Remedial Law QnA 2007 and 2009

Man Statute to apply, one of the requisites is that the witness being offered is either a party plaintiff, or his assignor or a person in whose behalf a case is prosecuted. a. What are the rules on the recognition and enforcement of (Rule 130, Section 23, Rules of Court). Hence, Maria, being a mere witness who does not fall within the prohibition, is not foreign judgments in our courts? (6%) barred from testifying. (Section 23, Rule 130, Rules of Court; The rules on the recognition and enforcement of foreign Razon v. Intermediate Appellate Court, G.R. Nos. 74306 and 74315, March 16, 1992). judgments in our courts are as follows: 1. In the case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the b. A defendant who has been declared in default can avail of a petition for relief from the judgment subsequently title to the thing. (Rule 39, Section 48[a], Rules of Court) rendered in the case. (3%) 2. In case of a judgment or final order against a person, FALSE. A petition for relief is an equitable remedy that can the judgment or final order is presumptive evidence be availed of only if the assailed judgment has been against of a right as between the parties and their entered for being final and executory. (Sections 1 and 3, Rule 38, Rules of Court; Aboitiz International Forwarders, successors in interest by a subsequent title. (Rule 39, Inc., v. Court of Appeals, G.R. No. 142272, May 2, 2006 Section 48[b], Rules of Court) and other cases) 3. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of c. A motion is pleading. (2%) notice to the party, collusion, or fraud, or clear mistake of FALSE. A motion is not a pleading. A motion is an law or fact. (Rule 39, Section 48, last paragraph, Rules of application for relief other than by a pleading (Section 1, Rule 15, 1997 Rules of Civil Procedure), except that in Court) summary procedure when a prohibited motion to dismiss is b. Can a foreign arbitral award be enforced in the filed, the court may treat the same as a pleading. Pleadings are the written statements of the respective Philippines under those rules? Explain briefly. (2%) claims and defenses on the parties submitted to the court No. Foreign arbitral awards are not enforced like foreign for appropriate judgment. (Section 1, Rule 6, 1997 Rules court judgments under Rule 39 of the Rules of Court, but of Civil Procedure) they can be enforced under Section 44 (RA 9285, d. A counterclaim is pleading. (2%) Alternative Dispute Resolution Act of 2004) A foreign arbitral award, when confirmed by the RTC, shall be TRUE. A counterclaim is a pleading because it is claim enforced in the same manner as final and executory submitted to the court for appropriate judgment. (Section decisions of courts of the Philippines. Said law provides 1, Rule 6, 1997 Rules of Civil Procedure). It is any claim that the case shall be filed with the Regional Trial Court as which a defending party may have against an opposing a special proceeding, and if the 1958 New York Convention party. (Section 6, Rule 6, 1997 Rules of Civil Procedure). on the Recognition and Enforcement of Foreign Judgments - III is not applicable, the court may, on grounds of comity and 10% reciprocity, recognize a non-convention award as a convention award. 1. What is the hearsay rule? (5%) c. How about a global injunction issued by a foreign court to prevent dissipation of funds against a defendant therein who The hearsay rule is that a witness can testify only to those facts which he knows of his personal knowledge; that is, has assets in the Philippines? Explain briefly. (2%) those which are derived from his own perception, except Yes, a global injunction also known as the Mareva as otherwise provided in the rules. (Section 36, Rule 130, injunction, should be considered as an order of a foreign Rules of Court). Moreover, hearsay evidence also includes court. Therefore, the rule on recognition and enforcement all assertions though derived from personal knowledge, of foreign judgments under Rule 39 must apply. (Asiavest where the adverse party is not given an opportunity to Merchant Bankers v. CA, G.R. No. 110263, July 20, 2001) cross-examine. (Section 36, Rule 130, Rules of Court) However, to prevent dissipation of funds, the action to enforce must be accompanied with an application for 2. In relation to the hearsay rule, what do the following rules of evidence have in common? (5%) preliminary injuction. -I10% - II 10% 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.

True or False. If the answer is false, explain your answer Statements that are part of the res gestae (Section 42, briefly. Rule 130, Rules of Court), dying declarations (Section 37, a. The surviving parties rule bars Maria from testifying for the Rule 130, Rules of Court) and admissions against interest claimant as to what the deceased Jose had said to her, in a (Section 38, Rule 130, Rules of Court) are all exceptions to the hearsay rule. claim filed by Pedro against the estate of Jose (3%) FALSE. For the survivor disqualification rule of the Dead
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Remedial Law QnA 2007 and 2009

- IV 10% Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City. Wife W files a petition for habeas corpus before the RTC of Pasay City, praying for custody over their minor child. H files a motion to dismiss the wife's petition on the ground of the pendency of the other case. Rule. The husbands motion to dismiss his wifes petition for habeas corpus, should be granted because the case for nullity of marriage constitutes litis pendentia. The custody of the minor child and the action for nullity of the marriage are not separate causes of action. Judgment on the issue of custody in the nullity of marriage case before the Pasig RTC, regardless of which party would prevail, would constitute res judicata on the habeas corpus case before the Pasay RTC since the former has jurisdiction over the parties and the subject matter. (Yu v. Yu, G.R. No. 164915, March 10, 2006; Section 1[e], Rule 16, 1997 Rules of Civil Procedure; Section 2, Rule 102, Rules of Court). The evidence to support the petition for nullity necessarily involves evidence of fitness to take custody of the child as the court in the nullity proceedings has a duty under the Family Code to protect the bets interest of the child. -V10% a. Distinguish the effects of the filling of a demurrer to the evidence in a criminal case and its filing in a civil case. (5%) The effects of filing of a demurrer to the evidence in a criminal case. (Section 23, Rule 119, 2000 Rules of Criminal Procedure) are different from the effects of the filing of a demurrer in a civil case (Rule 33, 1997 Rules of Civil Procedure), as follows: 1. In a civil case, after the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that based on the facts and the law, the plaintiff has shown no right to relief. If the demurrer is denied, the movant shall have the right to present evidence. If the demurrer is granted but on appeal the order of dismissal is reversed, the movant shall be deemed 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 its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution an opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.
2

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days from its receipt. If the leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or certiorari before the judgment. (Section 23, Rule 119, 2000 Rules of Criminal Procedure) b. What is reverse trial and when may it be resorted to? Explain briefly. (5%) A reverse trial is a trial where the accused presents his evidence first before the prosecution submits its evidence. It may be resorted to when the accused admits the act or omission charged in the complaint or information but interposes 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 by agreement of the parties or when the defendant sets up an affirmative defense. - VI 10% (a) On his way home, a member of the Caloocan City police force witnesses a bus robbery in Pasay City and effects the arrest of the suspect. Can he bring the suspect to Caloocan City for booking since that is where his station is? Explain briefly. (5%) No. Under the Rules on Criminal Procedure, it is the duty of officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay. This rule equally applies to situations of warrantless arrest. (Section 3, Rule 113, Rules of Court) (b) In the course of serving a search warrant, the police finds an unlicensed firearm. Can the police take the firearm even if it is not covered by the search warrant? If the warrant is subsequently quashed, is the police required to return the firearm? Explain briefly. (5%) Yes. The police can take the unlicensed firearm even if it was not covered by the search warrant following the judicial precedent that prohibited articles may be seized for as long as the search warrant is valid. (People v. Cruz, G.R. No. 76728, August 30, 1988; People v. Mendi, G.R. Nos. 112978-81, February 19, 2001). If the warrant is subsequently quashed, the police are not required to return the firearm because it is unlicensed. It can, in fact, be ordered forfeited by the court. The search warrant does not refer to the unlicensed firearm. - VII -

Remedial Law QnA 2007 and 2009

10%

a. B files a petition for cancellation of the birth certificate of her daughter R on the ground of falsified material entries there in made by B's husband as the informant. The RTC sets the case for hearing and directs the publications of the order once a week for three consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. R filed a petition for annulment of judgment before the Court of Appeals, - VIII saying that she was not notified of the petition and hence, 10% the decision was issued in violation of due process. B opposed saying that the publication of the court order was a. X files an unlawful detainer case against Y before the sufficient compliance with due process. Rule. (5%) appropriate Metropolitan Trial Court. In his answer, Y avers as a special and affirmative defense that he is a tenant of Alternative Answer: X's deceased father in whose name the property remains Jurisdiction of the court over a petition for the registered. What should the court do? Explain briefly. (5%) cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the The court should proceed to hear the case under the Rules order once a week for three consecutive weeks in a of Summary Procedure. Unlawful detainer refers to actual newspaper of general circulation. (Section 4, Rule 108 physical possession, not ownership. Defendant Y, who is in Ceruila v. Delantar, G.R. No. 140305, December 9, 2005). In actual possession, is the real party in interest. (Lao v. Lao, this case, publication of the order is insufficient G.R. No. 149599, May 11, 2005) It does not matter if her is because R, a directly concerned party, was not given a tenant of the deceased father of the plaintiff, X, or that reasonable notice, hence, denied due process. The lower Xs father is the registered owner of the property. His term court, therefore, did not acquire jurisdiction. Accordingly, expired. He merely continues to occupy the property by the petition for annulment of judgment before the Court of mere tolerance and he can be evicted upon mere demand. Appeals should be granted. (People v. Court of Appeals, G.R. No. 14364, June 3, 2004). Alternative Answer: In the cases of Republic v. Kho, G.R. No. 170340, 29 June 2007; 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 the order of hearing under Section4 of Rule 108 cured the failure to implead an indispensable party. The court said that a petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction 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 his evidence but his counsel failed to file a formal offer of evidence. F then presented in evidence tax declarations in the name of his father to establish that his father is a coowner of the property. The court ruled in favor of F, saying that G failed to prove sole ownership of the property in the face of F's evidence. Was the court correct? Explain briefly. (5%) The court shall consider no evidence which has not been formally offered. The trial court rendered judgment considering only the evidence offered by F. The offer is necessary because it is the duty of the judge to rest his findings of fact and his judgment only and strictly upon
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the evidence offered by the parties at the trial (People v. Pecardal, G.R. No. 71381, November 24, 1986) and because the purpose for which the evidence is offered must be specified. (Section 34, Rule 1, Rules of Court.) However, there have been exceptional instances when the Court allowed exhibited documents which were not offered by duly identified by testimony and incorporated in the records of the case. (People v. Mate, L-34754, March 21, 1981).

b. The heirs of H agree among themselves that they will honor the division of H's estate as indicated in her Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will, can they instead execute an Extrajudicial Settlement Agreement among themselves? Explain briefly. (5%) No. The law states that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. (Article 838, Civil Code; Lopez v. Gonzaga, G.R. No. L-18788, January 30, 1964). This probate of the will is mandatory. (Guevarra v. Guevarra, G.R. No.L-48840, December 29, 1943.) - IX 10% L was charged with illegal possession of shabu before the RTC. Although bail was allowable under his indictment, he could not afford to post bail, and so he remained in detention at the City Jail. For various reasons ranging from the promotion of the Presiding Judge, to the absence of the trial prosecutor, and to the lack of the notice to the City Jail Warden, the arraignment of L was postponed nineteen times over a period of two years. Twice during that period, L's counsel filed motions to dismiss, invoking the right of the accused to a speedy trial. Both motions were denied by the RTC. Can L file a petition for mandamus? Reason briefly. Yes, L can file a petition for mandamus, invoking the right to a speedy trial. (Section 3, Rule 65, 1997 Rules of Civil Procedure) The numerous and unreasonable postponements displayed an abusive exercise of

Remedial Law QnA 2007 and 2009

discretion. (Lumanlaw v. Peralta, G.R. No. 164953, February 13, 2006) -X10%

[e] Summons may be served by mail.

ANSWERS: (a) TRUE. The standards were laid down by the Supreme Court in People v. Vallejo (G.R. 144656, 9 May 2004) and consists, among others, of the court assessing how the standards were collected, how they were a. RC filed a complaint for annulment of the foreclosure handled, the possibility of sample contamination, etc. sale against Bank V. in its answer, Bank V set up a counter claim for actual damages and litigation expenses. RC filed a (b) TRUE. The rule is however subject to the courts motion to dismiss the counterclaim on the ground the Bank discretion during trial on whether or not to extend the V's Answer with Counterclaim was not accompanied by a direct and/or cross-examination for justifiable reasons. (SC Rule on Guidelines on Pre-trial and Discovery). certification against forum shopping. Rule. (5%) The motion to dismiss the counterclaim should be denied. A certification against forum shopping should not be required in a compulsory counterclaim because it is not an initiatory pleading. (Section 5, Rule 7, 1991 Rules of Civil Procedure; 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 the case, A goes to the United States to work. Upon her return to the Philippines, seven years later, A discovers that a decision was rendered by the court in her favor a few months after she had left. Can a file a motion for execution of the judgment? Explain briefly. (5%) (c) FALSE. An action for injunction is in personam since it can be enforced only against the defendant therein. (Dial Corp. v. Soriano, G.R. 82330, 31 May 1988). (d) TRUE. A party is bound by the statement of another which he has adopted by his words or conduct. (Republic v. Kenrick Devt Corp., 8 August 2006) (e) TRUE. This can be done under S15 R14 which provides that the service of summons may be done in any other manner the court may deem sufficient. II. Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the ownership and possession of two parcels of land; one situated in Pampanga, and the other in Bulacan. [a] May the action prosper? Explain. (2%) [b] Will your answer be the same if the action was for foreclosure of the mortgage over the two parcels of land? Why or why not? (2%)

No. A cannot file a motion for execution of the judgment seven years after the entry of the judgment. She can only do that 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 Civil Procedure) which is within ten (10) years from the date of ANSWERS: (a) No, the action may not prosper. Under Rule finality of the judgment. (Macias v. Lim, G.R. No. 139284, 4 of the Rules of Court, venue in case of real actions lies with the court having jurisdiction over the place where June 4, 2004) the real property is situated. The action is real since it affects title to or possession of real property. Here the NOTHING FOLLOWS. properties were located in Pampanga and Bulacan. Hence Armando may file a motion to dismiss on the ground of JURISTS BAR REVIEW CENTER improper venue. SUGGESTED ANSWERS TO THE 2009 REMEDIAL LAW BAR (b) My answer would still be the same. An action for EXAMINATION foreclosure of real estate mortgage is a real action since it affects title to or possession of real property. Hence PART I Armando may file a motion to dismiss on the ground of I. TRUE or FALSE. Answer TRUE if the statement is true, or improper venue. FALSE if the statement is false. Explain your answer in not III. Amorsolo, a Filipino citizen permanently residing in more than two (2) sentences. (5%) New York City, filed with the RTC of Lipa City a Complaint for [a] The Vallejo standard refers to jurisprudential norms Rescission of Contract of Sale of Land against Brigido, a considered by the court in assessing the probative value of resident of Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay Talisay, Lipa DNA evidence. City, has an assessed value of P19,700.00. Appended to the [b] The One-Day Examination of Witness Rule abbreviates complaint is Amorsolos verification and certification of court proceedings by having a witness fully examined in non-forum shopping executed in New York City, duly notarized by Mr. Joseph Brown, Esq., a notary public in the only one day during trial. State of New York. Brigido filed a motion to dismiss the complaint on the following grounds: [c] A suit for injunction is an action in rem. [d] Under the doctrine of adoptive admission, a third [a] The court cannot acquire jurisdiction over the person of partys statement becomes the admission of the party Amorsolo because he is not a resident of the Philippines; (2%) embracing or espousing it.
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[b] The RTC does not have jurisdiction over the subject matter of the action involving real property with an assessed value of P19,700.00; exclusive and original jurisdiction is with the Municipal Trial Court where the defendant resides; (3%) and [c] The verification and certification of non-forum shopping are fatally defective because there is no accompanying certification issued by the Philippine Consulate in New York, authenticating that Mr. Brown is duly authorized to notarize the document. (3%) Rule on the foregoing grounds with reasons.

or chief state prosecutor or the Ombudsman or his deputy. The Office of the Special Prosecutor is not mentioned among those authorized to approve the filing of complaints or information. Hence the motion to quash should be granted.

V. Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding, Frank exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with her parents. A year thereafter, Gina found employment as a domestic helper in Singapore, where she worked for ten consecutive years. All the time she was abroad, Gina had absolutely no communications with Frank, nor did she hear any news about him. While in ANSWERS: a) The ground that the court cannot acquire Singapore, Gina met and fell in love with Willie. On July 4, jurisdiction over the person of Amorsolo is without merit. 2007, Gina filed a petition with the RTC of Manila to The Supreme Court has held that a court acquires jurisdiction over the person of the plaintiff when he files the declare Frank presumptively dead, so that she could marry Willie. The RTC granted Ginas petition. The Office of the complaint or petition before the court. Besides the Solicitor General (OSG) filed a Notice of Appeal with the ground for a motion to dismiss is that the court has no RTC, stating that it was appealing the decision to the jurisdiction over the person of the defending party, not Court of Appeals on questions of fact and law. over the person of the claimant. b) The ground that the RTC does not have subject-matter jurisdiction is without merit. A complaint for rescission of a contract of sale is an action incapable of pecuniary estimation and hence within the jurisdiction of the RTC pursuant to B.P. Blg. 129. c) The ground that the verification and the certification of non-forum shopping are fatally defective because there is no accompanying certification by the Philippine consulate is without merit. The absence of such certification on the verification and certificate of non-forum shopping is a mere formal defect which may easily remedied by subsequent compliance by Amorsolo. The SC has held that formal defects or imperfections in a verification and certification 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 charged before the Sandiganbayan for violation of Section 3 (e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). The information alleges, among others, that the two conspired in the purchase of several units of computer 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 reinvestigation, the Office of the Special Prosecutor filed an amended information duly signed and approved by the Special Prosecutor, alleging the same delictual facts, but with an additional allegation that the accused gave unwarranted benefits to SB Enterprises owned by Samuel. Samuel was also indicted under the amended information. Before Samuel was arraigned, he moved to quash the amended information on the ground that the officer who filed the same had no authority to do so. Resolve the motion to quash with reasons. (3%) [a] Is a petition for Declaration of Presumptive Death a special proceeding? Why or why not? (2%) [b] As the RTC judge who granted Ginas petition, will you give due course to the OSGs Notice of Appeal? Explain. (3%) ANSWERS: [a] No, a petition for declaration of presumptive death is not a special proceeding. The Supreme Court has held that such a petition is not a special proceeding since it is not mentioned in the enumeration of special proceedings in S1 R72. (Republic v. Madrona, G.R. 163604, 6 May 2005). [b] As the RTC judge who granted Ginas petition, I will not give due course to the OSGs Notice of Appeal. The Supreme Court has held that the judgment of the court in a petition for declaration of presumptive death is immediately final and executory pursuant to Article 247 of the Family Code. Hence such a judgment may not be appealed. (Republic v. Bermudez-Lorino, G.R. 160258, 19 January 2005).

VI. Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed of his constitutional rights. During the investigation, Edmond refused to give any statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6) sachets of shabu were confiscated from him. Edmond consented and also signed a receipt for the amount of P3,000.00, allegedly representing the purchase price of the shabu. At the trial, the arresting officer testified and identified the documents executed and signed by Edmond. Edmonds lawyer did not object to the testimony. After the presentation of the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents signed by Edmond. Edmonds lawyer objected to the admissibility of the documents for being the fruit ANSWER: The motion to quash should be granted. Under of the poisoned tree. Resolve the objection with reasons. S4 R112, no complaint or information may be filed by an (3%) investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor ANSWER: Objection sustained. The Supreme Court has
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held that the signature of an accused in a receipt of items seized which signature was obtained without the assistance of counsel is inadmissible in evidence the same being tantamount to an uncounselled extrajudicial confession. (Gutang v. People, 11 July 2000). The objection to the documentary evidence was made timely at the time these were offered in evidence. It was premature to object to the documents when they were merely being marked and identified.

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

ANSWERS: (a) The judgment of the MTC pursuant to its delegated jurisdiction is appealable to the Court of Appeals by way of a notice of appeal filed on or before 19 October 2009, 17 October (15th day from notice of the denial of the motion for reconsideration) being a Saturday. This is because under B.P. Blg. 129, the judgment of the MTC in the exercise of its delegated jurisdiction in land VII. Cresencio sued Dioscoro for collection of a sum of registration cases shall be appealable in the same manner money. During the trial, but after the presentation of as decisions of the RTC. (Section 34, B.P. Blg. 129). plaintiffs evidence, Dioscoro died. Atty. Cruz, Dioscoros counsel, then filed a (b) The judgment of the RTC denying his clients petition motion to dismiss the action on the ground of his clients for a Writ of Habeas Data is appealable to the Supreme death. The court denied the motion to dismiss and, Court by filing a petition for review on certiorari on or instead, directed counsel to furnish the court with the before 9 October 2009, which is the 5th working day from names and addresses of Dioscoros heirs and ordered that notice. This is pursuant to the SC Rule on the Writ of the designated administrator of Dioscoros estate be Habeas Data. substituted as representative party. After trial, the court rendered judgment in favor of Cresencio. When the (c) The order of the Family Court denying his clients decision had become final and executory, Cresencio moved petition for a writ of habeas corpus is appealable to the for the issuance of a writ of execution against Dioscoros Court of Appeals by filing a notice of appeal within 48 estate to enforce his judgment claim. The court issued the hours from notice of the order. (S3 R41). Since the 48th writ of execution. Was the courts issuance of the writ of hour would fall on a Sunday, the notice of appeal may be execution proper? Explain. (2%) filed on Monday, 5 October 2009. ANSWER: The courts issuance of the writ of execution was not proper. Under Section 20 of Rule 3, a favorable judgment in a contractual money claim shall be enforced in the manner especially provided in the Rules for prosecuting claims against the estate of a deceased person. Under Rule 86 of the Rules of Court, a judgment for money should be filed as a money claim with the probate court. The Supreme Court has held that a money claim cannot be enforced by a writ of execution but should instead be filed as a money claim. VIII. On July 15, 2009, Atty. Manananggol was served copies of numerous unfavorable judgments and orders. On July 29, 2009, he filed motions for reconsideration which were denied. He received the notices of denial of the motions for reconsideration on October 2, 2009, a Friday. He immediately informed his clients who, in turn, uniformly instructed him to appeal. How, when and where should he pursue the appropriate remedy for each of the following: (10%) (d) The order of the RTC denying his clients Petition for Certiorari is appealable to the Court of Appeals by filing a notice of appeal on or before 19 October 2009. The RTCs order was rendered in the exercise of its original jurisdiction; hence the appeal is governed by Rule 41. (e) The judgment of the CTAs First Division affirming the RTC decision is appealable to the CTA en banc by a petition 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, claiming that the latter owed him P1-million, evidenced by a promissory note, quoted and attached to the complaint. In his answer with counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note, but that it is Modesto who really owes him P1.5-million. Modesto filed an answer to Ernestos counterclaim admitting that he owed Ernesto, but only in the amount of P0.5-million. At the pre-trial, Modesto marked and identified Ernestos promissory note. He also marked and [a] Judgment of a Municipal Trial Court (MTC) pursuant to its identified receipts covering payments he made to Ernesto, delegated jurisdiction dismissing his clients application for to the extent of P0.5-million, which Ernesto did not dispute. After pre-trial, Modesto filed a motion for land registration? judgment on the pleadings, while Ernesto filed a motion [b] Judgment of the Regional Trial Court (RTC) denying his for summary judgment on his counterclaim. Resolve the two motions with reasons. (5%) clients petition for a Writ of Habeas Data? [c] Order of a Family Court denying his clients petition for ANSWER: Modestos motion for judgment on the pleadings should be denied. Under Rule 34, a judgment on the Habeas Corpus in relation to custody of a minor child? pleadings is proper only if the answer fails to tender an [d] Order of the RTC denying his clients Petition for issue. Here the answer of Ernesto tendered an issue, that Certiorari questioning the Metropolitan Trial Courts is, the affirmative defense of duress. Ernestos motion for (MeTCs) denial of a motion to suspend criminal summary judgment should be granted. Here since Modesto had already admitted that he owed Ernesto P0.5-million, a proceedings? partial summary judgment may be rendered as to that [e] Judgment of the First Division of the Court of Tax amount, with trial proceeding as to the disputed
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Remedial Law QnA 2007 and 2009

remainder of P1 million. (b) TRUE. The viatory right may be exercised in civil cases X. Upon termination of the pre-trial, the judge dictated if the witness resides more than 100 kilometers from his the pretrial order in the presence of the parties and their residence to the place where he is to testify by the counsel, reciting what had transpired and defining three (3) ordinary course of travel. (Sec. 10, Rule 21). issues to be tried. (c) FALSE. The Sandiganbayan has jurisdiction over [a] If, immediately upon receipt of his copy of the pre- petitions for habeas corpus only in aid of its appellate trial order, plaintiffs counsel should move for its jurisdiction. amendment to include a fourth (4th) triable issue which he allegedly inadvertently failed to mention when the judge (d) TRUE. Hence there is no need to account for the nondictated the order. Should the motion to amend be granted? production of the original electronic document. Reasons. (2%) (e) FALSE. A partys appeal by notice of appeal is deemed [b] Suppose trial had already commenced and after the perfected as to him upon the filing of the notice of appeal in plaintiffs second witness had testified, the defendants due time. Hence he can no longer file a motion for counsel moves for the amendment of the pre-trial order to reconsideration after his appeal had been perfected. include a fifth (5th) triable issue vital to his clients defense. Should the motion be granted over the objection of XII. Mike was renting an apartment unit in the building plaintiffs counsel? Reasons. (3%) owned by Jonathan. When Mike failed to pay six months rent, Jonathan filed an ejectment suit. The Municipal Trial ANSWERS: (a) Yes, the motion to amend the pre-trial Court (MTC) rendered judgment in favor of Jonathan, who order should be granted. Under Section 7 of Rule 19, the then filed a motion for the issuance of a writ of execution. contents of the pre-trial order may be modified before The MTC issued the writ. trial to prevent manifest injustice. For the court to refuse consideration of a triable issue would result in a manifest [a] How can Mike stay the execution of the MTC judgment? injustice. Explain. (2%) (b) The motion should not be granted. The contents of the pre-trial order shall control the subsequent course of action unless modified before trial to prevent manifest injustice. Here trial was already on-going. Hence the amendment of the pre-trial order to add an issue may no longer be made. PART II ANSWERS: (a) Mike can stay the execution of the MTC XI. TRUE or FALSE. Answer TRUE if the statement is true, or judgment by perfecting an appeal, filing a sufficient FALSE if the statement is false. Explain your answer in not supersedeas bond in favor of Jonathan, and making deposits with the appellate court of the amount of rent more than two (2) sentences. (5%) due from time to time under the contract. (S19 R70). [a] The accused in a criminal case has the right to avail of the (b) No, the CA is not correct. Under Rule 70 while the various modes of discovery. judgment of the RTC against the defendant shall be [b] The viatory right of a witness served with a subpoena ad immediately executory, this is without prejudice to a testificandum refers to his right not to comply with the further appeal that may be taken therefrom. (S21 R70). subpoena. XIII. [a] Continental Chemical Corporation (CCC) filed a [c] In the exercise of its original jurisdiction, the complaint for a sum of money against Barstow Trading Sandiganbayan may grant petitions for the issuance of a Corporation (BTC) for the latters failure to pay for its purchases of industrial chemicals. In its answer, BTC writ of habeas corpus. contended that it refused to pay because CCC [d] An electronic document is the equivalent of an original misrepresented that the products it sold belonged to a document under the Best Evidence Rule if it is a printout or new line, when in fact they were identical with CCCs output readable by sight or other means, shown to reflect existing products. To substantiate its defense, BTC filed a motion to compel CCC to give a detailed list of the the data accurately. products ingredients and chemical components, relying on [e] The filing of a motion for the reconsideration of the the right to avail of the modes of discovery allowed under trial courts decision results in the abandonment of a Rule 27. CCC objected, invoking confidentiality of the information sought by BTC. Resolve BTCs motion with perfected appeal. reasons. (3%) ANSWERS: (a) TRUE. There is nothing in the Rules of [b] Blinded by extreme jealousy, Alberto shot his wife, Court which limit the defendants right to avail of the Betty, in the presence of his sister, Carla. Carla brought various modes of discovery only to civil cases.
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[b] Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision. Mike then filed a petition for review with the Court of Appeals (CA). The CA dismissed the petition on the ground that the sheriff had already executed the MTC decision and had ejected Mike from the premises, thus rendering the appeal moot and academic. Is the CA correct? Reasons. (3%)

Remedial Law QnA 2007 and 2009

Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it was Alberto who shot Betty. Betty died while undergoing emergency surgery. At the trial of the parricide charges filed against Alberto, the prosecutor sought to present Domingo as witness, to testify on what Carla told him. The defense counsel objected on the ground that Domingos testimony is inadmissible for being hearsay. Rule on the objection with reasons. (3%)

XV. [a] Florencio sued Guillermo for partition of a property they owned in common. Guillermo filed a motion to dismiss the complaint because Florencio failed to implead Hernando and Inocencio, the other co-owners of the property. As judge, will you grant the motion to dismiss? Explain. (3%) [b] Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin Road, Baguio City, while Mariano resides in Davao City. Henry filed a motion to dismiss the complaint on the ground of prematurity for failure to comply with the mandatory barangay conciliation. Resolve the motion with reasons. (3%)

ANSWER: (a) BTCs motion should be denied. A motion for production or inspection of documents or things under R27 is subject to the requirement that the documents or things should not be privileged. Here what are sought to be produced is a detailed list of an industrial products ingredients and chemical components which are trade secrets and thus privileged. Hence BTCs motion should be dismissed. (Air Philippines Corp. v. Pennswell, Inc., G.R. ANSWERS: (a) No, as judge I will not grant the motion to dismiss. Under Rule 3, non-joinder of parties is not a 172835, 13 December 2007). ground for dismissal of an action. (S11 R3). The SC has (b) The objection should be sustained. Carlas declaration held that S11 R3 applies to indispensable parties. is hearsay as she was not presented in court to testify thereon. Her declaration will not qualify as a dying (b) I will deny the motion to dismiss. The mandatory declaration exception since she was not the one who died. barangay conciliation applies only if the parties reside in Nor will it qualify as a part of the res gestae since Carlas the same city or municipality. Here the Plaintiff resides in declaration was not made while a startling occurrence was Davao City while the defendant resides in Baguio City. The taking place or immediately prior or subsequent thereto. residence of the agent is immaterial. At the time Carla made the statement to Domingo, Betty had already been brought to the hospital and then to the XVI. [a] After the prosecution had rested and made its operating room, thereby indicating the lapse of an formal offer of evidence, with the court admitting all of appreciable length of time between the shooting and the the prosecution evidence, the accused filed a demurrer to evidence with leave of court. The prosecution was allowed making of the statement. to comment thereon. Thereafter, the court granted the XIV. The Republic of the Philippines, through the demurrer, finding that the accused could not have Department of Public Works and Highways (DPWH) filed committed the offense charged. If the prosecution files a with the RTC a complaint for the expropriation of the motion for reconsideration on the ground that the court parcel of land owned by Jovito. The land is to be used as order granting the demurrer was not in accord with the an extension of the national highway. Attached to the law and jurisprudence, will the motion prosper? Explain complaint is a bank certificate showing that there is, on your answer. (3%) deposit with the Land Bank of the Philippines, an amount equivalent to the assessed value of the property. Then [b] A criminal information is filed in court charging DPWH filed a motion for the issuance of a writ of Anselmo with homicide. Anselmo files a motion to quash possession. Jovito filed a motion to dismiss the complaint the information on the ground that no preliminary on the ground that there are other properties which would investigation was conducted. Will the motion be granted? Why or why not? (3%) better serve the purpose. [a] Will Jovitos motion to dismiss prosper? Explain. (3%) [b] As judge, will you grant the writ of possession prayed for ANSWERS: (a) No, the motion will not prosper. The Supreme Court has held that the grant of a demurrer to by DPWH? Explain. (3%) evidence is equivalent to an acquittal upon the merits and ANSWER: (a) Jovitos motion to dismiss will not prosper. The is immediately final. (People v. City Court of Silay, 9 Dec Supreme Court has held that the defendant in an 1976). Hence the prosecution cannot move for expropriation case cannot file a motion to dismiss but reconsideration for that would place the accused in double should raise his objections in the answer. (Masikip v. City of jeopardy. Pasig, 23 January 2006). (b) No, the motion to quash should not be granted. The (b) As judge, I will not grant the writ of possession prayed for. Supreme Court has held that the failure to conduct a In case of expropriation for national government preliminary investigation before the filing of an infrastructure projects, the law requires that the information is not a ground for a motion to quash since it is government, in order that it will have the right to enter or not mentioned in S3 R117. take possession, should immediately pay the owner of the property 100% of the market value of the property. Here XVII. Having obtained favorable judgment in his suit for a what was done was only to make a deposit of an amount sum of money against Patricio, Orencio sought the equivalent to the assessed value. (R.A. No. 8974, Republic v. issuance of a writ of execution. When the writ was issued, the sheriff levied upon a parcel of land that Patricio owns, Gingoyon, 19 Dec 2005).
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Remedial Law QnA 2007 and 2009

and a date was set for the execution sale. [a] How may Patricio prevent the sale of the property on execution? (2%) [b] If Orencio is the purchaser of the property at the execution sale, how much does he have to pay? Explain. (2%)

[c] If the property is sold to a third party at the execution sale, what can Patricio do to recover the property? Explain. (2%) (b) A writ of amparo is a remedy available to any person whose right to life, liberty, and security has been violated or ANSWERS: (a) Patricio may prevent the sale of the is threatened with violation by a public official or property by paying to the judgment obligee or to the employee or a private individual or a private individual or sheriff, if the judgment oblige is not present to receive entity. (S1, Rule on the Writ of Amparo [RWA]). The writ of payment, the full amount stated in the writ of execution amparo is distinguished from the writ of habeas corpus in and all lawful fees. The payment shall be in cash, certified that it covers violations of Constitutional and civil rights bank check payable to the judgment obligee, or any other other than the right to unlawful deprivation of liberty, like form of payment acceptable to the latter. (S9[a] R39). enforced disappearances and extralegal killings. (b) If Orencio is the purchaser of the property at the (c) A remedy available to any person whose right to execution sale, he does not have to pay any amount since he privacy in life, liberty or security is violated or threatened by is the judgment obligee. (S21 R39). an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the (c) Patricio may redeem the property within one year from the gathering or storing of data or information regarding the registration of the certificate of sale. (S28 R39). person, family, home, and correspondence of the aggrieved party. (S1, Rule on the Writ of Habeas Data XVIII. Pinoy died without a will. His wife, Rosie, and three [RWHD] children executed a deed of extrajudicial settlement of his estate. The deed was properly published and registered with the Office of the Register of Deeds. Three years -oOoAll rights reserved 2009 by Jurists Review Center Inc. thereafter, Suzy appeared, claiming to be the illegitimate Unauthorized reproduction, copying, or transmittal child of Pinoy. She sought to annul the settlement alleging prohibited except with the written consent of Jurists that she was deprived of her rightful share in the estate. Review Center, Inc. Rosie and the three children contended that (1) the publication of the deed constituted constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzys action had already prescribed. Are Rosie and the three children correct? Explain. (4%) ANSWER: Rosie and her three children are not correct. The publication of the deed of extrajudicial partition does not constitute constructive notice to the whole world since S1 R74 provides that no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. Suzys action has not prescribed. Her action to annul the settlement is in effect an action for reconveyance which may be filed within 10 years from the issuance of the title. Here only 3 years had lapsed hence Suzys action has not yet prescribed. XIX. [a] Distinguish the two (2) modes of appeal from the judgment of the Regional Trial Court to the Court of Appeals. (3%) [b] What is the writ of amparo? How is it distinguished from the writ of habeas corpus? (2%) [c] What is the writ of habeas data? (1%) ANSWER: (a) The two modes of appeal from the judgment of the RTC to the CA are ordinary appeal under Rule 41 and petition for review under Rule 42. The appeal under
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Rule 41 is from a judgment of the RTC in the exercise of its original jurisdiction, while the appeal under Rule 42 is from a judgment of the RTC in the exercise of its appellate jurisdiction. The appeal under Rule 41 is taken by filing a notice of appeal or both a notice of appeal and a record on appeal, while the appeal under Rule 42 is taken by filing a verified petition for review with the CA. The appeal under Rule 41 is a matter of right while the appeal under Rule 42 is subject to the discretion of the CA.

Remedial Law QnA 2007 and 2009

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