AUSL LMT Remedial Law

Arellano University School of
Law Center for Legal Education and Research
2019 BAR OPERATIONS COMMISSION

LAST MINUTE TIPS DRAFT
REMEDIAL LAW
GENERAL PRINCIPLES
1. State the Doctrine of Non-Interference or Judicial Stability.
No court can interfere by injunction with the judgments or orders of another court of concurrent
jurisdiction. (Del Rosario vs. Ocampo-Ferrer, G.R. No. 215348, June 20, 2016, J. Perlas-Bernabe)
2. What is the Principle of Hierarchy of Courts?
This principle requires that recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court. (Osmeña vs. Abaya, G.R. No. G.R. No. 211737, January 13, 2016)
JURISDICTION
3. Discuss the following concepts in Jurisdiction.
a) Original Jurisdiction – power to take cognizance of a case for the first time under the conditions
provided by law.
b) Appellate Jurisdiction – authority of a court higher in rank to re-examine the final order or
judgment of a lower court.
c) Concurrent or Coordinate Jurisdiction - power conferred upon two (2) or more courts of
different levels to exercise original jurisdiction over a particular case.
d) Exclusive Jurisdiction – power to adjudicate a case or proceeding to the exclusion of all other
courts.
e) General Jurisdiction – power to adjudicate all controversies except those expressly withheld.
f) Special Jurisdiction – restricts the court’s jurisdiction only to particular cases.
g) Expanded/Extended Jurisdiction – the authority of the court, in aid of its appellate jurisdiction,
to control all auxiliary and incidental matters necessary to the efficient and proper exercise of that
jurisdiction. (City of Manila vs. Judge Cuerdo, G.R. No. 175723, February 4, 2014)
h) Equity Jurisdiction – aims to provide complete justice in cases where a court of law is unable to
adapt its judgments to the special circumstances of a case because of a resulting legal inflexibiity
when the law is applied to a given situation. (Regulus Inc. vs. Dela Cruz, G.R. No. 198172, January 25, 2016)
i) Continuity of Jurisdiction/Adherence to Jurisdiction – once a court has acquired jurisdiction,

that jurisdiction continues until the court has done all that it can do in the exercise of that
jurisdiction.
j) Delegated Jurisdiction – authority of an MTC to hear and determine cadastral or land

registration cases covering lots where there is no controversy or opposition, or in case of
contested lots, the value of which does not exceed Php100,000.
k) Limited Jurisdiction – power of the court limited to particular cases, as may be provided by the
governing laws.
l) Primary Jurisdiction – (1) Authority of the administrative bodies to take cognizance of certain
cases before they can be filed with the regular courts; and (2) All cases cognizable by the
Sandiganbayan in the exercise of its original jurisdiction must be investigated by the Office of the
Ombudsman in the exercise of its primary jurisdiction. (De Lima v. Guerrero, G.R. No. 229781, October 10,
2017)
4. What is the remedy against a final and executory judgment in small claims cases?
Petition for Certiorari under Rule 65. The extraordinary writ of certiorari is always available where
there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. (A.L.
Ang Network, Inc. vs. Mondejar, G.R. No. 200804, January 22, 2014, J. Perlas-Bernabe).
Note: The remedy of certiorari is not available against interlocutory orders.
arellano C|L|E|A|R 1
5. Distinguish Jurisdiction from Venue.
JURISDICTION VENUE
The authority to hear and determine a case. The place where the case is to be heard.
A matter of substantive law. A matter of procedural law.
Cannot be waived. Waivable.
Establishes a relation between the court and the Establishes a relation between plaintiff and defendant,
subject matter. or petitioner and respondent.
Fixed by law and it cannot be conferred by the May be conferred by the act or agreement of the
parties. parties. (Riano, Civil Procedure Vol. I, 2014)
6. Determine which court has jurisdiction over the following actions:
a) An action for cancellation of title and reversion where the assessed value of the property
located in Laguna is P25,000.
Regional Trial Court. The action belongs to the class of cases that “involve the title to, or
possession of, real property, or any interest therein”. Thus, since the assessed value of the
property located outside Metro Manila exceeds P20,000, the action falls under the jurisdiction of
the RTC. (Republic vs. Roman Catholic Bishop of Manila, G.R. No. 192975, Nov. 12, 2012, J. Perlas-Bernabe)
b) A complaint involving an intra-corporate controversy.
Regional Trial Court designated as Special Commercial Court. (Dee vs. Harvest All Investment, Ltd., G.R.
224834 and 224871, March 15, 2017, J. Perlas-Bernabe)
c) An action for foreclosure of mortgage where the mortgaged property’s assessed value is
P17,000.
Municipal Trial Court. As an action for foreclosure of mortgage is a real action, it is the assessed
value of the property which determines the court's jurisdiction. (Roldan vs. Barrios, G.R. No. 214803, April
23, 2018)
7. Kath’s Petition for Issuance of a Temporary Protection Order (TPO) against her husband, Jay,
was raffled before the Family Court of Manila. Jay, however, assailed the constitutionality of
R.A. No. 9262 on the ground that it violates the equal protection clause.
a) Considering that the Family Court is a court of limited jurisdiction, may it rule on the
constitutionality of R.A. No. 9262?
Yes. Family Courts are of the same level as the Regional Trial Courts. In spite of such
designation, RTCs remain possessed of authority as a court of general original jurisdiction. (Garcia
vs. Drilon, G.R. No. 179267, June 25, 2013, J. Perlas-Bernabe)
b) Can the Court of Appeals issue a Temporary Restraining Order against a TPO issued by
the Family Court in cases involving R.A. No. 9262?
No. The filing of a petition for certiorari, mandamus or prohibition against any interlocutory order
issued by the trial court is expressly disallowed. Hence, a 60-day TRO cannot be issued by the
appellate court because it will hinder the case from taking its normal course in an expeditious and
summary manner. (Garcia vs. Drilon, G.R. No. 179267, June 25, 2013, J. Perlas-Bernabe)
8. Distinguish Residual Jurisdiction from Residual Prerogatives.
RESIDUAL JURISDICTION RESIDUAL PREROGATIVE

Available at a stage in which the court is normally deemed to have lost Authority of the appellate court to
jurisdiction over the case or the subject matter involved in the appeal dismiss a case based on instances
where the trial court can (a) issue protective orders; (b) approve wherein the court may dismiss a
compromises; (c) permit appeals of indigent litigants; (d) order case motu proprio. (Katon v.
execution pending appeal, and (e) allow the withdrawal of the appeal. Palanca, G.R. 1511149, September 7,
2004)
9. What are the grounds wherein the court may dismiss a case motu propio.
a) Lack of jurisdiction;
b) Res Judicata;
c) Litis Pendentia;
d) Prescription;
e) Failure of the plaintiff to appear on the date of the presentation of his evidence in chief for a
reasonable period of time;
f) Failure of the plaintiff to prosecute his action for an unreasonable length of time;
g) Failure of the plaintiff to comply with an order of the court; and
h) Rules on Summary Procedure.
10. Bong filed a Petition for Certiorari under Rule 65 before the Court of Appeals to nullify the
preventive suspension order against him. The Ombudsman contends that the Court of
Appeals has no jurisdiction over the petition because Sec. 14 of R.A. No. 6770 provides that
the decisions or findings of the Ombudsman can only be appealed to the Supreme Court via
Rule 45. Decide.
The Ombudsman is incorrect. Sec. 14, R.A. No. 6770 is unconstitutional because it attempts to
increase the Supreme Court's appellate jurisdiction without its advice and concurrence. The Supreme
Court held that petitions for certiorari against unappealable issuances of the Ombudsman should be
filed before the Court of Appeals, and not before the Supreme Court. (Carpio-Morales vs. Court of Appeals,
G.R. Nos. 217126-27, November 10, 2015, J. Perlas-Bernabe)
CIVIL PROCEDURE
11. When is there a splitting of a single cause of action? What is its effect?
There is a splitting of a single cause of action when two or more suits are instituted on the basis of the
same cause of action, in which case the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. (Sec. 4, Rule 2)
12. Distinguish Failure to State a Cause of Action from Lack of Cause of Action.
Failure to State a Cause of Action Lack of Cause of Action

Refers to the insufficiency of the pleading, Refers to a situation where the evidence does not
and is a ground for dismissal. prove the cause of action alleged in the pleading.
Provided in Sec. 1(g) of Rule 16. Provided in Sec. 5 of Rule 10.
Remedy is to move for dismissal of the Remedy is to file a demurrer to the evidence.
pleading.
May be raised at the earliest stages of an May be raised at any time after the questions of
action. fact have been resolved on the basis of the
stipulations, admissions, or evidence presented.
(Westmont Bank vs. Funai Phils. Corp., G.R. No. 180162, July 8, 2015, J. Perlas-Bernabe)
13. Distinguish Compulsory counterclaim from Permissive counterclaim.
COMPULSORY PERMISSIVE
Arises out of or is connected with the transaction or Does not arise out of or is not necessarily
occurrence constituting the subject matter of the opposing connected with the subject matter of the
party's claim. opposing party’s claim.
Barred if not set up in the same action. May be filed separately in another case.
No need to pay docket fees Required to pay docket fees.
(FGU Insurance Corp. vs. Alday, G.R. No. 138822, January 23, 2001)
14. What are the requisites for proper joinder of causes of action?
a) The party joining the causes of action shall comply with the rules on joinder of parties;
b) The joinder shall not include special civil actions or actions governed by special rules;
c) Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies therein; and
d) Totality Rule - Where the claims in all the causes action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction. (Section 5, Rule 2)
15. Differentiate Indispensable Party from Necessary Party.
INDISPENSABLE PARTY NECESSARY PARTY

A party-in-interest without whom no final One who is not indispensable but who ought to be joined
determination can be had of an action. as a party if complete relief is to be accorded as to those
already parties, or for a complete determination or
settlement of the claim subject of the action
EFFECT OF FAILURE TO IMPLEAD
Renders all subsequent actions of the court Non-inclusion of a necessary party does not prevent the
null and void for want of authority to act, not court from proceeding in the action, and the judgment
only as to the absent parties but even as to rendered therein shall be without prejudice to the rights of
those present. such necessary party.
REMEDY FROM FAILURE TO IMPLEAD
Implead the party claimed to be indispensable The pleader shall set forth the name of the necessary
considering that parties may be added by party, if his name is known, and shall state why such
order of the court, on motion of a party or on party is omitted.
its own initiative at any stage of the action.
16. Will the stipulation in the contract providing for exclusive venue be invoked in an action
where the validity of the contract is being assailed by the plaintiff?
No. A complaint directly assailing the validity of the written instrument itself should not be bound by
the exclusive venue stipulation contained therein and should be filed in accordance with the general
rules on venue. (Briones vs. Court of Appeals, G.R. No. 204444, January 14, 2015)
17. What is Forum Shopping?
The act of a litigant who repetitively availed of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions and the same
essential facts and circumstances, and all raising substantially the same issues, either pending in or
already resolved adversely by some other court, to increase his chances of obtaining a favorable
decision if not in one court, then in another. (Galang vs. Peakhold Finance Corporation, G.R. No. 233922, January
24, 2018, J. Perlas-Bernabe)
18. What are the effects of non-compliance with the requirement on verification and certification
against forum shopping?
VERIFICATION CERTIFICATION
Does not necessarily render the pleading fatally Generally not curable by its subsequent
defective. The court may order its submission or submission or correction thereof, unless there is a
correction or act on the pleading if the attending need to relax the Rule on the ground of
circumstances are such that strict compliance "substantial compliance" or presence of "special
with the Rule may be dispensed with in order that circumstances or compelling reasons." (Bandillon
the ends of justice may be served thereby. vs. La Filipina Uygonco Corporation, G.R. No. 202446,
September 16, 2015)
19. What is the proper remedy against an order declaring a party in default?
The proper remedy is a Motion to Lift Order of Default, and not a Motion for Reconsideration,
pursuant to Section 3(b), Rule 9 of the Rules of Court. A party declared in default may at any time,
after notice thereof and before judgment, file a motion under oath to set aside the order of default
upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such case, the order of default may be set aside
on such terms and conditions as the judge may impose in the interest of justice .(BDO v. Tansipek, G.R. No.
181235, July 22, 2009)
20. Kobe filed a Complaint for Sum of Money against Ricci alleging that the latter borrowed from
him certain amounts in three separate occasions which he failed to pay. In his Answer with
Counterclaim, Ricci specifically denied his indebtedness to Kobe and claimed that it was the
latter who owed him P500,000.00, as evidenced by a receipt, which states “I receive the total
amount of P500,000. Signed, Kobe.” Should Kobe’s Reply be verified?
No. A receipt is defined as a written and signed acknowledgment that money or good was delivered
or received. There are no terms and conditions found therein from which a right or obligation may be
established. It cannot be considered an actionable document upon which an action or defense may
be founded. Hence, the Reply need not be verified (Ogawa vs. Menigishi, G.R. No. 193089, July 9, 2012, J.
Perlas-Bernabe)
21. What are the Modes of Service of Summons?
DEFENDANT MODE OF SERVICE AVAILABLE

S
a) Service in person of Defendant - by handling a copy to the defendant in person, or,
if he refuses to receive and sign for it, by tendering it to him.
b) Substituted Service - service may be effected (i) by leaving copies of the summons
Resident
at the defendant's residence with some person of suitable age and discretion then
residing therein, or (ii) by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.
Residents When any action is commenced against a defendant who ordinarily resides within the
temporarily out Philippines, but who is temporarily out of it, service may, by leave of court, be effected
of the by:
Philippines a. by personal service as in Rule 14, Sec.6;
b. by publication in a newspaper of general circulation together with a registered mailing
a copy of the summons and the order of the court to the last known address of the
defendant; or
c. by any manner the court may deem sufficient (Rule 14, Sec. 16)
Extraterritorial By leave of court, be effected out of the Philippines by:
service of a. personal service as under section 6, Rule 14; or
summons b. by publication in a newspaper of general circulation in such places and for such time
as the court may order, in which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address of the defendant; or
c. in any other manner the court may deem sufficient. (Rule 14, Sec. 15)
Extraterritorial service of summons under Sec. 15 of Rule 14 applies when the following
requisites concur:
a. the defendant is a nonresident;
b. he is not found in the Philippines; and
c. the action against him is either in rem or quasi in rem (Rule 14, Sec. 15, Jose v.
Boyon, 414 SCRA 216, 224)
Residents When any action is commenced against a defendant who ordinarily resides within the
temporarily out Philippines, but who is temporarily out of it, service may, by leave of court, be effected
of the by:
Philippines a. by personal service as in Rule 14, Sec.6;
b. by publication in a newspaper of general circulation together with a registered mailing
a copy of the summons and the order of the court to the last known address of the
defendant; or
c. by any manner the court may deem sufficient (Rule 14, Sec. 16)
Defendant In any action where the defendant is designated as an unknown owner, or the like, or
whose identity whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry,
or whereabouts service may, by leave of court, be effected upon him by publication in a newspaper of
are unknown general circulation and in such places and for such time as the court may order.(Rule
14, Sec. 14).
Domestic Service may be made upon the following persons: (a) President; (b) Managing Partner;
private juridical (c) General Manager; (d) Corporate Secretary; (e) Treasurer, or (f) In-House Counsel.
entity
a) Its resident agent designated, or, if there be no such agent,
Foreign private
b) Government official designated by law to that effect, or
judicial entity
c) Any of the officers or agents of said foreign entity within the Philippines.
Service may be effected out of the Philippines, with leave of court, through any of the
following means:
Foreign private
juridical a) By personal service coursed through the appropriate court in the foreign country
entities not with the assistance of the Department of Foreign Affairs.
registered in b) By publication in a newspaper of general circulation in the country where the
the Philippines defendant may be found and by serving a copy of the summons and the court order
or have no by registered mail at the last known address of the defendant;
resident agents 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.
Republic of the Service may be effected on the Solicitor General. (Sec. 13, Rule 14)
Philippines
Public Service may be effected on its executive head, or on such other officer or officers as the
Corporations law or the court may direct. (Rule 14, Sec. 13)
When a suit is directed against an unincorporated agency, which, because it is
Unincorporated unincorporated, possesses no juridical personality of its own, the suit is against the
government agency’s principal, which is the State. Thus, the summons shall be served upon the
agency Office of the Solicitor General. (Republic vs. Domingo, G.R. No. 175299, September 14,
2011)
Service shall be effected by the officer having the management of such jail or institution.
Prisoner
For its purpose, the jail manager is deemed deputized as a special sheriff.
Service shall be made:
a) Upon him personally; and
Minor and
b) On his legal guardian if he has one, or if none, upon his guardian ad litem. The
incompetent
appointment of the guardian ad litem shall be applied for by the plaintiff. If the
defendant is a minor, service may be made also upon his father or mother.
22. An action for damages was filed against Ladia Corporation. Summons was received by
Ruben, the Corporation’s Liaison Officer, upon telephone instruction of Joey, the
Corporation’s Corporate Secretary. Did the court acquire jurisdiction over the Corporation?
Yes. There was constructive service of summons. Although there was no direct, physical handing of
the summons to the corporate secretary, the latter could at least be charged with, which having
constructively received the same amounts to a valid service of summons. (Nation Petroleum Gas vs. RCBC,
G.R. No. 183370, August 17, 2015)
23. What are the two kinds of res judicata?
BAR BY PRIOR JUDGMENT CONCLUSIVENESS OF JUDGMENT

There is identity of parties, subject matter, and There is identity of parties in the first and second
causes of action between the first case where the cases, but no identity of causes of action.
judgment was rendered and the second case that
is sought to be barred
(Puerto Azul Land, Inc. vs. Pacific Wide Realty and Dev’t Corp., G.R. No. 184000, September 17, 2014, J. Perlas-
Bernabe).
24. What is the Two-Dismissal Rule?
When a complaint is dismissed a second time, the plaintiff is now barred from seeking relief on the
same claim, with the following requisites:
a) There was a previous case that was dismissed by a competent court;

b) Both cases were based on or include the same claim;
c) Both notices for dismissal were filed by the plaintiff; and
d) When the motion to dismiss filed by the plaintiff was consented to by the defendant on the ground
that the latter paid and satisfied all the claims of the former. (Ching vs. Cheng, G.R. No. 175507, October 8,
2014)
25. What is terceria?
It is a remedy available to a third-claimant, not the judgment obligor, whose property was levied by
virtue of a writ of execution. Under Sec. 16, Rule 39, the third-party claimant may execute an affidavit
of his title or right to the possession of the property levied, and serve the same to the officer making
the levy and a copy thereof to the judgment creditor. The officer shall not be bound to keep the
property, unless the judgment creditor files a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied on. (PSALM vs. Maunlad Homes, G.R.
No. 215933. February 8, 2017)
26. Distinguish Demurrer in Civil cases from Criminal cases.
CIVIL DEMURRER CRIMINAL DEMURRER

If DENIED, plaintiff presents evidence. If DENIED:
a) If with leave, accused may proceed with
presentation of his evidence;
b) If without leave, accused can no longer present
his evidence.
If GRANTED, the case is dismissed. The order of If GRANTED - accused is acquitted. The order of
dismissal is a final order. If plaintiff appeals and the acquittal is NOT appealable, otherwise, it violates his
appellate court REVERSES the trial court’s decision, right against double jeopardy.
defendant is no longer allowed to present evidence.
27. Can a party already declared in default still avail the remedy of appeal?
Yes. The rule is that the "right to appeal from the judgment by default is not lost and can be done on
grounds that the amount of the judgment is excessive or is different in kind from that prayed for, or
that the plaintiff failed to prove the material allegations of his complaint, or that the decision is contrary
to law." Despite being burdened by the circumstances of default, the petitioners may still use all other
remedies available to question not only the judgment of default but also the judgment on appeal
before the Court. Those remedies necessarily include an appeal by certiorari under Rule 45 of the
Rules of Court. (Farida Yap Bitte vs. Sps. Jonas, G.R. No. 212256, December 9, 2015)
28. Distinguish Summary Judgment from Judgment on the Pleadings.
SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS

29. Based on the pleadings, depositions, admissions and Based solely on the pleadings.
affidavits.
Available to both plaintiff and defendant. Generally available to the plaintiff, unless the
defendant presents a counterclaim.
There is no genuine issue between the parties. The answer fails to tender an issue or there is an
admission of material allegations.
10-day notice required. 3-day notice required.
May be interlocutory or on the merits. On the merits.
Distinguish Review on Certiorari (Rule 45) and Certiorari (Rule 65).
REVIEW ON CERTIORARI (RULE 45) CERTIORARI (RULE 65)

Petition is based on questions of law. Petition raises the issue as to whether the lower
court acted without jurisdiction or with grave
abuse of discretion.
A mode of appeal. Special civil action.
Involves the review of the judgment award or Directed against an interlocutory order of the
final order on the merits. court or where there is no appeal or any other
REVIEW ON CERTIORARI (RULE 45) CERTIORARI (RULE 65)
plain, speedy or adequate remedy.
Must be made within 15 days from notice of Filed within 60 days from notice of judgment,
judgment or final order or resolution appealed order or resolution.
from. Supreme Court may grant an extension
of 30 days for justifiable reasons.
Stays the judgment or order appealed from. Does not stay the challenged proceeding, unless
a writ of preliminary injunction or TRO is issued.
The court is in the exercise of its appellate Court exercises original jurisdiction.
jurisdiction and power of review.
The petitioner and the respondent are the The parties are the aggrieved party against the
original parties to the action, and the lower lower court or quasi-judicial agency and the
court or quasi-judicial agency is not prevailing parties.
impleaded.
Motion for reconsideration is not required. Motion for reconsideration or for new trial is
required.
PROVISIONAL REMEDIES
30. Should the court lift a Writ of Preliminary Attachment, which levied defendant’s properties,
when the case is dismissed by virtue of a Compromise Agreement?
No. While the provisions of the Rules of Court are silent on the length of time within which an
attachment lien shall continue to subsist after the rendition of a final judgment, jurisprudence dictates
that the said lien continues until: (a) the debt is paid; (b) the sale is had under execution issued on the
judgment; (c) until the judgment is satisfied; or (d) the attachment discharged or vacated in the same
manner provided by law. (Lim, Jr. vs. Spouses Lazaro, G.R. No. 185734, July 3, 2013, J. Perlas-Bernabe)
31. Grounds for the discharge of a writ of attachment.
a) Upon giving of counterbond, after a writ of attachment has been enforced;

b) By motion, if the writ of attachment was improperly or irregularly issued or enforced; or
c) That the bond is insufficient. (Sec. 12 and 13, Rule 57)
32. What are the requisites for the issuance of preliminary injunction?
a) The applicant must have a clear and unmistakable right to be protected, i.e., a right in esse;
b) There is a material and substantial invasion of such right;
c) There is an urgent need for the writ to prevent irreparable injury to the applicant; and
d) No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable
injury. (Liberty Broadcasting Network vs. Atlocom, G.R. No. 205875, June 30, 2015)
SPECIAL CIVIL ACTIONS
33. Distinguish Certiorari, Prohibition and Mandamus.
Certiorari Prohibition Mandamus

Respondent a. Tribunal a. Tribunal a. Tribunal
s b. Board b. Board b. Board
c. Officer c. Officer c. Officer
d. Person (w/ quasi- d. Person (w/ quasi-judicial function)
judicial function)
Grounds a. Lack of jurisdiction on subject matter; a. Neglect in the performance of duty
b. Excess of jurisdiction; enjoined by law; or
c. Grave abuse of discretion amounting to b. Excludes someone from the
lack /excess of jurisdiction enjoyment of a right or office
(whimsical, capricious, arbitrary and
despotic)
Condition No appeal or any other adequate, speedy remedy in the ordinary courts of law.
Prayer Judgment be Judgment be rendered Judgment be rendered commanding
rendered annulling or commanding respondent, immediately or at some
modifying the respondent to desist other time to be specified by the court,
proceedings of such from further proceedings to do the act required to be done to
tribunal, board or in the action or matter protect the rights of the petitioner, and to
officer. No claim for specified therein. No pay the damages sustained by the
damages. claim for damages. petitioner by reason of the wrongful acts
of the respondent.
34. Diego, the registered owner of a parcel of land which was subjected to compulsory
acquisition under the Comprehensive Agrarian Reform Program (CARP), received an order of
land valuation from the Department of Agrarian Reform (DAR) / Land Bank of the Philippines
(LBP). Fifteen days had lapsed from the receipt of the order.
a) Can Diego still file a petition for determination of just compensation with the Special
Agrarian Court?
Yes. Since the determination of just compensation is a judicial function, the Court must abandon
its ruling in Veterans Bank, Martinez, Soriano and Limkaichong that a petition for determination of
just compensation before the Special Agrarian Court shall be proscribed and adjudged
dismissible if not filed within the 15-day period prescribed under the DARAB Rules. To maintain
the rulings would be incompatible and inconsistent with the legislative intent to vest the original
and exclusive jurisdiction in the determination of just compensation with the Special Agrarian
Court.
b) When should Diego file a petition for determination of just compensation with the Special
Agrarian Court?
Within ten (10) years from the time he received the notice of coverage. While R.A. No. 6657 itself
does not provide for a period within which a landowner can file a petition for the determination of
just compensation before the Special Agrarian Court, it cannot be imprescriptible. Considering
that the payment of just compensation is an obligation created by law, it should only be ten (10)
years from the time the landowner received the notice of coverage. (LBP vs. Dalauta, G.R. No. 190004,
August 8, 2017)
35. Distinguish Quo Warranto from Impeachment as a remedy to remove an impeachable officer.
QUO WARRANTO IMPEACHMENT

Judicial in nature. Political in nature.
Acts or omissions committed prior to or at the Acts or omissions committed during the incumbency of
time of appointment or election relating to an a validly appointed and/or validly elected official, if the
official’s qualifications to hold office as to render public official concerned is impeachable and the act or
such appointment or election invalid, provided omission constitutes an impeachable offense.
that the requisites for the commencement thereof
are present.
Cause of action lies on usurping, intruding or Cause of action is the commission of impeachable
unlawfully holding/ exercising a public office. offense.
Commenced by a verified petition brought in the It must be initiated by filing of the Articles of
name of the Republic of the Philippines. Impeachment before the Senate.
Respondent is ordered to cease holding a public Conviction shall result to removal of the respondent
position, which he/she is ineligible to hold. from the public office that he/she is legally holding.
(Republic vs. Sereno, G.R. No. 237428, May 11, 2018)
36. Distinguish Extrajudicial Foreclosure from Judicial Foreclosure.
EXTRA-JUDICIAL FORECLOSURE JUDICIAL FORECLOSURE

There is a right of redemption. Mortgagor has a right of No right of redemption EXCEPT when mortgagee
redemption for 1 year from registration of the sale. is a banking institution. There is equity of
redemption only.
Buyer at public auction becomes absolute owner only Buyer at public auction becomes absolute owner
after finality of an action for consolidation of only after confirmation of the sale.
ownership.
Mortgagee is given a special power of attorney in the Mortgagee need not be given a special power of
mortgage contract to foreclose the mortgaged property attorney.
in case of default.
Filed with the office of the sheriff of the province where Filed before the MTC or RTC where the mortgaged
the sale is to be made. property or any part thereof is situated.
The recovery of the deficiency is through an Recovery for the deficiency can be done by mere
independent action. motion.
37. Distinguish Forcible Entry from Unlawful Detainer.
FORCIBLE ENTRY UNLAWFUL DETAINER

The possession of the defendant is unlawful from The possession of the defendant is lawful from the
the beginning. beginning but becomes illegal by reason of the
expiration or termination of his right to the possession
of the property under any contract, express or implied.
The law does not require previous demand for the Plaintiff must first make such demand which is
defendant to vacate. jurisdictional in nature.
The plaintiff must prove that he was in prior The plaintiff need not have been in prior physical
physical possession of the premises until he was possession.
deprived by the defendant.
One (1) year period is generally counted from the The one-year period is counted from the date of last
date of actual entry on the property. demand.
Defendant’s possession was acquired by force, Defendant’s possession was acquired by tolerance or
intimidation, threat, stealth and strategy. contract.
38. May damages other than the rental be claimed in an ejectment suit?
No. The only damage that can be recovered in an ejectment suit is the fair rental value or the
reasonable compensation for the use and occupation of the real property. Other damages must be
claimed in an ordinary action. (Shoemart, Inc. vs. CA, G.R. 86956, October 1, 1990)
39. What are the requisites to stay the immediate execution of a judgment in an Ejectment case?
a. Perfecting an appeal;
b. Filing a supersedeas bond; and
c. Periodic deposit of the rental or reasonable compensation for the use and occupancy of the
property during the pendency of the appeal. (Ferrer vs. Judge Rabaca, A.M. No. MTJ-05-1580, October 6,
2010).
SPECIAL PROCEEDINGS
40. What are the claims that may be filed against the estate under Rule 86?
a) Claims for money against the decedent arising from contract, express or implied, whether due,
not due or contingent;
b) Claims for funeral expenses and expenses for the last sickness of the decedent;
c) Judgment for money against the decedent. (Sec. 5, Rule 86)
41. What actions may be commenced against the executor or administrator under Rule 87?
a) Actions to recover real or personal property or an interest therein, from the estate or to enforce a
lien thereon; and
b) Actions to recover damages for an injury to person or property, real or personal. (Sec. 1, Rule 87)
42. What is the Statute of Non-Claims?
The Statute of Non-Claims is the period fixed for the filing of claims against the estate such that claims
not filed within the said period are barred forever. The period fixed by probate court must not be less than
six months nor more than 12 months from the date of first publication of the notice. (De Leon and Wilwayco,
Special Proceedings: Essentials for Bench and Bar, p. 131 [2015])
43. Which court has the primary and exclusive jurisdiction in cases of Habeas Corpus in relation
to custody of minors?
The Family Court of the province or city where the petitioner resides or where the minor may be
found. (Sec. 3, A.M. No. 03-04-04 SC)
44. What is the writ of Continuing Mandamus?
The writ of continuing mandamus is a writ issued by a court in an environmental case directing any
agency or instrumentality of the government or officer thereof to perform an act or series of acts
decreed by final judgment which shall remain effective until the judgment is fully satisfied (Sec. 4, Rule 1,
A.M. No. 09-6-8 SC).
45. Ana and Tom were common law partners. Ana was able to obtain videos of Tom with another
woman. Ana threatened Tom that she will be using the videos to file a case against Tom. Tom
filed for a Petition for Writ of Habeas Data claiming that Ana’s threat to use the videos violates
his right to privacy in life, liberty, and security. Decide.
No. In order to support a petition for the issuance of a writ of habeas data, the petition must
adequately show that there exists a nexus between the right to privacy on the one hand, and the right
to life, liberty or security on the other. Here, petitioner was not sufficiently able to allege that his right
to privacy in life, liberty or security was or would be violated, in as much as the threat is only to
legitimately utilize the photos and videos in the case to be filed against him. (Lee vs. Ilagan, G.R. No.
203254, October 8, 2004. J. Perlas-Bernabe)
46. Distinguish Rule 103, Rule 108, and R.A. No. 9048.
RULE 103 RULE 108 RA 9048, as amended by R.A.

10172
Change of Name Cancellation / Correction of Clerical Error Act
Entries in the Civil Registry
Change of full name or family Cancellation or correction of civil Change of first name or nickname
name. registry entries. and correction of civil registry
entries (only typographical or
clerical errors)
A person desiring to change Any person interested in any act, Any person having direct and
his name. event, order or decree concerning personal interest in the correction of
the civil status of persons which has a clerical or typographical error in
been recorded in the civil register. an entry and/or change of first name
or nickname.
RTC of the province in which RTC of city or province where the a) Local civil registry office of the
petitioner resided for 3 years corresponding civil registry is city or municipality where the
prior to filing. located. record being sought to be
corrected or changed is kept;
b) Local civil registrar of the place
where the interested party is
presently residing or domiciled;
c) Philippine Consulate
1. Ridiculous, tainted with Upon good and valid grounds. 1. Name is ridiculous, tainted with
dishonor and extremely dishonor and extremely difficult
difficult to write or to write or pronounce;
pronounce; 2. Consequence of change of
2. Consequence of change status;
of status; 3. Necessity to avoid confusion.
3. Necessity to avoid
confusion;
4. Having continuously
used and been known
since childhood by a
Filipino name, unaware
of her alien parentage;
5. A sincere desire to adopt
a Filipino name to erase
signs of former alienage
all in good faith and
without prejudicing
anybody.
6. When the surname
causes embarrassment
and there is no showing
that the desired change
of name was for a
fraudulent purpose or
that the change of name
would prejudice public
interest.
Judicial Judicial Administrative
At least once a week for At least once a week for three At least once a week for two
three consecutive weeks in a consecutive weeks in a newspaper consecutive weeks (publish the
newspaper of general of general circulation. whole affidavit) in a newspaper of
circulation. general circulation – in change of
first name or nickname, or for
correction of erroneous entry
concerning the day and month in
the date of birth or the sex of a
person.
47. What is clerical or typographical error?
Clerical or typographical error refers to a mistake committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the
date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing record or
records: Provided, however, That no correction must involve the change of nationality, age, or status
of the petitioner. (R.A. 9048, as amended by R.A. No. 10172)
CRIMINAL PROCEDURE
48. What are the cases cognizable by the Sandiganbayan?
a. Violations of Anti-Graft and Corrupt Practices Acts (RA No. 3019);

b. The Law on Ill-gotten Wealth (RA No. 1379);
c. Bribery (Chapter II, Title VII, Book 2 of the RPC);
d. PCGG Cases – Executive Orders Nos. 1, 2, 14, 14-A;
e. Estafa (Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008)
f. Falsification (Garcia vs. Sandiganbayan, G.R. No. 165835, June 22, 2005)
49. What are the cases cognizable by the RTC regardless of the imposable penalty?
a. Violations of the Omnibus Election Code;

b. Libel or written defamation;
c. Violations of intellectual property law;
d. Anti-Money Laundering Law;
e. Dangerous Drugs Act;
f. Cybercrime Prevention Law of 2012.
50. What are Prohibited Motions under the Continuous Trial Rule (A.M. 15-06-10-SC)?
a) Motion for judicial determination of probable cause;

b) Motion for preliminary investigation filed beyond the 5-day reglementary period in inquest
proceedings, or when preliminary investigation is required, or allowed in inquest proceedings and
the accused failed to participate in the preliminary investigation despite due notice;
c) Motion for re-investigation of the prosecutor recommending the filing of information once the
information has been filed before the court (1) if the motion is filed without prior leave of court; (2)
when preliminary investigation is not required; and (3) when the regular preliminary investigation
is required and has been actually conducted, and the grounds relied upon in the motion are not
meritorious;
d) Motion to quash information when ground is not one of those under Sec. 3, Rule 117;
e) Motion for bill of particulars that does not conform to Sec. 9, Rule 116;
f) Motion to suspend the arraignment based on grounds not stated under Sec. 11, Rule 116;
g) Petition to suspend the criminal action based on prejudicial question, when no civil case has been
filed, pursuant to Sec. 7, Rule 111. (Sec. 2(b), III, A.M. No.15-06-10-SC)
51. May hearsay evidence be properly admitted in preliminary investigation?
Yes. Hearsay evidence is admissible in determining probable cause in a preliminary investigation

because such investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. (Estrada vs. Office of the Ombudsman, G.R. No. 212140-41, Jan. 21, 2015)
52. Distinguish Executive Determination of Probable Cause from Judicial Determination of

Probable Cause.
Executive Judicial
(Preliminary Investigation) (Preliminary Examination)
It is made by the public prosecutor, during a It is made by the judge to ascertain whether a warrant
preliminary investigation, where he is given of arrest should be issued against the accused. In this
broad discretion to determine whether probable respect, the judge must satisfy himself that, on the
cause exists for the purpose of filing criminal basis of the evidence submitted, there is a necessity for
information in court. Whether or not that placing the accused under custody in order not to
function has been correctly discharged by the frustrate the ends of justice. If the judge, therefore,
public prosecutor, i.e., whether or not he has finds no probable cause, the judge cannot be forced to
made a correct ascertainment of the existence issue the arrest warrant. (De Los Santos-Dio vs. Court of
of probable cause in a case, is a matter that Appeals, G.R. No. 178947, June 26, 2013)
the trial court itself does not and may not be
compelled to pass upon.
53. Discuss the Rules on Consolidation under the Continuous Trial Rule.
NEWLY FILED PENDING CASES

When newly filed cases involving offenses based on When the subsequent case was filed with
the same facts or forming part of a series of the motion for consolidation by the Office
offenses of similar character, are accompanied by a of the Prosecutor, it shall no longer be
motion for consolidation filed by the Office of the raffled. The subsequent case shall be
Prosecutor, the Executive Judge shall cause the assigned directly by the Executive Judge
raffle to only one court which shall resolve said to the court where the earlier case is
motion for consolidation. pending.
54. When is amendment of Information formal? When is it substantial?
FORMAL SUBSTANTIAL
When it does not change the nature of the crime; does not affect the When the defense of the
essence of the offense; does not cause surprise; does not deprive the accused would no longer be
accused of an opportunity to meet new averment; or where the available and any evidence of
substitution of the private complainant did not alter the basis of the the accused would be
charge; did not result any prejudice to the party; or the documentary inapplicable to the complaint or
evidence remained the same and are available to the other party. information.
(Riano, Criminal Procedure, The Bar Lecture Series, p. 130, 2016)
55. Distinguish Bail as a Matter of Right from Discretion.
AS A MATTER OF RIGHT AS A MATTER OF DISCRETION

a) Before or after conviction by the a) Before conviction, in cases, where the offense
MeTC and MTC; charged is punishable by reclusion perpetua or life
b) Before conviction by the RTC of imprisonment, when evidence of guilt is not strong;
an offense not punishable by b) After accused’s conviction by the Regional Trial
death, reclusion perpetua or life Court of an offense not punishable by death,
imprisonment. reclusion perpetua or life imprisonment.
56. What is a Bench Warrant?
It is a writ issued directly by a judge to a law-enforcement officer, especially for the arrest of a person
who has been held in contempt, has disobeyed a subpoena, or has to appear for a hearing or trial.
(Magleo vs. Quinagoran, G.R. No. A.M. No. RTJ-12-2336, November 12, 2014)
57. What is inordinate delay?*
The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated when the
proceeding is attended by vexatious, capricious and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when without cause or justifiable motive a
long period of time is allowed to elapse without the party having his case tried. The factors to be
considered are: (a) Length of Delay; (b) Reason for Delay; (c) Assertion of Right; and (d) Prejudice to
Accused.
58. What are the requisites for double jeopardy to attach?*
a) Valid indictment;
b) Competent court;
c) After arraignment;
d) Valid plea has been entered; and
e) When the defendant was convicted or acquitted, or the case was dismissed or otherwise
terminated without the express consent of the accused. (Saldariega vs. Panganiban, G.R. No. 211933 &
211960, April 15, 2015)
59. Distinguish Bill of Particulars in Criminal Case from Civil Cases.
CRIMINAL CIVIL
It is the complementary procedural document consisting A bill of particulars details items or specific
of an amplification or more particularized outline of a conduct not recited in the Information but
pleading, and is in the nature of a more specific nonetheless pertain to or are included in the
allegation of the facts recited in the pleading. crime charged.
To enable a party to prepare his responsive pleading To enable an accused: to know the theory of the
properly. (Enrile vs. People, G.R. No. 213455, August 11, government’s case; to prepare his defense and to
2015) avoid surprise at the trial; to plead his acquittal or
conviction in bar of another prosecution for the
same offense; and to compel the prosecution to
observe certain limitations in offering evidence.
60. What is a prejudicial question?
It is one that arises in a case the resolution of which is a logical antecedent of the issue involved
therein, and the cognizance of which pertains to another tribunal. It is a question based on a fact
distinct and separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said
case involves facts intimately related to those upon which the criminal prosecution would be based
but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of
the accused would necessarily be determined. (People vs. Arambulo, G.R. No. 186597, June 17, 2015)
61. What are the requisites for an accused to be discharged as state witness?
a) There is absolute necessity for the testimony of the accused whose discharge is requested;
b) No other direct evidence available, except the testimony of the accused;
c) The testimony can be substantially corroborated in its material points;
d) Accused does not appear to be the most guilty; and
e) Accused has not been convicted of any offense involving moral turpitude. (Sec. 17, Rule 119)
62. What is the Variance Doctrine?
When there is variance between the offense charged and the offense proved, and the offense
charged is included in or necessarily includes the offense proved, the accused shall be convicted of
the offense proved which is included in the offense charged, or the offense charged which is included
in the offense proved. (Sec. 4, Rule 120)
63. May a person charged with rape through sexual intercourse be convicted of the crime of rape
by sexual assault, as proven during the trial?
No. Applying the variance doctrine, he can be held guilty of the lesser crime of acts of lasciviousness
performed on a child, i.e., lascivious conduct under Section 5(b) of R.A. No. 7610, which was the
offense proved, because it is included in rape, the offense charged. (People vs. Caoili, G.R. No. 196342,
August 8, 2017)
64. Discuss the relevant provisions on Cybercrime warrants.
RULES ON CYBERCRIME WARRANTS
(A.M. NO. 17-11-03-SC)
Venue of Criminal Actions Kinds Extra-territorial Service
Designated cybercrime court of 1. Warrant to Disclose Computer For persons or service

the province or city where: Data (WDCD) - order issued by the judge providers situated outside of
authorizing the enforcement authorities to the Philippines, service of
1. The offense is require any person or service provider to
warrants and/or other court
committed; or disclose and accordingly, to submit
subscriber’s information, traffic data, or process shall be coursed
2. Any part of the
relevant data in his/her or its possession through the Department of
computer system used
is situated; or or control. (Sec. 4.2) Justice- Office of
3. Any damage caused to 2. Warrant to Intercept Computer Data Cybercrime, in line with all
natural or juridical (WICD) - order authorizing the law relevant international
person took place. enforcement authorities to carry out any or instruments and/or
(Sec. 2.1) all of the following activities: (a) Listening;
agreement on the matter.
(b) Recording; (c) Monitoring; and (d)
Surveillance of the content of
The court where the criminal communications, including procuring of the
action is first filed shall acquire content of computer data, either directly,
through access and use of a computer
jurisdiction to the exclusion of system or indirectly, through the use of
the other courts. electronic eavesdropping or tapping
devices at the same time that the
communication is occurring. (Sec. 5.2)
3. Warrant to Search, Seize, and Examine
All other crimes under the RPC Computer Data (WSSECD) - order
and other special laws, authorizing the law enforcer to search a
committed by, through, and with particular place for items to be seized and/
the use of ICT shall be filed or examined. (Sec. 6.1)
4. Warrant to Examine Computer Data
before the regular or other
(WECD) - Upon acquiring possession of a
specialized RTCs, as the case computer device or computer system via
maybe. lawful means, law enforcement authorities
shall first apply for a warrant before
searching the said device or computer
system. (Sec. 6.9)
EVIDENCE
65. Distinguish Factum Probandum from Factum Probans.
FACTUM PROBANDUM FACTUM PROBANS

The ultimate facts sought to be established. The intermediate facts.
Proposition to be established. Materials which establish the proposition.
Hypothetical. Existent.
66. May hearsay evidence be properly admitted in preliminary investigation?
Yes. Hearsay evidence is admissible in determining probable cause in a preliminary investigation
because such investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties. (Estrada vs. Office of the Ombudsman, G.R. No. 212140-41, January 21, 2015)
67. May the Res Inter Alios Acta Rule be properly invoked in preliminary investigation?
No. Technical rules of evidence are not binding during preliminary investigation. The co-conspirators’
statements were sought to be excluded based on the res inter alios acta rule, which states that the
rights of a party cannot be prejudiced by an act, declaration, or omission of another. The foregoing
rule constitutes a technical rule on evidence which should not be rigidly applied in the course of
preliminary investigation proceedings. (Cambe vs. Office of the Ombudsman, G.R. Nos. 212014-15, December 6,
2016, J. Perlas-Bernabe)
68. What are the kinds of Admissibility of Evidence?
a) Multiple Admissibility - Evidence that is plainly relevant and competent for two or more
purposes will be received if it satisfies all the requirements prescribed by law in order that it may be
admissible for the purpose for which it is presented, even if it does not satisfy the other requisites of
admissibility for other purposes.
b) Conditional Admissibility - Evidence that appears to be immaterial is admitted by the court

subject to the condition that its connection with another fact subsequent to be proved will be established.
Otherwise, such fact already received will be stricken off the record at the initiative of the adverse party.
c) Curative Admissibility - Evidence that is otherwise improper is admitted (despite objection from
the other party) to contradict improper evidence presented or introduced by the other party, and to cure or
neutralize such improper evidence. (Regalado, Vol. II, p.706, 2008 ed.)
69. Distinguish Mandatory Judicial Notice from Discretionary.
MANDATORY DISCRETIONARY
a) Existence and territorial extent of states; a) Matters which are of public
b) Political history forms of government and symbols of nationality; knowledge;
c) Law of nations; b) Are capable to
d) Admiralty and maritime courts of the world and their seals; unquestionable
e) Political constitution and history of the Philippines; demonstration; or
f) Official acts of legislative, executive and judicial departments of the c) Ought to be known to
Philippines; judges because of their
g) Laws of nature; judicial functions.
h) Measure of time; and
i) Geographical divisions.
No hearing. Hearing is required.
70. What is the Best Evidence Rule? When is it applicable?
When the subject of inquiry is the contents of a document, no evidence shall be admissible other than
the original document itself. The rule only applies when the subject of the inquiry is the contents of a
document. The rule requires that the original of the writing must be produced. It is also known as the
"original document rule" or "primary evidence rule". (National Power Corporation vs. Codilla, G.R. No. 170491,
April 4, 2007)
71. Frankie was apprehended after an entrapment operation, wherein the complainant prepared
marked money and delivered it to him. Photocopies of the marked money were presented in
court as evidence. Frankie invokes the Best Evidence Rule. Is his contention correct?
No. The Best Evidence Rule applies only when the contents of the document are the subject of
inquiry. Here, the marked money was presented solely for the purpose of establishing its existence
and not its contents. (Flores vs. People, GR no. 222861, April 23, 2018)
72. State the Parol Evidence Rule and its exceptions.
When the terms of an agreement have been reduced to writing, it is considered as containing all the
terms agreed upon and there can be, between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement. However, a party may
present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in
his pleading;
a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

b) The failure of the written agreement to express the true intent and agreement of the parties
thereto;
c) The validity of the written agreement; or
d) The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.
The term “agreement” includes wills. (Sec. 9, Rule 130)
73. Distinguish Admission from Confession.
ADMISSION CONFESSION
An act, declaration or omission of a party as to The declaration of an accused acknowledging his guilt of the
a relevant fact. offense charged, or of any offense necessarily included
therein.
Broader than confession. Specific type of admission which refers only to an
acknowledgment of guilt.
May be implied like admission by silence. Cannot be implied, but should be a direct and positive
acknowledgment of guilt.
74. What are the requisites for the application of the Dead Man’s Statute?
a) Plaintiff has a claim against the estate of the decedent or person of unsound mind;
b) Defendant in the case is the executor or administrator or a representative of the deceased or the
person of unsound mind;
c) Suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound
mind;
d) Witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is
prosecuted; and
e) Testimony is as to any matter of fact occurring before the death of such deceased person or
before such person became of unsound mind. (Sec. 23, Rule 130)
75. What are the requisites of dying declaration, spontaneous statements (res gestae) and
declaration against interest?
Dying Declaration Spontaneous Statements Declaration Against Interest

a) Declaration concerns the cause a) Principal act be a startling a) Declarant is dead or unable to
and the surrounding occurrence; testify;
circumstances of the declarants’ b) Statement was made while b) Relates to a fact against the
death; the event is taking place, or interest of the declarant;
b) Made when death appears to be immediately prior to, or c) At the time said declaration
imminent and the declarant is subsequent thereto; was made the declarant was
under a consciousness of an c) Statements were made aware that the same was
impending death; before the declarant had the contrary to his aforesaid
c) Declarant would have been time to contrive or devise a interest; and
competent to testify had he or she falsehood; and d) Declarant had no motive to
survived; and d) Statements must concern the falsify and believed such
d) Offered in a case in which the occurrence in question and its declaration to be true.
subject of inquiry involves the immediate attending
declarant’s death. circumstances.
76. What are the two types of res gestae? Distinguish one from the other.
VERBAL ACTS SPONTANEOUS STATEMENTS

The res gestae is the equivocal act. The res gestae is the startling occurrence.
Must be contemporaneous with or must May be prior to, simultaneous with, or subsequent to the
accompany the equivocal act to be admissible. startling occurrence.
Utterances which accompany some act or Statement or exclamation made immediately after some
conduct to which it is desired to give a legal exciting occasion by a participant or spectator and asserting
effect, the circumstances of that occasion as it is observed by him.
77. Distinguish Marital Disqualification from Marital Privilege.
MARITAL DISQUALIFICATION MARITAL PRIVILEGE

One of the spouses is a party to the action. Whether or not the spouse is a party to the action.
Marriage is existing at the time of testimony. Invoked even after the marriage has been dissolved.
Ceases upon the death of either spouse. Continues even after the termination of the marriage.
Total prohibition against any testimony for or Applies only to confidential communications between the
against the spouse of the witness. spouses.
What is prohibited is the testimony for or against What is prohibited is the examination of a spouse as to
the other. matters related in confidence by the other spouse.
78. What is the doctrine of independently relevant statements?
It holds that conversations communicated to a witness by a third person may be admitted as proof
that, regardless of their truth or falsity, they were actually made. Evidence as to the making of such
statements is not secondary but primary, for in itself it (a) constitutes a fact in issue or (b) is
circumstantially relevant to the existence of such fact. Under the doctrine of independently relevant
statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is
immaterial. (Gubaton vs. Atty. Amador, A.C. No. 8962, July 9, 2018, J, Perlas-Bernabe).
79. What is the Rape Shield Rule?
In rape cases, the evidence of complainant’s past conduct, or reputation or opinion thereof shall not
be admitted unless and only to the extent that the court finds that such evidence is material and
relevant to the cases. (Rape Shied Law, Sec. 6, R.A. 8505)
80. What is a Live-link Television Testimony?
It refers to the testimony of a child, who is an eyewitness or offended party in violence against women
and their children, taken in a room outside the courtroom and televised to the courtroom by live-link
television, as provided for in Section 25 of the Rule on Examination of a Child Witness. It may also
refer to the live-link testimony of an adult female victim of violence, which may be allowed at the
discretion of the court. (A.M. No. 04-10-11-SC, Sec. 4 (s), October 19, 2004)
81. What are the modes of impeaching a witness?
a) Contradictory evidence;
b) Evidence that his general reputation for truth, honesty or integrity is bad; or
c) Evidence that he has made at other times statements inconsistent with his present testimony (Sec.
11, Rule 132).
82. Differentiate Electronic Data Message from Electronic Document.
ELECTRONIC DATA MESSAGE ELECTRONIC DOCUMENT

Information generated, sent, Information or the representation of information, data, figures,
received, or stored by electronic, symbols or other modes of written expression, described or however
optical or similar means. represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which
is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.
83. Do the Rules in Electronic Evidence apply to criminal cases?
Yes. The Rules apply to criminal and civil actions and proceeding, as well as quasi-judicial and
administrative cases. (Sec. 2, Rule 1, A.M. No. 01-7-01-SC, Re: Expansion of the Coverage of the Rules on Electronic
Evidence, September 24, 2002)
84. How do you authenticate a private electronic document?
a) By evidence that it had been digitally signed by the person purported to have signed the same;
b) By evidence that other appropriate security procedures or devices as may be authorized by the
Supreme Court or by law for authentication of electronic documents were applied to the
document; or
c) By other evidence showing its integrity and reliability to the satisfaction of the judge. (Sec. 2, Rule 5,
A.M. No. 01-7-01-SC)
85. How do you prove ephemeral electronic communications such as text messages, chatroom
sessions, under the Rules on Electronic Evidence?
Ephemeral electronic communications shall be proven by the testimony of a person who was a party
to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses,
other competent evidence may be admitted. (Sec. 2, Rule 11, A.M. No. 01-7-01-SC)
86. Can the trial court allow the submission of Supplemental Judicial Affidavit, even if trial had
already commenced?
Yes. The Judicial Affidavit Rule contains a caveat that the failure to timely submit the affidavits and
documentary evidence shall be deemed to be a waiver of their submission. However, the submission
of evidence beyond the mandated period in the Rule is strictly subject to the conditions that: (a) the
court may allow the late submission of evidence only once; (b) the party presenting the evidence
proffers a valid reason for the delay; and (c) the opposing party will not be prejudiced thereby.
Corollary thereto, the Guidelines on Pre-Trial instructs the parties to submit their respective pre-trial
briefs at least three (3) days before the pre-trial . (Lara’s Gift and Decors, Inc. vs. PNB General Insurers Co.,
Inc. G.R. No. 230429, January 24, 2018)
87. What is the Contemporaneous Objection Rule?
It requires that a specific and timely objection be made to the admission of evidence. Objections to
the admission of evidence must be made seasonably, at the time it is introduced or offered, otherwise
they are deemed waived, and will not be entertained for the first time on appeal. (People vs. Banares,
G.R. No. 68298, November 25, 1986)
88. What are the prohibited motions and pleadings under the following rules?
Summary Procedure Small Claims Writ of Amparo and Writ of Kalikasan

Writ of Habeas Data
a) Motion to dismiss the complaint a) Motion to dismiss the a) Motion to dismiss; a) Motion to
or to quash the complaint or complaint; b) Motion for extension of dismiss;
information except on the b) Motion for a bill of time to file return, b) Motion for
ground of lack of jurisdiction particulars; opposition, affidavit, extension of
over the subject matter, or c) Motion for new trial, or for position paper and other time to file
failure to comply with the reconsideration of a pleadings; return;
preceding section; judgment, or for c) Dilatory motion for c) Motion for
b) Motion for a bill of particulars; reopening of trial; postponement; postponement;
c) Motion for new trial, or for d) Petition for relief from d) Motion for bill for d) Motion for bill of
reconsideration of a judgment, judgment; particulars; particulars;
or for opening of trial; e) Motion for extension of e) Counterclaim or e) Counterclaim;
d) Petition for relief from judgment; time to file pleadings, crossclaim; f) 3rd party
e) Motion for extension of time to affidavits, or any other f) 3rd party complaint; complaint;
file pleadings, affidavits or any paper; g) Reply; g) Reply motion to
other paper; f) Memoranda; h) Motion to declare declare
f) Memoranda; g) Petition for certiorari, respondent in default; respondent in
g) Petition for certiorari, mandamus, or prohibition i) Intervention; default.
mandamus, or prohibition against any j) Memorandum;
against any interlocutory order h) interlocutory order issued k) MR of interlocutory
issued by the court; by the court; orders or interim relief
h) Motion to declare the defendant i) Motion to declare the orders; and
in default; defendant in default; l) Petition for certiorari,
i) Dilatory motions for j) Dilatory motions for mandamus or prohibition
postponement; postponement; against any interlocutory
j) Reply; k) Reply; order
k) Third party complaints; l) Third-party complaints;
l) Interventions. and
m) Interventions.
89. What is Proffer of Evidence or Tender of Excluded Evidence?
The rule is that evidence formally offered by a party may be admitted or excluded by the court. If a
party's offered documentary or object evidence is excluded, he may move or request that it be
attached to form part of the records of the case. If the excluded evidence is oral, he may state for the
record the name and other personal circumstances of the witness and the substance of the proposed
testimony. These procedures are known as offer of proof or tender of excluded evidence and are
made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he
may in his appeal assign as error the rejection of the excluded evidence. (Fortune Tobacco Corporation vs.
CIR, G.R. No. 192024, July 1, 2015)
90. What is clerical or typographical error?
Clerical or typographical error refers to a mistake committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth, mistake in the entry of day and month in the
date of birth or the sex of the person or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing record or
records: Provided, however, That no correction must involve the change of nationality, age, or status
of the petitioner. (R.A. 9048, as amended by R.A. No. 10172)
HABEAS AMPARO HABEAS DATA KALIKASA CONTINUIN
CORPUS N G
MANDAMU
S
Involves the right Involves the right to Involves the right Involves the Involves an
to liberty. It life, liberty and to privacy, life, right to environment
extends to all security. It covers liberty, and balanced al and other
cases of illegal extrajudicial security. and related law,
confinement or killings, enforced healthful rule, or
detention by disappearances, ecology regulation,
which any and threats thereof involving or right
person is environment therein
deprived of al damage
liberty, or by of such
Essence
which the rightful magnitude
custody of any as to
person is prejudice
withheld from the the life,
person entitled health or
thereto. property of
inhabitants
in two or
more cities
or provinces
1) RTC where 1) RTC of the 1) RTC where CA, SC CA, SC
the person is place where the petitioner
detained; the threat, act or
2) Sandiganbay or omission respondent
an; was committed resides, or
3) Court of or any of its that which
Appeals; elements has
occurred; jurisdiction
4) Supreme
Court; or 2) Sandiganbaya over the
n; place where
Jurisdicti 5) Any justice the data or
on/Venue of the three 3) Court of
Appeals; information
preceding is gathered,
courts 4) Supreme
collected,
Court; or
stored, at the
5) Any justice of option of the
the three petitioner
preceding 2) Sandiganbay
courts.
an
3) CA
4) SC
On any day and On any day and at Only indigent Exempt from No docket
When to at anytime any time; Exempt petitioner is payment of fees
file/docke from docket and exempt from docket fees
t fees other lawful fees docket and other
lawful fees
1) Temporary 1) Ocular
protection inspecti
order on order
2) Inspection 2) Inspecti
Available
order on order
interim
reliefs 3) Production 3) Producti
order on order
4) Witness
protection
order
48 hours from Any party may Any party may Any party
notice of appeal from the appeal from the may appeal
judgement final judgement or final judgement to the SC
appealed form order to the SC or order to the under rule
by ordinary under Rule 45. The SC under Rule 45. The
appeal appeal may raise 45. The appeal appeal may
questions of fact or may raise raise
law or both The questions of fact questions of
period of appeal or law or both fact. The
shall be five (5) The period of appeal must
Appeal working days from appeal shall be be taken
the date of notice five (5) working within 15
of the adverse days form the days from
judgement. date of notice of the date of
the judgement or notice of
final order adverse
judgement arellano C|L|E|A|R 18
or denial of
motion for

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Arellano University School of

Law Center for Legal Education and Research

2019 BAR OPERATIONS COMMISSION

1. State the Doctrine of Non-Interference or Judicial Stability.

2. What is the Principle of Hierarchy of Courts?

3. Discuss the following concepts in Jurisdiction.

f) Special Jurisdiction – restricts the court’s jurisdiction only to particular cases.

i) Continuity of Jurisdiction/Adherence to Jurisdiction – once a court has acquired jurisdiction,

j) Delegated Jurisdiction – authority of an MTC to hear and determine cadastral or land

6. Determine which court has jurisdiction over the following actions:

b) A complaint involving an intra-corporate controversy.

8. Distinguish Residual Jurisdiction from Residual Prerogatives.

RESIDUAL JURISDICTION RESIDUAL PREROGATIVE

Failure to State a Cause of Action Lack of Cause of Action

13. Distinguish Compulsory counterclaim from Permissive counterclaim.

15. Differentiate Indispensable Party from Necessary Party.

INDISPENSABLE PARTY NECESSARY PARTY

17. What is Forum Shopping?

21. What are the Modes of Service of Summons?

DEFENDANT MODE OF SERVICE AVAILABLE

23. What are the two kinds of res judicata?

BAR BY PRIOR JUDGMENT CONCLUSIVENESS OF JUDGMENT

24. What is the Two-Dismissal Rule?

a) There was a previous case that was dismissed by a competent court;

25. What is terceria?

26. Distinguish Demurrer in Civil cases from Criminal cases.

CIVIL DEMURRER CRIMINAL DEMURRER

28. Distinguish Summary Judgment from Judgment on the Pleadings.

SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS

REVIEW ON CERTIORARI (RULE 45) CERTIORARI (RULE 65)

31. Grounds for the discharge of a writ of attachment.

a) Upon giving of counterbond, after a writ of attachment has been enforced;

SPECIAL CIVIL ACTIONS

33. Distinguish Certiorari, Prohibition and Mandamus.

Certiorari Prohibition Mandamus

QUO WARRANTO IMPEACHMENT

36. Distinguish Extrajudicial Foreclosure from Judicial Foreclosure.

EXTRA-JUDICIAL FORECLOSURE JUDICIAL FORECLOSURE

37. Distinguish Forcible Entry from Unlawful Detainer.

FORCIBLE ENTRY UNLAWFUL DETAINER

42. What is the Statute of Non-Claims?

44. What is the writ of Continuing Mandamus?

RULE 103 RULE 108 RA 9048, as amended by R.A.

47. What is clerical or typographical error?

48. What are the cases cognizable by the Sandiganbayan?

a. Violations of Anti-Graft and Corrupt Practices Acts (RA No. 3019);

a. Violations of the Omnibus Election Code;

a) Motion for judicial determination of probable cause;

51. May hearsay evidence be properly admitted in preliminary investigation?

Yes. Hearsay evidence is admissible in determining probable cause in a preliminary investigation

52. Distinguish Executive Determination of Probable Cause from Judicial Determination of

NEWLY FILED PENDING CASES

54. When is amendment of Information formal? When is it substantial?

55. Distinguish Bail as a Matter of Right from Discretion.

AS A MATTER OF RIGHT AS A MATTER OF DISCRETION

56. What is a Bench Warrant?

57. What is inordinate delay?*

58. What are the requisites for double jeopardy to attach?*

59. Distinguish Bill of Particulars in Criminal Case from Civil Cases.

60. What is a prejudicial question?

62. What is the Variance Doctrine?

64. Discuss the relevant provisions on Cybercrime warrants.

RULES ON CYBERCRIME WARRANTS