Bar Exams Questions

8/10/2019 Bar Exams Questions

1/43

BAR EXAMS QUESTIONS AND ANSWERS

2001

GEN TOPIC: RECEIVERSHIP

SPECIFIC: REMEDIES

Joaquin led a complaint against Jose for the fmortgage of a furniture factory with a large number ofmachinery and equipment. During the pendency of the

foreclosure s uit, Joaquin learned from reliable sources that Jose was quietly and gradually disposing of some of his machineryand equipment to a businessman friend who was also engagedin furniture manufacturing such that from conrmed reports

Joaquin gathered, the machinery and equipment left with Jose were no longer sufficient to answer for the latters mortgage

indebtedness. In the meantime judgment was rendered by thecourt in favor of Joaquin but the sa me is n ot yet nal.

Knowing what Jos e has been doing. If you were Joaquins lawyer, what action would you take to preserve whatever remaining

machinery and equipment are left with Jose? Why? (5%)

SUGGESTED ANSWER:

To preserve whatever remaining machinery and equipment are le with Jose, Joaquins lawyer oul

appointment by the court of one or more receivers. The Rulesprovide that receivership is p roper in an action by the m ortgagee forthe foreclosure of a m ortgage when it appears t hat the property is indanger of being wasted or d issipated or m aterially injured and thatits value is probably insufficient to discharge the mortgage debt.(Sec. 1 of Rule 5 9).


2/43

2001

GEN TOPIC: WRIT

May a writ of preliminary attachment be issued ex-parte? Brieystate t he r eason(s) for you r an swer. (3%)

SUGGESTED ANSWER:

Yes, an order of attment may be with notice and hearing. (Sec. 2 of Rul

order m ay be issued ex parte is: that r equiring notice to the

adverse party and a hearing would defeat the purpose of theprovisional remedy and enable the adverse party to abscond ordispose of his property before a writ of a ttachment issues.(Mindanao Savings and Loan Association, Inc. v. Court of

Appeals, 172 SCRA 480).

GEN TOPIC: PROVISIONAL REMEDIES

SPECIFIC: ATTACHMENT

May a writ of preliminary attachment be issued ex-parte? Brieystate t he r eason(s) for you r an swer. (3%)

SUGGESTED ANSWER:

Yes, an order of attment may be with notice and hearing. (Sec.

order m ay be issued ex parte is: that requiring notice t o the a dverseparty and a hearing would defeat the purpose of the provisionalremedy and enable the adverse party to abscond or dispose of hisproperty before a writ of attachment issues. (Mindanao Savings a ndLoan Association, Inc. v. Court of Appeals, 172 SCRA 480).


3/43

GEN TOPIC: JUDGMENT

SPECIFIC: MANDAMUS VS QUO WARRANTO

Petitioner Fabian was appointed Election Registrar of theMunicipality of Sevilla supposedly to replace the respondentElection Registrar Pablo who was transferred to anothermunicipality without his con sent and who refused to accept hisaforesaid transfer, much less t o vacate h is p osition in Bogo townas election registrar, as in fact h e continued to occupy hisaforesaid position and exercise his functions thereto. P etitioner

Fabian then led a petition for mandamus against Pablo but thetrial cou rt dismissed Fabians petition contending that quo warranto is the proper remedy. Is the Why? (5%)

SUGGESTED ANSWER:

Yes, the court is corrremedy applies only where petitioners right is founded clearly inlaw, not when it is doubtful. Pablo was transferred without hisconsent which is t antamount to removal without cause, contraryto the fundamental guarantee on non-removal except for cause.Considering that Pedro continued to occupy the disputedposition and exercise h is functions t herein, the p roper r emedy isquo warranto, not mandamus. {Garces v. Court of Appeals, 259SCRA 99 (1996)]

ALTERNATIVE ANSWER:

Yes, the court is correct respondent unlawfully excludes another from the use andenjoyment of a right or office to which such other is entitled.(Sec. 2, Rule 6 5). In this ca se, Pablo has n ot unlawfully excluded


4/43

Fabian from the Office of Election Registrar. The remedy ofFabian is to le an action of quo warranto in his n ame againstPablo for u surping the office. (Sec. 5, Rule 66)

GEN TOPIC: PROVISIONAL REMEDIES

SPECIFIC: TRO

An application for a wria temporary restraining order is included in a complaint an dled in a multi-sala RTC consisting of Branches 1,2,3 and 4.Being urgent in nature, the Executive J udge, who was sitting inBranch 1, upon the ling of the aforesaid applicationimmediately raffled the case in the presence of the judges ofBranches 2,3 and 4. The case was raffled to Branch 4 and judgethereof immediately issued a temporary restraining order. Is t hetemporary r estraining order valid? Why? (5%)

SUGGESTED ANSWER:

No. It is only the Executive Judge who can issue immediately atemporary restraining order eff ective only for seven ty-two (72) hoursfrom issuance. No other Judge has the right or power to issue atemporary restraining order ex parte. The J udge to whom the caseis assigned will then conduct a summary hearing to determine

whether the temporary restraining ordeno ca se b eyond 20 days, including the original 72-hour period. (Sec.5 of Rule 58)

ALTERNATIVE ANSWER:

The temporary restraining order idoes not state that the matter is of extreme urgency and theapplicant will suffer grave i njustice a nd irreparable injury. (Sec. 5 ofRule 58)


5/43

GEN TOPIC: SPECIAL CIVIL ACTION

SPECIFIC: QUO WARRANTO

A group of businessmen formed an association itself Cars C. t o distribute / sell cars in said city. It d id notincorporate itself under the law nor did it have any governmentpermit or license to conduct its business as such. The SolicitorGeneral led before a RTC in Manila a veried petition for qu o

warranto questioning and seeking to stop the operCo. The latter led a motion to dismiss the petition on the

ground of improper venue claiming that its main office andoperations a re in Cebu City and not in Manila. Is the con tentionof Cars Co. correct? Why? (5%)

SUGGESTED ANSWER:

No. As exp ressly provided in the Rules, when the Solicitor Generalcommences the action for quo warranto, it may be b rought in a RTCin the City of Manila, as in this c ase, in the Court of Appeals or in

the Supreme Court. (Sec. 7 of Rule 66)

GEN TOPIC: JUDGEMENT

SPECIFIC 1: SOUNDNESS

SPECIFIC 2: ATTACHMENT

The plaintiff obtained a wriof P1 million. The writ was levied on the defendants property,

but it was discharged upon the posting by the defendant of counterbond in the same amount of P1 million. After trial, thecourt rendered judgment nding that the plaintiff had no causeof action against the defendant and that he had sued out the


6/43

writ of attachment maliciously. Accordingly the complaint and ordered the plaintiff and its surety to pay

jointly to the defendant P1.5 million as

million as moral damages and P0.5 million as exemplarydamages. Evaluate the soundness of the judgment from thepoint of view of procedure. (5%)

SUGGESTED ANSWER:

The judgment against the surety igiven to him of the applicant for damages. (Rule 57, sec. 20)

Moreover, the judgment against the surety cannot exceed theamount of its cou nterbond of P1 million.

GEN TOPIC: PETITION FOR RELIEF

SPECIFIC: INJUNCTION

A default judgment was rendered by the RTC ordering D sum of money. The judgment became nal, but D led a petition

for relief and obtained a writ of preliminary injunction stayingthe enforcement of the judgment. After hearing, the RTCdismissed Ds petition, whereupon P immediately moved for theexecution of the judgment in his favor. Should Ps motion begranted? Why? (3%)

SUGGESTED ANSWER:

Ps immediate motion for execution of the judgment in his favorshould be granted because the dismissal of Ds petition for r eliefalso dissolves the writ of preliminary injunction staying theenforcement of the judgment, even if the dismissal is not yetnal. [Golez v. Leonidas, 107 SCRA 187 (1981)]


7/43

GEN TOPIC: REMEDIES

SPECIFIC 1: APPEALS TO SC

SPECIFIC 2: APPEALS TO CA

a) What are the modes of appeal to the Supreme Court? (2%)

b) Comment on a proposal to amend Rule 122, Section 2(b), inrelation to Section 3(c), of the Revised Rules of CriminalProcedure to provide for ap peal to the Court of Appeals from thedecisions of the RTC in criminal cases, where the penalty

imposed is reclusion perpetua or life imprisonment, subject tothe right of the accu sed t o appeal to the Supreme Court. (3%)

SUGGESTED ANSWER:

A. The modes of appeal to the Supreme Court are: AL BYCERTIORARI on pure questions of law under Rule 45 through apetition for review on certiorari; and (b) ORDINARY APPEAL incriminal cases through a notice of appeal from convictionsimposing reclusion perpetua or life imprisonment or w here alesser penalty is involved but for offenses com mitted on the sam eoccasion or which arose out of the same occurrence that gaverise to the more ser ious offense. (Rule 122, sec. 3) Convictionsimposing the death penalty are elevated through automaticreview.

B. There is n o constitutional objection to providing in the Rules ofCourt for an appeal to the Court of Appeals from the decisions ofthe RTC in criminal cases where the penalty imposed isreclusion perpetua or life imprisonment subject to the right ofthe accu sed to appeal to the Supreme Court, because it does not


8/43

deprive the Supreme Court of t he right to exercise ultimatereview of the judgments in such cases

GEN TOPIC: SPECIAL CIVIL ACTIONSPECIFIC: PETITION FOR CERTIORARI

The defendant was declared in default le an answer to a complaint for a su m of money. On the basis ofthe plaintiffs ex parte presentation of evidence, judgment bydefault was rendered against the defendant. The default

judgment was served on the defendant on October 1, 2001. OnOctober 10, 2001, he les a veried motion to lift the order ofdefault and to set aside the judgment. In his motion, thedefendant alleged that, immediately upon receipt of thesummon, he saw the plaintiff and confronted him with hisreceipt evidencing his payment an d that t he plaintiff assuredhim that he would instruct his lawyer to withdraw thecomplaint. The trial court denied the defendants motion

because it was not accompanied by an affidavit of merit. Thedefendant led a special civil action for cert iorari under R ule 65challenging the d enial order.

A. Is certiorari

B. Did the t rial court abuse i ts d iscretion or a ct without or i n excessof its jurisdiction in denying the defendants motion to lift t heorder of default judgment? Why? (3%)

SUGGESTED ANSWER:

A. The petition for the proper remedy because appeal is not a plain, speedy andadequate remedy in the ordinary course of law. In appeal, the


9/43

defendant in default can only question the decision in the lightof the evidence of the p laintiff. The defendant cannot invoke thereceipt to prove payment of his o bligation to the p laintiff.

ALTERNATIVE ANSWER:

A. Under ordinary circumstances, the proper remedy of a part wrongly declared in default is ei by default or le a petition

Court of Appeals, 251 SCRA 391 (1995)

SUGGESTED ANSWER:

B. Yes, the t rial court gravely abused its d iscretion or a cted withoutor in excess of jurisdiction in denying the defendants motion

because it was not accompanied by a separate affidavit of meritIn his veried motion to lift the order of default and to set asidethe judgment, the defendant alleged that immediately upon thereceipt of the su mmons, he saw the plaintiff and confronted him

with his receipt showing payment and that the plaihim that he would instruct his lawyer to withdraw thecomplaint. Since the good defense of the defendant was alreadyincorporated in the veried motion, there was not need for aseparate affidavit of merit. [Capuz v. Court of Appeals, 233 SCRA471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]

GEN TOPIC: PETITION FOR RELIEF

SPECIFIC: INJUNCTION

A default judgment was rendered by the RTC ordering D sum of money. The judgment became nal, but D led a petitionfor relief and obtained a writ of preliminary injunction stayingthe enforcement of the judgment. After hearing, the RTC


10/43

dismissed Ds petition, whereupon P immediately moved for theexecution of the judgment in his favor. Should Ps motion begranted? Why? (3%)

SUGGESTED ANSWER:

Ps immediate motion for execution of the judgment in his favorshould be granted because the dismissal of Ds petition for r eliefalso dissolves the writ of preliminary injunction staying theenforcement of the judgment, even if the dismissal is not yetnal. [Golez v. Leonidas, 107 SCRA 187 (1981)]

GEN TOPIC: REMEDIES

SPECIFIC 1: APPEALS TO SC

SPECIFIC 2: APPEALS TO CA

a) What are the modes of appeal to the Supreme Court? (2%)

b) Comment on a proposal to amend Rule 122, Section 2(b), inrelation to Section 3(c), of the Revised Rules of CriminalProcedure to provide for ap peal to the Court of Appeals from thedecisions of the RTC in criminal cases, where the penaltyimposed is reclusion perpetua or life imprisonment, subject tothe right of the accu sed t o appeal to the Supreme Court. (3%)

SUGGESTED ANSWER:

A. The modes of appeal to the Supreme Court are: AL BYCERTIORARI on pure questions of law under Rule 45 through apetition for review on certiorari; and (b) ORDINARY APPEAL incriminal cases through a notice of appeal from convictionsimposing reclusion perpetua or life imprisonment or w here alesser penalty is involved but for offenses com mitted on the sam e


11/43

occasion or which arose out of the same occurrence that gaverise to the more ser ious offense. (Rule 122, sec. 3) Convictionsimposing the death penalty are elevated through automatic

review.

B. There is n o constitutional objection to providing in the Rules ofCourt for an appeal to the Court of Appeals from the decisions ofthe RTC in criminal cases where the penalty imposed isreclusion perpetua or life imprisonment subject to the right ofthe accu sed to appeal to the Supreme Court, because it does notdeprive the Supreme Court of t he right to exercise ultimate

review of the judgments in such cases

GEN TOPIC: SPECIAL CIVIL ACTION

SPECIFIC: PETITION FOR CERTIORARI

The defendant was declared in default le an answer to a complaint for a su m of money. On the basis ofthe plaintiffs ex parte presentation of evidence, judgment bydefault was rendered against the defendant. The default

judgment was served on the defendant on October 1, 2001. OnOctober 10, 2001, he les a veried motion to lift the order ofdefault and to set aside the judgment. In his motion, thedefendant alleged that, immediately upon receipt of thesummon, he saw the plaintiff and confronted him with hisreceipt evidencing his payment an d that t he plaintiff assuredhim that he would instruct his lawyer to withdraw thecomplaint. The trial court denied the defendants motion

because it was not accompanied by an affidavit of merit. Thedefendant led a special civil action for cert iorari under R ule 65challenging the d enial order.


12/43

A. Is certiorari

B. Did the t rial court abuse i ts d iscretion or a ct without or i n excess

of its jurisdiction in denying the defendants motion to lift t heorder of default judgment? Why? (3%)

SUGGESTED ANSWER:

A. The petition for the proper remedy because appeal is not a plain, speedy andadequate remedy in the ordinary course of law. In appeal, thedefendant in default can only question the decision in the lightof the evidence of the p laintiff. The defendant cannot invoke thereceipt to prove payment of his o bligation to the p laintiff.

ALTERNATIVE ANSWER:

A. Under ordinary circumstances, the proper remedy of a part wrongly declared in default is ei by default or le a petition

Court of Appeals, 251 SCRA 391 (1995)

SUGGESTED ANSWER:

B. Yes, the t rial court gravely abused its d iscretion or a cted withoutor in excess of jurisdiction in denying the defendants motion

because it was not accompanied by a separate affidavit of meritIn his veried motion to lift the order of default and to set asidethe judgment, the defendant alleged that immediately upon thereceipt of the su mmons, he saw the plaintiff and confronted him

with his receipt showing payment and that the plaihim that he would instruct his lawyer to withdraw thecomplaint. Since the good defense of the defendant was alreadyincorporated in the veried motion, there was not need for a


13/43

separate affidavit of merit. [Capuz v. Court of Appeals, 233 SCRA471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]

2003Gen Topic-Special Civil Action; Foreclosure

A borrowed from the Development Bank of the Philiamount of P1 million secured by the titled land of his friend B

who, however, did not assume personal liability defaulted and DBP led an action for judicial foreclosure of thereal estate mortgage impleading A and B as defendants. In duecourse, the court rendered judgment directing A to pay theoutstanding account of P 1.5 million (principal plus interest) tothe bank. No appeal was taken by A on the Decision within thereglementary period. A failed to pay the judgment deb t withinthe period specied in the decision. Consequently, the courtordered the foreclosure sale of the mortgaged land. In thatforeclosure sa le, the land was so ld to the DBP for P1.2 million.

The sale was subsequently conrmed by the court, and theconrmation of the sale was registered with the Registry ofDeeds on 05 January 2002.

On 10 January 2003, the bank led an ex-parte motion with thecourt for t he issuance of a writ of possession to oust B from theland. It also led a deciency claim for P800,000.00 against Aand B. the deciency claim was opposed by A and B.

(a) Resolve t he m otion for t he issuance o f a writ of possession.

(b) Resolve the deciency claim of the b ank. 6%

SUGGESTED ANSWER:


14/43

(a) In judicial foreclosure by banks su ch as DBP, the mortgagor ordebtor whose real property has b een sold on foreclosure has theright to redeem the property sold within one year a fter t he sale

(or registration of the sale). However, the purchaser at theauction sale h as t he ri ght to obtain a writ of possession after t henality of the order con rming the sa le. (Sec. 3 of Rule 68; Sec.47 of RA 8791. The General Banking Law of 2000). The motionfor writ of possession, however, cannot be led ex parte. Theremust be a n otice of hearing.

(b) The deciency claim of the bank may be enforced against the

mortgage debtor A, but it cannot be enforced against B, theowner of the mortgaged property, who did not assume personalliability for th e loan.

Gen Topic-Provisional Remedies; Injunction

Can a suit for injunction be aptly led with the Supreme Court tostop the President of the Philippines from entering into a peaceagreement with the National Democratic Front? (4%)

SUGGESTED ANSWER:

No, a suit for injunction cannot aptly be led with the SupremeCourt to stop the President of the Philippines f rom entering intoa peace agreement with the National Democratic Front, which isa purely political question. (Madarang v. Santamaria, 3 7 Phil.304 [1917]). The President of the Philippines is immune fromsuit.

Gen topic-Special Civil Actions; Mandamus

In 1996, Congress passed Republic Act No. 8189, otherwise knownas the Voters Registration Act of 1996, providing for


15/43

computerization of elections. Pursuant thereto, the COMELECapproved the Voters Registration and Identication System(VRIS) Project. It issued invitations t o pre-qualify and bid for t he

project. After the public bidding, Fotokina was declared the winning bidder with a bid of P6 billi as

of Award. But COMELEC Chairman Gener Go objected to theaward on the ground that under the Appropriations Act, the

budget for the COMELECs modernization is only P1 billion. Heannounced to the public that the VRIS project has been setaside. Two Commissioners sided with Chairman Go, but themajority voted to uphold the co ntract.

Meanwhile, Fotokina led with the RTC a petition for mandamuscompel the COMELEC to implement the contract. The Office ofthe Solicitor General (OSG), representing Chairman Go, opposedthe petition on the ground that mandamus does not lie toenforce contractual obligations. D uring the proceedings, t hemajority Commissioners led a manifestation that Chairman Go

was not authorized by the COMELEC En Banc to oppose thepetition.

Is a petition for mandamus an appropriate remedy to enforcecontractual obligations? (5%)

SUGGESTED ANSWER:

No, the petition for mandamus is not an appropriate remedy because it is not available to enfo

Mandamus is directed only to ministerial acts, directing orcommanding a p erson to do a legal duty (COMELEC v. Quijano-Padilla, G.R. No. 151992, September 18, 2002; Sec. 3, Rule 65).

Gen topic-Provisional Remedies; TRO; Duration


16/43

What is the duration of a TRO issued by Regional Trial Court? (2%)

SUGGESTED ANSWER:In cases of extreme urgency, when the applicant will suffer grave

injustice a nd irreparable injury, the duration of a TRO issued exparte by an Executive Judge of a Regional Trial Court is 72hours (2nd par. of Sec. 5, Rule 58 1997 Rules of Civil Procedure).In the ex ercise o f his regu lar functions o ver ca ses assigned to hissala, an Executive Judge may issue a TRO for a duration not

exceeding a total of 20 days.Gen Topic-Provisional Remedies; TRO; CA Justice Dept.

May a justice of a Division of the Court of Appeals issue a TRO?(2%)

SUGGESTED ANSWER:

Yes, a justice of as authorized under Rule 58 and by Section 5, Rule IV of theIRCA which additionally requires that the action shall besubmitted on the next working day to the absent members of thedivision for t he ratication, modication or recall (Heirs of thelate Justice Jose B.L. Reyes v. Court of A ppeals, G.R. Nos.135425-26, November 14, 2000).

Provisional Remedies; TRO vs. Status Quo Order (2006)

Differentiate a T RO from a st atus qu o order. (2%)

SUGGESTED ANSWER:


17/43

A status quo order (SQO) is more order, since it does n ot direct the d oing or u ndoing of acts, as inthe case of prohibitory or m andatory injunctive relief. A TRO is

only good for 20 days if issued by the RTC; 60 days if issued bythe CA; until further notice if issued by the SC. The SQO is

without any prescriptive period and may be issued without a bond. A TRO dies a natural death after the a

SQO does n ot. A TRO is provisional. SQO lasts u ntil revoked. A TRO is not extendible, but the SQO may be subject to n

of the p arties.

Provisional Remedies; TRO (2006)

Dene a t emporary r estraining order (TRO). (2%)

SUGGESTED ANSWER:

A temporary restraining order is an oopposite party and to maintain the st atus qu o until a hearing fordetermining the propriety of granting a preliminary injunction(Sec. 4[c] and [d], Rule 5 8,1997 Rules o f Civil Procedure).

Gen topic-Provisional Remedies; Injunctions; Requisites

What are the requisites

(a) a writ of preliminary i njunction; and

(b) a nal writ of injunction?

SUGGESTED ANSWER:

Requisites for t he issuance o f a:


18/43

a. Writ of Preliminary Injunction (Sec. 4, Rule 58 1997 Rules ofCivil Procedure) are

(1) A veried complaint showing;(2) The e xistence of a right in esse;

(3) Violation or threat of violation of such right;

(4) Damages or injuries sustained or that will be sus-tained byreason of such violation;

(5) Notice t o all parties of raffle a nd of hearing;(6) Hearing on the a pplication;

(7) Filing of an appropriate bond and service t hereof.

SUGGESTED ANSWER:

b. While a nal writ of injnctay after t rial, showing applicant t o be entitled to the writ (Sec. 9,Rule 58 1997 Rules of Civil Procedure).

Gen topic-Provisional Remedies; Injunctions; Issuance w/out Bond

May a R egional Trial Court issue injunction without bond? (2%)

SUGGESTED ANSWER:

Yes, if the injuncthowever, preliminary injunction cannot issue without bondunless ex empted by t he t rial court (Sec. 4[b] of Rule 5 8).

Gen Topic-Forum Shopping; Effects; Lack of Certication


19/43

Honey led with the Regional Trial Court, Taal, Batangas acomplaint for specic performance against Bernie. For lack ofcertication against forum shopping, the judge dismissed the

complaint. Honeys lawyer led a motion for reconsideration,attaching thereto an amended complaint with the certicationagainst forum shopping. If you were the judge, how will youresolve the motion? (5%)

SUGGESTED ANSWER:

If I were the judge, the motion should be denied after hearing

because, as expressly provided in the Rules, f with the requirement of forum shopping is not curable eramendment of the complaint or other initiatory pleading, butshall be cause for t he dismissal of the case, without prejudice,unless ot herwise provided (Sec. 5, Rule 7, 1997 Rules of CivilProcedure). However, the trial court in the exercise of its sounddiscretion, may choose to be liberal and consider the am endmentas substantial compliance (Great Southern Maritime Services

Corp. v. Acuna, G.R. No. 140189, February 28,2005; Chan v.RTC of Zamboanga del Norte, G.R. No. 149253, April 15, 2004;Uy v. Land Bank, G.R. 136100, July 24, 2000).

Gen Topic Certiorari; Mode of Certiorari

Explain each mode of certiorari:

1. As a m ode of appeal from the Regional Trial Court or the Court of Appeals to the Supreme Court. (2.5%)

SUGGESTED ANSWER:

Certiorari as a mode of appeal is governed by Rule 45 of the Rulesof Court which allows appeal from judg-ment, nal order of


20/43

resolution of the Court of Appeals, Sandiganbayan, the RTC orother courts whenever authorized by law to the Supreme Court

by veried petition for review raising only questi

distinctly set forth .

2. As a special civil action from the Regional Trial Court or t heCourt of Appeals to the Supreme Court. (2.5%)

SUGGESTED ANSWER:

Certiorari as a Special Civil Action is governed by Rule 65 of theRules of Court when an aggrieved party may le a veriedpetition against a decision, nal order or r esolution of a tribunal,

body or board that has acted without or in excess of its jurisdiction or grave abuse of discreount

excess of jurisdiction, when there is no appeal or any otherplain, speedy and adequate remedy in the ordinary course oflaw.

3. As a mode of review of the decisions of the National LaborRelations Commission and the Constitutional Commissions.(2.5%)

SUGGESTED ANSWER:

Certiorari as a mode of review of the decision of the NLRC iselevated to the Court of Appeals u nder Rule 65, as held in thecase of St. Martins Funeral Home v. NLRC, G.R. No. 130866,

September 16, 1998. Certiorari as a mode of review from theCommission on Audit (COA) and COMELEC is elevated to theSupreme Court within 30 days from notice of the judgment,decision or nal order or re solution sought to be reviewed, asprovided for under the Rule 64 of the 1997 Rules of CivilProcedure. In the case of the Civil Service Commission (CSC),


21/43

review of its judgments is t hrough petitions for r eview under S ec.5 of Rule 43 of the 1997 Rules of Civil Procedure.

1980 Bar Question

PRILIMINARY ATTACHMENT

Question no. 4-2 Assuming the judgement is in plaint

ejectment of the defendant, how may the defendant preventimmediate execu tion of the decision?

AnswerDefendant may prevent immediate execution by:a.) perfecting an appeal

b.) lling a superarrears; andc.) Depositing, during the pendency of the ap peal, the am ount ofrent due u nder the con tract, if any, found by the judgement of theinferior co urt to exist; or i n the absence of a contract, thereasonable value of the u se an d occupation of the premises for thepreceding month or period at the rate determined in the judgement,on or before the tenth day of each succeeding month or period.

1979 Bar Question

Question no. 7

A writ of attachment was issued thereof, defendants cred it balance w ith a stockbroker w asgarnished.Can the court order t he st ockbroker to surrender that credit

balance to plaintiff or


22/43

Alternative Answer1.) If defendants cr edit balance r epresents a sum of money due h imfrom the st ockbroker, it is su bject to garnishment.

2.) However, if defendants cred it balance i s a n over-draft accountgranted him by the st ockbroker, it is n ot a credit subject togarnishment because it is a l oan. (Nava vs. San Jose, 90 Phil. 341)3.) Assuming that the cr edit balance is a property of defendant, thecourt may n ot order the st ockbroker to su rrender it to the plaintiffor to the sh eriff upon garnishment. It is on ly after the judgementagainst defendant has become nal and executor that such amount

garnished may be ordered delivered to plaintiff or t he sh eriff. (Sec.15 of Rule 57)

FORCLOSURE

Question no. 8If the d ebtor i n a chattel mortgage refuses to deliver t he ch attel so itcan be so ld at a foreclosure sa le, what is t he rem edy of the cred itor?Explain.

Answer The creditor may le an act

chattel mortgage (Sec. 8, Rule 6 8), orHe m ay le an action for t he recovery o f possession of the ch attel

mortgaged and apply for a writ of replevin or d elivery o f personalproperty (Rule 6 0) as a preliminary st ep to the sa le on foreclosurethereof (Act 1508). In the seco nd case, he m ay in the a lternativepray for t he p ayment of the obligation. (Northern Motors, Inc. vs.Herrera)


23/43

1983 Bar Exam Questions in Provisional Remedies

Question No. 14Daniel Chan owns a h ouse and lot at Forbes Park, Makati, wherehis wife a nd children reside. He is t he Chief Executive Officer of

various family corporations where capital stocks. These family corporations owe sever al banks t hetotal sum of P2.5 billion, with Chan as a solidary co -debtor.

After Chan has carefully manipulat corporations a nd diverted their funds t o h is a ccount in a Swiss

bank, he ees from the PhiliDuphine, Zurich, Switzerland. The banks concerned now retainsthe se rvices o f Atty. Ramon Castillo for t he p urpose of ling a suitin the Philippines a gainst Daniel Chan on his ob ligation as asolidary co -debtor on the loans o f the family corporations. One ofthe p rocedural problems facing Atty. Castillo is t he m ethod ofeffecting a v alid service of summons upon Daniel Chan, nowresiding in Switzerland, to enable t he P hilippine co urts t o acquire

jurisdiction over hDescribe the remedies and procedures, and the supporting groundsthereof that Atty. Castillo sh ould follow as would enable h im toeffect a valid service of summons on Daniel Chan.

Answer

(Examiners Answer)Upon ling the com plaint against Daniel Chan, Atty. Ramon Castilloshould petition the co urt for the issuance o f a writ of preliminaryattachment. The ground for the issuance of a writ of attachment isthat the case i s against a party, Daniel Chan, who now permanentlyresides out of the P hilippines, specically in Switzerland. Once t he

writ of attachment is served and levied on all assets of Daniel Chan in the Philippines


24/43

including h is h ouse a nd lot at Forbes P ark, and his equ ity sh ares inthe family corporations. Thereafter, Atty. Castillo should ask thecourt for p ermission to effect an extraterritorial services ofsummons on defendant on the ground that he does not reside andis n ot found in the Philippines a nd his a ssets in the Philippines h ad

been attached. With the permission summons can then be effected as or dered by the court either by thepersonal service in Switzerland of the su mmons an d complaint or

by publication in a newspaper oand for such time as t he cou rt may order, and mailing to the Swissaddress o f Danilo Chan, of copies o f the order publication, thesummons and the complain.

(Committees Answer) Atty. Castillo,

for a w rit of preliminary a ttachment on the ground that DanielChan resides o ut of the P hilippines. (Sec. 1(f) of Rule 5 7)Upon the issuance o f the writ of attachment, Atty. Castillo sh ouldrequest the sh eriff to levy at tachment on the h ouse a nd lot ofDaniel Chan at Forbes Park, Makati. By virtue of such attachment,

the c ourt acquires jurisdiction over t he res. (Asiatic Petroleum vs.Co Quico, 69 Phil. 433)Extraterritorial service o f summons, through personal service,publication, or in any other manner the court may deem sufficient,shall be made on Daniel Chan. (Sec. 17 of Rule 14) The pu rpose ofsuch extraterritorial service o f summons i s t o satisfy theconstitutional requirement of due process, and not to acquire

jurisdiction over h

921; Quasha et al. vs. Juan, 118 SCRA 505)

Question No. 15 FORCLOSURE

The Asean Banking Corporation retained the Mamon in connection with its contemplated su it against Dapo


25/43

Textile Mills, amount of P650 million. Payment of the loan was secu red by a r ealestate m ortgage on the testile p lant and the land it occupied, bothowned by DAPO.

At the time that the appraised va lue of the mortgaged property was P256 million ascompared to the loan of P650 million. DAPO defaulted on its loanafter the u nion of its em ployees h ad declared a strike whichprevented everyone from entering the factory p remises. As aconsequence, DAPO ceased operations an d its textile plant hadsince then been exposed to the elements an d risk of re due to thepresence of highly combustible m aterials co nsisting of syntheticbers.

The Asean Banking Corporation requested Atty. Mamon to pursue cause of action that would realize t wo principal objectives: [a] obtaina judgment for the payment of any deciency arising from theforeclosure of the m ortgage lien; [b] procure t he p ossession andoperation of the t extile p lant, either by the Asian BankingCorporation or by a third party during the pendency of theforeclosure p roceedings a nd until the ex piration of the red emption

period after t he foreclosure sa le, so that the income d erivedtherefrom could be a pplied in partial payment of the loan.

What are the judicial medieaccomplish the two principal objectives of the Asean BankingCorporation? Reasons.

Answer(Examiners Answer)

Atty. Mamon should le on behalf of Corporation an action for the judicial foreclosure of its rea l estat emortgage with a petition for t he a ppointment of a receiver of thetextile factory, subject matter o f the foreclosure su it. A judicialforeclosure of a real estate m ortgage is t he p roper remedy as t hat


26/43

would permit the court to edeciency judgment if the foreclosure of the m ortgage lien results ina deciency. The grounds for t he p etition for t he a ppointment of areceiver a re t hat the p ending a ction is for the judicial foreclosure ofa real estate m ortgage; that the m ortgage p roperty is exp osed to thedanger of being wasted or m aterially injured as a consequence o f itsexposure to the elements an d the risk of re by the presence ofhighly com bustible materials a nd the ab sence in the factorypremises of responsible persons t o guard against those risks; andthat the value of the m ortgaged property is on ly P356 million andtherefore insufficient to discharge the m ortgage d ebt of P650million.

(Committees Answer)

Atty. Mamon should le a complaint for estate m ortgage against Dapo Textile Mills, Inc. (DAPO) and applyfor t wo provisional remedies, namely:a.) Preliminary a ttachment of any other properties of DAPO on oneof the grounds u nder Sec. 1 of Rule 57 and on the further groundthat the m ortgaged property is n ot sufficient to sa tisfy the loan, sothat when a deciency judgment is rendered, it may be sat ised bythe sa le on execution of the a ttached property. (Rule 57)

b.) Appointment of a receivground that the mortgaged property is in danger of being wasted ormaterially injured and that its va lue is p robably insufficient todischarge t he m ortgage debt. (Sec. 1(c) of Rule 59) The incomeearned by the receiver could then be applied in partial payment ofthe loan.

(Note: Credit should be given to such answer as: Including directorsas p arty defendants for fraudulent and stockholders for u npaidsubscriptions. Resorting to the Ministry o f Labor for the t erminationof the strike)


27/43

1984 Bar Questions in Remedial Law

Question No. 3 A, a grocery owner, sued B befo

payment of some merchandise. When the sh eriff failed to effectservice of summons on B at Morong, Rizal, the ad dress s tated inthe complaint, the court ordered the publication of the su mmonsand a copy of the com plaint in a newspaper of general circulation inRizal.

As B was actually no longer rnot become aw are of the co llection suit against him, he failed to lehis an swer in court. He was t herefore decl ared in default and a

judgment was in due time rendered against One year after the date of the judgment, a levy on execution wasmade on Bs p roperties.(a) Did the cou rt have jurisdiction to render the judgment? Why?(b) What remedies, including p rovisional ones, if any, would beavailable to B, and to what forum should he go for r elief? Explain.

Answer:

A. Furnished by Office of Justice Plana(a) No, because t he co urt did not acquire jurisdiction over t heperson of B, the defendant.

The action is personal, publication is va lid only in actions i n rem or qu asi in rem. (DyReyes vs. Ortega, 16 SCRA 903)(b) B could have t he judgment of the regi onal trial court annulled,availing at the sa me t ime of the p rovisional remedies of a temporary

restraining order and a writ of preliminary i njunction against thesheriff to en join the execution sale. The an nulment should besought by action led before t he Intermediate Appellate Court

which, under section 9 (2) 1980, now has t he ex clusive original jurisdiction over a ctions t oannul judgments o f regional trial courts.


28/43

B. Comments and Suggested Answer

(a) No, because the complaint of A for the payment of merchandise

is an action in personam, and in such an action, summons bypublication is n ot sufficient for t he co urt to acquire jurisdiction overthe p erson of the d efendant. (Magdalena Estate, Inc. vs. Nieto, 125SCRA 758)(b) B may le a petition for cert iorari to annul the judgment of theregional trial court on the g round of lack of jurisdiction over h isperson, and ask for t he issuance o f a writ of preliminary i njunctionto prevent the execu tion of said judgment. Such a petition may be

led either with the Supreme Court or with the Intermediate Appellate Court. The Intermediate ppe jurisdiction to

appellate jurisdiction. (Sec. 1 of Rule 65; Sec. 5(1), Art. X,Constitution; Sec. 9(1) of BP 129)

Another Answer:(b) B may le an action for annulment of the judgment of theregional trial court on the g round of lack of jurisdiction over h is

person, and ask for t he issuance o f a writ of preliminary i njunctionto prevent the execution of said judgment. Such an action should beled with the Intermediate Appellate Court (Sec. 9(2) of BP 129).

Question No. 16 REPLEVIN

A led an action for which A had leased to B. B put up

allowed to retain possession of the t ractor. After much delay, judgment rendered agai

sheriff took possession of the t ractor, but A refused to a ccept it onthe ground, found correct by the cou rt, that the tractor h ad becomeso d ilapidated as t o be u nserviceable and needed very cost ly repairsto be of any use.


29/43

Was As refusal to accept As rights against B?

Answer: A. Furnished by Office of Justice Plana Yes, As refusal t was justied. A judgment in an action where the p

personal property has been sought but delivery is withheld becausethe defendant has led a re-delivery of personal property has beensought but delivery is withheld because t he defendant has led are-delivery b ond, is req uired to be in the a lternative for t he d elivery

of the p roperty to the p arty entitled to it or for the va lue t hereof incase d elivery can not be made, plus damages if any and court costs.

The order to deliver condition provided in the co ntract or ob ligation, and when that isnot the co ndition, the p arty entitled to possession has t he ri ght torefuse delivery but instead to enforce the alternative order f orpayment of its value. (Ago vs. Court of Appeals, 16 SCRA 81; Rule60, Sec. 9)

B. Comments and Suggested Answer Yes, where a judgment is rendered

they ca nnot be r eturned in substantially the sa me co ndition, it issettled that the p revailing party m ay refuse t o take them andinstead sue on the r e-delivery bond. (Ago vs. Court of Appeals, 16SCRA 81)

A should enforce the judgment against

counterbond for the value of the tractor and the damages aw arded.(Sec. 9 of Rule 60)

Question No. 17 TRO

On October 1, 1984, a regi onal trial court issued a temporary


30/43

restraining ord er against the defendant. Hearing on the m otion for a writ of preliminary i because of illness

granting or den ying the motion.On October 22, 1984, the defendant proceeded to perform theaction subject of the rest raining order.Is t he d efendant liable for con tempt of court? Why?

Answer: A. Furnished by Office of Justice Plana

No. Under B.P. 224, a temporary r estraining order has a n effectivityof 20 days from the d ate of its issuance, even less i f the order xes a

shorter p eriod. The life of the t emporary restraining order en ded onOctober 21, 1984 and the order was of no effect on October 22,1984 when the defendant performed the act subject of the order.

B. Comments and Suggested AnswerNo, because a temporary rest raining order is effective on ly for aperiod of twenty days f rom date of its issuance. Since n opreliminary injunction was issued within said period, the

restraining order was d eemed automatically vacated on October 21,1984. Hence, defendant was n ot liable for contempt of court whenon October 23, 1984 he proceeded to perform the act ion subject ofthe restraining order. (BP 224; Sec. 3 of Interim Rules)

Question No. 18 FORCLOSURE

In an action for foreclosure of real estate m ortgage, judgment was

rendered against A, the m ortgagor-debtor. As A failed to pay t hemortgage debt plus interest thereon within the period stated in the

judgment, the mortgaged property was sold October 1, 1984 at a price less than the amount of the judgment.On October 3, 1984, A was ab le to raise enough money to fullysatisfy the judgment, including a ll expenses of the sa le of the


31/43


32/43

Question:

Enumerate and discuss t he different kinds of attachment.

Answer

There are at three kids attachment; (b) garnishment; and (c) levy on execution.

Preliminary at tachment is one issued at the commencement of theaction or d uring the p rogress o f the a ction. It is a mesne p rocess,liable to be dissolved anytime the judgment upon which may or maynot affect affect the p roperty sei zed.

Garnishment on the other hand is the process by which theplaintiff seeks t o subject to h is cl aim property of the defendant in

the hands of a third person or money owed by such third person tothe d efendant. In garnishment, there is n o actual seizure of theproperty. The property remains with the third person, otherwisecalled the garn ishee. Garnishment, therefore, simply impounds theproperty in the ga rnishees p ossession and maintains its st atus qu ountil the main action is nally decided. Garnishment proceedingsare usually directed to personal property. By means of garnishment,the judgment debtor and owing to him from a stranger to the

litigation. By m eans o f the ci tation, the st ranger b ecomes a forcedintervenor; and the court, have a cquired jurisdiction over h im bymeans of the citation requires h im to pay h is d ebts n ot to h is formercreditor, but to the n ew creditor w ho is c reditor t he m ain litigation.It is, therefore, a case of involuntary novation by the s ubstitution ofone cr editor for an other. (See Tayabas vs. Sharuff, 41 Phil 382).


33/43

On the other hand, levy on execution is the process by w hich theproperty of the judgment debtor i s su bjected to a lien for t hesatisfaction of the nal judgment. Levy on the execu tion is apreliminary st ep to the sa le on execution of the p roperty of the

judgment debtor.

Alternative Anwer

There is only one kind of levy on execution of a nal and executory judgment is n ot anattachment. Garnishment may refer to preliminary at tachment orlevy on execution.

Question: INJUNCTION

A led in the Court of for injunction against the Director of the Bureau of

Telecommunications to prevent him from instasystem in Cebu City in violation of As franchise. A motion to

dismiss t he p etition was led alleging, among others, that the co urthas n o jurisdiction over the respondent who is h olding office inManila. Is t he co ntention correct? E xplain.


34/43

Answer

The contention of the DirecIts jurisdiction over t he p erson of the respondent is a cquired bymeans of service of summons. The service having been made, theCourt of First Instance o f Cebu has a cquired jurisdiction over t heperson of the defendant Director of Telecommunications.

It is t rue that defendant has his office in Manila. What is sou ght to be restrained, however,

Manila but in the City of Cebu. The injunction sought is for t hepurpose o f preventing the defendant from installing the telephone

system in Cebu City.

It is t rue that the preliminary injunction that may b e granted by acourt of First Instance u nder sai d Sec 2 of Rule 5 8, is in itsapplication, co-extensive with the territorial boundaries of theprovince or district in said court sits. But since t he injunction doesnot purport to restrain acts o utside t he C ity of Cebu, it is va lid andthe court has jurisdiction to issue i t.

Alternative Answer

The contention of the DirecIts jurisdiction over t he p erson of the respondent is a cquired bymeans of service of summons. The service having been made, the

Court of First Instance o f Cebu has a cquired jurisdiction over t heperson of the defendant Director of Telecommunications.


35/43

Question:

Pending nal judgment in an action for recovery of personalproperty: (1) May the p laintiff apply for immediate d elivery o f theproperty in question? (2) In the affirmative, what requisites m ustthe plaintiff comply with in order to make h is r emedy available tohim? (3) What is t he a ncillary r emedy ca lled? (4) May this r emedy

be availed of in uniproperty in litigation does not exceed P10,000.00, exclusive o f ofinterests a nd costs?

Answer

(1) Yes, the Rules p rovide that such a rem edy may be ap plied for atthe commencement of the action or at any time before an swer.(Section 1 Rule 60)

(2) The plaintiff must show by his own affidavit of that some otherperson who personally knows the facts:

(a) That the p laintiff is t he owner of the p roperty claimed,particularly describing it, or i s e ntitled to the possession thereof;

(b) That the p roperty is w rongfully detained by the d efendant,alleging the ca use o f detention thereof according to his b est

knowledge, information and belief;

(c) That is h as b een taken for a tax assessment or ne pursuant tolaw, or s eized under an execution or an attachment against theproperty of the p laintiff, or if so seized, that it is ex empt from suchseizure; and


36/43

(d) The a ctual value of the p roperty.

The plaintiff must also give double the va lue of the p roperty as st ated, in the affidavitaforementioned, for the return of the p roperty to the d efendant ifthe return thereof be ad judged, and for t he payment to thedefendant or such sum as h e may recover from the plaintiff in theaction. (Section 2 of Rule 6 0)

(3) Delivery of personal property or r eplevin.

(4) Yes, provided the am ount of damages claimed added to the valueof the p roperty in litigation does n ot exceed P10,000.00 inclusive o finterest and costs. (Section 88 of Judiciary A ct)

1985 Bar Question on Preliminary Attachment

Avenue Lumber, the supplier of constInc. which has a running account with the former, was p aid by thelatter P100,000.00 in check. The check when deposited wasdishonored. Avenue notied Builders but despite notice, Buildersfailed to redeem the dishonored check m uch less dep osit thenecessary amount to answer for its value. Hence, Avenue Lumbersued Builders for col lection and simultaneously applied for a writ ofattachment on the ground of fraudulent issuance of theaforementioned check.


37/43

(A) As a j udge, will you grant the a ttachment prayed for?

No. A writ of attachment could be issued if Builders, Inc. had beenguilty of fraud in contracting th e d ebtor incurring th e obligation. Inthis case B uilders, Inc. had a ru nning accou nt with AvenueLumber. This m eans that the sales were made on credit. The failureof Builders, Inc. to make good the dishonored check was asubsequent fraud and could not be the basis for a w rit ofattachment. (Javellana vs. D.O. Plaza E nterprises, Inc., 32 SCRA261)

(B) As co unsel for Builders, Inc., what remedial steps w ill you

undertake a gainst the m ove to attach its p roperties? D iscuss.

If the a pplication for a w rit of attachment were set for h earing, I would oppose the move to attach i

stated. If the writ of attachment were i ssued, I would le a petitionfor cert iorari to annul the order gr anting the writ on the ground ofgrave a buse of discretion and/or, I would le a counter-bond todischarge the attachment.

1986 Bar Question on Preliminary Attachment

Matiisin made demands to no avail upon Maramot for the paymentof the P60,000.00 debt incurred by the latter. When they met aparty, Matiisin asked Maramot why his demand letters were notanswered and why the loan remained unpaid. Maramot toldMatiisin that he, Maramot, had always b een of the impression that

the P60,000.00 was n ot a loan intended to be repaid but was abalato or gi ft on the occasion of Matiisins winning P2,000,000.00in the sweepstakes draw.

Matiisin led a collection suit against Maramot and prayed for a writ of preliminary atent


38/43

In his affidavit, Matiisin stated that, to the best of his k nowledgeand belief, Maramot was gu ilty of one of the grounds for attachmentand discussed t he ground referred to.

Is t here a ground for an attachment? Is t he a pplication for a writ ofpreliminary at tachment adequate? Should it be granted? Explain.

Answer:

There is no ground for an entenumerated in Sec. 1, Rule 57 exists. One ground is when a party is

guilty of fraud in contracting the d ebt or incurring an obligation.(Dolo Causante) The fraud in this ca se h owever, is in the r efusal topay the d ebt. (Dolo Incidente) (Fernandez vs I mperial, 44 Phil. 60.)

Alternative Answer:

A ground for attachment exists that Maramot did not really intend to repay the loan from its

inception. It has b een held that a debt is f raudulently contracted ifat the t ime of contracting it, the d ebtor en tertained an intention notto pay.

The application for te should be made on the basis of personal knowledge and not to the

best of his knowledge and belRule 57; Sec. 6, Rule 7). Furthermore, the affidavit should also

state that a sufficient security for t he claim, and that the a mountdue or the value of the property to be recovered is as m uch as t hesum for which the order of attachment is gran ted above all legalcounterclaims. (Sec. 3, Rule 57)


39/43

The application should not be attachment exists.

1981 BAR EXAMS

Question No. 14

VX and her son, Mario, are plaintiffs in a case agaX fsupport. A month after the ling of the complaint, plaintiffs a sk theCourt for support pendente lite . WX opposes the petition on the

ground that Mario is n ot his son but the issue of VX as a result ofan adulterous relationship. WX asks that he be given anopportunity to prove h is d efense. The Court ruling that this d efenseis a matter or the main case d enies WX the opportunity to prove hisdefense at the st age of the case a nd grants su pport pendente lite.

Is granting of such support pendente lite correct or n ot? Give yourreasons.

Answer

No. The Court should have given WX the opportunity justicemay require. This provisional determination is withhearing ofthe application for support pendente lite . An application forsupport pendente lite may not be granted without a hearing,after which the court shall determine provisionally the

pertinent facts and shall issue such order as equity andinjustice may require. This provisional determination is

without prejudice to the trial on the meridetermination may be m ade on the right to support.


40/43

Question No. 15

Y is a stockholder of of said corporation. Y defaults on a manufacturing contract with Z.Z sues for specic performance and damages and, on the groundthat Y is eeing from the country t o avoid creditors, seeks t o attach20% of a parcel of land that belongs t o the corp oration.

Can Z secure such an attachment granting that the averments ofpetition are sufficient? Reasons.

Answer

No. Z may not attach property which does not belong to thedefendant Y. The parcel of land sought to be attached belongsto a corporation which is a distinct entity separate and apartfrom its stockholders. Y owns only 20% of the shares of thecorporation and there is no showing that the case is anexception al one where the corporate ction may bedisregarded.

Additional Answer

Attachment is not proper in a suit where plaintiff claimsdamages which are contingent or unliquidated.

Question No. 20

The City Fiscal of Manila rand EE for violation of the Corporation Law for engaging inactivities not within the purpose clause of the corporation of whichthey are principal officers.


41/43

While the complaint was under preliminary stockholder of said corporation led a minority suit before t he CFIof Rizal in relation to the same activities of the corporation. One of

the a llegations in the CFI was t he va lidity of the t ransaction subjectmatter of the cri minal complaint before t he C ity Fiscal of Manila.

DD and EE intervened in the Rizal case an d asked that the criminalinvestigation in Manila be enjoined since the civil case in Rizalinvolved a prejudicial civil question.

Does the CFI of Rizal have jurisdiction to issue a Writ of Injunctionto enjoin the City Fiscal of Manila as prayed for by DD and EE?Explain.

Answer

No. The CFI of Rizal may not issue a writ of preliminaryinjunction to restrain or en join acts b eing done or about to bedone outside its territorial boundaries. (This is the rstalternative answer and the one that relates to provisional

remedies)

1982 BAR EXAMS

Question No. 3

Branch XXV of the CFI of Manila rendered a decision against Mrs.Reyes, ordering her to pay damages to Mr. Cruz. After t he decision

became nal, personal properties of Mrs. Reyes levied on execution by the sheriff. Mrs. Santos led an action for


42/43

injunction before t he CFI of Bulacan to enjoin provincial sheriff ofBulacan from proceeding with the sale, alleging that sh e was theowner of the properties. Mr. Cruz led a motion to dismiss the

action alleging that the Bulacan court could not interfere with theaction taken by the Manila Court. The CFI of Bulacan, however,denied the motion to dismiss and granted the preliminaryinjunction. Mr. Cruz led a petition for cert iorari, alleging that t heCFI of Bulacan did not have jurisdiction to enjoin the sa le because(1) said act constituted an interference with an order issued by acourt with concurrent jurisdiction; and (2) Mrs. Santos did not le a

third-party claim with the p rovincial sheriff before ling the a ction.If you were the judge, how would you rule on the contentions of Mr.Cruz? Give your reasons.

Answer

I would dismiss th e p etition for certiorari.

The rst contention of Mr. Cruz is not tenable. Mrs. third-party claimant, may vindicate her claim by action.Obviously a judgment rendered in her favor decl aring her to bethe owner of t he property would not con stitute interference

with the powers or processes of the court which rendered the judgment to enforce which the execution was levied. If

so, then an interlocutory order, such as a preliminaryinjunction upon a claim and prima facie showing ofownership, cannot be considered as such interference either.Moreover, the court which rendered the judgment did notdirect the sheriff to levy upon the particular property indispute. The order was for h im to levy upon properties of the


43/43

judgment debtor without specifying them, not upon propertiesof a third party.

The second contention is also not tenable. The Rules of

provide that nothing therein contained shall prevent a third-party claimant from vindicating his claim to the property byany proper act ion. Hence, the ling of a third-party claim isnot a pre-requisite t o the ling of the a ction for i njunction.

Question No. 15

Edward led a complaint against Liza for accounting of the moneyreceived by her as administratrix of Edwards hacienda. In hiscomplaint, Edward prayed for prel iminary at tachment, alleging thatLiza was about to depart from the Philippines. Attached to thecomplaint was an affidavit executed by Marilyn to the effect thatLiza told her t hat she, Liza, was p lanning to leave for S ingapore i n afew days. If you were the judge, would you grant the prayer forpreliminary attachment? Why?

Answer

No, because t he mere fact that Liza was about to depart fromthe Philippines is not a ground for granting preliminaryattachment. Facts and circumstance should have been statedin the affidavit to show intent to defraud her creditors i n orderto justify s uch grant.

Bar Exams Questions

Documents

Transcript of Bar Exams Questions