SAN BEDA COLLEGE - ALABANG SCHOOL OF LAW

CENTRALIZED BAR OPERATIONS 2022

ACADEMICS COMMITTEE

HANNAH KEZIAH T. MORALES

Chairperson for Academics

ANDREA JOSES P. TAN ADRIAN R. MACASAQUIT

Deputy Deputy

ELOISA FE C. BUÑO
Chairperson for Electronic Data Processing

SUBJECT HEADS

MARY GRACE B. DOMINGUEZ PAMELA A. PAEZ

Civil Law Legal and Judicial Ethics

DAVID GABRIEL V. PALLASIGUE BRIANT ALLEN S. ROSARIO

Criminal Law Mercantile Law

KARLA MARIE V. GABRIEL JOSHUA REED C. LOPEZ

Labor Law Political Law

JUSTINN ANTONIO ALON ALEXANDRE JANUS B. BIDO

Remedial Law Taxation Law

ASSISTANT HEADS

DAVE CHRISTIAN C. UMERAN MARIA ARIELLE SAMANTHA T. ALVAREZ

Civil Law Legal and Judicial Ethics

MAEIA MIKHAELA N. MAYUGA HANNAH MIKAELLA C. YAMIT

Criminal Law Mercantile Law

MIGUEL JULIO RAFAEL SORIANO III JESSICA LAURA C. SY

Labor Law Political Law

LANCE LIZOR A. PUNZALAN JAN EROS NIKE V. CABAUATAN

Remedial Law Taxation Law
 REMEDIAL LAW TEAM

JUSTINN ANTONIO ALON

SUBJECT HEAD

LANCE LIZOR A. PUNZALAN

ASSISTANT HEAD

ERIELLE JOSHUA JONAH G. AGUSTIN

SARAH MAE G. ALCAZAREN
BERNICE MARIE S. ANGELES
RHOMA B. ARCIAGA
HOSNI AYO
NELLY RAE CAROLINE U. CASTRO
CHARISSE IVA R. CORTEZ
FATIMA GUILLIAN S. DE GALA
MARIA ALYSSSA BEATRIZ F. DEYTO
ANDREA NICOLE V. FABREGAS
JALIECA GADONG
GONZALO C. GARCIA
JEANETTE ELAINE I. GESMUNDO
CORINE ELIZABETH O. HERNANDEZ
FAITH LANSANGAN
ANDREI A. MANUEL
HANZ CHRISTIAN MIRAFLOR
JOIE M. NATO OASAN
WENDY LOUISE M.
KASSANDRA CAYE L. PACA
CARLO ALEXDAVE S. PURAY
CELINE ANNE PURIFICACION
MARIELLE L. RICOHERMOSO
GIELENE M. RIVERA
NOEL JETHRO III M. ROLLO
MARIA GENEVIEVE C. SAMONTE
CHARMAINE GRACE M. SIRON
MA. CHELCA UBAY
 ADMINISTRATION

DR. ULPIANO P. SARMIENTO III

Dean

ATTY. CARLO D. BUSMENTE

Vice Dean

ATTY. MA. ELIZA YAMAMOTO-SANTOS

Prefect of Student Affairs

ATTY. ROBEN B. CADUGO JR.

Administrative Officer

ATTY. PAULINO Q. UNGOS III

Adviser

SAN BEDA COLLEGE - ALABANG SCHOOL OF LAW

CENTRALIZED BAR OPERATIONS 2022
EXECUTIVE COMMITTEE

KATHLEEN L. CAPULONG
Over-All-Chairperson

HANNAH KEZIAH T. MORALES ELOISA FE C. BUÑO

Chairperson for Academics Chairperson for Electronic Data Processing

LOUIE ANN S. SOMEROS ROZELLE DIANNE I. MATEO

Chairperson for Operations Chairperson for Secretariat

JOSEPH M. LIBROJO ROLEEN WENDEE N. GUINTO

Chairperson for Academic Operations Chairperson for Bar Matters

JULIUS ROBERT A. JUICO EDWARD JAYSON B. SANTILLAN

Chairperson for Communications Chairperson for Logistics

FEMME ANGELA C. ARMAMENTO JOSHUA REED C. LOPEZ

Chairperson for Finance Chairperson for Recruitment and Membership

ANNA MARIE N. OBESO

Chairperson for Bar Mentoring Program
 NOTICE

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SCHOOL OF LAW and SAN BEDA COLLEGE ALABANG CENTRALIZED BAR
OPERATIONS 2022. It is intended solely for the use of the individuals to which
it is addressed – the Bedan community.

Publication, reproduction, dissemination, and distribution, or copying of the

document without the prior consent of the SAN BEDA COLLEGE ALABANG
SCHOOL OF LAW CENTRALIZED BAR OPERATIONS ACADEMICS COMMITTEE 2022
is strictly prohibited.

Material contains Bar Questions from 2000 up until 2020/2021 Bar Exam.

Copyright © 2022
SAN BEDA COLLEGE ALABANG SCHOOL OF LAW
SAN BEDA COLLEGE ALABANG SCHOOL OF LAW CENTRALIZED BAR
OPERATIONS 2022
All Rights Reserved by the Authors.
 REMEDIAL LAW
FAQS FOR THE 2022 BAR EXAMINATIONS

GENERAL PRINCIPLES 4
PRINCIPLE OF JUDICIAL HEIRARCHY 4
RES JUDICATA 4
JURISDICTION 6
JURISDICTION 6
MUNICIPAL TRIAL COURT 6
INCAPABLE OF PECUNIARY ESTIMATION 7
JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION, SMALL CLAIMS CASES,
AND CASES COVERED BY SUMMARY PROCEDURE 8
CIVIL PROCEDURE 9
CAUSE OF ACTION (RULE 2) 9
SPLITTING A SINGLE CAUSE OF ACTION 9
JOINDER AND MISJOINDER OF ACTION 10
PARTIES TO CIVIL ACTION (RULE 3) 11
CROSS CLAIM, THIRD PARTY CLAIM, COUNTERCLAIM 11
EFFECT OF DEATH OF A PARTY 12
VENUE (RULE 4) 13
KINDS OF PLEADINGS (RULE 6) 14
PARTS AND CONTENTS OF A PLEADING (RULE 7) 15
CERTIFICATE AGAINST FORUM SHOPPING 15
DEFAULT (RULE 9) 16
DEFAULT REMEDY 17
AMENDMENTS (RULE 10) 18
SUMMONS (RULE 14) 20
SUBSTITUTED SERVICE 20
SERVICE BY PUBLICATION 21
MOTIONS (RULE 15) 21
OMNIBUS MOTION RULE 21
DISMISSAL OF ACTIONS (RULE 17) 22
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY COMPLAINT 22
SUBPOENA (RULE 21) 23
INTERROGATORIES TO PARTIES (RULE 25) 23
JUDGMENTS AND FINAL ORDERS 24
JUDGMENT ON THE PLEADINGS 24
 SUMMARY JUDGMENTS 24
ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS 26
HOW A JUDGMENT IS EXECUTED 27
ENFORCEMENT AND EFFECTS OF FOREIGN JUDGMENTS OR FINAL ORDERS 29
MOTION FOR NEW TRIAL OR RECONSIDERATION (RULE 37) 30
EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS (RULE 39) 31
PROVISIONAL REMEDIES 31
WRIT OF PRELIMINARY ATTACHMENT (RULE 57) 31
WRIT OF INJUNCTION (RULE 58) 32
SUBTOPIC 32
REPLEVIN (RULE 60) 33
SPECIAL CIVIL ACTIONS 33
INTERPLEADER (RULE 62) 33
CERTIORARI, PROHIBITION, AND MANDAMUS (RULE 65) 34
WHEN PETITION FOR CERTIORARI IS PROPER 34
WHEN PETITIONER FOR MANDAMUS IS PROPER 35
FORECLOSURE OF REAL ESTATE MORTGAGE 36
FORCIBLE ENTRY AND UNLAWFUL DETAINER (RULE 70) 37
JURISDICTION IN ACTION IN INTERDICTAL 37
CONTEMPT (RULE 71) 38
SPECIAL PROCEEDINGS 38
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED (RULE 74) 38
WRIT OF HABEAS CORPUS (RULE 102) 38
CANCELLATION OF CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (RULE 108) 39
WRIT OF AMPARO (A.M. NO. 07-9-12-SC) 40
WRIT OF KALIKASAN AM NO. 09-6-8 SC 41
CRIMINAL PROCEDURE 42
RULE 110 42
JURISDICTION 42
AMENDMENTS OR SUBSTITUTION OF COMPLAINT OR INFORMATION 42
RULE 111 43
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION 43
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY 43
RULE 112 44
REMEDIES OF THE ACCUSED WHEN THERE WAS NO PRELIMINARY INVESTIGATION 44
RULE 113 46
ARREST WITHOUT WARRANT, WHEN LAWFUL 46
 RULE 114 47
BAIL, WHEN A MATTER OF RIGHT 47
HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSE 47
BAIL WHEN NOT REQUIRED 47
RULE 116 48
ARRAIGNMENT AND PLEA 48
WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE 48
RULE 117 48
MOTION TO QUASH 48
GROUNDS 49
SINGLE OFFENSE RULE 50
DOUBLE JEOPARDY 51
RULE 119 51
TRIAL 51
DEMURRER TO EVIDENCE WITHOUT LEAVE OF COURT 51
RULE 120 AND 121 52
RULE 126 53
SEARCH AND SEIZURE 53
PLAIN VIEW DOCTRINE 53
PROVISIONAL REMEDIES IN CRIMINAL CASE 54
EVIDENCE 54
RULE 129 54
RULE 130 55
OBJECT EVIDENCE 55
DOCUMENTARY EVIDENCE 55
ORIGINAL DOCUMENT RULE 55
TESTIMONIAL EVIDENCE 56
FILIAL PRIVILEGE 56
PRIVILEGED COMMUNICATION (MARITAL) 57
PRIVILEGE COMMUNICATION, LAWYER-CLIENT 59
PRIVILEGED COMMUNICATION, DOCTOR-PATIENT 60
SUBSUBTOPIC 61
HEARSAY RULE 61
SUBSUBTOPIC 63
PART OF RES GESTAE 64
INDEPENDENTLY RELEVANT STATEMENT 66
CHARACTER EVIDENCE 67
 OFFER AND OBJECTION 68
FRUIT OF THE POISONOUS TREE 68
APPEALS: GENERAL PRINCIPLES 70
POST-JUDGMENT REMEDIES OTHER THAN APPEAL 70
APPEALS IN CIVIL PROCEDURE: MODES OF APPEAL FROM JUDGMENTS OR FINAL ORDERS OF
VARIOUS COURTS/TRIBUNALS 71
RULE 41 71
RULE 42 71
RULE 43 72
 Dara objected, saying that while she was not
GENERAL PRINCIPLES
challenging the divorce decree, the case in
the RTC still had to proceed for the purpose
of determining the issue of the children's
PRINCIPLE OF JUDICIAL HEIRARCHY custody. Drylvik counters that the issue had
been disposed of in the divorce decree, thus
constituting res judicata.
QUESTION. What is the doctrine of
hierarchy of courts? (2017 Bar Question) Should Drylvik's motion to dismiss be
granted? (2018 Bar Question)
SUGGESTED ANSWER:
The doctrine of hierarchy of courts provides SUGGESTED ANSWER:
that where there is a concurrence of No, the motion to dismiss cannot be granted.
jurisdiction by courts over an action or
In Roehr v. Rodriguez (G.R. No. 142820, 20
proceeding, there is an ordained sequence of
June 2003), the Supreme Court ruled that
recourse to such courts beginning from the divorce decrees obtained by foreigners in
lowest to the highest. A direct invocation of other countries are recognizable in our
the Supreme Court's original jurisdiction jurisdiction, but the legal effects thereof,
should be allowed only when there are special e.g. on custody, care and support of the
and important reasons therefore. [Montes v. children, must still be determined by our
Court of Appeals, G.R. No. 143797, 4 May courts. Before our courts can give the effect
2006] of res judicata to a foreign judgment, such as
the award of custody of the children, it must
───※ ·❆· ※─── be shown that the parties opposed to the
judgment had been given ample opportunity
to do so on grounds allowed under Rule 39,
RES JUDICATA Section 50 of the Rules of Court.

Rule 39, Section 50 states that “[i]n case of a

QUESTION. Drylvik, a German national,
judgment against a person, the judgment is
married Dara, a Filipina, in Dusseldorf,
presumptive evidence of a right as between
Germany. When the marriage collapsed,
the parties and their successors in interest by
Dara filed a petition for declaration of
a subsequent title; but the judgment may be
nullity of marriage before the RTC of Manila.
repelled by evidence of a want of jurisdiction,
Drylvik, on the other hand, was able to
want of notice to the party, collusion, fraud,
obtain a divorce decree from the German
or clear mistake of law or fact.” Thus, in
Family Court. The decree, in essence,
actions in personam, a foreign judgment
states:
merely constitutes prima facie evidence of
The marriage of the Parties contracted on
the justness of the claim of a party and, as
xxx before the Civil Registrar of Dusseldorf
such, is subject to proof to the contrary.
is hereby dissolved. The parental custody of
the children Diktor and Daus is granted to
In this case, the divorce decree issued by the
the father.
German Family Court merely constitutes
Drylvik filed a motion to dismiss in the RTC
prima facie evidence and it must be proven
of Manila on the ground that the court no
that Dara was given the opportunity to
longer had jurisdiction over the matter as a
challenge the judgment of the German court
decree of divorce had already been
so that there is basis for declaring that
promulgated dissolving his marriage to Dara.

4
judgment as res judicata with regard to the which ordains those issues actually and
rights of petitioner to have parental custody directly resolved in a former suit cannot again
of their two children. be raised in any future case between the same
parties involving a different cause of action.
───※ ·❆· ※─── Res judicata in its concept as a bar by prior
judgment obtains in the present case.
QUESTION. Rolando filed a petition for In this case petitioner would contend that the
declaration of the nullity of his marriage to two petitions are anchored on separate causes
Carmela because of the alleged of action: first is the alleged psychological
psychological incapacity of the latter. After incapacity of respondent and the second is the
trial, the court rendered judgment purported absence of a marriage license.
dismissing the petition on the ground that Petitioner, however, forgets that he is simply
Rolando failed to prove the psychological invoking different grounds for the same cause
incapacity of his wife. The judgment having of action. Therefore, the Court finds then that
become final, Rolando filed another the present action for declaration of nullity of
petition, this time on the ground that his marriage on the ground of lack of marriage
marriage to Carmela had been celebrated license is barred. (Mallion v Alcantara (G.R.
without a license. Is the second action No. 141528, October 31, 2006)
barred by the judgment in the first? Why
(2002 Bar Question) ───※ ·❆· ※───

SUGGESTED ANSWER: QUESTION. AB. as mother and in her

No, the second action is not barred by the capacity as legal guardian of her legitimate
judgment in the first because they are minor son, CD, brought action for support
different causes of action. The first is for against EF, as father of CD and AB's lawfully
annulment or marriage on the ground of wedded husband. EF filed his answer
psychological incapacity under Article 36 of denying his paternity with counterclaim for
the Family Code, while the second is for damages. Subsequently, AB filed a
declaration of nullity of the marriage in view manifestation in court that in view of the
of the absence of a basic requirement, which denial made by EF, would be futile to
Is a marriage license. [Arts. 9 and 35(3), pursue the case against EF. AB agreed to
Family Code]. They are different causes of move for the dismissal of the complaint,
action because the evidence required to subject to the condition that EF will
prove them are not the same. [Pagsisfhan v. withdraw his counterclaim for damages. MB
Court of Appeals, 95 SCRA 540 (1980) and and EF filed a joint motion to dismiss. The
other cases]. court dismissed the case with prejudice.
Later on, minor son CD, represented by AB,
Alternative Answer: Yes. Section 47 (b) Rule filed another complaint for support against
39 of Rules of Court pertains to it in its EF. EF filed a motion to dismiss on the
concept as "bar by prior judgment" or ground of res judicata.
"estoppel by verdict," which is the effect of a
judgment as a bar to the prosecution of a Is res judicata a valid ground for dismissal of
second action upon the same claim, demand the second complaint? Explain your answer.
or cause of action. On the other hand, Section (2000 Bar Question)
47 (c) pertains to res judicata in its concept
as "conclusiveness of judgment" or otherwise
known as the rule of auter action pendant SUGGESTED ANSWER:

5
No, res Judicata is not a defense in an action if jurisdiction is not in issue, because venue
for support even if the first case was can be waived.
dismissed with prejudice on a Joint motion to
dismiss. The plaintiff’s mother agreed to the NOTE: Regional Trial Courts in civil actions
dismissal of the complaint for support in view exercise jurisdiction over civil actions which
of the defendants answer denying his involve title to, or possession of real property
paternity with a counterclaim for damages. or any interest therein where the assessed
This was in the nature of a compromise of the value of property or any interest therein
right of support which Is prohibited by law. exceed P400,000.00 EXCEPT for forcible entry
(Art. 2035. Civil Code; De AsIs v. Court of into and unlawful detainer (Sec. 33 of B.P. 129
Appeals, 303 SCRA 176 ( 19991]. as amended by RA 11576)

───※ ·❆· ※─── Date of effectivity of RA 11576: August 14,

2021 (Not included in the cutoff of Bar 2022
Coverage for laws, rules, and issuances: June
30, 2021)
JURISDICTION

───※ ·❆· ※───

JURISDICTION
MUNICIPAL TRIAL COURT
QUESTION. Angelina sued Armando before
the Regional Trial Court (RTC) of Manila to QUESTION. Filomeno brought an action in
recover the ownership and possession of the Metropolitan Trial Court (MeTC) of Pasay
two parcels of land; one situated in City against Marcelino pleading two causes
Pampanga, and the other of action. The first was a demand for the
in Bulacan. recovery of physical possession of a parcel
of land situated in Pasay City with an
May the action prosper? Explain. (2009 Bar assessed value of P40,000; the second was
Question) a claim for damages of P500,000 for
Marcelino’s unlawful retention of the
SUGGESTED ANSWER: property Marcelino filed a motion to dismiss
NO, the action may not prosper, because on the ground that the total amount
under Rep. Act No. 7691, exclusive original involved, which is P540,000, is beyond the
jurisdiction in civil actions which involve title jurisdiction of the MeTC. Is Marcelino
to, or possession of real property or any correct? (2008 Bar Question)
interest therein is determined on the basis of
the assessed value of the land involved, SUGGESTED ANSWER:
whether it should be P20,OOO in the rest of No, Marcelino is not correct. Under Rep. Act
the Philippines, outside of the Manila with No. 7691, Metropolitan Trial Courts and other
courts of the first level or with the-Regional courts of the first level have been vested with
Trial Court. The assessed value of the parcel exclusive original jurisdiction in all civil
of land in Pampanga is different from the actions which involved title to, or possession
assessed value of the land in Bulacan. What is of real property or any interest therein where
involved is not merely a matter of venue, the assessed value of the property or interest
which is waivable, but of a matter of therein does not exceed P20,000.00, or in civil
jurisdiction. However, the action may prosper actions in Metro Manila, where such assessed

6
value does not exceed P50,000.00 exclusive of year period commencing on January 1,
interest, damages of whatever kind, 2010. On January 1, 2013, Prince Chong
attorney’s fees, litigation expenses and costs. died. Kin Il Chong was appointed
Pasay City where the action for recovery of administrator of the estate of Prince Chong,
physical possession was filed, is part of Metro but the former failed to pay the rentals for
Manila and therefore has exclusive the months of January to June 2013 despite
jurisdiction over the parcel of land situated King Kong’s written demands. Thus, on July
therein whose assessed value is P40,000.00. 1, 2013, King Kong filed with the Regional
The claim for damages of P500,000.00 for the Trial Court (RTC) an action for rescission of
unlawful retention of the land involved is not contract with damages and payment of
determinative of the court’s jurisdiction accrued rentals as of June 30, 2013.
which is based on the nature of the action.
The claim for damages of P500,000.00 is just Can Kin Il Chong move to dismiss the
a consequence of the unlawful detention of complaint on the ground that the RTC is
the property subject of the action, which without jurisdiction since the amount
should not be taken separately from the land. claimed is only P300,000.00? (2014 Bar
Filomeno has only one cause of action which Question)
is the action for recovery of possession of the
land against Marcelino, with damages. SUGGESTED ANSWER:
No, Kin Il Chong cannot move to dismiss the
NOTE: Under RA 11576, jurisdiction of complaint on the ground of lack of
Metropolitan Trial Courts, Municipal Trial jurisdiction.
Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts in civil cases, Settled is the rule in Civil Procedure that an
they will exercise jurisdiction over civil action for specific performance and damages
actions which involve title to, or possession of is incapable of pecuniary estimation that falls
real property or any interest therein where under the jurisdiction of the RTC.
the assessed value of property or any interest Here, the action is for specific performance
therein does not exceed P400,000.00. (Sec. and damages which is incapable of pecuniary
33 of B.P. 129 as amended by RA 11576) estimation. Thus, the complaint falls squarely
Date of effectivity of RA 11576: August 14, within the jurisdiction of the RTC, rendering
2021 (Not included in the cutoff of Bar 2022 the motion to dismiss without merit.
Coverage for laws, rules, and issuances: June
30, 2021) ───※ ·❆· ※───

───※ ·❆· ※─── QUESTION.

a.) A brings an action in the Metropolitan
Trial Court of Manila against B for the
annulment of an extrajudicial foreclosure
INCAPABLE OF PECUNIARY ESTIMATION
sale of real property with an assessed value
of P50.000.00 located in Laguna. The
QUESTION. Prince Chong entered into a complaint alleged prematurity of the sale
lease contract with King Kong over a for the reason that the mortgage was not yet
commercial building where the former due. B timely moved to dismiss the case on
conducted his hardware business. The lease the ground that the action should have been
contract stipulated, among others, a brought in the Regional Trial Court of
monthly rental of P50,000.00 for a four (4)-

7
Laguna. Decide with reasons. (2000 Bar
Question)
JURISDICTION OVER CASES COVERED BY
BARANGAY CONCILIATION, SMALL CLAIMS
b.) A files an action in the Municipal Trial
CASES, AND CASES COVERED BY SUMMARY
Court against B, the natural son of A’s
PROCEDURE
father, for the partition of a parcel of land
located in Taytay, Rizal with an assessed
value of P20.000.00. B moves to dismiss the QUESTION. Danica obtained a personal loan
action on the ground that the case should of PhP 180,000 from Dinggoy, payable in 18
have been brought in the Regional Trial equal monthly installments of PhP 10,000
Court because the action is one that is not until fully paid. In order to complete her
capable of pecuniary estimation as it payment at an earlier date, Danica instead
involves primarily a determination of paid PhP 20,000 monthly, and continued
hereditary rights and not merely the bare doing so until the 15th month, which
right to real property. payments Dinggoy all accepted. Later on,
she realized that she had overpaid Dinggoy
Resolve the motion. (2000 Bar Question) by 100% as she should have already
completed payment in nine (9) months. She
demanded the return of the excess
SUGGESTED ANSWER: payment, but Dinggoy completely ignored
1. The motion should be granted. The her. Thus, Danica availed of the Rules of
Metropolitan Trial Court of Manila has no Procedure for Small Claims Cases by filing
jurisdiction because the action for the before the Municipal Trial Court (MTC) a
annulment of the extrajudicial statement of claim, together with the
foreclosure is not capable of pecuniary required documents.
estimation and is therefore under the
jurisdiction of the Regional Trial Courts. Should the MTC proceed with the case
(Russell v. Vestil 304 SCRA 738, (1999). under the: (i) Revised Rules Summary
Procedure; (ii) the Rules of Procedure for
However, the action for annulment is a
Small Claims; or (iii) the regular procedure
personal action and the venue depends on
for civil cases? (2018 Bar)
the residence of either A or B. Hence, it
should be brought in the Regional Trial
SUGGESTED ANSWER:
Court of the place where either of the
parties resides. (1) The MTC should not proceed with the case
under the Revised Rules on Summary
Procedure.
The motion should be granted. The action
Under the said rules, cases where the
for partition depends on a determination
amount of the claim in the Municipal Trial
of the hereditary rights of A and B, which
Court exceeds P100,000 are not covered
is not capable of pecuniary estimation.
by it.
Hence, even though the assessed value of
the land is P20,000.00, the Municipal (2) The MTC should not proceed with the case
Trial Court has no jurisdiction. (Russell v. under the Rules of Procedure for Small
Vestil, supra) Claims.
Under the said rules, a demand or claim
for money which does not arise from
───※ ·❆· ※───
contract are not covered by it. Damages

8
 arising from quasi-contract were deleted
CIVIL PROCEDURE
from the coverage of the said rules.
Here the claim or demand does not arise
from contract but from a quasi-contract CAUSE OF ACTION (RULE 2)
of solutio indebiti. The overpayment
having been made by mistake. [Art 2154,
Civil Code]. SPLITTING A SINGLE CAUSE OF ACTION

(3) The MTC should thus proceed with the

case under the regular procedure for civil QUESTION. Elise obtained a loan of P3
cases since it is not covered by the two Million from Merchant Bank. Aside from
preceding rules. executing a promissory note in favor of
Merchant Bank, she executed a deed of real
Note: This is not applicable anymore. Rule estate mortgage over her house and lot as
Expedited Procedures in First Level Courts security for her obligation. The loan fell due
(A.M. No. 08-8-7-SC) states that but remained unpaid; hence, Merchant
Civil cases covered by the rule on summary Bank filed an action against Elise to
procedure now consist of: foreclose the real estate mortgage. A month
1) Forcible entry and unlawful detainer after, and while the foreclosure suit was
cases; pending, Merchant Bank also filed an action
2) Civil actions and complaints for damages to recover the principal sum of P3 Million
where the claims do not exceed against Elise based on the same promissory
₱2,000,000.00; note previously executed by the latter. In
3) Cases for enforcement of barangay opposing the motion of Elise to dismiss the
amicable settlement agreements and second action on the ground of splitting of a
arbitration award where the money claim single cause of action, Merchant Bank
exceeds ₱1,000,000.00; argued that the ground relied upon by Elise
4) Cases solely for the revival of judgment was devoid of any legal basis considering
of any first level court; and 5) the civil that the two actions were based on separate
aspect of violations of Batas Pambansa contracts, namely, the contract of loan
Blg. 22 (BP 22), if no criminal action has evidenced by the promissory note, and the
been instituted. deed of real estate mortgage. Is there a
splitting of a single cause of action? Explain
Provisions on the evidentiary nature of your answer. (2017 Bar Question)
pleadings, filing and service, and pre-trial
from the 2019 Amendments have likewise SUGGESTED ANSWER:
been adopted, unless inconsistent. Yes, there is a splitting of a single cause of
action. Under the Rules of Civil Procedure,
(Not included in the cutoff for the Bar 2022 there is a splitting of a single cause of action
Coverage for laws, rules, and issuances: June if two or more suits are instituted on the basis
30, 2021. The effectivity date of A.M. No. 08- of the same cause of action. [S4 R2]. A cause
8-7-SC is April 11, 2022.) of action is the act or omission by which a
party violates a right of another. [S2 R2].
───※ ·❆· ※─── Here, both suits, the foreclosure and the
collection suit, arose from the same cause of
action, that is, the non-payment by Elise of
her P3 million loan from Merchant Bank. The
fact that the two actions were based on

9
separate contracts is irrelevant, what matters from Manila while Ricky and Marvin are from
is that both actions arose from the same cause Batangas City. (Sec. 5, Rule 2, 1997 Rules of
of action. Civil Procedure.)

───※ ·❆· ※─── ───※ ·❆· ※───

QUESTION. Lender extended to Borrower a

JOINDER AND MISJOINDER OF ACTION
P100,000.00 loan covered by a promissory
note. Later, Borrower obtained another
QUESTION. Perry is a resident of Manila, P100,000.00 loan again covered by a
while Ricky and Marvin are residents of promissory note. Still later, Borrower
Batangas City. They are the co-owners of a obtained a P300,000.00 loan secured by a
parcel of residential land located in Pasay real estate mortgage on his land valued at
City with an assessed value of P100,000.00. P500,000.00. Borrower defaulted on his
Perry borrowed PI00,000.00 from Ricky payments when the loans matured. Despite
which he promised to pay on or before demand to pay the P500,000.00 loan,
December 1, 2004. However, Perry failed to Borrower refused to pay. Lender, applying
pay his loan. Perry also rejected Ricky and the totality rule, filed against Borrower with
Marvin's proposal to partition the property. the Regional Trial Court (RTC) of Manila, a
Ricky filed a complaint against Perry and collection suit for P500,000.00. Did Lender
Marvin in the Regional Trial Court of Pasay correctly apply the totality rule and the rule
City for the partition of the property. He on joinder of causes of action? (2015 Bar
also incorporated in his complaint his action Question)
against Perry for the collection of the
latter's PI00,000.00 loan, plus interests and SUGGESTED ANSWER:
attorney's fees. State with reasons whether Yes, Lender correctly applied the totality rule
it was proper for Ricky to join his causes of and the rule on joinder of causes of action.
action in his complaint for partition against Under the rule on joinder of causes of action,
Perry and Marvin in the Regional Trial Court a party may in one pleading assert as many
of Pasay City. (2005 Bar Question) causes of action as he may have against an
opposing party. Under the totality rule,
SUGGESTED ANSWER: where the claims in all the causes of action
It was not proper for Ricky to join his causes are principally for recovery of money, the
of action against Perry in his complaint for aggregate amount claimed shall be the test of
partition against Perry and Marvin. The causes jurisdiction. Here the causes of action by
of action may be between the same parties, Lender are all against the borrower and all the
Ricky and Perry, with respect to the loan but claims are principally for recovery of money.
not with respect to the partition which Hence the aggregate amount claimed, which
includes Marvin. The joinder is between a is P500,000 shall be the test of jurisdiction
partition and a sum of money, but the and thus it is the RTC of Manila which has
partition is a special civil action under Rule jurisdiction. Although the rules on joinder of
69, which cannot be joined. (Sec. 5, Rule 2, causes of action state that the joinder shall
1997 Rules of Civil Procedure.}. Also, the not include special civil actions, the remedy
causes of action pertain to different venues resorted to with respect to the third loan was
and jurisdictions. The case for a sum of money not foreclosure but collection. Hence joinder
pertains to the municipal court and cannot be of causes of action would still be proper.
filed in Pasay City because the plaintiff is

10
 ───※ ·❆· ※─── b.) If the case should proceed to trial
QUESTION. A secured two loans from B, one without Grieg being impleaded as a party to
for P 5 0 0, 0 0 0. 0 0 and t h e o t h e r f o the case, what is his remedy to protect his
r P1,000,000.00, payable on different interest?
dates. Both have fallen due. Is B obliged to
file only one complaint against A for the SUGGESTED ANSWER:
recovery of both loans? Explain. (1999 Bar The remedy of Grieg is to file a motion for
Question) leave to intervene. Under Rule 19, a person
who has a legal interest in the matter in
SUGGESTED ANSWER: litigation may intervene in the action. Here
No. Joinder is only permissive since the loans Grieg is a mortgagee and such fact was
are separate loans which may be governed by annotated in the title. Hence he has a legal
the different terms and conditions. The two interest in the title subject-matter of the
loans give rise to two separate causes of litigation and may thus intervene in the case.
action and may be the basis of two separate
complaints ───※ ·❆· ※───

───※ ·❆· ※─── CROSS CLAIM, THIRD PARTY CLAIM,

COUNTERCLAIM
PARTIES TO CIVIL ACTION (RULE 3)
QUESTION. A, who is engaged in tile
QUESTION. Florencio sued Guillermo for installation business, was sued by EE
partition of a property they owned in Industries for breach of contract for
common. Guillermo filed a motion to dismiss installing different marble tiles in its offices
the complaint because Florencio failed to as provided in their contract. Without filing
implead Herando and Inocencio, the other any motion to dismiss , A filed its Answer
co-owners of the property. As Judge, will with Counterclaim theorizing that EE
you grant the motion to dismiss? Explain. Industries has no legal capacity to sue
(3%) (2009 Bar Question) because it is not a duly registered
corporation. By way of counterclaim, A
SUGGESTED ANSWER: asked for moral and actual damages as her
NO, because the non-joinder of parties is not business depleted as a result of the
a ground for dismissal of action (Rule 3, Sec. withdrawal and cancellation by her clients
11). The motion to dismiss should be denied. of their contracts due to the filing of the
case. The case was dismissed after the trial
───※ ·❆· ※─── court found that EE Industries is not a
registered corporation and therefore has no
QUESTION. Strauss filed a complaint against legal capacity to sue. However, it set a date
Wagner for cancellation of title. Wagner for the reception of evidence on A’s
moved to dismiss the complaint because counterclaim. EE Industries opposed on the
Grieg, to whom he mortgaged the property ground that the counterclaim could no
as duly annotated in the TCT, was not longer be prosecuted, in view of the
impleaded as defendant. (2015 Bar dismissal of the main case. Is the stand of EE
Question) Industries sustainable? Explain. (1999 Bar
Question)

11
SUGGESTED ANSWER: QUESTION. A obtained a money judgment
No, because if no motion to dismiss has been against B. After the finality of the decision,
filed, any of the grounds for dismissal the court issued a writ of execution for the
provided in the Rules may be pleaded as an enforcement thereof. Conformably with the
affirmative defense in the answer which may said writ, the sheriff levied upon certain
include a counterclaim. This is what A did by properties under B’s name. C filed a third
filing an Answer alleging the lack of legal party claim over said properties claiming
capacity of EE Industries to sue because it is that B had already transferred the same to
not a duly registered corporation with a him. A moved to deny the third-party claim
counterclaim for damages. The dismissal of and to hold B and C jointly and severally
the complaint on this ground is without liable to him for the money judgment
prejudice to the prosecution of the alleging that B had transferred said
counterclaim in the same action because it is properties to C to defraud him (A). After due
a compulsory counterclaim. (Sec. 6 of Rule hearing, the court denied the third-party
16.) claim and rendered an amended decision
───※ ·❆· ※─── declaring B and C jointly and severally liable
to A for the money judgment. Is the ruling
QUESTION. JK’s real property is being of the court correct? Explain. (2005 Bar
attached, by the sheriff in a civil action for Question)
damages against LM. JK claims that he is not
a party to the case: that his property is not SUGGESTED ANSWER:
involved in said case: and that he is the sole No. C has not been properly impleaded as a
registered owner of said property. Under party defendant. He cannot be held liable for
the Rules of Court, what must JK do to the judgment against A without a trial. In
prevent the Sheriff from attaching his fact, since no bond was filed by B, the sheriff
property? (2000 Bar Question) is liable to C for damages. C can file a
separate action to enforce his third-party
SUGGESTED ANSWER: claim. It is in that suit that B can properly
If the real property has been attached, the raise the ground of fraud against C. However,
remedy is to file a third-party claim. The the execution may proceed where there is a
third-party claimant should make an affidavit finding that the claim is fraudulent. (Tanonga
of his title to the property attached, stating v. Samson, 382 SCRA 130 [2002]). Besides, the
the grounds of his title thereto, and serve judgment is already final.
such affidavit upon the sheriff while the latter
has possession of the attached property, and ───※ ·❆· ※───
a copy thereof upon the attaching party. (Sec.
14, Rule 57, 1997 Rules of Civil Procedure.)
EFFECT OF DEATH OF A PARTY
The third party claimant may also intervene
or file a separate action to vindicate his claim
to the property involved and secure the QUESTION. Chika sued Gringo, a
necessary reliefs, such as preliminary Venezuelan, for a sum of money. The
injunction, which will not be considered as Metropolitan Trial Court of Manila (MeTC)
interference with a court of coordinate rendered a decision ordering Gringo to pay
Jurisdiction. (Ong v. Tating) Chika P50,000.00 plus legal interest. During
its pendency of the appeal before the RTC,
───※ ·❆· ※─── Gringo died of acute hemorrhagic
pancreatitis. Atty. Perfecto, counsel of

12
Gringo, filed a manifestation attaching the 1. No, because the action will not be
death certificate of Gringo and informing dismissed but shall instead be allowed to
the RTC that he cannot substitute the heirs continue until entry of final judgment.
since Gringo did not disclose any (Id.)
information on his family. As counsel for 2. No. If A died while the case was already
Chika, what remedy can you recommend to on appeal in the Court of Appeals, the
your client so the case can move forward case will continue because there is no
and she can eventually recover her money? entry yet of final judgment. (Id.)
Explain. (2016 Bar Question)
3. The effect is the same. The action will
not be dismissed but will be allowed to
SUGGESTED ANSWER:
continue until entry of final judgment.
The remedy I can recommend to my client
(Id.)
Chika is to file a petition for settlement of the
estate of Gringo and for the appointment of
an administrator. Chika as a creditor is an
interested person who can file the petition for ───※ ·❆· ※───
settlement of Gringo’s estate. Once the
administrator is appointed, I will move that
VENUE (RULE 4)
the administrator be substituted as the
defendant. I will also file my claim against
Gringo as a contingent claim in the probate QUESTION. After working for 25 years in the
proceedings pursuant to Rule 86 of the Rules Middle East, Evan returned to the
of Court. Philippines to retire in Manila, the place of
his birth and childhood. Ten years before
───※ ·❆· ※─── his retirement, he bought for cash in his
name a house and lot in Malate, Manila. Six
QUESTION. When A (buyer) failed to pay the months after his return, he learned that his
remaining balance of the contract price house and lot were the subject of
after it became due and demand- able, B foreclosure proceedings commenced by ABC
(seller) sued him for collection before the Bank on the basis of a promissory note and
RTC. After both parties submitted their a deed of real estate mortgage he had
respective evidence, A perished in a plane allegedly executed in favor of ABC Bank five
accident. Consequently, his heirs brought years earlier.
an action for the settlement of his estate
and moved for the dismissal of the Knowing that he was not in the country at
collection suit. (1999 Bar Question) the time the promissory note and deed of
mortgage were supposedly executed, Evan
1. Will you grant the motion? Explain. forthwith initiated a complaint in the RTC of
2. Will your answer be the same if A died Manila praying that the subject documents
while the case is already on appeal to the be declared null and void.
Court of Appeals? Explain.
3. In the same case, what is the effect if B ABC Bank filed a motion to dismiss Evan's
died before the RTC has rendered complaint on the ground of improper venue
judgment? on the basis of a stipulation in both
documents designating Quezon City as the
SUGGESTED ANSWER: exclusive venue in the event of litigation

13
between the parties arising out of the loan paid as of date, as evinced by the official
and mortgage. receipt issued by the clerk of court
therefor.
Should the motion to dismiss of ABC Bank be
granted? Explain your answer. (2017 Bar (a) What is the nature of Mr. l's
Question) counterclaim? Is the payment of filing fees
required for such counterclaim to prosper?
SUGGESTED ANSWER: Explain. (3%)
No. The motion to dismiss ABC Bank should
not be granted (b) Should Mr. I's counterclaim be
dismissed? Explain. (2019 Bar Exam)
In a case involving similar facts, the Supreme
Court held that a party Is not bound by a SUGGESTED ANSWER:
venue stipulation where he directly assails on (a) Mr. l's counterclaim 1s in the nature of a
the ground of forgery, the validity of the permissive counterclaim Under the Law on
contracts containing the venue stipulation. Civil Procedure, a permissive
counterclaim is one which does not arise out
The reason is that such a party cannot be of or is connected to the transaction or
expected to comply with the venue occurrence constituting the subject matter of
stipulation since his compliance therewith the opposing party's claim. Here Mr. l's
would mean an implicit recognition of the counterclaim for rental arrearages does not
validity of the contracts he assails. (Briones v. arise out of or is connected to the service
Cash Asia Credit Corp., 14 January 2015. contract which is the subject matter of the
Perlas-Bernabe. J .] complaint.

───※ ·❆· ※─── Hence Mr l's counterclaim 1s in the nature of

a permissive counterclaim. Yes the payment
of filing fees is required for such counterclaim
KINDS OF PLEADINGS (RULE 6)
to prosper.

QUESTION. Mr. H filed a complaint against Under the Law on Civil Procedure. the
Mr. I to recover the amount of ₱500,000.00 payment of docket fees on a permissive
based on their contract of services. In his counterclaim is Jurisdictional
answer, Mr. I admitted that he has yet to and hence required for the counterclaim to
pay Mr. H for his services based on their prosper
contract but nevertheless, interposed a
counterclaim alleging that Mr. H still owed (b) Mr l's counterclaim should not be
him rental arrearages for the lease of his dismissed. The SC has held that the non-
apartment also amounting to ₱500,000.00. payment of filing fees is not a ground for
dismissal if the failure to do so was not in bad
It has come to Mr. H's attention that Mr. I faith.
did not pay any filing fees when he filed his
answer. As such, Mr. H moved to dismiss the Here there was no bad faith or intent on the
counterclaim. In response to Mr. H's motion, part of Mr. I to evade the payment of the
Mr. I averred that the non-payment of filing docket fees as the nonpayment was merely
fees was purely based on inadvertence and inadvertent as shown by the fact that the
that the said filing fees had already been docket fees had already been paid.

14
 Bank V’s Answer with Counterclaim was not
───※ ·❆· ※─── accompanied by a certification against
forum shopping. Rule. (2007 Bar Question)
PARTS AND CONTENTS OF A PLEADING
SUGGESTED ANSWER:
(RULE 7)
A certification against forum shopping is
required only in initiatory pleadings. In this
case, the counterclaim pleaded in the
CERTIFICATE AGAINST FORUM SHOPPING
defendant‟s Answer appears to have arisen
from the plaintiff‟s complaint or compulsory
QUESTION. Certification Against Forum in nature and thus, may not be regarded as an
Shopping as counsel for A, B, C and D. Atty. initiatory pleading. The absence thereof in
XY prepared a complaint for recovery of the Bank‟s Answer is not a fatal defect.
possession of a parcel of land against Z. Therefore, the motion to dismiss on the
Before filing the complaint, XY discovered ground raised lacks merit and should be
that his clients were not available to sign denied (UST v. Suria, 294 SCRA 382 [1998]).
the certification of non-forum shopping. To On the other hand, if the counterclaim raised
avoid further delays in the filing of the by the defendant Bank‟s Answer was not
complaint, XY signed the certification and predicated on the plaintiff‟s claim or cause of
immediately filed the complaint in court. Is action, it is considered a permissive
XY Justified in signing the certification? counterclaim. In which case, it would partake
Why? (2000 Bar Question) an initiatory pleading which requires a
certification against forum shopping.
SUGGESTED ANSWER: Correspondingly, the motion to dismiss based
No. counsel cannot sign the anti-forum on lack of the required certificate against
shopping certification because it must be forum shopping should be granted.
executed by the “plaintiff or principal party"
himself (Sec. 5. Rule 7, 1997 Rules of Civil ───※ ·❆· ※───
Procedure; Escorpizo v. University of Baguio,
306 SCRA 497. (1999]). since the rule requires
QUESTION. Mr. Humpty filed with the
personal knowledge by the party executing Regional Trial Court (RTC) a complaint
the certification, unless counsel gives a good against Ms. Dumpty for damages. The RTC,
reason why he is not able to secure his clients’
after due proceedings, rendered a decision
signatures and shows that his clients will be granting the complaint and ordering Ms.
deprived of substantial Justice {Ortiz v. Court Dumpty to pay damages to Mr. Humpty. Ms.
of Appeals, 299 SCRA 708,11998]) or unless he Dumpty timely filed an appeal before the
is authorized to sign It by his clients through a Court of Appeals (CA), questioning the RTC
special power of attorney. decision. Meanwhile, the RTC granted Mr.
Humpty’s motion for execution pending
───※ ·❆· ※─── appeal. Upon receipt of the RTC’s order
granting execution pending appeal, Ms.
QUESTION. RC filed a complaint for Dumpty filed with the CA another case, this
annulment of the foreclosure sale against time a special civil action for certiorari
Bank V. In its answer, Bank V set up a assailing said RTC order. Is there a violation
counterclaim for actual damages and of the rule against forum shopping
litigation expenses. RC filed a motion to considering that two (2) actions emanating
dismiss the counterclaim on the ground that from the same case with the RTC were filed

15
by Ms. Dumpty with the CA? Explain. (2014 justifiable circumstances, as when all the
Bar Question) plaintiffs or petitioners share a common
interest and invoke a common cause of action
SUGGESTED ANSWER: or defense, the signature of only one of them
No, there is no violation of the rule against in the certification against forum shopping
forum shopping. Forum shopping applies substantially complies with the Rule. (Jacinto
where two or more initiatory pleadings were v. Gumaru, 2 June 2014). Here the Petitioners
filed by the same party. This is discernible have a common interest and invoke a common
from the use of the phrase “commenced any cause of action, that is, their illegal dismissal
action or filed any claim” in S5 R7. Here the by Empire Textile Corporation for failure to
first case involves the filing by Ms. Dumpty of meet production quotas.
a notice of appeal which is not an initiatory
pleading. Hence there is no forum shopping. ───※ ·❆· ※───

───※ ·❆· ※───

DEFAULT (RULE 9)

QUESTION. Tailors Toto, Nelson and Yenyen

filed a special civil action for certiorari QUESTION. Circe filed with the RTC a
under Rule 65 from an adverse decision of complaint for the foreclosure of real estate
the National Labor Relations Commission mortgage against siblings Scylla and
(NLRC) on the complaint for illegal dismissal Charybdis, co-owners of the property and co
against Empire Textile Corporation. They signatories to the mortgage deed. The
were terminated on the ground that they siblings permanently reside in Athens,
failed to meet the prescribed production Greece. Circe tipped off Sheriff Pluto that
quota at least four (4) times. The NLRC Scylla is on a balikbayan trip and is billeted
decision was assailed in a special civil action at the Century Plaza Hotel in Pasay City.
under Rule 65 before the Court of Appeals Sheriff Pluto went to the hotel and
(CA). In the verification and certification personally served Scylla the summons, but
against forum shopping, only Toto signed the latter refused to receive summons for
the verification and certification, while Charybdis as she was not authorized to do
Atty. Arman signed for Nelson. Empire filed so. Sheriff Pluto requested Scylla for the
a motion to dismiss on the ground of email address and fax number of Charybdis
defective verification and certification. which the latter readily gave. Sheriff Pluto,
Decide with reasons. (2016 Bar Question) in his return of the summons, stated that
"Summons for Scylla was served personally
SUGGESTED ANSWER: as shown by her signature on the receiving
The motion to dismiss on the ground of copy of the summons. Summons on
defective verification should be denied. The Charybdis was served pursuant to the
Supreme Court has held that a lawyer may amendment of Rule 14 by facsimile
verify a pleading on behalf of the client. transmittal of the summons and complaint
Moreover a verification is merely a formal and on defendant's fax number as evidenced by
not a jurisdictional requirement. The court transmission verification report
should not dismiss the case but merely require automatically generated by the fax machine
the party concerned to rectify the defect. The indicating that it was received by the fax
motion to dismiss on the ground of defective number to which it was sent on the date and
certification against forum-shopping should time indicated therein.” Circe, sixty (60)
likewise be denied. Under reasonable or days after her receipt of Sheriff Pluto's

16
return, filed a Motion to Declare Charybdis
in default as Charybdis did not file any ───※ ·❆· ※───
responsive pleading. (2015 Bar Question)
DEFAULT REMEDY
Scylla seasonably filed her answer setting
forth therein as a defense that Charybdis
had paid the mortgage debt. On the premise QUESTION. For failure of KJ to file an
that Charybdis was properly declared in answer within the reglementary period, the
default, what is the effect of Scylla's answer Court, upon motion of LM, declared KJ in
to the complaint? default. In due time, KJ filed an unverified
motion to lift the order of default without
SUGGESTED ANSWER: an affidavit of merit attached to it. KJ
The effect of Scylla’s answer to the complaint however attached to the motion his answer
is that the court shall try the case against both under oath, stating in said answer his
Scylla and Charybdis upon the answer filed by reasons for his failure to file an answer on
Scylla. Under Section 3(c) of Rule 9, when a time, as well as his defenses. Will the
pleading asserting a claim states a common motion to lift the order of default prosper?
cause of action against several defending Explain. (2000 Bar Question)
parties, some of whom answer and the others
fail to do so, the court shall try the case SUGGESTED ANSWER:
against all upon the answers thus filed and Yes, there is substantial compliance with the
render judgment upon the evidence rule. Although the motion is unverified, the
presented. Here there was a common cause of answer attached to the motion is verified. The
action against Scylla and Charybdis since both answer contains what the motion to lift the
were co-signatories to the mortgage deed. order of default and the affidavit Of merit
Hence the court should not render judgment should contain, which are the reasons for
by default against Charybdis but should movant's failure to answer as well as his
proceed to try the case upon the answer filed defenses. (Sec. 3 (bjof Rule 9, 1997 Rules of
and the evidence presented by Scylla. Civil Procedure; Cf. Citibank, N.A. v. Court of
Appeals, 304 SCRA 679, [19991; Consul v.
───※ ·❆· ※─── Consul. 17 SCRA 667, 671 (19661; Tolentino v.
Carlos, 66 Phil. 140, 143-144 (19381, Nasser v.
QUESTION. Laura was the lessee of an Court of Appeals, 191 SCRA 783 (19921).
apartment unit owned by Louie. When the
lease expired, Laura refused to vacate the ───※ ·❆· ※───
property. Her refusal prompted Louie to file
an action for unlawful detainer against QUESTION. Tina Guerrero filed with the
Laura who failed to answer the complaint Regional Trial Court of Biñan, Laguna, a
within the reglementary period. Louie then complaint for sum of money amounting to PI
filed a motion to declare Laura in default. Million against Carlos Corro. The complaint
Should the motion be granted? Explain your alleges, among others, t1 at Carlos
answer. (2017 Bar Question) borrowed from Tina the said amount
evidenced by a promissory note signed by
SUGGESTED ANSWER: Carlos and his wife, jointly and severally.
No, a Motion to declare the defendant in Carlos was served with summons which was
default is a prohibited motion in ejectment received by Linda, his secretary. However,
cases pursuant to S13.8 R70. Carlos failed to file an answer to the

17
complaint within the 15-day reglementary because the written demand to vacate, made
period. Hence, Tina filed with the court a prior to the commencement of the ejectment
motion to declare Carlos in default and to suit, was presented by the plaintiff in
allow her to present evidence ex parte. Five evidence without objection on the part of the
days thereafter, Carlos filed his verified defendant. Even if the demand to vacate was
answer to the complaint, denying under jurisdictional, still, the amendment proposed
oath the genuineness and due execution of was to conform to the evidence that was
the promissory note; and contending that already in the record and not to confer
he has fully paid his loan with interest at jurisdiction on the court, which is not
12% per annum. allowed. Failure to amend, however, does not
affect the result of the trial on these issues.
If you were the judge, will you grant Tina’s (Sec. 5 of Rule 10).
motion to declare Carlos in default? (2006
Bar Question) ALTERNATIVE ANSWER:
It depends. In forcible entry, the motion may
be allowed at the discretion of the court, the
SUGGESTED ANSWER: demand having been presented at the trial
No, I will not grant Tina’s motion to declare without objection on the part of the
Carlos in default. Considering that there was defendant. In an unlawful detainer, however,
no proper service of summons, the the demand to vacate is jurisdictional and
reglementary period to file a responsive since the court did not acquire jurisdiction
pleading was not tolled. Carlos was not duty from the very beginning, the motion to
bound to submit an Answer. Moreover, Carlos conform to the evidence cannot be
submitted a verified answer. It is better to entertained. The amendment cannot be
decide a case on the merits than on sheer allowed because it will in effect confer
technicality. jurisdiction when there is otherwise no
jurisdiction.
───※ ·❆· ※───
───※ ·❆· ※───
AMENDMENTS (RULE 10)
QUESTION. Arturo lent P1M to his friend
Robert on the condition that Rober execute
QUESTION. During trial, plaintiff was able to a promissory note for the loan and a real
present, without objection on the part of estate mortgage over his property located in
defendant in an ejectment case, evidence Tagaytay City. Rober complied. In his
showing that plaintiff served on defendant a promissory note dated September 20, 2006,
written demand to vacate the 'subject Robert undertook to pay the loan within a
property before the commencement of the year from its date at 12% per annum
suit, a matter not alleged or otherwise set interest. In June 2007, Arturo requested
forth in the pleadings on file. May the Robert to pay ahead of time but the latter
corresponding pleading still be amended to refused and insisted on the agreement.
conform to the evidence? Explain. (2004 Bar Arturo issued a demand letter and when
Question) Robert did not comply, Arturo filed an
action to foreclose the mortgage. Robert
SUGGESTED ANSWER: moved to dismiss the complaint for lack of
Yes. The corresponding pleading may still be cause of action as the debt was not yet due.
amended to conform to the evidence, The resolution of the motion to dismiss was

18
delayed because of the retirement of the QUESTION. Upon termination of the pre-
Judge. (a) On October 1, 2007, pending trial, the judge dictated the pre-trial order
resolution of the motion to dismiss, Arturo in the presence of the parties and their
filed an amended complaint alleging counsel, reciting what had transpired and
Robert’s debt had in the meantime become defining three (3) issues to be tried. (a) If,
due but that Robert still refused to pay. immediately upon receipt of his copy of the
Should the amended complaint be allowed pre-trial order, plaintiff’s counsel should
considering that no answer has been filed? move for its amendment to include a fourth
(2008 Bar Question) (4th) triable issue which he allegedly
inadvertently failed to mention when the
SUGGESTED ANSWER: judge dictated the order. Should the motion
No, the complaint may not be amended under to amend be granted? Reasons. (2009 Bar
the circumstances. A complaint may be Question)
amended as of right before answer (Sec. 2,
Rule 10; See Ong Peng vs. Custodio, G.R. No. SUGGESTED ANSWER:
14911, 12 March 1961; Toyota Motors [Phils} Depending on the merit of the issue sought to
vs. C.A., G.R. No. 102881, 07 December 1992; be brought in by the amendment, the motion
RCPI vs. C.A., G.R. No. 121397, 17 April 1997, to amend may be granted upon due hearing.
citing Prudence Realty & Dev‟t. Corp. vs. It is a policy of the Rules that parties should
C.A., G.R. No. 110274, 21 March 1994; be afforded a reasonable opportunity to bring
Soledad vs. Mamangun, 8 SCRA 110), but the about a complete determination of the
amendment should refer to facts which controversy between them, consistent with
occurred prior to the filing of the original substantial justice. With this end in view, the
complaint. It thus follows that a complaint amendment before trial may be granted to
whose cause of action has not yet accrued prevent manifest injustice. The matter is
cannot be cured or remedied by an amended addressed to the sound and judicious
or supplemental pleading alleging the discretion of the trial court.
existence or accrual of a cause of action while
the case is pending (Swagman Hotels & ───※ ·❆· ※───
Travel, Inc. vs. C.A., G.R. No. 161135, 08 April
2005). QUESTION. Daribell Inc. (Daribell) filed a
complaint for a sum of money and damages
ALTERNATIVE ANSWER: against spouses Dake and Donna Demapilis
A supplemental complaint may be filed with for unpaid purchases of construction
leave of court to allege an event that arose materials in the sum of PhP250,000. In their
after the filing of the original complaint that answer, spouses Demapilis admitted the
should have already contained a cause of purchases from Daribell, but alleged that
action (Sec. 6, Rule 10). However, if no cause they could not remember the exact amount
of action is alleged in the original complaint, since no copies of the documents were
it cannot be cured by the filing of a attached to the complaint. They
supplement or amendment to allege the nevertheless claimed that they made
subsequent acquisition of a cause of action previous payments in the amounts of
(Swagman Hotels & Travel, Inc. vs. C.A., G.R. PhP110,000 and PhP20,000 and that they
No. 161135, 08 April 2005). were willing to pay the balance of their
indebtedness after account verification. In
───※ ·❆· ※─── a written manifestation, spouses Demapilis
stated that, in order to buy peace, they

19
were willing to pay the sum of PhP250,000, b. Such amendment could still be allowed
but without interests and costs. when it is sought to serve the higher interest
Subsequently, Daribell filed a Motion for of substantial justice, prevent delay, and
partial summary judgment. Thereafter, secure a just, speedy and inexpensive
Daribell filed an amended complaint, disposition of actions and proceedings
alleging that the total purchases of (Spouses Valenzuela v. Court of Appeals, G.R.
construction materials were PhP280,000 No. 131175, August 28, 2001). The amended
and only PhP20,000 had been paid. Daribell complaint may be allowed if it will not
also served upon the spouses Demapilis a prejudice the rights of the parties.
request for admission asking them to admit
the genuineness of the statement of ───※ ·❆· ※───
accounts, delivery receipts, and invoices, as
well as the value of the principal obligation
SUMMONS (RULE 14)
and the amount paid as stated in the -
amended complaint. Daribell thereafter
amended the complaint anew. The SUBSTITUTED SERVICE
amendment modified the period covered
and confirmed the partial payment of
PhP110,000 but alleged that this payment QUESTION. Teddy filed against Buboy an
was applied to the spouses’ other existing action for rescission of a contract for the
obligations. Daribell however reiterated sale of a commercial lot. After having been
that the principal amount remained told by the wife of Buboy that her husband
unchanged. was out of town and would not be back until
after a couple of days, the sheriff requested
a. Is the request for admission deemed the wife to just receive the summons in
abandoned or withdrawn by the filing of the behalf of her husband. The wife acceded to
second amended complaint? (2018 Bar the request, received the summons and a
Question) copy of the complaint, and signed for the
same.
SUGGESTED ANSWER: Was there a valid service of summons upon
a. No. The second amended complaint merely Buboy? Explain your answer briefly. (2017
supersedes the first amended complaint and Bar Question)
nothing more, pursuant to Rule 10, Section 8
of the Rules of Court; thus, the Request for
Admission is not deemed abandoned or SUGGESTED ANSWER:
withdrawn by the filing of the Second No, there was no valid service of summons
Amended Complaint (Spouses Villuga v. Kelly upon Buboy. The Supreme Court has held that
Hardware and Construction Supply, Inc., G.R. in order that there will be valid substituted
No. 176570, July 18, 2012). service of summons, the sheriff must have
exerted diligent efforts to effect personal
QUESTION. b. Can the amendment of the service of summons within a reasonable time.
complaint be allowed if it substantially Here there were no such diligent efforts on
alters the cause of action? (2018 bar the part of the sheriff since he effected
Question) substituted service on his very first
try. Hence there was no valid service of
summons upon Buboy.
SUGGESTED ANSWER:

20
 ───※ ·❆· ※─── complaint for damages against Atlanta Bank
before the RTC of Lapu Lapu City, following
the dishonor of a check she drew in favor of
SERVICE BY PUBLICATION
Shirley against her current account which
she maintained in the bank's local branch.
QUESTION. Lani filed an action for partition The bank filed a Motion to Dismiss the
and accounting in the Regional Trial Court complaint on the ground that it failed to
(RTC) of Manila against her sister Mary Rose, state a cause of action, but it was denied. It
who is a resident of Singapore and is not thus filed an Answer.
found in the Philippines. Upon motion, the In the course of trial, Charisse admitted that
court ordered the Publication of the she was a US citizen residing in Los Angeles,
summons for three weeks in local tabloid, California and that she was temporarily
Bulgar. Linda, an OFW vacationing in the billeted at the Pescado Hotel in Lapu-Lapu
Philippines, saw the summons in Bulgar and City, drawing the bank to file another
brought a copy of the tabloid when she motion to dismiss, this time on the ground
returned to Singapore. Linda showed the of improper venue, since Charisse is not a
tabloid and the page containing the resident of Lapu-Lapu City.
summons to Mary Rose, who said, "Yes I Charisse opposed the motion citing the
know, my kumara Anita scanned and e- "omnibus motion rule." Rule on the motion.
mailed that page of Bulgar to me!" (2010 Bar Question)
Did the Court acquire jurisdiction over Mary
Rose? (2008 Bar Question) SUGGESTED ANSWER:
The bank's second motion to dismiss which is
grounded on improper venue, should be
SUGGESTED ANSWER: denied. The improper venue of an action is
Partition is an action quasi in rem. Summons deemed waived by the bank's filing an earlier
by publication is proper when the defendant motion to dismiss without raising improper
does not reside and is not found in the venue as an issue, and more so when the bank
Philippines, provided that a copy of the filed an answer without raising improper
summons and order of the court are sent by venue as an issue after its first motion to
registered mail to the last known address of dismiss was denied.
the defendant (Sec. 15, Rule 14). Publication
of the notice in Bulgar, a newspaper of Under the "omnibus motion rule" (Rule 15,
general circulation, satisfies the requirements Sec. 8, Rules of Court) which governs the
of summons by publication. (Perez v. Perez, bank's motion to dismiss, such motion should
G.R. No. 145368, 28 March 2005) include all objections then available;
otherwise, all objections not so included shall
───※ ·❆· ※─── be deemed waived. Although the improper
venue became known only in the course of the
trial, the same should not be allowed to
MOTIONS (RULE 15)
obstruct or disturb the proceedings since the
venue of civil actions is defined for the
convenience of the parties, any jurisdictional.
OMNIBUS MOTION RULE

ALTERNATIVE ANSWER:
QUESTION. Charisse, alleging that she was a The "omnibus motion rule" should not apply,
resident of Lapu-Lapu City, filed a because the improper venue became known

21
and thus available only to the movant bank QUESTION. Antique dealer Mercedes
after the motions to dismiss were filed and borrowed P1,000,000 from antique
resolved by the court, and in the course of the collector Benjamin. Mercedes issued a
trial of the case. In fairness to the defendant postdated check in the same amount to
bank, it should not be precluded by the Benjamin to cover the debt. On the due
"omnibus motion rule" from raising objection date of the check, Benjamin deposited it
to the improper venue only when said ground but it was dishonored. As despite demands,
for objection became known to it. Mercedes failed to make good the check,
Benjamin filed in January 2009 a complaint
The court may not resolve second the motion for collection of sum of money before the
to dismiss precisely because of the "omnibus RTC of Davao. Mercedes filed in February
motion rule", since the bank filed an earlier 2009 her Answer with Counterclaim,
motion to dismiss but did not raise the ground alleging that before the filing of the case,
of improper venue, and subsequently filed an she and Benjamin had entered into a dacion
Answer wherein the improper venue has not en pago agreement in which her vintage
again been raised. Hence, the question of P1,000,000 Rolex watch which was taken by
improper venue has become moot and Benjamin for sale on commission was
academic. applied to settle her indebtedness; and that
she incurred expenses in defending what
The only grounds not barred by the "omnibus she termed a "frivolous lawsuit." She
motion rule" are lack of jurisdiction over the accordingly prayed for P50,000 damages.
subject matter; (b) litis pendencia; and (c)
bar by prior judgment or by statute of a) Benjamin soon after moved for the
limitations. dismissal of the case. The trial court
accordingly dismissed the complaint. And it
QUESTION. Suppose Charisse did not raise also dismissed the Counterclaim. Mercedes
the “omnibus motion rule,” can the judge moved for a reconsideration of the dismissal
proceed to resolve the motion to dismiss? of the Counterclaim. Pass upon Mercedes’
Explain. motion.

SUGGESTED ANSWER: b) Suppose there was no Counterclaim and

Yes, the judge can proceed to resolve the Benjamin’s complaint was not dismissed,
motion to dismiss, because the ground raised and judgment was rendered against
therefore became known to the movant only Mercedes for P1,000,000. The judgment
during the trial, such that it was only then became final and executory and a writ of
that the objection became available to him. execution was correspondingly issued.
Since Mercedes did not have cash to settle
───※ ·❆· ※─── the judgment debt, she offered her Toyota
Camry model 2008 valued at P1.2 million.
The Sheriff, however, on request of
DISMISSAL OF ACTIONS (RULE 17)
Benjamin, seized Mercedes’ 17th century
ivory image of the La Sagrada Familia
estimated to be worth over P1,000,000.
DISMISSAL OF COUNTERCLAIM, CROSS-
CLAIM OR THIRD PARTY COMPLAINT
Was the Sheriff’s action in order? (2010 Bar
Question)

SUGGESTED ANSWER:

22
Mercedes‟ Motion for Reconsideration is The objection should be sustained. Under the
impressed with merit: the trial courts should marital disqualification rule, a spouse may not
not have dismissed her counter-claim despite testify for or against the other without the
the dismissal of the Complaint. Since it was latter’s consent. The mere fact that Gregoria
the plaintiff (Benjamin) who moved for the was estranged from Mabini is not an exception
dismissal of his Complaint, and at a time when to the marital disqualification rule.
the defendant (Mercedes) had already filed
her Answer thereto and with counterclaim, ───※ ·❆· ※───
the dismissal of the counterclaim without
conformity of the defendant-
INTERROGATORIES TO PARTIES (RULE 25)
counterclaimant. The Revised Rules of Court
now provides in Rule 17, Sec. 2 thereof that
“If a counterclaim has been pleaded by a
defendant prior to the service upon him of the QUESTION. Briefly explain the procedure on
plaintiff’s motion for dismissal, the dismissal "Interrogatories to Parties" under Rule 25
shall be limited to the complaint. The and state the effect of failure to serve
dismissal shall be without prejudice to the written interrogatories. (2016 Bar
right of the defendant to prosecute his Question)
counterclaim.
SUGGESTED ANSWER:
───※ ·❆· ※─── The procedure on "Interrogatories to Parties"
under Rule 25 is briefly explained as follow:
1) A party desiring to elicit material and
SUBPOENA (RULE 21)
relevant facts from an adverse party
shall file and serve upon the latter
written interrogatories to be answered
QUESTION. On March 12, 2008, Mabini was by the latter.
charged with Murder for fatally stabbing 2) The interrogatories shall be answered
Emilio. fully in writing and shall be signed and
sworn to by the person making them.
To prove the qualifying circumstance of The interrogatories shall be answered
evident premeditation, the prosecution within 15 days from service thereof.
introduced on December 11, 2009 a text The answers may be used for the same
message, which Mabini’s estranged wife purposes provided for in Section 4 of
Gregoria had sent to Emilio on the eve of his Rule 23 on depositions.
death, reading: "Honey, pa2tayin u ni 3) Objections to any interrogatories may
Mabini. Mtgal n nyang plano i2. Mg ingat u be made within 10 days after service
bka ma tsugi k." thereof. The effect of the failure to
serve written interrogatories is that
a. A subpoena ad testificandum was served unless allowed by the court for good
on Gregoria for her to be presented for the cause shown and to prevent a failure
purpose of identifying her cellphone and of justice, a party not served with
the text message. Mabini objected to her written interrogatories may not be
presentation on the ground of marital compelled by the adverse party to give
privilege. Resolve. (2010 Bar Question) testimony in open court, or to give a
deposition pending appeal.
SUGGESTED ANSWER:

23
 ───※ ·❆· ※─── Co., to have the concrete fence
demolished. Thus, damages, if any, should
be collected from it. Thereafter, Ms. A filed
JUDGMENTS AND FINAL ORDERS
a motion for judgment on the pleadings,
alleging that Ms. B's statement in her answer
JUDGMENT ON THE PLEADINGS
is actually a negative pregnant. Ms. B
opposed the motion, reiterating her
defense in her answer which purportedly
QUESTION. A brought an action against her rendered judgment on the pleadings
husband B for annulment of their marriage improper. Ms. B also moved for the dismissal
on the ground of psychological incapacity. B of the case on the ground of non-joinder of
Filed his Answer to the Complaint admitting XYZ Construction Co., which she alleged is
all the allegations therein contained. May A an indispensable party to the case.
move for judgment on the pleadings?
Explain. (1999 Bar Question) Is Ms. A's motion for judgment on the
pleadings proper? Explain. (2019 Bar
SUGGESTED ANSWER: Question)
No, because even if B’s answer to A’s
complaint for annulment of their marriage
admits all the allegations therein contained, SUGGESTED ANSWER:
the material facts alleged in the complaint Yes, Ms. A’s motion for judgment on the
must always be proved. (Sec. 1 of Rule 34.) pleadings is proper. Under the Rules of Civil
Procedure, a judgment on the pleadings is
ALTERNATIVE ANSWER: proper if the defendant’s answer admits the
No. The court shall order the prosecutor to material allegations of the adverse party’s
investigate whether or not a collusion pleading. Here the Defendant Ms. B’s answer
between the parties exists, and if there is no that she merely acquiesced to the advice of
collusion, to intervene for the State in order her contractor XYZ Construction Company
to see to it that the evidence submitted is not does not specifically deny whether she was
fabricated. (Sec. 3[E], R9) Evidence must negligent or not. Hence Ms. B is deemed to
have to be presented in accordance with the have admitted the material allegation that
requirements set down by the Supreme Court she was negligent and thus a judgment on the
in Republic vs. Court of Appeals and Molina pleadings is proper.
(268 SCRA 198.)
───※ ·❆· ※───
───※ ·❆· ※───

SUMMARY JUDGMENTS
QUESTION. Ms. A filed a complaint for
damages against Ms. B, alleging that Ms. B
negligently caused the demolition of her QUESTION. Modesto sued Ernesto for a sum
house's concrete fence, the top half of of money, claiming that the latter owed him
which fell on the front portion of Ms. A's car P1 million, evidenced by a promissory note,
and permanently damaged its engine. In her quoted and attached to the complaint. In his
answer, Ms. B denied any personal liability answer with counterclaim, Ernesto alleged
for the damage caused to Ms. A's car, that Modesto coerced him into signing the
averring that she merely acquiesced to the answer with counterclaim, but that it is
advice of her contractor, XYZ Construction Modesto who really owes him P1.5 million.

24
Modesto filed an answer to Ernesto’s stated that, in order to buy peace, they
counterclaim admitting that he owed were willing to pay the sum of PhP250,000,
Ernesto, but only in the amount of P0.5 but without interests and costs.
million. At the pre-trial, Modesto marked Subsequently, Daribell filed a Motion for
and identified Ernesto's promissory note. He partial summary judgment. Thereafter,
also marked and identified receipts Daribell filed an amended complaint,
covering payments he made to Ernesto, to alleging that the total purchases of
the extent of P0.5-million, which Ernesto construction materials were PhP280,000
did not dispute. and only PhP20,000 had been paid. Daribell
also served upon the spouses Demapilis a
After pre-trial, Modesto filed a motion for request for admission asking them to admit
judgment on the pleadings, while Ernesto the genuineness of the statement of
filed a motion for summary judgment on his accounts, delivery receipts, and invoices, as
counterclaim. Resolve the two motions with well as the value of the principal obligation
reasons. (2009 Bar Question). and the amount paid as stated in the -
amended complaint.
SUGGESTED ANSWER: Daribell thereafter amended the complaint
Likewise, Ernesto’s motion for summary anew. The amendment modified the period
judgment should be denied because there is covered and confirmed the partial payment
an issue of fact — the alleged coercion — of PhP110, 000 but alleged that this
raised by Ernesto which he has yet to prove in payment was applied to the spouses’ other
a trial on its merits. It is axiomatic that existing obligations. Daribell however
summary judgment is not proper or valid when reiterated that the principal amount
there is an issue of fact remaining which remained unchanged.
requires a hearing. And this is so with respect
to the coercion alleged by Ernesto as his Can the facts subject of an unanswered
defense, since coercion is not capable of request for admission be the basis of a
being established by documentary evidence. summary judgment? (2018 Bar Question)

───※ ·❆· ※───

SUGGESTED ANSWER:
QUESTION. Daribell Inc. (Daribell) filed a Yes. Summary judgment is a procedural
complaint for a sum of money and damages device resorted to in order to avoid long
against spouses Dake and Donna Demapilis drawn-out litigations, and useless delays.
for unpaid purchases of construction Such judgment is generally based on the facts
materials in the sum of PhP250,000. In their proven summarily by affidavits, de positions,
answer, spouses Demapilis admitted the pleadings, or admissions of the parties
purchases from Daribell, but alleged that [Villuga v. Kelly Hardware and Construction
they could not remember the exact amount Supply, Inc., G.R. No. 176570, (2012)].
since no copies of the documents were
attached to the complaint. They In this case, the facts subject of an
nevertheless claimed that they made unanswered request for admission are
previous payments in the amounts of deemed admissions by the adverse party (S2,
PhP110,000 and PhP20,000 and that they R26). Applying the Supreme Court’s ruling in
were willing to pay the balance of their Spouses Villuga v. Kelly Hardware and
indebtedness after account verification. In Construction Supply, Inc. (G.R. No. 176570, 18
a written manifestation, spouses Demapilis

25
July 2012), these facts may be the basis of a were served by substituted service at the
summary judgment. address stated in the petition. For failure to
file an answer, Debi Wallis was declared in
───※ ·❆· ※─── default and Tom Wallis presented evidence
ex-parte. The RTC rendered judgment
declaring the marriage null and void on the
ANNULMENT OF JUDGMENTS OR FINAL
ground of psychological incapacity of Debi
ORDERS AND RESOLUTIONS
Wallis. Three (3) years after the RTC
judgment was rendered, Debi Wallis got
QUESTION. A default judgment was hold of a copy thereof and wanted to have
rendered by the RTC ordering D to pay P a the RTC judgment reversed and set aside.
sum of money. The judgment became final, If you are the lawyer of Debi Wallis, what
but D filed a petition for relief and obtained judicial remedy or remedies will you take?
a writ of preliminary injunction staying the Discuss and specify the ground or grounds
enforcement of the judgment. After for said remedy or remedies. (2014 Bar
hearing, the RTC dismissed D's petition, Question)
whereupon P immediately moved for the
execution of the judgment in his favor. SUGGESTED ANSWER:
Should P’s motion be granted? Why? (2002 If I were the lawyer of Debi Wallis, the judicial
Bar Question) remedy I would take is to file with the Court
of Appeals an action for annulment of the RTC
SUGGESTED ANSWER: judgment under Rule 47. An action for
P’s immediate motion for execution of the annulment of judgment may be resorted to
judgment in his favor should be granted since the remedies of appeal and petition for
because the dismissal of D’s petition for relief relief are no longer available through no fault
also dissolves the writ of preliminary of Debi Wallis. (S1 R47). The ground for
injunction staying the enforcement of the annulment of judgment would be lack of
judgment, even if the dismissal is not yet jurisdiction. Lack of jurisdiction also covers
final. [Golez v. Leonidas, 107 SCRA 187 lack of jurisdiction over the person of the
(1981)]. defendant since the judgment would be void.
(1 FLORENZ D. REGALADO, REMEDIAL LAW
───※ ·❆· ※─── COMPENDIUM 558 [7th rev. ed., 3 rd
printing]).
QUESTION. Tom Wallis filed with the
Regional Trial Court (RTC) a Petition for ───※ ·❆· ※───
Declaration of Nullity of his marriage with
Debi Wallis on the ground of psychological QUESTION. Santa filed against Era in the RTC
incapacity of the latter. Before filing the of Quezon City an action for specific
petition, Tom Wallis had told Debi Wallis performance praying for the delivery of a
that he wanted the annulment of their parcel of land subject of their contract of
marriage because he was already fed up sale. Unknown to the parties, the case was
with her irrational and eccentric behavior. inadvertently raffled to an RTC designated
However, in the petition for declaration of as a special commercial court. Later, the
nullity of marriage, the correct residential RTC rendered judgment adverse to Era,
address of Debi Wallis was deliberately not who, upon realizing that the trial court was
alleged and instead, the residential address not a regular RTC, approaches you and
of their married son was stated. Summons wants you to file a petition to have the

26
judgment annulled for lack of jurisdiction. The Supreme Court has consistently held that
What advice would you give to Era? Explain when the owner’s duplicate certificate of
your answer. (2017 Bar Question) title has not been lost, but is in fact in the
possession of another person, then the
SUGGESTED ANSWER: reconstituted certificate is void, because the
The advice I would give to Era is that the court that rendered the decision had no
petition for annulment of judgment on lack of jurisdiction. As a rule, reconstitution can
jurisdiction will not prosper. validly be made only in case of loss of the
The Supreme Court has held that a special original certificate. In this regard, the remedy
commercial court is still a court of general to nullify an order granting reconstitution is a
jurisdiction and can hear and try a non- petition for annulment under Rule 47 of the
commercial case. [Concorde Condominium Rules of Court (Eastworld Motor Industries
Inc. v. Baculio, 17 Feb 2016, Peralta, J.]. Corporation v. Skunac Corporation, G.R. No.
Hence the special commercial court had 163994, December 16, 2005).
jurisdiction to try and decide the action for
specific performance and to render a In this case, RTC Dumaguete had no
judgment therein. jurisdiction to order the re constitution of the
owner’s duplicate copy of TCT No. 777,
───※ ·❆· ※─── considering that the owner’s duplicate copy
thereof had not been lost, but was merely in
QUESTION. In 2015, Dempsey purchased Dempsey’s possession. The order granting
from Daria a parcel of land located in Daria’s petition for reconstitution is therefore
Dumaguete, Negros Oriental. The latter void; accordingly, Dempsey may file a Petition
executed a Deed of Absolute Sale and for Annulment of Judgment under Rule 47 to
handed to Dempsey the owner’s duplicate nullify the reconstituted title in Daria’s name.
copy of TCT No. 777 cover ing the property.
Since he was working in Manila and still had ───※ ·❆· ※───
to raise funds to cover taxes, registration,
and transfer costs, Dempsey kept the TCT in
HOW A JUDGMENT IS EXECUTED
his possession without having transferred it
to his name. A few years thereafter, when
he already had the funds to pay for the QUESTION. The writ of execution was
transfer costs, Dempsey went to the returned unsatisfied. The judgment obligee
Register of Deeds of Dumaguete and subsequently received information that a
discovered that, after the sale, Daria had bank holds a substantial deposit belonging
filed a petition for reconstitution of the to the judgment obligor. If you were the
owner’s duplicate copy of TCT No. 777 counsel of the judgment obligee, what steps
which the RTC granted. Thus, unknown to would you take to reach the deposit to
Dempsey, Daria was able to secure a new satisfy the judgment? (2008 Bar Question)
TCT in her name.
What is Dempsey’s remedy to have the SUGGESTED ANSWER:
reconstituted title in the name of Daria Since a writ of execution is valid for five years
nullified? (2018 Bar Question) from its issuance, the sheriff should be
informed and requested to garnish or levy on
SUGGESTED ANSWER: execution the bank deposits belonging to the
Dempsey may file a Petition for Annulment of judgment obligor (Sec. 9[c], Rule 39, Rules of
Judgment under Rule 47 of the Rules of Court. Court). Then the judgment creditor move for

27
a court order directing the application of such
bank deposit to the satisfaction of the
judgment (Sec. 40, Rule 39, Rules of Court). SUGGESTED ANSWER:
No, the Sheriff's action was not in order. He
───※ ·❆· ※─── should not have listened to Benjamin, the
judgment obligee/creditor, in levying on the
QUESTION. Antique dealer Mercedes properties of Mercedes, the judgment
borrowed P1, 000,000 from antique obligor/debtor. The option to immediately
collector Benjamin. Mercedes issued a choose which property or part thereof may be
postdated check in the same amount to levied upon, sufficient to satisfy the
Benjamin to cover the debt. On the due judgment, is vested by law (Rule 39, Sec. 9 (b)
date of the check, Benjamin deposited it (b) upon the judgment obligor, Mercedes, not
but it was dishonored. As despite demands, upon the judgment obligee, Benjamin, in this
Mercedes failed to make good the check, case. Only if the judgment obligor does not
Benjamin filed in January 2009 a complaint exercise the option, is the Sheriff authorized
for collection of sum of money before the to levy on personal properties if any, and then
RTC of Davao. Mercedes filed in February on the real properties if the personal
2009 her Answer with Counterclaim, properties are insufficient to answer for the
alleging that before the filing of the case, judgment.
she and Benjamin had entered into a dacion
enpago agreement in which her vintage P1, ───※ ·❆· ※───
000,000 Rolex watch which was taken by
Benjamin for sale on commission was QUESTION. Aldrin entered into a contract to
applied to settle her indebtedness; and that sell with Neil over a parcel of land. The
she incurred expenses in defending what contract stipulated a P500,000.00 down
she termed a "frivolous lawsuit.. She payment upon signing and the balance
accordingly prayed for P50, 000 damages. payable in twelve (12) monthly installments
A. Benjamin soon after moved for the of Pl00,000.00. Aldrin paid the down
dismissal of the case. The trial court payment and had paid three (3) monthly
accordingly dismissed the complaint. And it installments when he found out that Neil
also dismissed the Counterclaim. had sold the same property to Yuri for Pl.5
million paid in cash. Aldrin sued Neil for
B. Suppose there was no Counterclaim and specific performance with damages with the
Benjamin's complaint was not dismissed, RTC. Yuri, with leave of court, filed an
and judgment was rendered against answer-in-intervention as he had already
Mercedes for P1, 000,000. The judgment obtained a TCT in his name. After trial, the
became final and executory and a writ of court rendered judgment ordering Aldrin to
execution was correspondingly issued. pay all the installments due, the
Since Mercedes did not have cash to settle cancellation of Yuri's title, and Neil to
the judgment debt, she offered her Toyota execute a deed of sale in favor of Aldrin.
Camry model 2008 valued at P1.2 million. When the judgment became final and
The Sheriff, however, on request of executory, Aldrin paid Neil all the
Benjamin, seized Mercedes 17th century installments but the latter refused to
ivory image of the La Sagrada Familia execute the deed of sale in favor of the
estimated to be worth over P1, 000,000. former.
Was the Sheriffs action in order? (2010 Bar
Question)

28
Aldrin filed a "Petition for the Issuance of a SUGGESTED ANSWER:
Writ of Execution" with proper notice of Article 1144 of the Civil Code which requires
hearing. The petition alleged, among that an action upon a judgment (though
others, that the decision had become final without distinction) must be brought within
and executory and he is entitled to the 10 years from the time the right of action
issuance of the writ of execution as a matter accrues, does not apply to an action filed in
of right. the Philippines to enforce a foreign judgment.
While we can say that where the law does not
Despite the issuance of the writ of distinguish, we should not distinguish, still the
execution directing Neil to execute the law does not evidently contemplate the
deed of sale in favor of Aldrin, the former inclusion of foreign judgments. A domestic
obstinately refused to execute the deed. judgment may be enforced by motion within
five years and by action within the next five
What is Aldrin's remedy? (2015 Bar years. That is not the case with respect to
Question) foreign judgments which cannot be enforced
by mere motion. A foreign judgment, in fact,
SUGGESTED ANSWER: is merely presumptive evidence of a right
Aldrin’s remedy is to file a motion for between the parties and their successors in
judgment for specific act under Section 10(a) interests. (Van Dorn v. Romillo, Jr., 139 SCRA
of Rule 39. 139 [19851). The word “judgment” refers to
one mentioned ill Section 1, Rule 36, which is
Under Section 10(a) of Rule 39, if a judgment filed with the clerk of court. If no period is
directs a party to execute a conveyance of fixed in our law, the period of prescription is
land and the party fails to comply, the court five (5) years under Art. 1149 of the Civil
may direct the act to be done at the Code.
disobedient party’s cost by some other person
appointed by the court or the court may by an ───※ ·❆· ※───
order divest the title of the party and vest it
in the movant or other person. QUESTION. Drylvik, a German national,
married Dara, a Filipina, in Dusseldorf,
───※ ·❆· ※─── Germany. When the marriage collapsed,
Dara filed a petition for declaration of
nullity of marriage before the RTC of Manila.
ENFORCEMENT AND EFFECTS OF FOREIGN
Drylvik, on the other hand, was able to
JUDGMENTS OR FINAL ORDERS
obtain a divorce decree from the German
Family Court. The decree, in essence,
QUESTION. Under Article 1144 of the New states:
Civil Code, an action upon a judgment must The marriage of the Parties contracted on
be brought within 10 years from the time xxx before the Civil Registrar of Dusseldorf
the right of action accrues. is hereby dissolved. The parental custody of
the children Diktor and Daus is granted to
SUGGESTED ANSWER: the father.
Article 1144 of the Civil Code is applicable
because it is merely an action in a domestic Drylvik filed a motion to dismiss in the RTC
court to enforce a foreign judgment. Foreign of Manila on the ground that the court no
judgments should be treated in the same longer had jurisdiction over the matter as a
manner as domestic judgments. decree of divorce had already been

29
promulgated dissolving his marriage to Dara. (A) If the RTC grants Ms. Bright's motion to
Dara objected, saying that while she was not dismiss and dismisses the complaint on the
challenging the divorce decree, the case in ground of lack of cause of action, what will
the RTC still had to proceed for the purpose be the remedy/remedies of Mr. Avenger?
of determining the issue of the children’s
custody. Drylvik counters that the issue had (B) If the RTC denies Ms. Bright's motion to
been disposed of in the divorce decree, thus dismiss, what will be her remedy/remedies?
constituting res judicata.
(C) If the RTC denies Ms. Bright's motion to
Is a foreign divorce decree between a dismiss and, further proceedings, including
foreign spouse and a Filipino spouse, trial on the merits, are conducted until the
uncontested by both parties, sufficient by RTC renders a decision in favor of Mr.
itself to cancel the entry in the civil registry Avenger, what will be the remedy/
pertaining to the spouses’ marriage? (2018 remedies of Ms. Bright? (2014 Bar
Bar Question) Examinations)

SUGGESTED ANSWER:
No, a foreign divorce decree between a SUGGESTED ANSWER:
foreign spouse and a Filipino spouse, (A) If the RTC grants Ms. Bright's motion to
uncontested by both parties is insufficient by dismiss, the remedies of Mr Avenger are:
itself to cancel the entry in the civil registry. (a) File a motion for reconsideration
Before a foreign divorce decree can be under Rule 37.
recognized by our courts, the party pleading (b) Re-file the complaint. The dismissal
it must prove the divorce as a fact and does not bar the re-filing of the case (S5
demonstrate its conformity to the foreign law R 16).
allowing it (Republic v. Manalo, G.R. No. (c) Appeal from the order of dismissal.
221029, April 24, 2018). The dismissal order Is a final order as it
completely disposes of the case. hence It
───※ ·❆· ※─── is appealable.
(d) File an amended complaint as a
matter of right curing the defect of lack
MOTION FOR NEW TRIAL OR
of cause of action before the dismissal
RECONSIDERATION (RULE 37)
order becomes final. This is because a
motion to dismiss Is not a responsive
QUESTION. Mr. Avenger filed with the pleading, hence Mr Avenger can amend
Regional Trlal Court {RTC) a complaint the complaint as a matter of right. (S2
against Ms. Bright for annulment of deed of R10)
sale and other documents. Ms. Bright filed a (B) If the RTC denies Ms Bright's motion to
motion to dismiss the complaint on the dismiss, her remedies are
ground of lack of cause of action. Mr. (a) File a motion for reconsideration.
Avenger filed an opposition to the motion to (b) Proceed to trial and if she loses,
dismiss. appeal and assign the failure to dismiss as
a reversible error.
State and discuss the appropriate (c) File a special civil action for certiorari
remedy/remedies under each of the and/or mandamus if the denial of the
following situations: (6%) order to dismiss is made with grave abuse

30
 of discretion amounting to lack of or Aldrin filed a "Petition for the Issuance of a
excess of jurisdiction. Writ of Execution" with proper notice of
(C) If the RTC renders a decision in favor of hearing. The petition alleged. among
Mr. Avenger Ms. Bright's remedies are. others, that the decision had become final
(a) File a motion for reconsideration or and executory and he Is entitled to the
new trial under Rule 37. Issuance of the writ of execution as a matter
(b) File an appeal to the Court of Appeals of right.
under Rule 41
(c) File an appeal to the Supreme Court Nell filed a motion to dismiss the petition on
under Rule 45 if the appeal will raise only the ground that it lacked the required
questions of law. certification against forum shopping.
(d) File a petition for relief from
judgment under Rule 38. Should the court grant Nell's Motion to
(e) File an action for annulment of Dismiss? (3%) Despite the issuance of the
judgment under Rule 47 on the ground of writ of execution directing Nell to execute
extrinsic fraud or lack of jurisdiction. the deed of sale in favor of Aldrin, the
former obstinately refused to execute the
───※ ·❆· ※─── deed. (2015 Bar Examinations)

SUGGESTED ANSWER:
EXECUTION, SATISFACTION, AND EFFECT
No, the court should not grant Neil's Motion to
OF JUDGMENTS (RULE 39)
Dismiss.
Under the Rules of Civil Procedure. a
QUESTION. Aldrin entered into a contract to certification against forum shopping Is
sell with Nell over a parcel of land. The required only for initiatory pleadings or
contract stipulated a PS00,000.00 down petitions. [S5 R7]
payment upon signing and the balance
payable in twelve (12) monthly Installments Here the "Petition for the Issuance of a Writ
of P100,000.00. Aldrin paid the down of Execution, although erroneously
payment and had paid three (3) monthly denominated as a petition is actually a motion
installments when he found out that Nell for issuance of a writ of execution under Rule
had sold the same property to Yuri for P1 .5 39.
million paid in cash. Aldrin sued Nell for
specific performance with damages with the Hence the motion to dismiss on the ground of
RTC. Yuri, with leave of court, filed an lack of a certification against forum shopping
answer-in- Intervention as he had already should be denied.
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
PROVISIONAL REMEDIES
execute a deed of sale in favor of Aldrin.
When the judgment became final and
executory, Aldrin paid Neil all the
WRIT OF PRELIMINARY ATTACHMENT
installments but the latter refused to
(RULE 57)
execute the deed of sale in favor of the
former.

31
QUESTION. On February 3, 2018, Danny tantamount to a waiver of the right to
Delucio, Sheriff of the RTC of Makatl, served damages arising from a wrongful attachment.
the Order granting the ex-parte application [D.M. Wenceslao & Associates Inc v. Readycon
for preliminary attachment of Dinggoy Trading & Construction Corp., 29 June 2004,
against Dodong. The Order, together with Quisumbing, J.]
the writ, was duly received by Dodong. On
March 1, 2018, the Sheriff served upon ───※ ·❆· ※───
Dodong the complaint and summons in
connection with the same case. The counsel
WRIT OF INJUNCTION (RULE 58)
of Dodong filed a motion to dissolve the
writ.
QUESTION. Can a suit for injunction be aptly
Can the preliminary (a) attachment issued filed with the Supreme Court to stop the
by the Court in favor of Dinggoy be President of the Philippines from entering
dissolved? What grounds can Dodong's into a peace agreement with the National
counsel invoke? Democratic Front? (2003 Bar Question)

If Dodong posts a (b) counter bond, is he SUGGESTED ANSWER:

deemed to have waived any of his claims for No, a suit for injunction cannot aptly be filed
damages arising from the issuance of the with the Supreme Court to stop the President
Order and writ of attachment? (2018 Bar of the Philippines from entering into a peace
Examination) agreement with the National Democratic
Front, which is a purely political question.
SUGGESTED ANSWER: (Madarang v. Santamaria, 37 Phil. 304 [1917]).
(a) Yes. The preliminary attachment issued by The President of the Philippines is immune
the Court in favor of Dinggoy may be from Suit.
dissolved.
───※ ·❆· ※───
Under the Rules of Civil Procedure, no levy on
attachment pursuant to the writ of
SUBTOPIC
attachment shall be enforced unless it is
preceded or simultaneously accompanied by
service of summons. together with the QUESTION. Mrs. G defaulted in the payment
complaint and other accompanying of her loan obligation with Z Bank. As such,
documents. This is the ground that Dodong's Z Bank extra-judicially foreclosed Mrs. G's
counsel may invoke. mortgaged property and sold it at public
auction where it emerged as the highest
Here the summons and complaint were served bidder. Eventually, a certificate of sale was
not before or during the levy on attachment issued in Z Bank's favor, and title to the
but after. The attachment was thus property was later consolidated under the
improperly enforced and may thus be bank's name. Claiming that Z Bank used
dissolved or discharged. fraudulent machinations in increasing the
interest and penalty charges on the loan,
(b) No, Dodong is not deemed to have waived thereby making it impossible for her to pay,
his claim for damages if he posts a Mrs. G filed before the Regional Trial Court
counterbond The Supreme Court has held that (RTC) a complaint for cancellation of
the posting of a counter-bond is not consolidation of ownership over a real

32
property with prayer for the issuance of a Digna to pay the rentals directly to it. Digna
writ of preliminary injunction against Z promptly informed Dory of DBS' claim of
Bank. Immediately thereafter, the RTC ownership. In response, Dory insisted on its
issued an ex parte writ of preliminary right to collect rent on the leased property.
injunction enjoining Z Bank from disposing
of the foreclosed property or taking Due to conflicting claims of Dory and DBS
possession thereof. Did the RTC err in over the rental payments, Digna filed a
issuing the writ of preliminary injunction ex complaint for interpleader in the RTC of
parte? Explain. (2019 Bar Question) Manila. Digna prayed that It be allowed to
consign in court the succeeding monthly
SUGGESTED ANSWER: rentals, and that Dory and DBS be required
Yes, the RTC erred in issuing the writ of to litigate their conflicting claims. It later
preliminary injunction ex parte. Under the appeared that an action for nullification of
Rules of Civil Procedure, a writ of preliminary a dacion en pago was filed by Dory against
injunction cannot issue ex parte but only after DBS in the RTC of Quezon City. In said case,
notice and hearing to the adverse party. Dory raises the issue as to which of the two
[Section 5, Rule 58] (2) corporations had a better right to the
rental payments. Dory argued that, to avoid
───※ ·❆· ※─── conflicting decisions, the interpleader case
must be dismissed.
REPLEVIN (RULE 60)
Does the action for nullification of the
dacion en pago bar the filing of the
QUESTION. What is replevin? (1999 Bar) interpleader case?

SUGGESTED ANSWER: SUGGESTED ANSWER:

Replevin or delivery of personal property No. the action for nullification of the dacion
consists in the delivery, by order of the court, en pago does not bar the filing of the
of personal property by the defendant to the interpleader case
plaintiff, upon the filing of a bond. (Calo v.
Roldan, G.R. No. L-252, March 30, 1946) Under the Law on Civil Procedure, in order for
lis pendens to bar the filing of another case,
───※ ·❆· ※─── there must be identity of parties between the
first and second actions

SPECIAL CIVIL ACTIONS

Here there was no identity of parties since
Digna was not a party to the action for
nullification of dacion en page.
INTERPLEADER (RULE 62)

Hence there was no lis pendens and the filing

QUESTION. Dory Enterprises Inc. (Dory) of the interpleader case was not barred. [Lui
leased to Digna Corporation (Digna) a parcel Enterprises v. Zuelling Pharma Corp .. 27
of land located In Dillman, Quezon City. March 2014, Leonen, J .).
During the term of the lease, Digna was
informed by DBS Banking Corporation (DBS) ───※ ·❆· ※───
that it has acquired the leased property
from the former owner Dory, and required

33
 Otherwise, the judge acted with grave abuse
CERTIORARI, PROHIBITION, AND
of discretion if he grants the Motion to
MANDAMUS (RULE 65)
Withdraw Information by the trial prosecutor.
(Harold Tamargo vs. Romulo Awingan et. al.
WHEN PETITION FOR CERTIORARI IS G.R. No. 177727, January 19, 2010).
PROPER
ALTERNATIVE ANSWER:
If I were the private prosecutor, I would file a
QUESTION. After an information for rape Motion for Reconsideration of the Order of the
was filed in the RTC, the DOJ Secretary, trial court. if the same has been denied, I
acting on the accused's petition for review, would file a petition for review on certiorari
reversed the investigating prosecutor's under Rule 45 on pure question of law, which
finding of probable cause. Upon order of the actually encompasses both the criminal and
DOJ Secretary, the trial prosecutor filed a civil aspects thereof. The filing of the petition
Motion to Withdraw Information which the is merely a continuation of the appellate
judge granted. The order of the judge process.
stated only the following:
"Based on the review by the DOJ Secretary
───※ ·❆· ※───
of the findings of the investigating
prosecutor during the preliminary
QUESTION. The defendant was declared in
investigation, the Court agrees that there is
default in the RTC for his failure to file an
no sufficient evidence against the accused
answer to a complaint for a sum of money.
to sustain the allegation in the information.
On the basis of the plaintiff’s ex parte
The motion to withdraw Information is,
presentation of evidence, judgment by
therefore, granted."
default was rendered against the
defendant. The default judgment was
If you were the private prosecutor, what
served on the defendant on October 1,
should you do? Explain. (2012 Bar Question)
2001. On October 10, 2001, he files a
verified motion to lift the order of default
SUGGESTED ANSWER:
and to set aside the judgment. In his
If I were the private prosecutor, I would file a
motion, the defendant alleged that,
petition for certiorari under Rule 65 with the
immediately upon receipt of the summon,
Court of Appeals (Cerezo vs. People, G.R.
he saw the plaintiff and confronted him with
No.185230, June 1, 2011). It is well-settled
his receipt evidencing his payment and that
that when the trial court is confronted with a
the plaintiff assured him that he would
motion to withdraw and Information (on the
instruct his lawyer to withdraw the
ground of lack of probable cause to hold the
complaint. The trial court denied the
accused for trial based on resolution of the
defendant’s motion because it was not
DOJ Secretary), the trial court has the duty to
accompanied by an affidavit of merit. The
make an independent assessment of the
defendant filed a special civil action for
merits of the motion. It may either agree or
certiorari under Rule 65 challenging the
disagree with the recommendation of the
denial order. (2002 Bar Question)
Secretary. Reliance alone on the resolution of
A. Is certiorari under Rule 65 the
the Secretary would be an abdication of the
proper remedy? Why?
trial court‟s duty and jurisdiction to
B. Did the trial court abuse its
determine a prima facie case. The court must
discretion or act without or in excess
itself be convinced that there is indeed no
of its jurisdiction in denying the
sufficient evidence against the accused.

34
 defendant’s motion to lift the order
of default judgment? Why? QUESTION. In 1996, Congress passed
Republic Act No. 8189, otherwise known as
SUGGESTED ANSWER: the Voter's Registration Act of 1996,
A.The petition for certiorari under Rule 65 providing for computerization of elections.
filed by the defendant is the proper remedy Pursuant thereto, the COMELEC approved
because appeal is not a plain, speedy and the Voter's Registration and Identification
adequate remedy in the ordinary course of System (VRIS) Project. It issued invitations
law. In appeal, the defendant in default can to pre-qualify and bid for the project. After
only question the decision in the light of the the public bidding, Fotokina was declared
evidence of the plaintiff. The defendant the winning bidder with a bid of P6 billion
cannot invoke the receipt to prove payment and was issued a Notice of Award. But
of his obligation to the plaintiff. COMELEC Chairman Gener Go objected to
the award on the ground that under the
ALTERNATIVE ANSWER: Appropriations Act, the budget for the
A. Under ordinary circumstances, the proper COMELEC's modernization is only P1 billion.
remedy of a party wrongly declared in default He announced to the public that the VRIS
is either to appeal from the judgment by project has been set aside. Two
default or file a petition for relief from Commissioners sided with Chairman Go, but
judgment. [Jao, Inc. v. Court of Appeals, 251 the majority voted to uphold the contract.
SCRA 391 (1995)]
Meanwhile, Fotokina filed with the RTC a
SUGGESTED ANSWER: petition for mandamus to compel the
B. Yes, the trial court gravely abused its COMELEC to implement the contract.
discretion or acted without or in excess of
jurisdiction in denying the defendant’s The Office of the Solicitor General (OSG),
motion because it was not accompanied by a representing Chairman Go, opposed the
separate affidavit of merit. In his verified petition on the ground that mandamus does
motion to lift the order of default and to set not lie to enforce contractual obligations.
aside the judgment, the defendant alleged During the proceedings, the majority
that immediately upon the receipt of the Commissioners filed a manifestation that
summons, he saw the plaintiff and confronted Chairman Go was not authorized by the
him with his receipt showing payment and COMELEC En Banc to oppose the petition.
that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. Is a petition for mandamus an appropriate
Since the good defense of the defendant was remedy to enforce contractual obligations?
already incorporated in the verified motion,
there was no need for a separate affidavit of SUGGESTED ANSWER:
merit. [Capuz v. Court of Appeals, 233 SCRA No, the petition for mandamus is not an
471 (1994); Mago v. Court of Appeals, 303 appropriate remedy because it is not available
SCRA 600 (1999)]. to enforce a contractual obligation.
Mandamus is directed only to ministerial acts,
───※ ·❆· ※─── directing or commanding a person to do a
legal duty (COMELEC v. Quijano-Padilla, G.R.
No. 151992, September 18, 2002; Sec. 3, Rule
WHEN PETITIONER FOR MANDAMUS IS
65).
PROPER

35
 ───※ ·❆· ※─── be issued to the purchaser in a foreclosure
sale either within the one-year redemption
QUESTION. A Files a Complaint against 8 for period upon the filing of a bond, or after the
recovery of title and possession of land lapse of the redemption period, without need
situated in Makati with the RTC of Pasig. B of a bond. (LZK Holdings and Development
files a Motion to Dismiss for improper venue. Corporation v. Planters Development Bank,
The RTC Pasig Judge denies B's Motion to G.R. No. 167998, April 27, 2007)
Dismiss, which obviously was incorrect.
Alleging that the RTC Judge "unlawfully Hence, upon the purchaser’s filing of the ex
neglected the performance of an act which parte petition and posting of the appropriate
the law specifically enjoins as a duty bond, the RTC shall, as a matter of course,
resulting from an office", 8 files a Petition order the issuance of the writ of possession in
for Mandamus against the judge. Will favor of the purchaser. (Spouses Marquez
Mandamus lie? Reasons. Marquez v. Spouses Alindog, G.R. No. 184045,
January 22, 2014; Spouses Gatuslao v. Yanson,
SUGGESTED ANSWER: G.R. No. 191540, January 21, 2015)
No, mandamus will not lie. The proper remedy
is a petition for prohibition. (Serana vs. QUESTION. (b) After the period of
Sandiganbayan, G.R. No. 162059, January 22, redemption has lapsed and the title to the
2008). The dismissal of the case based on lot is consolidated in the name of the
improper venue is not a ministerial duty. auction buyer, is he entitled to the writ of
Mandamus does not lie to compel the possession as a matter of right? If so, what
performance of a discretionary duty. (Nilo is the action to be taken?
Paloma vs. Danilo Mora, G.R. No. 157783,
September 23, 2005). SUGGESTED ANSWER:
Yes, the auction buyer is entitled to a writ of
───※ ·❆· ※─── possession as a matter of right. It is settled
that the buyer in a foreclosure sale becomes
the absolute owner of the property purchased
FORECLOSURE OF REAL ESTATE if it is not redeemed within a period of one
MORTGAGE year after the registration of the certificate
of sale. He is, therefore, entitled to the
QUESTION. (a) Is the buyer in the auction possession of the property and can demand it
sale arising from an extra-judicial at any time following the consolidation of
foreclosure entitled to a writ of possession ownership in his name and the issuance to him
even before the expiration of the of a new transfer certificate of title.
redemption period? If so, what is the action
to be taken? (2016 Bar) In such a case, the bond required in Section 7
of Act No. 3135 is no longer necessary.
SUGGESTED ANSWER: Possession of the land then becomes an
Yes, the buyer in the auction sale is entitled absolute right of the purchases as confirmed
to a writ of possession even before the owner. Upon proper application and proof of
expiration of the redemption period upon the title, the issuance of the writ of possession
filing of the ex parte petition for issuance of becomes a ministerial duty of the court. (LZK
a writ of possession and posting of the Holdings and Development Corporation v.
appropriate bond. Under Section 7 of Act No. Planters Development Bank, G.R. No. 167998,
3135, as amended, the writ of possession may April 27, 2007; Spouses Marquez Marquez v.

36
Spouses Alindog, G.R. No. 184045, January 22, their Tagaytay property, they were
2014; Spouses Gatuslao v. Yanson, G.R. No. surprised to see hastily assembled shelters
191540, January 21, 2015) of light materials occupied by several
families of informal settlers who were not
QUESTION. (c) Suppose that after the title there when they last visited the property
to the lot has been consolidated in the name three (3) months ago.
of the auction buyer, said buyer sold the lot To rid the spouses’ Tagaytay property of
to a third party without first getting a writ these informal settlers, briefly discuss the
of possession. Can the transferee exercise legal remedy you, as their counsel, would
the right of the auction buyer and claim that use; the steps you would take; the court
it is a ministerial duty of the court to issue where you would file your remedy if the
a writ of possession in his favor? Briefly need arises; and the reason/s for your
explain. (2016 Bar) actions. (2013 Bar Question)

SUGGESTED ANSWER: SUGGESTED ANSWER:

Yes, the transferee can exercise the right of As counsel for spouses Juan, I will file a
the auction buyer. A transferee or successor- special civil action for Forcible Entry. The
in- interest of the auction buyer by virtue of Rules of Court provide that a person deprived
the contract of sale between them, is of the possession of any land or building by
considered to have stepped into the shoes of force, intimidation, threat, strategy, or
the auction buyer. As such, the stealth may at any time within 1 year after
transferee is necessarily entitled to avail of such withholding of possession bring an action
the provisions of Sec. 7 of Act 3135, as in the proper Municipal Trial Court where the
amended, as if he is the auction buyer. When property is located. This action which is
the lot purchased at a foreclosure sale is in summary in nature seeks to recover the
turn sold or transferred, the right to the possession of the property from the defendant
possession thereof, along with all other rights which was illegally withheld by the latter
of ownership, transfers to its new owner. (Section 1, Rule 70, Rules of Court).
(Spouses Gallent v. Velasquez, G.R. No. An ejectment case is designed to restore ,
203949, Apr. 6, 2016) Thus, it is a ministerial through summary proceedings, the physical
duty of the court to issue a writ of possession possession of any land or building to one who
in favor of the transferee of the auction has been illegally deprived of such possession,
buyer. without prejudice to the settlement of
parties’ opposing claims of juridical
───※ ·❆· ※─── possession in an appropriate proceeding
(Heirs of Agapatio T. Olarte and Angela A.
Olarte et. al. vs. Office of the President of the
FORCIBLE ENTRY AND UNLAWFUL
Philippines et al., G.R. No. 177995, June 15,
DETAINER (RULE 70)
2011, Villarama, Jr., J.).

In Abad vs. Farrales, G.R. No. 178635, April

JURISDICTION IN ACTION IN INTERDICTAL
11, 2011, the Supreme Court held that two
allegations are indispensable inactions for
QUESTION. The spouses Juan reside in forcible entry to enable first level courts to
Quezon City. With their lottery winnings, acquire jurisdiction over them: first, that the
they purchased a parcel of land in Tagaytay plaintiff had prior physical possession of the
City for P100,000.00. In a recent trip to property; and, second, that the defendant

37
deprived him of such possession by means of No. It is not direct contempt under Sec. 1 of
force, intimidation, threats, strategy, or Rule 71, but it is an indirect contempt within
stealth. However, before instituting the said the purview of Sec. 3 of Rule 71. The lawyer
action, I will first endeavor to amicably settle can also be subject to disciplinary action.
the controversy with the informal settlers (Sec. 16, Rule 3)
before the appropriate Lupon or Barangay
Chairman. If there is no agreement reached ───※ ·❆· ※───
after mediation and conciliation under the
Katarungang Pambarangay Law, I will secure
SPECIAL PROCEEDINGS
a certificate to file action and file the
complaint for ejectment before the MTC of
Tagaytay City where the property is located
EXTRAJUDICIAL SETTLEMENT BY
since ejectment suit is a real action regardless
AGREEMENT BETWEEN HEIRS, WHEN
of the value of the property to be recovered
ALLOWED (RULE 74)
or claim for unpaid rentals (BP 129 and RULE
4, Section 1 of the Revised Rules on Civil
Procedure). QUESTION. The heirs of H agree among
In the aforementioned complaint, I will allege themselves that they will honor the division
that Spouses Juan had prior physical of H’s estate as indicated in her Last Will
possession and that the dispossession was due and Testament. To avoid the expense of
to force, intimidation and stealth. The going to court in a Petition for Probate of
complaint will likewise show that the action the Will, can they instead execute an
was commenced within a period of one (10 Extrajudicial Settlement Agreement among
year from unlawful deprivation of possession, themselves? Explain briefly. (2007 Bar
and that the Spouses Juan is entitled to Question)
restitution of possession together with
damage costs. SUGGESTED ANSWER:
The heirs of H cannot validly agree to resort
───※ ·❆· ※─── to extrajudicial settlement of his estate and
do away with the probate of H’s last will and
testament. Probate of the will is mandatory
CONTEMPT (RULE 71) (Guevarra v. Guevarra, 74 Phil. 479 [1943]).
The policy of the law is to respect the will of
QUESTION. A filed a complaint for the the testator as manifested in the other
recovery of ownership of land against B who dispositions in his last will and testament,
was represented by her counsel X. in the insofar as they are not contrary to law, public
course of the trial, B died. However, X failed morals and public policy. Extrajudicial
to notify the court of B’s death. The court settlement of an estate of a deceased is
proceeded to hear the case and rendered allowed only when the deceased left no last
judgment against B. After the Judgment will and testament and all debts, if any, are
became final, a writ of execution was issued paid (Rule 74, Sec. 1, Rules of Court).
against C, who being B’s sole heir, acquired
the property. Did the failure of counsel X to ───※ ·❆· ※───
inform the court of B’s death constitute
direct contempt? (1998 Bar) WRIT OF HABEAS CORPUS (RULE 102)

SUGGESTED ANSWER:

38
QUESTION. Hercules was walking near a him and pat him for weapons and contraband
police station when a police officer signaled whenever he observes unusual conduct which
for him to approach. As soon as Hercules leads him to conclude that criminal activity
came near, the police officer frisked him may be afoot [Terry v. Ohio, 392 U S]
but the latter found no contraband. The
police officer told Hercules to get Inside the c) Yes Hercules will have a cause of action
police station. Inside the police station,
Hercules asked the police officer, "Sir, may Under the Civil Code provisions, any public
problema po ba?" Instead of replying, the officer who violates the right of a person to
police officer locked up Hercules Inside the freedom from arbitrary or illegal detention
police station jail. shall be liable to the latter for damages The
a) What is the remedy available to Hercules action to recover damages is an independent
to secure his imme.d ia-te release from civil action [Anicle 32(4)]
detention? (2%)
b) If Hercules filed with the Ombudsman a Here Hercules was illegally detained as there
complaint for warrantless search, as counsel was no probable cause to arrest him without
for the police officer, what defense will you warrant.
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%) (2015 Bar
CANCELLATION OF CORRECTION OF ENTRIES
Examinations)
IN THE CIVIL REGISTRY (RULE 108)

SUGGESTED ANSWER:
a ) The remedy available to Hercules lo secure QUESTION. Hades, an American citizen,
his immediate release from detention is a through a dating website, got acquainted
petition for writ of habeas corpus Under Rules with Persephone, a Flllplna. Hades came to
on Special Proceedings, the writ of habeas the Philippines and proceeded to Baguio
corpus Is available In cases of illegal detention City where Persephone resides. Hades and
Said rules provide that a court or judge Persephone contracted marriage,
authorized to grant the wnt must, when the solemnized by the Metropolitan Trial Court
petition therefor is presented and it appears judge of Makati City. After the wedding,
that the writ ought to issue, grant the same Hades flew back to California, United States
forthwith, and immediately thereupon the of America, to wind up his business affairs.
clerk of court shall issue the writ or in case of On his return to the Philippines, Hades
emergency, the judge may issue the writ discovered that Persephone had an Illicit
under hIs own hand and may depute any affair with Phanes. Immediately, Hades
officer or person to serve it. [S5 R 102] The returned to the United States and
court or judge before whom the writ Is was able to obtain a valid divorce decree
returned must immediately proceed to hear from the Superior Court of the County of
and examine the return [S12 R102] San Mateo, California, a court of competent
jurisdiction against Persephone. Hades
b) I will raise the defense that the warrantless desires to marry Hestia, also a Flllplna,
search was authorized as a "'stop and frisk." whom he met at Baccus Grill In Pasay City.
a) As Hades' lawyer, what petition should
'Stop and frisk" Is the right of a police officer you file in order that your client can avoid
to stop a citizen on the street. interrogate

39
prosecution for bigamy 1f he desires to nongovernmental organization - Alyansa
marry Hestia? (2%) Laban sa Minahan sa Ahohoy (ALMA) to
b) In what court should you file the petition? protest the mining operations of Oro Negro
(1 %) Mining in the mountain. ALMA members
c) What Is the essential requisite that you picketed daily at the entrance of the mining
must comply with for the purpose of site blocking the ingress and egress of trucks
establishing jurlsdlctional facts before the and equipment of Oro Negro, hampering its
court can hear the petition? (3%) (2015 Bar operations. Masigasig had an altercation
Examinations) with Mapusok arising from the complaint of
the mining engineer of Oro Negro that one
SUGGESTED ANSWER: of their trucks was destroyed by ALMA
a} As Hade's lawyer, I would file a petition for members.
cancellation of entry of marriage under Rule
108 with prayer for recognition of foreign Mapusok is the leader of the Association of
divorce Judgment. Peace Keepers of Ahohoy (APKA), a civilian
volunteer organization serving as auxiliary
In a case involving similar facts, the Supreme force of the local police to maintain peace
Court held that a foreign divorce decree must and order in the area. Subsequently,
first be recognized before it can be given Masigasig disappeared. Mayumi, the wife of
effect. The Supreme Court stated that the Masigasig, and the members of ALMA
recognition may be prayed for 1r the petition searched for Maslgaslg, but all their efforts
for cancellation of the marriage entry under proved futile. Mapagmatyag, a member of
Rule 108. [Corpuz v Sto. Tomas, 628 SCRA 266 ALMA, learned from Maingay, a member of
(2010)] APKA, during their binge drinking that
Masigasig was abducted by other members
b) I would file the petition in the regional trial of APKA, on order of Mapusok. Mayumi and
court of Makati City, where the corresponding ALMA sought the assistance of the local
civil registry is located [S1 R 108] police to search for Masigasig, but they
c) For the Rule 108 petition, the jurisdictional refused to extend their cooperation.
facts are the following:
1) Joinder of the local civil registrar and Immediately, Mayuml filed with the RTC, a
all persons who have or claim any petition for the Issuance of the writ of
interest which would be affected by amparo against Mapusok and APKA. ALMA
petition also filed a petition for the issuance of the
2) Notice of the order of hearing to the writ of amparo with the Court of Appeals
persons named in the petition against Mapusok and APKA. Respondents
3) Publication of the order of hearing in Mapusok and APKA, in their Return filed
a newspaper of general circulation in with the RTC, raised among their defenses
the province. that they are not agents of the State; hence,
cannot be impleaded as respondents in an
───※ ·❆· ※─── amparo petition.

a) Is their defense tenable? (3%)

WRIT OF AMPARO (A.M. NO. 07-9-12-SC)
Respondents Mapusok and APKA, In their
Return filed with the Court of Appeals,
QUESTION. The residents of Mt. Ahohoy, raised as their defense that the petition
headed by Masigasig, formed a should be dismissed on the ground that

40
ALMA cannot file the petition because of the
earlier petition filed by Mayuml with the ───※ ·❆· ※───
RTC.
b) Are respondents correct in raising their
WRIT OF KALIKASAN AM NO. 09-6-8 SC
defense? (3%)
c) Mayumi later filed separate criminal and
civil actions against Mapusok. How will the QUESTION. Distinguish the following:
cases affect the amparo petition she earlier (a) Writ of kalikasan and writ of continuing
filed? (1 %) (2015 Bar Examinations) mandamus (2009 Bar Examinations)

SUGGESTED ANSWER: SUGGESTED ANSWER:

a) No, the defense of Mapusok and APKA that (a) A writ of kalikasan is distinguished from a
they are not agents of the State and hence writ of continuing mandamus as follows:
cannot be 1mpleaded as respondents in an AS TO NATURE. A writ of kalikasan is directed
amparo petition is not tenable the writ of against public or private individuals or
amparo is available in cases where the ent1ues who by act or omission violate or
enforced or involuntary disappearance of a threaten to violate a person's right to a
person Is with the authorization, support and balanced and healthful ecology, while a writ
acquiescence of the State. [See Sec. 3(g) of of continuing mandamus is directed against
R.A. No. 9851 and Navia v. Pardico, 19 June public individuals or entities who neglect the
2012, e.b.] performance of a ministerial duty in
connection with the enforcement or violation
Here Mapusok and APlKA may be considered of an environmental law or regulation or
as acting with the support or at least the unlawfully exclude another from the
acquiescence of the State since APKA serves enjoyment or use of an environmental right.
as an auxiliary force of the police and the
police refused to assist in the search for AS TO MAGNITUDE. A writ of kalikasan is
Masigasig. available in cases involving environmental
damage of such magnitude as to prejudice the
b) Yes, respondents are correct in raising their life, health, or property of inhabitants of two
defense. or more cities or provinces: while there is no
such requirement on magnitude with respect
Under the Rule on the Writ of Amparo, the to a writ of continuing mandamus.
filing of a petition by an authorized puty on
behalf of the aggrieved party suspends the AS TO WHERE FILED. A petition for writ of
right of all others. observing the order kalikasan is filed with the Supreme Court or
provided for in the Rule on the Writ of with any of the stations of the Court of
Amparo. [Sec. 2(c)] Appeals, while a petition for writ of
continuing mandamus is filed with the
Here the petition for writ of amparo had Regional Trial Court exercising jurisd1ct1on
earlier been filed by the spouse of the over the territory where the actionable
aggrieved party Masigasig. Thus, it suspends neglect or omission occurred or with the Court
the right of all others, including ALMA, to file of Appeals or the Supreme Court.
the petition.
c) The amparo petition shall be consolidated ───※ ·❆· ※───
with the cnm,nal action [Section 23, Rule on
the Wnt of Amparo]

41
 crime. (Cuyos v. Garcia, G.R. No. L-46934
CRIMINAL PROCEDURE
April 15, 1988)

RULE 110 ───※ ·❆· ※───

AMENDMENTS OR SUBSTITUTION OF
JURISDICTION
COMPLAINT OR INFORMATION

QUESTION. Jose, Alberto and Romeo were

QUESTION. Amando was charged with
charged with murder. Upon filing of the
frustrated homicide. Before he entered his
information, the RTC judge issued the
plea and upon the advice of his counsel, he
warrants for their arrest. Learning of the
manifested his willingness to admit having
issuance of the warrants, the three accused
committed the offense of serious physical
jointly filed a motion for reinvestigation and
injuries. The prosecution then filed an
for the recall of the warrants of arrest. On
amended information for serious physical
the date set for hearing of their motion,
Injuries against Amando.
none of the accused showed up in court for
What steps or action should the prosecution
fear of being arrested. The RTC judge
take so that the amended information
denied their motion because the RTC did
against Amando which downgrades the
not acquire jurisdiction over the persons of
nature of the offense could be validly made?
the movants. Did the RTC rule correctly?
Why? (2001 Bar Question)
(2008 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
In order that the amended information which
No, the court acquired jurisdiction over the
downgrades the nature of the offense could
person of the accused when they filed the
be validly made, the prosecution should file a
aforesaid motion and invoked the court’s
motion to ask for leave of court with notice to
authority over the case, without raising the
the offended party. (Sec. 14 of Rule 110,
issue of jurisdiction over their person. Their
Revised Rules of Criminal Procedure). The
filing the motion is tantamount to voluntary
new rule is for the protection of the interest
submission to the court’s jurisdiction and
of the offended party and to prevent possible
contributes voluntary appearance. (Miranda
abuse by the prosecution.
v. Tuliao, G.R. No. 158763, March 31, 2006)

───※ ·❆· ※───

───※ ·❆· ※───

QUESTION. D and E were charged with

QUESTION. In complex crimes, how is the
homicide in one information. Before they
jurisdiction of a court determined? (2003
could be arraigned, the prosecution moved
Bar)
to amend the information to exclude E
therefrom. Can the court grant the motion
SUGGESTED ANSWER:
to amend? Why? (2002 Bar Question)
In a complex crime, jurisdiction over the
whole complex crime must be lodged with the
SUGGESTED ANSWER:
trial court having jurisdiction to impose the
Yes, provided notice is given to the offended
maximum and most serious penalty imposable
party and the court states its reasons for
on an offense forming part of the complex
granting the same. (Rule 110, sec. 14).

42
 that the criminal action for violation of B.P.
───※ ·❆· ※─── Big. 22 shall be deemed to include the
corresponding civil action, and that no
QUESTION. On the facts above stated, reservation to file such civil action separately
suppose the prosecution, instead of filing a shall be allowed. [Sec. 1(b), Rule 111, Revised
motion to amend, moved to withdraw the Rules of Criminal Procedure)
information altogether and its motion was
granted. Can the prosecution re- file the ───※ ·❆· ※───
information although this time for murder?
Explain. (2002 Bar Question) QUESTION. In an action for violation of Batas
Pambansa Big. 22, the court granted the
SUGGESTED ANSWER: accused's demurrer to evidence which he
Yes, the prosecution can re-file the filed without leave of court. Although he
information for murder in substitution of the was acquitted of the crime charged, he,
information for homicide because no double however, was required by the court to pay
jeopardy has as yet attached. [Galvez v. Court the private complainant the face value of
of Appeals, 237 SCRA 685 (1994)]. the check. The accused filed a Motion for
Reconsideration regarding the order to pay
───※ ·❆· ※─── the face value of the check on the following
grounds:
(a) the demurrer to evidence applied only
RULE 111
to the criminal aspect of the case (2003 Bar
Question)
RULE ON IMPLIED INSTITUTION OF CIVIL
SUGGESTED ANSWER:
ACTION WITH CRIMINAL ACTION
(a) The Motion for Reconsideration should be
denied. The ground that the demurrer to
QUESTION. Saturnino filed a criminal action evidence applied only to the criminal aspect
against Alex for the latter’s bouncing check. of the case was not correct because the
On the date of the hearing after the criminal action for violation of Batas
arraignment, Saturnino manifested to the Pambansa Big. 22 included the corresponding
court that he is reserving his right to file a civil action. (Sec. 1(b) of Rule 111).
separate civil action. The court allowed
Saturnino to file a civil action separately ───※ ·❆· ※───
and proceeded to hear the criminal case.
Alex filed a motion for reconsideration
contending that the civil action is deemed WHEN CIVIL ACTION MAY PROCEED
included in the criminal case. The court INDEPENDENTLY
reconsidered its order and ruled that
Saturnino could not file a separate civil QUESTION. While in his Nissan Patrol and
action. Is the court's order granting the hurrying home to Quezon City from his work
motion for reconsideration correct? Why? in Makati, Gary figured in a vehicular mishap
(2001 Bar Question) along that portion of EDSA within the City of
Mandaluyong. He was bumped from behind
SUGGESTED ANSWER: by a Ford Expedition SUV driven by Horace
Yes, the court's order granting the motion for who was observed using his cellular phone
reconsideration is correct. The Rules provide at the time of the collision. Both vehicles -

43
more than 5 years old – no longer carried the police officer filed with the City
insurance other than the compulsory third Prosecutor of Manila a complaint for estafa
party liability insurance. Gary suffered supported by RTs sworn statement and
physical injuries while his Nissan Patrol other documentary evidence. After due
sustained damage in excess of Php500,000. inquest, the prosecutor filed the requisite
(B) If Gary chooses to file an independent information with the MM Regional Trial
civil action for damages, explain briefly this Court. No preliminary investigation was
type of action: its legal basis; the different conducted either before or after the filing
approaches in pursuing this type of action; of the information and the accused at no
the evidence you would need; and types of time asked for such an investigation.
defenses you could expect. (2010 Bar However, before arraignment: the accused
Question) moved to quash the information on the
ground that the prosecutor suffered from a
SUGGESTED ANSWER: want of authority to file the information
An independent civil action is an action which because of his failure to conduct a
is entirely distinct and separate from the preliminary investigation before filing the
criminal action. Such civil action shall information, as required by the Rules of
proceed independently of the criminal Court.
prosecution and shall require only a Is he entitled to a preliminary investigation
preponderance of evidence. Section 3 of Rule before the filing of the information? (2004
111 allows the filing of an independent civil Bar Question)
action by the offended party based on Article
33 and 2176 of the New Civil Code. The SUGGESTED ANSWER:
different approaches that the plaintiff can Yes, he is entitled to a preliminary
pursue in this type of action are as follows: (a) investigation because he was not lawfully
File the independent civil action and arrested without a warrant. (See Sec. 7 of
prosecute the criminal case separately. (b) Rule 112). He can move for a reinvestigation.
File the independent civil action without filing
the criminal case. (c) File the criminal case ALTERNATIVE ANSWER:
without the need of reserving the He is not entitled to a preliminary
independent civil action. investigation because the penalty for estafa is
the sum of PIO.OOO does not exceed 4 years
───※ ·❆· ※─── and 2 months. Under Sec. 1, second par., Rule
112, a preliminary investigation is not
required. (Note: The penalty is not stated in
RULE 112
the question.)

REMEDIES OF THE ACCUSED WHEN THERE ───※ ·❆· ※───

WAS NO PRELIMINARY INVESTIGATION
QUESTION. You are the defense counsel of
Angela Bituin who has been charged under
QUESTION. AX swindled RY in Lhe amount of RA 3019 ( Anti-Graft and Corrupt Practices
P10,000 sometime in mid-2003. On the Act ) before the Sandiganbayan. While
strength of the sworn statement given by RY Angela has posted bail, she has yet to be
personally to SPOl Juan Ramos sometime in arraigned. Angela revealed to you that she
mid- 2004, and without securing a warrant, has not been investigated for any offense
the police officer arrested AX. Forthwith

44
and that it was only when police officers incapacity, at the time of the commission of
showed up at her residence with a warrant the offense (Sec. 4, R.A. 8249).
(A) What "before-trial" remedy would you
invoke in Angela’s behalf to address the fact In Bondoc vs. Sandiganbayan, G.R. No. 71163-
that she had not been investigated at all, 65, November 9, 1990, the Supreme Court
and how would you avail of this remedy? held that before the Sandiganbayan may
(2013 Bar Question) lawfully try a private individual under PD
1606, the following requisites must be
SUGGESTED ANSWER: established: (a) he must be charged with a
I will file a Motion for the conduct of public officer/employee; and (b) he must be
preliminary investigation or reinvestigation tried jointly. Since the aforementioned
and the quashal or recall of the warrant of requisites are not present, the Sandiganbayan
arrest in the Court where the case is pending has no jurisdiction.
with an additional prayer to suspend the
arraignment. Under Section 6 of Rule 112 of ───※ ·❆· ※───
the Rules of Court, after the filing of the
complaint or information in court without a QUESTION. In a neighborhood bicycle race,
preliminary investigation, the accused may Mr. A bumped the bicycle of one of his
within five days from the time he learns of its competitors, Mr. B, in order to get ahead.
filing ask for preliminary investigation with This caused the latter to lose control of the
the same right to adduce evidence in his bike which hit the concrete pavement and
defense. sent Mr. B crashing headfirst into the
sidewalk. By the time the organizers got to
Moreover, Section 26, Rule 114 of the Rules him, Mr. B was dead. Law enforcement
on Criminal Procedure provides that an authorities who witnessed the incident
application for or admission to bail shall not arrested Mr. A without a warrant, and
bar the accused from challenging the validity immediately brought him to the inquest
of his arrest or legality of the warrant issued prosecutor for the conduct of an inquest.
therefor, or from assailing the regularity or Thereafter, an Information for Homicide
questioning the absence of a preliminary was filed by the inquest prosecutor without
investigation of the charge against him, the conduct of a preliminary investigation.
provided that he raises them before entering The next day Mr. A requested for the
his plea. The court shall resolve the matter as conduct of a preliminary investigation. Is
early as practicable but not later than the Mr. A's request permissible? Explain. (2019
start of the trial of the case. Bar Question)

ALTERNATIVE ANSWER: SUGGESTED ANSWER:

I will file a Motion to Quash on the ground that Yes, Mr. A’s request is permissible. The law
the Sandiganbayan has no jurisdiction over provides that after the filing of the
the person of the accused (Section 3, Rule 117 complaint or information in court
of the Rules of Criminal Procedure). The without a preliminary investigation, the
Sandiganbayan has exclusive original accused may, within five (5) days from the
jurisdiction over violations of R.A. 3019 (Anti- time he learns of its filing, ask for a
graft and Corrupt Practices law) where one or preliminary investigation with the same right
more of the accused are officials occupying to adduce evidence in his defense. Hence, Mr.
the enumerated positions in the government A may request for a preliminary investigation.
whether in a permanent, acting, or interim

45
 ───※ ·❆· ※─── that the occupants of the vehicle were up
to no good, he darted into a corner and ran.
The occupants of the vehicle- elements
RULE 113
from the Western Police District - gave
chase and apprehended him. The police
ARREST WITHOUT WARRANT, WHEN
apprehended Cicero, frisked him and found
a sachet of 0.09 gram of shabu tucked in his
LAWFUL
waist and a Swiss knife in his secret pocket,
and detained him thereafter. Is the arrest
QUESTION. AX swindled RY in Lhe amount of and body-search legal? (2010 Bar Question)
P10,000 sometime in mid-2003. On the
strength of the sworn statement given by RY SUGGESTED ANSWER:
personally to SPOl Juan Ramos sometime in The arrest and body-search was legal. Cicero
mid- 2004, and without securing a warrant, appears to be alone "walking down a dark
the police officer arrested AX. Forthwith alley" and at midnight. There appears
the police officer filed with the City probable cause for the policemen to check
Prosecutor of Manila a complaint for estafa him, especially when he darted into a corner
supported by RTs sworn statement and (presumably also dark) and run under such
other documentary evidence. After due circumstances. Although the arrest came
inquest, the prosecutor filed the requisite after the body-search where Cicero was found
information with the MM Regional Trial with shabu and a Swiss knife, the body search
Court. No preliminary investigation was is legal under the "Terry search" rule or the
conducted either before or after the filing "stop and frisk" rule. And because the mere
of the information and the accused at no possession, with animus, of dangerous drug
time asked for such an investigation. (the shabu) is a violation of the law (Rep. Act
However, before arraignment: the accused 9165), the suspect is in a continuing state of
moved to quash the information on the committing a crime while he is illegally
ground that the prosecutor suffered from a possessing the dangerous drug, thus making
want of authority to file the information the arrest tantamount to an arrest in
because of his failure to conduct a flagrante: so the arrest is legal and
preliminary investigation before filing the correspondingly, the search and seizure of the
information, as required by the Rules of shabu and the concealed knife may be
Court. Is the warrantless arrest of AX valid? regarded as incident to a lawful arrest.
(2004 Bar Question)
SUGGESTED ANSWER:
SUGGESTED ANSWER: No. The arrest and the body-search were not
No. The warrantless arrest is not valid legal. In this case, Cicero did not run because
because the alleged offense has not just been the occupant’s o of the vehicle identified
committed. The crime was allegedly themselves as police officers. He darted into
committed one year before the arrest. (Sec. 5 the corner and ran upon the belief that the
(b) of Rule 113). Occupants of the vehicle were up to no good.
Cicero's act of running does not show any
───※ ·❆· ※─── reasonable ground to believe that a crime has
been committed or is about to be committed
QUESTION. As Cicero was walking down a for the police officers to apprehend him and
dark alley one midnight, he saw an "owner- conduct body search. Hence, the arrest was
type jeepney" approaching him. Sensing illegal as it does not fall under any of the

46
circumstances for a valid warrantless arrest which insisted that he should first be
provided in Sec. 5 of Rule 113 of the Rules of arraigned before he applies for bail,
Criminal Procedure. considering that grant of bail will result in
the accused fleeing the court's jurisdiction.
───※ ·❆· ※─── When is bail a matter of right before
conviction? (2019 Bar Question)
QUESTION. Under Section 5, Rule 113 a
warrantless arrest is allowed when an SUGGESTED ANSWER:
offense has just been committed and the Under the law, all persons in custody shall be
peace officer has probable cause to believe, admitted to bail as a matter of right, with
based on his personal knowledge of facts or sufficient sureties, or released on
circumstances, that the person to be recognizance as prescribed by law or this
arrested has committed it. A policeman Rule (a) before or after conviction by the
approaches you for advice and asks you how Metropolitan Trial Court, Municipal Trial
he will execute a warrantless arrest against Court, Municipal Trial Court in Cities, or
a murderer who escaped after killing a Municipal Circuit Trial Court, and (b) before
person. The policeman arrived two (2) conviction by the Regional Trial court of an
hours after the killing and a certain Max was offense not punishable by death, reclusion
allegedly the killer per information given by perpetua, or life imprisonment.
a witness. He asks you to clarify the
following: ───※ ·❆· ※───

[a] How long after the commission of the

HEARING OF APPLICATION FOR BAIL IN
crime can he still execute the warrantless
CAPITAL OFFENSE
arrest? (2016 Bar Question)

SUGGESTED ANSWER: QUESTION. D was charged with murder, a

The arrest must be made within 24 hours after capital offense. After arraignment, he
the commission of the crime. Where the applied for bail. The trial court ordered the
arrest took place a day after the commission prosecution to present its evidence in full
of the crime, it cannot be said that an offense on the ground that only on the basis of such
has just been committed. (People v. Del presentation could it determine whether
Rosario, 305 SCRA 740). the evidence of D's guilt was strong for
purposes of bail. Is the ruling correct? Why?
───※ ·❆· ※─── (2002 Bar Question)

SUGGESTED ANSWER:
RULE 114 No, the prosecution is only required to
present as much evidence as is necessary to
determine whether the evidence of D’s guilt
BAIL, WHEN A MATTER OF RIGHT
is strong for purposes of bail. (Rule 114, sec.
8).
QUESTION. Mr. P was charged with
Plunder before the Sandiganbayan along ───※ ·❆· ※───
with several government officials. Before
his arraignment, he filed a petition for bail.
BAIL WHEN NOT REQUIRED
This was objected to by the prosecution

47
 QUESTION. D was charged with theft of an
QUESTION. After Alma had started serving article worth P15,000.00. Upon being
her sentence for violation of BP 22, she filed arraigned, he pleaded not guilty to the
a petition for a writ of habeas corpus, citing offense charged. Thereafter, before trial
Vaca vs CA where the sentence of commenced, he asked the court to allow
imprisonment of a party found guilty of him to change his plea of not guilty to a plea
violation of BP 22 was reduced to a fine of guilty but only to estafa involving
equal to double the amount of the check P5,000.00. Can the court allow D to change
involved. She prayed that her sentence be his plea? (2017 Bar Question)
similarly modified and that she be
immediately released from detention. In SUGGESTED ANSWER:
the alternative, she prayed that pending No, because a plea of guilty to a lesser offense
determination on whether the Vaca ruling may be allowed if the lesser offense is
applies to her, she be allowed to post bail necessarily included in the offense charged.
pursuant to Rule 102, Sec. 14, which (Rule 116, sec. 2). Estafa involving P5,000.00
provides that if a person is lawfully is not necessarily included in theft of an
imprisoned or restrained on a charge of article worth P15,000.00.
having committed an offense not punishable
by death, he may be admitted to bail in the ───※ ·❆· ※───
discretion of the court. accordingly, the
trial court allowed Alma to post bail and
RULE 117
then ordered her release. In your opinion,
is the order of the trial court correct – Under
the Rules of criminal procedure? (2008 Bar
MOTION TO QUASH
Question)

SUGGESTED ANSWER: QUESTION. Pedrito and Tomas, Mayor and

Under the Rules of Criminal Procedure, Rule Treasurer, respectively, of the Municipality
114, Sec. 24 clearly prohibits the grant of bail of San Miguel, Leyte, are charged before the
after conviction by final judgment and after Sandiganbayan for violation of Section 3(e),
the convict has started to serve sentence. In RA no. 3019 (Anti-Graft and Corrupt
the present case, Alma had already started Practices Act). The information alleges,
serving her sentence. She cannot, therefore, among others, that the two conspired in the
apply for bail (Peo. vs. Fitzgerald, G.R. No. purchase of several units of computer
149723, 27 October 2006). through personal canvass instead of a public
bidding, causing undue injury to the
───※ ·❆· ※─── municipality. Before arraignment, the
accused moved for reinvestigation of the
charge, which the court granted. After
RULE 116 reinvestigation, the Office of the Special
Prosecutor filed an amended information
duly signed and approved by the Special
ARRAIGNMENT AND PLEA
Prosecutor, alleging the same delictual
facts, but with an additional allegation that
the accused gave unwarranted benefits to
WHEN MAY ACCUSED ENTER A PLEA OF
SB enterprises owned by Samuel. Samuel
GUILTY TO A LESSER OFFENSE

48
was also indicted under the amended
information. SUGGESTED ANSWER:
NO, the motion to quash will not be granted.
Before Samuel was arraigned, he moved to The lack of preliminary investigation is not a
quash the amended information on the ground for a motion to quash under the Rules
ground that the officer who filed had no of Criminal Procedure. Preliminary
authority to do so. Resolve the motion to investigation is only a statutory right and can
quash with reasons. be waived. The accused should instead file a
motion for reinvestigation within five (5) days
SUGGESTED ANSWER: after he learns of the filing in Court of the
The motion to quash filed by Samuel should case against him (Sec. 6, Rule 112, as
be granted. There is no showing that the amended).
special prosecutor was duly authorized or
deputized to prosecute Samuel. Under R.A. ───※ ·❆· ※───
No. 6770, also known as the Ombudsman Act
of 1989, the Special Prosecutor has the power
GROUNDS
and authority, under the supervision and
control of the Ombudsman, to conduct
preliminary investigation and prosecute QUESTION. The information against Roger
criminal cases before the Sandiganbayan and Alindogan for the crime of acts of
perform such other duties assigned to him by lasciviousness under Article 336 of the
the Ombudsman (Calingin vs. Desierto, 529 Revised Penal Code avers: "That on or about
SCRA 720 [2007]). 10:30 o'clock in the evening of February 1,
2010 at Barangay Matalaba, Imus, Cavite
Absent a clear delegation of authority from and within the jurisdiction of this Honorable
the Ombudsman to the Special Prosecutor to Court, the above-named accused, with lewd
file the information, the latter would have no and unchaste design, through force and
authority to file the same. The Special intimidation, did then and there, wilfully,
Prosecutor cannot be considered an alter ego unlawfully and feloniously commit sexual
of the Ombudsman as the doctrine of qualified abuse on his daughter, Rose Domingo, a
political agency does not apply to the office minor of 11 years old, either by raping her
of the Ombudsman. In fact, the powers of the or committing acts of lasciviousness on her,
office of the Special Prosecutor under the law against her will and consent to her damage
may be exercised only under the supervision and prejudice.
and control and upon authority of the
Ombudsman (Perez vs. Sandiganbayan, 503 The accused wants to have the case
SCRA 252 [2006]). dismissed because he believes that the
charge is confusing and the information is
───※ ·❆· ※─── defective. What ground or grounds can he
raise in moving for the quashal of the
QUESTION. A criminal information is filed in information? Explain. (2016 Bar Question)
court charging Anselmo with homicide.
Anselmo files a motion to quash the SUGGESTED ANSWER:
information on the ground that no The grounds which the accused can raise in
preliminary investigation was conducted. moving for the quashal of the information are
Will the motion be granted? Why or why the following:
not? (3%)

49
1. THE INFORMATION CHARGES MORE THAN
ONE OFFENSE. The information charges two The Rules of Criminal Procedure is clear that
offenses, that is, rape and sexual abuse. a motion to quash can be availed of only when
Worse, the charges are stated in the a ground or grounds set therein are available
alternative, making it unclear to the accused as when the facts charged do not constitute
as to what offense exactly he is being charged an offense. Moreover, an application for bail
with. sets in only when the accused has already
acquired custody of the accused.
2. THE INFORMATION DOES NOT CONFORM
SUBSTANTIALLY TO THE REQUIRED FORM. The Here, the information charges an offense
information merely states that the accused which is the nonbailable crime of plunder.
committed acts of lasciviousness upon the Besides, the warrant of arrest has yet to be
victim without specifying what those acts of filed, meaning that A is not yet under the
lasciviousness were. custody of the court. Therefore, the motion
to quash and fix bail has no basis hence should
───※ ·❆· ※─── be denied.

QUESTION. A was charged before the ───※ ·❆· ※───

Sandiganbayan with a crime of plunder, a
non-bailable offense, where the court had QUESTION. If the Sandiganbayan denies the
already issued a warrant for his arrest. motion, what judicial remedy should the
Without A being arrested, his lawyer filed a accused undertake? (2%)
Motion to Quash Arrest Warrant and to Fix
Bail, arguing that the allegations in the SUGGESTED ANSWER:
information did not charge the crime of If the Sandiganbayan denies the motion, the
plunder but a crime of malversation, a accused should proceed to trial.
bailable offense. The court denied the
motion on the ground that it had not yet Under the Rules of Criminal Procedure, an
acquired jurisdiction over the person of the order denying a motion to quash is an
accused and that the accused should be interlocutory order which is neither
under the custody of the court since the appealable nor subject to a petition for
crime charged was nonbailable The certiorari.
accused’s lawyer counter-argued that the
court can rule on the motion even if the Therefore, the remedy of the accused is to
accused was at-large because it had proceed to trial, await its judgment, then
jurisdiction over the subject matter of the appeal an unfavorable judgment.
case. According to said lawyer, there was no
need for the accused to be under the ───※ ·❆· ※───
custody of the court because what was filed
was a Motion to Quash Arrest and to Fix Bail,
SINGLE OFFENSE RULE
not a Petition for Bail.

(A) If you are the Sandiganbayan, how will QUESTION. Rodolfo is charged with
you rule on the motion? (3%) possession of unlicensed firearms in an
information filed in the Regional Trial
SUGGESTED ANSWER: Court. It was alleged therein that Rodolfo
I will deny the motion to quash and fix bail. was in possession of two unlicensed

50
firearms: a .45 caliber and a .32 caliber. Injuries. The latter case was scheduled for
Under Republic Act No. 8294, possession of arraignment earlier, on which occasion
an unlicensed 45 caliber gun is punishable McJolly immediately pleaded guilty. He was
by prision mayor in its minimum period and meted out the penalty of public censure. A
a fine of P30.00Q.00. while possession of an month later, the case for reckless
unlicensed .32 caliber gun is punishable by imprudence resulting in homicide was also
prision correctional in its maximum period set for arraignment. Instead of pleading,
and a fine of not less than PI 5,000.00. As McJolly interposed the defense of double
counsel of the accused, you intend to file a jeopardy. Resolve. (2017 Bar Question)
motion to quash the Information. What
ground or grounds should you invoke? SUGGESTED ANSWER:
Explain. (4%) The defense of double jeopardy is meritorious
and the second information for reckless
SUGGESTED ANSWER: imprudence resulting in homicide should be
The ground for the motion to quash is that quashed on the ground of double jeopardy.
more than one offense is charged in the The Supreme Court has held that reckless
information (Sec. 3[f], Rule 117, 2000 Rules of imprudence is a single crime and that its
Criminal Procedure). Likewise, the RTC has consequences on persons and property are
no jurisdiction over the second offense of material only to determine the penalty. Here
possession of an unlicensed .32 caliber gun, there was only one act and crime of reckless
punishable by prision correccional in its imprudence. The death, the physical injuries,
maximum period and a fine of not less than and the damage to the tricycle are only
P15,000.00, It is the MTC that has exclusive consequences of the same reckless act of
and original jurisdiction over offenses McJolly. Hence there was double jeopardy
punishable by imprisonment not exceeding when a second information arising from the
six years. (Sec. 2, Republic Act No. 7691 same reckless act was brought against the
[1994], amending Sec. 32 (2) , B.P. Big. 129) accused. (Ivler v. Modesto-San Pedro, 17
[1980]. November 2010).

───※ ·❆· ※─── ───※ ·❆· ※───

DOUBLE JEOPARDY RULE 119

QUESTION. McJolly is a trouble-maker of

TRIAL
sorts, always getting into brushes with the
law. In one incident, he drove his Humvee
recklessly, hitting a pedicab which sent Rits DEMURRER TO EVIDENCE WITHOUT LEAVE
driver and passengers in different OF COURT
directions. The pedicab driver died, while
two (2) of the passengers suffered slight
physical injuries. Two (2) Information were QUESTION. Still in another case, this time
then filed against McJolly. One, for Reckless for illegal possession of dangerous drugs,
Imprudence Resulting in Homicide and the prosecution has rested but you saw from
Damage to Property, and two, for Reckless the records that the illegal substance
Imprudence Resulting in Slight Physical allegedly involved has not been identified
by any of the prosecution witnesses nor has
it been the subject of any stipulation.

51
Should you now proceed posthaste to the considered submitted for decision.
presentation of defense evidence or Subsequently, the Clerk of Court issued the
consider some other remedy? Explain the notices of promulgation of judgment which
remedial steps you propose to undertake. were duly received. On promulgation day,
(2013 Bar Question) Ludong and his lawyer appeared. The
lawyers of Balatong and Labong appeared
SUGGESTED ANSWER: but without their clients and failed to
No. I will not proceed with the presentation satisfactorily explain their absence when
of defense evidence. I will first file a motion queried by the court. Thus, the Judge
for leave to file demurrer to evidence within ordered the Clerk of Court to proceed with
five (5) days from the time the prosecution the reading of the judgment convicting all
has rested its case. If the Motion is granted, I the accused. With respect to Balatong and
will file a Labong, the judge ordered that the
demurrer to evidence within a non-extendible judgment be entered in the criminal docket
period of ten (10) days from notice on the and copies be furnished their lawyers. The
ground of insufficiency of evidence. In the lawyers of Ludong, Balatong, and Labong
alternative, I may immediately file a filed within the reglementary period a Joint
demurrer to evidence without leave of court. Motion for Reconsideration. The court
(Section 23, Rule 119, Rules of favorably granted the motion of Ludong
Criminal Procedure) downgrading his conviction from murder to
homicide but denied the motion as regards
In People v. De Guzman, GR No, 186498, Balatong and Labong. (4%)
March 26, 2010, the Supreme Court held that
in a prosecution for violation of the Dangerous (a) Was the court correct in taking
Drugs Act, the existence of the dangerous cognizance of the Joint Motion for
drug is a condition sine qua non for Reconsideration?
conviction. The dangerous drug is the very (b) Can Balatong and Labong appeal their
corpus delicti of the crime. conviction in case Ludong accepts his
conviction for homicide?
Similarly, in People v. Sitco, GR No. 178202,
May 14, 2010, the High Court held that in SUGGESTED ANSWER:
prosecutions involving narcotics and other (a) No the court was not correct in taking
illegal substances, cognizance of the Joint Motion for
the substance itself constitutes part of the Reconsideration insofar as Balatong and
corpus delicti of the offense and the Labong were concerned.
fact of its existence is vital to sustain a
judgment of conviction beyond reasonable Under Section 6 Rule 120, if the judgment was
doubt. for conviction and the failure of the accused
to appear was without justifiable cause, he
───※ ·❆· ※─── shall lose the remedies available under the
Rules of Court and the court shall order his
arrest. The accused may regain the remedies
RULE 120 AND 121
only if he surrenders and files a motion for
leave to avail of the remedies under the Rules
QUESTION. Ludong, Balatong, and Labong of Court.
were charged with murder. After trial, the
court announced that the case was

52
Here, the failure of Balatong and Labong to and detained him thereafter. Is the arrest
appear was without justifiable cause as even and body-search legal? (2010 Bar Question)
their lawyers were not aware of the reason for
their absence Hence they lost their remedies SUGGESTED ANSWER:
under the Rules. Since Balatong and Labong The arrest and body-search was legal. Cicero
did not surrender and file a motion for leave appears to be alone walking down the dark
to avail of remedies it was incorrect for the alley” and at midnight. There appears
trial court to take cognizance of the Joint probable cause for the policemen to check
motion for reconsideration insofar as Balatong him, especially when he darted into a corner
and Labong were concerned. The trial court (presumably also dark) and ran under such
should instead have ordered their arrest. circumstances. Although the arrest came
[People v. De Grano. 5 June 2009 Peralta. J] after the bodysearch where Cicero was found
with shabu and a Swiss knife, the body-search
On the other hand it was correct for the trial is legal under the “Terry search” rule or the
court to take cognizance of the Joint motion “stop and frisk” rule. And because the mere
for reconsideration insofar as Ludong was possession, with animus, of dangerous drug
concerned since he and his lawyer were (the shabu) is a violation of the law (R.A.
present during the promulgation. 9165), the suspect is in a continuing state of
committing a crime while he is illegally
(b) No, Balatong and Labong cannot appeal possessing the dangerous drug, thus making
their conviction in case Ludong accepts his the arrest tantamount to an arrest in
conviction for homicide. Since Balatong and flagrante: so, the arrest is legal and
Labong failed to appear during the correspondingly, the search and seizure of the
promulgation of the conviction without shabu and the concealed knife may be
justifiable cause, they lost the remedies regarded as incident to a lawful arrest.
under the Rules of Court including the remedy
of an appeal. ALTERNATIVE ANSWER:
No, the arrest and the body-search were not
───※ ·❆· ※─── legal. In this case, Cicero did not run because
the occupants of the vehicle identified
themselves as police officers. He darted into
RULE 126
the corner and ran upon the belief that the
occupants of the vehicle were up to no good.
SEARCH AND SEIZURE Cicero‟s act of running does not show any
reasonable grounds to believe that a crime
has been committed or is about to be
QUESTION. As Cicero was walking down a committed for the police officers to
dark alley one midnight, he saw an "owner- apprehend him and conduct body search.
type jeepney" approaching him. Sensing Hence, the arrest was illegal as it does not fall
that the occupants of the vehicle were up under any of the circumstances for a valid
to no good, he darted into a corner and ran. warrantless arrest provided in Sec. 5 of Rule
The occupants of the vehicle − elements 113 of the Rules of Criminal Procedure.
from the Western Police District − gave
chase and apprehended him. The police
───※ ·❆· ※───
apprehended Cicero, frisked him and found
a sachet of 0.09 gram of shabu tucked in his
waist and a Swiss knife in his secret pocket, PLAIN VIEW DOCTRINE

53
 been to a courtroom nor seen a judge. What
QUESTION. The search warrant authorized remedy would you undertake to address the
the seizure of “undetermined quantity of situation and what forum would you use to
shabu.” During the service of the search invoke this relief? (2013 Bar Question)
warrant, the raiding team also recovered a
kilo of dried marijuana leaves wrapped in SUGGESTED ANSWER:
newsprint. The accused moved to suppress Section 7, Rule 119 provides, if the public
the marijuana leaves as evidence for the attorney assigned to defend a person charged
violation of Section 11 of the with a crime knows that the latter is
Comprehensive Dangerous Drugs Act of preventively detained, either because he is
2002 since they were not covered by the charged with a bailable crime but has no
search warrant. The State justified the means to post bail, or, is charged with a non-
seizure of the marijuana leaves under the bailable crime, or, is serving a term of
“plain view” doctrine. There was no imprisonment in any penal institution, it shall
indication of whether the marijuana leaves be his duty to do the following: (a) Shall
were discovered and seized before or after promptly undertake to obtain the presence of
the seizure of the shabu. If you are the the prisoner for trial or cause a notice to be
judge, how would you rule on the motion to served on the person having custody of the
suppress? (2008 Bar Question) prisoner requiring such person to so advise the
prisoner of his right to demand trial. (b) Upon
SUGGESTED ANSWER: receipt of that notice, the custodian of the
The “plain view” doctrine cannot be invoked prisoner shall promptly advise the prisoner of
because the marijuana leaves were wrapped the charge and of his right to demand trial. If
in newsprint and there was no evidence as to at any time thereafter the prisoner informs
whether the marijuana leaves were his custodian that he demands such trial, the
discovered and seized before or after the latter shall cause notice to that effect to be
seizure of the shabu. If they were discovered sent promptly to the public attorney.
after the seizure of the shabu, then the
marijuana could not have been seized in plain ───※ ·❆· ※───
view (CF. Peo vs. Mua, G.R. No. 96177, 27
January 1997). In any case, the marijuana
EVIDENCE
should be confiscated as a prohibited article.
(2008)
───※ ·❆· ※─── RULE 129

PROVISIONAL REMEDIES IN CRIMINAL CASE QUESTION. Give three instances when a

Philippine Court can take judicial notice of
QUESTION. At the Public Attorney's Office a foreign law. (1997 Bar)
station in Taguig where you are assigned,
your work requires you to act as public SUGGESTED ANSWER:
defender at the local Regional Trial Court The three instances when a Philippine court
and to handle cases involving indigents. (A) can take judicial notice of a foreign law are:
In one criminal action for qualified theft 1) When the Philippine courts are
where you are the defense attorney, you evidently familiar with the foreign law
learned that the woman accused has been (Moran, 1980);
in detention for six months, yet she has not

54
 2) When the foreign law refers to the law copy to his counsel for safekeeping. The
of nations (Sec. 1, Rule 129) and, copy with A's counsel was destroyed when
3) When it refers to a published treatise, the law office was burned. (1997 Bar
periodical or pamphlet on the subject Question)
of law if the court takes judicial notice
of the fact that the writer thereof is a) In an action to collect on the promissory
recognized in his profession or calling note, which is deemed to be the "original"
as expert on the subject. (Sec. 4[5], copy for the purpose of the "Best Evidence
Rule 130) Rule"?
b) Can the photocopies in the hands of the
───※ ·❆· ※─── parties be considered "duplicate original
copies"?
c) As counsel for A, how will you prove the
RULE 130
loan given by A and B?

OBJECT EVIDENCE
SUGGESTED ANSWER:
(a) The copy that was signed and lost is the
QUESTION. May a private document be only "original" copy for purposes of the Best
offered, and admitted in evidence both as Evidence Rule. (Sec. 4 [b] of Rule 130)
documentary evidence and as object
evidence? Explain (2005 Bar) (b) No, they are not duplicate original copies
because there are photocopies which were
SUGGESTED ANSWER: not signed (Mahilum v. Court of Appeals, 17
Yes. A private document may be offered and SCRA 482). They constitute secondary
admitted in evidence both as documentary evidence. (Sec. 5 of Rule 130)
evidence and as object evidence. A document
can also be (c) The loan given by A to B may be proved by
considered as an object for purposes of a secondary evidence through the xeroxed
case. copies of the promissory note. The rules
provide that when the original document is
───※ ·❆· ※─── lost or destroyed, or cannot be produced in
court, the offeror, upon proof of its execution
or existence and the cause of its unavailability
DOCUMENTARY EVIDENCE
without bad faith on his part, may prove its
contents by a copy, or by a recital of its
ORIGINAL DOCUMENT RULE contents in some authentic document, or by
the testimony of witnesses in the order
stated. (Sec. 5 of Rule 130)
Note: This was formerly referred to as the “Best
Evidence Rule”.
Note: The “Best Evidence Rule” was changed
to the “Original Document Rule” because the
QUESTION. When A loaned a sum of money
former is a misnomer as it does not refer to
to B, A typed a single copy of the promissory
some hierarchy of evidence. Rather, the rule
note, which they both signed. A made two
simply states that there is preference for
photo (xeroxed) copies of the promissory
original documents to prove the actual
note, giving one copy to B and retaining the
contents thereof.
other copy. A entrusted the typewritten

55
 ───※ ·❆· ※───
Atty. Maya Bang, however, may object to the
QUESTION. Police officers arrested Mr. photocopies of the confiscated marked
Druggie in a buy-bust operation and genuine peso bills for being hearsay evidence.
confiscated from him 10 sachets of shabu Since it does not appear that the prosecution
and several marked genuine peso bills worth was able to establish that its submission of
P5,000.00 used as the buy-bust money photocopied documents is justified under
during the buy-bust operation. At the trial Rule 130, Sections 3 (a), (b), and (d) of the
of Mr. Druggie for violation of R.A. No. 9165 Rules of Court, said photocopied documents
(Comprehensive Dangerous Drug Act of do not have any probative weight and should
2002), the Prosecution offered in evidence, be disregarded whether objected to or not
among others, photocopies of the (Republic v. Mupas, G.R. No. 181892, April
confiscated marked genuine peso bills. The 19,2016).
photocopies were offered to prove that Mr.
Druggie had engaged at the time of his ───※ ·❆· ※───
arrest in the illegal selling of dangerous
drugs. Invoking the Best Evidence Rule, QUESTION. In a case for specific
Atty. Maya Bang, the defense counsel, performance and damages, plaintiff Q
objected to the admissibility of the presented photocopies of the contracts he
photocopies of the confiscated marked had executed with defendant R for the
genuine peso bills. Should the trial judge purpose of establishing their existence.
sustain the objection of the defense Defendant R's counsel objected to the
counsel? Briefly explain your answer. (2017 admission of said photocopies, invoking the
Bar Question) best evidence rule. (2019 Bar Question)

SUGGESTED ANSWER: Should the objection of defendant R's

No, the trial judge should not sustain the counsel be sustained? Explain
defense counsel's objection. In People v.
Tandoy (G.R. No. 80505, December 4, 1990), SUGGESTED ANSWER:
the Supreme Court held that the best No, the objection of defendant R's counsel
evidence rule applies only when the contents should not be sustained. The Supreme Court
of the document are the subject of Inquiry. has held that the best evidence rule does not
Where the issue is only as to whether or not apply if the purpose of offering the document
such a document was actually executed, or is not to prove its contents but its existence.
exists, or the circumstances relevant to or The reason is that the best evidence rule
surrounding its execution, the best evidence applies only to documentary evidence and not
rule does not apply and testimonial evidence to object evidence. (People v. Tandoy, 192
is admissible. SCRA 28)
Here, the marked money was presented by
the prosecution solely for the purpose of ───※ ·❆· ※───
establishing its existence and not its contents.
Other substitutionary evidence, like a
TESTIMONIAL EVIDENCE
photocopy thereof, is therefore admissible
without the need of presenting the original.
Hence, the best evidence rule does not apply
FILIAL PRIVILEGE
in this case. The trial judge, therefore, should
not sustain the defense counsel's objection.

56
QUESTION. In a case for Attempted Parricide
brought against Mr. M by his wife, Mrs. N, SUGGESTED ANSWER:
their son, C, was called as a witness for the (a) No. While neither the husband nor the wife
prosecution. Mr. M's counsel objected, may testify for or against the other without
invoking the filial privilege rule. Should the the consent of the affected spouse, one
objections of Mr. M's counsel be sustained? exception is if the testimony of the spouse is
Explain. in a criminal case for a crime committed by
one against the other or the latter’s direct
descendants or ascendants. (Sec, 23, Rule
SUGGESTED ANSWER: 130). The case falls under this exception
No, the objections of Mr. M’s counsel in both because Selma is the direct descendant of the
cases should be overruled. spouse Vide.

The objection of Mr. M’s counsel invoking the (b) No. The marital disqualification rule
filial privilege rule should be overruled. applies this time. The exception provided by
Under the Law on Evidence, the filial privilege the rules is in a civil case by one spouse
rule is a privilege of the witness not to testify against the other. The case here involves a
against his direct ascendant. It is the privilege case by Selmo for the recovery of personal
of the witness not the person he is being property against Vida’s spouse, Romeo.
called to testify against.
───※ ·❆· ※───
Here the one invoking the filial privilege is not
the witness but the ascendant against whom QUESTION. XYZ, an alien, was criminally
the witness is being called upon to testify. charged of promoting and facilitating child
Hence the objection based on filial privilege prostitution and other sexual abuses under
should be overruled. Rep. Act No. 7610. The principal witness
against him was his Filipina wife, ABC.
───※ ·❆· ※─── Earlier, she had complained that XYZ's hotel
was being used as a center for sex tourism
and child trafficking. The defense counsel
PRIVILEGED COMMUNICATION (MARITAL)
for XYZ objected to the testimony of ABC at
the trial of the child prostitution case and
QUESTION. Vida and Romeo are legally the introduction of the affidavits she
married. Romeo is charged to court with the executed against her husband as a violation
crime of serious physical injuries committed of espousal confidentiality and marital
against Selmo, son of Vida, stepson of privilege rule. It turned out that DEF, the
Romeo. Vida witnessed the infliction of the minor daughter of ABC by her first husband
injuries on Selmo by Romeo. The public who was a Filipino, was molested by XYZ
prosecutor called Vida to the witness stand earlier. Thus, ABC had filed for legal
and offered her testimony as an eyewitness. separation from XYZ since last year. May the
Counsel for Romeo objected on the ground court admit the testimony and affidavits of
of the marital disqualification rule under the wife, ABC, against her husband, XYZ, in
the Rules of Court. a) Is the objection valid? the criminal case involving child
(3%) b) Will your answer be the same if prostitution? Reason. (5%) (2004 Bar
Vida’s testimony is offered in a civil case for Question)
recovery of personal property filed by
Selmo against Romeo? (2000 Bar Question) SUGGESTED ANSWER:

57
Yes. The court may admit the testimony and Yes, Leticia may testify over the objection of
affidavits of the wife against her husband in her husband. The disqualification of a witness
the criminal case where it involves child by reason of marriage under Sec. 23, Rule 130
prostitution of the wife's daughter. It is not of the Revised Rules of Court has its
covered by the marital privilege rule. One exceptions as where the marital relations are
exception thereof is where the crime is so strained that there is no more harmony to
committed by one against the other or the be preserved. The acts of Paul eradicate all
latter's direct descendants or ascendants. major aspects of marital life. On the other
(Sec. 23, Rule 130). A crime by the husband hand, the State has an interest in punishing
against the daughter is a crime against the the guilty and exonerating the innocent, and
wife and directly attacks or vitally impairs the must have the right to offer the testimony of
conjugal relation. (Ordono v. Daquigan, 62 Leticia over the objection of her husband
SCRA 270 [1975]). (Alvarez v. Ramirez, G.R. No. 143439,
October 14, 2005).
───※ ·❆· ※───
───※ ·❆· ※───
QUESTION. Leticia was estranged from her
husband Paul for more than a year due to QUESTION. On March 12, 2008, Mabini was
his suspicion that she was having an affair charged with Murder for fatally stabbing
with Manuel, their neighbor. She was Emilio. To prove the qualifying
temporarily living with her sister in Pasig circumstance of evident premeditation, the
City. For unknown reasons, the house of prosecution introduced on December 11,
Leticia's sister was burned, killing the 2009 a text message, which Mabini’s
latter. Leticia survived. She saw her estranged wife Gregoria had sent to Emilio
husband in the vicinity during the incident. on the eve of his death, reading: “Honey,
Later he was charged with arson in an pa2tayin u ni Mabini. Mtgal n nyang plano i2.
Information filed with the Regional Trial Mg ingat u bka ma tsugi k.”
Court, Pasig City. During the trial, the
prosecutor called Leticia to the witness (a) A subpoena ad testificandum was served
stand and offered her testimony to prove on Gregoria for her to be presented for the
that her husband committed arson. Can purpose of identifying her cellphone and
Leticia testify over the objection of her the text message. Mabini objected to her
husband on the ground of marital privilege? presentation on the ground of marital
(5%) (2006 Bar Question) privilege. Resolve. (2010 Bar Question)

SUGGESTED ANSWER: SUGGESTED ANSWER:

No, Leticia cannot testify over the objection The objection should be sustained on the
of her husband, not under marital privilege ground of the marital disqualification rule
which is inapplicable and which can be (Rule 130, Sec. 23), not on the ground of the
waived, but she would be barred under Sec. “marital privilege” communication rule (Rule
23 of Rule 130, which prohibits her from 130, Sec. 24). The marriage between Mabini
testifying and which cannot be waived and Gregoria is still subsisting and the
(Alvarez v. Ramirez, G.R. No. 143439, situation at bar does not come under the
October 14, 2005). exceptions to the disqualification by reason of
marriage.
ALTERNATIVE ANSWER:
───※ ·❆· ※───

58
 involves an exception, that is, a civil case by
QUESTION. Suppose Mabini’s objection in one spouse against the other.
question A was sustained. The prosecution
thereupon announced that it would be ───※ ·❆· ※───
presenting Emilio’s wife Graciana to identify
Emilio’s cellphone bearing Gregoria’s text
PRIVILEGE COMMUNICATION, LAWYER-
message. Mabini objected again. Rule on the
CLIENT
objection. (2%)

SUGGESTED ANSWER: QUESTION. On August 15, 2008, Edgardo

The objection should be overruled. The committed estafa against Petronilo in the
testimony of Graciana is not covered by the amount of P3 Million. Petronilo brought his
said marital disqualification rule because she complaint to the National Bureau of
is not the wife of Mabini. Besides, Graciana Investigation, which found that Edgardo had
will identify only the cellphone as that of her visited his lawyer twice, the first time on
husband Emilio, not the messages therein August 14, 2008 and the second on August
which to her are hearsay. 16, 2008; and that both visits concerned the
swindling of Petronilo. During the trial of
───※ ·❆· ※─── Edgardo, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him
QUESTION. John filed a petition for to testify on the conversations during their
declaration of nullity of his marriage to first and second meetings. May the
Anne on the ground of psychological subpoena be quashed on the ground of
incapacity under Article 36 of the Family privileged communication? Explain fully.
Code. He obtained a copy of the confidential (2008 Bar Question)
psychiatric evaluation report on his wife
from the secretary of the psychiatrist. Can SUGGESTED ANSWER:
he testify on the said report without Yes, the mantle of privileged communication
offending the rule on privileged based on lawyer-client relationship protects
communication? Explain. (2016 Bar the communication between a lawyer and his
Question) client against any adverse party as in this
case. The subpoena requiring the lawyer to
SUGGESTED ANSWER: testify can be quashed on the ground of
Yes, John can testify on the psychiatric report privileged communication (See Regala v.
without offending the rule on privileged Sandiganbayan, GR No. 105938, 20 September
communication. In a case involving similar 1996). The Rules of Court provides that an
facts, the Supreme Court held that there is no attorney cannot, without the consent of his
violation of physician-patient privilege since client, be examined in any communication
the one testifying is not the psychiatrist. The made to him by his client to him, or his advice
privilege bars only the physician, not other given thereon, including his secretary,
persons. (Krohn v. Court of Appeals, 233 SCRA stenographer, clerk concerning any fact the
146). There is no violation of marital knowledge of which has been acquired in such
communication privilege since the report is capacity. However, where the subject matter
not a confidential communication between of the communication involves the
spouses. There is also no violation of the commission of the crime, in which the lawyer
marital disqualification rule since the case himself is a participant or conspirator, then
the same is not covered by the privilege.

59
Moreover, if the substance of the Bulacan. Due to his negligence, X hit and
communication can be established by injured V who was crossing the street:
independent evidence, the lawyer may be Lawyer L, who witnessed the incident,
compelled to testify. offered his legal services to V.

───※ ·❆· ※─── V, who suffered physical injuries including a

fractured wrist bone, underwent surgery to
QUESTION. A tugboat owned by Speedy Port screw a metal plate to his wrist bone. On the
Service, Inc. (SPS) sank in Manila Bay while complaint of V, a criminal case for Reckless
helping tow another vessel, drowning five Imprudence Resulting in Serious Physical
(5) crews in the resulting shipwreck. At the Injuries was filed against X before the
maritime board inquiry, the four (4) Municipal Trial Court (MTC) of Sta. Maria.
survivors testified. SPS engaged Atty. Ely to Atty. L, the private prosecutor, did not
defend it against potential claims and to sue reserve the filing of a separate civil action.
the company owning the other vessel for V subsequently filed a complaint for
damages to tug. Ely obtained signed Damages against X and Y before the Regional
statements from the survivors. He also Trial Court of Pangasinan in Urdaneta where
interviewed other persons, in some he resides. In his "Certification against
instances making memoranda. The heirs of Forum Shopping” V made no mention of the
the five (5) victims filed an action for pendency of the criminal case in Sta. Maria.
damages against SPS. Plaintiffs’ counsel sent
written interrogatories to Ely, asking Atty. L offered in the criminal case his
whether statements of witnesses were affidavit respecting what he witnessed
obtained; if written copies were to be during the incident. X's lawyer wanted to
furnished; if oral, the exact provision were cross examine Atty. L who, however,
to be set forth in detail. Ely refused to objected on the ground of lawyer client
comply, arguing that the documents and privilege. Rule on the objection. (2010 Bar
information asked are privileged Question)
communication. Is the contention tenable?
(2008 Bar Question) SUGGESTED ANSWER:
The objection should be overruled. Lawyer-
SUGGESTED ANSWER: client privilege is not involved here. The
Yes, the lawyer-client privilege covers any subject on which the counsel would be
communication made by the client to the examined has been made public in the counsel
lawyer, or the lawyer’s advice given thereon would be examined has been made public in
in the course of, or with a view to professional the affidavit he offered and thus, no longer
employment. The documents and information privileged, aside from the fact that it is in
sought were gathered and prepared pursuant respect of what the counsel witnessed during
to the engagement of Ely as a lawyer for the the incident and not to the communication
company (Air Philippines Corporation v. made by the client to him or the advice he
Pennswell, Inc., GR No. 172835, 13 December gave thereon in his professional capacity.
2007).
───※ ·❆· ※───
───※ ·❆· ※───
PRIVILEGED COMMUNICATION, DOCTOR-
QUESTION. X was driving the dump truck of PATIENT
Y along Cattleya Street in Sta. Maria,

60
QUESTION. For over a year, Nenita had been
SUBSUBTOPIC
estranged from her husband Walter because
of the latter’s suspicion that she was having
an affair with QUESTION. A was accused of having raped X.
Rule on the admissibility of the following
Vladimir, a barangay kagawad who lived in pieces of evidence:
nearby Mandaluyong. Nenita lived in the a. An offer of A to marry X
meantime with her sister in Makati. One
day, the house of Nenita’s sister SUGGESTED ANSWER:
inexplicably burned almost to the ground. A’s offer to marry X is admissible in evidence
Nenita and her sister were caught inside the as an implied admission of guilt. It has been
house but Nenita survived as she fled in held that in rape cases, an offer of marriage
time, while her sister tried to save is considered an implied admission of guilt of
belongings and was caught inside when the the accused. (People v Domingo, G.R. No.
house collapsed. As she was running away 97921, September 8, 1993)
from the burning house, Nenita was
surprised to see her husband also running ───※ ·❆· ※───
away from the scene. Dr. Carlos, Walter’s
psychiatrist who lived near the burned QUESTION. A pair of short pants allegedly
house and whom Walter medically left by A at the crime which the court, over
consulted after the fire, also saw Walter in the objection of A, required him to put on,
the vicinity some minutes before the fire. and when he did, it fit him well. (1998
Coincidentally, Fr. Platino, the parish priest Bar)
who regularly hears Walter’s confession and
who heard it after the fire, also SUGGESTED ANSWER:
encountered him not too far away from the The pair of short pants, which fit the accused
burned house. Walter was charged with well, is circumstantial evidence of his guilt,
arson and at his trial, the prosecution although standing alone it cannot be the basis
moved to introduce the testimonies of of conviction. The accused cannot object to
Nenita, the doctor and the priest-confessor, the court requiring him to put the short pants
who all saw Walter at the vicinity of the fire on. It is not part of his right against self-
at about the time of the fire. incrimination because it is a mere physical act

May the testimony of Dr. Carlos, Walter’s ───※ ·❆· ※───

psychiatrist, be allowed over Walter’s
objection?
HEARSAY RULE
SUGGESTED ANSWER:
Yes. The testimony of Walter’s psychiatrist QUESTION. Romeo is sued for damages for
may be allowed. The privileged injuries suffered by the plaintiff in a
communication contemplated under Sec. 24 vehicular accident. Julieta, a witness in
(c) Rule 130 of the Rules on Evidence involves court, testifies that Romeo told her (Julieta)
only persons authorized to practice medicine, that he (Romeo) heard Antonio, a witness to
surgery or obstetrics. the accident, give an excited account of the
accident immediately after its occurrence.
───※ ·❆· ※─── Is Julieta’s testimony admissible against

61
Romeo over proper and timely objection? determine if the contents were dangerous
Why? (2002 Bar Question) drugs and the sniffing technique of their
highly trained dogs was accepted worldwide
SUGGESTED ANSWER: and had been successful in dangerous drugs
No, Julieta’s testimony is not admissible operations. The prosecution moved to
against Romeo, because while the excited admit this evidence to justify the opening of
account of Antonio, a witness to the accident, the package. The accused objected on the
was told to Romeo, it was only Romeo who grounds that: (i) the guards had no personal
told Julieta about it, which makes it hearsay. knowledge of the contents of the package
(2012 Bar Question) before it was opened; (ii) the testimony of
the trainer of the dog is hearsay; and (iii)
───※ ·❆· ※─── the accused could not crossexamine the
dog. Decide. (2014 Bar Question)
QUESTION. Counsel A objected to a question
posed by opposing Counsel B on the grounds SUGGESTED ANSWER:
that it was hearsay and it assumed a fact not The objections of the accused should be
yet established. The judge banged his gavel overruled. An evidence is admissible when it
and ruled by saying "Objection Sustained". is relevant to the issue and is not excluded by
Can Counsel B ask for a reconsideration of the law or the rules. Under the Rules of Court,
the ruling? Why? a witness can testify only to those which he
knows of his personal knowledge and derived
SUGGESTED ANSWER: from his own perception. The contention that
Yes, Counsel B may ask the Judge to specify the guards had no personal knowledge of the
the ground’s relied upon for sustaining the contents of the package before it was opened
objection and thereafter move its is without merit. The guards can testify as to
reconsideration thereof. the facts surrounding the opening of the
package since they have personal knowledge
───※ ·❆· ※─── of the circumstances thereof, being physically
present at the time of its discovery. On the
QUESTION. A foreign dog trained to sniff other hand, the testimony of the trainer of
dangerous drugs from packages, was hired the dog is not hearsay based on the following
by FDP Corporation, a door-to-door grounds: a. He has personal knowledge of the
forwarder company, to sniff packages in facts in issue, having witnessed the same; b.
their depot at the international airport. In Hearsay merely contemplates an out-of-court
one of the routinary inspections of packages declaration of a person which is being offered
waiting to be send to the United States of to prove the truthfulness and veracity of the
America (USA), the dog sat beside one of the facts asserted therein; c. He is an expert
packages, a signal that the package witness, hence, his testimony may constitute
contained dangerous drugs. Thereafter, the an exception to the hearsay rule; d. The
guards opened the package and found two accused has the opportunity to cross-examine
(2) kilograms of cocaine. The owner him; and e. Testimony of a witness as to
objected of the package was arrested and statements made by nonhuman declarants
charges were filed against him. During the does not violate the rule against hearsay. The
trial, the prosecution, through the trainer law permits the so-called “non-human
who was present during the incident and an evidence” on the ground that machines and
expert in this kind of field, testified that the animals, unlike humans, lack a conscious
dog was highly trained to sniff packages to motivation to tell falsehoods, and because the

62
workings of machines can be explained by SUGGESTED ANSWER:
human witnesses who are then subject to (a) Yes, the newspaper clipping is
cross-examination by opposing counsel. (City admissible in evidence against X. regardless of
of Webster Groves v. Quick. 323 S.W. 2d 386 the truth or falsity of a statement, the
[Mo. 1959]; Buck v. State, 138 P. 2d 115 [Okla. hearsay rule does not apply and the statement
1943]; Herrera, 1999). Conversely, the may be shown where the fact that it is made
accused may not argue that he cannot cross- is relevant. Evidence as to the making of such
examine the dog as the Constitutional right to a statement is not secondary but primary, for
confrontation refers only to witnesses. As the statement itself may constitute a fact in
alluded, the human witnesses who have issue or be circumstantially relevant as to the
explained the workings of the non-human existence of such fact. (Gotesco Investment
evidence is the one that should be cross Corporation vs. Chatto, 1992)
examined. Hence, the contention of the
accused that he could not cross-examine the ───※ ·❆· ※───
dog is misplaced. Ergo, there is no doubt that
the evidence of the prosecution is admissible
SUBSUBTOPIC
for being relevant and competent.

───※ ·❆· ※─── QUESTION. On March 12, 2008, Mabini was

charged with Murder for fatally stabbing
QUESTION. X was charged with robbery. On Emilio. To prove the qualifying
the strength of a warrant of arrest issued by circumstance of evident premeditation, the
the court, X was arrested by police prosecution introduced on December 11,
operatives. They seized a handgun from his 2009 a text message, which Mabini’s
person. A charge for illegal possession of estranged wife Gregoria had sent to Emilio
firearms was also filed against him. In a on the eve of his death, reading: "Honey,
press conference called by the police, X pa2tayin u ni Mabini. Mtgal n nyang plano i2.
admitted that he had robbed the victim of Mg ingat u bka ma tsugi k."
jewelry valued at P500,000.00.
Suppose that shortly before he expired,
The robbery and illegal possession of Emilio was able to send a text message to
firearm cases were tried jointly. The his wife Graciana reading "Nasaksak ako. D
prosecution presented in evidence a na me makahinga. Si Mabini ang may gawa
newspaper clipping of the report to the ni2." Is this text message admissible as a
reporter who was present during the press dying declaration? Explain. (2010 Bar
conference stating that X admitted the Question)
robbery. It likewise presented a
certification of the PNP Firearms and SUGGESTED ANSWER:
Explosive Office attesting that the accused Yes, the text message is admissible as a dying
had no license to carry any firearm. The declaration since the same came from the
certifying officer, however, was not victim who “shortly” expired and it is in
presented as a witness. Both pieces of respect of the cause and circumstance of his
evidence were objected to by the defense. death. The decisive factor that the message
was made and sent under consciousness of an
(a) Is the newspaper clipping admissible in impending death, is evidently attendant from
evidence against X? (2003 Bar Question) thevictim’s statement: “D na me
makakahinga” and the fact that he died

63
shortly after he sent the message. However,
PART OF RES GESTAE
cellphone messages are regarded as
electronic evidence, and in a recent case (Ang
v. Court of Appeals et al., G.R. No. 182835, QUESTION. Dencio barged into the house of
April 20, 2010), the Supreme Court ruled that Marcela, tied her to a chair and robbed her
the Rules on Electronic Evidence applies only of assorted pieces of jewelry and money.
to civil actions, quasi-judicial proceedings and Dencio then brought Candida, Marcela's
administrative proceeding, not to criminal maid, to a bedroom where he raped her.
actions. Marcela could hear Candida crying and
pleading: "Huwag! Maawa ka sa akin!" After
───※ ·❆· ※─── raping Candida, Dencio fled from the house
with the loot. Candida then untied Marcela
QUESTION. Immediately before he died of and rushed to the police station about a
gunshot wounds to his chest, Venancio told kilometer away and told Police Officer
the attending physician, in a very feeble Roberto Maawa that Dencio had barged into
voice, that it was Arnulfo, his co-worker, the house of Marcela, tied the latter to a
who had shot him. Venancio added that it chair and robbed her of her jewelry and
was also Arnulfo who had shot Vicente, the money. Candida also related to the police
man whose cadaver was lying on the bed officer that despite her pleas, Dencio had
beside him. In the prosecution of Arnulfo for raped her. The policeman noticed that
the criminal killing of Venancio and Vicente, Candida was hysterical and on the verge of
are all the statements of Venancio collapse. Dencio was charged with robbery
admissible as dying declarations? Explain with rape. During the trial, Candida can no
your answer. (2017 Bar Question) longer be located. (8%) (2005 Bar Question)

SUGGESTED ANSWER: (a) If the prosecution presents Police Officer

No, not all the statements of Venancio are Roberto Maawa to testify on what Candida
admissible as dying declarations. Under the had told him, would such testimony of the
Rules on Evidence, a dying declaration is policeman be hearsay? Explain.
admissible as an exception to the hearsay rule
provided that such declaration relates to the SUGGESTED ANSWER:
cause of the declarant’s death. Venancio’s No. The testimony of the policeman is not
statement that it was Arnulfo who shot him is hearsay. It is part of the res gestae. It is also
admissible as a dying declaration. The same an independently relevant statement. The
related to Venancio’s own demise. It may be police officer testified of his own personal
inferred that Venancio had consciousness of knowledge, not to the truth of Candida's
his impending death since he suffered gunshot statement, i.e., that she told him, despite her
wounds to his chest which would necessarily pleas, Dencio had raped her. (People v.
be mortal wounds. However, Venancio’s Gaddi,G.R. No. 74065, February 27,1989)
statement that it was Arnulfo who shot
Vicente is not admissible as a dying ───※ ·❆· ※───
declaration since it did not relate to the cause
of the declarant’s death but to the death of QUESTION. If the police officer will testify
another person. that he noticed Candida to be hysterical and
on the verge of collapse, would such
───※ ·❆· ※─── testimony be considered as opinion, hence,
inadmissible? Explain.

64
 The trial court convicted Rene of homicide
SUGGESTED ANSWER: on the basis of PO2 Asintado’s testimony,
No, it cannot be considered as opinion, Kulasa’s statements, and Rene’s statement
because he was testifying on what he actually to the press. On appeal, Rene raises the
observed. The last paragraph of Sec. 50, Rule following errors:
130, Revised Rules of Evidence, expressly a) The trial court erred in giving weight to
provides that a witness may testify on his PO2 Asintado’s testimony, as the latter did
impressions of the emotion, behavior, not have personal knowledge of the facts in
condition or appearance of a person. issue, and violated Rene’s right to due
process when it considered Kulasa’s
───※ ·❆· ※─── statements despite lack of opportunity for
her cross- examination.
QUESTION. While passing by a dark
uninhabited part of their barangay, PO2 SUGGESTED ANSWER:
Asintado observed shadows and heard Belbis, Jr., v. People, G.R. No. 181052,
screams from a distance. PO2 Asintado hid November 14, 2012).
himself behind the bushes and saw a man
beating a woman whom he recognized as his In the case, the statements made by PO2
neighbor, Kulasa. Asintado constitutes part of res gestae since
the same were made without any opportunity
When Kulasa was already in agony the man to fabricate and while a startling occurrence
stabbed her and she fell on the ground. The was actually taking place.
man hurriedly left thereafter. PO2 Asintado
immediately went to Kulasa’s rescue. In addition, the statement of PO2 Asintado
Kulasa who was then in a state of hysteria, may fall within the purview of the doctrine of
kept mentioning to PO2 Asintado “Si Rene, independent relevant statement, where only
gusto akong patayin! Sinaksak niya ako!” the fact that such statements were made is
When PO2 Asintado was about to carry her, relevant, and the truth and falsity thereof is
Kulasa refused and said “Kaya ko. Mababaw immaterial (People v. Malibiran, G.R. No.
lang to. Habulin mo si Rene.”The following 178301, April 24, 2009).
day, Rene learned of Kulasa’s death and,
bothered by his conscience, surrendered to On the other hand, Kulasa’s statements are
the authorities with his counsel. As his also admissible as part of res gestae since the
surrender was broadcasted all over media, same were made under the influence of a
Rene opted to release his statement to the startling event and without any opportunity to
press which goes: concoct or devise a falsehood.

“I believe that I am entitled to the ───※ ·❆· ※───

presumption of innocence until my guilt is
proven beyond reasonable doubt. Although QUESTION. The trial court erred in holding
I admit that I performed acts that may take that Rene’s statement to the press was a
one’s life away, I hope and pray that justice confession which, standing alone, would be
will be served in the right way. God bless us sufficient to warrant a conviction. Resolve.
all. (2014 Bar Question)
(Sgd.)
Rene” SUGGESTED ANSWER:

65
The trial court did not err in holding that pleas, Dencio has raped her (People v. Gaddi,
Rene’s statement to the press is a confession. G.R. No. 74065, February 27, 1989).
Rene’s confessions to the media were
properly admitted because statements ───※ ·❆· ※───
spontaneously made by a suspect to news
reporters on a televised interview are deemed QUESTION. If the police officer will testify
voluntary and are admissible in evidence that he noticed Candida to be hysterical and
(People v. Hipona, G.R. No. 185709, February on the verge of collapse, would such
18, 2010). testimony be considered as opinion, hence,
inadmissible? Explain. (2005, 2019 Bar
───※ ·❆· ※─── Question)

QUESTION. Dencio barged into the house of SUGGESTED ANSWER:

Marcela, tied her to a chair and robbed her No. It cannot be considered as an opinion,
of assorted pieces of jewelry and money. because he was testifying on what he actually
Dencio then brought Candida, Marcela’s observed. The last paragraph of Sec. 53, Rule
maid, to a bedroom where he raped her. 130, Revised Rules of Evidence, expressly
Marcela could hear Candida crying and provides that a witness may testify on his
pleading; “Huwag! Maawa ka sa akin!”After impressions of the emotion, behavior,
raping Candida, Dencio fled from the house condition or appearance of a person.
with loot. Candida then untied Marcela and
rushed to the police station about a ───※ ·❆· ※───
kilometer away and told Police Officer
Roberto Maawa that Dencio had barged into
INDEPENDENTLY RELEVANT STATEMENT
the house of Marcela, tied the latter to a
chair and robbed her of her jewelry and
money. Candida also related to the police QUESTION. Blinded by extreme jealousy,
officer that despite her pleas, Dencio had Alberto shot his wife, Betty, in the presence
raped her. The policemen noticed that of his sister, Carla. Carla brought Betty to
Candida was hysterical and on the verge of the hospital. Outside the operating room,
collapse. Dencio was charged with robbery Carla told Domingo, a male nurse, that it
with rape. During the trial, Candida can no was Alberto who shot Betty. Betty died
longer be located. while undergoing emergency surgery. At the
trial of the parricide charges filed against
a) If the prosecutor presents Police Officer Alberto, the prosecutor sought to present
Roberto Maawa to testify on what Candida Domingo as witness, to testify on what Carla
had told him, would such testimony of the told him. The defense counsel objected on
policemen be hearsay? Explain. (1999, 2009 the ground that Domingo’s testimony is
Bar Question) inadmissible for being hearsay. Rule on the
objection with reasons. (2009 Bar Question)
SUGGESTED ANSWER:
No. The testimony of the policemen is not SUGGESTED ANSWER:
hearsay. It is part of the res gestae. It is also Objection overruled. The disclosure received
an independently relevant statement. The by Domingo and Carla may be regarded as an
police officer testified his own personal independently relevant statement which is
knowledge, not to the truth of Candida’s not covered by the hearsay rule; hence
statement, i.e., that she told him, despite her admissible. The statement may be received

66
not as evidence of the truth of what was raped her. The policeman noticed that
stated but only as to the tenor thereof and the Candida was hysterical and on the verge of
occurrence when it was said, independently collapse. Dencio was charged with robbery
of whether it was true or false. (People v. with rape. During the trial, Candida can no
Cloud, 1996; People v. Malibiran, et al., longer be located.
2009).
If the prosecution presents Police Officer
───※ ·❆· ※─── Roberto Maawa to testify on what Candida
had told him, would such testimony of the
QUESTION. A overheard B call X a thief. In policeman be hearsay? Explain.
an action for defamation filed by X against
B, is the testimony of A offered to prove the
fact of utterance i.e., that B called X a thief, SUGGESTED ANSWER:
admissible in evidence? Explain. (1999 Bar No. The testimony of the policeman is not
Question) hearsay. It is part of the res gestae. It is also
an independently relevant statement. The
SUGGESTED ANSWER: police officer testified of his own personal
Yes. The testimony of A who overheard B call knowledge, i.e., that the complainant told
X a thief is admissible in evidence as an him that despite her pleas, Dencio had raped
independently relevant statement. It is her. He did not testify to the truth of his
offered in evidence only to prove the tenor statement. (People v. Gaddi, 1989)
thereof, not to prove the truth of the facts
asserted therein. Independently relevant ───※ ·❆· ※───
statements include statements which are on
the very facts in issue or those which are
CHARACTER EVIDENCE
circumstantial evidence thereof. The hearsay
rule does not apply. (See People vs. Gaddi,
170 SCRA 649) QUESTION. D was prosecuted for homicide
for allegedly beating up V to death with an
───※ ·❆· ※─── iron pipe.

QUESTION. Dencio barged into the house of May the prosecution introduce evidence
Marcela, tied her to a chair and robbed her that V had a good reputation for
of assorted pieces of jewelry and money. peacefulness and non-violence? Why?
Dencio then brought Candida, Marcela’s
maid, to a bedroom where he raped her.
Marcela could hear Candida crying and SUGGESTED ANSWER:
The prosecution may introduce evidence of
pleading: “Huwag! Maawa ka sa akin!" After
raping Candida, Dencio fled from the house the good or even bad moral character of the
with the loot. Candida then untied Marcela victim if it tends to establish in any
reasonable degree the probability or
and rushed to the police station about a
kilometer away and told Police Officer improbability of the offense charged (Sec.
Roberto Maawa that Dencio had barged into 51[a][3], Rule 130). In this case, the evidence
the house of Marcela, tied the latter to a is not relevant.
chair and robbed her of her jewelry and
money. Candida also related to the police ───※ ·❆· ※───
officer that despite her pleas, Dencio had

67
QUESTION. May D introduce evidence of this Honorable Court about the general
specific violent acts by V? Why? (2002 Bar reputation of the prosecution witness in
Question) your community for aggressiveness and
violent tendencies?" Would you, as the trial
SUGGESTED ANSWER: prosecutor, interpose your objection to the
Yes, D may introduce evidence of specific question of the defense counsel? Explain
violent acts by V. Evidence that one did or did your answer. (2017 Bar Question)
not do a certain thing at one time is not
admissible to prove that he did or did not do SUGGESTED ANSWER:
the same or a similar thing at another time; I, as the trial prosecutor, would interpose my
but it may be received to prove a specific objection to defense counsel’s question on
intent or knowledge, identity, plan, system, the ground of improper impeachment. Under
scheme, habit, custom or usage, and the like the Law on Evidence, an adverse party’s
(Sec. 34, Rule 130). witness may be properly impeached by
reputation evidence provided that it is to the
───※ ·❆· ※─── effect that the witness’s general reputation
for honesty, truth, or integrity was bad. [S11
QUESTION. In a prosecution for murder, the R132] The reputation must only be on
prosecutor asks accused Darwin if he had character for truthfulness or untruthfulness.
been previously arrested for violation of the [Cordial v. People, 166 SCRA 17] Here the
Anti- Graft and Corrupt Practices Act. As evidence is not on the Prosecution witness’s
defense counsel, you object. The trial court general reputation for honesty, truth, or
asks you on what ground/s. Respond. (2010 integrity but on his aggressive and violent
Bar Question) tendencies. The evidence had nothing to do
with the witness’s character for truthfulness
SUGGESTED ANSWER: or untruthfulness. Hence the impeachment
The objection is on the ground that the fact was improper.
sought to be elicited by the prosecution is
irrelevant and immaterial to the offense ───※ ·❆· ※───
under prosecution and trial. Moreover, the
Rules do not allow the prosecution to adduce
OFFER AND OBJECTION
evidence of bad moral character of the
accused pertinent to the offense charged,
except on rebuttal and only if it involves a FRUIT OF THE POISONOUS TREE
prior conviction by final judgment (Sec. 51,
Rule 130).
QUESTION. Under Republic Act No. 8353,
one may be charged with and found guilty
───※ ·❆· ※───
of qualified rape if he knew on or before the
commission of the crime that he is afflicted
QUESTION. In an attempt to discredit and
with Human Immuno-Deficiency Virus
impeach a Prosecution witness in a
(HIV)/Acquired Immune Deficiency
homicide case, the defense counsel called
Syndrome (AIDS) or any other sexually
to the stand a person who had been the
transmissible disease and the virus or
boyhood friend and next-door neighbor of
disease is transmitted to the victim. Under
the Prosecution witness for 30 years. One
Section 17(a) of Republic Act No. 8504 the
question that the defense counsel asked of
court may compel the accused to submit
the impeaching witness was: "Can you tell

68
himself to a blood test where blood samples a formal offer of evidence which included
would be extracted from his veins to the documents signed by Edmond.
determine whether he has HIV.
Edmond’s lawyer objected to the
If the result of such test shows that he is HIV admissibility of the document for being the
positive, and the prosecution offers such fruit of the poisoned tree. Resolve the
result in evidence to prove the qualifying objection with reasons. (3%) (2009 Bar
circumstance under the information for Question)
qualified rape, should the court reject such
result on the ground that it is the fruit of a SUGGESTED ANSWER:
poisonous tree? Explain. (8%) (2005 Bar The objection to the admissibility of the
Question) documents which the arresting officer asked
Edmond to sign without the benefit of
SUGGESTED ANSWER: counsel, is well-taken. Said documents having
The fruits of the poisonous tree doctrine been signed by the accused while under
applies only where the primary source is custodial investigation, imply an “admission”
shown to have been unlawfully obtained or without the benefit of counsel, that the shabu
was the result of an illegal act (People v. came from him and that the P3,000,00 was
Alicando, G.R. No. 117487, 251 SCRA 293 received by him pursuant to the illegal selling
[1995]) Since the rights of the accused are not of the drugs. Thus, it was obtained by the
violated because the compulsory testing is arresting officer in clear violation of Sec. 12
authorized by law, the result of the testing (3), Art. III of the 1987 Constitution,
cannot be considered to be the fruit of a particularly the right to be assisted by counsel
poisonous tree and can be offered in evidence during custodial investigation. Moreover, the
to prove the qualifying circumstance under objection to the admissibility of the evidence
the information for qualified rape under was timely made, i.e., when the same is
Republic Act No. 8353. formally offered.

───※ ·❆· ※─── ───※ ·❆· ※───

QUESTION. Arrested in a buy-bust QUESTION. Dominique was accused of

operation, Edmond was brought to the committing a violation of the human
police station where he was informed of his Security Act. He was detained
constitutional rights. During the incommunicado, deprived of sleep, and
investigation, Edmond refused to give any subjected to water torture. He later
statement. However, the arresting officer allegedly confessed his guilt via an affidavit.
asked Edmond to acknowledge in writing
that six (6) sachets of “shabu” were After trial, he was acquitted on the ground
confiscated from him. Edmond consented that his confession was obtained through
and also signed a receipt for the amount of torture, hence, inadmissible as evidence.
P3,000, allegedly representing the
“purchase price of the shabu.” At the trial, In a subsequent criminal case for torture
the arresting officer testified and identified against those who deprived him of sleep and
the documents executed and signed by subjected him to water torture.
Edmond. Edmond’s lawyer did not object to
the testimony. After the presentation of the Dominique was asked to testify and to,
testimonial evidence, the prosecutor made among other things, identify his above said

69
affidavit of confession. As he was about to
identify the affidavit, the defense counsel Convictions imposing the death penalty are
objected on the ground that the affidavit is elevated through automatic review.
a fruit of a poisonous tree. Can the
objection be sustained? Explain. (3%) (2010 ───※ ·❆· ※───
Bar Question)
QUESTION. What is the mode of appeal
SUGGESTED ANSWER: applicable to the following cases, and what
No, the objection may not be sustained on the issues may be raised before the reviewing
ground stated, because the affiant was only court/tribunal? (2017 Bar)
to identify the affidavit which is not yet being
offered in evidence. a. The decision or final order of the National
Labor Relations Commission.
The doctrine of the poisonous tree can only be
invoked by Domingo as his defense in the SUGGESTED ANSWER:
crime of Violation of Human Security Act filed There is no mode of appeal from a decision or
against him but not by the accused torture final order of the NLRC, since such decision or
case filed by him. In the instant case, the final order is final and executory pursuant to
presentation of the affidavit cannot be the Labor Code (Art. 223). The remedy of the
objected to by the defense counsel on the aggrieved party is to file a special civil action
ground that it is a fruit of the poisonous tree for certiorari with the Court of Appeals (St.
because the same is used in Domingo’s favor. Martin Funeral Home v. NLRC, G.R. No.
103866, September 16, 1998). Such special
───※ ·❆· ※─── civil action may raise questions both of fact
and law (Aggabao v. COMELEC, G.R. No.
163756, January 26, 2005).
APPEALS: GENERAL PRINCIPLES

───※ ·❆· ※───

QUESTION. What are the modes of appeal to
the Supreme Court? (2002 Bar) QUESTION. b. The judgment or final order
of the RTC in the exercise of its appellate
SUGGESTED ANSWER: jurisdiction.
The modes of appeal to the Supreme Court
are: SUGGESTED ANSWER:
(a) Appeal by certiorari on pure questions The mode of appeal applicable to judgments
of law under Rule 45 through a petition or final orders of the RTC in the exercise of its
for review on certiorari; and appellate jurisdiction is a petition for review
(b) Ordinary appeal in criminal cases under Rule 42. The petition may raise
through a notice of appeal from questions both of fact and law. (Sec. 2, Rule
convictions imposing reclusion 42)
perpetua or life imprisonment or
where a lesser penalty is involved but
───※ ·❆· ※───
for offenses committed on the same
occasion or which arose out of the
same occurrence that gave rise to the POST-JUDGMENT REMEDIES OTHER THAN
more serious offense (Sec. 3, Rule APPEAL
122).

70
QUESTION. Compare the certiorari ordinary appeal by filing written notice of
jurisdiction of the Supreme Court under the appeal indicating the parties to the appeal;
Constitution with that under Rule 65 of the specifying the judgment/final order or part
Rules of Civil Procedure. (2008 Bar) thereof appealed from; specifying the court
material dates showing the timeliness of the
SUGGESTED ANSWER: appeal. The notice of appeal shall be filed
Under the Constitution, the certiorari with the RTC which rendered the judgment
jurisdiction of the Supreme Court provides for appealed from and copy thereof shall be
its expanded jurisdiction power of judicial served upon the adverse party within 15 days
review over all branches or instrumentalities from notice of judgment or final order
of the government where there is a grave appealed from. But if the case admits of
abuse of discretion amounting to lack or multiple appeals or is a special proceeding, a
excess of jurisdiction, as provided in Section record on appeal is required aside from the
1, second par., Article VIII of the written notice of appeal to perfect the
1987 Constitution. appeal, in which case the period for appeal
and notice upon the adverse party is not only
Under Rule 65 of the Rules of Court, the 15 days but 30 days from notice of judgment
certiorari jurisdiction of the Supreme Court is or final order appealed from. The full amount
limited to acts done without or in excess of of the appellate court docket fee and other
jurisdiction or grave abuse of discretion lawful fees required must also be paid within
amounting to lack or excess of jurisdiction, by the period for taking an appeal, to the clerk
a tribunal, board or officer exercising judicial of the court which rendered the judgment or
or quasi-judicial functions only. And the final order appealed from (Secs. 4 and 5, Rule
period fixed for availing of the remedy is not 41). The periods of 15 or 30 days above-stated
later than 60 days from notice of judgment; are non-extendible.
order or resolution in question. (Secs. 1 and
4, Rule 65) In cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction,
───※ ·❆· ※─── appeal to the Court of Appeals shall be by
filing a verified petition for review with the
Court of Appeals and furnishing the RTC and
APPEALS IN CIVIL PROCEDURE: MODES OF
the adverse party with copy thereof, within
APPEAL FROM JUDGMENTS OR FINAL
15 days from notice of judgment or final order
ORDERS OF VARIOUS COURTS/TRIBUNALS
appealed from. Within the same period for
appeal, the docket fee and other lawful fees
required with the deposit for cost should be
RULE 41
paid. The 15-day period may be extended for
15 days and another 15 days for compelling
QUESTION. Distinguish the two (2) modes of reasons.
appeal from the judgment of the Regional
Trial Court to the Court of Appeals. (2009 ───※ ·❆· ※───
Bar)

SUGGESTED ANSWER: RULE 42

In cases decided by the Regional Trial Courts
in the exercise of their original jurisdiction, QUESTION. What is the mode of appeal
appeals to the Court of Appeals shall be applicable to judgments or final orders of

71
the RTC in the exercise of its appellate Practices Act," in Criminal Case No. 4321.
jurisdiction, and what issues may be raised Mr. J moved for the reconsideration of the
before the reviewing court/tribunal? (2017 Ombudsman's Joint Decision but was
Bar) denied. Unperturbed, Mr. J filed a petition
for certiorari under Rule 65 of the Rules of
SUGGESTED ANSWER: Court before the Court of Appeals (CA),
The mode of appeal applicable to judgments assailing the Ombudsman's Joint Decision in
or final orders of the RTC in the exercise of its Administrative Case No. 1234 and Criminal
appellate jurisdiction is a petition for review Case No. 4321.
under Rule 42. The petition may raise
questions both of fact and law. (Sec. 2, Rule However, the CA dismissed the petition
42) outright, holding that such petition
constitutes an Improper remedy to assail
───※ ·❆· ※─── the administrative and criminal aspects of
the aforementioned Ombudsman ruling.
RULE 43
Was the CA's dismissal of Mr. J's petition,
correct? Explain. (5%) (2019 Bar
QUESTION. Does the Court of Appeals have Examinations)
jurisdiction to review the Decisions in
criminal and administrative cases of the SUGGESTED ANSWER:
Ombudsman? (2006 Bar) Yes, the CA's dismissal of Mr. J's petition was
correct. The Supreme Court has held that the
SUGGESTED ANSWER: proper remedy from the decision of- the
Yes, but only in administrative cases. In Ombudsman in an administrative disciplinary
administrative and disciplinary cases, appeals case is a petition for review to the Court of
from the Ombudsman must be taken to the Appeals under Rule 43 and not a special civil
Court of Appeals under Rule 43. Conversely, action for certiorari [Fabian v. Desierto, 16
the Supreme Court has exclusive appellate September 1998]
jurisdiction over decisions of the Ombudsman
in criminal cases. (Lanting v. Ombudsman, The Supreme Court has also held that the
G.R. No. 141426, May 6, 2005; Fabian v. proper remedy an aggrieved party from a
Desierto, G.R. No. 129742, September 16, decision or order of the Office of the
1998; Sec. 14, RA 6770) Ombudsman in a criminal case is to file a
petition for certiorari before the Supreme
───※ ·❆· ※─── Court. [Estrada v. Desierto. 445 SCRA 655
(2004)]
QUESTION. As a result of an anonymous
complaint, Mr. J, a local public official, was Here while Mr. J availed of a special civil
held administratively liable for Grave action for certiorari. He filed it with the CA
Misconduct by the Office of the Ombudsman and not the Supreme Court. Hence the
(Ombudsman) in Administrative Case No. dismissal of Mr. J's petition for certiorari was
1234. As such, he was imposed the penalty correct.
of dismissal from service. The Ombudsman
also found probable cause to indict him for ───※ ·❆· ※───
violation of Section 3 (b) of Republic Act
No.3019, or the " Anti-Graft and Corrupt

72