PRE-WEEK REVIEW PREDICTIONS AND REMINDERS

2010 bAR Review predictions

in

Remedial Law I

by:

Prof. Arturo M. de Castro

(Pre-Bar Reviewer, Global Best Practice, UP Law Center, PCU; Professor of Law, Ateneo, UP)

1. May lack of cause of action be cured by evidence presented during the trial and amendments to conform to the evidence?

Ans:Amendments of pleadings are allowed under Rule 10 of the 1997 Rules of Civil Procedure in order that the actual merits of a case may be determined in the most expeditious and inexpensive manner without regard to technicalities, and that all other matters included in the case may be determined in a single proceeding, thereby avoiding multiplicity of suits. Section 5 thereof applies to situations wherein evidence not within the issues raised in the pleadings is presented by the parties during the trial, and to conform to such evidence the pleadings are subsequently amended on motion of a party. Thus, a complaint which fails to state a cause of action may be cured by evidence presented during the trial. (Swagman Hotels & Travel, Inc. vs. CA, et. al., G.R. No. 161135, April 8, 2005, Davide)

2. May a complaint that lacks a cause of action at the time it was filed be cured by the accrual of a cause of action during the pendency of the case?

Ans:No. The curing effect under Section 5 of Rule 10 of the 1997 Rules of Civil Procedure is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts. Unless the plaintiff has a valid and subsisting cause of action at the time his action is commenced, the defect cannot be cured or remedied by the acquisition or accrual of one while the action is pending, and a supplemental complaint or an amendment setting up such after-accrued cause of action is not permissible. Hence, contrary to the holding of the trial court and the CA, the defect of lack of cause of action at the commencement of this suit cannot be cured by the accrual of a cause of action during the pendency of this case arising from the alleged maturity of two of the promissory notes.

The action is prematurely brought and is, therefore, a groundless suit, which should be dismissed by the court upon proper motion seasonably filed by the defendant. The underlying reason for this rule is that a person should not be summoned before the public tribunals to answer for complaints which are immature. (Swagman Hotels and Travel, Inc. vs. Court of Appeals and Neal Christian, G.R. No. 161135, April 8, 2005)

3. Is the joinder of parties subject to the rule on venue and jurisdiction?

Ans: No, as long as joinder of parties is permitted because the causes of action arise from the same or series of transactions, and there are common questions of facts and law, the causes of action for a sum of money may be joined in one Complaint. Jurisdiction is determined by the totality of the demand and the Complaint may be filed in any venue in the Court that has jurisdiction based on the totality of the demand.

Sec. 5 Joinder of causes of action A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

(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) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

4. A files a case against B Corporation. The Sheriff serves the summons on a Vice-President of B Corporation. Is the service of summons valid?

Ans:No, the persons authorized to receive service of summons on behalf of the corporation are limited only to the President, Corporate Secretary, treasurer, or in-house counsel exclusively.

5. Distinguish between lack of legal capacity to sue from lack of personality to sue? How is insufficiency of cause of action determined?

Ans:The former refers to plaintiffs general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality while the latter refers to the fact that the plaintiff is not the real party in interest.

If the plaintiff is not a real party-in-interest, the Complaint does not state a cause of action. The insufficiency of the cause of action must appear in the face of the complaint in order to sustain a dismissal on this ground, for in the determination of whether or not a complaint states a cause of action, only the facts alleged therein and no other matter may be considered, and the court may not inquire into the truth of the allegations, and find them to be false before a hearing is had on the merits of the case; and it is improper to inject in the allegations of the complaint facts not alleged or proved, and use these as basis for said motion. (Nemesio Evangelista, et. al. vs. Carmelino Santiago, G.R. No. 157447, April 29, 2005)

6. May a party who has availed himself of a motion for new trial file a Petition for relief?

Ans:No. A party who has filed a timely motion for new trial cannot file a petition for relief after his motion has been denied. These two remedies are exclusive of each other. It is only in appropriate cases where a party aggrieved by a judgment has not been able to file a motion for new trial that a petition for relief can be filed. (Dalia Francisco, et. al. vs. Hon. Benigno M. Puno, G.R. No. 55694, October 23, 1981)

1. When is Constructive service (by publication) allowed?

Ans:Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (Rules of Court, Rule 14, Sec. 14)

2. When is extra-territorial service of summons allowed?

Ans:Extra-territorial service of summons is allowed where the action is against a non-resident defendant who is not found in the Philippines and the action:

1) affects the personal status of plaintiffs;

2) relates to or subject of which is property in the Philippines (real or personal), in which the defendant has claim, lien or interest, actual or contingent; or

3) in which relief demanded consists wholly, or in part, in excluding the defendant from any interest therein; or

4) property of defendant has been attached in the Philippines. (Banco Espaol-Filipino v. Palanca, 37 Phil. 921 [1918]; Perkins v. Dizon, 69 Phil. 186 [1939]; Sahagum v. Court of Appeals, G.R. No. 78328, June 3, 1991, 198 SCRA 44)

Thus, extra-territorial service of summons is proper only in actions in rem or quasi-in-rem. The remedy against a non-resident defendant who cannot be served with summons in the Philippines is to locate real or personal property and attach the property. The action becomes in rem or quasi-in-rem (Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, No. L-70661, April 9, 1987, 149 SCRA 194) in which case, service by publication is permissible. Where, however, the attachment is invalid, the service by publication is void (Obaa v. Court of Appeals, G.R. No. 87635, April 27, 1989, 172 SCRA 886). To be effective, extra-territorial service of summons must be with leave of court and only through any of the following means:

1) Personal service;

2) By publication (and copy of the summons and order of the court must be sent by registered mail to the last known address);

3) By publication (and copy of summons and order of the court) must be sent by registered mail at last known address; Any other manner which the court may deem sufficient. (Rule of Court, Rule 14, Sec. 17)

3. When is dismissal of the complaint by notice of the plaintiff with prejudice?

Ans:In the following:

1) where the notice of dismissal so provides;

2) where the plaintiff has previously dismissed the same case in a court of competent jurisdiction;

3) even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claims involved. For the notice of dismissal to be effective, there must be an order confirming the dismissal. (Rules of Court, Rule 17, Sec. 1; Minute Resolution, Gordon v. Payumo, G.R. No. 134071, July 7, 1998)

4. When may a deposition be presented in lieu of the testimony of the deponent who is available to testify?

Ans:The deposition would be hearsay and inadmissible, except in the following cases:

1) For the purpose of contradicting or impeaching the testimony of the deponent.

2) Deposition of a party or of any one who at the time of taking the deposition was an officer, director or managing agent of a public or private corporation partnership or association which is a party may be used by an adverse party for any purpose.

3) Witness resides at a place more than 100 kilometers from place of trial or is out of the Philippines unless his absence is caused by the party offering the deposition, or the witness is unable to testify due to age, sickness, infirmity or imprisonment, or cannot be subpoenaed, or such exceptional circumstances in the interest of justice, allowing the use of the deposition.

4) If only part is offered in evidence by a party, the adverse parties may require the presentation of all, and any party may introduce any other parts of the deposition.

5. What are the remedies of a party declared in default

a) from notice of default but before judgment?

b) after judgment and before its finality?

c) After finality of judgment?

Ans:a) From notice of the order of default but before judgment, motion to set aside order of default; and, in a proper case, petition for certiorari under Rule 65.

b) After judgment but before its finality:

(i) motion for reconsideration under Rule 37, Section 1;

(ii) motion for new trial under Rule 37, Section 1; and

(iii) appeal under Rule 41, Section 1.

c) After finality of judgment:

Within the prescribed period, petition for relief from judgment under Rule 38, Section 1; in a proper case and within the prescribed period, petition for certiorari under Rule 65; and in a proper case and within the prescribed periods, petition for annulment of judgment under Rule 47.

6. In what actions is default not permitted?

Ans: In the following:

(a) Action for declaration of the nullity of marriage; action for annulment of marriage; and, action for legal separation.

Note: If the defending party fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion exists between the parties, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated (Rules of Court, Rule 9, Sec. 3 [e]);

(b) Before expiration of period to answer as when there is a pending motion for extension (Joesteel Container Corporation v. Commonwealth Financing Corporation, No. L-25778, September 30, 1982, 117 SCRA 43; Denso (Phils.), Inc. v. Intermediate Appellate Court, No. L-75000, February 27, 1987, 148 SCRA 280; Continental Cement Corporation v. Court of Appeals, G.R. No. 88586, April 27, 1990, 184 SCRA 728);

(c) In actions governed by the Rule on Summary Procedure, a motion to declare defendant in default is not allowed. (Rules of Court, Rule 70, Secs. 13 and 19)

7. Define attachment execution.

Ans:It is the garnishment of property to satisfy a writ of execution (De Leon v. Salvador, No. L-30871, December 28, 1970, 36 SCRA 567).

8. When may the Court refuse to issue a Writ of execution of a final judgment?

Ans:In the following:

1. When subsequent facts and circumstances transpire which render such execution unjust, or impossible, such as a supervening cause like the act of the Commissioner of Civil Service finding the plaintiff administratively guilty and which constituted a bar to his reinstatement as ordered by the trial court in a civil case (The City of Butuan v. Ortiz, 113 Phil. 636 [1961]); or where the defendant bank was placed under receivership (Lipana v. Development Bank of Rizal, G.R. No. 73884, September 24, 1987, 154 SCRA 257);

1. On equitable grounds, as when there has been a change in the situation of the parties which makes execution inequitable (Vda. de Albar v. De Carandang, 116 Phil. 516 [1962]; Heirs of Guminpin v. Court of Appeals, No. L-34220, February 21, 1983, 120 SCRA 687; Luna v. Intermediate Appellate Court, G.R. No.68374, June 18, 1985, 137 SCRA 7);

1. Where the judgment has been novated by the parties (Fua Can Lu v. Yap Fauco, 74 Phil. 287 [1943]; Zapanta v. De Rotaeche, 21 Phil. 154 [1912]; Salvante v. Cruz, 88 Phil. 236 [1951]);

1. When a petition for relief or an action to enjoin the judgment is filed and a preliminary injunction is prayed for and granted (Rule 38, Sec. 5, Rules of Court);

1. Where the judgment has become dormant, the five (5) year period under Rule 39, Section 6 having expired without the judgment having been revived (Cunanan v. Court of Appeals, No. L-25511, September 28, 1968, 25 SCRA 263); or

1. Where the judgment turns out to be incomplete (Del Rosario v. Villegas, 49 Phil. 634 [1926]; Ignacio v. Hilario, 76 Phil. 605 [1946]) or is conditional (Cu Unjieng e Hijos v. Mabalacat Sugar Co., 70 Phil. 380 [1940]) since, as a matter of law, such judgment cannot become final.

9. When may a Writ of Execution be quashed?

Ans:In the following:

1. when is was improvidently issued;

1. when it is defective in substance;

1. when it is issued against the wrong party;

1. where the judgment was already satisfied;

1. when it was issued without authority;

1. when a change in the situation of the parties renders execution inequitable ; and

1. when the controversy was never validly submitted to the court. (Cobb-Perez v. Lantin, G.R. No. 22320, May 22, 1968, 23 SCRA 637; Sandico, Sr. v. Piguing, No. L-26115, November 29, 1971, 42 SCRA 322)

10. A obtains a judgment against B adjudicating ownership of a parcel of land in favor of A under a judgment which does not direct B to turn over possession to A.

Must A file a separate action to recover possession from B?

Ans:No. A writ of possession is a complement of the writ of execution. Hence, if under a final judgment the prevailing party acquires absolute ownership over the real property involved, the writ may be issued for him to obtain possession without the need of filing a separate action against the possessor (Olego v. Rebuena, No. L-39350, October 29, 1975, 67 SCRA 446). A writ of possession may also be sought from and issued by the court unless a third party is holding the property adversely to the judgment debtor (Roxas v. Buan, No. L-53798, November 8, 1988, 167 SCRA 43).

V

1. a) What is the rationale of Litis Pendentia?

b) What are its requisites?

Ans:3. Like res judicata as a doctrine, litis pendentia is a sanction of public policy against multiplicity of suits (Investors Finance Corporation v. Ebarle, No. L-70640, June 29, 1988, 163 SCRA 60). The principle upon which a plea of another action pending is sustained is that the latter action is deemed unnecessary and vexatious (Victronics Computers, Inc. v. Logarta, G.R. No. 104019, January 25, 1993, 217 SCRA 517; Arceo v. Oliveros, No. L-38257, January 31, 1985, 134 SCRA 308; Andresons Groups, Inc. v. Court of Appeals, G.R. No. 114928, January 21, 1997, 266 SCRA 423).

3. The following:

1. Identity of parties, or at least such as representing the same interest in both actions;

1. Identity of rights asserted and prayed for, the relief being founded on the same facts; and

1. The identity on the preceding particulars should be such that any judgment which may be rendered on the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. (Lamin Ents. v. Lagamon, No. L- 57250, October 30, 1981, 108 SCRA 740; FEU-Dr. Nicanor Reyes Medical Foundation v. Trajano, No. L-76273, July 31, 1987, 152 SCRA 725; Suntay v. Aquiluz, G.R. No. L-28883, June3, 1992, 209 SCRA 500; Valencia v. Court of Appeals, G.R. No. 111401, October 17, 1996, 263 SCRA 275; Cokaliong Shipping Lines, Inc. v. Amin, G.R. No. 112233, July 31, 1996, 260 SCRA 122)

2. a) What are the bases of the doctrine of res judicata?

b) What are its requisites?

Ans:2. It is based on (1) public policy and necessity that these should be end to litigation; and (2) the hardship on the individual of being vexed twice for the same cause.

2. The requisites for res judicata are:

1. the former judgment or order must be final;

1. it must be a judgment or order on the merits;

1. the court which rendered it had jurisdiction over the subject matter and the parties; and

1. there must be, between the first and second actions, identity of parties, of subject matter and of cause of action (Casil v. Court of Appeals, G.R. No. 121534, January 28, 1998, 285 SCRA 204). Only substantial and not identity of parties is required.

3. What are the 2 aspects of res judicata?

Ans:The two (2) aspects of res judicata are:

1. Bar by Former Judgment when, between the first case where the judgment was rendered, and the second case where the judgment is invoked, there is identity of parties, subject matter and cause of action.

1. Conclusiveness of Judgment when there is an identity of parties but not cause of action, the judgment being conclusive in the second case only as to those matters actually and directly controverted and determined, and not as to matters invoked thereon. (Islamic Directorate of the Philippines v. Court of Appeals, G.R. No. 117897, May 14, 1997, 272 SCRA 454)

V

1. What are the exceptions to hypothetical admission of facts alleged in the Complaint where lack of cause of action is invoked in a motion to dismiss?

Ans:The following:

1. allegations of which the court will take judicial notice are not true; no allegations of conclusions nor allegations of fact the falsity of which the court may take judicial notice are deemed admitted (Mathay v. Consolidated Bank and Trust Company, No. L-23136, August 26, 1974, 58 SCRA 560; U. Baez Electric Light Company v. Abra Electric Cooperative, Inc., No. L-59480, December 8, 1982, 119 SCRA 90; Dalandan v. Julio, No. L-19101, February 29, 1964, 10 SCRA 400; Marcopper Mining Corporation v. Garcia, No. L-55935, July 30, 1986, 143 SCRA 178);

1. legally impossible facts;

1. facts inadmissible in evidence; and

1. facts which appear by record or document included in the pleadings to be unfounded (Tan v. Director of Forestry, No. L-24548, October 27, 1983, 125 SCRA 302);

1. when other facts may be considered;

1. where the motion to dismiss was heard with the submission of evidence or if documentary evidence admitted by stipulation discloses facts sufficient to defeat the claim or admitted during hearing on preliminary injunction (Santiago v. Pioneer Savings and Loan Bank, G.R. No. 77502, January 15, 1988, 157 SCRA 100) the facts therein adduced may be considered;

1. all documents attached to a complaint, the due execution and genuineness of which are not denied under oath by the defendant, must be considered as part of the complaint without need of introducing evidence thereon (Asia Banking Corporation v. Walter E. Olsen and Co., 48 Phil. 529 [1925]);

1. in resolving a motion to dismiss, every court must take cognizance of decisions the Supreme Court has rendered because they are proper subjects of mandatory judicial notice as provided by Section 1 of Rule 129 of the Rules of Court. The said decisions, more importantly, form part of the legal system, and failure of any court to apply them shall constitute an abdication of its duty to resolve a dispute in accordance with law, and shall be a ground for administrative action against an inferior court magistrate (Peltan Development, Inc. v. Court of Appeals, G.R. No. 117029, March 29, 1997, 270 SCRA 82);

1. exhaustion of administrative remedies. Where plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action (Pineda v. Court of First Instance of Davao, 111 Phil. 643 [1961]).

2. What defenses not pleaded in the Motion to Dismiss or the Answer are not deemed waived but may be the basis of dismissal by the Court?

Ans:The following:

1. No jurisdiction over the subject matter

1. litis pendentia

1. bar by prior judgment or res judicata, or

1. prescription

3. Distinguish between Permissive and Compulsory counterclaim.

Ans:In a permissive counterclaim, the docket and other lawful fees should be paid and the same should be accompanied by a certificate against forum shopping and certificate to file action issued by the proper Lupon Tagapamayapa. It should also be answered by the claiming party. It is not barred even if not set up in the action.

In a compulsory counterclaim, no docket fee is paid and the certificates mentioned above are not required (Santo Tomas University v. Surla, G.R. No. 129718, August 17, 1998, 294 SCRA 382). If it is not raised in the answer, it shall be barred (Rules of Court, Rule 9, Sec. 2).

A compulsory counterclaim that merely reiterates special defenses which are deemed controverted even without a reply, or raises issues which are deemed automatically joined by the allegations of the complaint need not be answered (Lama v. Apacible, 79 Phil. 68 [1947]; Navarro v. Bello, 102 Phil. 1019 [1958]; Gojo v. Goyala, G.R. No. 26768, October 30, 1970, 35 SCRA 557). However, a compulsory counterclaim which raises issues not covered by the complaint should be answered (Feria, Annotated 1997 Rules of Court, 41).

4. Is a partial judgment appealable? Does it become final after the lapse of period to appeal?

Ans:No, to both questions. It is interlocutory and may be appealed only together with the judgment on the case.

5. What is the rationale of the constitutional requirement that a decision must state the facts and the law on which it is based?

Ans:Without the concrete relation or statement in the judgment of the facts alleged and proved at the trial, it is not possible to pass upon and determine the issue raised in litigation, inasmuch as when the facts held to be proved are not set forth in a judicial controversy, it is impossible to administer justice, to apply the law to the points argued, or to uphold the rights of the litigant who has the law on his side.

It is not sufficient that the court or trial judge take into account the facts brought out in an action the circumstances of each question raised, and the nature and conditions of the proofs furnished by the parties. He must also set out in his decision the facts alleged by the contending parties which he finds to have been proven, the conclusions deduced therefrom and the opinion he has formed on the issues raised. Only then can he intelligently set forth the legal grounds and considerations proper in his opinion for the due determination of the case. (People v. Escober, No. L-69564, January 29, 1988, 157 SCRA 541)

6. a) What is the effect of perfection of the appeal on the jurisdiction of the lower court over the case?

b) What matters may the lower Court still act on despite perfection of the appeal?

Ans:The trial Court loses jurisdiction over the case, but may act on the following:

1. issue an order for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal;

1. approve compromise of the parties prior to the transmittal of the record on appeal to the appellate court;

1. permit the prosecution of indigent appeals;

1. order execution pending appeal in accordance with Section 2, Rule 39; and

1. approve withdrawal of appeal.

V

11. What are the purposes of attachment?

Ans:The purposes of preliminary attachment are:

1. to seize the property of the debtor in advanced of final judgment and to hold it for purposes of satisfying the said judgment; or

1. to enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. (Mabanag v. Gallemore, supra, note 293; Quasha v. Juan, No. L-49140, November 19, 1982, 118 SCRA 505)

12. What is the purpose of Injunction or TRO?

Ans:To prevent future injury and maintain status quo the last actual, peaceable, uncontested status which preceded the pending controversy. (Rivera v. Florendo, No. L-57586, October 8, 1986, 144 SCRA 643; Knecht v. Court of Appeals, G.R. No. 56122, November 18, 1993, 228 SCRA 1)

13. Is an independent and pure action to obtain injunction allowed?

Ans:No. Independent action merely to obtain preliminary injunction is not allowed. Some substantive relief must be sought. (Bengzon v. Court of Appeals, G.R. No. 82567, May 31, 1988, 161 SCRA 745; Cootauco v. Court of Appeals, G.R. No. 56565, June 16, 1988, 162 SCRA 122; Buayan v. Quintillan, supra, note 315)

14. What are the essential requisites for the issuance of Preliminary Injunction?

Ans:1. There must be right in esse or the existence of a right to be protected.

1. The act against which the injunction is to be directed is a violation of such right. (Buayan Cattle Co. v. Quintillian, supra, note 315; Saulog v. Court of Appeals, G.R. No. 119769, September 18, 1996, 262 SCRA 51; Arcega v. Court of Appeals, G.R. No. 122206, July 7, 1997, 275 SCRA 176)

15. In what exceptional cases may the prosecution of a criminal offense be enjoined?

Ans:1. For the orderly administration of justice;

1. To prevent the use of the strong arm of the law in an oppressive and vindictive manner;

1. To avoid multiplicity of actions;

1. To afford adequate protection of constitutional rights;

1. In proper cases because the statute relied upon is unconstitutional or was held invalid (Justiniani v. Castillo,No. L-41114, June 21, 1988, 162 SCRA 378);

1. Where the constitutionality of the Chinese Book Keeping Law was questioned (Yu Cong Eng v. Trinidad, 47 Phil. 385 [1925]);

1. Where the hearing of the libel case was enjoined by permanent injunction after the Supreme Court in a separate case found the communication alleged to be libelous as privileged and not libelous (Ang v. Castro, G.R. No. L-66371, May 15, 1985, 136 SCRA 453; Justiniani v. Castillo, supra, note 345);

1. Where a traffic ordinance was found to be invalid (Primicias v. Municipality of Urdaneta, Pangasinan, No. L-26702, October 18, 1979, 93 SCRA 462); and

1. Where the fiscal was restrained from further proceeding with criminal case found to be civil in nature (Guingona v. City Fiscal of Manila, No. L-60033, April 4, 1984, 128 SCRA 577). Note: This was later on reconsidered (Guingona v. City Fiscal of Manila, Reconsidered, Resolution, 137 SCRA 597).

16. When may support Pendente Lite be granted?

Ans:Support pendent elite can be granted by the court in two (2) instances:

1. civil action for support; and

1. criminal action where civil liability includes support for the offspring as a consequence of the crime.

V

1. What are the requisites for Declaratory Relief and Similar Remedies?

Ans:The following:

1. There must be a justiciable controversy (Obiles v. Republic, 92 Phil. 864 [1953]);

1. The controversy must be between persons whose interest is adverse;

1. The parties must have legal interest in the controversy;

1. The controversy must be ripe for judicial determination (Board of optometry v. Colet, G.R. No. 122241, July 30, 1996, 260 SCRA 88); and

1. The petition must be filed before there is a breach or violation (Rules of Court, Rule 63, Sec. 1).

2. When may an action for Declaratory Relief be converted into an ordinary action?

Ans:The prime specification of an action for declaratory relief is that it must be brought before breach or violation of the statute has been committed. Rule 63 Sec. ___ allows the court to treat an action for declaratory relief as an ordinary action, applies only if the breach or violation occurs after the filing of the action but before the termination thereof and not if the breach occurred before the filing of the action. (Gomez vs. Palomar, G.R. No. L-23645, October 29, 1968)

3. What are the contents of a judgment for Foreclosure of Real Estate Mortgage?

Ans:The judgment in a judicial foreclosure proceeding should:

1. make a finding of the amount due the plaintiff including interest, cost and other charges approved by the court;

1. order defendant to pay said amount within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from entry of judgment; and

1. if the defendant defaults, the court should order the sale at public auction of the mortgaged property.

4. Distinguish between the Right of Redemption and Equity of Redemption.

Ans:Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within ninety (90) to one hundred twenty (120) days after entry of judgment or even after the foreclosure sale but prior to its confirmation (Rules of Court, Rule 68, Sec. 52; Limpin v. Intermediate Appellate Court, No. L-70987, September 29, 1988, 166 SCRA 87). On the other hand, right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust under which the property is sold to redeem the property within one (1) year from the registration of the sheriffs certificate of foreclosure sale (Rules of Court, Rule 39, Sec. 29; De Castro v. Intermediate Appellate Court, No. L-73859, September 26, 1988, 165 SCRA 654).

For as long as the sale have not been validly confirmed, the equity of redemption may be exercised by the mortgagor or his successors-in-interest (Limpin v. Intermediate Appellate Court, supra, note 447)

5. Explain the 2 stages involved in Partition.

Ans:1. First Stage Determination of the propriety of partition.

This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable (Miranda v. Court of Appeals, No. L-33007, June 18, 1976, 71 SCRA 295). If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed (De Mesa v. Court of Appeals, G.R. No. 109387, April 25, 1994, 231 SCRA 773).

1. Second Stage The actual partitioning of the subject property.

This is also a complete proceeding and the order or decision is appealable.

6. Accion Interdictal. Forcible Entry and Unlawful Detainer.

1. Is an action for ejectment abated by the death of the defendant?

Ans:No. An action for ejectment is not abated by the death of the defendan (Vda. de Salazar v. Court of Appeals, G.R. No. 121510, November 23, 1995, 250 SCRA 305). The heirs become the substitute defendants (Caiza v. Court of Appeals, G.R. No. 110427, February 24, 1997, 268 SCRA 640).

1. How about the death of the plaintiff?

Ans:The action is in personam by the plaintiff against the defendants. The action does not survive the death of the plaintiff (2005 Decision).

1. The lessee cannot deny the lessors title (Rule 131, Sec. 3[b]; Reyes v. Villaflor, No. L-15755, May 30, 1961, 2 SCRA 247).

7. State the concept of Contempt of Court.

Ans:Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the courts order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice. (Halili v. Court of Industrial Relations, No. L-24864, April 30, 1985, 136 SCRA 112)

8. Distinguish Direct from Indirect Contempt.

Direct ContemptIndirect Contempt

1. Where the act is committedIn the presence of or so near the court or judge as to obstruct or interrupt proceedings thereon.Out of or not in the presence of the court but which tends to impede, obstruct or degrade the administration of justice.

2. Necessity of a chargeNot necessary.A written charge or a show cause order is necessary.

3. Necessity of a hearingNo need the court can summarily impose a sanction upon the respondent.There is a need of a hearing.

4. Appealability of judgmentNot appealable but may be challenged in a petition for certiorari.Appealable

5. Sanctionsa. Fine not exceeding Php200.00 in the Municipal, Metropolitan and Municipal Circuit Trial Court and not exceeding Php2,000.00 in the Regional Trial Court, Court of Appeals and Supreme Court.

b. Imprisonment not exceeding one (1) day in the Municipal, Metropolitan and Municipal Circuit Trial Courts and not exceeding ten (10) days in the Regional Trial Court, Court of Appeals and Supreme Court.

c. Both fine and imprisonment.a. Fine not exceeding Php5,000.00 in the Municipal, Metropolitan and Municipal Circuit Trial Courts and not exceeding Php30,000.00 in the Regional Trial Court, Court of Appeals and Supreme Court.

b. Imprisonment not exceeding one (1) month in the Municipal, Metropolitan and Municipal Circuit Trial Courts and not exceeding six (6) months in the Regional Trial Court, Court of Appeals and Supreme Court.

c. Both fine and imprisonment.

9. Distinguish civil from criminal contempt.

Ans:Two (2) Aspects of Contempt:

0. Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein (People vs. Godoy, G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64).

0. Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act (ibid).

10. A files an unlawful detainer suit against B to eject the latter from his land. A interposes the defense of tenancy. What must the MTC Judge do?

Ans:He must receive evidence to determine the allegations of tenancy and if after hearing tenancy appears to be a real issue, he must dismiss the case for lack of jurisdiction (Sumawang vs. de Guzman, Sept. 8, 2004)

V

1. May a lost will and testament be probated?

Ans:Yes, if it may be established by secondary evidence. An ordinary will may be established by the instrumental witnesses as to the due execution and its contents after the fact of loss is proven.

If the holographic will has been lost or destroyed and not other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. However, a photostatic or Xerox copy of the lost or destroyed holographic will may be admitted. (Rodelas vs. Aranza, G.R. No. L-58509, December 7, 1982)

2. Is the best evidence rule applicable to photocopy of the marked money?

Ans:The best evidence rule applies only when the contents of the document is the subject of inquiry not when the issue relates only to its execution. Held not applicable to photocopy of marked money. (Herrera vs. Albag, G.R. No. 148220, June 15, 2005)

3. State the priorities in the appointment of Administrators.

Ans:Administration may be granted:

a) To the surviving spouse, or next of kin, or both, or to such person as such surviving spouse or next of kin, requests to be appointed, if competent and willing to serve.

b) To one or more of the principal creditors, if competent and willing to serve, in default of the foregoing or if the surviving spouse or next of kin, neglects for thirty (30) days after the death of the deceased to file a petition for administration or the request that administration be granted to some other person.

c) To such other person as the court may select, in default of the foregoing.

Note: The court may disregard the preference above enumerated in its sound discretion and its decision will not be interfered with on appeal unless it appears that it is in error. (Silverio, Sr. v. Court of Appeals, G.R. No. 109979, March 11, 1999, 304 SCRA 541)

4. When should a special administrator be appointed?

Ans:A special administration may be appointed (w)hen there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will. (Rules of Court, Rule 80, Sec. 1) The special administrator shall take possession and charge of the estate of the deceased until questions causing the delay are decided and executors or administrators appointed.

5. Does a probate court have jurisdiction to resolve questions of title?

Ans:No. A probate court can resolve questions of title only provisionally. All that the court can do is to determine whether the properties should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good, but if there is, then the parties, the administrator and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. (Sanchez v. Court of Appeals, G.R. No. 108947, September 29, 1997, 279 SCRA 647)

6. May legitimate minor children be allowed to adopt

a) the surname of their mothers second husband?

b) their mothers maiden name?

Ans:a) No, because there would be a false impression of their family relations, as it could result in confusion in their paternity. (Padilla v. Republic, No. L-28274, April 30, 1982, 113 SCRA 789)

b) No, because there will be confusion as to parentage as it might create the impression that the minors were illegitimate since they would carry the maternal surname only, which is inconsistent with their legitimate status in their birth records. (Naldoza v. Republic, G.R. No. L-55538, March 15, 1982, 112 SCRA 568)

X

1. Does Entrapment operation need Warrant of Arrest and Search Warrant?

Ans:No warrant was needed considering that the mission was not a search but an entrapment. An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules of Court. Any search resulting from a lawful warrantless arrest is valid because the accused committed a crime in flagrante delicto, that is, the person arrested committed a crime in the presence of the arresting officers. (Teodosio vs. CA, G.R. No. 124346. June 8, 2004)

2. When should the objection to the legality of the arrest be made?

Ans:Any objection against an arrest or the procedure in the acquisition by the court of jurisdiction over the person of an accused should be made at or before the arraignment; otherwise the objection is deemed waived. (People vs. Lozada, G.R. No. 141121. July 17, 2003; People vs. Cachola, G.R. Nos. 148712-15. January 21, 2004)

3. What is the effect of posting a bail and plea of not guilty on the illegality of the arrest?

Ans:While appellant was taken into police custody without a valid warrant of arrest, such illegality was, however, deemed cured when appellant applied for bail, entered a plea of "not guilty" during his arraignment, and actively participated in the trial of his case. By so doing, appellant submitted himself to the jurisdiction of the trial court. (People vs. Hipol, G.R. No. 140549. July 22, 2003)

4. Which Court has authority to grant bail?

Ans:Section 17 (a), Rule 114 of the Rules of Court anticipates 2 situations. First, the accused is arrested in the same province, city or municipality where his case is pending. Second, the accused is arrested in the province, city or municipality other than where his case is pending. In the first situation, the accused may file bail in the court where his case is pending or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. In the second situation, the accused has 2 options. First, he may file bail in the court where his case is pending or, second, he may file bail with any regional trial court in the province, city or municipality where he was arrested. When no regional trial court judge is available, he may file bail with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. (De Los Santos vs. Mangino, A.M. No. MTJ-03-1496. July 10, 2003)

5. Explain the concept of double jeopardy.

Ans:The proscription against double jeopardy presupposes that an accused has been previously charged with an offense, and the case against him is terminated either by his acquittal or conviction, or dismissed in any other manner without his consent. As a general rule, the following requisites must be present for double jeopardy to attach: (1) a valid indictment, (2) before a court of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and (5) the acquittal or conviction of the accused, or the dismissal or termination of the case against him without his express consent. However, there are two exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of the case was with the consent of the accused: first, when there is insufficiency of evidence to support the charge against him; and second, where there has been an unreasonable delay in the proceedings, in violation of the accuseds right to speedy trial. (Condrada Vs. People, February 28, 2003; People vs. Billaber, G.R. Nos. 114967-68, January 26, 2004)

6. May the defense of double jeopardy be invoked even when the accused moved for the dismissal on the ground of violation his constitutional right to speedy trial and the dismissal by the court is provisional?

Ans:Yes. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word provisional would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299).

If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecutions motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendants guilt, the court upon defendants motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant (4 Morans Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs Diaz, 94 Phil. 714, 717)

The dismissal of a criminal case upon motion of the accused because the prosecution was not prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal equivalent to an acquittal that would bar further prosecution of the defendant for the same offense (Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilla vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016. See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abao, 97 Phil. 28; People vs. Labatete, 107 Phil. 697). (Esmea vs. Pogoy, 102 SCRA 866-867 [1981])

7. Prejudicial Question (Torres vs. Garchitorina, December 27, 2003)

A marries B while As marriage to C has not been dissolved. C sues A for Bigamy. Thereafter, A files a case for annulment of marriage against C on the ground of fraud.

May the criminal action be suspended on the ground of Prejudicial Question? Give 2 reasons.

Ans:No. (1) Under the new rule, the civil action must have been filed ahead of the criminal action for prejudicial question to apply.

(2) The issue in the civil case is not determinative of the guilt or innocence of A in the criminal case. Bigamy is committed by a person who contracts a second marriage while the first marriage is subsisting and has not been dissolved. Whether the prior marriage is dissolved or not, bigamy may be committed.

8. Does the doctrine of prejudicial question apply to criminal and civil actions which under the law may be prosecuted separately?

Ans:No. There is no prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other. Under Rule 111, Section 3 of the Revised Rules on Criminal Procedure, in the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. (Samson vs. Daway, G.R. Nos. 160054-55. July 21, 2004)

9. What is the concept of probable cause?

Ans:Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction. (Okabe vs. Gutierrez, G.R. No. 150185. May 27, 2004)

10. Can the judge rely solely on the certification of the Prosecutor on the existence of a probable cause?

Ans: No. He has to make his own independent determination of the existence of probable cause taking into account the supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation. (Okabe vs. Gutierrez, G.R. No. 150185. May 27, 2004)

11. What is the purpose of pre-trial in a criminal case?

Ans: The purpose of pre-trial is to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes lawful defenses; and (f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. Facts stipulated and evidence admitted during pre-trial bind the parties. (People Vs. Perez, February 5, 2003)

12. Does the constitutional right to bail apply to extradition proceedings?

Ans:The constitutional provision on Bail as well as Sec. 4 of Rule 114 applies only when a person has been arrested and detained for violation of Philippine Criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee. (Govt. of US vs. Judge Purganan, G.R. No. 148571, September 24, 2002)

However, in Rodriguez vs. RTC Mla., Branch 17, G.R. No. 157977, February 27, 2006, the Supreme Court reversed the above ruling and held that bail may granted to a possible extraditee upon clear and convincing showing : (1) that he will not a flight risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances.

X

1. State the collateral facts doctrine. Is the best evidence rule applicable thereto?

Ans: No. Closely related to the best evidence rule is the rule that a document or writing which is merely collateral to the issue involved in the case on trial need not be produced. This is the collateral facts rule. Thus, where the purpose of presenting a document is not to prove its contents, but merely to give coherence to, or to make intelligible, the testimony of a witness regarding a fact contemporaneous to the writing, the original of the document need not be presented. In this case, the contents of the document are not sought to be proven, but are simply incidental to the fact being testified to. Thus, the best evidence rule cannot apply. (Air France v. Carrascoso, G.R. No. 21438, September 28, 1966, 18 SCRA 155)

2. Is a stranger to a contract bound by the Parol Evidence rule?

Ans:Parol Evidence Rule applies only to contractual documents (Cruz v. Court of Appeals, G.R. No. 79962, December 10, 1990, 192 SCRA 209). However, it does not apply where at least one party to the suit is not a party nor a privy to a party to the written instrument and does not base his claim, nor assert a right arising from the instrument or established therein. Thus, a total stranger to the writing is not bound by its terms and is allowed to introduce extrinsic or parol evidence against the efficacy of the writing. (Lechugas v. Court of Appeals, Nos. L-39972 and L-40300, August 6, 1986, 143 SCRA 335)

In order that parol evidence maybe admissible, the exceptional situation, including the fact of a subsequent agreement, must be put in issue in the pleading. Otherwise, no parol evidence can be admissible. When the defendant invokes such exceptional situations in his answer, such facts are sufficiently put in issue as to allow the presentation of parol evidence. However, if, when presented, the parol evidence is not objected to, such objection is deemed waived.

3. What is an independent relevant statement as an exception to the hearsay rule?

Ans:It is the second kind of res gestae consisting of a statement explaining the ambiguous act accompanied by such statement. It is only its tenor, not the truth of the statement, that is material and relevant to the issue regardless of whether the statement is true or not.

Thus, the statement of a person fencing his property that he is fencing the property because he owns it and he wants to protect it from intruders is an independent relevant statement material to the issue of the character of his possession in the concept of an owner.

4. What is a voire dire examination?

Ans:If a party against whom a witness is presented believes that the witness is incompetent or is not aware of his obligation and responsibility to tell the truth and the consequence of him testifying falsely, such party may pray for leave to conduct a voire dire examination on such witness to test his competency. The court may motu proprio conduct the voir dire examination. The competency of a person to take the prescribed oath is a question for the trial court to decide. (People vs. Bisda, G.R. No. 140895. July 17, 2003)

5. Distinguish English Exchequer Rule from Harmless Error Rule.

Ans:Error in admission of evidence is presumed to have cause prejudice and automatically results in new trial, which has been abandoned and has given way now to the harmless error rule, i.e., to disregard error in admission of evidence, unless substantive wrong or miscarriage of justice has been occasioned.

6. What is ephemeral electronics communication? Are text messages admissible in evidence?

Ans:Complainant was able to prove, by his testimony, in conjunction with the text messages from respondent, duly presented before the Committee that the latter asked for One Million Pesos (Php1,000,000.00) in exchange for a favorable decision of the complainants criminal case with the CA. The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence which provides ephemeral electronic communication refers to telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained.

Under Section 2, Rule 11 of 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 who has personal knowledge thereof In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. (Zaldy Nuez vs. Elvira Cruz-Apao, A.M. No. CA-05-18-P, April 12, 2005)

X

1. What action will the Court of Appeals take if in the review of capital offenses

a) The Court of Appeals affirms the judgment of conviction?

b) The Court of Appeals reverses the judgment of conviction?

Ans:a) The Court of Appeals will render judgment but shall not enter it and instead shall forward the records to the Supreme Court for its final disposition.

b) The Court of Appeals shall acquit the Accused/dismiss the case.

2. As a general rule, the filing of a motion for reconsideration is mandatory before a Petition for Certiorari under Rule 65 may be filed. What are the exceptions?

Ans:Indeed, it is settled that the filing of a motion for reconsideration is a prerequisite to the filing of a special civil action for certiorari. This is to give the lower court the opportunity to correct itself. It is also the rule that since an order denying a motion to dismiss is only interlocutory, which is neither appealable until final judgment nor could it generally be assailed on certiorari, the remedy of the aggrieved party is to file an answer and interpose as defenses the objections raised in his motion to dismiss.

However, the following have been recognized as exceptions to the general rule:

1. where the order is a patent nullity, as where the court a quo has no jurisdiction;

1. where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

1. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable;

1. where, under the circumstances, a motion for reconsideration would be useless;

1. where petitioner was deprived of due process and there is extreme urgency for relief;

1. where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;

1. where the proceedings in the lower court are a nullity for lack of due process;

1. where the proceeding was ex parte or in which the petitioner had no opportunity to object; and

1. where the issue raised is one purely of law or where public interest is involved. (Emphasis supplied)(Abacan, Jr., et. al. vs. Northwestern University, Inc., G.R. No. 140777, April 8, 2005, Austria-Martinez)

3. May consolidation of an ordinary civil action and Petition for issuance of Writ of Possession be consolidated?

Ans:Yes. Petitioner claims that the Court of Appeals erred in sustaining the trial courts order consolidating Civil Case No. 53967 with LRC Case No. R-3951, arguing that consolidation is proper only when it involves actions, which means an ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right, or a prevention of a wrong. Citing A.G. Development Corp. vs. Court of Appeals, petitioner posits that LRC Case No. R-3951, being summary in nature and not being an action within the contemplation of the Rules of Court, should not have been consolidated with Civil Case No. 53967.

We do not agree. In Active Wood Products Co., Inc. vs. Court of Appeals, this Court also deemed it proper to consolidate Civil Case No. 6518-M, which was an ordinary civil action, with LRC Case No. P-39-84, which was a petition for the issuance of a writ of possession. The Court held that while a petition for a writ of possession is an ex parte proceeding, being made on a presumed right of ownership, when such presumed right of ownership is contested and is made the basis of another action, then the proceedings for writ of possession would also become groundless. The entire case must be litigated and if need must be consolidated with a related case so as to thresh out thoroughly all related issues.

In the same case, the Court likewise rejected the contention that under the Rules of Court only actions can be consolidated. The Court held that the technical difference between an action and a proceeding, which involve the same parties and subject matter, becomes insignificant and consolidation becomes a logical conclusion in order to avoid confusion and unnecessary expenses with the multiplicity of suits.

In the instant case, the consolidation of Civil Case No. 53967 with LRC Case No. R-3951 is more in consonance with the rationale behind the consolidation of cases which is to promote a more expeditious and less expensive resolution of the controversy than if they were heard independently by separate branches of the trial court. Hence, the technical difference between Civil Case No. 53967 and LRC Case No. R-3951 must be disregarded in order to promote the ends of justice. (PSB vs. Sps. Maalac, Jr., G.R. No. 145441, April 26, 2005; Ynares-Santiago)

4. Explain the inherent power of the Court to amend and control its processes and orders and cause modification of final and executory decision to harmonize it with the facts.

Ans:The general rule is that it is the ministerial duty of the court to order the execution of its final judgment. However, Rule 135, Section 5(g) of the Rules of Court provides that the trial court may amend and control its process and orders so as to make them conformable to law and justice. It has the inherent power to control, in furtherance of justice, the conduct of its ministerial offices, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto. The inherent power of the court carries with it the right to determine every question of fact and law which may be involved in the execution. The court may stay or suspend the execution of its judgment if warranted by the higher interest of justice. It has the authority to cause a modification of the decision when it becomes imperative in the higher interest of justice or when supervening events warrant it. The court is also vested with inherent power to stay the enforcement of its decision based on antecedent facts which show fraud in its rendition or want of jurisdiction of the trial court apparent on the record. In another case, the Court held that an execution will ordinarily be stayed pending the termination of the proceedings connected with the principal case.

In this case, the RTC ruled that it did not amend its decision but merely harmonized it with the December 27, 1996 Order of the DAR Secretary and suspended its enforcement until after the said order shall have been implemented.(Mejia vs. Gabayan, et. al., G.R. No. 149765, April 12, 2005; Callejo)

5. What is the basis for determining jurisdiction of the Court over action involving title or possession of levels?

Ans:The assessed value, not the market value. MTC if the assessed value is Php20,000.00 or less; RTC if the assessed value exceeds Php20,000.00

6. May supplemental pleading introduce new and different causes of action?

Ans:No. The parties may file supplemental pleadings only to supply deficiencies in aid of an original pleading, but not to introduce new and independent causes of action. In Leobrera v. Court of Appeals, the Court ruled that when the cause of action stated in the supplemental complaint is different from the causes of action mentioned in the original complaint, the court should not admit the supplemental complaint. However, a broad definition of causes of action should be applied. (Planters Development Bank vs. LZK Holdings and Development Corporation, G.R. No. 153777, April 15, 2005, Callejo)

X

1. Where may annulment of judgment of the Regional Trial Court be filed?

Ans:Court of Appeals. What are the grounds and when may it be filed (requisites), see pages 290-291 of 1st (green) Study Guide and page 267 of 2nd (blue) Study Guide for the Bar.

2. When is certiorari available despite the existence of an appeal that lapsed? (See pp. 291-292, 1st (green) Study Guide for 2003-2004 numerous decisions)

3. Explain the doctrine of judicial hierarchy of courts and its rationale. (See pp. 238 et seq., 1st (green) Study Guide, May 6, 2006 Rex Edition)

1Prof. Arturo M. de Castro9/21/20102010 bar review predictions in remedial law I