Questions & Answers in Remedial Law

in REMEDIAL LAW
Prepared by: Dean Reynaldo U.

Agranzamendez
QUESTIONS & ANSWERS IN REMEDIAL LAW

JULY 16, 2013
By:
REYNALDO U. AGRANZAMENDEZ
Dean, COLLEGE OF LAW
UNIVERSITY OF THE CORDILLERAS (formerly
BAGUIO COLLEGES FOUNDATION), Baguio City
Reviewer, Remedial Law
CIVIL PROCEDURE
1.
May an appeal be taken from an order denying a motion for
reconsideration?
Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012, teaches:
An order denying a motion for reconsideration of an order dismissing a
complaint is a final order, not an interlocutory order, as it puts an end to the
particular matter resolved (which is the dismissal of the complaint), or settles
definitely the matter therein disposed of, and nothing is left for the trial court to do
other than to execute the order.
Hence, an order denying a motion for
reconsideration of an order dismissing a complaint is appealable.
But an order denying a motion for reconsideration of an interlocutory order is
not appealable.
2. Whose duty is it to have the case set for pretrial? If the case has
not been set for pretrial for a long period of time, may the case be
dismissed for failure to prosecute?
Section 1, Rule 18 of the 1997 Rules of Civil Procedure provides that it is the
duty of the plaintiff, after the last pleading has been served and filed, to promptly
move ex parte that the case be set for pretrial.
A.M. No. 03-1-09-SC, which took effect on August 16, 2004, provides,
however, that: Within five (5) days from date of filing of the reply, the plaintiff must
promptly move ex parte that the case be set for pre-trial conference. If the plaintiff
fails to file said motion within the given period, the Branch Clerk of Court shall issue
a notice of pretrial.
BAR OPERATIONS
2013
I press
toward the mark for the
prize of the high calling of God
in Christ Jesus. - Philippians
3:14
BARRISTERS CLUB
Page 1 of 59
in REMEDIAL LAW
Agranzamendez
In Eloisa Merchandising, Inc. et al. v. Banco de Oro Universal Bank et al., G.R.
No. 192716, June 13, 2012, the Supreme Court said: While under the present
Rules, it is now the duty of the clerk of court to set the case for pre-trial if the
plaintiff fails to do so within the prescribed period, this does not relieve the plaintiff
of his own duty to prosecute the case diligently. (RUA is of the opinion that where
the clerk of court fails to set the case for pretrial, and the plaintiff likewise fails,
within a reasonable time, to move that his case be set for pretrial, the court may
dismiss the case for failure to prosecute.)
3. May an amendment substantially alter the cause of action or
defense?
Yes.
Whether made as a matter of right or with leave of court, an
amendment may now substantially alter the cause of action or defense as stated in
Section 3, Rule 10 of the 1997 Rules of Civil Procedure. (Lisam Enterprises, Inc. et
al. v. Banco de Oro Unibank et al., G.R. No. 143264, April 23, 2012)
In Lisam Enterprises, Inc., the Supreme Court explained: The courts should
be liberal in allowing amendments to pleadings to avoid a multiplicity of suits and in
order that the real controversies between the parties are presented, their rights
determined, and the case decided on the merits without unnecessary delay. This
liberality is greatest in the early stages of a lawsuit, especially in this case where
the amendment was made before the trial of the case, thereby giving the
petitioners all the time allowed by law to answer and to prepare for trial.
4. May an action for quieting of title (which is a special civil action
governed by Rule 63) and for declaration of nullity of title (which is an
ordinary civil action) be dismissed on ground of improper joinder of causes
of action?
No. While Section 5, Rule 2 of the 1997 Rules of Civil Procedure requires that
joinder shall not include special civil actions or actions governed by special rules,
Section 6 of the same Rule provides that misjoinder of causes of action is not a
ground for dismissal of an action. A misjoined cause of action may, on motion of a
party or on the initiative of the court, be severed and proceeded with separately.
(Roman Catholic Archbishop of San Fernando, Pampanga v. Soriano et al., G.R. No.
153829, Aug. 17, 2011)
In Ada, et al. v. Baylon, G.R. No. 182435, Aug. 13, 2012, the Supreme Court
said that a cause of action for partition and a cause of action for rescission cannot
be joined in a single complaint because partition is a special civil action governed
by Rule 69, while an action for rescission is an ordinary civil action. But if these two
causes of action are joined in one complaint, and the misjoined cause of action is
not severed, the court may render judgment on all these causes of action.
The aforecited case of Ada, et al. v. Baylon has reiterated the rule that
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 2 of 59
in REMEDIAL LAW
Agranzamendez
misjoinder of causes of action is not a ground for dismissal. The Supreme Court
went on to explain that courts have the power, acting upon the motion of a party to
the case or sua sponte, to order the severance of the misjoined cause of action to
be proceeded with separately. However, if there is no objection to the improper
joinder or the court did not motu proprio direct a severance, then there exists no
bar in the simultaneous adjudication of all the erroneously joined causes of action.
The High Tribunal, however, emphasized that the foregoing rule only applies if the
court trying the case has jurisdiction over all the causes of action therein
notwithstanding the misjoinder of the same. If the court trying the case has no
jurisdiction over a misjoined cause of action, then such misjoined cause of action
has to be severed from the other causes of action, and if not so severed, any
adjudication rendered by the court with respect to the same would be a nullity.
5. The complaint for the recovery of possession of real property did
not allege the assessed value thereof. The defendant filed a motion to
dismiss on ground of lack of jurisdiction, but the trial court denied the
motion to dismiss. Is the trial court correct in denying the motion to
dismiss?
No, the trial court is not correct.
A complaint must allege the assessed value of the real property subject of
the complaint or the interest thereon to determine which court has jurisdiction over
the action. Where the plaintiff fails to allege in his complaint the assessed value of
the subject property, the trial court seriously errs in denying a motion to dismiss.
(Quinagoran v. CA, G.R. No. 155179, Aug. 24, 2007)
6. If a complaint involving an intracorporate controversy is filed
with the regional trial court (which has not been designated as a special
commercial court), may it transfer the case to the regional trial court
designated as a special commercial court?
No.
In Calleja, et al. v. Panday, et al., G.R. No. 168696, Feb. 28, 2006, 483 SCRA
680, the RTC Branch 58, San Jose, Camarines Norte, upon noticing that it did not
have jurisdiction over the subject matter of the case, issued an Order transferring
the case to another branch of the Regional Trial Court. The issue brought to the
Supreme Court was: WHETHER A BRANCH OF THE REGIONAL TRIAL COURT WHICH
HAS NO JURISDICTION TO TRY AND DECIDE A CASE HAS AUTHORITY TO REMAND
THE SAME TO ANOTHER CO-EQUAL COURT IN ORDER TO CURE THE DEFECTS ON
VENUE AND JURISDICTION. The Supreme Court resolved the issue in this wise:
Evidently, the RTC-Br. 58 in San Jose, Camarines Sur is bereft
of jurisdiction over respondents petition for quo warranto. Based on
the allegations in the petition, the case was clearly one involving an
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 3 of 59
in REMEDIAL LAW
Agranzamendez
intra-corporate dispute. The trial court should have been aware that
under R.A. No. 8799 and the aforementioned administrative
issuances of this Court, RTC-Br. 58 was never designated as a
Special Commercial Court; hence, it was never vested with
jurisdiction over cases previously cognizable by the SEC.
Such being the case, RTC-Br. 58 did not have the requisite
authority or power to order the transfer of the case to another
branch of the Regional Trial Court. The only action that RTC-Br. 58
could take on the matter was to dismiss the petition for lack of
jurisdiction. In HLC Construction and Development Corp. v. Emily
Homes Subdivision Homeowners Association, the Court held that
the trial court, having no jurisdiction over the subject matter of the
complaint, should dismiss the same so the issues therein could be
expeditiously heard and resolved by the tribunal which was clothed
with jurisdiction.
The same issue was presented to the Supreme Court in Home Guaranty Corp.
v. R-II Builders, Inc., et al., G.R. No. 192649, March 9, 2011, 645 SCRA 219. The
Supreme Court summarized the proceedings had in the court below, as follows:
The record shows that R-II Builders original complaint dated
23 August 2005 was initially docketed as Civil Case No. 05-113407
before Branch 24 of the Manila, a designated Special Commercial
Court. With HGCs filing of a motion for a preliminary hearing on the
affirmative defenses asserted in its answer and R-II Builders filing of
its Amended and Supplemental Complaint dated 31 July 2007, said
court issued an order dated 2 January 2008 ordering the re-raffle of
the case upon the finding that the same is not an intra-corporate
dispute.
Relying on its ruling in Calleja, the Supreme Court resolved the issue in these
words:
We find that, having squarely raised the matter in its Rule 65
petition for certiorari and prohibition docketed as CA-G.R. SP No.
111153, HGC correctly faults the CA for not finding that Branch 24 of
the Manila RTC had no authority to order the transfer of the case to
respondent RTC. Being outside the jurisdiction of Special Commercial
Courts, the rule is settled that cases which are civil in nature, like
the one commenced by R-II Builders, should be threshed out in a
regular court. With its acknowledged lack of jurisdiction over the
case, Branch 24 of the Manila RTC should have ordered the dismissal
of the complaint, since a court without subject matter jurisdiction
cannot transfer the case to another court. Instead, it should have
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 4 of 59
in REMEDIAL LAW
Agranzamendez
simply ordered the dismissal of the complaint, considering that the
affirmative defenses for which HGC sought hearing included its lack
of jurisdiction over the case.
Calleja v. Panday, while on facts the other way around, i.e., a
branch of the RTC exercising jurisdiction over a subject matter within
the Special Commercial Courts authority, dealt squarely with the
issue:
Whether a branch of the Regional Trial Court which has no
jurisdiction to try and decide a case has authority to remand the
same to another co-equal Court in order to cure the defects on
venue and jurisdiction.
Calleja ruled on the issue, thus:
Such being the case, RTC Br. 58 did not have the requisite
authority or power to order the transfer of the case to another
branch of the Regional Trial Court. The only action that RTC-Br. 58
could take on the matter was to dismiss the petition for lack of
jurisdiction.
7. On what date is an amended complaint deemed filed?
The rule expressed in Sec. 5, Rule 1 is that a civil action is commenced by the
filing of the original complaint in court. But as held in Dionisio v. Linsangan, G.R.
No. 178159, March 2, 2011, an amended complaint that changes the plaintiffs
cause of action is technically a new complaint. Consequently, the action is deemed
filed on the date of the filing of such amended complaint, not on the date of the
filing of the original complaint. Thus, the statute of limitation resumes its run until it
is arrested by the filing of the amended complaint. However, an amendment which
does not alter the cause of action but merely supplements or amplifies the facts
previously alleged, does not affect the reckoning date of filing based on the original
complaint. The cause of action, unchanged, is not barred by the statute of
limitations that expired after the filing of the original complaint.
8. The certification on non-forum shopping may be signed on behalf
of a corporation by an officer specifically authorized by means of a board
resolution. As stated in Asean Pacific Planners, et al. v. City of Urdaneta,
et al., G.R. No. 162525, Sept. 23, 2008, only individuals vested with
authority by a valid board resolution may sign the certificate of non-forum
shopping on behalf of the corporation. Are there officers who may sign
such certification without need of board resolution?
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 5 of 59
in REMEDIAL LAW
Agranzamendez
Yes. These officers are: (1) the Chairperson of the Board of Directors; (2) the
President of a corporation; (3) the General Manager or Acting General Manager; (4)
Personnel Officer; and (5) Employment Specialist in a labor case. (Cagayan Valley
Drug Corporation v. Commissioner of Internal Revenue, G.R. No. 151413, February
13, 2008, 545 SCRA 10, 17-19).
9. In dela Cruz v. Andres, G.R. No. 161864, April 27, 2007, the
Supreme Court explained that a petition for relief from judgment under
Rule 38 of the 1997 Rules of Civil Procedure is an equitable remedy that
is allowed only in exceptional cases when there is no other available or
adequate remedy. It may be availed of only after a judgment, final order,
or other proceeding was taken against petitioner in any court through
fraud, accident, mistake, or excusable negligence. Is petition for relief
from judgment available as a remedy in the Court of Appeals or in the
Supreme Court?
No. A petition for relief from judgment is not available as a remedy in the
Court of Appeals or in the Supreme Court. Although Section 1, Rule 38 of the 1997
Rules of Civil Procedure provides that a party in any court may file a petition for
relief from judgment, Rule 56, which enumerates the cases originally cognizable by
the Supreme Court, does not include it. The phrase any court in Rule 38 refers
only to Municipal/Metropolitan Trial Court and the Regional Trial Court. There is no
provision in the Rules of Court making the petition for relief applicable in the Court
of Appeals or in the Supreme Court. (Pucson Jr. v. MRM Philippines, Inc., et al., G.R.
No. 182718, Sept. 26, 2008).
10. It was held in Perkin Elmer Singapore Pte. Ltd. V. Dakila Trading
Corp., G.R. No. 172242, Aug. 14, 2007 that extraterritorial service of
summons upon a non-resident defendant who is not in the Philippines
applies only when the action is in rem or quasi in rem, but not if an action
is in personam. What about if the defendant is a resident defendant but
his whereabouts are unknown, may summons be served upon him by
publication where the action is in personam, as when the complaint is one
for collection of a sum of money?
Yes. Section 14, Rule 14 of the 1997 Rules of Civil Procedure provides: In
any action where the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such times as the court
may order. The in rem/in personam distinction was significant under the old rule
because it was silent as to the kind of action to which the rule was applicable. The
present rule, however, states that it applies in any action, and the phrase in any
action means just that any action, whether in personam, in rem, or quasi in rem.
(Santos Jr. v. PNOC Exploration Corp., G.R. No. 170943, Sept. 23, 2008)
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 6 of 59
in REMEDIAL LAW
Agranzamendez
11. What are the requisites for valid substitution of public officer
who has sued or has been sued in his official capacity? What is the effect
of failure to make the substitution?
Requisites for valid substitution of public officer who has sued or has been
sued in his official capacity are:
(1) satisfactory proof by any party that there is a substantial need for
continuing or maintaining the action;
(2) the successor adopts or continues or threatens to adopt or continue the
acts of his predecessor;
(3) the substitution must be effected within 30 days after the successor
assumes office or within the time granted by the court; and,
(4) reasonable notice of the application for the substitution shall be given to
the other party or officer affected and accorded an opportunity to be heard.
Failure to make the substitution pursuant to Sec. 17, Rule 3 is a ground for
the dismissal of the action. (Rodriguez, et al. v. Jardin, G.R. No. 141834, July 30,
2007)
12. May a party file a petition for habeas corpus despite the
pendency of a petition for certiorari that questions the validity of the
order granting bail, which order is precisely the very basis of the petition
for habeas corpus?
No. Where a party files a petition for habeas corpus despite the pendency of
a petition for certiorari that questions the validity of the order granting bail, which
order is precisely the very basis of the petition for habeas corpus, he is guilty of
forum shopping. (Pulido v. Abu, G.R. No. 170924, July 4, 2007)
13. Mistakes of attorneys generally bind their clients. Errors of the
defense counsel in the conduct of the trial is neither an error of law nor an
irregularity upon which a motion for new trial may be presented. Are
there exceptions?
Yes, and these exceptions are the following: (1) the counsels mistake is so
great and serious that the client is prejudiced and denied his day in court, or (2) the
counsel is guilty of gross negligence resulting in the clients deprivation of liberty or
property without due process of law. In these two instances, the client is not bound
by his counsels mistakes, and a new trial may be conducted. (Ceniza-Manantan v.
People, G.R. No. 156248, Aug. 22, 2007)
14. What is the doctrine of conclusiveness of judgment?
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 7 of 59
in REMEDIAL LAW
Agranzamendez
Conclusiveness of Judgment, which is also known as preclusion of issues or
collateral estoppel, means that issues actually and directly resolved in a former
suit cannot again be raised in any future case between the same parties involving a
different cause of action.
15. A complaint asserting a common cause of action was filed
against several defendants. Some of these defendants filed an answer,
but the others did not. On motion of the plaintiff, the defendants who did
not file an answer were declared in default. Is it correct for the trial court
to first hear the case ex parte as against the defaulted defendants and
render a default judgment against them, then proceed to hear the case as
to the non-defaulted defendants?
No. In the problem presented, the trial court shall try the case against all the
defendants upon the answer thus filed and render judgment upon the evidence
presented. It is not within the authority of the trial court to divide the case by first
hearing it ex parte as against the defaulted defendants and rendering a judgment
by default against them, then proceed to hear the case as to the non-defaulted
defendants. (Heirs of Mamerto Manguiat, et al. v. CA, et al., G.R. No. 150768, Aug.
20, 2008, and its companion case
16. State the modes of service of summons upon foreign juridical
entity (like a foreign corporation).
The Supreme Court has adopted the use of electronic means to serve
summons on foreign juridical entities who are being sued in the Philippines but has
no resident agent or not registered to do business in the country. Thus, as
amendment to Section 12, Rule 14 of the 1997 Rules of Civil Procedure, A.M. No. 113-6 New Rule on Service of Summons on Foreign Juridical Entities provides:
SEC. 12. Service upon foreign private juridical entity. When the defendant
is a foreign private juridical entity which has transacted business in the Philippines,
service may be made on its resident agent designated in accordance with law for
that purpose, or, if there be no such agent, on the government official designated
by law to that effect, or on any of its officers or agents within the Philippines.
If the foreign private juridical entity is not registered in the Philippines or has
no resident agent, service may, with leave of court, be effected out of the
Philippines through any of the following means:
a) By personal service coursed through the appropriate court in
the foreign country with the assistance of the Department of Foreign
Affairs;
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 8 of 59
in REMEDIAL LAW
Agranzamendez
b) By publication once in a newspaper of general circulation in
the
country
where
the
defendant
may
be
found and by serving a copy of the summons and the court order byregistered
mail
at
the
last
known
address
of the defendant;
c) By facsimile or any recognized electronic means that could
generate proof of service; or
d) By such other means as the court may in its discretion direct.
As a result of such amendment, summons can now be served on the foreign
private juridical entity through the afore-quoted means, provided leave of court is
first obtained.
Although the Supreme Court did not specify the other forms of electronic
means, it is submitted that the use of e-mail is sufficient as long as it can be proven
in court that the defendant has received the summon.
17. If the last day for filing of a pleading (or motion) falls on a
Saturday, when may the pleading (or motion) be filed?
In Leynes v. CA, et al., G.R. No. 154462, Jan. 19, 2011, the ten-day period for
Spouses Leynes (defendants in the case for forcible entry before the MTC) to file
their Answer expired on May 20, 2000 (a Saturday). They filed their answer on May
22, 2000. The MTC declared Spouses Leynes in default and rendered its Judgment
on May 29, 2000, because, according to the MTC, they had only up to May 20, 2000
to file their Answer, and although May 20, 2000 was a Saturday, the court was open
and court personnel were present at that time to receive cases and motions filed
with the court.
Held: The MTC should not have rendered an ex-parte judgment
against them. Section 1, Rule 22 states: In computing any period of time
prescribed or allowed by these Rules, or by order of the court, or by any applicable
statute, the day of the act or event from which the designated period of time begins
to run is to be excluded and the date of performance included. If the last day of the
period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the
place where the court sits, the time shall not run until the next working day. Thus,
Saturdays, Sundays, and legal holidays are excluded from the counting of the period
only when the last day of the period falls on such days. SC Adm. Circular No. 2-99,
which took effect on February 1, 1999, requires certain trial court judges and
employees to be present on Saturdays primarily to act on petitions for bail and
other urgent matters. An answer cannot be considered as among such urgent
matters.
18. What are the sanctions that the court may impose upon a party
who fails to attend the mediation proceedings notwithstanding due notice
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 9 of 59
in REMEDIAL LAW
Agranzamendez
to him?
In Linda M. Chan Kent v. Spouses Alvaro E. Micarez and Paz Micarez, et al.,
G.R. No. 185758, March 9, 2011, the RTC dismissed the civil case because of the
failure of plaintiffs duly authorized representative and her counsel to attend the
mediation proceedings. The Supreme Court, however, found the dismissal too
severe a sanction because the records of the case is devoid of evidence of willful or
flagrant disregard of the rules on mediation proceedings. A.M. No. 01-10-5-SCPHILJA dated Oct. 16, 2001 (Second Revised Guidelines for the Implementation of
Mediation Proceedings) regards mediation as part of pretrial, and the parties must
personally attend the proceedings. The non-appearance of a party may be excused
only when the representative, who appears in his behalf, is duly authorized to enter
into amicable settlement or to submit to alternative modes of dispute resolution.
The sanctions that the court may impose upon a party who fails to attend the
proceedings are censure, reprimand, contempt, and even dismissal of the action in
relation to Sec. 5, Rule 18 of the 1997 Rules on Civil Procedure. Unless the conduct
of the party is so negligent, irresponsible, contumacious, or dilatory as to justify
dismissal of the action, the court should consider lesser sanctions.
19. May pretrial be conducted although no notices of pretrial were
sent to the parties?
No. In PNB v. Perez, G.R. No. 187640, June 15, 2011, it was held that the
absence of notice of pretrial renders the pretrial, if one is held, void, and all the
subsequent proceedings, including the judgment, are also void. The absence of
notice of pretrial constitutes a violation of a persons constitutional right to due
process.
(RUA: A notice of pretrial should notify the parties of the date, time, and place
of the pretrial and should require the parties to file their respective pretrial briefs
and served copies thereof on the adverse party in such a manner as shall ensure
receipt thereof at least three days before the date of the pretrial. A notice that does
not state the date, time, and place of pretrial and does not require the submission
of pretrial briefs as stated above is not a valid notice of pretrial.)
20. If a party, whether the defendant or plaintiff, fails to seasonably
file his pretrial brief, may the court nonetheless conduct pretrial?
No. Rule 18 mandatorily requires the parties to seasonably file their pretrial
briefs. Plaintiffs failure to do so shall be cause for the dismissal of the action. On
the other hand, defendants failure to do so shall be cause to allow the plaintiff to
present his evidence ex parte and the court to render judgment based thereon. The
court cannot hold pretrial without the parties filing their pretrial briefs. (Vera v.
Rigor, et al., G.R. No. 147377, Aug. 10, 2007)
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 10 of 59
in REMEDIAL LAW
Agranzamendez
21. Is a petition for certiorari and prohibition under Rule 65 the
proper remedy to nullify an executive order issued by the Office of the
President?
No. In Galicto v. Pres. Benigno Simeon C. Aquino et al., G.R. No. 193978, Feb.
28, 2012, it was held that a petition for certiorari and prohibition is available as a
remedy to question judicial and quasi-judicial acts. Since the issuance of an
executive order is not judicial or quasi-judicial, a petition for certiorari and
prohibition is an incorrect remedy. The correct remedy to assail the validity of an
executive order is a petition for declaratory relief under Rule 63 of the 1997 Rules of
Civil Procedure, to be filed with the Regional Trial Court.
Also, in Yusay v. CA, G.R. No. 156684, April 6, 2011, it was held that certiorari
will not lie against the Sangguniang Panglunsod because it is not part of the
judiciary settling an actual controversy involving legally demandable and
enforceable rights when it adopted Resolution No. 552, but a legislative and policymaking body.
22. What are the modes of appeal?
The modes of appeal are specified in:
a) Rule 40 (ordinary appeal from MTC to RTC);
b) Rule 41 (ordinary appeal from RTC to CA);
c) Rule 42 (petition for review from RTC to CA);
d) Rule 43 (petition for review from quasi-judicial agencies to the CA);
e) Rule 45 (petition for review on certiorari from CA, Sandiganbayan, CTA, or
RTC to the SC).
As explained in Latorre v. Latorre, G.R. No. 183926, March 29, 2010, the first
mode of appeal, governed by Rule 41, is brought to the Court of Appeals (CA) on
questions of fact or mixed questions of fact and law. The second mode of appeal,
covered by Rule 42, is brought to the CA on questions of fact, of law, or mixed
questions of fact and law. The third mode of appeal, provided in Rule 45, is filed with
the Supreme Court only on questions of law
Further explained:
In appeal from RTC to CA governed by Rule 41, the questions that may be
raised are questions of fact or mixed questions of fact and law.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 11 of 59
in REMEDIAL LAW
Agranzamendez
In appeal from RTC to CA under Rule 42, the questions that may be raised are
questions of fact, of law, or mixed questions of fact and law.
In appeal from quasi-judicial agencies to the CA under Rule 43, the questions
to be raised are questions of fact, of law, or mixed questions of fact and law.
In appeal to the Supreme Court under Rule 45, the questions that may be
raised are pure questions of law only, subject to some exceptions. Take note,
however, that in writ of kalikasan cases, habeas data cases, amparo cases, appeal
to the Supreme Court is by petition for review on certiorari where the petitioner may
raise questions of law, questions of fact, or mixed questions of fact and law.
But in Land Bank of the Philippines v. CA, et al., G.R. No. 190660, April 11,
2011, it was held that decisions and final orders of RTCs sitting as special agrarian
courts are appealable to the Court of Appeals by petition for review under Rule 42,
not through an ordinary appeal under Rule 41. Under Sec. 60. R.A. No. 6657
(Comprehensive Agrarian Reform Law), special agrarian courts, which are regional
trial courts designated by the SC as special agrarian courts, have original and
exclusive jurisdiction over: (a) all petitions for determination of just compensation to
landowners; and (b) the prosecution of all criminal offenses under RA No. 6657.
And, under A.M. No. 04-9-07-SC, all decisions and final orders of RTC acting as
special commercial courts in corporate rehabilitation and intra-corporate
controversies under R.A. No. 8799 are appealable to the Court of Appeals through a
petition for review under Rule 43. (BPI Family Savings Bank, Inc. v. Pryce Gases, Inc.
et al., G.R. No. 188365, June 29, 2011)
23. Suppose the appellant appeals from the judgment of the RTC to
the CA under Rule 41 by filing a notice of appeal with the RTC, but his
appeal raises pure questions of law, may the CA take cognizance of the
appeal?
No.
In Heirs Of Nicolas S. Cabigas, etc. v. Limbaco, et al., G.R. No. 175291, July
27, 2011, it was held that where a litigant files an ordinary appeal with the CA that
raises only questions of law, Section 2, Rule 50 of the Rules of Court expressly
mandates that the CA should dismiss the appeal outright as the appeal is not
reviewable by that court. When there is no dispute as to the facts, the question of
whether or not the conclusion drawn from these facts is correct is a question of law.
When the petitioners assailed the summary judgment, they were in fact questioning
the conclusions drawn by the RTC from the undisputed facts, and raising a question
of law.
In Cabigas, University of Cebu Banilad (UCB), AWG, Petrosa, the defendants
in the case below, filed a motion for summary judgment, admitting as true the
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 12 of 59
in REMEDIAL LAW
Agranzamendez
allegations in the complaint, but claiming that the plaintiffs had no legal right to the
property in question. The RTC Cebu City granted the motion and dismissed the
complaint. Plaintiffs appealed to the CA by filing a notice of appeal with the RTC.
UCB et al. filed a motion to dismiss appeal, claiming that plaintiffs raised only
questions of law in their appeal; thus, they should have filed an appeal by certiorari
with the SC, and not an ordinary appeal with the CA. The CA dismissed the appeal,
ruling that plaintiffs (now petitioners) should have filed a petition for review on
certiorari under Rule 45. The SC affirmed the CAs ruling.
St. Mary of the Woods School, Inc. et al. v. Office of the Registry of Deeds of
Makati City et al., G.R. No.s 174290, 176116, Jan. 20, 2009 teaches that in a motion
to dismiss based on failure to state a cause of action, there cannot be any question
of fact or doubt or difference as to the truth of falsehood of facts simply because
there are no findings of fact in the first place. What the trial court merely does is to
apply the law to the facts as alleged in the complaint, assuming such allegations to
be true. If follows then that any appeal therefrom could only raise questions of law
or doubt or controversy as to what the law is on a certain state of facts.
Therefore, a decision dismissing a complaint based on failure to state a cause of
action necessarily precludes a review of the same decision on questions of fact.
One is the legal and logical opposite of the other.
Thus, if from the judgment or final order of the Regional Trial Court, the
appellant raises only questions of law, the appeal should be a direct appeal to the
Supreme Court through a petition for review on certiorari. (Sps. Dadizon v. CA, et al.
G.R. No. 159116, Sept. 30, 2009).
24. If an appeal is taken to the wrong court, may this erroneous
appeal be transferred to the correct appellate court?
No. Section 2, Rule 50 of the 1997 Rules of Civil Procedure states: An appeal
erroneously taken to the Court of Appeals shall not be transferred to the appropriate
court but shall be dismissed outright.
There is no longer any justification for allowing transfer of erroneous appeals
from one court to the other, much less for tolerating continued ignorance of the law
on appeals. (Sps. Dadizon v. CA, et al., G.R. No. 159116, Sept. 30, 2009).
Where the accused is a public officer occupying a position lower than Salary
Grade 27, and he commits an offense in relation to his office, jurisdiction over the
offense shall be vested in the RTC or MTC pursuant to their respective jurisdictions.
In Quileste v. People, G.R. No. 180334, Feb. 18, 2009, the accused was a lowranking government employee who was charged with malversation. After he was
convicted by the RTC, he appealed to the CA. HELD: Accused filed his appeal in the
wrong court. The Sandiganbayan shall exercise exclusive appellate jurisdiction over
final judgments, resolutions, or orders of regional trial courts whether in the exercise
of their own original jurisdiction or of their appellate jurisdiction.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 13 of 59
in REMEDIAL LAW
Agranzamendez
In Balaba v. People, G.R. No. 169519, July 17, 2009, the accused, a lowranking government employee, was also charged with malversation. He was
convicted by the RTC. In his notice of appeal, he specified the CA as the court to
which he was taking his appeal. The Supreme Court reiterated its pronouncement
in Melencion v. Sandiganbayan, G.R. No. 150684, June 12, 2008 that an error in
designating the appellate court is not fatal to the appeal. However, the correction
in designating the proper appellate court should be made within the 15-day period
to appeal. If the correction is not made within the said 15-day period, the second
paragraph of Section 2, Rule 50 of the 1997 Rules of Civil Procedure will apply. It
states: An appeal erroneously taken to the Court of Appeals shall not be transferred
to the appropriate court but shall be dismissed outright.
In Estarija v. People, et al., G.R. No. 173990, Oct. 27, 2009, the accused, a
public officer occupying a position lower than Salary Grade 27, was charged with
violation of the Anti-Graft and Corrupt Practices Act. He was convicted by the RTC
and was meted a straight penalty of seven years. The CA, to which Estarija brought
his appeal, affirmed the judgment of the RTC but modified the sentence to six years
and one month to nine years of imprisonment. HELD: The CA erred in entertaining
the appeal. Although the penalty imposed by the RTC is erroneous as it did not
apply the Indeterminate Sentence Law, the decision of the RTC has long become
final and cannot be modified anymore.
Take note, however, of the case of Filomena Villanueva v. People, G.R. No.
188630, Feb. 23, 2011. Filomena was the assistant regional director of the
Cooperative Development Authority, a position lower than Salary Grade 27. She
was charged before the Municipal Circuit Trial Court with violation of R.A. No. 6713
(Code of Conduct and Ethical Standards for Public Officials and Employees). The
trial court found her guilty and imposed upon her the penalty of five years of
imprisonment and disqualification to hold office. She appealed to the RTC which
affirmed the MCTC decision. She then filed a petition for review before the CA, but
the CA dismissed the petition on the ground that it is the Sandiganbayan that has
exclusive jurisdiction over the petition. She filed a petition for review on certiorari
with the SC. The SC ruled: There is no question that Filomena took the wrong
procedure. She should have appealed the RTC decision to the Sandiganbayan.
Under R.A. 8249, the Sandiganbayan shall exercise exclusive appellate jurisdiction
over final judgments of regional trial courts whether in the exercise of their own
original jurisdiction or of their appellate jurisdiction. While the SC said that the CA
was correct in dismissing the appeal for lack of jurisdiction, yet because of the
peculiar circumstances of the case, Filomena should be given a chance to bring her
case to the Sandiganbayan.
(These peculiar circumstances were: (a) the
administrative case against Filomena was eventually decided by the CA in her favor;
(b) Filomena was shown to have paid the loan which became the subject of the
criminal case; (c) there was no sufficient showing that Filomena exerted undue
influence in obtaining the loan; (d) the civil case against Filomenas husband, which
was intertwined with the criminal case filed against her, was decided in favor of her
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 14 of 59
in REMEDIAL LAW
Agranzamendez
husband. Thus, the SC resolved to suspend the rules to give Filomena a chance to
seek relief from the Sandiganbayan by filing a petition for review within ten days
from receipt of the SCs decision.
The SC, however, said that it does not
countenance the inexcusable negligence committed by Filomenas former counsel.
25. What is the remedy against an order dismissing a complaint in
a civil action?
Appeal is the remedy against an order dismissing a complaint in a civil action.
As held in Heirs of Teofilo and Eliza Reterta v. Mores et al., G.R. No. 159941, Aug.
17, 2011: For one, the order that the petitioners really wanted to obtain relief from
was the order granting the respondents' motion to dismiss, not the denial of the
motion for reconsideration. The fact that the order granting the motion to dismiss
was a final order for thereby completely disposing of the case, leaving nothing more
for the trial court to do in the action, truly called for an appeal, instead of certiorari,
as the correct remedy.
But in Palma v. Galvez, et al., G.R. No. 165273, March 10, 2010, it was held
that where there are several defendants, one of whom files a motion to dismiss
which was granted by the court, plaintiffs remedy against such order of dismissal is
certiorari under Rule 65 because, as stated in Section 1(f), Rule 41 of the 1997
Rules of Civil Procedure, no appeal may be taken from a judgment or final order for
or against one or more of several parties x x x while the main case is pending,
unless the court allows an appeal therefrom. Since there is no appeal or any plain,
speedy, and adequate remedy in the ordinary course of law, the special civil action
for certiorari is proper.
26. If an interlocutory order of the MTC is assailed in a petition for
certiorari filed under Rule 65 with the RTC on the ground that it was
issued with grave abuse of discretion, but the RTC dismissed the petition,
what is the remedy against the order of the RTC dismissing the petition?
The remedy is an ordinary appeal to the CA by filing a notice of appeal with
the RTC pursuant to Sec. 2, Rule 41 of the Rules of Court. The petition for certiorari
filed with the RTC is an original action, the dismissal of which is a final order that
completely disposed of the petition.
(Galzote v. Briones and People of the
Philippines, G.R. No. 164682, Sept. 14, 2011)
27. To what court is the decision or award of a voluntary arbitrator
appealable?
The decision or award of a voluntary arbitrator is appealable to the Court of
Appeals via a petition for review under Rule 43 because a voluntary arbitrator
performs quasi-judicial functions. (Samahan ng Mga Manggagawa sa Hyatt v.
Voluntary Arbitrator Buenaventura C. Magsalin et al., G.R. No. 164939, June 6, 2011)
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 15 of 59
in REMEDIAL LAW
Agranzamendez
28. Gonzalo Go Jr. was appointed in 1980 as hearing officer of the
Board of Transportation (BOT) with a salary rate of P16,860 per annum. In
1987, EO No. 202 was issued creating, within the DOTC, the LTFRB to
replace the BOT. In 1990, the DOTC Secretary extended a promotional
appointment to Go as Chief Hearing Officer with a salary rate of P151,800
per annum.
The Civil Service Commission approved this permanent
appointment. LTFRB Administrative Division Chief Cynthia Angulo stated
that the promotion was to the position of Attorney VI, Salary Grade 26.
However, the DBM in its letter of March 13, 1991 stated that Gos position
should only be allocated the rank of Attorney V, Salary Grade 25. Go
wrote the DBM to question his summary demotion or downgrading of his
salary grade from SG26 to SG25. The DBM Secretary denied Gos protest.
Go sought reconsideration, but it was denied. Go then appealed to the
Office of the President, but the Office of the President dismissed Gos
appeal. His motion for reconsideration was likewise denied by the Office
of the President. Go interposed before the Court of Appeals a petition for
review under Rule 43. Did Go take the proper remedy?
No. The proper remedy available to Go is to question the DBMs denial of his
protest before the Civil Service Commission (CSC) which has exclusive jurisdiction
over cases involving personnel actions, and not before the OP. In turn, the
resolution of the CSC may be elevated to the CA under Rule 43 and, finally, before
the Supreme Court. Consequently, Go availed himself of the wrong remedy when he
went directly to the CA under Rule 43 without repairing first to the CSC. (Go v. CA, et
al., G.R. No. 172027, July 29, 2010)
29. May an appeal under Rule 45 and a special civil action under Rule
65 be incorporated in a single petition?
No.
In Republic of the Philippines v. Hon. Mangotara, etc., et al., G.R. No. 170375,
July 7, 2010, the Supreme Court explained: It is apparent in the case at bar that the
Republic availed itself of the wrong mode of appeal by filing Consolidated Petitions
for Review under Rule 45 and for Certiorari under Rule 65, when these are two
separate remedies that are mutually exclusive and neither alternative nor
successive. Nevertheless, the Court shall treat the Consolidated Petitions as a
Petition for Review on Certiorari under Rule 45 and the allegations therein as errors
of judgment. As the records show, the Petition was filed on time under Rules 45.
Before the lapse of the 15-day reglementary period to appeal under Rule 45, the
Republic filed with the Court a motion for extension of time to file its petition. The
Court, in a Resolution dated January 23, 2006, granted the Republic a 30-day
extension, which was to expire on December 29, 2005. The Republic was able to file
its Petition on the last day of the extension period. In Ligon v. Court of Appeals
where the petitioner described her petition as "an appeal under Rule 45 and at the
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 16 of 59
in REMEDIAL LAW
Agranzamendez
same time as a special civil action of certiorari under Rule 65 of the Rules of Court,"
this Court, in frowning over what it described as a "chimera," reiterated that the
remedies of appeal and certiorari are mutually exclusive and not alternative nor
successive.
30. Is failure to pay the appellate court docket and other lawful fees
a ground for the dismissal of the appeal?
Yes. In D.M. Wenceslao and Associates, Inc. v. City of Paraaque, et al., G.R.
No. 170728, Aug. 31, 2011, the Supreme Court has explained that the payment of
appellate court docket fees is not a mere technicality of law or procedure. It is an
essential requirement, without which the decision or final order appealed from
becomes final and executory as if no appeal was filed. Under Sec. 1, Rule 50 of the
1997 Rules of Civil Procedure, failure of the appellant to pay the docket and other
lawful fees is a ground for the dismissal of the appeal.
While there are
circumstances, like fraud, accident, mistake, or excusable negligence, that may
justify the relaxation of the rules on payment of docket fees, extremely heavy
workload or excusable inadvertence of appellants counsel is not among them.
31. In what instances is record on appeal necessary?
As provided for in Sec. 2, Rule 41, record on appeal is necessary only in
special proceedings and other cases of multiple or separate appeals. (Rovira v.
Heirs of Jose C. Deleste, etc., G.R. No. 160825, March 26, 2010).
Where record on appeal is required, the period for perfecting an appeal is 30
days from notice of the judgment or final order appealed from or notice of the order
denying motion for reconsideration or motion for new trial.
An order appointing an administrator of a deceased persons estate is a final
determination of the rights of the parties in connection with the administration,
management and settlement of the decedents estate; hence, it is a final order and
thus appealable. In special proceedings, such as appointment of an administrator,
record on appeal is required and is to be filed, along with the notice of appeal,
within 30 days from notice of the judgment or final order appealed from. (Zayco, et
al. v. Hinlo Jr., G.R. No. 170243, April 16, 2008).
Republic of the Philippines v. Nishina, G.R. No. 186053, Nov. 15, 2010 teaches
that although Section 2, Rule 41 requires a record on appeal in special proceedings
and other cases of multiple or separate appeals, in proceedings involving
cancellation of birth record and change of surname in the civil registry, record on
appeal is not necessary.
Rovira v. Heirs of Jose C. Deleste, etc., G.R. No. 160825, March 26, 2010,
holds that a trial courts ruling on the matter of attorneys fees initiated through a
motion in the same case of recovery of ownership and possession of land, may be
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 17 of 59
in REMEDIAL LAW
Agranzamendez
appealed by a mere notice of appeal. Since the suit for recovery of ownership and
possession is not one where multiple appeals are taken, a record on appeal is not
necessary.
Record on Appeal is not required in contempt proceedings. (Flaviano B.
Cortes v. Judge Felino Bangalan, etc., G.R. No. MTJ-97, Jan. 19, 2000).
32. Are judgments rendered by the Family Courts (or RTCs in places
where there is no Family Courts) in summary proceedings under Art. 238
of the Family Code appealable?
No.
Judgments rendered in summary proceedings under Art. 238 of the
Family Code are immediately final and executory as provided for in Art. 247 thereof;
hence, they are not appealable. The remedy of the aggrieved party is to file a
petition for certiorari to question grave abuse of discretion amounting to lack or
excess of jurisdiction. Such petition should be filed with the Court of Appeals in
accordance with the doctrine of hierarchy of courts. Even if the Supreme Courts
original jurisdiction to issue a writ of certiorari is concurrent with the Court of
Appeals and the Regional Trial Court in certain cases, such concurrence does not
sanction an unrestricted freedom of choice of court forum. From the decision of the
Court of Appeals, the losing party may file a petition for review on certiorari under
Rule 45 with the Supreme Court. This is because the errors which the court may
commit in the exercise of jurisdiction are merely errors of judgment which are the
proper subject of an appeal.
(Republic of the Philippines v. Tango, G.R. No.
161062, July 31, 2009)
33.
What is the remedy of a party who is aggrieved by the
resolution issued by the City/Provincial Prosecutor in a preliminary
investigation?
His remedy is to appeal to the Secretary of Justice. If the Secretary of Justice
dismisses his appeal, he must file a motion for reconsideration. If his motion for
reconsideration is denied by the Secretary of Justice, he may now file a petition for
certiorari under Rule 65 with the Court of Appeals. (Filadams Pharma, Inc. v. CA,
G.R. No. 132422, March 30, 2004).
Take note also that the resolution of the DOJ in offenses where the penalty
imposable is reclusion perpetua to death is appealable administratively to the Office
of the President, and the decision of the OP may be appealed to the CA pursuant to
Rule 43. (de Ocampo v. Sec. of Justice, G.R. No. 147932, Jan. 25, 2006; See also:
Heirs of the Late Nestor Tria v. Epifania Obias, G.R. No. 175887, Nov. 24, 2010;
Angeles v. Gaite, et al., G.R. No. 176596, March 23, 2011)
CRIMINAL PROCEDURE
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 18 of 59
in REMEDIAL LAW
Agranzamendez
1. In a criminal case, the prosecution filed a motion to take the
testimony of its witness by oral deposition in Laos, Cambodia, citing as its
reason that this witness, himself the private complainant, was sick and of
advanced age. The trial court granted the motion. Is the trial court
correct?
No, the trial court is not correct. The applicable rule is Sec. 15, Rule 119 that
reads:
When it satisfactorily appears that a witness for the prosecution
is too sick or infirm to appear at the trial as directed by the court, or
has to leave the Philippines with no definite date of returning, he may
forthwith be conditionally examined before the court where the case is
pending. Such examination, in the presence of the accused, or in his
absence after reasonable notice to attend the examination has been
served on him, shall be conducted in the same manner as examination
at the trial.
While the condition of the private complainant as being sick and of advanced
age falls within the provision of the Section 15, the same rule provides that he
should be conditionally examined before the court where the case is pending.
Nowhere in the said rule permits the taking of deposition outside the Philippines
whether the deponent is sick or not. To take the deposition of a prosecution witness
elsewhere other than before the court where the case is pending would not only
deprive the accused of his right to attend the proceedings, but also deprive the trial
judge of the opportunity to observe the prosecution witnesss deportment. It would
also violate the right of the accused to meet the witnesses face to face.
(RUA: For conditional examination of a defense witness before trial in a
criminal case, please read Secs. 12 and 13 of Rule 119. Note that the conditional
examination of a witness for the accused may be taken before a judge, or, if not
practicable, a member of the Bar in good standing so designated by the judge in the
order, or if the order be made by a court of superior jurisdiction, before an inferior
court to be designated therein.)
It is different in civil cases. Rules 23 to 28 of the 1997 Rules of Civil
Procedure allow the taking of depositions in civil cases, either upon oral examination
or written interrogatories, before any judge, notary public, or person authorized to
administer oaths at any time or place within the Philippines; or before any Philippine
consular official, commissioned officer or person authorized to administer oaths in a
foreign state or country, with no additional requirement except reasonable notice in
writing to the other party. (See: Harry L. Go et al. v. People et al., G.R. No. 185527,
July 18, 2012)
2. In what instances may habeas corpus be resorted to as postconviction remedy?
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 19 of 59
in REMEDIAL LAW
Agranzamendez
The writ of habeas corpus may be resorted to as post-conviction remedy in
any of the following exceptional circumstances:
a)
there has been a deprivation of a constitutional right

resulting in the restraint of a person;
b)
the court had no jurisdiction to impose the sentence;
c)
the imposed penalty is excessive, thus voiding the
sentence as to such excess.
Under the Rule on DNA Evidence, habeas corpus may also be resorted to as
post-conviction remedy where the result of the DNA examination is favorable to the
accused.
Thus, the writ of habeas corpus was held available where an accused was
deprived of his right against self-incrimination. (cited in de Villa v. The Director,
New Bilibid Prisons, G.R. No. 158802, Nov. 17, 2004).
But habeas corpus is not available as post-conviction remedy where the
appeal is still pending. (People v. Maquilan, G.R. No. 126170, Aug. 27, 1998)
3. What is the rule regarding Post-Conviction DNA Testing?
The rule on post-conviction DNA testing is expressed in A.M. No. 06-11-5-SC,
Effective Oct. 15, 2007, as follows:
Sec. 6. Post-conviction DNA Testing. Post-conviction DNA testing
may be available, without need of prior court order, to the prosecution
or any person convicted by final and executory judgment provided that
(a) a biological sample exists, (b) such sample is relevant to the case,
and (c) the testing would probably result in the reversal or modification
of the judgment of conviction. (Rule on DNA Evidence, A.M. No. 06-115-SC, Effective Oct. 15, 2007)
Sec. 10. Post-conviction DNA Testing Remedy if the Results Are
Favorable to the Convict. The convict or the prosecution may file a
petition for a writ of habeas corpus in the court of origin if the results
of the post-conviction DNA testing are favorable to the convict. In case
the court, after due hearing, finds the petition to be meritorious, if shall
reverse or modify the judgment of conviction and order the release of
the convict, unless continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or the
Supreme Court, or with any member of said courts, which may conduct
a hearing thereon or remand the petition to the court of origin and
issue the appropriate orders.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 20 of 59
in REMEDIAL LAW
Agranzamendez
4. As a general rule, courts will not issue writs of prohibition or
injunction, preliminary or final, to enjoin or restrain criminal prosecution.
What are the exceptions?
The exceptions are:
1) When the injunction is necessary to afford adequate protection to the
constitutional rights of the accused;
2) When it is necessary for the orderly administration of justrice or to avoid
oppression or multiplicity of actions;
3
When there is a prejudicial question which is sub judice;
4) When the acts of the officer are without or in excess of authority;

5) When the prosecution is under an invalid law, ordinance or regulation;
6
When double jeopardy is clearly apparent;
When the court has no jurisdiction over the offense;
When it is a case of persecution rather than prosecution;
9 When the charges are manifestly false and motivated by the lust for vengeance;
10 When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied. (Borlongan Jr. v. Pena, et al. G.R. No.
143591, Nov. 23, 2007)
5. C and L, who were charged as co-conspirators, were convicted of
violation of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) in a
judgment rendered by the Sandiganbayan, imposing upon each of them
the penalty of imprisonment from six years and one month to twelve years
and one month. They filed separate appeals to the Supreme Court by
filing their respective petitions for review on certiorari. Ls appeal was
dismissed on technicality. During the pendency of the appeal, C died.
a) Should Cs appeal be dismissed on the ground that his death has
rendered his appeal moot and academic as his death has already
extinguished his criminal liability?
No. Cs appeal should not be dismissed. The two petitions are so intertwined
that the absolution of C is ultimately determinative of the absolution of L. The
exoneration of C will necessarily signify the injustice of carrying out the penalty
imposed on L. Thus, the SC, in this instance, has to ascertain the merits of Cs
appeal to prevent a developing miscarriage of justice against L.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 21 of 59
in REMEDIAL LAW
Agranzamendez
Courts must still decide cases, otherwise moot and academic, in the following
instances: (1) there is a grave violation of the Constitution; (2) the exceptional
character of the situation and the paramount public interest is involved; (3) when
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; (4) the case is capable of repetition yet evading
review.
In the problem presented, the exceptional character of the appeal of C and L
in relation to each other, as well as the higher interest of justice, requires that the
Court determine the merits of Cs petition and not dismiss it outright on the ground
of mootness.
b) Does the reversal of the decision of the Sandiganbayan as against
C benefit L whose appeal was dismissed on technicality?
Section 11(a), Rule 122 of the Revised Rules of Criminal Procedure provides:
An appeal taken by one or more of several accused shall not affect those who did
not appeal, except insofar as the judgment of the appellate court is favorable and
applicable to the latter. The phrase did not appeal applies also to a co-accused
who withdrew his appeal, failed to file an appellants brief, or filed a notice of appeal
with the trial court but eventually withdrew the same. The Supreme Court has at
various times applied the foregoing provision without regard to the filing or nonfiling of an appeal by a co-accused, so long as the judgment was favorable to him.
Thus, the foregoing provision should be applied to L whose appeal was dismissed on
technicality. (Constantino v. Sandiganbayan, et al., G.R. No. 140656, Sept. 13,
2007; Lindong v. People, et al., G.R. No. 154482, Sept. 13, 2007.)
6. The accused, who claims that he was illegally arrested, refused to
enter a plea when arraigned; whereupon, the court entered a plea of not
guilty for him. May he still question the validity of his arrest?
Yes. The principle that the accused is precluded from questioning the legality
of his arrest after arraignment is true only if he voluntarily enters his plea and
participates during the trial, without previously invoking his objections thereto.
(Borlongan Jr. v. Pena, et al. G.R. No. 143591, Nov. 23, 2007). Thus, the accused
may still question the legality his arrest, etc. where, at the arraignment, it is the
court that entered the plea of not guilty for him.
7. Frank, who was 17 years of age at the time of the commission of
the offense, was charged with murder punishable by reclusion perpetua to
death. Crediting the accused with the privileged mitigating circumstance
of minority, the RTC rendered judgment sentencing him to suffer
imprisonment of 12 years and one day to 17 years and four months of
reclusion temporal. The trial court, however, suspended Franks sentence
and ordered his commitment to the Regional Rehabilitation Center for
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 22 of 59
in REMEDIAL LAW
Agranzamendez
Youth, he being a juvenile in conflict with law. Is the trial court correct in
suspending Franks sentence?
Art. 192 of PD No. 603 provides that the benefits of the law on suspension of
sentence shall not apply to a youthful offender who has once enjoyed suspension of
sentence under its provisions or to one who is convicted of an offense punishable by
death or life imprisonment or to one who is convicted of an offense by the Military
Tribunals.
A.M. No. 02-1-18-SC also provides that the benefits of suspended sentence
shall not apply to a juvenile in conflict with the law who has once enjoyed
suspension of sentence, or to one who is convicted of an offense punishable by
death, reclusion perpetua or life imprisonment, or when at the time of promulgation
of judgment the juvenile is already eighteen (18) years of age or over.
It is clear, therefore, that a person who is convicted of an offense punishable
by death, life imprisonment, or reclusion perpetua is disqualified from availing
himself of the benefits of a suspended sentence. The disqualification is based on
the nature of the crime charged and the imposable penalty therefor, and not on the
penalty imposed by the court after trial. It is not the actual penalty imposed, but
the imposable penalty which determines the disqualification of a juvenile.
Thus, where the youthful offender is charged with an offense punishable by
death, life imprisonment, or reclusion perpetua, he is not entitled to the benefit of
suspended sentence although the penalty actually imposed by the court is, say,
reclusion temporal.
R.A. No. 9344, which took effect on May 20, 2006, did not change the
foregoing ruling. Section 38 of R.A. No. 9344 provides the following: Once the
child who is under eighteen (18) years of age at the time of the commission of the
offense is found guilty of the offense charged, the court shall determine and
ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place
the child in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt.
R.A. No. 9344 merely amended Art. 192 of P.D. 603 in that the suspension of
sentence shall be enjoyed by the juvenile even if he/she is already 18 years of age
or more at the time of the pronouncement of his/her guilt.
The other
disqualifications in Art. 192 of P.D. 603 and in Sec. 32 of A.M. No. 02-1-18-SC have
not been deleted from Sec. 38 of R.A. No. 9344. Hence, juveniles who have been
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 23 of 59
in REMEDIAL LAW
Agranzamendez
convicted of a crime the imposable penalty for which is reclusion perpetua, life
imprisonment, or death are disqualified from having their sentence suspended.
Take note, however, that in People v. Sarcia, G.R. No. 169641, Sept. 10, 2009,
599 SCRA 20, cited in People v. Allen Udtojan Mantalaba, G.R. No. 186227, July 20,
2011, it was held that although suspension of sentence can still be applied even if
the child in conflict with the law is already 18 years of age or more at the time of
the pronouncement of his guilt, Sec. 40 of the same law limits the suspension of
sentence until the child reaches the maximum age of 21. Hence, the appellant, who
is now beyond the age of 21 can no longer avail himself of the provisions of Secs.
38 and 40 of RA 9344 as to suspension of his sentence because this has already
become moot and academic.
8. May the offended party in estafa and violation of BP 22 arising
from the single act of issuing a bouncing check intervene through a
private prosecutor in both criminal cases?
Yes. Settled is the rule that the single act of issuing a bouncing check may
give rise to two distinct criminal offenses: estafa and violation of Batas Pambansa
Blg. 22. The Rules of Court allow the offended party to intervene through a private
prosecutor in each of these two penal proceedings. However, the recovery of the
single civil liability arising from the single act of issuing a bouncing check in either
criminal case bars the recovery of the same civil liability in the other criminal action.
While the law allows two simultaneous civil remedies for the offended party, it
authorizes recovery in only one. In short, while two crimes arise form a single set of
facts, only one civil liability attaches to it. (Rodriquez v. Ponferrada, et al., G.R. Nos.
155531-34, July 29, 2005)
9. After the prosecution has rested its case, the accused files a
demurrer to evidence. In resolving the demurrer to evidence, should the
trial court likewise decide the civil aspect of the case and determine the
civil liability of the accused?
The answer should be qualified as follows:
a) If the demurrer to evidence is filed without leave of court:
If the demurrer to evidence is filed without leave of court, the whole case is
submitted for judgment on the basis of the evidence for the prosecution as the
accused is deemed to have waived his right to present evidence. In this situation,
the court is called upon to decide the case including its civil aspect, unless the
offended party has waived the civil action, or has reserved his right to institute it
separately, or has instituted the civil action prior to the criminal action.
In case of conviction, the trial court should state in its judgment the civil
liability or damages to be recovered by the offended party from the accused.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 24 of 59
in REMEDIAL LAW
Agranzamendez
In case of acquittal, the accused may still be adjudged civilly liable where: (a)
the acquittal is based on reasonable doubt; (b) the court declares that the liability of
the accused is only civil; or (c) the civil liability of the accused does not arise from or
is not based upon the crime of which the accused is acquitted.
But if the accused is acquitted and there is a finding in the final judgment in
the criminal action that the act or omission from which the civil liability may arise
did not exist, then the civil action based on the delict is deemed extinguished.
b) If the demurrer to evidence is filed with leave of court:
If the court denies the demurrer to evidence because the evidence presented
by the prosecution is sufficient, the accused may present evidence regarding both
the criminal and civil aspect of the case.
If the court grants the demurrer to evidence because the evidence so far
presented by the prosecution is insufficient as proof beyond reasonable doubt, it
does not follow that the same evidence is insufficient to establish a preponderance
of evidence. Thus, if the court grants the demurrer, proceedings on the civil aspect
of the case shall proceed, except if the trial court finds that the act or omission from
which the civil liability may arise did not exist. (Hun Hyung Park v. Eung Won Choi,
G.R. No. 165496, Feb. 12, 2007)
10.a. The trial court granted the demurrer to evidence filed by the
accused. May the prosecution appeal from the order granting demurrer to
evidence?
No. An order granting the demurrer to evidence filed by the accused is an
adjudication of the case on the merits, and it amounts to an acquittal. An appeal
from said order would violate the right of the accused against double jeopardy. This
is based on the finality-of-acquittal rule which means that verdicts of acquittal are
to be regarded as absolutely final and irreviewable.
b) If appeal is not a remedy against an order granting demurrer to
evidence, what then is the remedy?
The remedy is a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure upon a clear showing by the petitioner that the lower court, in acquitting
the accused, committed not merely reversible errors of judgment but also grave
abuse of discretion amounting to lack or excess of jurisdiction or a denial of due
process, thus rendering the assailed judgment void. In Sanvicente v. People, 441
Phil. 139 (2002), the Supreme Court upheld the decision of the CA which reversed
the acquittal of the accused upon a demurrer to evidence, holding that the trial
court committed grave abuse of discretion in preventing the prosecution from
establishing the due execution and authenticity of a certain letter marked as Exh.
LL which positively identified the accused as the perpetrator of the crime charged.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 25 of 59
in REMEDIAL LAW
Agranzamendez
To put it another way, any further prosecution of the accused after an
acquittal would violate the right of the accused against double jeopardy. To this
rule, there are exceptions as follows: (1) when the prosecution is denied due
process, as in the case of Galman v. Sandiganbayan, G.R. No. L-72670, Sept. 12,
1986, where the Supreme Court declared the sham trial a mock trial, and the
predetermined judgment of acquittal was held unlawful and void ab initio; (2) when
the trial court commits grave abuse of discretion in granting the demurrer to
evidence filed by the accused.
Thus, double jeopardy will not attach when the trial court acted with grave
abuse of discretion amounting to lack of excess of jurisdiction, such as where the
prosecution was denied the opportunity to present its case or where the trial was a
sham. (People v. Laguio Jr., G.R. No. 128587, March 16, 2007)
In People v. Sandiganbayan and Barcenas, G.R. No. 174504, March 21, 2011,
it was held that although the grant of demurrer is not subject to appeal it is still
reviewable through certiorari under Rule 65.
The Supreme Court ruled, in Ysidoro v. Hon. Leonardo-de Castro et al., G.R.
No. 171513, Feb. 6, 2012, that the rule against double jeopardy cannot be properly
invoked in a Rule 65 petition, predicated on two exceptional grounds, namely: in a
judgment of acquittal rendered with grave abuse of discretion by the court; and
where the prosecution had been deprived of due process. The rule against double
jeopardy does not apply in these instances because a Rule 65 petition does not
involve review of facts and law on the merits in the manner done in an appeal. A
review under Rule 65 only asks the question of whether there has been a validly
rendered decision, not the question of whether the judgment is legally correct. In
the other words, the focus of the review is to determine whether the judgment is
per se void on jurisdictional grounds. (RUA: A petition purportedly brought under
Rule 65 should be dismissed if it does not raise any jurisdictional ground, as when,
for example, it seeks to have the evidence reviewed by the higher court.)
11. Jayson was involved in a vehicular collision where Nestor, the
driver of the other vehicle, died. Evangeline, Nestors wife, sustained only
minor injuries, although their vehicle was heavily damaged. Jayson was
charged with two offenses before the MeTC of Pasig City, namely: (1)
Criminal Case No. 82367, for Reckless Imprudence Resulting in Slight
Physical Injuries; and (2) Criminal Case No. 82366, for Reckless
Imprudence Resulting in Homicide and Damage to Property.
Jayson
pleaded guilty to the charge in Criminal Case No. 82367 and was meted
the penalty of public censure. Invoking his conviction in Criminal Case No.
82367, he moved to quash the Information in Criminal Case No. 82366 on
the ground of double jeopardy, but the trial court denied Jaysons motion.
Is the trial court correct in refusing the quashal of the information?
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 26 of 59
in REMEDIAL LAW
Agranzamendez
No, the trial court is not correct. In Ivler v. Modesto-San Pedro et al., G.R. No.
172716, Nov. 17, 2010, the Supreme Court, held that double jeopardy has already
set in. Citing the opinion of Justice J.B.L. Reyes in the earlier case of People vs.
Buan, 22 SCRA 1383, March 29, 1968, it said: as the careless act is single,
whether the injurious result should affect one person or several persons, the offense
(criminal negligence) remains one and the same, and can not be split into different
crimes and prosecutions.
12. If the trial court convicted the accused of frustrated homicide,
but on appeal the appellate court found him guilty of attempted homicide
as the accused had insisted all along, may he apply for probation?
Yes, as held by the Supreme Court (En Banc) in Colinares v. People, G.R. No.
182748, Dec. 13, 2011.
Arnel Colinares was charged before the RTC of San Jose, Camarines Sur, with
frustrated homicide. Convicted of frustrated homicide, he was meted the penalty of
from 2 years and 4 months of prision correccional, as minimum, to 6 years and 1
day of prision mayor, as maximum. He appealed to the CA, but the CA affirmed the
decision of the RTC. He then went to the SC on petition for review on certiorari. The
SC found him guilty of attempted homicide only as the injury he had inflicted on the
victim was not fatal. The SC sentenced him to suffer the penalty of 4 months of
arresto mayor, as minimum, to 2 years and 4 months of prision correccional, as
maximum. Is Colinares entitled to probation? Yes. The SC held: In appealing his
case, Colinares raised the issue of correctness of the penalty imposed on him. He
claimed that the evidence at best warranted his conviction for attempted homicide
only, which crime calls for a probationable penalty. In a way, therefore, he sought
from the beginning to bring down the penalty to the level where the law would allow
him to apply for probation. In a real sense, the SCs finding that Colinares was
guilty, not of frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable penalty.
13. May a judgment be promulgated in a criminal case even in the
absence of the counsel for the accused?
Yes. The presence of counsel for the accused is not indispensable for
promulgation. (Icdang v. Sandiganbayan, G.R. No. 185960, Jan. 25, 2012)
14. Is the fresh period rule laid down by the Supreme Court in
Neypes, et al. v. CA, et al., G.R. No. 141524, Sept. 14, 2005, applicable in
criminal cases?
Yes. In Yu v. Samson-Tatad, et al., G.R. No. 170979, Feb. 9, 2011, the SC
ruled that its pronouncement of a fresh period to appeal in Neypes, et al. v. CA,
et al., G.R. No. 141524, Sept. 14, 2005, should equally apply to the period for
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 27 of 59
in REMEDIAL LAW
Agranzamendez
appeal in criminal cases under Sec. 6, Rule 122 of the Revised Rules of Criminal
Procedure.
Neypes is also applicable in special proceedings where record on appeal is
required. (Zayco, et al. v. Hinlo Jr., G.R. No. 170243, April 16, 2008)
EVIDENCE
1.
What are the guidelines that will serve as jurisprudential
benchmark in appreciating age of the victim either as an element of the
crime or as a qualifying circumstance:
The guidelines as formulated in People v. Pruna, 439 Phil. 440 (2002), and
reiterated in People v. Padigos, G.R. No. 181202, Dec. 5, 2012, are:
a) the best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party;
b) in the absence of a certificate of live birth, similar authentic documents
such as baptismal certificate and school records which show the date of birth of the
victim would suffice to prove age;
c) if the certificate of liver birth or authentic document is shown to have
been lost or destroyed or otherwise unavailable, the testimony, if clear and credible,
of the victims mother or a member of the family either by affinity or consanguinity
who is qualified to testify on matters respecting pedigree such as the exact age or
date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:
1) if the victim is alleged to be below 3 years of age and what is
sought to be proved is that she is less than 7 years old;
2) if the victim is alleged to be below 7 years of age and what is
sought to be proved is that she is less than 12 years old;
3) if the victim is alleged to be below 12 years of age and what
is sought to be proved is that she is less than 18 years old.
d) in the absence of a certificate of live birth, authentic document, or the
testimony of the victims mother or relatives concerning the victims age, the
complainants testimony will suffice provided that it is expressly and clearly
admitted by the accused.
e) it is the prosecution that has the burden of proving the age of the
offended party. The failure of the accused to object to the testimonial evidence
regarding age shall not be taken against him.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 28 of 59
in REMEDIAL LAW
Agranzamendez
f) the trial court should always make a categorical finding as to the age of
the victim.
2. Is a police report admissible in evidence even if the police
investigator who prepared it was not presented as a witness in court?
Yes. A police report is considered an entry in official records; hence, it is
admissible as an exception to the hearsay rule. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty by a public officer of
the Philippines, or by a person in the performance of a duty specially enjoined by
law are prima facie evidence of the facts therein stated.
The requisites for the admissibility of entries in official records are:
a) that the entry was made by a public officer or by another person specially
enjoined by law to do so;
b) that it was made by the public officer in the performance of his or her
duties or by such other person in the performance of a duty specially enjoined by
law;
c) that the public officer or other person had sufficient knowledge of the facts
by him or her stated, which must have been acquired by the public officer or other
person personally or through official information.
Thus, the presentation of the police report itself is admissible as an exception
to the hearsay rule even if the police investigator who prepared it was not
presented in court, as long as the above requisites could be adequately proved.
(Malayan Insurance Co., Inc. v. Ablerto et al., G.R. No. 194320, Feb. 1, 2012)
3. Is plaintiffs evidence the only basis in resolving a demurrer to
evidence?
No. Sec. 1, Rule 33 provides, in part: After the plaintiff has completed the
presentation of his evidence, the defendant may move for dismissal on the ground
that upon the facts and the law the plaintiff has shown no right to relief. x x x The
facts referred to in Section 8 should include all the means sanctioned by the Rules
of Court in ascertaining matters in judicial proceedings. These include judicial
admissions, matters of judicial notice, stipulations made during the pre-trial and
trial, admissions, and presumptions, the only exclusion being the defendants
evidence. (Casent Realty Development Corp. v. Philbanking Corp., G.R. No. 150731,
Sept. 14, 2007)
4. Sec. 34, Rule 132 of the Rules of Court provides that the court
shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified. Why is a
formal offer of evidence necessary?
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 29 of 59
in REMEDIAL LAW
Agranzamendez
A formal offer of evidence is necessary because judges are mandated to rest
their findings of facts and their judgment only and strictly upon the evidence offered
by the parties at the trial. (Heirs of Pedro Pasag, etc., et al. v. 55483, April 27,
2007)
5. What is the principle of adoptive admission?
By adoptive admission, a third persons statement becomes the admission of
the party embracing or espousing it. Adoptive Admission occurs when a party:
(a) expressly agrees to or concurs in an oral statement made by another;
(b) hears a statement and later on essentially repeats it;
(c) utters an acceptance or builds upon the assertion of another;
(d) replies by way of rebuttal to some specific points raised by another but
ignores further points which he or she has heard the other make; or
(e) reads and signs a written statement made by another. (Republic of the
Philippines v. Kenrick Development Corporation, G.R. No. 149576, Aug. 8, 2006)
6. In paternity cases, is it necessary that there be a prima facie
showing of paternity before the court may issue an order for DNA testing?
Yes. Lucas v. Lucas, G.R. No. 190710, June 6, 2011 holds that a prima facie
showing is necessary before a court can issue a DNA testing order. During the
hearing on the motion for DNA testing in paternity cases, the petitioner must
present prima facie evidence or establish a reasonable possibility of paternity.
7. In cases involving paternity, if the results of DNA examination
show that the value of probability of paternity (VPP) is 99.9% or higher,
are the results already conclusive evidence of paternity?
No.
Section 9(c) of the Rule on DNA Evidence states the rule as follows:
a)
DNA results that exclude the putative parent from paternity shall be
conclusive proof of non-paternity;
b)
If the value of the Probability of Paternity is less than 99.9%, the

results of the DNA testing shall be considered as corroborative
evidence;
c)
If the value of the Probability of Paternity is 99.9% or higher, there

shall be a disputable presumption of paternity.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 30 of 59
in REMEDIAL LAW
Agranzamendez
8. What is the Doctrine of Presumed Identity Approach?
The Doctrine of Presumed Identity Approach, also known as the Doctrine of
Processual Presumption, holds that in the absence of proof, the foreign law will be
presumed to be the same as the law of the jurisdiction hearing the case. This
doctrine comes into play where a foreign law is not pleaded or, even if pleaded, is
not proved, in which event the presumption is that the foreign law is the same as
our law on the matter. (ATCI Overseas Corp. et al. v. Echin, G.R. No. 178551, Oct.
11, 2010)
9. On parental and filial privilege, Section 25, Rule 130 of the Rules
of Court, provides: No person may be compelled to testify against his
parents, other direct ascendants, children or other direct ascendants.
Does this apply to stepdaughters or those not connected by common
ancestry?
No. In Lee v. CA, 625 SCRA 66, July 13, 2010, it was pointed out that Sec. 25
was taken from Art. 315 of the Civil Code that applies only in criminal cases. But
those who revised the Rules of Court extended the prohibition to all kinds of actions,
whether civil, criminal, or administrative filed against parents and other direct
ascendants or children and other direct descendants. The privilege applies only to
direct ascendants and descendants, a family tie connected by common ancestry.
Since a stepdaughter has no common ancestry with her stepmother, one can be
compelled to testify against the other.
Take note, however, that under Art. 215 of the Family Code, a descendant
may be compelled in a criminal case to testify against his ascendant when such
testimony is indispensable in: (a) a crime committed against the descendant; (b) a
crime committed by one parent against the other.
10. What is the purpose for establishing a chain of custody?
The purpose of establishing a chain of custody is to guaranty the integrity of
the physical evidence and to prevent the introduction of evidence which is not
authentic. Since it is called chain, there must be links to the chain. The links are
the people who handled or had custody of the object. As long as one of the
chains testifies and his testimony negates the possibility of tampering and that
the integrity of the evidence is preserved, his testimony alone is adequate to prove
the chain of custody.
Chain of Custody in Drug Cases under Sec. 21, par. 1, Art. II of R.A. No. 9165:
The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice, and any elected public official who
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 31 of 59
in REMEDIAL LAW
Agranzamendez
shall be required to sign the copies of the inventory and be given a copy thereof;
Provided, further, that noncompliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and
invalid such seizures of and custody over said items.
11. What are the guidelines to be used by courts in assessing the
probative value of DNA evidence?
In People v. Vallejo, 382 SCRA 192 [2002], which involves a rape-slay of a 9year old girl, the court admitted in evidence the DNA samples of the victim which
were found on the bloodstained garments of the accused. In this case, the Supreme
Court adopted the following guidelines to be used by courts in assessing the
probative value of DNA evidence:
a)
b)
c)
d)
e)
how the samples were collected;

how they were handled;
the possibility of contamination of the samples;
the procedure followed in analyzing the samples;
whether the proper standards and procedure were followed in conducting
the tests; and
f) the qualification of the analyst who conducted the test.
In People v. Yatar, 428 SCRA 504 [2004], the SC affirmed the conviction of the
accused for rape with homicide when the test showed that a match existed between
the DNA profile of the semen found in the victim and the DNA profile of the blood
sample given by the accused. Yatar upheld the constitutionality of compulsory DNA
and rejected the contention that compulsory DNA testing violates the right of the
accused against self-incrimination.
SPECIAL PROCEEDINGS
1. Where may the estate of a deceased person be settled?
The estate of the a deceased person may be settled
a) in the province or city where he resided at the time of his death, if he was
a resident of the Philippines.
Note that under Sec. 1, Rule 73 of the Rules of Court, the estate of a
deceased person shall be settled in the Regional Trial Court of the province in
which he resides at the time of his death. As held in Garcia Fule v. CA, G.R. Nos. L40502 & L-42670, Nov. 29,1976 [74 SCRA 189], the term resides connotes actual
residence as distinguished from legal residence or domicile. In other words,
resides should be viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual residence or place of
abode.
(See
also:
San Luis v. San Luis, G.R. No. 133743 and G.R. No. 134029, Feb. 6, 2007)
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 32 of 59
in REMEDIAL LAW
Agranzamendez
b) in the province where he had estate, if he was not a resident of the
Philippines.
2. What are the two exceptions to the requirement that the estate
of a decedent be judicially administered through an administrator or
executor?
The two exceptions are:
a) if there is extrajudicial settlement among the heirs; and
b) in summary settlement of estate of small value.
3. What are the requisites of a valid extrajudicial settlement?
The following are the requisites:
a) the decedent died intestate;
b) there is no outstanding debts of the estate at the time of settlement;
c) the heirs are all of legal age; or if minors and incapacitated, they are
represented by their judicial guardians or representatives;
d) the settlement is made in a public instrument;
e) the fact of extrajudicial settlement is published in a newspaper of general
circulation once a week for three consecutive weeks.
(Note that if the case is proper for extrajudicial settlement, an heir cannot
insist on instituting administration proceedings which would be superfluous and
unnecessary. If the heirs cannot agree on the manner of partition, they may
institute an action for partition.)
If there is only one heir, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds.
4. What is the Statute of Non-Claims?
The Statute of Non-Claims is the period for the filing of claims against the
estate, which period shall not be more than 12 months nor less than 6 months after
the date of the first publication of the notice to the creditors.
Note that immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring all persons having money
claims against the decedent to file them in the office of the clerk of said court.
The following are barred forever if not filed within the time specified in the
notice to the creditors:
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 33 of 59
in REMEDIAL LAW
Agranzamendez
a) all claims for money against the decedent arising from contract, express
or implied, whether the same be due, not due, or contingent;
b) all claims for funeral expenses and expenses for the last sickness of the
decedent;
c) judgment for money against the decedent.
But though barred forever, the aforesaid claims may nonetheless be set forth
as counterclaims in any action that the executor/administrator may bring against
the claimant.
5. How may a claim be filed, and where?

A claim may be filed with the clerk of court, serving a copy thereof on the
executor/administrator.
Within
15
days
from
service
thereof,
the
executor/administrator shall file his answer, admitting or denying the claim
specifically and setting forth the substance of the matters which are relied upon to
support his admission or denial. He shall serve a copy of his answer on the
claimant.
Any claim admitted entirely by the executor/administrator shall be
immediately submitted by the clerk to the court who may approve the same without
hearing, although the court, in its discretion may notify all known heirs, legatees, or
devisees. If any heir, legatee, or devisee opposes the claim, the court may allow
him 15 days to file his answer.
Contested claim shall be set for trial, with notice to both parties. The court
may refer the claim to a commissioner. The judgment of the court approving or
disapproving the claim is appealable. Note that the appeal should be by notice of
appeal and record on appeal.
6. So it is said that the creditors claim is barred forever if not filed
within the time specified in the notice. But, does the creditor who fails to
file his claim within the time specified in the notice still have a remedy?
Yes. His remedy is to file a motion for leave to file his claim. He may file this
motion at any time during the administration proceedings provided no order of
distribution has yet been entered. The court may grant the creditor one-month
period from notice of order granting his motion to file his claim.
7. What are the remedies of a creditor holding a claim secured by a
mortgage?
a) he may waive the mortgage and claim the entire debt from the estate of
the deceased debtor-mortgagor as an ordinary claim;
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 34 of 59
in REMEDIAL LAW
Agranzamendez
b) he may foreclose the mortgage judicially and prove any deficiency as an
ordinary claim;
c) he may rely on the mortgage exclusively, foreclosing the same at any time
before it is barred by prescription without right to file a claim for any deficiency.
(Sec. 7, Rule 86; Maglague v. Planters Development Bank, G.R. No. 109472, May 18,
1999.)
8. May a probate court issue a writ of execution?
No. A probate court may not issue a writ of execution because its orders
usually refer to the adjudication of claims against the estate which the executor or
administrator may satisfy without the need of writ of execution.
But by way of exceptions, the probate court may issue a writ of execution in
the following instances:
a) to satisfy the contributive shares of devisees, legatees and heirs, who
have taken possession of decedents estate, for debts and expenses of the estate;
b) to enforce payment of expenses of partition;
c) to satisfy the costs when a person is cited for examination in probate
proceedings.
9. When may distribution of the estate be made?

It may only be made after all debts, funeral charges, expenses of
administration, allowance to the widow, and estate taxes have been paid.
It may also be made before payment of such obligations, provided the
distributees or any of them gives a bond in a sum fixed by the court conditioned
upon the payment of said obligation within such time as the court directs, or when
provision is made to meet those obligations.
10. AA, BB, CC, and DD are the heirs of XX who died on July 16,
2003. XX had three other children by his paramour. His illegitimate
children are: MM, NN, and OO. AA filed a petition for his appointment as
administrator of the estate of XX. During the pendency of the petition for
issuance of letters of administration, AA, BB, CC, and DD discovered that
MM, NN, and OO had executed an extrajudicial settlement of the estate of
XX involving a property located in Dagupan City. AA, BB, CC, and DD filed
a complaint against MM, NN, and OO for the annulment of the extrajudicial
settlement and for the recovery of the Dagupan property. Defendants
MM, NN, and OO filed a motion to dismiss on the ground that plaintiffs AA,
BB, CC, and DD are not the real parties-in-interest but rather the Estate of
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 35 of 59
in REMEDIAL LAW
Agranzamendez
XX in view of the pendency of the administration proceedings. Question:
May the heirs (AA, BB, CC, and DD) bring suit to recover property of the
estate pending the appointment of an administrator?
Yes. During the pendency of the administration proceedings, the heirs
without doubt have legal personality to bring suit in behalf of the estate of the
decedent in accordance with the provision of Article 777 of the New Civil Code that
the rights to succession are transmitted from the moment of the death of the
decedent.
Even if administration proceedings have already been commenced, the heirs
may still bring the suit if an administrator has not yet been appointed. This is the
proper modality despite the total lack of advertence to the heirs in the rules on
party representation, namely Section 3, Rule 3 and Section 2, Rule 87 of the Rules of
Court. The legal standing of the heirs to represent the rights and properties of the
decedent under administration pending the appointment of an administrator has
long been recognized. The heirs cannot be expected to wait for the appointment of
an administrator; then wait further to see if the administrator appointed would care
enough to file a suit to protect the rights and the interests of the deceased; and in
the meantime do nothing while the rights and the properties of the decedent are
violated or dissipated.
In fact, even if an administrator is already appointed, the heirs may still
institute the proper action for the recovery of a property of the estate in the
following instances: (1) if the executor or administrator is unwilling or refuses to
bring suit; and (2) when the administrator is alleged to have participated in the act
complained of and he is made a party defendant.
Thus, if the question is: What are the exceptions to the rule that the heirs
have no legal standing to sue for the recovery of property of the estate during the
pendency of the administration proceedings? Then the answer is as follows: (1) if
the executor or administrator is unwilling or refuses to bring suit; (2) when the
administrator is alleged to have participated in the act complained of and he is
made a party defendant; and (3) when no administrator has yet been appointed.
(Rioferio, et al. v. CA, et al., G.R. No. 129008, Jan. 13, 2004).
11. Betty was appointed administratrix of the estate of deceased
Jose. She submitted an inventory to the court of the real and personal
properties of the deceased. AMC, one of the creditors of the deceased,
filed a claim against the estate. Thereafter, AMC noticed that the shares
of stocks of the deceased with Ayala were not included in the inventory.
AMC then filed a motion to require Betty to explain the non-inclusion of
these shares of stocks. Betty explained that these shares of stocks had
already been transferred to other persons prior to the death of Jose. AMC
filed a motion for the examination of the supposed transferees. The trial
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 36 of 59
in REMEDIAL LAW
Agranzamendez
court denied the motion on the ground that it was merely a fishing
expedition. Is the trial court correct?
Persons, or third persons, to whom the decedents assets had been conveyed
may be cited to appear in court and examined under oath as to how they came into
possession of the decedents assets. If they refuse to appear, the court may punish
them for contempt.
The trial court has the inherent duty to see to it that the inventory lists all the
properties, rights and credits which the law requires the administrator to include in
his inventory. In compliance with this duty, the court has also the inherent power to
determine what properties, rights and credits of the deceased should be included by
the administrator in the inventory. An heir or person interested in the properties of
a deceased may call the courts attention that certain properties, rights and credits
are left out from the inventory. In such a case, it is likewise the courts duty to hear
the observations of such party. The court has the power to determine if such
observations deserve attention and if such properties belong prima facie to the
estate. However, in such proceedings the trial court has no authority to decide
whether the properties, real or personal, belong to the estate or to the persons
examined. If after such examination there is good reason to believe that the person
is keeping properties belonging to the estate, then the administrator should file an
ordinary action in court to recover the same. A separate action is necessary for
determination of ownership and recovery of possession. (Betty T. Chua, et al. v.
Absolute Management Corporation, et al., G.R. No. 144881, Oct. 16, 2003)
MULTIPLE CHOICE QUESTIONS:

Practice Test on Remedial Law: Choose the correct answer by shading the letter in
the parenthesis.
1. A civil action is commenced:
a
b
c
d
by
by
by
by
the filing of the original complaint in court;

serving the summons upon the defendant;
setting the case for pretrial;
setting the case for trial.
2. It is an action against all who might be minded to make an objection of

any sort against the right sought to be established:
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 37 of 59
in REMEDIAL LAW
Agranzamendez
a
b
c
d
accion publiciana;
action in rem;
action in personam;
action quasi in rem.
3. If a sole proprietorship files a complaint in court, the defendant may move

to dismiss the complaint on the ground that:
a
b
c
d
the
the
the
the
complaint states no cause of action;

plaintiff has no legal personality to sue;
plaintiff has no legal capacity to sue;
plaintiff is not the real party in interest.
4.
A misjoined cause of action may be severed and proceeded with
separately:
a
b
c
d
upon
upon
upon
upon
A transferee pendente lite of a property under litigation is:
a
b
c
d
6
of
of
of
of
the defendant;
the plaintiff;
both the plaintiff and the defendant;
a party or on the initiative of the court.
an indispensable party;
a necessary party;
neither an indispensable party nor a necessary party;
a proper party.
Where the husband files an action to recover a property which he claims to be part
of his exclusive property, his wife should be joined as co-plaintiff because:
a
b
c
d
motion
motion
motion
motion
she
she
she
she
is
is
is
is
an indispensable party;
a necessary party;
a pro-forma party;
a proper party.
The rule is joinder of parties is permissive. But it is compulsory when the party to
be joined is:
a an indispensable party;
b a necessary party;
c a proper party;
d a pro-forma party.
8
In petition for change of name shall be filed in:
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 38 of 59
in REMEDIAL LAW
Agranzamendez
(a) the RTC of the province or city where petitioner has been a bona fide
resident for at least three years prior to the date of the filing of the
petition;
(b) the RTC of the province or city where petitioner has been a bona fide
resident for at least one year prior to the date of the filing of the petition;
(c) the RTC of the province or city where petitioner has been a bona fide
resident for at least six months prior to the date of the filing of the
petition;
(d) the RTC of the province or city where the civil registry is located.
9. Where the venue is improperly laid, the defendant may raise the question
of improper venue:
a
b
c
d
only in a motion to dismiss;

only by pleading it as an affirmative defense in his answer;
either in a motion to dismiss or in his answer;
only as an assignment of error in his appeal.
10 One of these is not a pleading:

a
b
c
d
11
a
b
c
d
a
a
a
a
counterclaim;
cross-claim;
reply;
bill of particulars.
One of these is not required to be verified:

an action for recovery of possession of a real property;
a petition for change of name;
a petition for guardianship of a minor;
a complaint for expropriation.
12. A pleading may not allege a provision of law, except if the pleading is:
a
b
c
d
13
a complaint;
an answer;
a reply;
a motion to dismiss.
A defendant declared in default may appeal from:
a
b
c
d
the
the
the
the
order declaring him in default;

order denying his motion to set aside order of default;
judgment rendered against him in default;
order denying his motion for new trial.
14 A defendant declared in default:
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 39 of 59
in REMEDIAL LAW
Agranzamendez
a
b
c
d
cannot take part at the trial and is not entitled to notice of subsequent
proceedings;
can take part at the trial, although he is not entitled to notice of
subsequent proceedings;
cannot take part at the trial, but is entitled to notice of subsequent
proceedings;
can take part at the trial and is entitled to notice of subsequent
proceedings.
15 An amended pleading:
a
b
c
d
supersedes the pleading that it amends;

supplements the pleading that it amends;
becomes part of the pleading that it amends;
is superseded by the pleading that it amends.
16 Answer to a permissive counterclaim must be filed:

a
b
c
d
within
within
within
within
15
10
15
10
days
days
days
days
from
from
from
from
service
service
service
service
of
of
of
of
summons;
summons;
the answer containing the counterclaim;
the answer containing the counterclaim.
17. Where the whereabouts of the defendant are unknown, summons upon
him may be served:
a
b
c
d
by substituted service;
in any other manner the court may deem sufficient;
by publication, if the action is an action in rem or quasi in rem;
by publication, in any action.
18. If the defendant is the Republic of the Philippines, service of summons

may be effected on the:M
a
b
c
d
Solicitor General;
Ombudsman;
Executive Secretary;
President.
19 Deposition pending action is also known as:

a
b
c
d
deposition
deposition
deposition
deposition
de bene esse;
in perpetuan memoriam;
upon oral examination;
upon written interrogatories.
20. An instrument sent in the name and by the authority of a judge or court
to another, requesting the latter to cause to be examined, upon interrogatories filed
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 40 of 59
in REMEDIAL LAW
Agranzamendez
in a cause pending before the former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed is called:
a
b
c
d
commission;
written interrogatories;
request for admission;
letters rogatory.
21. It may be filed by the defendant after the plaintiff has completed the
presentation of his evidence on the ground of insufficiency of evidence:
a
b
c
d
demurrer to evidence;
motion for leave to file demurrer to evidence;
motion for judgment on the pleadings;
motion for summary judgment.
22 Plaintiff may move for judgment on the pleadings:

a
b
c
d
before defendant files his answer;

after defendant has filed his answer;
after plaintiff has rested his case;
after defendant has been declared in default.
23. If a new trial is granted, the original judgment or final order is:
a
b
c
d
stayed;
vacated;
nullified;
executed.
24. If an appeal is dismissed for having been filed out of time, but the
appellant can show that he was prevented from perfecting his appeal on time by
fraud, accident, mistake, or excusable negligence, his remedy is:
a
b
c
d
file
file
file
file
a
a
a
a
motion for reconsideration of the order dismissing his appeal

petition for relief;
petition for certiorari;
petition for mandamus.
25 A judgment that has become final may be enforced by motion:

a
b
c
d
within five years from entry of judgment;

within ten years from entry of judgment;
after five years but within ten years from entry of judgment;
within five years from rendition of judgment.
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 41 of 59
in REMEDIAL LAW
Agranzamendez
26. A partys appeal by notice of appeal is deemed perfected as to him upon
the:
a
b
c
d
filing of the notice of appeal and record on appeal in due time;

filing of the notice of appeal in due time;
filing of the record on appeal in due time;
approval of the record on appeal filed in due time.
27. Appeal from the judgment of the Regional Trial Court rendered by it in
the exercise of its appellate jurisdiction should be brought to the Court of Appeals:
a
b
c
d
by
by
by
by
notice of appeal;
petition for review on certiorari;
petition for review under Rule 42;
petition for review under Rule 43.
28. If the appeal is brought to the Court of Appeals by notice of appeal filed
with the Regional Trial Court, the appellant may withdraw his appeal:
a
b
c
d
as a matter of right, after appellees brief has been filed;

as a matter of right, before the filing of appellees brief;
in the discretion of the court, before the filing of appellees brief;
in the discretion of the court, before the filing of appellants brief.
29. The plaintiff or any proper party may apply for the issuance of a writ of
preliminary attachment at the commencement of the action or at any time:
a
b
c
d
after entry of judgment;

before entry of judgment;
after finality of judgment;
before finality of judgment.
30. The prior or contemporaneous rule shall not apply where the action is:
a
b
c
d
31
a
b
c
an action in rem or quasi in rem;

an action in personam;
a real action;
a personal action.
The lifetime of a temporary restraining order, if issued by the RTC or
MTC, is:
20 days from service thereof on the party sought to be enjoined;
20 days from its issuance;
20 days from service thereof on the applicant;
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 42 of 59
in REMEDIAL LAW
Agranzamendez
d
32
An application for the issuance of a writ of replevin should be filed:

a
b
c
d
33
at the commencement of the action or at any time before entry of

judgment;
at the commence of the action;
at the commencement of the action or at any time before pretrial;
at the commencement of the action or any time before defendant files his
answer.
A writ of replevin, whether issued by the RTC or the MTC, is enforceable:

a
b
c
d
only within its territorial jurisdiction;

only within the province or city where such court is sitting;
only within the judicial region where such court is located;
anywhere in the Philippines.
34
An application for support pendent elite may be filed:
a
b
c
d
35
30 days from service thereof on the party sought to be enjoined.
at the commencement of the proper action or at any time prior the

judgment or final order;
at the commencement of the proper action or at any time prior entry of
judgment or final order;
at the commencement of the proper action or at any time before
defendant files his answer;
at the commencement of the proper action or at any time prior start of
trial.
One of these may be amended or modified notwithstanding its finality:

(a) judgment in an action for support;
(b) judgment in an action for legal separation;
(c) judgment in an action for annulment of marriage;
(d) judgment in an action for declaration of nullity of marriage.
36. The nature of the crime charged in the complaint or information is
determined by the:
a
b
c
title thereof
provisions of the law alleged to have been violated
facts alleged therein
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 43 of 59
in REMEDIAL LAW
Agranzamendez
d
designation made by prosecution
37. Section 2 of Rule 110 provides that the complaint or information shall be
x x x against all persons who appear to be responsible for the offense involved.
But, as an exception, a person who appears to be responsible for the offense
committed may be excluded from the complaint or information if:
a
b
c
d
that person is admitted into the witness protection program

that person has been discharged, on motion of the prosecution, to be
utilized as a state witness
there is no sufficient evidence against that person
prosecuting that person is a waste of time
38. An information is an accusation in writing charging a person with an

offense and subscribed by the:
a
b
c
d
offended party
prosecutor
any peace officer
judge
39. A complaint or information must charge only one offense. But, as an

exception, it may charge more than one offense:
a
b
c
d
when the law so provides to avoid multiplicity of suits

when the law prescribes a single punishment for various offenses
when the court allows it in the exercise of its discretion
when the prosecutor deems it proper to charge two or more offenses to
protect the interest of the state
40. An information that charges two or more offenses may be referred to as:
a
b
c
d
onerous information
duplicitous information
insufficient information
vague information
41. A complaint or information may be amended in form or substance,

without leave of court, at any time:
a
b
c
d
after the accused has entered his plea

before the accused enters his plea
after the accused has been arrested
before the accused is arrested
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 44 of 59
in REMEDIAL LAW
Agranzamendez
42. After the accused has pleaded to the charge, the complaint or information
may be amended where such amendment is required by supervening fact, provided:
a
b
c
d
leave of court is granted

the offended party consents to the amendment
the right of the accused to speedy trial is not violated
the accused consents to the amendment
43. In a plea bargaining, the trial court may allow the accused to plead guilty
to a lesser offense without the consent of the private offended party if the offended
party:
a
b
c
refuses to give his consent without justifiable cause

cannot be notified of the date of the arraignment because his
whereabouts are unknown
fails to appear at the arraignment despite due notice to him
(d) is already dead or lives more than 100 kilometers from the place of
trial
44. If, before arraignment, the prosecution wants to amend the Information
from murder to homicide, its remedy is to:
a
b
c
d
file a motion for leave to amend, with notice to the offended party, and if
leave is granted, file an amended information for homicide
file an amended information charging the accused with homicide
withdraw the information, and file a new information for homicide
file a motion to dismiss the case
45. In criminal cases venue is jurisdictional. Thus, an information for bigamy

must be filed in the Regional Trial Court of the place:
a
b
c
d
46.
action:
a
b
c
where the second marriage was contracted

where the first married was contracted
where the parties to the second marriage have set up their conjugal
dwelling
where the first marriage was contracted or where the second marriage
was contracted at the election of the prosecution
The offended party may reserve his right to institute a separate civil
at any time before the prosecution starts presenting its evidence

at any time before the prosecution starts presenting its evidence and under
circumstances affording the offended party a reasonable opportunity to make
such reservation
at any time before the prosecution rests its case
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 45 of 59
in REMEDIAL LAW
Agranzamendez
d
at any time before the prosecution rests its case and under circumstances affording
the offended party a reasonable opportunity to make such reservation
47. After the accused had pleaded guilty to the charge of reckless
imprudence resulting into homicide, the court issued an order declaring the case
deemed submitted for decision notwithstanding the motion of the offended party to
be allowed to present evidence on the civil liability of the accused. The offended
party may assail the order of the court on the ground that it is error for the court not
to allow the offended party to prove the civil liability of the accused:
a
because the civil action to recover civil liability arising from the offense
charged is deemed instituted in the criminal action
because the civil liability of the accused is implied from his plea of guilty
because the plea of guilty already determines the civil liability of the
accused
because the plea of guilty applies only to the criminal aspect of the case
b
c
d
48. A civil action based on quasi delict may be filed by the offended party
even if he does not reserve his right to file it separately because such civil action is:
a
b
c
d
a separate civil action

an independent civil action
a prejudicial question
deemed instituted in the criminal action
49. An accused who is acquitted may still be adjudged civilly liable, except:
(a) if the acquittal is based on reasonable doubt
(b) if the court declares in its judgment that the liability of the accused is
only civil
(c) if the civil liability of the accused does not arise from or is not based
upon the crime of which he is acquitted
(d) if the civil action is based on the delict and there is a finding in the
final judgment in the criminal action that the act or omission from which
the civil liability may arise did
not exist
50. If a final judgment is rendered in a civil action and the judgment absolves
the defendant from civil liability, such judgment:
a
b
c
d
bars the filing of a criminal action against the same defendant for the
same act or omission subject of the civil action
does not bar the filing of a criminal action against the same defendant
for the same act or omission subject of the civil action
extinguishes the criminal liability of the same defendant for the same
act or omission subject of the civil action
conclusively proves that the same defendant is not liable for the same
act or omission subject of the civil action
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 46 of 59
in REMEDIAL LAW
Agranzamendez
51. The existence of a prejudicial question may be invoked to:
a
b
c
d
dismiss a criminal action

dismiss a civil action
suspend a criminal action
suspend a civil action
52. Preliminary
imprisonment of:
a
b
c
d
investigation
is
required
for
offenses
punishable
by
less than 4 years, 2 months, and 1 day

at least 4 years, 2 months, and 1 day
more than 4 years, 2 months, and 1 day
not more than 4 years, 2 months, and 1 day
53. The accused may waive his right to preliminary investigation. But where
the accused asserts his right to preliminary investigation, to deny him that right
amounts to a denial of due process because the right to preliminary investigation is
a:
a
b
c
d
constitutional right
statutory right
substantive right
natural right
54. Preliminary investigation may be conducted ex parte if the respondent

cannot be served with:
a subpoena
b prosecutors resolution
c writ of execution
d summons
55. The right to preliminary investigation may be waived by not asserting it:
(a) before arraignment and plea
(b) before pretrial
(c) in a motion to quash before trial
(d) in a motion to quash before pretrial
56. An accused validly arrested without warrant for an offense requiring
preliminary investigation and charged in court without preliminary investigation
having been first conducted may ask for a preliminary investigation:
a
b
c
d
within 5 days from the time he learns of the filing of the information
against him
within 5 days from the time of the filing of the information against him
within 10 days from the time he learns of the filing of the information
against him
within 10 days from the time of the filing of the information against him
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 47 of 59
in REMEDIAL LAW
Agranzamendez
57. An information filed in court without the prior written approval of the
provincial or city prosecutor or chief state prosecutor or the ombudsman or his
deputy is:
a
b
c
d
void
voidable
valid
defective but valid
58. A warrant of arrest is valid and shall remain in force:

a
b
c
d
for a period of ten days from date of its issuance

for a period of 15 days from date of its issuance
for a period of 30 days from date of its issuance
until it is executed
59. Within ten days from the filing of the information, the judge of the
Regional Trial Court shall issue a warrant of arrest if he finds probable cause after:
a
personally examining the resolution of the prosecutor and its supporting

evidence
personally evaluating the complainant and his witnesses by means of
searching questions and answers
personally examining the complainant and his witnesses in writing and
under oath by means of searching questions and answers
personally evaluating the resolution of the prosecutor and its supporting
evidence
b
c
d
60. X filed a complaint with the NBI alleging that Y, who is a barangay
captain, kidnapped and detained Xs husband on June 19, 2010. The NBI directed Y
to appear before it on June 26, 2010 to answer the charge of kidnapping. When Y
appeared at the NBI on June 26, 2010, he was arrested and detained. On June 27,
2010, the NBI submitted its investigation report to the Office of the City Prosecutor.
That same day, Prosecutor Z conducted an inquest. On June 28, 2010, an
Information was filed with the RTC, charging Y with kidnapping. The inquest is not
proper in this case because:
a
b
c
d
only the police may conduct an inquest

the NBI has already conducted its own investigation
the arrest of the accused in this case was unlawful, and an inquest may
only be conducted by the prosecutor if the accused has been lawfully
arrested without warrant
an inquest may only be conducted by the police if the accused has
been lawfully arrested without warrant
61. If a person is arrested and detained and no case has yet been filed in
court against him, he may question the legality of his arrest and detention by filing:
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 48 of 59
in REMEDIAL LAW
Agranzamendez
a
b
c
d
a
a
a
a
petition for habeas corpus

motion to quash before he enters a plea
petition for writ of amparo
petition for habeas data
62. Bail shall be effective upon its approval, and unless cancelled, shall
remain in force at all stages of the case:
a
b
c
d
until promulgation of judgment by the Regional Trial Court

originally filed in it
appealed to it
before promulgation of judgment by the Regional Trial Court
originally filed in or appealed to it
originally filed in or appealed to it
in a case
in a case
in a case
in a case
63. One of the conditions of bail is that the accused shall appear before the
court:
a
b
c
d
at all stages of the proceedings

only during trial
whenever required by the court or by the Rules of Court
whenever required for the purpose of perfecting his appeal
64. Where the grant of bail is a matter of discretion, the application for bail
may be filed:
a
b
c
d
only
only
only
only
in
in
in
in
the
the
the
the
court
court
court
court
of the city or municipality where he was arrested

of the city or municipality where he is being held
where the case is pending whether on trial or appeal
where he was arraigned
65. The accused is charged with maltreatment, a light felony. At the

arraignment the accused was absent despite notice, but his counsel manifested that
he had already explained to the accused the nature and cause of the accusation
against him. He then moved that a plea of not guilty be entered for the accused.
The court allowed it. This plea is:
a
b
c
d
valid, because where the accused is charged with a light offense, his
counsel may enter a plea of not guilty for him
valid, because the court allowed it
void, because there is no showing that the accused understood the
consequences of his plea of guilty
void, because the accused must be present at the arraignment and
must personally enter his plea
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 49 of 59
in REMEDIAL LAW
Agranzamendez
66. At his arraignment for homicide, the accused pleaded guilty. Upon
motion, he was allowed by the court to prove the mitigating circumstance of
incomplete self-defense. But the evidence he has presented proved complete selfdefense. If the court renders a judgment of acquittal, such a judgment is:
a
b
c
d
void, because the plea of guilty entered by the accused is a full admission
of his culpability
void, because the court erred in allowing him to prove the justifying
circumstance of self-defense
valid, provided he told the truth in court
valid, provided his plea of guilty is considered withdrawn and a plea of not
guilty entered for him
67. The discovery proceedings allowed by Sections 9 and 10 of Rule 116 are
applicable only:
a
b
c
d
during preliminary investigation

after the filing of the information in court
after pretrial
after trial
68. If a complaint is filed in the municipal trial court for an offense not
requiring preliminary investigation and the judge finds probable cause, but there is
no necessity of placing the accused under immediate custody, the judge may issue
to the accused:
a
b
c
d
summons
subpoena
warrant of arrest
order to answer the charge
69. Accused, with leave of court, filed a demurrer to evidence. But his
demurrer is denied by the court. His remedy is:
a
b
c
d
to
to
to
to
file a motion for the inhibition of the judge

enter a plea and go to trial
present rebuttal evidence
appeal from the order denying his motion to quash
70. The requirement that agreements or admissions made by the accused

shall be reduced in writing and signed by him and his counsel applies only to those
agreements or admissions made during the:
a
b
c
d
preliminary investigation
arraignment
pretrial
trial
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 50 of 59
in REMEDIAL LAW
Agranzamendez
71. An appeal from a judgment of the Regional Trial Court rendered by it in
the exercise of its exclusive original jurisdiction where the appellant raises questions
of fact is by:
a
b
c
(d)
notice of appeal
petition for review
petition for review on certiorari
petition for certiorari
72. An appeal from a judgment of the Regional Trial Court rendered by it in

the exercise of its appellate jurisdiction where the appellant raises pure questions of
law is by:
a notice of appeal
b petition for review
c petition for review on certiorari
(d) petition for certiorari
73. Bail may be cancelled upon application of the bondsman, but with due
notice to the prosecutor upon:
a
b
c
d
proof of death of the accused

acquittal of the accused
dismissal of the case
execution of the judgment of conviction
74. The remedy of the accused if the allegations in the Information are vague
is:
a
b
c
d
to
to
to
to
file
file
file
file
a
a
a
a
bill of particulars before arraignment

motion for a bill of particulars before arraignment
motion for a bill of particulars after arraignment
bill of particulars after arraignment
75. The accused must be arraigned before the court where the complaint or
information has been filed or assigned for:
a
b
c
d
preliminary investigation
trial
promulgation of judgment
reinvestigation
76. The arraignment of the accused may be suspended when:

a
b
c
d
there exists an incidental question

there exists a prejudicial question
the accused refuses to enter a plea
the accused enters a conditional plea of guilty
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 51 of 59
in REMEDIAL LAW
Agranzamendez
77. If the court grants the motion to quash filed by the accused on the
ground of lack of jurisdiction over the offense, the remedy of the prosecution is to:
a
b
c
d
refile the case in the court of proper jurisdiction

refile the case in the court of proper venue
amend the information so as to bring the offense within the jurisdiction of
the court
withdraw the information
78. A provisional dismissal should be with the:

a
b
c
d
express consent of the offended party

express consent of the accused
consent of the accused
consent of both the offended party and the accused
79. If the offense is punishable by imprisonment of not exceeding six years,

a provisional dismissal thereof becomes permanent:
a
b
c
d
one year after issuance of the order of dismissal without the case having
been revived
two years after issuance of the order of dismissal without the case having
been revived
six months after issuance of the order of dismissal without the case
having been revived
one month after issuance of the order of dismissal without the case
having been revived
80. If the offense is punishable by a fine of any amount, a provisional

dismissal thereof becomes permanent:
a
b
c
d
one year after issuance of the order of dismissal without the case having
been revived
two years after issuance of the order of dismissal without the case having
been revived
six months after issuance of the order of dismissal without the case
having been revived
one month after issuance of the order of dismissal without the case having
been revived
81. Among the things to be considered at the pretrial of criminal cases is:
a
b
c
d
amicable settlement
stipulation of facts
reference of the issues to a commissioner
amendment of the complaint or information
82. After having bargained for a lesser penalty, the accused pleaded guilty to
the charge set forth in the information. This plea of guilty is:
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 52 of 59
in REMEDIAL LAW
Agranzamendez
a
b
c
d
valid although it is a conditional plea of guilty

void because it is a conditional plea of guilty
valid because the accused himself entered his plea
void because the accused should always enter a plea of not guilty
83. At the hearing on the motion for the discharge of an accused to be

utilized as a state witness, his sworn statement shall be presented by the
prosecution as evidence. At the trial the sworn statement of the witness shall be
inadmissible in evidence if the court:
a
b
c
d
grants the motion

denies the motion
defers hearing on the motion
fails to act on the motion
84. The order of the court discharging an accused to be utilized as a state

witness amounts to:
a
b
c
d
an acquittal of the discharged accused

an adjudication of the case on its merits
an acquittal of all the accused
dismissal of the case
85. The proceedings in a criminal case may be reopened to avoid a

miscarriage of justice
a
b
c
d
after finality of the judgment of conviction

before finality of the judgment of conviction
before rendition of judgment
after the case is submitted for decision
86. The accused who files a demurrer to evidence does not waive his right to
present evidence in the event his demurrer is denied if he filed his demurrer:
a
b
c
d
with prior leave of court

with prior notice to the prosecution
with the consent of the offended party
after filing with the court a motion for leave to file demurrer to evidence
87. If there are several accused, and the prosecutor has no direct evidence
available for the proper prosecution of the offense committed, the remedy of the
prosecution is:
a
to move for the dismissal of the case with the express consent of the all
the accused
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 53 of 59
in REMEDIAL LAW
Agranzamendez
b
c
d
to exclude one or some of the accused by amending the information with

leave of court and utilized the excluded accused as witnesses against the
remaining accused
to withdraw the information and refile it as soon as a witness becomes
available
to move for the discharge of one or some of the accused to be utilized as
state witnesses
88. If the accused has been detained for a period equal to or more than the
maximum of the imposable penalty, he:
a
b
c
d
may be released on recognizance

may be released on bail
should be released immediately without bail or recognizance, unless there
are other valid causes for his further detention
should be released immediately if there is already a finding by the court
that he is not guilty
89. If the accused fails to appear at the promulgation of judgment despite

due notice to him, the judgment:
(a) cannot be promulgated
(b) shall be promulgated by reading it to his counsel who may be
required to stand in lieu of the accused, just like in the movies
(c) shall be promulgated by recording it in the criminal docket and
furnishing the prosecution with a copy thereof
(d) shall be promulgated by recording it in the criminal docket and
furnishing the accused with a copy thereof through his counsel or at his
last known address
90. The accused was convicted of homicide in the judgment promulgated by
the RTC on October 4, 2010. The judgment was promulgated in his absence
because he failed to appear at the promulgation notwithstanding due notice to him.
He received a copy of the judgment through his counsel on October 5. His remedy
is:
a
b
c
d
he must surrender himself and file a motion for leave to avail of the
remedies on or before October 19, 2010
he must file a notice of appeal on or before October 19, 2010
he must surrender himself and file a motion for leave to avail of the
remedies on or before October 20, 2010
he must file a motion for reconsideration on or before October 20, 2010
91. The rule that ordains that the rights of a party cannot be prejudiced by
an act, declaration, or omission of another is referred to as:
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 54 of 59
in REMEDIAL LAW
Agranzamendez
a
b
c
d
res
res
res
res
inter alios acta rule

ipsa loquitor
gestae
nova
92. DNA results that exclude the putative parent from paternity shall be
conclusive proof of non-paternity. But If the value of the probability of paternity is
99.9% or higher, the presumption of paternity is:
(a) conclusive
b disputable
c quasi-conclusive
d semi-conclusive
93. The best evidence rule is the rule requiring the presentation of the
original document itself when the subject of inquiry is the:
(a) existence of the said document
(b) contents of said document
(c) condition of the said document
(d) value of the said document
94. The Dead Mans Statute is applicable if the case is upon a claim or
demand against the estate of a person who is deceased:
(a) provided he died after the suit against him is filed
(b) provided he died before the suit against him is filed, but he is already
dead at the time the testimony is given
(c) whether he died before or after the suit against him is filed
(d) whether he died before or after the suit against him is filed, provided
he is already dead at the time the testimony is give
95.
The attorney-client privilege may be invoked with respect to a
confidential communication between attorney and client if such communication is
made:
a
b
c
d
during a professional employment

during and after professional employment
prior to professional employment
in the course of, or with a view to, professional employment.
96.The physician-patient privilege may be invoked:

a
b
c
d
in all cases where the patient is a party

only in a criminal case where the patient is a party
only in a civil case whether the patient is a party or not
in all cases whether the patient is a party or not
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 55 of 59
in REMEDIAL LAW
Agranzamendez
97. Under the Rule on Examination of Child Witness, the court may allow
leading questions:
a
b
c
d
in all stages of examination of the child witness

only during cross examination of the child witness
only during direct examination of the child witness
during both cross examination and direct examination of the child witness
98. Upon his counsels request, the plaintiff testified in narrative form. The
defense objects to this of manner of giving testimony. Rule on the objection.
(a) Objection sustained. Witness must testify in answer and question form
(b) Objection sustained. Witness may testify in any manner he finds
convenient provided he tells the truth
(c) Objection overruled. It is within the discretion of the judge to direct a
witness to testify in question-and-answer form, or allow him to testify in a
narrative form
(d) Objection overruled. It is within the discretion of the examining counsel to
direct his witness to answer in question-and-answer form or in a narrative
form.
99. The prosecution may prove the bad moral character of the accused:
a
b
c
d
during presentation of its evidence in chief if it is pertinent to the moral

trait involved in the offense charged
during presentation of its evidence in chief regardless of whether or not it
is pertinent to the moral trait involved in the offense charged
only in rebuttal regardless of whether or not it is pertinent to the moral
trait involved in the offense charged
only in rebuttal if it is pertinent to the moral trait involved in the offense
charged.
100. If the accused admits the killing but invokes self-defense, the evidence
required of the accused to establish this justifying circumstance is:
(a) preponderance of evidence
(b) proof beyond reasonable doubt
(c) substantial evidence
(d) clear and convincing evidence
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 56 of 59
in REMEDIAL LAW
Agranzamendez
Answers:
1 a
2 b
3 c
4 d
5 b
6 c
7 a
8 a
9 c
10 d
11 a
12 b
13 c
14 c
15 a
16 d
17 d
18 a
19 a
20 d
21 a
22 b
23 b
24 b
25 a
26 b
27 c
28 b
29 b
30 a
31 a
32 d
33 d
34 a
35 a
36 c
37 a
38 b
39 b
40 b
41 b
42 a
43 c
44 a
45 a
46 b
47 a
48 b
49 d
50 b
51 c
52 b
53 c
54 a
55 a
56 a
57 a
58 d
59 d
60 c
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 57 of 59
in REMEDIAL LAW
Agranzamendez
61 a
62 d
63 c
64 c
65 d
66 d
67 b
68 a
69 b
70 c
71 a
72 b
73 a
74 b
101
75 b
76 b
77 a
78 b
79 a
80 a
81 b
82 b
83 b
84 a
85 b
86 a
87 d
88 c
89 d
90 a
91 a
92 b
93 b
94 d
95 d
96 c
97 a
98 c
99 d
100
d
BAR OPERATIONS
2013
I press
3:14
BARRISTERS CLUB
Page 58 of 59
102
103
104
105
106
107
108
109
110
111
THE BARRISTERS
CLUB OFFICERS
C
h
V
i
S
e
T
r
P
R
P
R
B
u
B
u
S
S
E
x
A
d
D
e
4
6
8
10
12
14
16
18
20
22
24
3
5
7
9
11
13
15
17
19
21
23
25
ABBYGAILE T.
GONZALES
ROMEL L.
BASILAN
JESSA ALYSSA
G. REYES
MILDRED P.
AMBROS
ROBYN B. DELA
PENA
AARON JAMES
E. CO
RUDDY ALLEN
N. YEE
LESLIE D.
RAGUINDIN
ANNE LUCILLE
B. RUIZ
RONA B.
ESTRADA
ATTY. ISAGANI
G. CALDERON
ATTY.
REYNALDO U.

Questions & Answers in Remedial Law

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Questions & Answers in Remedial Law

Caricato da

Copyright:

Formati disponibili

in REMEDIAL LAW

Prepared by: Dean Reynaldo U.

QUESTIONS & ANSWERS IN REMEDIAL LAW

there has been a deprivation of a constitutional right

When there is a prejudicial question which is sub judice;

4) When the acts of the officer are without or in excess of authority;

When double jeopardy is clearly apparent;

When the court has no jurisdiction over the offense;

When it is a case of persecution rather than prosecution;

If the value of the Probability of Paternity is less than 99.9%, the

If the value of the Probability of Paternity is 99.9% or higher, there

how the samples were collected;

5. How may a claim be filed, and where?

9. When may distribution of the estate be made?

MULTIPLE CHOICE QUESTIONS:

the filing of the original complaint in court;

2. It is an action against all who might be minded to make an objection of

3. If a sole proprietorship files a complaint in court, the defendant may move

complaint states no cause of action;

A transferee pendente lite of a property under litigation is:

In petition for change of name shall be filed in:

only in a motion to dismiss;

10 One of these is not a pleading:

One of these is not required to be verified:

order declaring him in default;

14 A defendant declared in default:

supersedes the pleading that it amends;

16 Answer to a permissive counterclaim must be filed:

18. If the defendant is the Republic of the Philippines, service of summons

19 Deposition pending action is also known as:

22 Plaintiff may move for judgment on the pleadings:

before defendant files his answer;

motion for reconsideration of the order dismissing his appeal

25 A judgment that has become final may be enforced by motion:

within five years from entry of judgment;

filing of the notice of appeal and record on appeal in due time;

as a matter of right, after appellees brief has been filed;

after entry of judgment;

an action in rem or quasi in rem;

An application for the issuance of a writ of replevin should be filed:

at the commencement of the action or at any time before entry of

A writ of replevin, whether issued by the RTC or the MTC, is enforceable:

only within its territorial jurisdiction;

An application for support pendent elite may be filed:

30 days from service thereof on the party sought to be enjoined.

at the commencement of the proper action or at any time prior the

One of these may be amended or modified notwithstanding its finality:

designation made by prosecution

that person is admitted into the witness protection program

38. An information is an accusation in writing charging a person with an

39. A complaint or information must charge only one offense. But, as an

when the law so provides to avoid multiplicity of suits

41. A complaint or information may be amended in form or substance,

after the accused has entered his plea

leave of court is granted

refuses to give his consent without justifiable cause

45. In criminal cases venue is jurisdictional. Thus, an information for bigamy

where the second marriage was contracted

at any time before the prosecution starts presenting its evidence

a separate civil action

dismiss a criminal action

less than 4 years, 2 months, and 1 day

54. Preliminary investigation may be conducted ex parte if the respondent