the valid grounds to vacate
an arbitral award. The grounds to vacate an arbitral award are: a) The arbitrai award was procured
through corruption, fraud or other undue means; b) There was evident partiality or corruption in the
arbitral tribunal or any of its members; c) The arbitral tribunal was guilty of misconduct or any form of
misbehavior that has materially prejudiced the rights of any party such as refusing to postpone a hearing
upon sufficient cause shown or to hear evidence pertinent and material to the controversy; d) One or
more of the arbitrators was disqualified to act as such under the law and willfully refrained from
disclosing such disqualification; or
e) The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final
and definite award upon the subject matter submitted to them was not made.

The award may also be vacated on any or all of the following grounds: a) The arbitration agreement did
not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or b)
A party to arbitration is a minor or a person judicially declared to be incompetent.

ALTERNATIVE ANSWER

Yes, the petition should be dismissed. Water Builders should have filed a petition for review under Rule
43 of the Rules of Court before the Court of Appeals because R.A. 9285, or the Alternative Dispute
Resolution Act of 2004, did not divest the Court of Appeals of jurisdiction to review the decisions or
award of the CIAC ( Plus Asia Development Corporation v. Utility Assurance Corporation, G.R. No.
199650, June 26, 2013).

XVI

AA, a twelve-year old girl, while walking alone met BB, a teenage boy who befriended her. Later, BB
brought AA to a nearby shanty where he raped her. The Information for rape filed against BB states:

“On or about October 30, 2015, in the City of S.P. and within the jurisdiction of this Honorable Court, the
accused, a minor, fifteen (15) years old with lewd design and by means of force, violence and
intimidation, did then and there, willfully, unlawfully and feloniously had sexual intercourse with AA, A
minor, twelve (12) years old, against the latter’s will and consent.”

At the trial, the prosecutor called to the witness stand AA as his first witness and manifested that he be
allowed to ask leading questions in conducting his direct examination pursuant to the Rule on the
Examination of a Child Witness. BB’s counsel objected on the ground that the prosecutor has not
conducted a competency examination on the witness, a requirement before the rule cited can be applied
in the case.

(A) Is BB’s counsel correct? (3%)

In order to obviate the counsel’s argument on the competency of AA as prosecution witness, the judge
motu proprio conducted his voir dire examination on AA.

(B) Was the action taken by the judge proper? (2%)

After the prosecution has rested its case, BB’s counsel filed with leave a demurrer to evidence, seeking
the dismissal of the case on the ground that the prosecutor failed to present any evidence on BB’s
minority as alleged in the Information.

(C) Should the court grant the demurrer? (3%)

SUGGESTED ANSWER

(A) No. BB’s counsel is not correct. Every child is presumed qualified to be a witness (Sec. 6, Rule on
Examination of Child Witness [RECW]). To rebut the presumption of competence enjoyed by a child, the
burden of proof lies on the party challenging his competence (Sec. 6 of A.M. No. 005-07-SC or the Rules
on Examination of Child Witness). Here, AA, a 12-year old child witness who is presumed to be
competent, may be asked leading questions by the prosecutor in conducting his direct examination
pursuant to the RECW and the Revised Rules on Criminal Procedure (People v. Santos, G.R. No. 171452,
October 17, 2008).

(B) Yes, the judge may motu proprio conduct his voir dire examination on AA. Under the Rules on
Examination of Child Witness, the court shall conduct a competency examination of a child, motu
proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the
child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to
tell the truth in court (Sec. 6 of A.M. No. 005-07-SC or the Rules on Examination of Child Witness).
[Note: The Committee respectfully recommends that the examiner be more liberal in checking the
answers to the question because the term voir dire examination is not normally used under the rules on
evidence in the Philippines).

(C) No, the court should not grant the demurrer. While it was alleged in the information that BB was a
minor at the time of the commission of the offense, the failure of the prosecutor to present evidence to
prove his minority is not a basis for the granting of the demurrer, because minority of the accused is not
an element of the crime of rape. Be that as it may, the Court should not consider minority in rendering
the decision. After all, the failure of the prosecutor to prove the minority of AA may only affect the
imposable penalty but may not absolve him from criminal liability.

XVII

Hercules was walking near a police station when a police officer signaled him to approach. As soon as
Hercules came near, the police officer frisked him but the latter found no contraband. The police officer
told Hercules to get inside the police station. Inside the police station, Hercules asked the police officer,
“Sir, may problema po ba?” Instead of replying, the police officer locked up Hercules inside the police
station jail.

(A) What is the remedy available to Hercules to secure his immediate release from detention? (2%)

(B) If Hercules filed with the Ombudsman a complaint for warrantless search, as counsel for the police
officer, what defense will you raise for the dismissal of the complaint? (3%)

(C) If Hercules opts to file a civil action against the police officer, will he have a cause of action? (3%)
SUGGESTED ANSWER

(A) The remedy available to Hercules is to file a petition for habeas corpus questioning the illegality of his
warrantless arrest. The writ of habeas corpus shall extend to all cases of illegal confinement or detention
by which any person is deprived of his liberty (Section 1, Rule 102, Rules of Court).

(B) As counsel of the policemen, I will raise the defense of presumption of regularity in the performance
of duty. I can also raise the defense that the police officer has the duty to search Hercules under the
“Stop and Frisk” rule. A stop-and-frisk situation must precede a warrantless arrest, be limited to the
person’s outer clothing, and should be grounded upon a genuine reason, in the light of the police office
and surrounding conditions, to warrant the belief that detained has weapons concealed about him.
(Valdez v. People, G.R. No. 170180, November 23, 2007).

The “stop and frisk” search should be used “[wJhen dealing rapidly unfolding and potentially criminal
situation in the city streets where unarguably there is no time to secure a search warrant. “Stop and
frisk” searches (sometimes referred to as Terry searches) necessary for law enforcement, that is, law
enforcers should be given the legal arsenal to prevent the commission of offenses. This should be
balanced, however, with the need to protect the privacy of citizens in accordance with Article III, Section
2 of the Constitution (People of the Philippines v. Victor Cogaed, G.R. No. 200334, July 30, 2014). In
addition, I may also assert the defense that the complaint for warrantless search charges no criminal
offense. The conduct of a warrantless search is not a criminal act, for it is not penalized under the
Revised Penal Code or any other special laws.

(C) Yes. Hercules has a cause of action to file a civil action against the police officer under Article 32 (4) in
relation to Article 2219 (6) and (10) of the New Civil Code, which provides that a public officer may be
liable for damages when the right to be secure in one’s person, house, papers and effects against
unreasonable searches and seizures is impaired. The indemnity includes moral damages. Exemplary
damages may also be adjudicated (Galvante v. Casimiro, G.R. No. 162808, April 22, 2008).

ALTERNATIVE ANSWER
(A) Hercules may also apply for bail. Under Section 17 (c), Rule 114 of the Rules of Court, any person in
custody who is not yet charged in court may apply for bail with any court in the province, city or
municipality where he is held.

(B) As counsel for the police officer, I will argue that the Ombudsman has no jurisdiction over the
complaint filed by Hercules. While the Ombudsman has disciplinary authority over officials and members
of the PNP concurrently with NAPOLCOM and PNP, the Memorandum of Agreement executed by and
among the Ombudsman, PNP and NAPOLCOM on September 12, 2012 specifies the administrative cases
that are within the primary jurisdiction of the Ombudsman. Since the complaint filed against my client is
not among those administrative cases under the primary jurisdiction of the Ombudsman, the complaint
should necessarily be dismissed.

XVIII

The residents of Mt. Ahohoy, headed by Masigasig, formed a non-governmental organization – Alyansa
Laban sa Minahansa Ahohoy (AMLA) to protest the mining operations of Oro Negro Mining in the
mountain. ALMA members picketed daily at the entrance of the mining site blocking the ingress and
egress of trucks and equipment of Oro Negro her its operations.

Masigasig had an altercation with Mapusok arising from the complaints the mining engineer of Oro
Negro that one of their trucks was destroyed by ALMA members. Mapusok is the leader of the
Association of Peace Keepers of Ahohoy (APKA), a civilian volunteer organization serving as auxiliary
force of the local police to maintain peace and order in the area. Subsequently, Masigasig disappeared.
Mayumi, the wife of Masigasig, and the members of ALMA searched for Masigasig, but all their efforts
proved futile. Mapagmatyag, a member of ALMA, learned from Maingay, a member of APKA, during
their binge drinking that Masigasig was abducted by other members of APKA, on order of Mapusok.
Mayumi and ALMA sought the assistance of the local police to search for Masigasig, but they refused to
extend their cooperation.

Immediately, Mayumi filed with the RTC, a petition for the issuance of the writ of amparo against
Mapusok and APKA.ALMA also filed a petition for the issuance of the writ of amparo with the Court of
Appeals against Mapusok and APKA. Respondents Mapusok and APKA, in their Return filed with the RTC,
raised among their defenses that they are not agents of the State; hence, cannot be impleaded as
respondents in an amparo petition.

(A) Is their defense tenable? (3%)

Respondents Mapusok and APKA, in their Return filed with the Court of Appeals, raised as their defense
that the petition should be dismissed on the ground that ALMA cannot file the petition because of the
earlier petition filed by Mayumi with the RTC.

B) Are respondents correct in raising their defense? (3%)

(c) Mayumi later filed separate criminal and civil actions against

Mapusok. How will the cases affect the amparo petition she earlier filed? (1%)

SUGGESTED ANSWER

(A) No. The defense is not tenable. The writ of amparo is a remedy avail

able to any person whose right to life, liberty and security has been violated or is threatened with
violation by an unlawful act or omission of a public officer or employee or of a private individual or
entity. The writ covers extralegal killing and enforced disappearances or threats thereof (Section 1, Rules
on the Writ of Amparo). Moreover, the rules do not require that the respondents should be agents of the
State in order to be impleaded as respondents in an amparo petition (Secretary of National Defense v.
Manalo, G.R. No. 180906, October 7, 2008).
(B) Yes. The respondents are correct in raising the defense. Under Section 2(c) of the Rules on the Writ of
Amparo, the filing of a petition by Mayumi who is an immediate member of the family of the aggrieved
party already suspends the right of all other authorized parties to file similar petitions. Hence, ALMA
cannot file the petition because of the earlier petition filed by Mayumi with the RTC.

(C) When a criminal action and a separate civil action are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure
under the Rules shall continue to apply to the disposition of the reliefs in the petition (Sec. 23, Rule on
the Writ of Amparo)