bar eq 2014- remedial law

7/24/2019 Bar EQ 2014- Remedial Law

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REMEDIAL LAW

BAR EXAM QUESTIONS (2014)

I.

Ludong,Balatong, andLabongwere charged with murder. After trial, the court announced that the case was

considered submitted for decision. Subsequently, the Clerk of Court issued the notices of promulgation of

judgment which were duly received. On promulgation day,Ludongand his lawyer appeared. The lawyers

ofBalatongandLabongappeared but without their clients and failed to satisfactorily explain their absence

when queried by the court. Thus, the judge ordered the Clerk of Court to proceed with the reading of the

judgment convicting all the accused. With respect toBalatongandLabong, the judge ordered that the

judgment be entered in the criminal docket and copies be furnished their lawyers. The lawyers

ofLudong,Balatong, andLabongfiled within the reglementary period a Joint Motion for Reconsideration. The

court favorably granted the motion ofLudongdowngrading his conviction from murder to homicide but denied

the motion as regardsBalatongandLabong.(4%)

(A)Was the court correct in taking cognizance of the Joint Motion for Reconsideration?

(B)CanBalatongandLabongappeal their conviction in caseLudongaccepts his conviction for homicide?

ANSWERS:

(A)

No, the court was not correct in taking cognizance of the Joint Motion for Reconsideration insofar

asBalatongandLabongwere concerned.

Under Section 6 Rule 120, if the judgment was for conviction and the failure of the accused to appear

was without justifiable cause, he shall lose the remedies available under the Rules of Court and the court shall

order his arrest. The accused may regain the remedies only if he surrenders and files a motion for leave to

avail of the remedies under the Rules of Court.

Here the failure ofBalatongandLabong to appear was without justifiable cause as even their lawyers

were not aware of the reason for their absence. Hence they lost their remedies under the Rules.

SinceBalatongandLabongdid not surrender and file a motion for leave to avail of remedies, it was incorrect

for the trial court to take cognizance of the joint motion for reconsideration insofar

asBalatongandLabongwere concerned. The trial court should instead have ordered their arrest. (People v.

De Grano, 5 June 2009, Peralta, J.).

On the other hand, it was correct for the trial court to take cognizance of the joint motion for

reconsideration insofar asLudongwas concerned since he and his lawyer were present during the

promulgation.

(B)

No,BalatongandLabongcannot appeal their conviction in caseLudongaccepts his conviction for

homicide.



SinceBalatongandLabongfailed to appear during the promulgation of the conviction without

justifiable cause, they lost the remedies under the Rules of Court including the remedy of an appeal.

II.

McJollyis a trouble-maker of sorts, always getting into brushes with the law. In one incident, he drove his

Humvee recklessly, hitting a pedicab which sent itsdriverand passengersin different directions. The pedicab

driverdied, while two (2) of the passengerssuffered slight physical injuries. Two (2) Informations were then

filed againstMcJolly. One, forReckless Imprudence Resulting in Homicide and Damage to Property, and two,

forReckless Imprudence Resulting in Slight Physical Injuries. The latter case was scheduled for arraignment

earlier, on which occasionMcJollyimmediately pleaded guilty. He was meted out the penalty of public

censure. A month later, the case for reckless imprudence resulting in homicide was also set for arraignment.

Instead of pleading,McJollyinterposed the defense of double jeopardy. Resolve.(4%)

ANSWER:

The defense of double jeopardy is meritorious and the second information for reckless imprudence

resulting in homicide should be quashed on the ground of double jeopardy.

The Supreme Court has held that reckless imprudence is a single crime and that its consequences on

persons and property are material only to determine the penalty.

Here there was only one act and crime of reckless imprudence. The death, the physical injuries, and

the damage to the tricycle are only consequences of the same reckless act of McJolly. Hence there was

double jeopardy when a second information arising from the same reckless act was brought against the

accused. (Ivler v. Modesto-San Pedro, 17 November 2010).

III.

While passing by a dark uninhabited part of theirbarangay,PO2 Asintadoobserved shadows and heard

screams from a distance.PO2 Asintadohid himself behind the bushes and saw a man beating a woman

whom he recognized as his neighbor,Kulasa. WhenKulasawas already in agony, the man stabbed her and

she fell on the ground. The man hurriedly left thereafter.

PO2 Asintadoimmediately went toKulasa’s rescue.Kulasa, who was then in a state of hysteria, kept

mentioning toPO2 Asintado“Si Rene, gusto akong patayin! Sinaksak niya ako!” WhenPO2 Asintadowas

about to carry her,Kulasarefused and said “Kaya ko. Mababaw lang to. Habulin mo si Rene.”

The following day,Renelearned ofKulasa’s death and, bothered by his conscience, surrendered to the

authorities with his counsel. As his surrender was broadcasted all over media,Reneopted to release his

statement to the press which goes:

“I believe that I am entitled to the presumption of innocence until my guilt is proven beyond reasonable doubt.

Although I admit that I performed acts that may take one’s life away, I hope and pray that justice will be served

the right way. God bless us all.



(Sgd.)

Rene”

The trial court convictedReneof homicide on the basis ofPO2 Asintado’s testimony,Kulasa’sstatements,

andRene’s statement to the press. On appeal,Reneraises the following errors:

1. The trial court erred in giving weight toPO2 Asintado’stestimony, as the latter did not have any personal

knowledge of the facts in issue, and violatedRene’s right to due process when it consideredKulasa’s

statements despite lack of opportunity for her cross-examination.

2. The trial court erred in holding thatRene’s statement to the press was a confession which, standing alone,

would be sufficient to warrant conviction.

Resolve.(4%)

ANSWER:

Rene’s appeal is denied for lack of merit.

1. The contention that the trial court erred in giving weight toPO2 Asintado’s testimony since he did not

have personal knowledge of the facts in issue is without merit. The contention in effect

challengesKulasa’sstatement for being hearsay.

Under the Rules of Evidence, a statement made immediately subsequent to a startling occurrence is

excepted from the hearsay rule as part of theres gestae.

Here Kulasa’s statement was made immediately subsequent to a starling occurrence, that is, her

stabbing by Rene, and was made in a state of hysteria, showing that she was under the influence of thestartling occurrence. Hence testimony regarding the statement is excepted from the hearsay rule.

Since Kulasa’s statement is an exception to the hearsay rule, Rene cannot complain that his right to

due process was violated when the trial court considered Kulasa’s statement despite lack of opportunity to

cross-examine her.

There should be no serious question about the admissibility against an accused of hearsay where this

hearsay falls under an exception to the hearsay rule, especially here where the declarant is dead and thus

unavailable to testify. (ANTONIO R. BAUTISTA, BASIC EVIDENCE 214-215 [2004 ed.]). InU.S. v. Gil, 13

Phil. 530 (1909), the Supreme Court upheld dying declarations as an exception to the confrontation clause

since “such declarations have always been regarded as an exception to the general rule regarding hearsay

evidence.”

2. The argument that the trial court erred in holding thatRene’s statement to the press was a

confession which, standing alone, would be sufficient to warrant conviction is meritorious.

Firstly, Rene’s statement is not a confession but an admission. A confession is one wherein a person

acknowledges his guilt of a crime, which Rene did not do. Secondly, even assuming it is a confession,

standing alone it would not be sufficient to warrant conviction since it is an extrajudicial confession which is

not sufficient ground for conviction unless corroborated by evidence of corpus delicti. (S3 R133).



Nonetheless this was a harmless error since the admission of Rene was corroborated by the

testimony of PO2 Asintado on Kulasa’s statement.

IV.

An order of the court requiring a retroactive re-dating of an order, judgment or document filing be entered or

recorded in a judgment is:(1%)

(A)Pro Hac Vice

(B)Non Pro Tunc

(C)Confession Relicta Verificatione

(D)Nolle Prosequi

ANSWER:

(B) (Note: Should be “nunc pro tunc.”).

V.

Landlord, a resident of Quezon City, entered into a lease contract withTenant, a resident of Marikina City,

over a residential house in Las Piñas City. The lease contract provided, among others, for a monthly rental of

P25,000.00, plus ten percent (10%) interest rate in case of non-payment on its due date.

Subsequently,Landlordmigrated to the United States of America (USA) but granted in favor of his

sisterMaria, a special power of attorney to manage the property and file and defend suits over the propertyrented out toTenant.Tenantfailed to pay the rentals due for five (5) months.Mariaasks your legal advice on

how she can expeditiously collect fromTenantthe unpaid rentals plus interests due.(6%)

(A)What judicial remedy would you recommend toMaria?

(B)Where is the proper venue of the judicial remedy which you recommended?

(C)IfMariainsists on filing an ejectment suit againstTenant,when do you reckon the one (1)-year period

within which to file the action?

ANSWERS:

(A)

The judicial remedy that I would recommend to Maria is to file a collection suit for the P125,000 rentals

in arrears and the P12,500 interest due. The remedy would be expeditious since it would be governed by the

Rules on Summary Procedure as the amount of the demand, excluding interest, does not exceed

P200,000.

(B)



The proper venue of the collection suit would be in Marikina City, where Tenant resides.

Under the Rules of Civil Procedure, venue in personal actions is with the residence of either the

plaintiff or the defendant, at the plaintiff’s election.

Since the Plaintiff does not reside in the Philippines, venue may be laid only in Marikina City where the

defendant Tenant resides.

(C)

If Maria insists on filing an ejectment suit against Tenant, the one-year period within which to file the

action shall be reckoned from the expiration of 5-days from notice of the last demand to pay and vacate.

(Cruz v. Atencio, 28 February 1959; Sy Oh v. Garcia, 30 June 1969).

VI.

As a rule, courts may not grant an application for provisional remedy without complying with the requirements

of notice and hearing. These requirements, however, may be dispensed with in an application for:(1%)

(A)Writ of Preliminary Injunction

(B)Writ of Preliminary Attachment

(C)An Order Granting SupportPendente Lite

(D)A Writ of Replevin

ANSWER:

(B) Writ of Preliminary Attachment

VII.

Co Batong, a Taipan, filed a civil action for damages with the Regional Trial Court (RTC) of Parañaque City

against Jose Penduko, a news reporter of the Philippine Times, a newspaper of general circulation printed

and published in Parañaque City. The complaint alleged, among others, that Jose Pendukowrote malicious

and defamatory imputations againstCo Batong; thatCo Batong’s business address is in Makati City; and that

the libelous article was first printed and published in Parañaque City. The complaint prayed that Jose

Pendukobe held liable to pay P200,000.00, as moral damages; P150,000.00, as exemplary damages; and

P50,000.00, as attorney’s fees.

Jose Pendukofiled a Motion to Dismiss on the following grounds:

1. The RTC is without jurisdiction because under the Totality Rule, the claim for damages in the amount of

P350,000.00 fall within the exclusive original jurisdiction of the Metropolitan Trial Court (MeTC) of Parañaque

City.

2. The venue is improperly laid because what the complaint alleged isCo Batong’s business address and not

his residence address.



Are the grounds invoked in the Motion to Dismiss proper?(4%)

ANSWER:

No, the grounds invoked in the motion to dismiss improper.

1. The invocation of the Totality Rule is misplaced. Under Art. 360 of the Revised Penal Code,

jurisdiction over a civil action for damages in case of libel is with the Court of First Instance, now the Regional

Trial Court. (Nocum v. Tan, 23 September 2005). The said provision does not mention any jurisdictional

amount over such action; hence the Totality Rule is inapplicable.

2. The ground that the complaint mentioned the complainant’s office address rather than his residence

is of no moment since the complaint also stated that the libelous article was printed and first published in

Paranaque City. Under Article 360 of the Revised Penal Code, venue in a civil action for libel also lies in the

place where the libelous article was printed and first published.

VIII.

Johnny, a naturalized citizen of the United States of America (USA) but formerly a Filipino citizen, executed a

notarial will in accordance with the laws of the State of California, USA. Johnny, at the time of his death, was

survived by his niece Anastacia, an American citizen residing at the condominium unit of Johnnylocated at

Fort Bonifacio, Taguig City; a younger brother,Bartolome, who manages Johnny’sfish pond in Lingayen,

Pangasinan; and a younger sister,Christina, who manages Johnny’srental

condominium units in Makati City. Johnny’sentire estate which he inherited from his parents is valued at P200

million. Johnnyappointed Anastaciaas executrix of his will.(4%)

(A)Can Johnny’s notarial will be probated before the proper court in the Philippines?

(B)Is Anastaciaqualified to be the executrix of Johnny’s notarial will?

ANSWERS:

(A)

Yes, the formal validity of a will is governed also by the national law of the decedent. (Article 817, Civil

Code).

A will proved and allowed in a foreign country, according to the laws of such country, may be allowed,

filed, and recorded by the proper Regional Trial Court in the Philippines. (S1 R77).

(B)

Yes, assuming that Anastacia is of legal age, she is qualified to be an executor although an alien

because she is a resident of the Philippines. (S1 R78).



IX.

Bayani, an overseas worker based in Dubai, issued in favor of Agente, a special power of attorney to sell his

house and lot. Agentewas able to sell the property but failed to remit the proceeds toBayani, as agreed upon.

On his return to the Philippines,Bayani, by way of a demand letter duly received by Agente, sought to recover

the amount due him. Agentefailed to return the amount as he had used it for the construction of his ownhouse.

Thus,Bayanifiled an action against Agentefor sum of money with damages.Bayanisubsequently filed anex-

partemotion for the issuance of a writ of preliminary attachment duly supported by an affidavit. The court

granted theex-partemotion and issued a writ of preliminary attachment uponBayani’s posting of the required

bond.Bayaniprayed that the court’s sheriff be deputized to serve and implement the writ of attachment. On

November 19, 2013, the Sheriff served upon Agentethe writ of attachment and levied on the latter’s house

and lot.

On November 20, 2013, the Sheriff served on Agentesummons and a copy of the complaint. On November

22, 2013, Agentefiled an Answer with Motion to Discharge the Writ of Attachmentalleging that at the time the

writ of preliminary attachment was issued, he has not been served with summons and, therefore, it was

improperly issued.(4%)

(A)Is Agentecorrect?

(B)Was the writ of preliminary attachment properly executed?

ANSWERS:

(A)

No, Agente is not correct.

Under the Rules of Civil Procedure, a writ of attachment may issue even before service of summons

upon the defendant. (S2 R57).

(B)

No, the writ of preliminary attachment not properly executed.

Under S5 R57, no levy on preliminary attachment shall be enforced unless there is prior or

simultaneous service of the summons and the accompanying papers. (S5 R The Supreme Court has held

that subsequent service of summons will not cure the irregularity that attended the enforcement of the writ

(Onate v. Abrogar, 23 February 1995).

Here the sheriff levied upon the house and lot prior to the service of the summons and the complaint

upon Agente. Hence the writ of preliminary attachment was not properly executed. The subsequent service

of summons and the complaint did not cure the irregularity in the enforcement of the writ.

X.



Prince Chongentered into a lease contract withKing Kongover a commercial building where the former

conducted his hardware business. The lease contract stipulated, among others, a monthly rental of

P50,000.00 for a four (4)-year period commencing on January 1, 2010. On January 1, 2013,Prince

Chongdied.Kin Il Chongwas appointed administrator of the estate ofPrince Chong, but the former failed to

pay the rentals for the months of January to June 2013 despiteKing Kong’swritten demands.

Thus, on July 1, 2013,King Kongfiled with the Regional Trial Court (RTC) an action for rescission of contract

with damages and payment of accrued rentals as of June 30, 2013.(4%)

(A)CanKin Il Chongmove to dismiss the complaint on the ground that the RTC is without jurisdiction since

the amount claimed is only P300,000.00?

(B)If the rentals accrued during the lifetime ofPrince Chong,andKing Kongalso filed the complaint for sum

of money during that time, will the action be dismissible uponPrince Chong’s death during the pendency of

the case?

ANSWERS:

(A)

No, Kin II Chong cannot move to dismiss the complaint on the ground that the RTC is without

jurisdiction since the amount claimed is only P300,000.

Under B.P. Blg. 129, the RTC has original and exclusive jurisdiction over actions incapable of

pecuniary estimation.

Here the action is for rescission which is incapable of pecuniary estimation. The P300,000 accrued

rentals is only incidental to the main purpose of the action which is to rescind the lease contract.

(B)

No, the action will not be dismissible upon Prince Chong’s death during the pendency of the case.

Under S20 R3, when the action is on a contractual money claim and the defendant dies before entry

of final judgment, the action shall not be dismissed but shall instead be allowed to continue until entry of final

judgment.

Here the action is on a contractual money claim, that is, a claim for rentals based on a lease contract.

Hence it shall be allowed to continue until final judgment. (S20 R3, S5 R86).

XI.

A search warrant was issued for the purpose of looking for unlicensed firearms in the house of Ass-asin, a

notorious gun for hire. When the police served the warrant, they also sought the assistance ofbarangay

tanodswho were assigned to look at other portions of the premises around the house. In anipahut thirty (30)

meters away from the house of Ass-asin, abarangay tanodcame upon a kilo of marijuana that was wrapped

in newsprint. He took it and this was later used by the authorities to charge Ass-asinwith illegal possession of



marijuana. Ass-asinobjected to the introduction of such evidence claiming that it was illegally seized. Is the

objection of Assasinvalid?(4%)

ANSWER:

Yes, the objection of Ass-asin is valid.

Under the Constitution, the right of the people against unlawful search is inviolable except in cases

where a valid search warrant was issued or in exceptional cases where the law provides for a warrantless

search. (Sec. 2, Art. III, Constitution). Under the fruit of the poisonous tree doctrine, items seized by virtue of

an unlawful search are inadmissible in evidence. (Sec. 3[2], Art. III, Constitution).

Here the the seizure of the marijuana was illegal since it was not pursuant to a search warrant. The

search warrant was for the search and seizure of unlicensed firearms not marijuana. Nor would the exception

regarding items seized under plain view apply. The marijuana was wrapped in newsprint and clearly not in

plain sight. Hence the marijuana may not be introduced in evidence over Ass-asin’s objection.

XII.

Mary JanemetShiela Mayat the recruitment agency where they both applied for overseas employment. They

exchanged pleasantries, including details of their personal circumstances. Fortunately,Mary Janewas

deployed to work as front desk receptionist at a hotel in Abu Dhabi where she metSultan Ahmedwho

proposed marriage, to which she readily accepted. Unfortunately forShiela May, she was not deployed to

work abroad, and this made her envious ofMary Jane.

Mary Janereturned to the Philippines to prepare for her wedding. She secured from the National Statistics

Office (NSO) a Certificate of No Marriage. It turned out from the NSO records thatMary Janehad previously

contracted marriage with John Starr, a British citizen, which she never did. The purported marriage

betweenMary Janeand John Starrcontained all the required pertinent details onMary Jane.Mary Janelater

on learned thatShiela Mayis the best friend of John Starr.

As a lawyer,Mary Janeseeks your advice on her predicament. What legal remedy will you avail to

enableMary Janeto contract marriage withSultan Ahmed?(4%)

ANSWER:

The legal remedy I would avail to enable Mary Jane to contract marriage with Sultan Ahmed is to file apetition under Rule 108 to cancel entries in the marriage contract between John Starr and Mary Jane,

particularly the portion and entries thereon relating to the wife.

Rule 108 may be availed of to cancel erroneous or invalid entries in the Civil Registry. Here the entry

of Mary Jane as the wife of John Starr is clearly erroneous and invalid as she never contracted marriage with

anybody, much less John Starr. There is no need to file a petition for declaration of nullity of marriage since

there was no marriage to speak of in the first place, the marriage contract being a sham contract. (Republic v.

Olaybar, 10 February 2014, Peralta, J.).



XIII.

A foreigndogtrained to sniff dangerous drugs from packages, was hired byFDP Corporation, a door to door

forwarder company, to sniff packages in their depot at the international airport. In one of the routinary

inspections of packages waiting to be sent to the United States of America (USA), thedogsat beside one of

the packages, a signal that the package contained dangerous drugs. Thereafter, the guards opened the

package and found two (2) kilograms of cocaine. Theownerof the package was arrested and charges were

filed against him. During the trial, the prosecution, through the trainer who was present during the incident and

an expert in this kind of field, testified that thedogwas highly trained to sniff packages to determine if the

contents were dangerous drugs and the sniffing technique of these highly trained dogs was accepted

worldwide and had been successful in dangerous drugs operations. The prosecution moved to admit this

evidence to justify the opening of the package. The accused objected on the grounds that: (i) the guards had

no personal knowledge of the contents of the package before it was opened; (ii) the testimony of the trainer of

thedogis hearsay; and (iii) the accused could not cross-examine thedog. Decide.(4%)

ANSWER:

The accused’s objections are overruled.

The objection that the guards had no personal knowledge of the contents of the package before it was

opened is misplaced. The one testifying is the trainer not the guards and he had personal knowledge of the

circumstances since he was present during the incident. Besides there is no rule of evidence that one cannot

testify about the contents of a package if he did not have prior personal knowledge of its contents before

opening it.

The objection that the testimony of the trainer of the dog is hearsay is not valid. Hearsay is an out-of-court declaration made by a person which is offered for the truth of the matter asserted.

Here what is involved is a dog who is not a person who can make an out-of-court declaration.

(Lempert & Saltzburg, A MODERN APPROACH TO EVIDENCE 370-371 [1982]). A dog is not treated as a

declarant or witness who can be cross-examined. (People v. Centolella, 305 N.Y.S.2d 279). Hence testimony

that the dog sat beside the package is not testimony about an out-of-court declaration and thus not hearsay.

The objection that the accused could not cross-examine the dog is without merit. Under the

Constitution, the accused’s right of confrontation refers to witnesses. As previously discussed, a dog is not a

witness who can be cross-examined.

Note: It is urged that utmost liberality be exercised in grading this number. The answer is not found inPhilippine law and jurisprudence and even in commentaries by writers on evidence.

XIV.

When a Municipal Trial Court (MTC), pursuant to its delegated jurisdiction, renders an adverse judgment in an

application for land registration, the aggrieved party’s remedy is:(1%)

(A)ordinary appeal to the Regional Trial Court



(B)petition for review oncertiorarito the Supreme Court

(C)ordinary appeal to the Court of Appeals

(D)petition for review to the Court of Appeals

ANSWER:

(C) (See Sec. 34, B.P. Blg. 129)

XV.

The Ombudsman, after conducting the requisite preliminary investigation, found probable cause to

chargeGov. Matigasin conspiracy withCarpintero, a private individual, for violating Section 3(e) of Republic

Act (RA) No. 3019 ( Anti-Graft and Corrupt Practices Act, as amended).

Before the information could be filed with the Sandiganbayan,Gov. Matigaswas killed in an ambush. This,

notwithstanding, an information was filed againstGov. MatigasandCarpintero.

At the Sandiganbayan,Carpinterothrough counsel, filed a Motion to Quash the Information, on the ground of

lack of jurisdiction of the Sandiganbayan, arguing that with the death ofGov. Matigas, there is no public officer

charged in the information.

Is the motion to quash legally tenable?(4%)

ANSWER:

No, the motion to quash is not legally tenable.

In a case involving similar facts, the Supreme Court held that the death of the public officer did not mean that

the allegation of conspiracy between the public officer and the private person can no longer be proved or that

their alleged conspiracy is already expunged. The only thing extinguished by the death of the public officer

was his criminal liability. His death did not extinguish the crime nor did it remove the basis of the charge of

conspiracy between him and the private person. Hence the Sandiganbayan had jurisdiction over the offense

charged. (People v. Go, 25 March 2014, Peralta, J.)

XVI.

Plaintifffiled a complaint denominated asaccion publiciana, againstdefendant. In his

answer,defendantalleged that he had no interest over the land in question, except as lessee

of Z.Plaintiffsubsequently filed an affidavit of Z, the lessor ofdefendant, stating that Zhad sold to plaintiffall

his rights and interests in the property as shown by a deed of transfer attached to the affidavit.

Thus, plaintiffmay ask the court to render:(1%)

(A)Summary Judgment

(B)Judgment on the Pleadings

(C)Partial Judgment



(D)Judgment by Default

ANSWER:

(A) (S1 & 3, R35)

XVII.

Awas charged before the Sandiganbayan with a crime of plunder, a non-bailable offense, where the court had

already issued a warrant for his arrest. Without Abeing arrested, his lawyer filed aMotion to Quash Arrest

Warrant and to Fix Bail, arguing that the allegations in the information did not charge the crime of plunder but

a crime of malversation, a bailable offense. The court denied the motion on the ground that it had not yet

acquired jurisdiction over the person of the accused and that the accused should be under the custody of the

court since the crime charged was nonbailable.

The accused’s lawyer counter-argued that the court can rule on the motion even if the accused was at-largebecause it had jurisdiction over the subject matter of the case. According to said lawyer, there was no need for

the accused to be under the custody of the court because what was filed was aMotion to Quash Arrest and to

Fix Bail, not aPetition for Bail.

(A)If you are the Sandiganbayan, how will you rule on the motion?(3%)

(B)If the Sandiganbayan denies the motion, what judicial remedy should the accused undertake?(2%)

ANSWERS:

(A)

If I were the Sandiganbayan, I would deny the Motion to Quash Arrest Warrant and to Fix Bail.

The motion to quash warrant of arrest may be considered since only jurisdiction over the person not

custody of the law is required. Jurisdiction over the person of A was obtained by his voluntary appearance

made through the filing of the motion seeking affirmative relief. (SeeMiranda v. Tuliao, 31 March 2006).

Nonetheless I would still deny the motion to quash arrest warrant. The ground that the offense

charged is malversation not plunder is not a valid ground to quash the arrest warrant. A should simply file an

application for bail and contend that he is entitled thereto as a matter of right.

The motion to fix amount of bail, which is in effect an application for bail cannot be granted unless the

accused is in custody of the law. (Miranda v. Tuliao, 31 March 2006). Here A was not in custody of the law but

still at large. Hence the motion to fix the amount of bail should be denied.

(B)

If the Sandiganbayan denies the motion, the judicial remedy that the accused should undertake is to

file a petition for certiorari under Rule 65 with the Supreme Court. Certiorari is available to challenge

interlocutory orders rendered with grave abuse of discretion since appeal is unavailable.



Here the order denying the Motion to Quash Arrest Warrant and to Fix Bail is interlocutory since it

does not completely dispose of the case. Hence certiorari is available. A should aver that the Sandiganbayan

acted with grave abuse of discretion amounting to lack of or excess of jurisdiction in denying his motion.

XVIII.

Awas charged with murder in the lower court. HisPetition for Bailwas denied after a summary hearing on the

ground that the prosecution had established a strong evidence of guilt. NoMotion for Reconsiderationwas

filed from the denial of thePetition for Bail. During the reception of the evidence of the accused, the accused

reiterated his petition for bail on the ground that the witnesses so far presented by the accused had shown

that no qualifying aggravating circumstance attended the killing. The court denied the petition on the grounds

that it had already ruled that: (i) the evidence of guilt is strong; (ii) the resolution for thePetition for Bailis

solely based on the evidence presented by the prosecution; and (iii) no Motion for Reconsideration was filed

from the denial of thePetition for Bail.(6%)

(A)If you are the Judge, how will you resolve the incident?

(B)Suppose the accused is convicted of the crime of homicide and the accused filed a Notice of Appeal, is he

entitled to bail?

ANSWERS:

(A)

If I were the judge, I will grant the Petition for Bail if the evidence does not show any qualifying

aggravating circumstance. In such a case the offense would be only homicide which is bailable.

(i) The ground that the court had already ruled that the evidence of guilt is strong is improper. An order

denying an application for bail is interlocutory and remains at the control of the court until final judgment.

Hence the court is not bound by its earlier ruling and may reconsider the same if the evidence or law warrantsthe same.

(ii) The ground that the resolution for the Petition for Bail is solely based on the evidence presented by the

prosecution is improper. While S8 R114 provides that the prosecution has the burden of proof to show that the

evidence of guilt is strong, it should not be taken to mean that the resolution of the bail application is based

solely on the prosecution evidence. At the hearing for the bail application, both the prosecution and the

accused must be given reasonable opportunity to prove or to disprove, respectively, that the evidence of guilt

is strong. (Santos v. Ofilada, 245 SCRA 56).

(iii) The ground that no motion for reconsideration was filed from the order denying the petition for bail is

improper. As previously discussed, an order denying bail is merely interlocutory. Hence the failure to move

for reconsideration thereof during the trial will not render the order final and conclusive.

(B)

No, after conviction by the RTC of an offense not punishable by death,reclusion perpetua, or life

imprisonment, admission to bail is discretionary. (S5 R114).

XIX.



A vicarious admission is considered an exception to the hearsay rule. It, however, does not cover:(1%)

(A)Admission by a Conspirator

(B)Admission by a Privy

(C)Judicial Admission

(D)Adoptive Admission

(C) Note: a vicarious admission is an extrajudicial admission. Hence C is not covered by the rule regarding

vicarious admissions.

XX.

Tom Wallisfiled with the Regional Trial Court (RTC) a Petition for Declaration of Nullity of his marriage

withDebi Wallison the ground of psychological incapacity of the latter. Before filing the petition,Tom

Wallishad toldDebi Wallisthat he wanted the annulment of their marriage because he was already fed up

with her irrational and eccentric behaviour. However, in the petition for declaration of nullity of marriage, the

correct residential address ofDebi Walliswas deliberately not alleged and instead, the residential address of

their married son was stated. Summons was served by substituted service at the address stated in the

petition. For failure to file an answer,Debi Walliswas declaredin defaultandTom Wallispresented

evidenceex-parte. The RTC rendered judgment declaring the marriage null and void on the ground of

psychological incapacity ofDebi Wallis. Three (3) years after the RTC judgment was rendered,Debi Wallisgot

hold of a copy thereof and wanted to have the RTC judgment reversed and set aside.

If you are the lawyer ofDebi Wallis, what judicial remedy or remedies will you take? Discuss and specify the

ground or grounds for said remedy or remedies.(5%)

ANSWER:

If I were the lawyer of Debi Wallis, the judicial remedy I would take is to file with the Court of Appeals

an action for annulment of the RTC judgment under Rule 47. An action for annulment of judgment may be

resorted to since the remedies of appeal and petition for relief are no longer available through no fault of Debi

Wallis. (S1 R47).

The ground for annulment of judgment would be lack of jurisdiction. Lack of jurisdiction also covers

lack of jurisdiction over the person of the defendant since the judgment would be void. (1 FLORENZ D.

REGALADO, REMEDIAL LAW COMPENDIUM 558 [7th rev. ed., 3rd printing]).

Here the court did not acquire jurisdiction over the person of Debi since there was no valid substituted

service of summons. Substituted service of summons should have been made at Debi’s residence. (S7

R14). Hence the judgment of the RTC was void. Since the judgment is void, the petition for annulment

thereof is imprescriptible. (S3 R47).

Furthermore, default judgments are not allowed in declaration of nullity of marriage. (S3[e] R9).

Hence the trial court’s rendition of a default judgment was made with grave abuse of discretion amounting to

lack of jurisdiction.



XXI.

Goodfeather Corporation, through its President, Al Pakino, filed with the Regional Trial Court (RTC) a

complaint for specific performance againstRobert White. Instead of filing an answer to the complaint,Robert

Whitefiled a motion to dismiss the complaint on the ground of lack of the appropriate board resolution from

the Board of Directors ofGoodfeather Corporationto show the authority of Al Pakinoto represent thecorporation and file the complaint in its behalf. The RTC granted the motion to dismiss and, accordingly, it

ordered the dismissal of the complaint. Al Pakinofiled a motion for reconsideration which the RTC denied. As

nothing more could be done by Al Pakinobefore the RTC, he filed an appeal before the Court of Appeals

(CA).Robert Whitemoved for dismissal of the appeal on the ground that the same involved purely a question

of law and should have been filed with the Supreme Court (SC). However, Al Pakinoclaimed that the appeal

involved mixed questions of fact and law because there must be a factual determination if, indeed, Al

Pakinowas duly authorized byGoodfeather Corporationto file the complaint. Whose position is correct?

Explain.(4%)

ANSWER:

Robert White’s position is correct. In a case involving similar facts, the Supreme Court held that the

issue of whether or not the trial court erred in dismissing the complaint on the ground that the person who

filed the complaint in behalf of the plaintiff corporation was not authorized to do so is a legal issue, reviewable

only by the Supreme Court in a petition for review on certiorari under Rule 45. (Tamondong v. Court of

Appeals, 26 November 2004).

(Note: An alternative answer would be that the appeal raises a factual question of whether or not Al

Pakino was indeed authorized to file the complaint in behalf of Goodfeather Corporation. A reading

ofTamondongwould show that the appellant only raised a legal question of whether it was proper to dismiss

the complaint for failure to state a cause of action but did not raise a factual issue as to whether the filer was

in fact authorized by the corporation.).

XXII.

Which of the following decisions may be appealed directly to the Supreme Court (SC)? (Assume that the

issues to be raised on appeal involve purely questions of law)(1%)

(A)Decision of the Regional Trial Court (RTC) rendered in the exercise of its appellate jurisdiction.

(B)Decision of the RTC rendered in the exercise of its original jurisdiction.

(C)Decision of the Civil Service Commission.

(D)Decision of the Office of the President.

ANSWER:

(B) Note: In an appeal from RTC judgment in the exercise of its appellate jurisdiction, the appeal should be to

the CA even if the questions are only legal. Hence A should be excluded. (S2[c] R42).

XXIII.



Mr. Humptyfiled with the Regional Trial Court (RTC) a complaint againstMs. Dumptyfor damages. The RTC,

after due proceedings, rendered a decision granting the complaint and orderingMs. Dumptyto pay damages

toMr. Humpty.Ms. Dumptytimely filed an appeal before the Court of Appeals (CA), questioning the RTC

decision. Meanwhile, the RTC grantedMr. Humpty’smotion for execution pending appeal. Upon receipt of the

RTC’s order granting execution pending appeal,Ms. Dumptyfiled with the

CA another case, this time a special civil action forcertiorariassailing said RTC order. Is there a violation of

the rule against forum shopping considering that two (2) actions emanating from the same case with the RTC

were filed byMs. Dumptywith the CA? Explain.(4%)

ANSWER:

No, there is no violation of the rule against forum shopping.

Forum shopping applies where two or more initiatory pleadings were filed by the same party. This is

discernible from the use of the phrase “commenced any action or filed any claim” in S5 R7.

Here the first case involves the filing by Ms. Dumpty of a notice of appeal which is not an initiatory

pleading. Hence there is no forum shopping.

XXIV.

SolomonandFaithgot married in 2005. In 2010,Solomoncontracted a second marriage withHope.

WhenFaithfound out about the second marriage ofSolomonandHope, she filed a criminal case for bigamy

before the Regional Trial Court (RTC) of Manila sometime in 2011.

Meanwhile,Solomonfiled a petition for declaration of nullity of his first marriage withFaithin 2012, while the

case for bigamy before the RTC of Manila is ongoing. Subsequently,Solomonfiled a motion to suspend the

proceedings in the bigamy case on the ground of prejudicial question. He asserts that the proceedings in the

criminal case should be suspended because if his first marriage withFaithwill be declared null and void, it will

have the effect of exculpating him from the crime of bigamy. Decide.(4%)

ANSWER:

Motion to suspend proceedings denied.

Under the Rules of Criminal Procedure, a prejudicial question arises if there has been a previouslyfiled civil action. Here the civil action was filed after the criminal action. Hence no prejudicial question will

arise.

Moreover the Supreme Court has held that a pending case for declaration of nullity of marriage does

not raise a prejudicial question to a charge of bigamy since a person who contracts a second marriage without

first awaiting a judicial declaration of nullity of his first marriage has already committed bigamy. (People v.

Odtuhan, 17 July 2013, Peralta, J.).



XXV.

Mr. Boazfiled an action for ejectment againstMr. Jachinbefore the Metropolitan Trial Court (MeTC).Mr.

Jachinactively participated in every stage of the proceedings knowing fully well that the MeTC had no

jurisdiction over the action. In his mind,Mr. Jachinwas thinking that if the MeTC rendered judgment against

him, he could always raise the issue on the jurisdiction of the MeTC. After trial, the MeTC rendered judgmentagainstMr. Jachin. What is the remedy ofMr. Jachin?(1%)

(A)File an appeal

(B)File an action for nullification of judgment

(C)File a motion for reconsideration

(D)File a petition forcertiorariunder Rule 65

ANSWER:

(A) See S8 R40. R47 is not available since appeal is still available. Not C since a prohibited pleading.

XXVI.

Parole evidence is an:(1%)

(A)Agreement not included in the document

(B)Oral agreement not included in the document

(C)Agreement included in the document

(D)Oral agreement included in the document

ANSWER:

(A) Note: It is suggested that either A or B be considered as correct. Strictly speaking parol evidence does

not have to be an agreement; it is simply any evidence, whether written or oral, which is not contained in a

written agreement subject of a case and which seeks to modify, alter, or explain the terms of the written

agreement.

XXVII.

Mr. Avengerfiled with the Regional Trial Court (RTC) a complaint againstMs. Brightfor annulment of deed of

sale and other documents.Ms. Brightfiled a motion to dismiss the complaint on the ground of lack of cause of

action.Mr. Avengerfiled an opposition to the motion to dismiss. State and discuss the appropriate

remedy/remedies under each of the following situations:(6%)

(A)If the RTC grantsMs. Bright’s motion to dismiss and dismisses the complaint on the ground of lack of

cause of action, what will be the remedy/remedies ofMr. Avenger?

(B)If the RTC deniesMs. Bright’s motion to dismiss, what will be her remedy/remedies?

(C)If the RTC deniesMs. Bright’s motion to dismiss and, further proceedings, including trial on the merits, are

conducted until the RTC renders a decision in favor ofMr. Avenger, what will be the remedy/remedies ofMs.

Bright?



ANSWERS:

(A)

If the RTC grants Ms. Brights’s motion to dismiss, the remedies of Mr. Avenger are:

(a) File a motion for reconsideration under Rule 37.

(b) Re-file the complaint. The dismissal does not bar the re-filing of the case (S5 R16).

(c) Appeal from the order of dismissal. The dismissal order is a final order as it completely disposes of the

case; hence it is appealable.

(d) File an amended complaint as a matter of right curing the defect of lack of cause of action before the

dismissal order becomes final. This is because a motion to dismiss is not a responsive pleading; hence Mr.

Avenger can amend the complaint as a matter of right. (S2 R10).

(B)

If the RTC denies Ms. Bright’s motion to dismiss, her remedies are:

(a) File a motion for reconsideration.

(b) Proceed to trial and if she loses, appeal and assign the failure to dismiss as a reversible error.

(c) File a special civil action for certiorari and/or mandamus if the denial of the order to dismiss is made with

grave abuse of discretion amounting to lack of or excess of jurisdiction.

(C)

If the RTC renders a decision in favor of Mr. Avenger, Ms. Bright’s remedies are:

(a) File a motion for reconsideration or new trial under Rule 37.

(b) File an appeal to the Court of Appeals under Rule 41.

(c) File an appeal to the Supreme Court under Rule 45 if the appeal will raise only questions of law.

(d) File a petition for relief from judgment under Rule 38.

(e) File an action for annulment of judgment under Rule 47 on the ground of extrinsic fraud or lack of

jurisdiction.

XXVIII.

Awas adopted byBandCwhen Awas only a toddler. Later on in life, Afiled with the Regional Trial Court

(RTC) a petition for change of name under Rule 103 of the Rules of Court, as he wanted to reassume the



surname of his natural parents because the surname of his adoptive parents sounded offensive and was

seriously affecting his business and social life.

The adoptive parents gave their consent to the petition for change of name. May Afile a petition for change of

name? If the RTC grants the petition for change of name, what, if any, will be the effect on the respective

relations of Awith his adoptive parents and with his natural parents? Discuss.(4%)

ANSWER:

Yes, A may file a petition for change of name. Changing name on the ground that it is offensive and

seriously affects the petitioner’s business and social life is a valid ground especially where the adoptive

parents had given their consent.

The grant of the petition will not change A’s relations with his adoptive and natural parents. The

Supreme Court has held that change of name under Rule 103 affects only the name and not the status of the

petitioner. (Republic v. CA, 21 May 1992).

XXIX.

Estrellawas the registered owner of a huge parcel of land located in a remote part of theirbarrioinBenguet.

However, when she visited the property after she took a long vacation abroad, she was surprised to see that

her childhood friend, John, had established a vacation house on her property.

BothEstrellaand Johnwere residents of the samebarangay. To recover possession,Estrellafiled a complaint

for ejectment with the Municipal Trial Court (MTC), alleging that she is the true owner of the land as evidenced

by her certificate of title and tax declaration which showed the assessed value of the property as P21,000.00.

On the other hand, JohnrefutedEstrella’sclaim of ownership and submitted in evidence a Deed of Absolute

Sale between him andEstrella. After the filing of John’s answer, the MTC observed that the real issue was one

of ownership and not of possession. Hence, the MTC dismissed the complaint for lack of jurisdiction.

On appeal byEstrellato the Regional Trial Court (RTC), a full-blown trial was conducted as if the case was

originally filed with it. The RTC reasoned that based on the assessed value of the property, it was the court of

proper jurisdiction. Eventually, the RTC rendered a judgment declaring Johnas the owner of the land and,

hence, entitled to the possession thereof.(4%)

(A)Was the MTC correct in dismissing the complaint for lack of jurisdiction? Why or why not?

(B)Was the RTC correct in ruling that based on the assessed value of the property, the case was within its

original jurisdiction and, hence, it may conduct a full-blown trial of the appealed case as if it was originally filedwith it? Why or why not?

ANSWERS:

(A)



No, the MTC was not correct in dismissing the case for lack of jurisdiction. The Supreme Court has

held that an allegation of ownership as a defense in the answer will not oust the MTC of jurisdiction in an

ejectment case. (Subano v. Vallecer, 24 March 1959). What determines subject-matter jurisdiction is the

allegations in the complaint and not those in the answer. Furthermore, the MTC is empowered under S16

R70 to resolve the issue of ownership, albeit for the purpose only of resolving the issue of possession.

(B)

No the RTC was not correct in ruling that the case was within its original jurisdiction and that hence it

may conduct a full-blown trial of the appealed case as if it were originally filed with it.

Under S8 R40, if an appeal is taken from an MTC order dismissing a case for lack of jurisdiction

without a trial on the merits, the RTC on appeal may affirm the dismissal order andif it has jurisdiction

thereover, try the case on the merits as if the case was originally filed with it.

Here the RTC did not have jurisdiction over the case since it is an ejectment suit cognizable

exclusively by the MTC. The assessed value of the land is irrelevant for the purpose of determining jurisdiction in ejectment suits and would not oust the MTC of jurisdiction in the same manner as allegations of

ownership would not oust the MTC of jurisdiction.

The RTC should have reversed the dismissal order and remanded the case to the MTC for further

proceedings. (S8 R40).

Note: Utmost liberality should be given to the examinee on this question as it does not appear to be

within the coverage of the remedial law examination per the bar examination syllabus given by the Supreme

Court.

bar eq 2014- remedial law

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