2009 Remedial Q and A

7/29/2019 2009 Remedial Q and A

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Remedial Law QnA 2007 and 2009

- I -10%

a. What are the rules on the recognition and enforcement of foreign judgments in our courts? (6%)

The rules on the recognition and enforcement of foreignjudgments in our courts are as follows:1. In the case of a judgment or final order upon a specificthing, the judgment or final order is conclusive upon thetitle to the thing. (Rule 39, Section 48[a], Rules of Court)

2. In case of a judgment or final order against a person,the judgment or final order is presumptive evidenceagainst of a right as between the parties and theirsuccessors in interest by a subsequent title. (Rule 39,Section 48[b], Rules of Court)

3. In either case, the judgment or final order may berepelled by evidence of a want of jurisdiction, want of notice to the party, collusion, or fraud, or clear mistake of law or fact. (Rule 39, Section 48, last paragraph, Rules of Court)

b. Can a foreign arbitral award be enforced in thePhilippines under those rules? Explain briefly. (2%)

No. Foreign arbitral awards are not enforced like foreigncourt judgments under Rule 39 of the Rules of Court, butthey can be enforced under Section 44 (RA 9285,Alternative Dispute Resolution Act of 2004) A foreignarbitral award, when confirmed by the RTC, shall beenforced in the same manner as final and executorydecisions of courts of the Philippines. Said law providesthat the case shall be filed with the Regional Trial Court asa special proceeding, and if the 1958 New York Conventionon the Recognition and Enforcement of Foreign Judgments

is not applicable, the court may, on grounds of comity andreciprocity, recognize a non-convention award as aconvention award.

c. How about a global injunction issued by a foreign court toprevent dissipation of funds against a defendant therein whohas assets in the Philippines? Explain briefly. (2%)

Yes, a global injunction also known as the Marevainjunction, should be considered as an order of a foreigncourt. Therefore, the rule on recognition and enforcementof foreign judgments under Rule 39 must apply. (AsiavestMerchant Bankers v. CA, G.R. No. 110263, July 20, 2001)

However, to prevent dissipation of funds, the action toenforce must be accompanied with an application forpreliminary injuction.

- II -10%

True or False. If the answer is false, explain your answerbriefly.

a. The surviving parties rule bars Maria from testifying for theclaimant as to what the deceased Jose had said to her, in aclaim filed by Pedro against the estate of Jose (3%)

FALSE. For the survivor disqualification rule of the Dead

Man Statute to apply, one of the requisites is that thewitness being offered is either a party plaintiff, or hiassignor or a person in whose behalf a case is prosecuted(Rule 130, Section 23, Rules of Court). Hence, Maria, being amere witness who does not fall within the prohibition, is nobarred from testifying. (Section 23, Rule 130, Rules of CourtRazon v. Intermediate Appellate Court, G.R. Nos. 7430and 74315, March 16, 1992).

b. A defendant who has been declared in default can avail oa petition for relief from the judgment subsequentlrendered in the case. (3%)FALSE. A petition for relief is an equitable remedy that cabe availed of only if the assailed judgment has beeentered for being final and executory. (Sections 1 and 3Rule 38, Rules of Court; Aboitiz International ForwardersInc., v. Court of Appeals, G.R. No. 142272, May 2, 200and other cases)

c. A motion is pleading. (2%)FALSE. A motion is not a pleading. A motion is aapplication for relief other than by a pleading (Section 1Rule 15, 1997 Rules of Civil Procedure), except that isummary procedure when a prohibited motion to dismiss i

filed, the court may treat the same as a pleadingPleadings are the written statements of the respectivclaims and defenses on the parties submitted to the courfor appropriate judgment. (Section 1, Rule 6, 1997 Ruleof Civil Procedure)

d. A counterclaim is pleading. (2%)TRUE. A counterclaim is a pleading because it is claimsubmitted to the court for appropriate judgment. (Sectio1, Rule 6, 1997 Rules of Civil Procedure). It is any claimwhich a defending party may have against an opposinparty. (Section 6, Rule 6, 1997 Rules of Civil Procedure).

- III -10%

1. What is the hearsay rule? (5%)

The hearsay rule is that a witness can testify only to thosefacts which he knows of his personal knowledge; that isthose which are derived from his own perception, excepas otherwise provided in the rules. (Section 36, Rule 130Rules of Court). Moreover, hearsay evidence also includeall assertions though derived from personal knowledgewhere the adverse party is not given an opportunity tocross-examine. (Section 36, Rule 130, Rules of Court)

2. In relation to the hearsay rule, what do the followinrules of evidence have in common? (5%)

1. The rule on statements that are part of the res gestae; 2.The rule on dying declarations;3. The rule on admissions against interest.

Statements that are part of the res gestae (Section 42Rule 130, Rules of Court), dying declarations (Section 37Rule 130, Rules of Court) and admissions against interes(Section 38, Rule 130, Rules of Court) are all exceptions tthe hearsay rule.

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- IV -10%

Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City. Wife W files apetition for habeas corpus before the RTC of Pasay City,praying for custody over their minor child. H files a motion todismiss the wife's petition on the ground of thependency of the other case. Rule.

The husband’s motion to dismiss his wife’s petition forhabeas corpus, should be granted because the case fornullity of marriage constitutes litis pendentia. The custodyof the minor child and the action for nullity of themarriage are not separate causes of action. Judgment onthe issue of custody in the nullity of marriage case beforethe Pasig RTC, regardless of which party would prevail,would constitute res judicata on the habeas corpus casebefore the Pasay RTC since the former has jurisdictionover the parties and the subject matter. (Yu v. Yu, G.R.No. 164915, March 10, 2006; Section 1[e], Rule 16, 1997Rules of Civil Procedure; Section 2, Rule 102, Rules of Court). The evidence to support the petition for nullitynecessarily involves evidence of fitness to take custody of

the child as the court in the nullity proceedings has a dutyunder the Family Code to protect the bets interest of thechild.

- V -10%

a. Distinguish the effects of the filling of a demurrer to theevidence in a criminal case and its filing in a civil case.(5%)

The effects of filing of a demurrer to the evidence in acriminal case. (Section 23, Rule 119, 2000 Rules of

Criminal Procedure) are different from the effects of thefiling of a demurrer in a civil case (Rule 33, 1997 Rules of CivilProcedure), as follows:

1. In a civil case, after the plaintiff has completed thepresentation of his evidence, the defendant may move fordismissal on the ground that based on the facts and thelaw, the plaintiff has shown no right to relief. If thedemurrer is denied, the movant shall have the right topresent evidence. If the demurrer is granted but on appealthe order of dismissal is reversed, the movant shall bedeemed to have waived the right to present evidence.(Section 1, Rule 33, 1997 Rules of Civil Procedure).

2. In criminal cases, after the prosecution has rested itscase, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative aftergiving the prosecution an opportunity to be heard or (2)upon demurrer to evidence filed by the accused with orwithout leave of court.

If the court denies the demurrer to evidence filed withleave of court, the accused may adduce evidence in hisdefense. When the demurrer to evidence is filed withoutleave of court, the accused waives his right to presentevidence and submits the case for judgment on the basis of

the evidence for the prosecution.

The motion for leave of court to file demurrer to evidenceshall specifically state its grounds and shall be filed within anon-extendible period of five (5) days from its receipt.

If the leave of court is granted, the accused shall file thdemurrer to evidence within a non-extendible period oten (10) days from notice. The prosecution may opposthe demurrer to evidence within a similar period from itreceipt.

The order denying the motion for leave of court to filedemurrer to evidence or the demurrer itself shall not bereviewable by appeal or certiorari before the judgment(Section 23, Rule 119, 2000 Rules of Criminal Procedure)

b. What is reverse trial and when may it be resorted toExplain briefly. (5%)

A reverse trial is a trial where the accused presents hievidence first before the prosecution submits its evidence. Imay be resorted to when the accused admits the act oomission charged in the complaint or information buinterposes a lawful or affirmative defense. (Section 11[e]Rule 119, 2000 Rules of Criminal Procedure; People v.

Palabarica, G.R. No. 129285, May 7, 2001; Section 7,Speedy Trial Act)

In civil cases, the reverse trial may be resorted to bagreement of the parties or when the defendant sets up aaffirmative defense.

- VI -10%

(a) On his way home, a member of the Caloocan Citpolice force witnesses a bus robbery in Pasay City andeffects the arrest of the suspect. Can he bring the suspect t

Caloocan City for booking since that is where his station isExplain briefly. (5%)

No. Under the Rules on Criminal Procedure, it is the dutyof officer executing the warrant to arrest the accused andto deliver him to the nearest police station or jail withouunnecessary delay. This rule equally applies to situationof warrantless arrest. (Section 3, Rule 113, Rules of Court)

(b) In the course of serving a search warrant, the policfinds an unlicensed firearm. Can the police take thfirearm even if it is not covered by the search warrant? If thwarrant is subsequently quashed, is the police require

to return the firearm? Explain briefly. (5%)

Yes. The police can take the unlicensed firearm even if iwas not covered by the search warrant following thejudicial precedent that prohibited articles may be seizedfor as long as the search warrant is valid. (People v. CruzG.R. No. 76728, August 30, 1988; People v. Mendi, G.RNos. 112978-81, February 19, 2001). If the warrant issubsequently quashed, the police are not required toreturn the firearm because it is unlicensed. It can, in fact, beordered forfeited by the court. The search warrant doenot refer to the unlicensed firearm.

- VII -2




10%

a. B files a petition for cancellation of the birth certificateof her daughter R on the ground of falsified materialentries there in made by B's husband as the informant. TheRTC sets the case for hearing and directs the publicationsof the order once a week for three consecutive weeks in anewspaper of general circulation. Summons was served onthe Civil Registrar but there was no appearance during thehearing. The RTC granted the petition. R filed a petitionfor annulment of judgment before the Court of Appeals,saying that she was not notified of the petition and hence,the decision was issued in violation of due process. Bopposed saying that the publication of the court order wassufficient compliance with due process. Rule. (5%)

Alternative Answer:Jurisdiction of the court over a petition for thecancellation of a birth certificate requires reasonablenotice to all interested parties and also publication of theorder once a week for three consecutive weeks in anewspaper of general circulation. (Section 4, Rule 108Ceruila v. Delantar, G.R. No. 140305, December 9, 2005). Inthis case, publication of the order is insufficient

because R, a directly concerned party, was not givenreasonable notice, hence, denied due process. The lowercourt, therefore, did not acquire jurisdiction. Accordingly,the petition for annulment of judgment before the Court of Appeals should be granted.

Alternative Answer:In the cases of Republic v. Kho, G.R. No. 170340, 29 June2007; Alba v. Court of Appeals, G.R. No. 164041, July 29,2005; and Barco v. Court of Appeals, G.R. No. 120587,January 20, 2004, the court held that publication of theorder of hearing under Section4 of Rule 108 cured thefailure to implead an indispensable party. The court said

that a petition for correction is an action in rem, an actionagainst a thing and not against a person. The decision onthe petition binds not only the parties thereto but thewhole world. An in rem proceeding is validated essentiallythrough publication. Publication is notice to the wholeworld that the proceeding has for its object to barindefinitely all who might be minded to make an objectionof any sort against the right sought to be established. It isthe publication of such notice that brings in the wholeworld as a party in the case and vests the court withjurisdiction to hear and decide it.

b. G files a complaint for recovery of possession and

damage against F. in the course of the trial, G marked hisevidence but his counsel failed to file a formal offer of evidence. F then presented in evidence tax declarations inthe name of his father to establish that his father is a co-owner of the property. The court ruled in favor of F, sayingthat G failed to prove sole ownership of the property inthe face of F's evidence. Was the court correct? Explainbriefly. (5%)

The court shall consider no evidence which has not beenformally offered. The trial court rendered judgmentconsidering only the evidence offered by F. The offer isnecessary because it is the duty of the judge to rest his

findings of fact and his judgment only and strictly upon

the evidence offered by the parties at the trial (People v.Pecardal, G.R. No. 71381, November 24, 1986) andbecause the purpose for which the evidence is offeremust be specified. (Section 34, Rule 1, Rules of Court.However, there have been exceptional instances when thCourt allowed exhibited documents which were nooffered by duly identified by testimony and incorporatedin the records of the case. (People v. Mate, L-34754, Marc21, 1981).

- VIII -10%

a. X files an unlawful detainer case against Y before theappropriate Metropolitan Trial Court. In his answer, Y averas a special and affirmative defense that he is a tenant oX's deceased father in whose name the property remainregistered. What should the court do? Explain briefly. (5%)

The court should proceed to hear the case under the Ruleof Summary Procedure. Unlawful detainer refers to actuaphysical possession, not ownership. Defendant Y, who is iactual possession, is the real party in interest. (Lao v. LaoG.R. No. 149599, May 11, 2005) It does not matter if her i

a tenant of the deceased father of the plaintiff, X, or thaX’s father is the registered owner of the property. His termexpired. He merely continues to occupy the property bmere tolerance and he can be evicted upon mere demand(People v. Court of Appeals, G.R. No. 14364, June 3, 2004).

b. The heirs of H agree among themselves that they wilhonor the division of H's estate as indicated in her LasWill and Testament. To avoid the expense of going to court ia Petition for Probate of the Will, can they insteaexecute an Extrajudicial Settlement Agreement amonthemselves? Explain briefly. (5%)

No. The law states that no will shall pass either real opersonal property unless it is proved and allowed inaccordance with the Rules of Court. (Article 838, CivCode; Lopez v. Gonzaga, G.R. No. L-18788, January 301964). This probate of the will is mandatory. (Guevarra vGuevarra, G.R. No.L-48840, December 29, 1943.)

- IX -10%

L was charged with illegal possession of shabu before theRTC. Although bail was allowable under his indictment, hcould not afford to post bail, and so he remained i

detention at the City Jail. For various reasons ranging fromthe promotion of the Presiding Judge, to the absence othe trial prosecutor, and to the lack of the notice to theCity Jail Warden, the arraignment of L was postponenineteen times over a period of two years. Twice durinthat period, L's counsel filed motions to dismiss, invokinthe right of the accused to a speedy trial. Both motionwere denied by the RTC. Can L file a petition fomandamus? Reason briefly.

Yes, L can file a petition for mandamus, invoking the righto a speedy trial. (Section 3, Rule 65, 1997 Rules of CiviProcedure) The numerous and unreasonable

postponements displayed an abusive exercise of 3




discretion. (Lumanlaw v. Peralta, G.R. No. 164953,February 13, 2006)

- X -10%

a. RC filed a complaint for annulment of the foreclosuresale against Bank V. in its answer, Bank V set up a counterclaim for actual damages and litigation expenses. RC filed amotion to dismiss the counterclaim on the ground the BankV's Answer with Counterclaim was not accompanied by acertification against forum shopping. Rule. (5%)

The motion to dismiss the counterclaim should be denied. Acertification against forum shopping should not berequired in a compulsory counterclaim because it is not aninitiatory pleading. (Section 5, Rule 7, 1991 Rules of CivilProcedure; Carpio v. Rural Bank of Sto. Tomas [Batangas],Inc., G.R. No. 153171, May 4, 2006)

b. A files a case against B. While awaiting decision on thecase, A goes to the United States to work. Upon her return tothe Philippines, seven years later, A discovers that adecision was rendered by the court in her favor a few

months after she had left. Can a file a motion forexecution of the judgment? Explain briefly. (5%)

No. A cannot file a motion for execution of the judgmentseven years after the entry of the judgment. She can only dothat within five (5) years from entry of judgment.However, she can file a case for revival of the judgment,which can be done before it is barred by the statute of limitations. (Section 6, Rule 39, 1997 Rules of CivilProcedure) which is within ten (10) years from the date of finality of the judgment. (Macias v. Lim, G.R. No. 139284,June 4, 2004)

NOTHING FOLLOWS.

JURISTS BAR REVIEW CENTER

SUGGESTED ANSWERS TO THE 2009 REMEDIAL LAW BAREXAMINATION

PART I

I. TRUE or FALSE. Answer TRUE if the statement is true, orFALSE if the statement is false. Explain your answer in notmore than two (2) sentences. (5%)

[a] The Vallejo standard refers to jurisprudential normsconsidered by the court in assessing the probative value of DNA evidence.

[b] The One-Day Examination of Witness Rule abbreviatescourt proceedings by having a witness fully examined inonly one day during trial.

[c] A suit for injunction is an action in rem.

[d] Under the doctrine of adoptive admission, a thirdparty’s statement becomes the admission of the partyembracing or espousing it.

[e] Summons may be served by mail.

ANSWERS: (a) TRUE. The standards were laid down by thSupreme Court in People v. Vallejo (G.R. 144656, 9 Ma2004) and consists, among others, of the court assessinghow the standards were collected, how they werehandled, the possibility of sample contamination, etc.

(b) TRUE. The rule is however subject to the court’discretion during trial on whether or not to extend thedirect and/or cross-examination for justifiable reasons. (SC

Rule on Guidelines on Pre-trial and Discovery).

(c) FALSE. An action for injunction is in personam since ican be enforced only against the defendant therein. (DiaCorp. v. Soriano, G.R. 82330, 31 May 1988).

(d) TRUE. A party is bound by the statement of anothewhich he has adopted by his words or conduct. (Republic vKenrick Dev’t Corp., 8 August 2006)

(e) TRUE. This can be done under S15 R14 which providethat the service of summons may be done in any othemanner the court may deem sufficient.

II. Angelina sued Armando before the Regional Trial Cour(RTC) of Manila to recover the ownership and possession otwo parcels of land; one situated in Pampanga, and theother in Bulacan. [a] May the action prosper? Explain. (2%[b] Will your answer be the same if the action was foforeclosure of the mortgage over the two parcels of landWhy or why not? (2%)

ANSWERS: (a) No, the action may not prosper. Under Rul4 of the Rules of Court, venue in case of real actions liewith the court having jurisdiction over the place wherethe real property is situated. The action is real since i

affects title to or possession of real property. Here theproperties were located in Pampanga and Bulacan. HencArmando may file a motion to dismiss on the ground oimproper venue.

(b) My answer would still be the same. An action foforeclosure of real estate mortgage is a real action since iaffects title to or possession of real property. HencArmando may file a motion to dismiss on the ground oimproper venue.

III. Amorsolo, a Filipino citizen permanently residing iNew York City, filed with the RTC of Lipa City a Complaint fo

Rescission of Contract of Sale of Land against Brigido, aresident of Barangay San Miguel, Sto. Tomas, BatangasThe subject property, located in Barangay Talisay, LipCity, has an assessed value of P19,700.00. Appended to thcomplaint is Amorsolo’s verification and certification onon-forum shopping executed in New York City, dulnotarized by Mr. Joseph Brown, Esq., a notary public in theState of New York. Brigido filed a motion to dismiss thecomplaint on the following grounds:

[a] The court cannot acquire jurisdiction over the person oAmorsolo because he is not a resident of thePhilippines; (2%)

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[b] The RTC does not have jurisdiction over the subjectmatter of the action involving real property with anassessed value of P19,700.00; exclusive and originaljurisdiction is with the Municipal Trial Court where thedefendant resides; (3%)

and [c] The verification and certification of non-forumshopping are fatally defective because there is noaccompanying certification issued by the PhilippineConsulate in New York, authenticating that Mr. Brown isduly authorized to notarize the document. (3%) Rule on theforegoing grounds with reasons.

ANSWERS: a) The ground that the court cannot acquirejurisdiction over the person of Amorsolo is without merit.The Supreme Court has held that a court acquiresjurisdiction over the person of the plaintiff when he files thecomplaint or petition before the court. Besides theground for a motion to dismiss is that the court has nojurisdiction over the person of the defending party, notover the person of the claimant.

b) The ground that the RTC does not have subject-matterjurisdiction is without merit. A complaint for rescission of a

contract of sale is an action incapable of pecuniaryestimation and hence within the jurisdiction of the RTCpursuant to B.P. Blg. 129.

c) The ground that the verification and the certification of non-forum shopping are fatally defective because there isno accompanying certification by the Philippine consulateis without merit. The absence of such certification on theverification and certificate of non-forum shopping is amere formal defect which may easily remedied bysubsequent compliance by Amorsolo. The SC has held thatformal defects or imperfections in a verification andcertification against forum shopping should simply be

corrected rather than dismissing the complaint outright.

IV. Pedrito and Tomas, Mayor and Treasurer, respectively,of the Municipality of San Miguel, Leyte, are chargedbefore the Sandiganbayan for violation of Section 3 (e),Republic Act No. 3019 (Anti-Graft and Corrupt PracticesAct). The information alleges, among others, that the twoconspired in the purchase of several units of computerthrough personal canvass instead of a public bidding,causing undue injury to the municipality. Beforearraignment, the accused moved for reinvestigation of thecharge, which the court granted. After reinvestigation, theOffice of the Special Prosecutor filed an amended

information duly signed and approved by the SpecialProsecutor, alleging the same delictual facts, but with anadditional allegation that the accused gave unwarrantedbenefits to SB Enterprises owned by Samuel. Samuel wasalso indicted under the amended information. BeforeSamuel was arraigned, he moved to quash the amendedinformation on the ground that the officer who filed thesame had no authority to do so. Resolve the motion toquash with reasons. (3%)

ANSWER: The motion to quash should be granted. UnderS4 R112, no complaint or information may be filed by aninvestigating prosecutor without the prior writtenauthority or approval of the provincial or city prosecutor

or chief state prosecutor or the Ombudsman or his deputy.The Office of the Special Prosecutor is not mentionedamong those authorized to approve the filing ocomplaints or information. Hence the motion to quasshould be granted.

V. Frank and Gina were married on June 12, 1987 inManila. Barely a year after the wedding, Frank exhibited violent temperament, forcing Gina, for reasons of personasafety, to live with her parents. A year thereafter, Ginfound employment as a domestic helper in Singaporewhere she worked for ten consecutive years. All the timeshe was abroad, Gina had absolutely no communicationwith Frank, nor did she hear any news about him. While iSingapore, Gina met and fell in love with Willie. On July 42007, Gina filed a petition with the RTC of Manila tdeclare Frank presumptively dead, so that she could marrWillie. The RTC granted Gina’s petition. The Office of thSolicitor General (OSG) filed a Notice of Appeal with theRTC, stating that it was appealing the decision to thCourt of Appeals on questions of fact and law.

[a] Is a petition for Declaration of Presumptive Death aspecial proceeding? Why or why not? (2%)

[b] As the RTC judge who granted Gina’s petition, will yogive due course to the OSG’s Notice of Appeal? Explain(3%)

ANSWERS: [a] No, a petition for declaration of presumptive death is not a special proceeding. ThSupreme Court has held that such a petition is not special proceeding since it is not mentioned in theenumeration of special proceedings in S1 R72. (Republic vMadrona, G.R. 163604, 6 May 2005).

[b] As the RTC judge who granted Gina’s petition, I will no

give due course to the OSG’s Notice of Appeal. TheSupreme Court has held that the judgment of the court ia petition for declaration of presumptive death iimmediately final and executory pursuant to Article 247 othe Family Code. Hence such a judgment may not bappealed. (Republic v. Bermudez-Lorino, G.R. 160258, 1January 2005).

VI. Arrested in a buy-bust operation, Edmond was broughto the police station where he was informed of hiconstitutional rights. During the investigation, Edmonrefused to give any statement. However, the arrestinofficer asked Edmond to acknowledge in writing that si

(6) sachets of “shabu” were confiscated from him. Edmonconsented and also signed a receipt for the amount oP3,000.00, allegedly representing the “purchase price othe shabu.” At the trial, the arresting officer testified andidentified the documents executed and signed by EdmondEdmond’s lawyer did not object to the testimony. After thpresentation of the testimonial evidence, the prosecutomade a formal offer of evidence which included thdocuments signed by Edmond. Edmond’s lawyer objecteto the admissibility of the documents for being the “fruiof the poisoned tree.” Resolve the objection with reasons(3%)

ANSWER:Objection sustained. The Supreme Court has

5




held that the signature of an accused in a receipt of itemsseized which signature was obtained without theassistance of counsel is inadmissible in evidence the samebeing tantamount to an uncounselled extrajudicialconfession. (Gutang v. People, 11 July 2000). Theobjection to the documentary evidence was made timely atthe time these were offered in evidence. It waspremature to object to the documents when they weremerely being marked and identified.

VII. Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the presentation of plaintiff’s evidence, Dioscoro died. Atty. Cruz, Dioscoro’s counsel, then filed amotion to dismiss the action on the ground of his client’sdeath. The court denied the motion to dismiss and,instead, directed counsel to furnish the court with thenames and addresses of Dioscoro’s heirs and ordered thatthe designated administrator of Dioscoro’s estate besubstituted as representative party. After trial, the courtrendered judgment in favor of Cresencio. When thedecision had become final and executory, Cresencio movedfor the issuance of a writ of execution against Dioscoro’sestate to enforce his judgment claim. The court issued the

writ of execution. Was the court’s issuance of the writ of execution proper? Explain. (2%)

ANSWER: The court’s issuance of the writ of execution was notproper. Under Section 20 of Rule 3, a favorablejudgment in a contractual money claim shall be enforced inthe manner especially provided in the Rules forprosecuting claims against the estate of a deceasedperson. Under Rule 86 of the Rules of Court, a judgment formoney should be filed as a money claim with the probatecourt. The Supreme Court has held that a money claimcannot be enforced by a writ of execution but shouldinstead be filed as a money claim.

VIII. On July 15, 2009, Atty. Manananggol was servedcopies of numerous unfavorable judgments and orders. OnJuly 29, 2009, he filed motions for reconsideration whichwere denied. He received the notices of denial of themotions for reconsideration on October 2, 2009, a Friday.He immediately informed his clients who, in turn,uniformly instructed him to appeal. How, when and whereshould he pursue the appropriate remedy for each of thefollowing: (10%)

[a] Judgment of a Municipal Trial Court (MTC) pursuant to itsdelegated jurisdiction dismissing his client’s application for

land registration?

[b] Judgment of the Regional Trial Court (RTC) denying hisclient’s petition for a Writ of Habeas Data?

[c] Order of a Family Court denying his client’s petition forHabeas Corpus in relation to custody of a minor child?

[d] Order of the RTC denying his client’s Petition forCertiorari questioning the Metropolitan Trial Court’s(MeTC’s) denial of a motion to suspend criminalproceedings?

[e] Judgment of the First Division of the Court of Tax

Appeals (CTA) affirming the RTC decision convicting hisclient for violation of the National Internal Revenue Code?

ANSWERS: (a) The judgment of the MTC pursuant to itdelegated jurisdiction is appealable to the Court oAppeals by way of a notice of appeal filed on or before 1October 2009, 17 October (15th day from notice of thdenial of the motion for reconsideration) being a SaturdayThis is because under B.P. Blg. 129, the judgment of thMTC in the exercise of its delegated jurisdiction in landregistration cases shall be appealable in the same manneas decisions of the RTC. (Section 34, B.P. Blg. 129).

(b) The judgment of the RTC denying his client’s petitiofor a Writ of Habeas Data is appealable to the SupremeCourt by filing a petition for review on certiorari on obefore 9 October 2009, which is the 5th working day fromnotice. This is pursuant to the SC Rule on the Writ oHabeas Data.

(c) The order of the Family Court denying his client’petition for a writ of habeas corpus is appealable to theCourt of Appeals by filing a notice of appeal within 4hours from notice of the order. (S3 R41). Since the 48t

hour would fall on a Sunday, the notice of appeal may befiled on Monday, 5 October 2009.

(d) The order of the RTC denying his client’s Petition foCertiorari is appealable to the Court of Appeals by filing notice of appeal on or before 19 October 2009. The RTC’order was rendered in the exercise of its originajurisdiction; hence the appeal is governed by Rule 41.

(e) The judgment of the CTA’s First Division affirming theRTC decision is appealable to the CTA en banc by apetition for review filed on or before 19 October 2009(Sec. 18, R.A. No. 1125 [CTA Act]).

IX. Modesto sued Ernesto for a sum of money, claiminthat the latter owed him P1-million, evidenced by apromissory note, quoted and attached to the complaint. Ihis answer with counterclaim, Ernesto alleged thaModesto coerced him into signing the promissory note, buthat it is Modesto who really owes him P1.5-millionModesto filed an answer to Ernesto’s counterclaimadmitting that he owed Ernesto, but only in the amount oP0.5-million. At the pre-trial, Modesto marked anidentified Ernesto’s promissory note. He also marked andidentified receipts covering payments he made to Ernestoto the extent of P0.5-million, which Ernesto did no

dispute. After pre-trial, Modesto filed a motion fojudgment on the pleadings, while Ernesto filed a motionfor summary judgment on his counterclaim. Resolve thtwo motions with reasons. (5%)

ANSWER: Modesto’s motion for judgment on the pleadingshould be denied. Under Rule 34, a judgment on thepleadings is proper only if the answer fails to tender anissue. Here the answer of Ernesto tendered an issue, thais, the affirmative defense of duress. Ernesto’s motion fosummary judgment should be granted. Here since Modesthad already admitted that he owed Ernesto P0.5-million, partial summary judgment may be rendered as to tha

amount, with trial proceeding as to the disputed6




remainder of P1 million.(b) TRUE. The viatory right may be exercised in civil cases

X. Upon termination of the pre-trial, the judge dictatedthe pretrial order in the presence of the parties and theircounsel, reciting what had transpired and defining three (3)issues to be tried.

[a] If, immediately upon receipt of his copy of the pre-trial order, plaintiff’s counsel should move for itsamendment to include a fourth (4th) triable issue which heallegedly inadvertently failed to mention when the judgedictated the order. Should the motion to amend be granted?Reasons. (2%)

[b] Suppose trial had already commenced and after theplaintiff’s second witness had testified, the defendant’scounsel moves for the amendment of the pre-trial order toinclude a fifth (5th) triable issue vital to his client’s defense. Should the motion be granted over the objection of plaintiff’s counsel? Reasons. (3%)

ANSWERS: (a) Yes, the motion to amend the pre-trialorder should be granted. Under Section 7 of Rule 19, thecontents of the pre-trial order may be modified before

trial to prevent manifest injustice. For the court to refuseconsideration of a triable issue would result in a manifestinjustice.

(b) The motion should not be granted. The contents of thepre-trial order shall control the subsequent course of action unless modified before trial to prevent manifestinjustice. Here trial was already on-going. Hence theamendment of the pre-trial order to add an issue may nolonger be made.

PART II

XI. TRUE or FALSE. Answer TRUE if the statement is true, orFALSE if the statement is false. Explain your answer in notmore than two (2) sentences. (5%)

[a] The accused in a criminal case has the right to avail of thevarious modes of discovery.

[b] The viatory right of a witness served with a subpoena adtestificandum refers to his right not to comply with thesubpoena.

[c] In the exercise of its original jurisdiction, theSandiganbayan may grant petitions for the issuance of a

writ of habeas corpus.

[d] An electronic document is the equivalent of an originaldocument under the Best Evidence Rule if it is a printout oroutput readable by sight or other means, shown to reflectthe data accurately.

[e] The filing of a motion for the reconsideration of thetrial court’s decision results in the abandonment of aperfected appeal.

ANSWERS: (a) TRUE. There is nothing in the Rules of Court which limit the defendant’s right to avail of the

various modes of discovery only to civil cases.

if the witness resides more than 100 kilometers from hisresidence to the place where he is to testify by theordinary course of travel. (Sec. 10, Rule 21).

(c) FALSE. The Sandiganbayan has jurisdiction ovepetitions for habeas corpus only in aid of its appellatejurisdiction.

(d) TRUE. Hence there is no need to account for the nonproduction of the original electronic document.

(e) FALSE. A party’s appeal by notice of appeal is deemedperfected as to him upon the filing of the notice of appeal idue time. Hence he can no longer file a motion foreconsideration after his appeal had been perfected.

XII. Mike was renting an apartment unit in the buildinowned by Jonathan. When Mike failed to pay six monthsrent, Jonathan filed an ejectment suit. The Municipal TriaCourt (MTC) rendered judgment in favor of Jonathan, whothen filed a motion for the issuance of a writ of executionThe MTC issued the writ.

[a] How can Mike stay the execution of the MTC judgmentExplain. (2%)

[b] Mike appealed to the Regional Trial Court (RTC), whicaffirmed the MTC decision. Mike then filed a petition foreview with the Court of Appeals (CA). The CA dismissethe petition on the ground that the sheriff had alreadyexecuted the MTC decision and had ejected Mike from thpremises, thus rendering the appeal moot and academic. Ithe CA correct? Reasons. (3%)

ANSWERS: (a) Mike can stay the execution of the MTC

judgment by perfecting an appeal, filing a sufficiensupersedeas bond in favor of Jonathan, and makindeposits with the appellate court of the amount of rendue from time to time under the contract. (S19 R70).

(b) No, the CA is not correct. Under Rule 70 while thjudgment of the RTC against the defendant shall beimmediately executory, this is without prejudice to further appeal that may be taken therefrom. (S21 R70).

XIII. [a] Continental Chemical Corporation (CCC) filed acomplaint for a sum of money against Barstow TradinCorporation (BTC) for the latter’s failure to pay for it

purchases of industrial chemicals. In its answer, BTCcontended that it refused to pay because CCCmisrepresented that the products it sold belonged to new line, when in fact they were identical with CCC’existing products. To substantiate its defense, BTC filed motion to compel CCC to give a detailed list of theproducts’ ingredients and chemical components, relying othe right to avail of the modes of discovery allowed undeRule 27. CCC objected, invoking confidentiality of theinformation sought by BTC. Resolve BTC’s motion witreasons. (3%)

[b] Blinded by extreme jealousy, Alberto shot his wife

Betty, in the presence of his sister, Carla. Carla brought7




Betty to the hospital. Outside the operating room, Carla

told Domingo, a male nurse, that it was Alberto who shotBetty. Betty died while undergoing emergency surgery. Atthe trial of the parricide charges filed against Alberto, theprosecutor sought to present Domingo as witness, totestify on what Carla told him. The defense counselobjected on the ground that Domingo’s testimony isinadmissible for being hearsay. Rule on the objection withreasons. (3%)

ANSWER: (a) BTC’s motion should be denied. A motion forproduction or inspection of documents or things under R27 issubject to the requirement that the documents or thingsshould not be privileged. Here what are sought to beproduced is a detailed list of an industrial product’singredients and chemical components which are tradesecrets and thus privileged. Hence BTC’s motion should bedismissed. (Air Philippines Corp. v. Pennswell, Inc., G.R.172835, 13 December 2007).

(b) The objection should be sustained. Carla’s declarationis hearsay as she was not presented in court to testifythereon. Her declaration will not qualify as a dyingdeclaration exception since she was not the one who died.

Nor will it qualify as a part of the res gestae since Carla’sdeclaration was not made while a startling occurrence wastaking place or immediately prior or subsequent thereto.At the time Carla made the statement to Domingo, Bettyhad already been brought to the hospital and then to theoperating room, thereby indicating the lapse of anappreciable length of time between the shooting and themaking of the statement.

XIV. The Republic of the Philippines, through theDepartment of Public Works and Highways (DPWH) filedwith the RTC a complaint for the expropriation of theparcel of land owned by Jovito. The land is to be used as

an extension of the national highway. Attached to thecomplaint is a bank certificate showing that there is, ondeposit with the Land Bank of the Philippines, an amountequivalent to the assessed value of the property. ThenDPWH filed a motion for the issuance of a writ of possession. Jovito filed a motion to dismiss the complainton the ground that there are other properties which wouldbetter serve the purpose. [a] Will Jovito’s motion to dismiss prosper? Explain. (3%)[b] As judge, will you grant the writ of possession prayed forby DPWH? Explain. (3%)

ANSWER: (a) Jovito’s motion to dismiss will not prosper. The

Supreme Court has held that the defendant in anexpropriation case cannot file a motion to dismiss butshould raise his objections in the answer. (Masikip v. City of Pasig, 23 January 2006).

(b) As judge, I will not grant the writ of possession prayed for.In case of expropriation for national governmentinfrastructure projects, the law requires that thegovernment, in order that it will have the right to enter ortake possession, should immediately pay the owner of theproperty 100% of the market value of the property. Herewhat was done was only to make a deposit of an amountequivalent to the assessed value. (R.A. No. 8974, Republic v.

Gingoyon, 19 Dec 2005).

XV. [a] Florencio sued Guillermo for partition of a propertythey owned in common. Guillermo filed a motion todismiss the complaint because Florencio failed to impleaHernando and Inocencio, the other co-owners of thproperty. As judge, will you grant the motion to dismissExplain. (3%)

[b] Mariano, through his attorney-in-fact, Marcos, filewith the RTC of Baguio City a complaint for annulment osale against Henry. Marcos and Henry both reside in AsiRoad, Baguio City, while Mariano resides in Davao CityHenry filed a motion to dismiss the complaint on thground of prematurity for failure to comply with themandatory barangay conciliation. Resolve the motion witreasons. (3%)

ANSWERS: (a) No, as judge I will not grant the motion todismiss. Under Rule 3, non-joinder of parties is not aground for dismissal of an action. (S11 R3). The SC haheld that S11 R3 applies to indispensable parties.

(b) I will deny the motion to dismiss. The mandatorbarangay conciliation applies only if the parties reside i

the same city or municipality. Here the Plaintiff resides iDavao City while the defendant resides in Baguio City. Thresidence of the agent is immaterial.

XVI. [a] After the prosecution had rested and made itformal offer of evidence, with the court admitting all othe prosecution evidence, the accused filed a demurrer tevidence with leave of court. The prosecution was allowedto comment thereon. Thereafter, the court granted thdemurrer, finding that the accused could not havecommitted the offense charged. If the prosecution files motion for reconsideration on the ground that the courorder granting the demurrer was not in accord with the

law and jurisprudence, will the motion prosper? Explaiyour answer. (3%)

[b] A criminal information is filed in court chargingAnselmo with homicide. Anselmo files a motion to quashthe information on the ground that no preliminaryinvestigation was conducted. Will the motion be grantedWhy or why not? (3%)

ANSWERS: (a) No, the motion will not prosper. TheSupreme Court has held that the grant of a demurrer tevidence is equivalent to an acquittal upon the merits andis immediately final. (People v. City Court of Silay, 9 De

1976). Hence the prosecution cannot move foreconsideration for that would place the accused in doubljeopardy.

(b) No, the motion to quash should not be granted. TheSupreme Court has held that the failure to conduct preliminary investigation before the filing of ainformation is not a ground for a motion to quash since it inot mentioned in S3 R117.

XVII. Having obtained favorable judgment in his suit for asum of money against Patricio, Orencio sought theissuance of a writ of execution. When the writ was issued,

the sheriff levied upon a parcel of land that Patricio owns,8




and a date was set for the execution sale.

[a] How may Patricio prevent the sale of the property onexecution? (2%)

[b] If Orencio is the purchaser of the property at theexecution sale, how much does he have to pay? Explain.(2%)

[c] If the property is sold to a third party at the executionsale, what can Patricio do to recover the property?Explain. (2%)

ANSWERS: (a) Patricio may prevent the sale of theproperty by paying to the judgment obligee or to thesheriff, if the judgment oblige is not present to receivepayment, the full amount stated in the writ of executionand all lawful fees. The payment shall be in cash, certifiedbank check payable to the judgment obligee, or any otherform of payment acceptable to the latter. (S9[a] R39).

(b) If Orencio is the purchaser of the property at theexecution sale, he does not have to pay any amount since heis the judgment obligee. (S21 R39).

(c) Patricio may redeem the property within one year from theregistration of the certificate of sale. (S28 R39).

XVIII. Pinoy died without a will. His wife, Rosie, and threechildren executed a deed of extrajudicial settlement of hisestate. The deed was properly published and registeredwith the Office of the Register of Deeds. Three yearsthereafter, Suzy appeared, claiming to be the illegitimatechild of Pinoy. She sought to annul the settlement allegingthat she was deprived of her rightful share in the estate.Rosie and the three children contended that (1) thepublication of the deed constituted constructive notice to the

whole world, and should therefore bind Suzy; and (2) Suzy’saction had already prescribed. Are Rosie and the threechildren correct? Explain. (4%)

ANSWER: Rosie and her three children are not correct.The publication of the deed of extrajudicial partition doesnot constitute constructive notice to the whole worldsince S1 R74 provides that “no extrajudicial settlementshall be binding upon any person who has not participatedtherein or had no notice thereof.” Suzy’s action has notprescribed. Her action to annul the settlement is in effectan action for reconveyance which may be filed within 10years from the issuance of the title. Here only 3 years had

lapsed hence Suzy’s action has not yet prescribed.

XIX. [a] Distinguish the two (2) modes of appeal from thejudgment of the Regional Trial Court to the Court of Appeals. (3%)

[b] What is the writ of amparo? How is it distinguishedfrom the writ of habeas corpus? (2%)

[c] What is the writ of habeas data? (1%)

ANSWER: (a) The two modes of appeal from the judgmentof the RTC to the CA are ordinary appeal under Rule 41

and petition for review under Rule 42. The appeal under

Rule 41 is from a judgment of the RTC in the exercise of its original jurisdiction, while the appeal under Rule 42 ifrom a judgment of the RTC in the exercise of itappellate jurisdiction. The appeal under Rule 41 is takeby filing a notice of appeal or both a notice of appeal anda record on appeal, while the appeal under Rule 42 itaken by filing a verified petition for review with the CAThe appeal under Rule 41 is a matter of right while thappeal under Rule 42 is subject to the discretion of thCA.

(b) A writ of amparo is a remedy available to any persowhose right to life, liberty, and security has been violated ois threatened with violation by a public official oemployee or a private individual or a private individual oentity. (S1, Rule on the Writ of Amparo [RWA]). The writ oamparo is distinguished from the writ of habeas corpus inthat it covers violations of Constitutional and civil rightother than the right to unlawful deprivation of liberty, likenforced disappearances and extralegal killings.

(c) A remedy available to any person whose right tprivacy in life, liberty or security is violated or threatened ban unlawful act or omission of a public official o

employee, or of a private individual or entity engaged in thgathering or storing of data or information regarding thperson, family, home, and correspondence of thaggrieved party. (S1, Rule on the Writ of Habeas Data[RWHD]

-oOoAll rights reserved 2009 by Jurists Review Center Inc.Unauthorized reproduction, copying, or transmittalprohibited except with the written consent of Jurists

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2009 Remedial Q and A