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I. GENERAL PRINCIPLES
Bar by Prior Judgment vs. Conclusiveness o Judgment!"##$%
Distinguish Bar by prior judgment from conclusiveness of judgment.
S&GGES'E( ANS)ER*
Bar by prior-judgment is the doctrine of res judicata, which bars asecond action when there is identity of parties, subject matter andcause of action. (Sec. 49[b] of former Rule 39; Sec, 47 [b] of new Rule 39).
Conclusiveness of judgment precludes the relitigation of aparticular issue in another action between the same parties on adierent cause of action. (Sec. 49 [c] of former Rule 39; sec. 47 [c]of new Rule 39).
Cause o action vs. Action !"##$%
Distinguish Cause of action from action.
S&GGES'E( ANS)ER*
A CA!" #$ AC%&#' is an act or omission of one party in violation
of the legal right or rights of the other ()aao !ugar Central vs.
Barrios, *+ hil. / !ec. 0 of new 1ule 02, causing damage to
another.
An AC%&#' is an ordinary suit in a court of 3ustice by which one
party prosecutes another for the enforcement or protection of a
right, or the prevention or redress of a wrong.(!ection 4 of former
1ule 02.
Civil Actions vs. S+ecial Proceedings !"##,%
Distinguish civil actions from special proceedings. 5678
S&GGES'E( ANS)ER*
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A C&9&: AC%&#' is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress
of a wrong. (See. 3[a], Rule 1, 1997 Rules of Civil roce!ure), whilea !"C&A: 1#C""D&'; is a remedy by which a party see<s to
establish a status, a right or a particular fact. (Sec. 3[C]. Rule
1,1997 Rules of Civil roce!ure.)
Conciliation Proceedings- Katarungang Pambarangay vs. Pre
'rial Conerence !"###%
=hat is the dierence, if any, between the conciliation proceedings
under the "a#arun$an$ ambaran$a% :aw and the negotiations for
an amicable settlement during the pre-trial conference under the1ules of Court> (072
S&GGES'E( ANS)ER*
%he dierence between the conciliation proceedings under the
?atarungang ambarangay :aw and the negotiations for an
amicable settlement during the pre-trial conference under the
1ules of Court is that in the former, lawyers are prohibited from
appearing for the parties. arties must appear in person only
e@cept minors or incompetents who may be assisted by their ne@tof <in who are not lawyers. ($ormerly !ec. +,
.D. 'o. 4/ !ec. 4, :ocal ;overnment Code of 4++4, 1.A.
*4.2 'o such prohibition e@ists in the pre-trial negotiations
under the 1ules of Court.
/amily Courts Act !011"%
a2 ow should the records of child and family cases in the $amily
Courts or 1%C designated by the !upreme Court to handle $amily
Court cases be treated and dealt with> (672 b2 nder what
conditions may the identity of parties in child and family cases be
divulged (072
S&GGES'E( ANS)ER*
a2 %he records of child and family cases in the $amily Code to
handle $amily Court cases shall be dealt with utmost
conEdentiality. (!ec. 40, $amily Courts Act of 4++*2
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b2 %he identity of parties in child and family cases shall not be
divulged unless necessary and with authority of the judge. (&d.2
Interlocutory 2rder !0113%
=hat is an interlocutory order> (072
S&GGES'E( ANS)ER*
An interlocutory order refers to an order issued between the
commencement and the end of the suit which is not a Enal decision
of the whole controversy and leaves something more to be done on
its merits
(;allardo et al. v. eople, ;.1. 'o. 406, April 04, 0/
&nvestments &nc. v. Court of Appeals, ;.1. 'o. 6, 3anuary 0*,
4+* cited in Denso hils, v. FAC, ;.1. 'o. *, $eb. 0*, 4+*2.
Judgment vs. 2+inion o t4e Court !0113%
=hat is the dierence between a judgment and an opinion of the
court> (0.72
S&GGES'E( ANS)ER*
%he judgment or fallo is the Enal disposition of the Court which is
reGected in the dispositive portion of the decision. A decision is
directly prepared by a judge and signed by him, containing clearly
and distinctly a statement of the facts proved and the law upon
which the judgment is based ("toya v. Abraham !ingson, Adm.
)atter 'o. 1%3-+4-*, !eptember 0, 4++2.
An opinion of the court is the informal e@pression of the views of
the court and cannot prevail against its Enal order. %he opinion of
the court is contained in the body of the decision that serves as a
guide or enlightenment to determine the ratio decidendi of the
decision. %he opinion forms no part of the judgment even if
combined in one instrument, but may be referred to for the purpose
of construing the judgment (Contreras v. $eli@, ;.1. 'o. :-**, 3une
6, 4+*2.
Judicial Autonomy 5 Im+artiality !0116%
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&n rendering a decision, should a court ta<e into consideration the
possible eect of its verdict upon the political stability and
economic welfare of the nation> 7
S&GGES'E( ANS)ER*
'o, because a court is reHuired to ta<e into consideration only the
legal issues and the evidence admitted in the case. %he political
stability and economic welfare of the nation are e@traneous to the
case. %hey can have persuasive inGuence but they are not the main
factors that should be considered in deciding a case. A decision
should be based on the law, rules of procedure, justice and eHuity.
owever, in e@ceptional cases the court may consider the politicalstability and economic welfare of the nation when these are
capable of being ta<en into judicial notice of and are relevant to the
case.
Katarungang Pambarangay - 2b7ective !"###%
=hat is the object of the "a#arun$an$ ambaran$a% :aw>
(072
S&GGES'E( ANS)ER*
%he object of the "a#arun$an$ ambaran$a% :aw is to eect an
amicable settlement of disputes among family and barangay
members at the barangay level without judicial recourse and
conseHuently help relieve the courts of doc<et congestion.
(reamble of .D. 'o. 4, the former and the Erst "a#arun$an$
ambaran$a% :aw.2
Katarungang Pambarangay - Parties !011#%
)ariano, through his attorney-in- fact, )arcos Eled with the1%C of Baguio City a complaint for annulment of sale againstenry. )arcos and enry both reside in Asin 1oad, BaguioCity, while )ariano resides in Davao City. enry Eled a motion todismiss the complaint on the ground of prematurity for failureto comply with the mandatory barangay conciliation. 1esolvethe motion with reasons. (672
S&GGES'E( ANS)ER*
%he motion to dismiss should be denied because the partiesin interest, )ariano and enry, do not reside in the same
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cityFmunicipality, or is the property subject of the controversysituated therein. %he reHuired conciliationFmediation before theproper Barangay as mandated by the :ocal ;overnment Codegoverns only when the parties to the dispute reside in the samecity or municipality, and if involving real property, as in thiscase, the property must be situated also in the same city ormunicipality.
Liberal Construction- Rules o Court !"##,%
ow shall the 1ules of Court be construed> 5078
S&GGES'E( ANS)ER*
%he 1ules of Court should be liberally construed in order topromote their objective of securing a just, speedy and ine@pensive
disposition of every action and proceeding. (!ec. , 1ule 4 4++*
1ules of Civil rocedure.2
A((I'I2NAL ANS)ER*
owever, strict observance of the rules is an imperative necessity
when they are considered indispensable to the prevention of
needless delays and to the orderly and speedy dispatch of 3udicial
business. (Alvero vs. 3udge de la 1osa, * hil. 02
Remedial La8 in P4il. System o Gov9t !0113%
ow are remedial laws implemented in our system of government>
(072
S&GGES'E( ANS)ER*
1emedial laws are implemented in our system of government
through the pillars of the judicial system, including the prosecutoryservice, our courts of justice and Huasi judicial agencies.
Remedial La8 vs. Substantive La8 !0113%
Distinguish between substantive law and remedial law. (072
S&GGES'E( ANS)ER*
!B!%A'%&9" :A= is that part of the law which creates, deEnes
and regulates rights concerning life, liberty, or property, or the
powers of agencies or instrumentalities for the administration of public which prescribes the method of enforcing rights or obtaining
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redress for their invasion (Bustos v. :ucero, ;.1. 'o. :-0,
#ctober 0, 4+2.
Remedial La8- Conce+t !0113%
=hat is the concept of remedial law> (072
S&GGES'E( ANS)ER*
%he concept of 1emedial :aw lies at the very core of procedural
due process, which means a law which hears before it condemns,
which proceeds upon inHuiry and renders judgment only after trial,
and contemplates an opportunity to be heard before judgment is
rendered (Albert v. niversity ublishing, ;.1. 'o. :-4+44, 3anuary 6, 4+2.
1emedial :aw is that branch of law which prescribes the method of
enforcing the rights or obtaining redress for their invasion (Bustos
v. :ucero, ;.1. 'o. :-0, #ctober 0, 4+/ $irst :epanto
Ceramics, &nc. v. CA, ;.1. 'o. 44*4, )arch 4, 4++2.
Rig4ts o t4e Accused- :alidity- ;I: 'est !011<%
nder 1epublic Act 'o. 66, one may be charged with and foundguilty of HualiEed rape if he <new on or before the commission of
the crime that he is aIicted with uman &mmuno-DeEciency 9irus
(&92FAcHuired &mmune DeEciency !yndrome (A&D!2 or any other
se@ually transmissible disease and the virus or disease is
transmitted to the victim. nder !ection 4*(a2 of 1epublic Act 'o.
the court may compel the accused to submit himself to a
blood test where blood samples would be e@tracted from his veins
to determine whether he has &9. (72
a2 Are the rights of the accused to be presumed innocent of thecrime charged, to privacy, and against self-incrimination violated by
such compulsory testing> "@plain.
S&GGES'E( ANS)ER*
'o. %he court may compel the accused to submit himself to a blood
test to determine whether he has &9 under !ec. 4*(a2 of 1.A. 'o,
. is rights to be presumed innocent of the crime charged, to
privacy and against self-incrimination are not violated by such
compulsory testing. &n an action in which the physical condition of
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a party is in controversy, the court may order the accused to submit
to a physical e@amination. (!ec. 4, 1ule 0, 4++* 1ules of Civil
rocedure2
(:oo< for citation of latest case, in 02
b2 &f the result of such test shows that he is &9 positive, and the
prosecution oers such result in evidence to prove the Hualifying
circumstance under the &nformation for HualiEed rape, should the
court reject such result on the ground that it is the fruit of a
poisonous tree> "@plain.
S&GGES'E( ANS)ER*
!ince the rights of the accused are not violated because the
compulsory testing is authoriJed by the law, the result of the
testing cannot be considered to be the fruit of a poisonous tree and
can be oered in evidence to prove the Hualifying circumstance
under the information for HualiEed rape under 1.A. 'o. 66. %he
fruit, of the poisonous tree doctrine refers to that rule of evidence
that e@cludes any evidence which may have been derived or
acHuired from a tainted or polluted source. !uch evidence is
inadmissible for having emanated from spurious origins. %hedoctrine, however, does not apply to the results obtained pursuant
to !ec. 4, 1ule 0, 4++* 1ules of Civil rocedure, as it does not
contemplate a search within the moaning of the law. (eople v.
)ontilla, ;.1. 'o. 406*0, 3anuary 6,4++2
Rig4ts o t4e Accused- =iranda Rig4ts !01"1%
K was arrested for the alleged murder of a -year old lad. ewas read his )irandarights immediately upon being
apprehended. &n the course of his detention, K was subjectedto three hours of non-stop interrogation. e remained Huietuntil, onthe 6rd hour, he answered LyesL to the Huestion of whetherLhe prayed for forgiveness for shooting down the boy.L %he trialcourt, interpreting KMs answer as anadmission of guilt, convicted him. #n appeal, KMs counsel faultedthe trial court in its interpretation of his clientMs answer,arguing that K invo<ed his )iranda rights when he remainedHuiet for the Erst two hours of Huestioning. 1ule on theassignment of error. (672
S&GGES'E( ANS)ER*
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%he assignment of error invo<ed by K‟s counsel is impressed
with merit sincethere has been no e@press waiver of K‟s )iranda 1ights. &norder to have a validwaiver of the )iranda 1ights, the same must be in writingand made in thepresence of his counsel. %he uncounselled e@trajudicialconfession of K being without a valid waiver of his )iranda1ights, is inadmissible, as well as any information derivedtherefrom.
II. J&RIS(IC'I2N
Jurisdiction !"##$%
=hat courts have jurisdiction over the following cases Eled in
)etro )anila> a2 An action for speciEc performance or, in the
alternative, for damages in the amount of 4,. b2 An action
for a writ of injunction. c2 An action for replevin of a motorcycle valued at 4,.. d2 An action for interpleader to determine
who between the defendants is entitled to receive the amount of
4+,. from the plainti. e2 A petition for the probate of a will
involving an estate valued at 0,..
S&GGES'E( ANS)ER*
(a2 An action for speciEc performance or, in the alternative, for
damages in the amount of 4,. falls within the jurisdiction of
)etropolitan %rial Courts in )etro )anila. Although an action forspeciEc performance is not capable of pecuniary estimation, since
the alternative demand for damages is capable of pecuniary
estimation, it is within the jurisdiction of the )etropolitan %rial
Courts in )etro )anila. (!ec. 66 of B 40+ as amended by 1A 'o.
*+4N CruJ us. %an, * hil. 0*8.
(b2 An action for injunction is not capable of pecuniary estimation
and hence falls within the jurisdiction of the 1%Cs.
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(c2 An action for replevin of a motorcycle valued at 4,. falls
within the jurisdiction of the )etropolitan %rial Courts in )etro
)anila (!ec. 66 of B 40+. as amended by 1A 'o. *+42.
(d2 An action for interpleader to determine who between the
defendants is entitled to receive the amount of 4+,. falls
within the jurisdiction of the )etropolitan %rial Courts in )etro
)anila. ()a<ati Dev Corp. v. %anjuatco 0* !C1A 42
(e2 A petition for the probate of a will involving an estate valued at
0.. falls within the 3urisdiction of the )etropolitan %rial
Courts in )etro )anila (!ec. 4+58 of B 40+, as amended2.
A((I'I2NAL ANS)ER*
(b2 An application for a writ of preliminary injunction may be
granted by a )unicipal Court in an action of forcible entry and
unlawful detainer. (!ec.66 of B 40+/ Day vs. 1%C of Oamboanga,
4+4 !C1A4.
Jurisdiction* Person o t4e Accused !01">% & was charged before the San!i$anba%an with a crime of plunder, a
non-bailable oense, where the court had already issued a warrantfor his arrest. =ithout & being arrested, his lawyer Eled a 'o#ion#o uas &rres# *arran# an! #o +i -ail, arguing that theallegations in the information did not charge the crime of plunderbut a crime of malversation, a bailable oense. %he court deniedthe motion on the ground that it had not yet acHuired jurisdictionover the person of the accused and that the accused should beunder the custody of the court since the crime charged was non-bailable.
%he accusedMs lawyer counter-argued that the court can rule on themotion even if the accused was at-large because it had jurisdictionover the subject matter of the case. According to said lawyer, therewas no need for the accused to be under the custody of the courtbecause what was Eled was a 'o#ion #o uas &rres# an! #o +i -ail, not a e#i#ion for -ail.
!A% &f you are the San!i$anba%an, how will you rule on themotion> !6?%
S&GGES'E( ANS)ER*
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&f & were the San!i$anba%an, & would deny the )otion to Puash Arrest =arrant and to $i@ Bail.
%he motion to Huash warrant of arrest may be considered sinceonly jurisdiction over the person not custody of the law is reHuired. 3urisdiction over the person of A was obtained by his voluntaryappearance made through the Eling of the motion see<ingairmative relief. (See )iranda v. %uliao, 64 )arch 02.
'onetheless & would still deny the motion to Huash arrest warrant.%he ground that the oense charged is malversation not plunder isnot a valid ground to Huash the arrest warrant. A should simply Elean application for bail and contend that he is entitled thereto as amatter of right.
%he motion to E@ amount of bail, which is in eect an applicationfor bail cannot be granted unless the accused is in custody of thelaw. ()iranda v. %uliao, 64 )arch 02. ere A was not incustody of the law but still at large. ence the motion to E@ theamount of bail should be denied.
!B% &f the San!i$anba%an denies the motion, what judicial remedyshould the accused underta<e> !0?% S&GGES'E( ANS)ER*
&f the San!i$anba%an denies the motion, the judicial remedy thatthe accused should underta<e is to Ele a petition for certiorariunder 1ule with the !upreme Court. Certiorari is available tochallenge interlocutory orders rendered with grave abuse ofdiscretion since appeal is unavailable.
ere the order denying the )otion to Puash Arrest =arrant and to$i@ Bail is interlocutory since it does not completely dispose of thecase. ence certiorari is available. A should aver that theSan!i$anba%an acted with grave abuse of discretion amounting to
lac< of or e@cess of jurisdiction in denying his motion. Jurisdiction- 2ver t4e Plainti@ Sub7ect =atter !011#%
Amorsolo, a $ilipino citiJen permanently residing in 'ew Qor< City, Eled with the 1%C of :ipa City a complaint for 1escissionof Contract of !ale of :and against Brigido, a resident of Barangay !an )iguel, !to. %omas, Batangas. %he subjectproperty, located in Barangay %alisay, :ipa City, has anassessed value of 4+,*. Appended to the complaint is AmorsoloMs veriEcation and certiEcation of non-forum shopping
e@ecuted in 'ew Qor< City, duly notariJed by )r. 3osephBrown, "sH., a notary public in the !tate of 'ew Qor<.
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Brigod Eled a motion to dismiss the complaint on the followinggroundsN
(a2 %he court cannot acHuire jurisdiction over the person of Amorsolo because he isnot a resident of the hilippines/ (072
S&GGES'E( ANS)ER*
%he Erst ground raised lac<s merit because jurisdiction overthe person of a plainti is acHuired by the court upon theEling of plainti ‟s complaint therewith. 1esidency orcitiJenship is not a reHuirement for Eling a complaint, because
plainti thereby submits to the jurisdiction of the court.
(b2 %he 1%C does not have jurisdiction over the subject matter ofthe action involvingreal property with an assessed value of 4+,*./ e@clusiveand original jurisdiction is with the )unicipal %rial Courtwhere the defendant resides/ (672
S&GGES'E( ANS)ER*
%he second ground raised is also without merit because thesubject of the litigation, 1escission of Contract, is incapableof pecuniary estimation the e@clusive original jurisdiction towhich is vested by law in the 1egional %rial Courts. %henature of the action renders the assessed value of the landinvolved irrelevant.
(istinguis4 error o 7urisdiction rom error o 7udgment!01"1%.
S&GGES'E( ANS)ER*
An error of judgment is one which the court may commit inthe e@ercise of its jurisdiction. !uch an error does notdeprive the court of jurisdiction and is correctible only byappeal/ whereas an error of jurisdiction is one which thecourt acts without or in e@cess of its jurisdiction. !uch anerror renders an order or judgment void or voidable and iscorrectible by the special civil action of certiorari. (Dela CruJ vs. )oir, 6 hil. 046/ Cochingyan vs. Claribel, * !C1A 64/$ortich vs. Corona, April 0, 4++, 0+ !C1A 0/ Artistica
Ceramica, &nc. vs. Ciudad Del Carmen omeowner’s Association, &nc., ;.1. 'os. 4*6-, 3une 4, 042.
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Jurisdiction vs. :enue !0113%
Distinguish jurisdiction from venue> (072
S&GGES'E( ANS)ER*
31&!D&C%&#' treats of the power of the Court to decide a case on
the merits, while 9"'" refers to the place where the suit may be
Eled. &n criminal actions, however, venue is jurisdictional.
3urisdiction is a matter of substantive law/ venue, of procedural
law. 3urisdiction may be not be conferred by consent through
waiver upon a court, but venue may be waived, e@cept in criminalcases ('ocum et al. v. %an, ;.1. 'o. 400, !eptember 06, 0/
!antos &&& v. 'orthwest Airlines, ;.1. 'o. 446, 3une 06, 4++02.
Jurisdiction- C'A (ivision vs. C'A En Banc !0113%
)ar< Eled with the Bureau of &nternal 1evenue a complaint for
refund of ta@es paid, but it was not acted upon. !o, he Eled a
similar complaint with the Court of %a@ Appeals raIed to one of its
Divisions. )ar<Rs complaint was dismissed. %hus, he Eled with the
Court of Appeals a petition for certiorari under 1ule . Does theCourt of Appeals have jurisdiction over )ar<Rs petition> (0.72
S&GGES'E( ANS)ER*
'o. %he procedure is governed by !ec. 44 of 1. A. +00. Decisions
of a division of the Court of %a@ Appeals must be appealed to the
Court of %a@ Appeals en banc. $urther, the C%A now has the same
ran< as the Court of Appeals and is no longer considered a Huasi-
judicial agency. &t is li<ewise provided in the said law that the
decisions of the C%A en bane are cogniJable by the !upreme Courtunder 1ule of the 4++* 1ules of Civil rocedure.
Jurisdiction* R'C- Actions Inca+able 2 PecuniaryEstimation !01">%
rince Con$ entered into a lease contract with "in$ "on$ over acommercial building where the former conducted his hardwarebusiness. %he lease contract stipulated, among others, a monthly
rental of ,. for a four (2-year period commencing on 3anuary 4, 04. #n 3anuary 4, 046, rince Con$ died. "in l
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Con$ was appointed administrator of the estate of rince Con$,but the former failed to pay the rentals for the months of 3anuary to 3une 046 despite "in$ "on$/s written demands.
%hus, on 3uly 4, 046, "in$ "on$ Eled with the 1egional %rial Court( R0C2 an action for rescission of contract with damages andpayment of accrued rentals as of 3une 6, 046. !>?%!A% Can "in l Con$ move to dismiss the complaint on the groundthat the 1%C is without jurisdiction since the amount claimed isonly 6,.>
S&GGES'E( ANS)ER*
'o, ?in && Chong cannot move to dismiss the complaint on theground that the 1%C is without jurisdiction since the amountclaimed is only 6,.
nder B.. Blg. 40+, the 1%C has original and e@clusive jurisdictionover actions incapable of pecuniary estimation.
ere the action is for rescission which is incapable of pecuniaryestimation. %he 6, accrued rentals is only incidental to themain purpose of the action which is to rescind the lease contract.
!B% &f the rentals accrued during the lifetime of rinceCon$, and "in$ "on$ also Eled the complaint for sum of moneyduring that time, will the action be dismissible upon rince Con$Msdeath during the pendency of the case>
S&GGES'E( ANS)ER*
'o, the action will not be dismissible upon rince ChongMs deathduring the pendency of the case.
nder !0 16, when the action is on a contractual money claimand the defendant dies before entry of Enal judgment, the action
shall not be dismissed but shall instead be allowed to continue untilentry of Enal judgment.
here the action is on a contractual money claim, that is, a claim forrentals based on a lease contract. ence it shall be allowed tocontinue until Enal judgment. (!0 16, ! 12.
Jurisdiction- Inca+able o Pecuniary Estimation !0111%
A brings an action in the )%C of )anila against B for the
annulment of an e@trajudicial foreclosure sale of real property withan assessed value of ,. located in :aguna. %he complaint
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alleged prematurity of the sale for the reason that the mortgage
was not yet due. B timely moved to dismiss the case on the ground
that the action should have been brought in the 1%C of :aguna.Decide with reason. (672
!;;"!%"D A'!="1N
%he motion should be granted. %he )%C of )anila has no
jurisdiction because the action for the annulment of the
e@trajudicial foreclosure is not capable of pecuniary estimation and
is therefore under the jurisdiction of the 1%Cs. (1ussell v. 9estil,
6 !C1A *6,54+++82.
owever, the action for annulment is a personal action and the
venue depends on the residence of either A or B. ence, it should
be brought in the 1%C of the place where either of the parties
resides.
Jurisdiction- Inca+able o Pecuniary Estimation !0111%
A Eles an action in the )unicipal %rial Court against B, the natural
son of AMs father, for the partition of a parcel of land located in
%aytay, 1iJal with an assessed value of 0,.. B moves to
dismiss the action on the ground that the case should have been
brought in the 1%C because the action is one that is not capable of
pecuniary estimation as it involves primarily a determination of
hereditary rights and not merely the bare right to real property.
1esolve the motion. (072
!;;"!%"D A'!="1N
%he motion should be granted. %he action for partition depends on
a determination of the hereditary rights of A and B, which is not
capable of pecuniary estimation. ence, even though the assessed
value of the land is 0,., the )unicipal %rial Court has no
jurisdiction. (1ussell v. 9estil, supra2
Jurisdiction- Inca+able o Pecuniary Estimation !0116%
A Eled with the )%C of )anila an action for speciEc performance
against B, a resident of PueJon City, to compel the latter to e@ecute
a deed of conveyance covering a parcel of land situated in PueJon
City having an assessed value of p4+,.. B received the
summons and a copy of the Complaint on 0 3anuary 06. #n 4
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3anuary 06, B Eled a )otion to Dismiss the Complaint on the
ground of lac< of jurisdiction contending that the subject matter of
the suit was incapable of pecuniary estimation. %he court deniedthe motion. &n due time, B Eled with the 1%C a etition for
Certiorari praying that the said #rder be set aside because the
)%C had no jurisdiction over the case. 7 #n 46 $ebruary 06, A
Eled with the )%C a motion to declare B in default. %he motion was
opposed by B on the ground that his etition for Certiorari was still
pending.
(a2 =as the denial of the )otion to Dismiss the Complaint correct>
(b2 1esolve the )otion to Declare the Defendant in Default.
S&GGES'E( ANS)ER*
(a2 %he denial of the )otion to Dismiss the Complaint was not
correct. Although the assessed value of the parcel of land involved
was 4+,., within the jurisdiction of the )%C of )anila, the
action Eled by A for !peciEc erformance against B to compel the
latter to e@ecute a Deed of Conveyance of said parcel of land was
not capable of pecuniary estimation and, therefore, the action was
within the jurisdiction of 1%C. (1ussel v. 9estil, 6 !C1A *654+++8/ Copioso v. Copioso, ;.1. 'o. 4+06, #ctober 0,00/
Cabutihan v. :andcenter Construction, 66 !C1A 66 50082.
AL'ERNA'I:E ANS)ER*
&f the action aects title to or possession of real property then it is
a real action and jurisdiction is determined by the assessed value of
the property. &t is within the jurisdiction therefore of the
)etropolitan %rial Court.
S&GGES'E( ANS)ER*
(b2 %he Court could declare B in default because B did not obtain a
writ of preliminary injunction or a temporary restraining order
from the 1%C prohibiting the judge from proceeding in the case
during the pendency of the petition for certiorari.
(!ec. * of 1ule / DiaJ v. DiaJ, 664 !C1A 60 5008.
AL'ERNA'I:E ANS)ER*
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%he Court should not declare B in default inasmuch as the
jurisdiction of )%C was put in issue in the etition $or Certiorari
Eled with the 1%C. %he )%C should defer further proceedingspending the result of such petition. ("ternal ;ardens )emorial
ar< Corporation v. Court of Appeals, 4 !C1A 04 54+82.
Jurisdiction* Sandiganbayan !01">%
%he #mbudsman, after conducting the reHuisite preliminaryinvestigation, found probable cause to charge ov. 'a#i$as inconspiracy with Car2in#ero, a private individual, for violating!ection 6(e2 of 1epublic Act ( R&2 'o. 64+ ( &n#iraf# an! Corru2# rac#ices &c#, as amended2.
Before the information could be Eled with the !andiganbayan, ov. 'a#i$as was <illed in an ambush. %his, notwithstanding, aninformation was Eled against ov. 'a#i$as and Car2in#ero. At the !andiganbayan, Car2in#ero through counsel, Eled a )otionto Puash the &nformation, on the ground of lac< of jurisdiction ofthe !andiganbayan, arguing that with the death of ov. 'a#i$as,there is no public oicer charged in the information. &s the motionto Huash legally tenable> !>?%
S&GGES'E( ANS)ER*
'o, the motion to Huash is not legally tenable.
&n a case involving similar facts, the !upreme Court held that thedeath of the public oicer did not mean that the allegation ofconspiracy between the public oicer and the private person canno longer be proved or that their alleged conspiracy is alreadye@punged. %he only thing e@tinguished by the death of the publicoicer was his criminal liability. is death did not e@tinguish thecrime nor did it remove the basis of the charge of conspiracy
between him and the private person. ence the !andiganbayanhad jurisdiction over the oense charged. (eople v. ;o, 0 )arch04, eralta, 3.2
Jurisdiction- R'C- =e'C !01"1%
#n August 46, 0, A, as shipper and consignee, loaded onthe )F9 Atlantis in :egaspi City 4, pieces of centuryeggs. %he shipment arrived in )anila totally damaged on August 4, 0. A Eled before the )etropolitan %rial Court
()e%C2 of )anila a complaint against B !uper :ines, &nc. (B:ines2, owner of the )F9 Atlantis, for recovery of damages
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amounting to 4*,++. e attached to the complaint the Bill of :ading.
(a2 B :ines Eled a )otion to Dismiss upon the ground thatthe 1egional %rial ourt has e@clusive original jurisdiction overLall actions in admiralty and maritimeL claims.&n his 1eply, A contended that while the action is indeedLadmiralty and maritimeLin nature, it is the amount of the claim, not the nature of theaction, that governs jurisdiction. ass on the )otion to Dismiss.(672
!;;"!%"D A'!="1N
%he )otion to Dismiss is without merit and therefore shouldbe denied. Courts of the Erst level have jurisdiction over civilactions where the demand is for sum of money not e@ceeding6,. or in )etro )anila, ,., e@clusive of interest, damages, attorney‟s fees, litigation e@penses andcostsN this jurisdictionincludes admiralty and marine cases. And where the maincause of action is the claim for damages, the amount thereof shall be considered in determining the jurisdiction of the court(Adm. Circular 'o. +-+, 3une 4, 4++2.
(b2 %he )e%C denied the )otion in Huestion A. B :ines thus Eledan Answer raising thedefense that under the Bill of :ading it issued to A, itsliability was limited to4,. At the pre-trial conference, B :ines deEned as one of the issues whether the stipulation limiting its liability to 4,binds A. A countered that this was no longer in issue as B:ines had failed to deny under oath the Bill of :ading. =hichof the parties is correct> "@plain. (672
S&GGES'E( ANS)ER* %he contention of B is correctN A ‟s contention is wrong. &twas A whopleaded the Bill of :ading as an actionable document where
the stipulation limits B‟s liability to A to 4,. only. %heissue raised by B does not go against or impugn thegenuineness and due e@ecution of the Bill of :ading as anactionable document pleaded by A, but invo<es the bindingeect of said stipulation. %he oath is not reHuired of B, becausethe issue raised by the latter does not impugn the
genuineness and due e@ecution of the Bill of :ading.
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Jurisdiction- R'C- ='C !01">%
s#rella was the registered owner of a huge parcel of land locatedin a remote part of heir barrio in -en$ue#. owever, when she visited the property after she too< a long vacation abroad, she wassurprised to see that her childhood friend, 5on, had established a vacation house on her property.
Both s#rella and 5on were residents of the same baran$a% . %orecover possession, s#rella Eled a complaint for ejectment withthe )unicipal %rial Court ( '0C2, alleging that she is the trueowner of the land as evidenced by her certiEcate of title and ta@declaration which showed the assessed value of the property as
04,.. #n the other hand, 5on refuted s#rella/s claim of ownership and submitted in evidence a Deed of Absolute !alebetween him and s#rella. After the Eling of 5onMs answer, the)%C observed that the real issue was one of ownership and not of possession. ence, the )%C dismissed the complaint for lac< of jurisdiction.
#n appeal by s#rella to the 1egional %rial Court ( R0C2, a full-blown trial was conducted as if the case was originally Eled with it.%he 1%C reasoned that based on the assessed value of the property,it was the court of proper jurisdiction. "ventually, the 1%C
rendered a judgment declaring 5on as the owner of the land and,hence, entitled to the possession thereof. !>?%
!A% =as the )%C correct in dismissing the complaint for lac< of jurisdiction> =hy or why not>
S&GGES'E( ANS)ER*
'o, the )%C was not correct in dismissing the case for lac< of jurisdiction. %he !upreme Court has held that an allegation of ownership as a defense in the answer will not oust the )%C of
jurisdiction in an ejectment case. (!ubano v. 9allecer, 0 )arch4++2. =hat determines subject-matter jurisdiction is theallegations in the complaint and not those in the answer.$urthermore, the )%C is empowered under !4 1* to resolve theissue of ownership, albeit for the purpose only of resolving theissue of possession.
!B% =as the 1%C correct in ruling that based on the assessed valueof the property, the case was within its original jurisdiction and,hence, it may conduct a full-blown trial of the appealed case as if itwas originally Eled with it> =hy or why not>
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'o the 1%C was not correct in ruling that the case was within itsoriginal jurisdiction and that hence it may conduct a full-blown trialof the appealed case as if it were originally Eled with it.
nder ! 1, if an appeal is ta<en from an )%C order dismissinga case for lac< of jurisdiction without a trial on the merits, the 1%Con appeal may airm the dismissal order and if i# as 6uris!ic#ion#ereover , try the case on the merits as if the case was originallyEled with it.
ere the 1%C did not have jurisdiction over the case since it is anejectment suit cogniJable e@clusively by the )%C. %he assessed value of the land is irrelevant for the purpose of determining jurisdiction in ejectment suits and would not oust the )%C of
jurisdiction in the same manner as allegations of ownership wouldnot oust the )%C of jurisdiction.
%he 1%C should have reversed the dismissal order andremanded the case to the )%C for further proceedings.
Jurisdiction- ='C !0110%
sued A and B in one complaint in the 1%C-)anila, the cause of
action against A being on an overdue promissory note for
6,. and that against B being on an alleged balance of
6,. on the purchase price of goods sold on credit. Does
the 1%C-)anila have jurisdiction over the case> "@plain. (672
S&GGES'E( ANS)ER*
'o, the 1%C-)anila has no jurisdiction over the case. A and B could
not be joined as defendants in one complaint because the right to
relief against both defendants do not arise out of the same
transaction or series of transactions and there is no common
Huestion of law or fact common to both. (1ule 6, sec. 2. ence,
separate complaints will have to be Eles and they would fall under
the jurisdiction of the )etropolitan %rial Court. 5$lores v. )allare-
hilipps, 4 !C1A 6** (4+28.
Jurisdiction- 2@ice o t4e Solicitor General !0113%
&n 4++, Congress passed 1epublic Act 'o. 4+, otherwise <nown
as the 9oterRs 1egistration Act of 4++, providing for
computeriJation of elections. ursuant thereto, the C#)":"C
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approved the 9oterRs 1egistration and &dentiEcation !ystem (91&!2
roject. &t issued invitations to pre-Hualify and bid for the project.
After the public bidding, $oto<ina was declared the winning bidderwith a bid of billion and was issued a 'otice of Award. But
C#)":"C Chairman ;ener ;o objected to the award on the
ground that under the Appropriations Act, the budget for the
C#)":"CRs moderniJation is only 4 billion. e announced to the
public that the 91&! project has been set aside. %wo
Commissioners sided with Chairman ;o, but the majority voted to
uphold the contract.
)eanwhile, $oto<ina Eled with the 1%C a petition for mandamus
compel the C#)":"C to implement the contract. %he #ice of the!olicitor ;eneral (#!;2, representing Chairman ;o, opposed the
petition on the ground that mandamus does not lie to enforce
contractual obligations. During the proceedings, the majority
Commissioners Eled a manifestation that Chairman ;o was not
authoriJed by the C#)":"C "n Banc to oppose the petition.
)ay the #!; represent Chairman ;o before the 1%C
notwithstanding that his position is contrary to that of the majority>
(72S&GGES'E( ANS)ER*
Qes, the #!; may represent the C#)":"C ChairSman before the
1%C notwithstanding that his position is contrary to that of a
majority of the Commission members in the C#)":"C because the
#!; is an independent oice/ itRs hands are not shac<led to the
cause of its client agency. %he primordial concern of the #!; is to
see to it that the best interest of the government is upheld
(C#)":"C v. Puyano-adilla, !eptember 4, 002. Jurisdiction- 2mbudsman Case (ecisions !0113%
Does the Court of Appeals have jurisdiction to review the Decisions
in criminal and administrative cases of the #mbudsman> (0.72
S&GGES'E( ANS)ER*
%he !upreme Court has e@clusive appellate jurisdiction over
decisions of the #mbudsman in criminal cases (!ec. 4, 1.A. **2.
&n administrative and disciplinary cases, appeals from the#mbudsman must be ta<en to the Court of Appeals under 1ule 6
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(:anting v. #mbudsman, ;.1. 'o. 440, )ay , 0/ $abian v.
Desierto, ;.1. 'o. 40+*0, !eptember 4, 4++/ !ec. 4, 1A.
**2.
Jurisdiction- Probate !011"%
3osefa Eled in the )unicipal Circuit %rial Court of Alicia and
)abini, a petition for the probate of the will of her husband,
)artin, who died in the )unicipality of Alicia, the residence of the
spouses. %he probable value of the estate which consisted mainly of
a house and lot was placed at +,. and in the petition for the
allowance of the will, attorneyMs fees in the amount of 4,.,
litigation e@penses in the amount of ,. and costs wereincluded. edro, the ne@t of <in of )artin, Eled an opposition to the
probate of the will on the ground that the total amount included in
the relief of the petition is more than 4,., the ma@imum
jurisdictional amount for municipal circuit trial courts. %he court
overruled the opposition and proceeded to hear the case. =as the
municipal circuit trial court correct in its ruling> =hy> (72
S&GGES'E( ANS)ER*
Qes, the )unicipal Circuit %rial Court was correct in proceeding tohear the case. &t has e@clusive jurisdiction in all matters of probate,
both testate and intestate, where the value of the estate does not
e@ceed 4,. (now 0,.2. %he value in this case of
+,. is within its jurisdiction. &n determining the
jurisdictional amount, e@cluded are attorneyMs fees, litigation
e@penses and costs/ these are considered only for determining the
Eling fees. (B..Blg. 40+, !ec. 66, as amended2
Jurisdiction- R'C !011#%
Angelina sued Armando before the 1egional %rial Court (1%C2of )anila to recover the ownership and possession of twoparcels of land/ one situated in ampanga, and the other inBulacan.
(a2 )ay the action prosper> "@plain.
S&GGES'E( ANS)ER*
'o, the action may not prosper, because under 1.A. 'o. *+4,e@clusive original jurisdiction in civil actions which involve
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title to, or possession of real property or any interest thereinis determined on the basis of the assessed value of the landinvolved, whether it should be 0, in the rest of thehilippines, outside of the )anila with the courts of the Erstlevel or with the 1egional %rial Court. %he assessed value of the parcel of land in ampanga is dierent from the assessed value of the land in Bulacan. =hat is involved is not merelya matter of venue, which is waivable, but of a matter of jurisdiction. owever, the action may prosper if jurisdiction isnot in issue, because venue can be waived.
AL'ERNA'I:E ANS)ER*
Qes, if the defendant would not Ele a motion to dismiss onground of improper venue and the parties proceeded to trial.
(b2 =ill your answer be the same if the action was forforeclosure of the mortgageover the two parcels of land> =hy or why not>
S&GGES'E( ANS)ER*
'#, the answer would not be the same. %he foreclosure actionshould be brought in the proper court of the province wherethe land or any part thereof is situated, ither in ampangaor in Bulacan. #nly one foreclosure action need be Eledunless each parcel of land is covered by distinct mortgagecontract. &n foreclosure suit, the cause of action is for the violation of the terms and conditions of the mortgagecontract/ hence, one foreclosure suit per mortgage contract violated is necessary.
Jurisdiction- R'C !0110%
sued A in the 1%C-)anila to recover the following sumsN (42
0,. on an overdue promissory note, (02 ,. on the
purchase price of a computer, (62 4,. for damages to his
car and
(2 4,. for attorneyMs fees and litigation e@penses. Can A
move to dismiss the case on the ground that the court has no
jurisdiction over the subject matter> "@plain. (072
S&GGES'E( ANS)ER*
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'o, because the 1%C-)anila has jurisdiction over the subject
matter. may sue A in one complaint asserting as many causes of
action as he may have and since all the claims are principally forrecovery of money, the aggregate amount claimed shall be the test
of jurisdiction. 51ule 0, sec. (d28. %he aggregate amount claimed is
,., e@clusive of the amount of 4,. for attorneyMs
fees and e@penses of litigation. ence, the 1%C-)anila has
jurisdiction.
Jurisdiction- R'C- Counterclaim !011,% $e Eled a suit for collection of 6*, against 1amon in
the 1%C of Davao City. Aside from alleging payment as adefense, 1amon in his answer set up counterclaims for4, as damages and 6, as attorneyMs fees as a result of the baseless Eling of the complaint, as well as for 0,as the balance of the purchase price of the 6 units of airconditioners he sold to $e.
(a2 Does the 1%C have jurisdiction over 1amonMs counterclaim,and if so, does hehave to pay doc<et fees therefore>
S&GGES'E( ANS)ER*
Qes, applying the totality rule which sums up the totalamount of claims of the parties, the 1%C has jurisdiction overthe counter claims. nli<e in the case of compulsorycounterclaims, a defendant who raises a permissivecounterclaim must Erst pay doc<et fees before the court can validly acHuire jurisdiction. #ne compelling test of compulsoriness is the logical relation between the claimalleged in the complaint and the counterclaim (Bayer hil,&nc. vs. C.A., ;.1. 'o. 4+0+, 4 !eptember 02. 1amondoes not have to pay doc<et fees for his compulsorycounterclaims. 1amon is liable for doc<et fees only on hispermissive counterclaim for the balance of the purchase priceof 6 units of air conditioners in the sum of 0,, as itneither arises out of nor is it connected with the transactionor occurrence constituting $e‟s claim (!ec. 4+ 58 and 66 548,B.. 40+/ A# -+, implementing 1.A. *+4, approved )arch0, 4++, the jurisdictional/ amount for )%C Davao being6, at this time/ Alday vs. $; &nsurance Corporation,;.1. 'o. 4600, 06 3anuary 042.
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(b2 !uppose 1amonMs counterclaim for the unpaid balance is64,, what will happen to his counterclaims if the courtdismisses the complaint after holding apreliminary hearing on 1amonMs airmative defenses>
S&GGES'E( ANS)ER*
%he dismissal of the complaint shall be without prejudice tothe prosecution inthe same or separate action of a counterclaim pleaded in theanswer (!ec. 6, 1ule 4*/ inga vs. eirs of ;erman !antiago,;.1. 'o. 4*6, 3une 6, 02.
(c2 nder the same premise as paragraph (b2 above, supposethat instead of allegingpayment as a defense in his answer, 1amon Eled a motion todismiss on that ground, atthe same time setting up his counterclaims, and the court grantshis motion. =hat willhappen to his counterclaims>
S&GGES'E( ANS)ER* is counterclaims can continue to be prosecuted or may be
pursued separately at his option (!ec. , 1ule 4/ inga vs.eirs of ;erman !antiago, ;.1. 'o. 4*6, 3une 6, 02.
Jurisdiction- Subdivision ;omeo8ner !0113%
=hat court has jurisdiction over an action for speciEc performance
Eled by a subdivision homeowner against a subdivision developer>
Choose the correct answer. "@plain.
4 %he ousing and :and se 1egulatory Board
0 %he !ecurities and "@change Commission
6 %he 1egional %rial Court
%he Commercial Court or the 1egional %rial Court designated
by the !upreme Court to hear and decide Lcommercial cases.L
S&GGES'E( ANS)ER*
An action for speciEc performance by a subdivision homeowner
against a subdivision developer is within the jurisdiction of theousing and :and se 1egulatory Board. !ec. 4 of .D. 46
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provides that the :1B has jurisdiction over cases involving
speciEc performance of contractual and statutory obligations Eled
by buyers of subdivision lots and condominium units against theowner, developer, dealer, bro<er or salesman ()anila Ban<ers :ife
&nsurance Corp. v. "ddy 'g ?o< =ei, ;.1. 'o. 46+*+4, December
40, 06/ ?a<ilala v. $araon, ;.1. 'o. 46066, #ctober 4, 0/
!ec. 4, .D. 462.
Katarungang Pambarangay; Lupon- Etent o Aut4ority-
!011"%
An amicable settlement was signed before a u2on 0a$a2ama%a2a
on 3anuary 6, 04. #n 3uly , 04, the prevailing party as<ed the u2on to e@ecute the amicable settlement because of the non-
compliance by the other party of the terms of the agreement. %he
u2on concerned refused to e@ecute the settlementFagreement. a2
&s the u2on correct in refusing to e@ecute the
settlementFagreement> (672 b2 =hat should be the course of action
of the prevailing party in such a case> (072
!;;"!%"D A'!="1N
a2 Qes, the u2on is correct in refusing to e@ecute thesettlementFagreement because the e@ecution sought is already
beyond the period of si@ months from the date of the settlement
within which the u2on is authoriJed to e@ecute. (!ec. 4*, :ocal
;overnment Code of 4++42
b2 After the si@-month period, the prevailing party should move to
e@ecute the settlementFagreement in the appropriate city or
municipal trial court. (&d.2
III. CI:IL PR2CE(&RE
Actions- Cause o Action vs. Action !"###%
Distinguish action from cause of action. (072
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S&GGES'E( ANS)ER*
An AC%&#' is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress
of a wrong. (!ec. 6(A2, 1ule 2
A CA!" #$ AC%&#' is the act or omission by which a party
violates a right of another. (!ec. 0, 1ule 0 of the 4++* 1ules2 An
action must be based on a cause of action. (!ec. 4, 1ule 0 of the
4++* 1ules2
Actions- Cause o Action !01"6%
=hile leisurely wal<ing along the street near her house in)ari<ina, atty un<nowingly stepped on a garden tool leftbehind by CCC, a construction companybased in )a<ati. !he lost her balance as a conseHuence andfell into an open manhole.$ortunately, atty suered no major injuries e@cept forcontusions, bruises andscratches that did not reHuire any hospitaliJation. owever,she lost self- esteem, suered embarrassment and ridicule, andhad bouts of an@iety and bad dreams about the accident. !he
wants vindication for her uncalled for e@perience and hires youto act as counsel for her and to do whatever is necessary torecover at least hp4, for what she suered. =hat actionor actions may atty pursue, against whom, where (court and venue2, and under what legal basis> (*72
S&GGES'E( ANS)ER*
atty may avail any of the following remediesNa2 !he may Ele a complaint for damages arising from fault ornegligence under
the 1ules on !mall Claims against CCC Company before the)%C of )ari<inaCity where she resides or )a<ati City where the defendantcorporation is holding oice, at her option (A.). 'o. - -*-!C inrelation to !ection 0, 1ule , 1ules of Court2.
b2 !he may also Ele an action to recover moral damages basedon Huasi-delict under Article 04* of the 'ew Civil Code. %helaw states that, whoever by act or omission causes damage toanother, there being fault or negligence is obliged to pay forthe damage done.
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!uch fault or negligence, if there is no pre-e@isting contractualrelation between the parties, is called a Huasi-delict. nder Article 004* of the 'ew Civil Code, moral damages includephysical suering, mental anguish, fright, serious an@iety,besmirched reputation, wounded feelings, moral shoc<, socialhumiliation, and similar injury. %hough incapable of pecuniarycomputation, moral damages may be recovered if theyare the pro@imate result of the defendant‟s wrongful act oromission. !ince moral damages are incapable of pecuniaryestimation, atty should Ele the action before the 1egional%rial Court of )ari<ina City where she resides or )a<ati City,where the defendant corporation is holding oice, at heroption (!ection 4+(42, B.. 40+2.
c2 atty can also Ele a civil action for damages against theCity of )ari<ina formaintaining an open manhole where she unfortunately fell.nder article 04+ ofthe Civil Code, provinces, cities, and municipalities shall beliable for damagesfor the death of, or injuries suered by, any person by reasonof the defectivecondition of roads, streets, bridges, public buildings, andother public wor<sunder their control or supervision. %he proper court having jurisdiction over thecase is at least hp 4, for as long as the aggregate ofthe claims for damages does not e@ceed hp ,.
Actions- S+ecic Perormance !01"0%
A bought a 9olvo !edan from ABC Cars for .). ABC Cars,before delivering to A, had the car rust proofed and tintedby KQO Detailing. =hen delivered to A, the carRs upholstery
was found to be damaged. ABC Cars and KQO Detailing bothdeny any liability. =ho can A sue and on what cause(s2 of action> "@plain. (72
S&GGES'E( ANS)ER*
A can Ele an action for speciEc performance and damagesagainst ABC Cars since the damage to the 9olvo !edan‟supholstery was caused before the delivery of the same to A,and therefore prior to the transfer of ownership to the latter.(Article 4**, 'ew Civil Code2. nder Article 44* of the
'ew Civil Code, those who
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contravene the tenor of the obligation are liable for damages.ence, an action for speciEc performance against ABCCorporation to deliver the agreed 9olvo !edan in the contract,free from any damage or defects, with corresponding damageswill lie against ABC Cars.
A can sue ABC Cars for speciEc performance or rescissionbecause the former has contractual relations with the latter.
Actions- Cause o Action- Joinder 5 S+litting !"##,%
;ive the eects of the followingN
4 !plitting a single cause of actionN and (67T
0 'on-joinder of a necessary party. 5078
S&GGES'E( ANS)ER*
4. %he eect of splitting a single cause of action is found in the rule
as followsN &f two or more suits are instituted on the basis of the
same cause of action, the Eling of one or a judgment on the merits
in any one is available as a ground for the dismissal of the others.
(!ec. of 1ule 02
0. %he eect of the non-joinder of a necessary party may be stated
as followsN %he court may order the inclusion of an omitted
necessary party if jurisdiction over his person may be obtained. %he
failure to comply with the order for his inclusion without justiEable
cause to a waiver of the claim against such party. %he court may
proceed with the action but the judgment rendered shall be without
prejudice to the rights of each necessary party. (!ec. + of 1ule 62
Actions/ Cause of Action/ 3oinder of Action (4+++2
a2 =hat is the rule on joinder of causes of action> (072
b2 A secured two loans from B> one for ,. and the
other for 4,,., payable on dierent dates. Both have
fallen due. &s B obliged to Ele only one complaint against A for the
recovery of both loans> "@plain. (072
S&GGES'E( ANS)ER*
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a. %he rule on 3#&'D"1 #$ CA!"! #$ AC%&#' is that a party
may in one pleading assert, in the alternative or otherwise join as
many causes of action as he may have against an opposing party,provided that the rule on joinder of parties is complied with/
4.8 the joinder shall not include special civil actions or actions
governed by special rules, but may include causes of action
pertaining to dierent venues or jurisdictions provided one cause of
action falls within the jurisdiction of a 1%C and venue lies therein/
and
0.8 the aggregate amount claimed shall be the test of jurisdiction
where the claims in all the causes of action are principally for therecovery of money. (!ec. , 1ule 0 of the 4++* 1ules2
b. 'o. 3oinder is only permissive since the loans are separate
loans which may be governed by the dierent terms and conditions.
%he two loans give rise to two separate causes of action and may be
the basis of two separate complaints.
Actions- Cause o Action- Joinder o Action !011<%
erry is a resident of )anila, while 1ic<y and )arvin are residents
of Batangas City. %hey are the coSowners of a parcel of residential
land located in asay City with an assessed value of 4,..
erry borrowed 4,. from 1ic<y which he promised to pay
on or before December 4, 0. owever, erry failed to pay his
loan. erry also rejected 1ic<y and )arvinRs proposal to partition
the property. 1ic<y Eled a complaint against erry and )arvin in
the 1%C of asay City for the partition of the property. e also
incorporated in his complaint his action against erry for thecollection of the latterRs 4,. loan, plus interests and
attorneyRs fees.
!tate with reasons whether it was proper for 1ic<y to join his
causes of action in his complaint for partition against erry and
)arvin in the 1%C of asay City. (72
S&GGES'E( ANS)ER*
&t was not proper for 1ic<y to join his causes of action against erry
in his complaint for partition against erry and )arvin. %he causes
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of action may be between the same parties, 1ic<y and erry, with
respect to the loan but not with respect to the partition which
includes )arvin. %he joinder is between a partition and a sum of money, but A1%&%&#' is a special civil action under 1ule +,
which cannot be joined with other causes of action. (!ee. 5b8, 1ule
0,2 Also, the causes of action pertain to dierent venues and
jurisdictions. %he case for a sum of money pertains to the municipal
court and cannot be Eled in asay City because the plainti is from
)anila while 1ic<y and )arvin are from Batangas City. (!ec. ,
1ule 0,2
Actions- Cause o Action- S+litting !"###%
a2 =hat is the rule against splitting a cause of action and its
eect on the respective rights of the parties for failure to comply
with the same> (072
b2 A purchased a lot from B for l,,.. e gave a down
payment of ,, signed a promissory note payable thirty days
after date, and as a security for the settlement of the obligation,
mortgaged the same lot to B. =hen the note fell due and A failed to
pay, B commenced suit to recover from A the balance of
4,,.. After securing a favorable judgment on his claim, Bbrought another action against A before the same court to
foreclose the mortgage. A now Eles a motion to dismiss the second
action on the ground of bar by prior judgment. 1ule on the motion.
(072
S&GGES'E( ANS)ER*
a. %he rule against splitting a cause of action and its eect are that
if two or more suits are instituted on the basis of the same cause of
action, the Eling of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. (!ec. , 1ule
02
b. %he motion to dismiss should be granted. =hen B commenced
suit to collect on the promissory note, he waived his right to
foreclose the mortgage. B split his cause of action.
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Actions- Cause o Action- S+litting !011<%
1aphael, a warehouseman, Eled a complaint against 9 Corporation,
K Corporation and Q Corporation to compel them to interplead. e
alleged therein that the three corporations claimed title and right
of possession over the goods deposited in his warehouse and that
he was uncertain which of them was entitled to the goods. After
due proceedings, judgment was rendered by the court declaring
that K Corporation was entitled to the goods. %he decision became
Enal and e@ecutory.
byN sirdondeeUgmail.com age 4 of 1aphael Eled a complaint
against K Corporation for the payment of 4,. for storagecharges and other advances for the goods. K Corporation Eled a
motion to dismiss the complaint on the ground of res judicata. K
Corporation alleged that 1aphael should have incorporated in his
complaint for interpleader his claim for storage fees and advances
and that for his failure he was barred from interposing his claim.
1aphael replied that he could not have claimed storage fees and
other advances in his complaint for interpleader because he was
not yet certain as to who was liable therefor. 1esolve the motion
with reasons. (72S&GGES'E( ANS)ER*
%he motion to dismiss should be granted. 1aphael should have
incorporated in his complaint for interpleader his claim for storage
fees and advances, the amounts of which were obviously
determinable at the time of the Eling of the complaint. %hey are
part of 1aphaelRs cause of action which he may not be split. ence,
when the warehouseman as<s the court to ascertain who among
the defendants are entitled to the goods, he also has the right toas< who should pay for the storage fees and other related
e@penses. %he Eling of the interpleader is available as a ground for
dismissal of the second case. (!ec. , 1ule 0,2 &t is a<in to a
compulsory counterclaim which, if not set up, shall be barred. (!ec.
0, 1ule +,/ ArreJa v. DiaJ, ;.1. 'o. 466446, August 6, 042
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Actions- Cause o Actions- =otion to (ismiss- bar by +rior
7udgment !0110%
1olando Eled a petition for declaration of the nullity of his marriage
to Carmela because of the alleged psychological incapacity of the
latter.
After trial, the court rendered judgment dismissing the petition on
the ground that 1olando failed to prove the psychological
incapacity of his wife. %he judgment having become Enal, 1olando
Eled another petition, this time on the ground that his marriage to
Carmela had been celebrated without a license. &s the second
action barred by the judgment in the Erst> =hy> (072
S&GGES'E( ANS)ER*
'o, the second action is not barred by the judgment in the Erst
because they are dierent causes of action. %he Erst is for
annulment of marriage on the ground of psychological incapacity
under Article 6 of the $amily Code, while the second is for
declaration of nullity of the marriage in view of the absence of a
basic reHuirement, which is a marriage license. 5Arts, + V 6(62,
$amily Code8. %hey are dierent causes of action because theevidence reHuired to prove them are not the same. 5agsisihan v.
Court of Appeals, + !C1A (4+2 and other cases8.
Actions- Counterclaim !0110%
%he plainti sued the defendant in the 1%C for damages allegedly
caused by the latterMs encroachment on the plaintiMs lot. &n his
answer, the defendant denied the plaintiMs claim and alleged that
it was the plainti who in fact had encroached on his (defendantMs2
land. Accordingly, the defendant counterclaimed against theplainti for damages resulting from the alleged encroachment on
his lot. %he plainti Eled an e@ parte motion for e@tension of time to
answer the defendantMs counterclaim, but the court denied the
motion on the ground that it should have been set for hearing. #n
the defendantMs motion, therefore, the court declared the plainti
in default on the counterclaim. =as the plainti validly declared in
default> =hy> (72
S&GGES'E( ANS)ER*
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'o, the plainti was not validly declared in default. A motion for
e@tension of time to Ele an answer may be Eled e@ parte and need
not be set for hearing. 5Amante vs. !unga, !C1A 4+0 (4+*28.
AL'ERNA'I:E ANS)ER*
%he general rule is that a counterclaim must be answered within
ten (42 days from service. (1ule 44, sec. 2. owever, a
counterclaim that raises issues which are deemed automatically
joined by the allegations of the Complaint need not be answered.5;ojo v. ;oyala, 6 !C1A * (4+*28.
&n this case, the defendantMs counterclaim is a compulsory
counterclaim which arises out or is connected with the transaction
and occurrence constituting the subject matter of the plaintiMs
claim. &t raises the same issue of who encroached on whose land.
ence, there was no need to answer the counterclaim.
Actions- Counterclaim vs. Crossclaim !"###%
a2 =hat is a counterclaim> (072 b2 Distinguish a counterclaim from
a crossclaim. (072
c2 A, who is engaged in tile installation business, was sued by
"" &ndustries for breach of contract for installing dierent marble
tiles in its oices as provided in their contract. =ithout Eling any
motion to dismiss, A Eled its Answer with Counterclaim theoriJing
that "" &ndustries has no legal capacity to sue because it is not a
duly registered corporation. By way of counterclaim, A as<ed for
moral and actual damages as her business depleted as a result of the withdrawal and cancellation by her clients of their contracts
due to the Eling of the case. %he case was dismissed after the trial
court found that "" &ndustries is not a registered corporation and
therefore has no legal capacity to sue. owever, it set a date for the
reception of evidence on ARs counterclaim. "" &ndustries opposed
on the ground that the counterclaim could no longer be prosecuted
in view of the dismissal of the main
byN sirdondeeUgmail.com age 4 of case. &s the stand of ""
&ndustries sustainable> "@plain. 5078
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S&GGES'E( ANS)ER*
a2 A C#'%"1C:A&) is any claim which a defending party may
have against an opposing party. (!ec. , 1ule 2
b2 A counterclaim is distinguished from a C1#!!SC:A&) in
that a cross-claim is any claim by one party against a co-party
arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein. A
counterclaim is against an opposing party while a cross-claim is
against a co-party. (!ec. , 1ule 2
c2 'o, because if no motion to dismiss has been Eled, any of the
grounds for dismissal provided in the 1ules may be pleaded as an
airmative defense in the answer which may include a
counterclaim. %his is what A did by Eling an Answer alleging the
lac< of legal capacity of "" &ndustries to sue because it is not a
duly registered corporation with a counterclaim for damages. %he
dismissal of the complaint on this ground is without prejudice to
the prosecution of the counterclaim in the same action because it is
a compulsory counterclaim. (!ec. of 1ule 4.2
Actions- CrossClaims- '4ird Party Claims !"##$%
B and C borrowed ,. from A. %he promissory note was
e@ecuted by B and C in a 3oint and several capacity. B, who
received the money from A, gave C 0,.. C, in turn, loaned
4,. out of the 0,. he received to D. a2 &n an
action Eled by A against B and C with the
1%C of PueJon City, can B Ele a cross-claim against C for the
amount of 0,.> b2 Can C Ele a third party complaint
against D for the amount of 4,.>
S&GGES'E( ANS)ER*
(a2 Qes. B can Ele a cross-claim against C for the amount of
0,. given to C. A cross-claim is a claim Eled by one party
against a co-party arising out of the transaction or occurrence that
is the subject matter of the original action or a counterclaim
therein and may include a claim that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a
claim asserted against the cross-claimant. (!ec. 1ule 2
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(b2 'o, C cannot Ele a third-party complaint against D because the
loan of 4, has no connection with the opponentRs claim. C
could have loaned the money out of other funds in his possession.
AL'ERNA'I:E ANS)ER*
Qes, C can Ele a third-party complaint against D because the loan of
4,. was ta<en out of the 0, received from B and
hence the loan see<s contribution in respect to his opponentRs
claim. (!ec. 44 of 1ule 2
Actions- (erivative Suit vs. Class Suit !011<%
Distinguish a derivative suit from a class suit.
!;;"!%"D A'!="1N
A D"1&9A%&9" !&% is a suit in eHuity that is Eled by a minority
shareholder in behalf of a corporation to redress wrongs committed
against it, for which the directors refuse to sue, the real party in
interest being the corporation itself (:int v. :im-Qu, ;.&: 'o.
4666, $ebruary 4+, 042, while a C:A!! !&% is Eled regarding
a controversy of common or general interest in behalf of many
persons so numerous that it is impracticable to join all as parties, anumber which the court Ends suiciently representative who may
sue or defend for the beneEt of all. (!ec. 40, 1ule 62 &t is worth
noting that a derivative suit is a represenStative suit, just li<e a
class suit.
Actions- /iling- Civil Actions 5 Criminal Action !011<%
=hile cruising on a highway, a ta@icab driven by )ans hit an
electric post. As a result thereof, its passenger, 3ovy, suered
serious injuries. )ans was subseHuently charged before the)unicipal %rial Court with rec<less imprudence resulting in serious
physical injuries.
%hereafter, 3ovy Eled a civil action against :ourdes, the owner of
the ta@icab, for breach of contract, and )ans for Huasi-delict.
:ourdes and )ans Eled a motion to dismiss the civil action on the
ground of litis pendentia, that is, the pendency of the civil action
impliedly instituted in the criminal action for rec<less imprudence
resulting in serious physical injuries. 1esolve the motion with
reasons. (72
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S&GGES'E( ANS)ER*
%he motion to dismiss should be denied. %he action for breach of
contract against the ta@icab owner cannot be barred by the
criminal action against the ta@icab driver, although the ta@icab
owner can be held subsidiarily liable in the criminal case, if the
driver is insolvent. #n the other hand, the civil action for Huasi-
delict against the driver is an independent civil action under Article
66 of the Civil Code and !ec. 6, 1ule 444 of the 1ules of Court,
which can be Eled separately and can proceed independently of the
criminal action and regardless of the result of the latter. (!amson v.
Daway, ;.1. 'os. 4-, 3uly 04, 02
Actions- Intervention- ReDuisites !0111%
=hat are the reHuisites for an intervention by a nonSparty in an
action pending in court> (72
S&GGES'E( ANS)ER*
%he reHuisites for intervention areN
4 :egal interest in the matter in a controversy/ or
0 :egal interest in the success of either of the parties/ or
4 :egal interest against both/ or
0 !o situated as to be adversely aected by a distribution or
other disposition or property in the custody of the court or of an
oicer thereof.
6 &ntervention will not unduly delay or prejudice the
adjudication of the rights or original parties/
&ntervenorMs rights may not be fully protected in a separate
proceedings.
(Acenas && v. Court of Appeals, 0* !C1A **6 54++8/ !ec. 4, 1ule
4+, 4++* 1ules of Civil rocedure.2
Actions- Real Actions 5 Personal Actions !0113%
=hat do you mean by a2 real actions/ and b2 personal action> (072
S&GGES'E( ANS)ER*
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a. 1"A: AC%&#'! are actions aecting title to or possession of real
property or an interest therein ($ortune )otors, &nc. v. CA, ;. 1.
'o. *64, #ctober 4, 4++/ 1ule , !ec. 42.
b. All other actions are "1!#'A: AC%&#'! (1ule , !ection &2
which include those arising from privity of contract.
Actions- Survives (eat4 o t4e (eendant !0111%
3 engaged the services of Atty. !% to represent him in a civil case
Eled by # against him which was doc<eted as Civil Case 'o. 406.
A retainership agreement was e@ecuted between 3 and Atty. !%
whereby 3 promised to pay Atty. !% a retainer sum of 0,. a
year and to transfer the ownership of a parcel of land to Atty. !%
after presentation of 3Ms evidence. 3 did not comply with his
underta<ing. Atty. !% Eled a case against 3 which was doc<eted as
Civil Case 'o. . During the trial of Civil Case 'o. , 3 died.
4 &s the death of 3 a valid ground to dismiss the money claim
of Atty. !% in Civil Case 'o. > "@plain. (072
0 =ill your answer be the same with respect to the real
property being claimed by Atty. !% in Civil Case 'o. > "@plain
(072
S&GGES'E( ANS)ER*
4 'o. nder !ec. 0, 1ule 6, 4++* 1ules of Civil rocedure,
when the action is for recovery of money arising from contract,
e@press or implied, and the defendant dies before entry of Enal
judgment in the court in which the action is pending at the time of
such death, it shall not be dismissed but shall instead be allowed to
continue until entry of Enal judgment. A favorable judgment
obtained by the plainti shall be enforced in the manner especially
provided in the 1ules for prosecuting claims against the estate of a
deceased person.
0 Qes, my answer is the same. An action to recover real
property in any event survives the death of the defendant. (!ec. 4,
1ule *, 1ules of Court2. owever, a favorable judgment may be
enforced in accordance with !ec. *(b2 1ule 6+ (4++* 1ules of Civil
rocedure2 against the e@ecutor or administrator or successor in
interest of the deceased.
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A++eal- Remedy !01">%
)r. BoaJ Eled an action for ejectment against )r. 3achin before the)etropolitan %rial Court ()e%C2. )r. 3achin actively participated inevery stage of the proceedings <nowing fully well that the )e%Chad no jurisdiction over the action. &n his mind, )r. 3achin wasthin<ing that if the )e%C rendered judgment against him, he couldalways raise the issue on the jurisdiction of the )e%C. After trial,the )e%C rendered judgment against )r. 3achin. =hat is theremedy of)r. 3achin> !"?%
!A% $ile an appeal!B% $ile an action for nulliEcation of judgment
!C% $ile a motion for reconsideration!(% $ile a petition for certiorari under 1ule
!;;"!%"D A'!="1N
(A2 !ee ! 1. 1* is not available since appeal is still available.'ot C since a prohibited pleading.
A++eals !01">%
=hich of the following decisions may be appealed directly to the!upreme Court (SC2> (Assume that the issues to be raised on
appeal involve purely Huestions of law2 !"?%!A% Decision of the 1egional %rial Court ( R0C2 rendered in thee@ercise of its appellate jurisdiction.!B% Decision of the 1%C rendered in the e@ercise of its original jurisdiction.!C% Decision of the Civil !ervice Commission.!(% Decision of the #ice of the resident.
!;;"!%"D A'!="1N
(B2 'oteN &n an appeal from 1%C judgment in the e@ercise of itsappellate jurisdiction, the appeal should be to the CA even if theHuestions are only legal. ence A should be e@cluded. (!05c8 102.
A++eals* uestions o /acts- uestion o La8 !01">%
oo!fea#er Cor2ora#ion, through its resident, &l a8ino, Eledwith the 1egional %rial Court ( R0C2 a complaint for speciEcperformance against Rober# *i#e. &nstead of Eling an answer tothe complaint, Rober# *i#e Eled a motion to dismiss the complaint
on the ground of lac< of the appropriate board resolution from the
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Board of Directors of oo!fea#er Cor2ora#ion to show theauthority of &l a8ino to represent the corporation and Ele thecomplaint in its behalf. %he 1%C granted the motion to dismiss and,accordingly, it ordered the dismissal of the complaint. &l a8ino Eled a motion for reconsideration which the 1%C denied. Asnothing more could be done by &l a8ino before the 1%C, he Eledan appeal before the Court of Appeals (C&2. Rober# *i#e moved fordismissal of the appeal on the ground that the same involved purelya Huestion of law and should have been Eled with the !upremeCourt (SC2. owever, &l a8ino claimed that the appeal involvedmi@ed Huestions of fact and law because there must be a factualdetermination if, indeed, &l a8ino was duly authoriJedby oo!fea#er Cor2ora#ion to Ele the complaint. =hose position is
correct> "@plain. !>?%
S&GGES'E( ANS)ER*
1obert =hiteMs position is correct. &n a case involvingsimilar facts, the !upreme Court held that the issue of whether ornot the trial court erred in dismissing the complaint on the groundthat the person who Eled the complaint in behalf of the plainticorporation was not authoriJed to do so is a legal issue, reviewableonly by the !upreme Court in a petition for review on certiorariunder 1ule . (%amondong v. Court of Appeals, 0 'ovember02.
('oteN An alternative answer would be that the appealraises a factual Huestion of whether or not Al a<ino was indeedauthoriJed to Ele the complaint in behalf of ;oodfeatherCorporation. A reading of 0amon!on$ would show that theappellant only raised a legal Huestion of whether it was proper todismiss the complaint for failure to state a cause of action but didnot raise a factual issue as to whether the Eler was in factauthoriJed by the corporation.2.
A++eals- Period o A++eal- /res4 Period Rule !0116%
Defendant K received an adverse Decision of the 1%C in an
ordinary civil case on 0 3anuary 06. e Eled a 'otice of Appeal
on 4 3anuary 06. #n the other hand, plainti A received the
same Decision on 3anuary 06 and, on 4+ 3anuary 06, Eled a
)otion for 1econsideration of the Decision. #n 46 3anuary 06,
defendant K Eled a )otion withdrawing his notice of appeal in
order to Ele a )otion for 'ew %rial which he attached. #n 0 3anuary 06, the court denied AMs )otion for 1econsideration and
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KMs )otion to =ithdraw 'otice of Appeal. lainti A received the
#rder denying his )otion for 1econsideration on 6 $ebruary 06
and Eled his 'otice of Appeal on $ebruary 06. %he courtdenied due course to AMs 'otice of Appeal on the ground that he
period to appeal had already lapsed. 7
(a2 &s the courtMs denial of KMs )otion to =ithdraw 'otice of Appeal
proper>
(b2 &s the courtMs denial of due course to AMs appeal correct>
S&GGES'E( ANS)ER*
(a2 'o, the courtMs denial of KMs )otion to =ithdraw 'otice of Appeal is not proper, because the period of appeal of K has not yet
e@pired. $rom 3anuary 0, 06 when K received a copy of the
adverse decision up to 3anuary 46, 06 when he Eled his
withdrawal of appeal and )otion for 'ew %rial, only ten (42 days
had elapsed and he had Efteen (42 days to do so.
(b2 'o, the courtMs denial of due course to AMs appeal is not correct
because the appeal was ta<en on time. $rom 3anuary , 06 when
A received a copy of the decision up to 3anuary 4+, 06 when he
Eled a )otion for 1econsideration, only twelve (402 days had
elapsed. ConseHuently, he had three (62 days from receipt on
$ebruary 6, 06 of the #rder denying his )otion for
1econsideration within which to appeal. e Eled is notice of appeal
on $ebruary , 06, or only two (02 days later.
AL'ERNA'I:E ANS)ER*
!ince AMs )otion for 1econsideration was Eled on 3anuary 4+, 06
and it was denied on 3anuary 0, 06, it was clearly not set for
hearing with at least three daysM notice. %herefore, the motion was
pro forma and did not interrupt the period of appeal which e@pired
on 3anuary 04, 06 or Efteen (42 days after notice of the decision
on 3anuary , 06.
'#%"N %o standardiJe the appeal periods provided in the 1ules and
to aord litigants fair opportunity to appeal their cases, the Court
deems it practical to
byN sirdondeeUgmail.com age 4* of allow a $1"! "1&#D of
4 days within which to Ele the notice of appeal in the 1%C,
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counted from receipt of the order dismissing a motion for a new
trial or motion for reconsideration. 5'eypes et. al. vs. CA, ;.1. 'o.
440, !eptember 4, 08
A++eals- Abandonment o a Perected A++eal !011#% %he Eling of a motion for the reconsideration of the trialcourtMs decisionresults in the abandonment of a perfected appeal.
S&GGES'E( ANS)ER*
$A:!". %he trial court has lost jurisdiction after perfection of the appeal and so it can no longer entertain a motion forreconsideration.
AL'ERNA'I:E ANS)ER*
$A:!", because the appeal may be perfected as to one partybut not yet perfected as to the other party who may still Ele amotion for reconsideration without abandonment of his rightof appeal even though the appeal of the case is perfectedalready as to the other party.
A++eals- =odes o A++eal !01"0%
. =here and how will you appeal the followingN(42 An order of e@ecution issued by the 1%C. (472
S&GGES'E( ANS)ER N
A petition for certiorari under 1ule before the Court of Appeals.
AL'ERNA'I:E ANS)ER* %he mode of elevation may be either by appeal (writ of error orcertiorari2, or by aspecial civil action of certiorari, prohibition, or mandamus.(Banaga vs. )ajaducon cited in ;eneral )illing Corporation-&ndependent :abor nion vs. ;eneral )illing Corporation, ;.1.'o. 46400, 3une 4, 044, ereJ, 3.2.
(02 3udgment of 1%C denying a petition for =rit of Amparo.
(472
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S&GGES'E( ANS)ER*
Any party may appeal from the Enal judgment or order to the!upreme Court by way of a petition for review on certiorariunder 1ule of the 1ules of Court. the period of appealshall be Eve (2 wor<ing days from the date of notice of theadverse judgment, and the appeal may raise Huestions of factor law or both. (sec. 4+, 1ule on =rit of Amparo, A.). 'o.*-+-40-!C, 0 !eptember 0*2.
(62 3udgment of )%C on a land registration case based on itsdelegated jurisdiction. (472
S&GGES'E( ANS)ER*
%he appeal should be Eled with the Court of Appeals byEling a 'otice of Appeal within 4 days from notice of judgment or Enal order appealed from. (!ec. 6, Batasambansa Blg. 40+, or the 3udiciary 1eorganiJation Act of 4+, as amended by 1epublic Act 'o. *+4, )arch 0, 4++2.
(2 A decision of the Court of %a@ AppealRs $irst Division. (472
S&GGES'E( ANS)ER*
%he decision of the Court of %a@ Appeals Division may beappealed to the C%A enbanc. %he decisions of the Court of %a@ Appeals are nolonger appealable to theCourt of Appeals. nder the modiEed appeal procedure, thedecision of a division of the C%A may be appealed to theC%A en banc. %he decision of the C%A en banc may in turnbe directly appealed to the !upreme Court by way of a petitionfor review on certiorari under 1ule on Huestions of law.
(!ection 44, 1.A. +00, )arch 6, 02.
A++eals- =odes o A++eal !011#%
#n 3uly 4, 0+, Atty. )anananggol was served copies of numerous unfavorable judgments and orders. #n 3uly 0+,0+, he Eled motions for reconsideration which were denied.e received the notices of denial of the motions forreconsideration on #ctober 0, 0+, a $riday. e immediatelyinformed his clients who, in turn, uniformly instructed him to
appeal. ow, when and where should he pursue theappropriate remedy for each of the followingN
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(a2 3udgment of a )unicipal %rial Court ()%C2 pursuant to itsdelegated jurisdictiondismissing his clientMs application for land registration>
S&GGES'E( ANS)ER*
By notice of appeal, within 4 days from notice of judgment orEnal order appealed from, to the Court of Appeals/
(b2 3udgment of the 1egional %rial Court (1%C2 denying hisclientMs petition for a writof habeas data>
S&GGES'E( ANS)ER*
By veriEed petition for review on certiorari under 1ule ,with the modiEcation that appellant may raise Huestions of factor law or both, within wor< days from date of notice of the judgment or Enal order to the !upreme Court (!ec. 4+, A.).'o. -4-4-!C2.
(c2 #rder of a family court denying his clientMs petition forhabeas corpus in relation to custody of a minor child>
S&GGES'E( ANS)ER* By notice of appeal, within hours from notice of judgment orEnal order to the Court of appeals (!ec. 4, 1.A. 'o. 6+ inrelation to !ec. 6, 1ule 4, 1ules of Court2.
(d2 #rder of the 1%C denying his clientMs petition forcertiorari Huestioning the)etropolitan %rial CourtMs denial of a motion to suspend
criminal proceedings>S&GGES'E( ANS)ER*
By notice of appeal, within 4 days from notice of the Enal order,to the Court of appeals ()ajestrado vs. eople, 0* !C1A 4050*82.
(e2 3udgment of the $irst Division of the Court of %a@ Appeals airming the 1%Cdecision convicting his client for violation of the 'ational &nternal
1evenue Code>
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S&GGES'E( ANS)ER*
By petition for review Eled with the court of %a@ Appeals(C%A2 en banc, within 6 days from receipt of the decision orruling in Huestion (!ec. + 5b8, 1ule +, 1ev. 1ules of C%A2.
A++eals- =odes o A++eal- R'C CA !011#%
Distinguish the two modes of appeal from the judgment ofthe 1egional %rial Court to the Court of Appeals.
S&GGES'E( ANS)ER*
&n cases decided by the 1egional %rial Courts in the e@erciseof their original jurisdiction, appeals to the Court of Appealsshall be ordinary appeal by Eling written notice of appealindicating the parties to the appeal/ specifying the judgmentFEnal order or part thereof appealed from/ specifyingthe court to which the appeal is being ta<en/ and stating thematerial dates showing the timeliness of the appeal. %henotice of appeal shall be Eled with the 1%C which rendered the judgment appealed from and copy thereof shall be servedupon the adverse party within 4 days fromnotice of judgment or Enal order appealed from. But if the
case admits of multiple appeals or is a special proceeding, arecord on appeal is reHuired aside from the written notice of appeal to perfect the appeal, in which case the period forappeal and notice upon the adverse party is not only 4 daysbut 6 days from notice of judgment or Enal order appealed from. %he full amount of the appellate court doc<et fee and other lawful fees reHuiredmust also be paid within the period forta<ing an appeal, to the cler< of the court which renderedthe judgment or
Enal order appealed from (!ecs. and , 1ule 4, 1ules of Court2. %he periods of4 or 6 days above-stated are non- e@tendible. &n casesdecided by the 1egional %rial Court in the e@ercise of itsappellate jurisdiction, appeal to the Court of Appeals shall be by Eling a veriEed petition for review withthe Court of Appeals and furnishing the 1%C and the adverse party withcopy thereof, within4 days from notice of judgment or Enal order appealed from.=ithin the same
period for appeal, the doc<et fee and other lawful feesreHuired with the deposit for cost should be paid. %he 4- day
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period may be e@tended for 4 days and another 4 days forcompelling reasons.
A++eals- Second Notice o A++eal !011,%
After receiving the adverse decision rendered against hisclient, the defendant, Atty. !i<at duly Eled a notice of appeal. $orhis part, the plainti timely Eled a motion for partial newtrial to see< an increase in the monetary damages awarded.%he 1%C instead rendered an amended decision furtherreducing the monetary awards. &s it necessary for Atty. !i<at toEle a second notice of appeal after receiving the amended
decision>
S&GGES'E( ANS)ER*
Qes, it is necessary for Atty. !i<at to Ele a second notice of appealafter receiving the amended decision. &n )agdalena "state vs.Caluag (44 !C1A 666 54+82, the Court ruled that a party mustre-ta<e an appeal within Efteen 542 days from receipt of theamended ruling or decision, which stands in place of the olddecision. &t is in ect, a new decision.
Certiorari- Rule >< vs. Rule 3< !011,%
Compare the certiorari jurisdiction of the !upreme Court underthe Constitution with that under 1ule of the 1ules of Civilrocedure>
S&GGES'E( ANS)ER*
%he certiorari jurisdiction of the !upreme Court under theConstitution is the mode by which the Court e@ercises itse@panded jurisdiction, allowing it to ta<e corrective actionthrough the e@ercise of its judicial power. Constitutionalcertiorari jurisdictionapplies even if the decision was not rendered by a judicial orHuasi-judicial body, hence, it is broader than the writ of certiorari under 1ule , which is limited to cases involving agrave abuse of discretion amounting to lac< or e@cess of jurisdiction on the part of any branch or instrumentality of the government and there is no other claim speedy remedyavailable to a party in the ordinary course of law.
Certiorari- =ode o Certiorari !0113%
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"@plain each mode of certiorariN
4. As a mode of appeal from the 1egional %rial Court or the
Court of Appeals to the !upreme Court. (0.72
S&GGES'E( ANS)ER*
Certiorari as a mode of appeal is governed by 1ule of the 1ules
of Court which allows appeal from judg-ment, Enal order of
resolution of the Court of Appeals, !andiganbayan, the 1%C or
other courts whenever authoriJed by law to the !upreme Court by
veriEed petition for review raising only Huestions of law distinctly
set forth.
0. As a special civil action from the 1egional %rial Court or the
Court of Appeals to the !upreme Court. (0.72
S&GGES'E( ANS)ER*
Certiorari as a !pecial Civil Action is governed by 1ule of the
1ules of Court when an aggrieved party may Ele a veriEed petition
against a decision, Enal order or resolution of a tribunal, body or
board that has acted without or in e@cess of its jurisdiction or grave
abuse of discretion amounting to lac< or e@cess of jurisdiction,when there is no appeal or any other plain, speedy and adeHuate
remedy in the ordinary course of law.
6. As a mode of review of the decisions of the 'ational :abor
1elations Commission and the Constitutional Commissions. (0.72
S&GGES'E( ANS)ER*
Certiorari as a mode of review of the decision of the ':1C is
elevated to the Court of Appeals under 1ule , as held in the caseof !t. )artinRs $uneral ome v. ':1C, ;.1. 'o. 46, !eptember
4, 4++. Certiorari as a mode of review from the Commission on
Audit (C#A2 and C#)":"C is elevated to the !upreme Court
within 6 days from notice of the judgment, decision or Enal order
or resolution sought to be reviewed, as provided for under the 1ule
of the 4++* 1ules of Civil rocedure. &n the case of the Civil
!ervice Commission (C!C2, review of its judgments is through
petitions for review under !ec. of 1ule 6 of the 4++* 1ules of
Civil rocedure.
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Certiorari- Rule >< vs. Rule 3< !"##,%
Dierentiate certiorari as an original action from certiorari as a
mode of appeal. T678
S&GGES'E( ANS)ER*
Certiorari as an original action and certiorari as a mode of appeal
may be distinguished as followsN
4. %he Erst is a special civil action under 1ule of the 1ules of
Court, while the second is an appeal
1emedial :aw Bar "@amination P V A (4++*-02
to the !upreme Court from the Court of Appeals, !andiganbayan
and the 1%C under 1ule
.
4 %he Erst can be Eled only on the grounds of lac< or e@cess of
jurisdiction or grave abuse of discretion tantamount to lac< or
e@cess of jurisdiction, while the second is based on the errors of law of the lower court.
0 %he Erst should be Eled within si@ty (2 days from notice of
the judgment, order or resolution sought to be assailed (!ec. .
1ule 2, while the second should be Eled within Efteen (42 days
from notice of the judgment or Enal order or resolution appealed
from, or of the denial of the petitionerRs motion for new trial or
reconsideration Eled in due time after notice of the judgment. (!ec.
0, 1ule 2
6 %he Erst cannot generally be availed of as a substitute for a
lost appeal under 1ules , 4, 0, 6 and .
nder the Erst, the lower court is impleaded as a party
respondent (!ec. of 1ule 2, while under the second, the lower
court is not imp leaded. (!ec. of 1ule of 2
Certiorari- Rule >< vs. Rule 3< !011<%
)ay the aggrieved party Ele a petition for certiorari in the!upreme Court under 1ule of the 4++* 1ules of Civil rocedure,
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instead of Eling a petition for review on certiorari under 1ule
thereof for the nulliEcation of a decision of the Court of Appeals in
the e@ercise either of its original or appellate jurisdiction> "@plain.
S&GGES'E( ANS)ER*
%o '::&$Q A D"C&!&#' of the Court of Appeals the aggrieved
party should Ele a "%&%&#' $#1 1"9&"= #' C"1%A1& in the
!upreme Court under 1ule of the 1ules of Court instead of Eling
a petition for certiorari under 1ule e@cept under very
e@ceptional circumstances. A long line of decisions of the !upreme
Court, too numerous to mention, holds that certiorari is not a
substitute for a lost appeal. &t should be noted, however, when theCourt of Appeals imposes the death penalty, or a lesser penalty for
oenses committed on such occasion, appeal by petition for review
or ordinary appeal. &n cases when the Court of Appeals imposes
reclusion perpetua, life imprisonment or a lesser penalty, appeal is
by notice of appeal Eled with the Court of Appeals.
Contem+t- (eat4 o a Party- E@ect !"##,%
A Eled a complaint for the recovery of ownership of land against B
who was represented by her counsel K. &n the course of the trial, Bdied. owever, K failed to notify the court of BRs death. %he court
proceeded to hear the case and rendered judgment against B. After
the 3udgment became Enal, a writ of e@ecution
byN sirdondeeUgmail.com age 4 of was issued against C, who
being BRs sole heir, acHuired the property. Did the failure of counsel
K to inform the court of BRs death constitute direct contempt> (072
S&GGES'E( ANS)ER*
'o. &t is not direct contempt under !ec. 4 of 1ule *4, but it is
indirect contempt within the purview of !ec 6 of 1ule *4. %he
lawyer can also be the subject of disciplinary action. (!ec. 4, 1ule
62
(eault !0111%
Defendant was declared in default by the 1%C (1%C2. lainti was
allowed to present evidence in support of his complaint.
hotocopies of oicial receipts and original copies of aidavits
were presented in court, identiEed by plainti on the witness stand
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and mar<ed as e@hibits. !aid documents were oered by plainti
and admitted in evidence by the court on the basis of which the
1%C rendered judgment in favor of the plainti, pursuant to therelief prayed for. pon receipt of the judgment, defendant appeals
to the Court of Appeals claiming that the judgment is not valid
because the 1%C based its judgment on mere photocopies and
aidavits of persons not presented in court. &s the claim of
defendant valid> "@plain. (672
S&GGES'E( ANS)ER*
%he claim of defendant is not valid because under the 4++* 1ules,
reception of evidence is not reHuired. After a defendant is declaredin default, the court shall proceed to render judgment granting the
claimant such relief as his pleading may warrant, unless the court
in its discretion reHuires the claimant to submit evidence, which
may be delegated to the cler< of court. (!ec. 6, 1ule +2
AL'ERNA'I:E ANS)ER*
%he claim of defendant is valid, because the court received
evidence which it can order in its own discretion, in which case the
evidence of the plainti must pass the basic reHuirements of admissibility.
(eault !011"%
)ario was declared in default but before judgment was rendered,
he decided to Ele a motion to set aside the order of default. a2 =hat
should )ario state in his motion in order
to justify the setting aside of the order of default> (672 b2 &n what
form should such motion be> (072
S&GGES'E( ANS)ER*
a2 &n order to justify the setting aside of the order of default, )ario
should state in his motion that his failure to answer was due to
fraud, accident, mista<e or e@cusable negligence and that he has a
meritorious defense. 5!ec. 6(b2 of 1ule +,8.
b2 %he motion should be under oath. (&d.2
(eault- 2rder o (eault- E@ects !"###%
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4 =hen may a party be declared in default> (072
0 =hat is the eect of an #rder of Default> (072
6 $or failure to seasonably Ele his Answer despite due notice, A
was declared in default in a case instituted against him by B. %he
following day, ARs mistress who is wor<ing as a cler< in the sala of
the 3udge before whom his case is pending, informed him of the
declaration of default. #n the same day, A presented a motion
under oath to set aside the order of default on the ground that his
failure to answer was due to fraud and he has a meritorious
defense. %hereafter, he went abroad. After his return a wee< later,
with the case still undecided, he received the order declaring himin default. %he motion to set aside default was opposed by B on the
ground that it was Eled before A received notice of his having been
declared in default, citing the rule that the motion to set aside may
be made at anytime after notice but before judgment. 1esolve the
)otion. (072
S&GGES'E( ANS)ER*
4. A party may be declared in default when he fails to answer
within the time allowed therefor, and upon motion of the claimingparty with notice to the defending party, and proof of such failure.
(!ec. 6, 1ule +2
0. %he eect of an #rder of Default is that the court may
proceed to render judgment granting the claimant such relief as his
pleading may warrant unless the court in its discretion reHuires the
claimant to submit evidence (&d.2 %he party in default cannot ta<e
part in the trial but shall be entitled to notice of subseHuent
proceedings. (!ec. 65A82
6. Assuming that the motion to set aside complies with the other
reHuirements of the rule, it should be granted. Although such a
motion may be made after notice but before judgment (!ec. 65B8 of
1ule +2, with more reason may it be Eled after discovery even
before receipt of the order of default.
(eault- Remedies- Party (eclared in (eault !"##,%
=hat are the available remedies of a party declared &n defaultN
4 Before the rendition of judgment/ 5478
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0 After judgment but before its Enality/ and 5074
6 After Enality of judgment> 5078
S&GGES'E( ANS)ER*
%he available remedies of a party declared in default are as followsN
4. B"$#1" %" 1"'D&%&#' #$ 3D;)"'%
(a2 he may Ele a motion under oath to set aside the order of default
on the grounds of fraud, accident, mista<e or e@cusable negligence
and that he has a meritorious defense (!ec. 65b8, 1ule +2/ and if it is
denied, he may move to reconsider, and if reconsideration isdenied, he may Ele the special civil action of certiorari for grave
abuse of discretion tantamount to lac< or e@cess of the lower
courtRs jurisdiction. (!ec. 4, 1ule 2 or
(b2 he may Ele a petition for certiorari if he has been illegally
declared in default, e.g. during the pendency of his motion to
dismiss or before the e@piration of the time to answer. ()atute vs.
Court of Appeals, 0 !C1A */ Acosta-#falia vs. !undiam,
!C1A 40.2
0. A$%"1 3D;)"'% B% B"$#1" &%! $&'A:&%Q, he may Ele a
motion for new trial on the grounds of fraud, accident, mista<e,
e@cusable negligence, or a motion for reconsideration on the
ground of e@cessive damages, insuicient evidence or the decision
or Enal order being contrary to law (!ec. 0, 1ule 6*2N and
thereafter. &f the motion is denied, appeal to available under 1ules
or 4, whichever to applicable.
6. A$%"1 $&'A:&%Q #$ %" 3D;)"'%, there are three ways to
assail the judgment, which areN
a2 a petition for relief under 1ule 6 on the grounds of fraud,
accident, mista<e or e@cusable negligence/
b2 annulment of judgment under 1ule * for e@trinsic fraud or lac<
of jurisdiction/ or c2 certiorari if the judgment to void on its face or
by the judicial record. (Balangcad vs. 3ustices of the Court of
Appeals, ;.1. 'o. 6. $ebruary 40, 4++0, 0 C1A 4*42.
(eault- Remedies- Party (eclared in (eault !0113%
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3ojie Eled with the 1egional %rial Court of :aguna a complaint for
damages against 3oe. During the pre-trial, 3ojie (sic2 and her (sic2
counsel failed to appear despite notice to both of them. pon oralmotion of 3ojie, 3oe was declared as in default and 3ojie was allowed
to present her evidence e@ parte. %hereafter, the court rendered its
Decision in favor of 3ojie. 3oe hired 3ose as his counsel. =hat are
the remedies available to him> "@plain. (72
S&GGES'E( ANS)ER*
%he remedies available to a party against whom a default decision
is rendered are as followsN
4. B"$#1" the judgment in default becomes Enal and e@ecutoryN
)otion for 1econsideration under 1ule 6*/
)otion for 'ew %rial under 1ule 6*/ and
Appeal under 1ule 4.
0. A$%"1 the judgment in default becomes Enal and e@ecutoryN
etition for 1elief under 1ule 6/
Annulment of 3udgment under 1ule */ and
c. Certiorari under 1ule . (!ee %alsan "nterprises, &nc. v.
Baliwag %ransit, &nc., ;.1. 'o. 400, 3uly , 4+++2
(eault- Remedies- Substantial Com+liance !0111%
$or failure of ?.3. to Ele an answer within the reglementary period,
the Court, upon motion of :), declared ?3 in default. &n due time,
?3 Eled an unveriEed motion to lift the order of default without anaidavit of merit attached to it. ?3 however attached to the motion
his answer under oath, stating in said answer his reasons for his
failure to Ele an answer on time, as well as his defenses. =ill the
motion to lift the order of default prosper> "@plain. (672
S&GGES'E( ANS)ER*
Qes, there is substantial compliance with the rule. Although the
motion is unveriEed, the answer attached to the motion is veriEed.
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%he answer contains what the motion to lift the order of default and
the aidavit of merit should contain, which are the reasons of
movantMs failure to answer as well as his defenses. (!ec. 6 5b8 of 1ule +, 4++* 1ules of Civil rocedure/ Cf. Citiban<, '.A. v. Court of
Appeals, 6 !C1A *+, 54+++8/ Consul v. Consul, 4* !C1A *,
*4 54+8/ %olentino v. Carlos, hil, 4, 46-4 54+68,
'asser v. Court of Appeals, 4+4 !C1A *6 54++082.
(emurrer to Evidence !011"%
Carlos Eled a complaint against edro in the 1%C of #Jamis City for
the recovery of the ownership of a car. edro Eled his answer
within the reglementary period. After the pre-trial and actual trial,and after Carlos has completed the presentation of his evidence,
edro moved for the dismissal of the complaint on the ground that
under the facts proven and the law applicable to the case, Carlos is
not entitled to the ownership of the car. %he 1%C granted the
motion for dismissal. Carlos appealed the order of dismissal and
the appellate court reversed the order of the trial court. %hereafter,
edro Eled a motion with the 1%C as<ing the latter to allow him to
present his evidence. Carlos objected to the presentation of
evidence by edro. !hould the 1%C grant edroMs motion to presenthis evidence> =hy> (72
S&GGES'E( ANS)ER*
'o. edroMs motion should be denied. e can no longer present
evidence. %he 1ules provide that if the motion for dismissal is
granted by the trial court but on appeal the order of dismissal is
reversed, he shall be deemed to have waived the right to present
evidence. (!ec. 4 of 1ule 66, 1ules of Civil rocedure2
AL'ERNA'I:E ANS)ER*
'o, because when the appellate court reversed the order of the
trial court it should have rendered judgment in favor of Carlos.
(Puebral v. Court of Appeals, 00 !C1A 66, 4++2 Demurrer to
"vidence/ Civil Case vs. Criminal Case (062 Compare the eects
of a denial of demurrer to evidence in a civil case with those of a
denial of demurrer to evidence in a criminal case. 7
S&GGES'E( ANS)ER*
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&n a civil case, the defendant has the right to Ele a demurrer to
evidence without leave of court. &f his demurrer is denied, he has
the right to present evidence. &f his demurrer is granted and onappeal by the plainti, the appellate court reverses the order and
renders judgment for the plainti, the defendant loses his right to
present evidence. (1ule 662.
&n a criminal case, the accused has to obtain leave of court to Ele a
demurrer to evidence. &f he obtains leave of court and his demurrer
to evidence is denied, he has the right to present evidence in his
defense. &f his demurrer to evidence is granted, he is acHuitted and
the prosecution cannot appeal.
&f the accused does not obtain leave of court and his demurrer to
evidence is denied, he waives his right to present evidence and the
case is decided on the basis of the evidence for the prosecution.
%he court may also dismiss the action on the ground of
insuiciency of the evidence on its own initiative after giving the
prosecution the opportunity to be heard. (!ec. 06 of 1ule 44+2
(emurrer to Evidence !011#%
After the prosecution had rested and made its formal oer of evidence, with the court admitting all of the prosecutionevidence, the accused Eled a demurer toevidence with leave of court. the prosecution was allowed tocomment thereon. %hereafter, the court granted the demurer,Ending that the accused could not have committed the oensecharged. &f the prosecution Eles a motion for reconsiderationon the ground that the court order granting the demurer wasnot in accord with law and jurisprudence, will the motion
prosper>
S&GGES'E( ANS)ER*
'#, the motion will not prosper. =ith the granting of thedemurrer, the case shall be dismissed and the legal eect is theacHuittal of the accused. A judgment of acHuittal is immediatelye@ecutor and no appeal can be made therefrom. #therwise theConstitutional protection against double jeopardy would be violated.
(emurrer to Evidence- Civil Case vs. Criminal Case !011$%
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Distinguish the eects of the Eling of a demurrer to the evidencein a criminal case and its Eling in a civil case. (72
S&GGES'E( ANS)ER*
%he following are the distinctions in eects of demurrer tothe evidence in criminal cases from that in civil casesN
(42 &n criminal cases, demurrer to the evidence reHuires leaveof court, otherwise, the accused would lose his right topresent defense evidence if Eled and denied/ in civil cases, noleave of court is reHuired for Eling such demurrer.
(02 &n criminal cases, when such demurrer is granted, thedismissal of the case is not appealable inasmuch as thedismissal would amount to an acHuittal, unless made by a courtacting without or in e@cess of jurisdiction/ in civil cases, whensuch demurrer is granted, the dismissal of the case can beappealed by the plainti.
(62 &n criminal cases, the accused loses his right to present hisdefense-evidence in the trial court when he Eled the demurrerwithout prior leave of court/ while in civil cases, the
defendant loses his right to present his defense-evidence only ifthe plainti appealed such dismissal and the case is beforethe appellate court already since the case would be decideonly on the basis of plainti ‟s evidence on record.
(iscovery- =odes o (iscovery- Reusal to Com+ly !01"1%
#n August 46, 0, A, as shipper and consignee, loaded onthe )F9 Atlantis in :egaspi City 4, pieces of centuryeggs. %he shipment arrived in )anila totally damaged on August 4, 0. A Eled before the )etropolitan %rial Court
()e%C2 of )anila a complaint against B !uper :ines, &nc. (B:ines2, owner of the )F9 Atlantis, for recovery of damagesamounting to 4*,++. e attached to the complaint the Bill of :ading. (c2 #n 3uly 04, 0+, B :ines served on A a L'otice to%a<e Deposition,L setting the deposition on 3uly 0+, 0+ at N6a.m. at the oice of its counsel in )a<ati. A failed to appearat the deposition-ta<ing, despite notice. As counsel for B:ines, how would you proceed> (672
S&GGES'E( ANS)ER*
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As counsel for B lines (which gave notice to ta<e the deposition2,& shall proceed as followsN
(a2 $ind out why A failed to appear at the deposition ta<ing,despite notice/
(b2 &f failure was for valid reason, then set another date forta<ing the deposition.
(c2 &f failure to appear at deposition ta<ing was without validreason, then & would Ele a motionFapplication in the courtwhere the action is pending, for and order to show cause forhis refusal to submit to the discovery/ and (d2 $or the court to
issue appropriate
#rder provided under 1ule 0+ of the 1ules, for noncompliancewith the show-cause order, aside from contempt of court.
(iscovery- =odes o (iscovery !0111%
Describe brieGy at least Eve (2 modes of discovery under the 1ules
of Court. (72
S&GGES'E( ANS)ER*
$ive modes of discovery under the 1ules of Court areN
4 D"#!&%&#'. By leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject
of the action, or without such leave after an answer has been
served, the testimony of any person, whether a party or not, may be
ta<en, at the instance of any party, by deposition upon orale@amination or written interrogatories. (!ec. 4, 1ule 06, 4++* 1ules
of Civil rocedure.2
0 &'%"11#;A%#1&"! %# A1%&"!. nder the same conditions
speciEed in section 4 of 1ule 06, any party shall Ele and serve upon
any adverse party written interrogatories regarding material and
relevant facts to be answered by the party served. (!ec. 4, 1ule 0,
4++* 1ules of Civil rocedure.2
6 AD)&!!&#' BQ AD9"1!" A1%Q. At any time after issueshave been joined, a party may Ele and serve upon any other party a
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written reHuest for the admission by the latter of the genuineness
of any material and relevant document or of the truth of any
material and relevant matter of fact. (!ec. 4, 1ule 0, 4++* 1ules of Civil rocedure.2
. 1#DC%&#' #1 &'!"C%&#' #$ D#C)"'%! #1
%&';!. pon motion of any party showing good cause therefore,
a court may order any party to produce and permit the inspection
and copying or photographing of any designated documents, etc. or
order any party to permit entry upon designated land or property
for inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation thereon.
(!ec. 4, 1ule 0*, 4++* 1ule 0* 1ules of Civil rocedure.2
(iscovery- =odes- Sub+oena (uces 'ecum !"##$%
&n an admiralty case Eled by A against Q !hipping :ines (whose
principal oices are in )anila2 in the 1%C, Davao City, the court
issued a subpoena duces tecum directing Q, the president of the
shipping company, to appear and testify at the trial and to bring
with him several documents.
(a2 #n what valid ground can Q refuse to comply with the subpoenaduces tecum>
(b2 ow can A ta<e the testimony of Q and present the documents
as e@hibits other than through the subpoena from the 1%C>
S&GGES'E( ANS)ER*
(a2 Q can refuse to comply with the subpoena duces tecum on the
ground that he resides more than (now 42 <ilometers from the
place where he is to testify, (!ec. + of former 1ule 06/ !ec. 4 of
new 1ule 042.
(b2 A can ta<e the testimony of Q and present the documents as
e@hibits by ta<ing his deposition through oral e@amination or
written interrogatories. (1ule 0/ new 1ule 062 e may also Ele a
motion for the production or inspection of documents. (1ule 0*2.
AL'ERNA'I:E ANS)ER*
(a2 %he witness can also refuse to comply with the subpoena duces
tecum on the ground that the documents are not relevant and there
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was no tender of fees for one dayRs attendance and the <ilometrage
allowed by the rules.
Discovery/ roduction and &nspection of Documents (002
%he plainti sued the defendant in the 1%C to collect on a
promissory note, the terms of which were stated in the complaint
and a photocopy attached to the complaint as an anne@. Before
answering, the defendant Eled a motion for an order directing the
plainti to produce the original of the note so that the defendant
could inspect it and verify his signature and the handwritten
entries of the dates and amounts.
4 !hould the judge grant the defendantMs motion for production
and inspection of the original of the promissory note> =hy> (072
0 Assuming that an order for production and inspection was
issued but the plainti failed to comply with it, how should the
defendant plead to the alleged e@ecution of the note> (672
S&GGES'E( ANS)ER*
(42 Qes, because upon motion of any party showing good cause, the
court in which the action is pending may order any party toproduce and permit the inspection of designated documents. (1ule
0*2. %he defendant has the right to inspect and verify the original
of the promissory note so that he could intelligently prepare his
answer.
(02 %he defendant is not reHuired to deny under oath the
genuineness and due e@ecution of the promissory note, because of
the non-compliance by the plainti with the order for production
and inspection of the original thereof. (1ule , sec. 2.
AL'ERNA'I:E ANS)ER*
(02 %he defendant may Ele a motion to dismiss the complaint
because of the refusal of the plainti to obey the order of the court
for the production and inspection of the promissory note. 51ule 0+
!ec. 6(c28.
(iscovery- Production and Ins+ection !011#%
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Continental Chemical Corporation (CCC2 Eled a complaint fora sum of money against Barstow %rading Corporation (B%C2for the latterMs failure to pay for its purchases of industrialchemicals. &n its answer, B%C contended that it refused topay because CCC misrepresented that the products it soldbelonged to a new line, when in fact they were identical withCCCMs e@isting products.
%o substantiate its defense, B%C Eled a motion to compel CCCto give a detailed listof the productsM ingredients and chemical components, relyingon the right to avail ofthe modes of discovery allowed under 1ule 0*. CCC objected,
invo<ing conEdentiality of the information sought by B%C.1esolve B%CMs motion with reasons. (672
S&GGES'E( ANS)ER*
& will deny the motion. %he ingredients and chemicalcomponents of CCCWs products are trade secrets within thecontemplation of the law. %rade secrets may not be thesubject of compulsory disclosure by reason of their conEdentialand privileged character. #therwise, CCC would eventually bee@posed to unwarranted business competition with others whomay imitate and mar<et the same <inds of products in violation of CCCWs proprietary rights. Being privileged, thedetailed list of ingredients and chemical components may notbe the subject of mode ofdiscovery under 1ule 0*, !ection 4 which e@pressly ma<esprivileged information an e@ception from its coverage (Airhilippines Corporation vs. ennswell, &nc., !C1A 04 50*82.
=otion to (ismiss* Grounds !01">%
'r. &ven$er Eled with the 1egional %rial Court ( R0C2 a complaintagainst 's. -ri$# for annulment of deed of sale and otherdocuments. 's. -ri$# Eled a motion to dismiss the complaint onthe ground of lac< of cause of action. 'r. &ven$er Eled anopposition to the motion to dismiss. !tate and discuss theappropriate remedyFremedies under each of the followingsituationsN !3?%
!A% &f the 1%C grants 's. -ri$#Ms motion to dismiss and dismissesthe complaint on the ground of lac< of cause of action, what will be
the remedyFremedies of 'r. &ven$er >
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S&GGES'E( ANS)ERS*
&f the 1%C grants )s. BrightsMs motion to dismiss, the
remedies of )r. Avenger areN
(a2 $ile a motion for reconsideration under 1ule 6*.
(b2 1e-Ele the complaint. %he dismissal does not bar the re-Elingof the case (! 142.
(c2 Appeal from the order of dismissal. %he dismissal order is aEnal order as it completely disposes of the case/ hence it isappealable.
(d2 $ile an amended complaint as a matter of right curing the
defect of lac< of cause of action before the dismissal order becomesEnal. %his is because a motion to dismiss is not a responsivepleading/ hence )r. Avenger can amend the complaint as a matterof right. (!0 142.
!B% &f the 1%C denies 's. -ri$#Ms motion to dismiss, what will beher remedyFremedies>
S&GGES'E( ANS)ERS*
&f the 1%C denies )s. BrightMs motion to dismiss, herremedies areN
(a2 $ile a motion for reconsideration.
(b2 roceed to trial and if she loses, appeal and assign the failure todismiss as a reversible error.
(c2 $ile a special civil action for certiorari andFor mandamus if thedenial of the order to dismiss is made with grave abuse ofdiscretion amounting to lac< of or e@cess of jurisdiction.
!C% &f the 1%C denies 's. -ri$#Ms motion to dismiss and, furtherproceedings, including trial on the merits, are conducted until the1%C renders a decision in favor of 'r. &ven$er , what will be theremedyFremedies of 's. -ri$#>
S&GGES'E( ANS)ERS*
&f the 1%C renders a decision in favor of )r. Avenger, )s.BrightMs remedies areN
(a2 $ile a motion for reconsideration or new trial under 1ule 6*.
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(b2 $ile an appeal to the Court of Appeals under 1ule 4.
(c2 $ile an appeal to the !upreme Court under 1ule if the
appeal will raise only Huestions of law.
(d2 $ile a petition for relief from judgment under 1ule 6.
(e2 $ile an action for annulment of judgment under 1ule * on theground of e@trinsic fraud or lac< of jurisdiction.
(ismissal- =otion to (ismiss- Res Judicata !0111%
AB, as mother and in her capacity as legal guardian of her
legitimate minor son, CD, brought action for support against "$, asfather of CD and ABMs lawfully wedded husband. "$ Eled his
answer denying his paternity with counterclaim for damages.
!ubseHuently, AB Eled a manifestation in court that in view of the
denial made by "$, it would be futile to pursue the case against "$.
AB agreed to move for the dismissal of the complaint, subject to the
condition that "$ will withdraw his counter claim for damages. AB
and "$ Eled a joint motion to dismiss. %he court dismissed the case
with prejudice. :ater on, minor son CD, represented by AB, Eled
another complaint for support against "$. "$ Eled a motion to
dismiss on the ground of res judicata. a2 &s res judicata a valid
ground for dismissal of the second complaint> "@plain your answer
(672 b2 =hat are the essential reHuisite of res judicata> (072
S&GGES'E( ANS)ER*
(a2 'o, res judicata is not a defense in an action for support even if
the Erst case was dismissed with prejudice on a joint motion to
dismiss. %he plaintiMs mother agreed to the dismissal of the
complaint for support in view of the defendantMs answer denying
his paternity with a counterclaim for damages. %his was in the
nature of a compromise of the right of support which is prohibited
by law. (Art, 06, Civil Code/ De Asis v. Court of Appeals, 66
!C1A 4* 54+++82.
(b2 %he "ssential 1eHuisites of 1es 3udicata areN
4 the judgment or order rendered must be Enal/
0 the court rendering the same must have jurisdiction of the
subject matter and of the parties/
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6 it must be a judgment or order on the merits/ and
. there must be between the two cases identity of parties,
identity of subject matter, and identity of causes of action. (!an
Diego v. Cardona, * hil, 04 54+82
/orum S4o++ing- (enition !0113%
=hat is forum shopping> (0.72
!;;"!%"D A'!="1N
$orum shopping is the act of a party which consists of Eling
multiple suits, simultaneously or successively, for the purpose of obtaining a favorable judgment (:eyson v. #ice of the
#mbudsman, ;.1. 'o. 46++, April 0*, 0/ Qulienco v. CA, ;.1.
'o. 464+0, 3une 4,4+++/ Chemphil "@port V &mport Corp. v. CA,
;.1. 'os. 4406-6+, December 40, 4++2.
/orum S4o++ing !01">%
'r. um2#% Eled with the 1egional %rial Court ( R0C2 a complaintagainst 's. :um2#% for damages. %he 1%C, after due proceedings,
rendered a decision granting the complaint and ordering 's.
:um2#% to pay damages to 'r. um2#% . 's. :um2#% timely Eled anappeal before the Court of Appeals (C&2, Huestioning the 1%Cdecision. )eanwhile, the 1%C granted 'r. um2#%/s motion fore@ecution pending appeal. pon receipt of the 1%CMs ordergranting e@ecution pending appeal, 's. :um2#% Eled with theCAanother case, this time a special civil action for cer#iorari assailingsaid 1%C order. &s there a violation of the rule against forumshopping considering that two (02 actions emanating from the samecase with the 1%C were Eled by 's. :um2#% with the CA>"@plain. !>?%
S&GGES'E( ANS)ER*
'o, there is no violation of the rule against forum shopping.
$orum shopping applies where two or more initiatory pleadingswere Eled by the same party. %his is discernible from the use of thephrase Xcommenced any action or Eled any claimY in ! 1*.
ere the Erst case involves the Eling by )s. Dumpty of a notice ofappeal which is not an initiatory pleading. ence there is no forumshopping.
/orum S4o++ing- Certication !011#%
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Amorsolo, a $ilipino citiJen permanently residing in 'ew Qor< City, Eled with the 1%C of :ipa City a complaint for1escission of Contract of !ale of :and against Brigido, aresident of Barangay !an )iguel, !to. %omas, Batangas. %hesubject property, located in Barangay %alisay, :ipa City, hasan assessed value of 4+,*. Appended to the complaint is AmorsoloMs veriEcation and certiEcation of non-forum shoppinge@ecuted in 'ew Qor< City, duly notariJed by )r. 3osephBrown, "sH., a notary public in the !tate of 'ew Qor<.
Brigod Eled a motion to dismiss the complaint on the followinggroundsN
(c2 %he veriEcation and certiEcation of non- forum shopping arefatally defectivebecause there is no accompanying certiEcation issued by thehilippineConsulate in 'ew Qor<, authenticating that )r. Brown is dulyauthoriJed to notariJethe document. (672 1ule on the foregoing grounds withreasons.
S&GGES'E( ANS)ER*
%he third ground raised Huestioning the validity of the veriEcation and certiEcation of non-forum shopping for lac< of certiEcation from the hilippine Consulate in 'ew Qor<,authenticating that )r. Brown is duly authoriJed to notariJethe document, is li<ewise without merit. %he reHuiredcertiEcation alluded to, pertains to oicial acts, or records of oicial bodies, tribunals, and public oicers, whether of thehilippines or of a foreign countryN the reHuirement in !ec.0, 1ule 460 of the4++* 1ules refers only to paragraph (a2 of !ec. 0+ which does
not cover notarial documents. &t is enough that the notarypublic who notariJed the veriEcation andcertiEcation of non-forum shopping is clothed with authority toadminister oath in that !tate or foreign country.
/orum S4o++ing- E@ects- LacF o Certication !0113%
oney Eled with the 1egional %rial Court, %aal, Batangas a
complaint for speciEc performance against Bernie. $or lac< of
certiEcation against forum shopping, the judge dismissed the
complaint. oneyRs lawyer Eled a motion for reconsideration,
attaching thereto an amended complaint with the certiEcation
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against forum shopping. &f you were the judge, how will you resolve
the motion> (72
S&GGES'E( ANS)ER*
&f & were the judge, the motion should be denied after hearing
because, as e@pressly provided in the 1ules, failure to comply with
the reHuirement of forum shopping is not curable by mere
amendment of the complaint or other initiatory pleading, but shall
be cause for the dismissal of the case, without prejudice, unless
otherwise provided (!ec. , 1ule *, 4++* 1ules of Civil rocedure2.
owever, the trial court in the e@ercise of its sound discretion, may
choose to be liberal and consider the amendment as substantialcompliance (;reat !outhern )aritime !ervices Corp. v. Acuna, ;.1.
'o. 44+, $ebruary 0,0/ Chan v. 1%C of Oamboanga del
'orte, ;.1. 'o. 4+06, April 4, 0/ y v. :and Ban<, ;.1.
464, 3uly 0, 02.
Gen. Princi+les- uestions o La8 vs. uestions o /act
!011>%
Distinguish Puestions of law from Puestions of fact.
S&GGES'E( ANS)ER*
A P"!%&#' #$ :A= is when the doubt or dierence arises as to
what the law is on a certain set of facts, while a P"!%&#' #$
$AC% is when the doubt or dierence arises as to the truth or
falsehood of alleged facts. (1amos v. epsi-Cola Bottling Co., 4+
!C1A 0+, 54+*82.
Judgment- Enorcement- <year Period !011$%
(b2 A Eles a case against B. =hile awaiting decision on thecase, A goes to the nited !tates to wor<. pon her return tothe hilippines, seven years later, A discovers that a decisionwas rendered by the court in here favor a few months aftershe had left. Can A Ele a motion for e@ecution of the judgment> 1eason brieGy. (72
!;;"!%"D A'!="1N#n the assumption that the judgment had been Enal ande@ecutory for more than Eve (2 years as of A ‟s return to the
hilippines seven (*2 years later, a motion for e@ecution ofthe judgment is no longer availing because the e@ecution of
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judgment by mere motion is allowed by the 1ules only withinEve (2 years from entry of judgment/ thereafter, and withinten (42 years from entry of judgment, an action to enforcethe judgment is reHuired.
Judgment- Eecution- Judgment 2bligor ’s (eat4 !011#%
Cresencio sued Dioscoro for colletion of a sum of money.During the trial, but after the presentation of plaintiMs evidence,Dioscoro died. Atty. CruJ, DioscoroMs counsel, then Eled amotion to dismiss the action on the ground of his clientMsdeath. %he court denied the motion to dismiss and, instead,directed counsel to furnish the court with the names and
addresses of DioscoroMs heirs and ordered that the designatedadministrator of DioscoroMs estate be substituted asrepresentative party.
After trial, the court rendered judgment in favor of Cresencio. =hen the decision had become Enal and e@ecutory,Cresencio moved for the issuance of a writ of e@ecutionagainst DioscoroMs estate to enforce his judgment claim. %hecourt issued the writ of e@ecution. =as the courtMs issuanceof the writ of e@ecution proper> "@plain.
S&GGES'E( ANS)ER*
'o, the issuance of a writ of e@ecution by the court is notproper and is in e@cess of jurisdiction, since the judgmentobligor is already dead when the writ was issued. %he judgment for money may only be enforced against the estate of the deceased defendant in the probate proceedings, by way of a claim Eled with the probate court. Cresencio should enforcethat judgment in his favor in the settlement proceedings of the estate of Dioscoro as a money claim in accordance withthe 1ule or 1ule as the case may be.
Judgment- Eecution- Stay !011#%
)i<e was renting an apartment unit in the building owned by 3onathan. =hen )i<e failed to pay si@ monthsM rent, 3onathanEled an ejectment suit. %he )unicipal %rial Court ()%C2rendered judgement in favor of 3onathan, who then Eled amotion for the issuance of a writ of e@ecution. %he )%C issued
the writ.
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(a2 ow can mi<e stay the e@ecution of the )%C judgment>(072
S&GGES'E( ANS)ER*
"@ecution shall issue immediately upon motion, unless )i<e(a2 perfects his appeal to the 1%C, (b2 Eles a suicientsupersedeas bond to pay the rents, damages and costsaccruing up to the time of the judgment appealed from, and (c2deposits monthly with the 1%C during the pendency of theappeal the amount of rent due from time to time (1ule *,!ec. 4+2.
(b2 )i<e appealed to the 1egional %rial Court, which airmedthe )%C decision.)i<e then Eled a petition for review with the Court of Appeals.%he CA dismissed thepetition on the ground that the sheri had already e@ecutedthe )%C decision and hadejected )i<e from the premises, thus rendering the appealmoot and academic. &s the CA correct> (672 1easons.
S&GGES'E( ANS)ER*
'#. %he Court of Appeals is not correct. %he dismissal of theappeal is wrong,because the e@ecution of the 1%C judgment is only in respectof the eviction of the defendant from the leased premises.!uch e@ecution pending appeal has no eect on the merits of theejectment suit which still has to be resolved in the pendingappeal. 1ule *, !ec. 04 of the 1ules provides that the 1%C judgment against the defendant shall be immediately e@ecutor,Xwithout prejudice to a further appealY that may be ta<entherefrom (y vs. !antiago, 66 !C1A 5082.
Judgment- Eecution- Successors in Interest !011,%
alf-brothers 1oscoe and !alvio inherited from their father a vast tract of unregistered land. 1oscoe succeeded in gainingpossession of the parcel of land in its entirety andtransferring the ta@ declaration thereon in his name. 1oscoesold the northern half to Bono, !alvioMs cousin. pon learningof the sale, !alvio as<ed 1oscoe to convey the southern half tohim. 1oscoe refused as he even sold one-third of the southernhalf along the =est to Carlo. %hereupon, !alvio Eled an action
for reconveyance of the southern half against 1oscoe only.Carlo was not impleaded. After
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Eling his answer, 1oscoe sold the middle third of thesouthern half to 'ina. !alviodid not amend the complaint to implead 'ina.
After trial, the court rendered judgment ordering 1oscoe toreconvey the entire southern half to !alvio. %he judgmentbecame Enal and e@ecutory. A writ of e@ecution having beenissued, the sheri reHuired 1oscoe, Carlo and 'ina to vacatethe southern half and yield possession thereof to !alvio asthe prevailing party. Carlo and 'ina refused, contending thatthey are not bound by the judgment as theyare not parties to the case. &s the contention tenable> "@plainfully. (72
S&GGES'E( ANS)ER*
As a general rule, no stranger should be bound to a judgment where he is notincluded as a party. %he rule on transfer of interest pendinglitigation is found in !ec. 4+, 1ule 6, 4++* 1ules of Civilrocedure. %he action may continue unless the court, uponmotion directs a person to be substituted in the action or joinedwith the original party. Carlo is not bound by the judgment. ebecame a co-owner before the case was Eled ()atuguina
&ntegrated =ood roducts, &nc. vs. C.A., ;.1. 'o. +64, 0#ctober 4++/ olaris vs. lan, + !C1A +6/ !ee also AssetrivatiJation %rust vs. C.A., ;.1. 'o. 4044*4, 0+ December4++2. owever, 'ina is a privy or a successorin interest and is bound by the judgment even if she is not aparty to the case(!ec. 4+, 1ule 6, 4++* 1ules of Civil rocedure/ Cabresos vs.
%iro, 4 !C1A 54++82. A judgment is conclusive between the parties andtheir successors-in-interest by title subseHuent to the case (!ec.
*, 1ule 6+, 4++* 1ules of Civil rocedure2. Judgment- /oreign Judgments- /oreign Arbitral A8ard!011$%
(a2 =hat are the rules on the recognition and enforcement offoreign judgments in our courts> (72
S&GGES'E( ANS)ER*
3udgments of foreign courts are given recognition in our courts
thusN &n case of judgment upon a speciEc thing, the judgmentis conclusive upon the title to the thing, unless otherwise
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convenience, nations have established a usage among civiliJedstates by which Enal judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered eicaciousunder certain conditions that may vary in dierentcountries (!t. Aviation !ervices Co., te., :td. v. ;rand&nternational Airways, &nc., !C1A 6508/ Asiavest)erchant Ban<ers 5)8 Berhad v. Court of Appeals, 64 !C1A+ 50482.
Judgment- Judgment on t4e Pleadings !01"0%
lainti Eles a reHuest for admission and serves the same onDefendant who fails, within the time prescribed by the rules,
to answer the reHuest. !uppose the reHuest for admission as<edfor the admission of the entire material allegations stated in thecomplaint, what should plainti do> (72
S&GGES'E( ANS)ER*
%he lainti should Ele a )otion for 3udgment on theleadings because thefailure of the defendant to answer a reHuest for admissionresults to an implied admission of all the matters which anadmission is reHuested. ence, a motion for judgment on the
pleadings is the appropriate remedy where the defendant isdeemed to have admitted the matters contained in the 1eHuestfor admission by the plainti. (1ule 6 in connection with!ec.0, 1ule 0, 1ules of Court2.
Judgment- Judgment on t4e Pleadings !011#%
)odesto sued "rnesto for a sum of money, claiming that thelatter owed him 4), evidenced by a promissory note, Huotedand attached to the complaint. &n his answer withcounterclaim, "rnesto alleged that )odesto coerced him intosigning the promissory note, but that it is )odesto who reallyowes him 4.). )odesto Eled an answer to "rnestoMscounterclaim admitting that he owed "rnesto, but only in theamount of .). at the pre-trial, )odesto mar<ed andidentiEed "rnestoMs promissory note. e also mar<ed andidentiEed receipts covering payments he made to "rnesto, to thee@tent of .), which "rnesto did not dispute. After pre-trial,)odesto Eled a motion for judgment on the pleadings, while"rnesto Eled a motion for summary judgment on his counterclaim.1esolve the two motions with reasons.
S&GGES'E( ANS)ER*
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)odesto‟s motion for judgment on the pleadings should be
denied. =hile it is true that under the actionable document rule,"rnesto‟s failure to deny under oath the promissory note inhis answer amounted to an implied admission of its genuinenessand due e@ecution, his allegation in his answer that he wascoerced into signing the romissory note tendered an issue whichshould be tried. %he issue of coercion is not inconsistent with thedue e@ecution and genuineness of the instrument. %hus,"rnesto‟s failure to deny the genuineness of the promissorynote cannot be considered a waiver to raise the issue that hewas coerced in signing the same. !aid claim of coercion mayalso be proved as an e@ception to the arol "vidence 1ule. #n
the other hand, "rnesto‟s motion for summary judgment maybe granted. )odesto‟s answer to "rnesto‟s counterclaim Z thathe owed the latter a sum less than what was claimed Zamounted to an admission of a material fact and if theamount thereof could summarily be proved by aidavits,deposition, etc., without the need of going to trial, then nogenuine issue of fact e@ists.
AL'ERNA'I:E ANS)ER*
)odesto‟s motion for judgment on the pleadings should bedenied because there is an issue of fact. =hile "rnesto did
not speciEcally deny under oath the promissory note attachedto )odesto‟s complaint as an actionable document, such non-denial will not bar "rnesto‟s evidence that )odesto coercedhim into signing the promissory note. :ac< of consideration,as a defense, does not relate to the genuineness and duee@ecution of the promissory note.
:i<ewise, "rnesto‟s motion for summary judgment should bedenied because there is an issue of fact Z the alleged
coercion Z raised by "rnesto which he has yet to prove in atrial on its merits. &t is a@iomatic that summary judgment isnot proper or valid whent there is an issue of fact remainingwhich reHuires a hearing. And this is so with respect to thecoercion alleged by "rnesto as his defense, since coercion isnot capable of being established by documentary evidence.
Judgment- Annulment o Judgment- Grounds !"##,%
=hat are the grounds for the annulment of a judgment of the 1%C
(1%C2> 5078
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S&GGES'E( ANS)ER*
%he grounds for annulment of judgment of the 1%C are "@trinsic
$raud and :ac< of 3urisdiction. (!ec, 0, 1ule *, 4++* 1ules of Civil
rocedure.2
Judgment- Enorcement- <year +eriod !"##$%
A, a resident of Dagupan City, secured a favorable judgment in an
ejectment case against K, a resident of PueJon City, from the
)%Cof )anila. %he judgment, entered on 4 3une 4++4, had not as
yet been e@ecuted. a2 &n 3uly 4++, A decided to enforce the
judgment of the )%Cof )anila. =hat is the procedure to be
followed by A in enforcing the judgment> b2 =ith what court should
A institute the proceedings>
S&GGES'E( ANS)ER*
(a2 A can enforce the judgment by another action reviving the
3udgment because it can no longer be enforced by motion as the
Eve-year period within which a judgment may be enforced by
motion has already e@pired. (!ec. of former and new 1ule 6+2.
(b2 A may institute the proceedings in the 1%C in accordance withthe rules of venue because the enforcement of the 3udgment is a
personal action incapable of pecuniary estimation.
AL'ERNA'I:E ANS)ER*
(b2 A may institute the proceeding in a )%Cwhich has jurisdiction
over the area where the real property involved is situated. (!ec. 4
of 1ule 2.
Judgment- Enorcement- /oreign Judgment !011<%
nder Article 44 of the 'ew Civil Code, an action upon a
judgment must be brought within 4 years from the time the right
of action accrues. &s this provision applicable to an action Eled in
the hilippines to enforce a foreign judgment> "@plain. (472
AL'ERNA'I:E ANS)ER*
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Article 44 of the Civil Code which reHuires that an action upon a
judgment (though without distinction2 must be brought within 4
years from the time the right of action accrues, does not apply toan action Eled in the hilippines to enforce a foreign judgment.
=hile we can say that where the law does not distinguish, we
should not distinguish, still the law does not evidently contemplate
the inclusion of foreign judgments. A local judgment may be
enforced by motion within Eve years and by action within the ne@t
Eve years. (1ule 6+2 %hat is not the case with respect to foreign
judgments which cannot be enforced by mere motion.
AL'ERNA'I:E ANS)ER*
Article 44 of the Civil Code reHuires that an action upon a
judgment (though without distinction2 must be brought within 4
years from the time the right of action accrues. %here seems no
cogent reason to e@clude foreign judgments from the operation of
this rule, subject to the reHuirements of 1ule 6+, !ec. of the
1ules of Court which establishes certain reHuisites for proving the
foreign judgment. ursuant to these provisions, an action for the
enforcement of the foreign judgment may be brought at any time
within 4 years from the time the right of action accrues. Judgment- Eecution +ending A++eal !0110%
%he trial court rendered judgment ordering the defendant to pay
the plainti moral and e@emplary damages. %he judgment was
served on the plainti on #ctober 4, 04 and on the defendant on
#ctober , 04. #n #ctober , 04, the defendant Eled a notice
of appeal from the judgment, but the following day, #ctober +,
04, the plainti moved for the e@ecution of the judgment pending
appeal. %he trial court granted the motion upon the posting by theplainti of a bond to indemnify the defendant for damages it may
suer as a result of the e@ecution. %he court gave as a special
reason for its order the imminent insolvency of the defendant. &s
the order of e@ecution pending appeal correct> =hy> (72
S&GGES'E( ANS)ER*
'o, because awards for moral and e@emplary damages cannot be
the subject of e@ecution pending appeal. %he e@ecution of any
award for moral and e@emplary damages is dependent on theoutcome of the main case. :iabilities for moral and e@emplary
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damages, as well as the e@act amounts remain uncertain and
indeEnite pending resolution by the Court of Appeals or !upreme
Court. 51C& v. :antin, 46 !C1A 6+ (4+2/ &nternational !chool,&nc. v. Court of Appeals, 6+ !C1A * (4+++28.
AL'ERNA'I:E ANS)ER*
Qes, because only moral and e@emplary damages are awarded in
the judgment and they are not dependent on other types of
damages.
)oreover, the motion for e@ecution was Eled while the court had jurisdiction over the case and was in possession of the original
record.
&t is based on good reason which is the imminent insolvency of the
defendant. (1ule 6+, sec. 02
byN sirdondeeUgmail.com age 06 of 3udgment/ &nterlocutory
#rder/ artial !ummary 3udgments (02 After defendant has
served and Eled his answer to plaintis complaint for damages
before the proper 1%C, plainti served and Eled a motion (withsupporting aidavits2 for a summary judgment in his favor upon all
of his claims. Defendant served and Eled his opposition (with
supporting aidavits2 to the motion. After due hearing, the court
issued an order
(42 stating that the court has found no genuine issue as to any
material fact and thus concluded that plainti is entitled to
judgment in his favor as a matter of law e@cept as to the amount of
damages recoverable, and (02 accordingly ordering that plainti
shall have judgment summarily against defendant for such amount
as may be found due plainti for damages, to be ascertained by
trial on #ctober *, 0, at N6 oRcloc< in the morning. )ay
defendant properly ta<e an appeal from said order> #r, may
defendant properly challenge said order thru a special civil action
for certiorari> 1eason. (72
S&GGES'E( ANS)ER*
'o, plainti may not properly ta<e an appeal from said order
because it is an interlocutory order, not a Enal and appealable
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order (!ec. of 1ule 62. &t does not dispose of the action or
proceeding (!ec. 4 of 1ule 6+2.
A1%&A: !))A1Q 3D;)"'%! are interlocutory. %here is still
something to be done, which is the trial for the adjudication of
damages
(rovince of angasinan v. Court of Appeals, 00 !C1A *0 54++63/
;uevarra v. Court of Appeals, 0+ hil. 04 54+682, but the
defendant may properly challenge said order thru a special civil
action for certiorari. (!ec. 4 5c8 and last par. of 1ule 42
Judgment- Judgment on t4e Pleadings !"###%
a2 =hat are the grounds for judgment on the pleadings> (072
b2 ARs Answer admits the material allegations of BRs Complaint.
)ay the court motu proprio render judgment on the pleadings>
"@plain. (072
c2 A brought an action against her husband B for annulment of
their marriage on the ground of psychological incapacity, B Eled
his Answer to the Complaint admitting all the allegations therein
contained. )ay A move for judgment on the pleadings> "@plain.(072
S&GGES'E( ANS)ER*
a2 %he grounds for judgment on the pleadings are where an
answer fails to tender an issue, or otherwise admits the material
allegations of the adverse partyRs pleading. (!ec. 4, 1ule 62.
b2 'o, a motion must be Eled by the adverse party. (!ec. 4, 1ule
62 %he court cannot motu proprio render judgment on thepleadings.
c2 'o, because even if BRs answer to ARs complaint for
annulment of their marriage admits all the allegations therein
contained, the material facts alleged in the complaint must always
be proved. (!ec. 4 of 1ule 6.2
A'#%"1 A'!="1N
c. 'o. %he court shall order the prosecutor to investigate whether
or not a collusion between the parties e@ists, and if there is no
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collusion, to intervene for the !tate in order to see to it that the
evidence submitted is not fabricated. (!ec. 65"8, 1ule +2 "vidence
must have to be presented in accordance with the reHuirements setdown by the !upreme Court in 1epublic vs. Court of Appeals and
)olina (0 !C1A 4+.2
Judgment* Summary !01">%
lain#i Eled a complaint denominated as accion 2ubliciana,against !efen!an#. &n his answer, !efen!an# alleged that he had nointerest over the land in Huestion, e@cept as lesseeof < . lain#i subseHuently Eled an aidavit of < , the lessorof !efen!an#, stating that < had sold to 2lain#i all his rights and
interests in the property as shown by a deed of transfer attached tothe aidavit. %hus, 2lain#i may as< the court to renderN !"?%
!A% summary judgment!B% judgment on the pleadings!C% partial judgment!(% judgment by default
S&GGES'E( ANS)ER*
(A2 (!4 V 6, 162
Judgment- Judgment on t4e Pleadings !011<%
&n a complaint for recovery of real property, the plainti averred,
among others, that he is the owner of the said property by virtue of
a deed of sale e@ecuted by the defendant in his favor. Copy of the
deed of sale was appended to the complaint as Anne@ LAL thereof.
&n his unveriEed answer, the defendant denied the allegation
concerning the sale of the property in Huestion, as well as the
appended deed of sale, for lac< of <nowledge or information
suicient to form a belief as to the truth thereof. &s it proper for thecourt to render judgment without trial> "@plain. (72
S&GGES'E( ANS)ER*
Defendant cannot deny the sale of the property for lac< of
<nowledge or information suicient to form a belief as to the truth
thereof. %he answer amounts to an admission. %he defendant must
aver or state positively how it is that he is ignorant of the facts
alleged. (hil, Advertising Counselors, &nc. v. 1evilla, ;.1. 'o. :-
64+, August , 4+*6/ !ec. 4, 1ule 2
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)oreover, the genuineness and due e@ecution of the deed of sale
can only be denied by the defendant under oath and failure to do so
is also an admission of the deed. (!ec. , 1ule 2 ence, a judgmenton the pleadings can be rendered by the court without need of a
trial.
Judgment- =andamus vs. uo )arranto !011"%
etitioner $abian was appointed "lection 1egistrar of the
)unicipality of !evilla supposedly to replace the respondent
"lection 1egistrar ablo who was transferred to another
municipality without his consent and who refused to accept his
aforesaid transfer, much less to vacate his position in Bogo town aselection registrar, as in fact he continued to occupy his aforesaid
position and e@ercise his functions thereto. etitioner $abian then
Eled a petition for mandamus against ablo but the trial court
dismissed $abianMs petition contending that Huo warranto is the
proper remedy. &s the court correct in its ruling> =hy> (72
S&GGES'E( ANS)ER*
Qes, the court is correct in its ruling. )andamus will not lie. %his
remedy applies only where petitionerMs right is founded clearly inlaw, not when it is doubtful. ablo was transferred without his
consent which is tantamount to removal without cause, contrary to
the fundamental guarantee on non-removal e@cept for cause.
Considering that edro continued to occupy the disputed position
and e@ercise his functions therein, the proper remedy is Huo
warranto, not mandamus. [;arces v. Court of Appeals, 0+ !C1A
++ (4++28
AL'ERNA'I:E ANS)ER*
Qes, the court is correct in its ruling. )andamus lies when the
respondent unlawfully e@cludes another from the use and
enjoyment of a right or oice to which such other is entitled. (!ec.
0, 1ule 2. &n this case, ablo has not unlawfully e@cluded $abian
from the #ice of "lection 1egistrar. %he remedy of $abian is to Ele
an action of Huo warranto in his name against ablo for usurping
the oice. (!ec. , 1ule 2
Judgment- Soundness- Attac4ment !0110%
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%he plainti obtained a writ of preliminary attachment upon a bond
of 4 million. %he writ was levied on the defendantMs property, but
it was discharged upon the posting by the defendant of acounterbond in the same amount of 4 million. After trial, the court
rendered judgment Ending that the plainti had no cause of action
against the defendant and that he had sued out the writ of
attachment maliciously. Accordingly, the court dismissed the
complaint and ordered the plainti and its surety to pay jointly to
the defendant 4. million as actual damages, . million as moral
damages and . million as e@emplary damages. "valuate the
soundness of the judgment from the point of view of procedure.
(72S&GGES'E( ANS)ER*
%he judgment against the surety is not sound if due notice was not
given to him of the applicant for damages. (1ule *, sec. 02
)oreover, the judgment against the surety cannot e@ceed the
amount of its counterbond of 4 million.
Judgments- Enorcement- Eamination o (eendant !0110%
%he plainti, a )anila resident, sued the defendant, a resident of )alolos Bulacan, in the 1%C-)anila for a sum of money. =hen the
sheri tried to serve the summons with a copy of the complaint on
the defendant at his Bulacan residence, the sheri was told that the
defendant had gone to )anila for business and would not be bac<
until the evening of that day. !o, the sheri served the summons,
together with a copy of the complaint, on the defendantMs 4-year-
old daughter, who was a college student. $or the defendantMs
failure to answer the complaint within the reglementary period, the
trial court, on motion of the plainti, declared the defendant indefault. A month later, the trial court rendered judgment holding
the defendant liable for the entire amount prayed for in the
complaint.
A. After the judgment had become Enal, a writ of e@ecution was
issued by the court. As the writ was returned unsatisEed, the
plainti Eled a motion for an order reHuiring the defendant to
appear before it and to be e@amined regarding his property and
income. ow should the court resolve the motion> (072
Jurisdiction- ;abeas Cor+us- Custody o =inors !011<%
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=hile )arietta was in her place of wor< in )a<ati City, her
estranged husband Carlo barged into her house in aranaHue City,
abducted their si@-year old son, ercival, and brought the child tohis hometown in Baguio City. Despite )ariettaRs pleas, Carlo
refused to return their child. )arietta, through counsel, Eled a
petition for habeas corpus against Carlo in the Court of Appeals in
)anila to compel him to produce their son, before the court and for
her to regain custody. !he alleged in the petition that despite her
eorts, she could no longer locate her son.
&n his comment, Carlo alleged that the petition was erroneously
Eled in the Court of Appeals as the same should have been Eled in
the $amily Court in Baguio City which, under 1epublic Act 'o.6+, has e@clusive jurisdiction, over the petition. )arietta replied
that under 1ule 40 of the 1ules of Court, as amended, the petition
may be Eled in the Court of Appeals and if granted, the writ of
habeas corpus shall be enforceable anywhere in the hilippines.
=hose contention is correct> "@plain. (72
!;;"!%"D A'!="1N
)ariettaRs contention is correct. %he Court of Appeals has
concurrent jurisdiction with the family courts and the !upremeCourt in petitions for habeas corpus where the custody of minors is
at issue, notwithstanding the provision in the $amily Courts A.
(1.A. 'o. 6+2 that family courts have e@clusive jurisdiction in
such cases. (%hornton v. %hornton, ;.1. 'o. 4+, August, 02
Jurisdiction- LacF o Jurisdiction- Pro+er Action o t4e Court
!011>%
lainti Eled a complaint for a sum of money against defendant
with the )e%C-)a<ati, the total amount of the demand, e@clusiveof interest, damages of whatever <ind, attorneyRs fees, litigation
e@penses, and costs, being 4,,. &n due time, defendant Eled
a motion to dismiss the complaint on the ground of the )e%CRs lac<
of jurisdiction over the subject matter. After due hearing, the )e%C
(42 ruled that the court indeed lac<ed jurisdiction over the subject
matter of the complaint/ and (02 ordered that the case therefore
should be forwarded to the proper 1%C immediately. =as the
courtRs ruling concerning jurisdiction correct> =as the courtRs
order to forward the case proper> "@plain brieGy. (72
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S&GGES'E( ANS)ER*
Qes. %he )e%C did not have jurisdiction over the case because the
total amount of the demand e@clusive of interest, damages of
whatever <ind, attorneyRs fees, litigation e@penses, and costs, was
4). &ts jurisdictional amount at this time should not e@ceed
.. (!ec. 66 of B.. Big. 40+, as amended by 1.A. 'o.
*+42.
%he courtRs order to forward the case to the 1%C is not proper. &t
should merely dismiss the complaint. nder !ec. 6 of 1ule 4, the
court may dismiss the action or claim, deny the motion or order the
amendment of the pleading but not to forward the case to anothercourt.
Nunc +ro tunc !01">%
An order of the court reHuiring a retroactive re-dating of an order, judgment or document Eling be entered or recorded in a judgmentisN (472(A2 pro hac vice(B2 non pro tunc(C2 confession relicta veriEcatione
(D2 nolle proseHui
ANS)ER*
(B2 ('oteN !hould be Xnunc pro tunc.Y2.
Parties- (eat4 o a Party- E@ect !"##,%
A Eled a complaint for the recovery of ownership of land against B
who was represented by her counsel K. &n the course of the trial, B
died. owever, K failed to notify the court of BRs death. %he courtproceeded to hear the case and rendered judgment against B. After
the 3udgment became Enal, a writ of e@ecution was issued against
C, who being BRs sole heir, acHuired the property. &f you were
counsel of C, what course of action would you ta<e> 5678
S&GGES'E( ANS)ER*
As counsel of C, & would move to set aside the writ of e@ecution and
the judgment for lac< of jurisdiction and lac< of due process in the
same court because the judgment is void. &f K had notiEed the courtof BRs death, the court would have ordered the substitution of the
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deceased by C, the sole heir of B. (!ec. 4 of 1ule 62 %he court
acHuired no jurisdiction over C upon whom the trial and the
judgment are not binding. ($erreira us. &barra 9da. de ;onJales,4 hil. 46/ 9da. de la CruJ vs. Court of Appeals, !C1A +/
:awas us. Court of Appeals, 4 !C1A 4*6.2 & could also Ele an
action to annul the judgment for lac< of jurisdiction because C, as
the successor of B, was deprived of due process and should have
been heard before judgment. (1ule *2
AL'ERNA'I:E ANS)ER*
=hile there are decisions of the !upreme Court which hold that if
the lawyer failed to notify the court of his clientRs death, the courtmay proceed even without substitution of heirs and the judgment is
valid and binding on the heirs of the deceased ($lorendo vs.
Coloma, 40+ !C1A 6.2, as counsel of C, & will assail the judgment
and e@ecution for lac< of due process.
Parties- (eat4 o a Party- E@ect !"###%
=hat is the eect of the death of a party upon a pending action>
(072
S&GGES'E( ANS)ER*
4 =hen the claim is not purely personal and is not thereby
e@tinguished, the party should be substituted by his heirs or his
e@ecutor or administrator. (!ec. 4, 1ule 62
0 &f the action is for recovery of money arising from contract,
e@press or implied, and the defendant dies before entry of Enal
judgment in the court in which the action was pending at the time
of such death, it shall not be dismissed but shall instead be allowed
to continue until entry of Enal judgment. A favorable judgment
obtained by the plainti shall be enforced in the manner provided
in the rules for prosecuting claims against the estate of a deceased
person. (!ec. 0, 1ule 62
Parties- (eat4 o a Party- E@ect !"###%
=hen A (buyer2 failed to pay the remaining balance of the contract
price after it became due and demandable, B (seller2 sued him for
collection before the 1%C. After both parties submitted their
respective evidence, A perished in a plane accident. ConseHuently,
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his heirs brought an action for the settlement of his estate and
moved for the dismissal of the collection suit.
4 =ill you grant the motion> "@plain. (072
0 =ill your answer be the same if A died while the case is
already on appeal to the Court of Appeals> "@plain. (072
6 &n the same case, what is the eect if B died before the 1%C
has rendered judgment> (072
S&GGES'E( ANS)ER*
4 'o, because the action will not be dismissed but shall insteadbe allowed to continue until entry of Enal judgment. (&d.2
0 'o. &f A died while the case was already on appeal in the
Court of Appeals, the case will continue because there is no entry
yet of Enal judgment. (&d.2
6 %he eect is the same. %he action will not be dismissed but
will be allowed to continue until entry of Enal judgment. (&d.2
Parties- '4ird Party Claim !0111%
3?Ms real property is being attached by the sheri in a civil action
for damages against :). 3? claims that he is not a party to the
case/ that his property is not involved in said case/ and that he is
the sole registered owner of said property. nder the 1ules of
Court, what must 3? do to prevent the !heri from attaching his
property> (72
S&GGES'E( ANSER*
&f the real property has been attached, the remedy is to Ele a third-party claim. %he third-party claimant should ma<e an aidavit of
his title to the property attached, stating the grounds of his title
thereto, and serve such aidavit upon the sheri while the latter
has possession of the attached property, and a copy thereof upon
the attaching party. (!ec. 4, 1ule *2 %he third-party claimant may
also intervene or Ele a separate action to vindicate his claim to the
property involved and secure the necessary reliefs, such as
preliminary injunction, which will not be considered as interference
with a court of coordinate jurisdiction. (#ng v. %ating, 4+ !C1A 0, 54+*82
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Parties- '4irdParty Claim !011<%
A obtained a money judgment against B. After the Enality of the
decision, the court issued a writ of e@ecution for the enforcement
thereof. Conformably with the said writ, the sheri levied upon
certain properties under BRs name. C Eled a third-party claim over
said properties claiming that B had already transferred the same to
him. A moved to deny the third-party claim and to hold B and C
jointly and severally liable to him for the money judgment alleging
that B had transferred said properties to C to defraud him (A2.
After due hearing, the court denied the third-party claim and
rendered an amended decision declaring B and C jointly andseverally liable to A for the money judgment. &s the ruling of the
court correct> "@plain. (72
S&GGES'E( ANS)ER*
'#. C has not been properly impleaded as a party defendant. e
cannot be held liable for the judgment against A without a trial. &n
fact, since no bond was Eled by B, the sheri is liable to C for
damages. C can Ele a separate action to enforce his third-party
claim. &t is in that suit that B can raise the ground of fraud againstC. owever, the e@ecution may proceed where there is a Ending
that the claim is fraudulent. (%anongan v. !amson, ;.1. 'o. 4+,
)ay +, 002
Petition or Certiorari !0111%
AB mortgaged his property to CD. AB failed to pay his obligation
and CD Eled an action for foreclosure of mortgage. After trial, the
court issued an #rder granting CDMs prayer for foreclosure of
mortgage and ordering AB to pay CD the full amount of themortgage debt including interest and other charges not later than
40 days from date of receipt of the #rder. AB received the #rder
on August 4, 4+++. 'o other proceeding too< place thereafter. #n
December 0, 4+++, AB tendered the full amount adjudged by the
court to CD but the latter refused to accept it on the ground that
the amount was tendered beyond the 40-day period granted by
the court. AB Eled a motion in the same court praying that CD be
directed to receive the amount tendered by him on the ground that
the #rder does not comply with the provisions of !ection 0, 1ule of the 1ules of Court which give AB 40 days from entry of
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judgment, and not from date of receipt of the #rder. %he court
denied his motion on the ground that the #rder had already
become Enal and can no longer be amended to conform with!ection 0, 1ule . Aggrieved, AB Eles a petition for certiorari
against the Court and CD. =ill the petition for certiorari prosper>
"@plain. (72
S&GGES'E( ANS)ER*
Qes. %he court erred in issuing an #rder granting CDMs prayer for
foreclosure of mortgage and ordering AB to pay CD the full amount
of the mortgage debt including interest and other charges not later
than 40 days from receipt of the #rder. %he court should haverendered a judgment which is appealable. !ince no appeal was
ta<en, the judgment became Enal on August 0, 4+++, which is the
date of entry of judgment. (!ec 0, 1ule 62 ence, AB had up to
December 0, 4+++ within which to pay the amount due. (!ec. 0,
1ule 2 %he court gravely abused its discretion amounting to lac<
or e@cess of jurisdiction in denying ABMs motion praying that CD be
directed to receive the amount tendered.
Petition or Relie- In7unction !011#%
aving obtained favorable judgment in his suit for a sum of money against atricio, #rencio sought the issuance of a writof e@ecution. =hen the writ was issued, the sheri leviedupon a parcel of land that atricio owns, and a date was setfor the e@ecution sale.(a2 ow may atricio prevent the sale of the property on e@ecution>
S&GGES'E( ANS)ER*
atricio may Ele a etition for 1elief with preliminaryinjunction (1ule 62, posting a bond eHuivalent to the value of theproperty levied upon/ or assail the levy as invalid if grounde@ists. atricio may also simply pay the amount reHuired bythe writ and the costs incurred therewith.
b2 &f #rencio is the purchaser of the property at thee@ecution sale, how much does he have to pay>
S&GGES'E( ANS)ER*
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#rencio, the judgment creditor should pay only the e@cessamount of the bid over the amount of the judgment.
(c2 &f the property is sold to a third party at the e@ecution sale,what can atricio do to rrecover the property>
S&GGES'E( ANS)ER*
atricio can e@ercise his right of legal redemption within 4 year from date of registration of the certiEcate of sale bypaying the amount of the purchase price with interests of 47monthly, plus assessment and ta@es paid by the purchaser,
with interest thereon, at the same rate.
Petition or Relie !011$%
(b2 A defendant who has been declared in default can avail of apetition for relief from the judgment subseHuently rendered inthe case. (672
S&GGES'E( ANS)ER*
$alse. %he remedy of petition for relief from judgment isavailable only when the judgment or order in Huestion isalready Enal and e@ecutor, i.e., no longer appealable. As ane@traordinary remedy, a petition for relief from judgment maybe availed only in e@ceptional cases where no other remedy isavailable.
Petition or Relie 5 Action or Annulment !0110%
)ay an order denying the probate of a will still be overturned after
the period to appeal therefrom has lapsed> =hy> (672
S&GGES'E( ANS)ER*
Qes, an order denying the probate of a will may be overturned after
the period to appeal therefrom has lapsed. A "%&%&#' $#1
1":&"$ may be Eled on the grounds of fraud, accident, mista<e or
e@cusable negligence within a period of si@ty (2 days after the
petitioner learns of the judgment or Enal order and not more than
si@ (2 months after such judgment or Enal order was entered 51ule
6, secs. 4 V 6/ !oriano v. Asi, 4 hil. * (4+*28.
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An AC%&#' $#1 A'':)"'% may also be Eled on the ground of
e@trinsic fraud within four (2 years from its discovery, and if based
on lac< of jurisdiction, before it is barred by laches or estoppel.(1ule *, secs. 0 V 62
Petition or Relie- In7unction !0110%
A default judgment was rendered by the 1%C ordering D to pay a
sum of money. %he judgment became Enal, but D Eled a petition for
relief and obtained a writ of preliminary injunction staying the
enforcement of the judgment. After hearing, the 1%C dismissed DMs
petition, whereupon immediately moved for the e@ecution of the
judgment in his favor. !hould Ms motion be granted> =hy> (672
S&GGES'E( ANS)ER*
Ms immediate motion for e@ecution of the judgment in his favor
should be granted because the dismissal of DMs petition for relief
also dissolves the writ of preliminary injunction staying the
enforcement of the judgment, even if the dismissal is not yet Enal.
5;oleJ v. :eonidas, 4* !C1A 4* (4+428.
Pleadings- Amendment o Com+laint !011#%
pon termination of the pre-trial, the judge dictated the pre-trialorder in the presence of the parties and their counsel,reciting what had transpired and deEning three (62 issues to betried.
(a2 &f, immediately upon receipt of his copy of the pre-trialorder, plaintiMs counsel should move for its amendment toinclude a fourth (th2 triable issue which he allegedlyinadvertently failed to mention when the judge dictated the
order. !hould the motionto amend be granted> 1easons. (072
S&GGES'E( ANS)ER*
Depending on the merit of the issue sought to be brought inby the amendment, the motion to amend may be granted upondue hearing. &t is a policy of the 1ules that parties should beaorded reasonable opportunity to bring about a completedetermination of thecontroversy between them, consistent with substantial justice.
=ith this end in view, the amendment before trial may be granted
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to prevent manifest injustice. %he matter is addressed to thesound and judicious discretion of the trial court.
(b2 !uppose trial had already commenced and after theplaintiMs second witness had testiEed, the defendantMs counselmoves for the amendment of the pre-trial order toinclude a Efth (th 2 triable issue vital to his clientMs defense.!hould the motion be granted over the objection of plaintiMscounsel> 1easons. (672
S&GGES'E( ANS)ER*
%he motion may be denied since trial had already commenced
and two witnesses for the plainti had already testiEed.Courts are reHuired to issue pre-trial #rder after the pre-trialconference has been terminated and before trial begins,precisely because the reason for such #rder is to deEne thecourse of the action during the trial.
=here trial had already commenced, more so the adverseparty had already presented witnesses, to allow anamendment would be unfair to the party who had alreadypresented his witnesses. %he amendment would simply rendernugatory the reason for or purpose of the
pre-trial #rder. !ec.* of 1ule 4 on pre-trial in civil actions ise@plicit in allowing amodiEcation of the pre-trial #rder XbeforeY trial begins toprevent manifest injustice.
Pleadings- Amendment o Com+laint !011,% Arturo lent 4) to his friend 1obert on the condition that1ober e@ecute a promissory note or the loan and a real estatemortgage over his property located in %agaytay City. 1obertcomplied. &n his promissory note dated !eptember 0, 0,1obert undertoo< to pay the loan within a year from its dateat 407 per annum interest. &n 3une 0*, Arturo reHuested1obert to pay ahead of time but the latter refused andinsisted on the agreement.
Arturo issued a demand letter and when 1obert did notcomply, Arturo Eled an action to foreclose the mortgage.1obert moved to dismiss the complaint for lac< of cause of actionas the debt was not yet due.
%he resolution of the motion to dismiss was delayed because of the retirement of the 3udge.
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(a2 #n #ctober 4, 0*, pending resolution of the motion todismiss, Arturo Eled anamended complaint alleging 1obertMs debt had in themeantime become due but that 1obert still refused to pay.!hould the amended complaint be allowed considering that noanswer has been Eled>
S&GGES'E( ANS)ER*
'o, the complaint may not be amended under the
circumstances. A complaint may be amended as of rightbefore answer (!ec. 0, 1ule 4/ !ee #ng eng vs. Custodio,;.1. 'o. 4+44, 40 )arch 4+4/ %oyota )otors 5hils\ vs. C.A.,;.1. 'o. 404, * December 4++0/ 1C& vs. C.A., ;.1. 'o.4046+*, 4* April 4++*, citing rudence 1ealty V Dev‟t. Corp. vs.C.A., ;.1. 'o. 440*, 04 )arch 4++/ !oledad vs. )amangun, !C1A 442, but the amendment should refer to facts whichoccurred prior to the Eling of the original complaint. &t thusfollows that a complaint whose cause of action has not yetaccrued cannot be cured or remedied by an amended orsupplemental pleading alleging the e@istence or accrual of acause of action while the case is pending (!wagman otels V%ravel, &nc. vs. C.A., ;.1. 'o. 4446, April 02.
(b2 =ould your answer be dierent had Arturo Eled instead asupplemental complaint stating that the debt became due afterthe Eling of the original complaint>
S&GGES'E( ANS)ER*
A supplemental complaint may be Eled with leave of court to
allege an event that arose after the Eling of the originalcomplaint that should have already contained a cause of action(!ec. , 1ule 42. owever, if no cause of action is alleged inthe original complaint, it cannot be cured by the Eling of asupplement or amendment to allege the subseHuent acHuisitionof a cause of action (!wagman otels V %ravel, &nc. vs. C.A.,;.1. 'o. 4446, April 02.
Pleadings- Amendment o Com+laint- By Leave o Court
!0116%
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After an answer has been Eled, can the plainti amend his
complaint, with leave of court, by changing entirely the nature of
the action> 7
S&GGES'E( ANS)ER*
Qes, the present rules allow amendments substantially altering the
nature of the cause of action. (!ec. 6, 1ule 4, 4+** 1ules of Civil
rocedure/ eirs of )arcelino agobo v. Court of Appeals, 0
!C1A * 54++*82.
%his should only be true, however, when the substantial change or
alteration in the cause of action or defense shall serve the higher
interests of substantial justice and prevent delay and eHually
promote the laudable objective of the rules which is to secure a
just, speedy and ine@pensive disposition of every action and
proceeding. (9alenJuela v. Court of Appeals, 66 !C1A **+ 50482.
Pleadings- Amendment o Com+laint- By Leave o Court-
Prescri+tive Period !0111%
K, an illegitimate child of Q, celebrated her 4th birthday on )ay 0,4++. A month before her birthday, Q died. %he legitimate family of
Q refused to recogniJe K as an illegitimate child of Q. After
countless eorts to convince them, K Eled on April 0, 0 an
action for recognition against O, wife of Q. After O Eled her answer
on August 4, 0, K Eled a motion for leave to Ele an amended
complaint and a motion to admit the said amended complaint
impleading the three (62 legitimate children of Q. %he trial court
admitted the amended complaint on August 00, 0. =hat is the
eect of the admission of the amended complaint> as the action of K prescribed> "@plain. (72
S&GGES'E( ANS)ER*
'o. %he action Eled on April 0, 0 is still within the four-year
prescriptive period which started to run on )ay 0, 4++. %he
amended complaint impleading the three legitimate children,
though admitted on August 00, 0 beyond the four-year
prescriptive period, retroacts to the date of Eling of the original
complaint. Amendments impleading new defendants retroact to thedate of the Eling of the complaint because they do not constitute a
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new cause of action. (9erJosa v. Court of Appeals, 0++ !C1A 4
54++82.
('oteN %he four-year period is based on Article 0 of the Civil
Code2
AL'ERNA'I:E ANS)ER*
nder the 4++* 1ules of Civil rocedure, if an additional defendant
is impleaded in a later pleading, the action is commenced with
regard to him on the date of the Eling of such later pleading,
irrespective of whether the motion for its admission, if necessary, is
denied by the court. (!ec. of 1ule 42.
ConseHuently, the action of K has prescribed with respect to the
three (62 legitimate children of Q who are indispensable parties.
AN2';ER AL'ERNA'I:E ANS)ER*
nder Article 4* of the $amily Code, the action must be brought
within the lifetime of K if the action is based on a record of birth or
an admission of Eliation in a public document or a private
handwritten instrument signed by Q. &n such case, the action of K
has not prescribed.
owever, if the action is based on the open and continuous
possession of the status of an illegitimate child, the action should
have been brought during the lifetime of Q. &n such case, the action
of K has prescribed.
Pleadings- Amendment o Com+laint- =atter o Rig4t !011<%
#n )ay 40, 0, the plainti Eled a complaint in the 1%C of
PueJon City for the collection of 0,.. %he defendant Eled a
motion to dismiss the complaint on the ground that the court had
no jurisdiction over the action since the claimed amount of
0,. is within the e@clusive jurisdiction of the )etropolitan
%rial Court, of PueJon City. Before the court could resolve the
motion, the plainti, without leave of court, amended his complaint
to allege a new cause of action consisting in the inclusion of an
additional amount of 0,., thereby increasing his total
claim to ,.. %he plainti thereafter Eled his opposition
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to the motion to dismiss, claiming that the 1%C had jurisdiction,
over his action. 1ule on the motion of the defendant with reasons.
(72
S&GGES'E( ANS)ER*
%he motion to dismiss should be denied. Basic is the rule that a
motion to dismiss is not a responsive pleading. nder the 1ules, a
pleader may amend his pleading as a matter of right before the
other party has served his responsive pleading. (!ec. 0, 1ule 4,
1ules of Court2 %he court, in allowing the amendment, would not
be acting without jurisdiction because allowing an amendment as a
matter of right does not reHuire the e@ercise of discretion. %hecourt therefore would not be LactingL and thus, could not have
acted without jurisdiction. &t would have been dierent had the
amendments been made after a responsive pleading had been
served. %he court then would have been e@ercising its discretion in
allowing or disallowing the amendment. &t cannot do so however,
because it would be then acting on an amendment of a complaint
over which it has no jurisdiction. (!oledad v. )amangun, ;.1. 'o.
:-4*+6,
)ay 6, 4+6/ ;umabay v. Baralin, ;.1. 'o. :-66, )ay 64,4+**/ rudence 1ealty v. CA, ;.1. 'o. 440*, )arch 04, 4++2
AL'ERNA'I:E ANS)ER*
byN sirdondeeUgmail.com age 0 of %he motion to dismiss
should be granted. 3urisdiction must be conferred by the contents
of the original complaint. Amendments are not proper and should
be denied where the court has no jurisdiction over the original
complaint and the purpose of the amendment is to confer
jurisdiction on the court. (1osario v. Carandang, ;.1. 'o. :-**, April 0, 4+2
=hile a plainti is entitled to amend the complaint before a
responsive pleading is served (!ec. 0, 1ule 4, 4++* 1ules of Civil
rocedure/ 1emington &ndustrial !ales Corporation v. Court of
Appeals, ;.1. 'o. 466*, )ay 0+, 002, still, a complaint cannot
be amended to confer jurisdiction on a court where there was none
to begin with.
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Pleadings- Amendment o Com+laint- 'o Conorm 8
Evidence !011>%
During trial, plainti was able to present, without objection on the
part of defendant in an ejectment case, evidence showing that
plainti served on defendant a written demand to vacate the
subject property before the commencement of the suit, a matter
not alleged or otherwise set forth in the pleadings on Ele. )ay the
corresponding pleading still be amended to conform to the
evidence> "@plain. (72
S&GGES'E( ANS)ER*
Qes. %he corresponding pleading may still be amended to conform
to the evidence, because the written demand to vacate, made prior
to the commencement of the ejectment suit, was presented by the
plainti in evidence without objection on the part of the defendant.
"ven if the demand to vacate was jurisdictional, still, the
amendment proposed was to conform to the evidence that was
already in the record and not to confer jurisdiction on the court,
which is not allowed. $ailure to amend, however, does not aect the
result of the trial on these issues. (!ec. of 1ule 42.
A:%"1'A%&9" A'!="1N &t depends. &n forcible entry, the motion
may be allowed at the discretion of the court, the demand having
been presented at the trial without objection on the part of the
defendant. &n unlawful detainer, however, the demand to vacate is
jurisdictional and since the court did not acHuire jurisdiction from
the very beginning, the motion to conform to the evidence cannot
be entertained. %he amendment cannot be allowed because it will
in eect confer jurisdiction when there is otherwise no jurisdiction.
Pleadings- Counterclaim !01"1%
AntiHue dealer )ercedes borrowed 4,, from antiHuecollector Benjamin. )ercedes issued a postdated chec< in thesame amount to Benjamin to cover the debt.
#n the due date of the chec<, Benjamin deposited it but itwas dishonored. As despite demands, )ercedes failed to ma<egood the chec<, Benjamin Eled in 3anuary 0+ a omplaint forcollection of sum of money before the 1%C of Davao. )ercedes
Eled in $ebruary 0+ her Answer with Counterclaim, allegingthat before the Eling of the case, she and Benjamin had
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entered into a dacion en pagoagreement in which her vintage4,, 1ole@ watch which was ta<en by Benjamin for saleon commission was applied to settle her indebtedness/ and thatshe incurred e@penses in defending what she termed afrivolous lawsuit.L !he accordingly prayed for , damages.
(a2 Benjamin soon after moved for the dismissal of the case.%he trial court accordingly dismissed the complaint. And it alsodismissed the Counterclaim. )ercedes moved for a reconsiderationof the dismissal of the Counterclaim. ass upon )ercedesMmotion. (672
S&GGES'E( ANS)ER*
)ercedes‟ )otion for 1econsideration is impressed withmeritN the trial courts should not have dismissed her counter-claim despite the dismissal of the Complaint. !ince it was theplainti (Benjamin2 who moved for the dismissal of hisComplaint, and at a time when thedefendant ()ercedes2 had already Eled her Answer theretoand with counterclaim, the ismissal of the counterclaimwithout conformity of the defendant-counterclaimant. %he1evised 1ules of Court now provides in 1ule 4*, !ec. 0thereof that X&f a counterclaimhas been pleaded by a defendant prior to the service upon himof the plainti ’s motion for dismissal, the dismissal shall belimited to the complaint. %he dismissal shall be withoutprejudice to the right of the defendant to prosecute hiscounterclaim @ @ @ @.Y
(b2 !uppose there was no Counterclaim and BenjaminMs complaintwas not dismissed, and judgment was rendered against)ercedes for 4,,. %he judgment became Enal ande@ecutory and a writ of e@ecution was correspondingly issued.
!ince )ercedes did not have cash to settle the judgmentdebt, she oered her %oyota Camry model 0 valued at4.0 million.
%he !heri, however, on reHuest of Benjamin, seiJed)ercedesM 4*th century ivory image of the :a !agrada $amiliaestimated to be worth over 4,,. =as the !heriMs actionin order> (672
S&GGES'E( ANS)ER*
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'o, the !heri ‟s action was not in order. e should not havelistened to Benjamin, the judgment obligeF creditor, in levying on
the properties of )ercedes, the judgment obligorFdebtor. %heoption to immediately choose which property or part thereof maybe levied upon, suicient to satisfy the judgment, is vested bylaw (1ule 6+, !ec. + (b2 upon the judgment obligor, )ercedes,not upon the judgment obligee, Benjamin, in this case. #nly if the udgment obligor does not e@ercise the option, is the!heri authoriJed to levy on personal properties if any, andthen on the real properties if the personal properties areinsuicient to answer for the judgment.
Pleadings- Counterclaim !011$%
(d2 A counterclaim is a pleading. (072
S&GGES'E( ANS)ER*%rue. A counterclaim is a pleading by which a defendingparty ma<es a claim against an opposing party (!ec. , 1ule, 1ules of Court2.
Pleadings- =otion !011$%
(c2 A motion is a pleading. (072
S&GGES'E( ANS)ER*
$alse. A motion is not a pleading but a mere application forrelief other than by a pleading (1ule 4, !ec. 4, 1ules of Court2.
Pleadings- =otions- Bill o Particulars !011,%
=ithin the period for Eling a responsive pleading, thedefendant Eled a motion for bill of particulars that he set forhearing on a certain date. owever, the defendant wassurprised to End on the date set for hearing that the trial courthad already denied the motion on the day of its Eling, statingthat the allegations of the complaint were suiciently made.
(a2 Did the judge gravely abuse his discretion in acting on themotion without waiting for the hearing set for the motion>
S&GGES'E( ANS)ER*
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improper venue as an issue after its Erst motion to dismiss wasdenied.
nder the Xomnibus motion ruleY (1ule 4, !ec. , 1ules of Court2 which governs the ban< ‟s motion to dismiss, such motionshould include all objections then available/ otherwise, allobjections not so included shall be deemed waived.
Although the improper venue became <nown only in the courseof the trial, the same should not be allowed to obstruct ordisturb the proceedings since venue of civil actions is deEnedfor the convenience of the parties, nay jurisdictional.
AL'ERNA'I:E ANS)ER* %he Xomnibus motion ruleY should not apply, because theimproper venue became <nown and thus available only to themovant ban< after the motions to dismiss were Eled andresolved by the court, and in the course of the trial of thecase. &n fairness to the defendant ban<, it should not beprecluded by the Xomnibus motion ruleY from raising objectionto the improper venue only when said ground for objectionbecame <nown to it.
%he court may not resolve the second motion to dismissprecisely because of the Xomnibus motion ruleY, since the ban< Eled an earlier motion to dismiss but did not raise the ground of improper venue, and subseHuently Eled an Answer wherein theimproper venue has not again been raised. ence, the Huestion of improper venue has become moot and academic.%he only grounds not barred by the Xomnibus motion ruleYare (a2 lac< of jurisdiction over the subject matter/ (b2 litispendencia/ and (c2 bar by prior judgment or by statute of
limitations.
(b2 !uppose Charisse did not raise the Lomnibus motion rule,Lcan the judge proceed to resolve the motion to dismiss>"@plain. (672
S&GGES'E( ANS)ER*
Qes, the judge can proceed to resolve the motion to dismiss,because the ground raised therefore became <nown to themovant only during the trial, such that it was only then that
the objection became available to him.
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(c2 !uppose the judge correctly denied the second motion todismiss and rendered judgment in favor of Charisse, ordering theban< to pay her 4, in damages plus legal interest. %he judgment became Enal and e@ecutory in 0. %o date,Charisse has not moved to e@ecute the judgment.
%he ban< is concerned that its liability will increase with thedelay because of the interest on the judgment award.
As counsel of the ban<, what move should you ta<e> (672
S&GGES'E( ANS)ER*
As counsel of the ban<, & shall recommend to the ban< as judgment obligor, to ma<e a tender of payment to the judgmentoblige and thereafter ma<e a consignation of the amount due byEling an application therefor placing the same at the disposal of the court which rendered the judgment (Arts. 40 and 40,Civil Code2.
Pleadings- Ans8er- (eense- S+ecic (enial !011>%
&n his complaint for foreclosure of mortgage to which was duly
attached a copy of the mortgage deed, plainti alleged inter alia
as followsN (42 that defendant DD duly e@ecuted the mortgage deed,copy of which is Anne@ LAL of the complaint and made an integral
part thereof/ and (02 that to prosecute his complaint, plainti
contracted a lawyer, CC, for a fee of .. &n his answer,
defendant alleged, inter alia, that he had no <nowledge of the
mortgage deed, and he also denied any liability for plaintis
contracting with a lawyer for a fee.
Does defendantRs answer as to plaintiMs allegation no. 4 as well as
no. 0 suiciently raise an issue of fact> 1eason brieGy. (72S&GGES'E( ANS)ER*
As to plaintis allegation no. 4, defendant does not suiciently
raise an issue of fact, because he cannot allege lac< of <nowledge
of the mortgage deed since he should have personal <nowledge as
to whether he signed it or not and because he did not deny under
oath the genuineness and due e@ecution of the mortgage deed,
which is an actionable document. As to plaintiMs allegation no. 0,
defendant did not properly deny liability as to plaintis contracting
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with a lawyer for a fee. e did not even deny for lac< of <nowledge.
(!ec. 4 of 1ule 2.
Pleadings- Certication Against /orum S4o++ing !0111%
As counsel for A, B, C and D, Atty. KQ prepared a complaint for
recovery of possession of a parcel of land against O. Before Elling
the complaint, KQ discovered that his clients were not available to
sign the certiEcation of non-forum shopping. %o avoid further
delays in the Eling of the complaint, KQ signed the certiEcation and
immediately Eled the complaint in court. &s KQ justiEed in signing
the certiEcation> =hy> (72
S&GGES'E( ANS)ER*
'#, counsel cannot sign the anti-forum shopping certiEcation
because it must be e@ecuted by the Xplainti or principal partyY
himself (!ec. , 1ule */ "@corpiJo v. niversity of Baguio, 6
!C1A +*, 54+++82, since the rule reHuires personal <nowledge by
the party e@ecuting the certiEcation, ':"!! counsel gives a good
reason why he is not able to secure his clientsM signatures and
shows that his clients will be deprived of substantial justice (#rtiJ
v. Court of Appeals, 0++ !C1A *, 54++82 or unless he isauthoriJed to sign it by his clients through a special power of
attorney.
Pleadings- Counterclaim against t4e Counsel o t4e Plainti@
!011>%
K Eled a suit for damages against DQ. &n his answer, DQ
incorporated a counterclaim for damages against K and AC,
counsel for plainti in said suit, alleging in said counterclaim, inter
alia, that AC, as such counsel, maliciously induced K to bring thesuit against DQ despite ACRs <nowledge of its utter lac< of factual
and legal basis. &n due time, AC Eled a motion to dismiss the
counterclaim as against him on the ground that he is not a proper
party to the case, he being merely plaintiMs counsel. &s the
counterclaim of DQ compulsory or not> !hould ACRs motion to
dismiss the counterclaim be granted or not> 1eason. (72
S&GGES'E( ANS)ER*
Qes. %he counterclaim of DQ is compulsory because it is one whicharises out of or is connected with the transaction or occurrence
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K Eles a complaint in the 1%C for the recovery of a sum of money
with damages against Q. Q Eles his answer denying liability under
the contract of sale and praying for the dismissal of the complainton the ground of lac< of cause of action because the contract of
sale was superseded by a contract of lease, e@ecuted and signed by
K and Q two wee<s after the contract of sale was e@ecuted. %he
contract of lease was attached to the answer. K does not Ele a reply.
=hat is the eect of the non-Eling of a reply> "@plain. (672
S&GGES'E( ANS)ER*
A reply is generally optional. &f it is not Eled, the new matters
alleged in the answer are deemed controverted. (!ec. 4 of 1ule 2.owever, since the contract of lease attached to the answer is the
basis of the defense, by not Eling a reply denying under oath the
genuineness and due e@ecution of said contract, the plainti is
deemed to have admitted the genuineness and due e@ecution
thereof. (!ecs. * and 1ule / %oribio v. Bidin, 460 !C1A 40
54+82.
Pre7udicial uestion- E7ectment vs. S+ecic Perormance
!0111%
BB Eles a complaint for ejectment in the )%Con the ground of non-
payment of rentals against 33. After two days, 33 Eles in the 1%C a
complaint against BB for speciEc performance to enforce the option
to purchase the parcel of land subject of the ejectment case. =hat
is the eect of 33Ms action on BBMs complaint> "@plain. (72
S&GGES'E( ANS)ER*
%here is no eect. %he ejectment case involves possession de facto
only. %he action to enforce the option to purchase will not suspendthe action of ejectment for non-payment of rentals. (=illman Auto
!upply Corp. v. Court of Appeals, 0 !C1A 4 54++082.
Pre'rial- ReDuirements !011"%
:ilio Eled a complaint in the )unicipal %rial Court of :anuJa for the
recovery of a sum against 3uan. %he latter Eled his answer to the
complaint serving a copy thereof on :ilio. After the Eling of the
answer of 3uan, whose duty is it to have the case set for pre-trial>
=hy> (72
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S&GGES'E( ANS)ER*
After the Eling of the answer of 3uan, the :A&'%&$$ has the duty
to promptly move e@ parte that the case be set for pre-trial. (!ec. 4,
1ule42. %he reason is that it is the plainti who <nows when the
last pleading has been Eled and it is the plainti who has the duty
to prosecute.
AL'ERNA'I:E ANS)ER*
&n the event the plainti Eles a reply, his duty to move that the case
be set for pre-trial arises after the reply has been served and Eled.
'rial- Court o A++eals as 'rial Court !011,%
;ive at least three instances where the Court of Appealsmay act as a trial court>
S&GGES'E( ANS)ER*
%he Court of Appeals may act as a trial court in the following
instancesN
(42 &n annulment of judgments (!ec. V , 1ule *2
(02 =hen a motion for new trial is granted by the Court of Appeals (!ec. ,1ule 62
(62 A petition for abeas Corpus shall be set for hearing +!ec. 40,1ule 402
(2 %o resolve factual issues in cases within its original andappellate jurisdiction (!ec. 40, 1ule 402(2 &n cases of new trial based on newly discovered evidence(!ec. 4, 1ule 40 of the 1ules on Criminal rocedure2.
(2 &n Cases involving claims for damages arising from provisionalremedies
(*2 &n Amparo proceedings (A.). 'o. *-+-40-!C2
Provisional Remedies !"###%
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=hat are the provisional remedies under the rules> (072
S&GGES'E( ANS)ER*
%he provisional remedies under the rules are preliminary
attachment, preliminary injunction, receivership, replevin, and
support pendente lite. (1ules * to 4, 1ules of Court2.
Provisional Remedies- Attac4ment !01">%
-a%ani, an overseas wor<er based in Dubai, issued in favorof &$en#e, a special power of attorney to sell his house and
lot. &$en#e was able to sell the property but failed to remit theproceeds to -a%ani, as agreed upon. #n his return to thehilippines, -a%ani, by way of a demand letter duly receivedby &$en#e, sought to recover the amount due him. &$en#e failed toreturn the amount as he had used it for the construction of his ownhouse.
%hus, -a%ani Eled an action against &$en#e for sum of money withmages. -a%ani subseHuently Eled an e2ar#e motion for theissuance of a writ of preliminary attachment duly supported by an Aidavit. %he court granted the e2ar#e motion and issued a writ
of preliminary attachment upon -a%aniMs posting of the reHuiredbond. -a%ani prayed that the courtMs sheri be deputiJed to serveand implement the writ of attachment. #n 'ovember 4+, 046, the!heri served upon &$en#e the writ of attachment and levied onthe latterMs house and lot. #n 'ovember 0, 046, the !heriserved on &$en#e summons and a copy of the complaint. #n'ovember 00, 046, &$en#e Eled an &nswer wi# 'o#ion #o :iscar$e #e *ri# of &##acmen# alleging that at the time the writof preliminary attachment was issued, he has not been served withsummons and, therefore, it was improperly issued. !>?%
!A% &s &$en#e correct> S&GGES'E( ANS)ER*
'o, Agente is not correct.
nder the 1ules of Civil rocedure, a writ of attachment may issueeven before service of summons upon the defendant. (!0 1*2.
!B% =as the writ of preliminary attachment properly e@ecuted>
S&GGES'E( ANS)ER*'o, the writ of preliminary attachment not properly e@ecuted.
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nder ! 1*, no levy on preliminary attachment shall beenforced unless there is prior or simultaneous service of thesummons and the accompanying papers. (! 1 %he !upreme Courthas held that subseHuent service of summons will not cure theirregularity that attended the enforcement of the writ (#nate v. Abrogar, 06 $ebruary 4++2.
ere the sheri levied upon the house and lot prior to the serviceof the summons and the complaint upon Agente. ence the writ ofpreliminary attachment was not properly e@ecuted. %hesubseHuent service of summons and the complaint did not cure theirregularity in the enforcement of the writ.
Provisional Remedies- Attac4ment !"###%
&n a case, the property of an incompetent under guardianship was
in custodia legis. Can it be attached> "@plain. (072
S&GGES'E( ANS)ER*
Although the property of an incompetent under guardianship is in
custodia legis, it may be attached as in fact it is provided that in
such case, a copy of the writ of attachment shall be Eled with the
proper court and notice of the attachment served upon the
custodian of such property. (!ec. *, last par., 1ule *2
Provisional Remedies- Attac4ment !"###%
)ay damages be claimed by a party prejudiced by a wrongful
attachment even if the judgment is adverse to him> "@plain. (072
S&GGES'E( ANS)ER*
Qes, damages may be claimed by a party prejudiced by a wrongful
attachment even if the judgment is adverse to him. %his is
authoriJed by the 1ules. A claim, for damages may be made onaccount of improper, irregular or e@cessive attachment, which shall
be heard with notice to the adverse party and his surety or
sureties. (!ec. 0, 1ule */ 3avellana v. D. #. laJa "nterprises &nc.,
60 !C1A 04.2
Provisional Remedies- Attac4ment !011"%
)ay a writ of preliminary attachment be issued e@-parte> BrieGy
state the reason(s2 for your answer. (672
!;;"!%"D A'!="1N
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Qes, an order of attachment may be issued e@-parte or upon motion
with notice and hearing. (!ec. 0 of 1ule *2 %he reason why the
order may be issued e@ parte isN that reHuiring notice to theadverse party and a hearing would defeat the purpose of the
provisional remedy and enable the adverse party to abscond or
dispose of his property before a writ of attachment issues.
()indanao !avings and :oan Association, &nc. v. Court of Appeals,
4*0 !C1A 2.
Provisional Remedies- Attac4ment !011<%
?aty Eled an action against %yrone for collection of the sum of 4
)illion in the 1%C, with an e@-parte application for a writ of preliminary attachment. pon posting of an attachment bond, the
court granted the application and issued a writ of preliminary
attachment. Apprehensive that %yrone might withdraw his savings
deposit with the ban<, the sheri immediately served a notice of
garnishment on the ban< to implement the writ of preliminary
attachment. %he following day, the sheri proceeded to %yroneRs
house and served him the summons, with copies of the complaint
containing the application for writ of preliminary attachment,
?atyRs aidavit, order of attachment, writ of preliminaryattachment and attachment bond.
=ithin Efteen (42 days from service of the summons, %yrone Eled a
motion to dismiss and to dissolve the writ of preliminary
attachment on the following groundsN (i2 the court did not acHuire
jurisdiction over his person because the writ was served ahead of
the summons/ (ii2 the writ was improperly implemented/ and (iii2
said writ was improvidently issued because the obligation in
Huestion was already fully paid. 1esolve the motion with reasons.
(72
S&GGES'E( ANS)ER*
%he motion to dismiss and to dissolve the writ of preliminary
attachment should be denied.
(42 %he fact that the writ of attachment was served ahead of the
summons did not aect the jurisdiction of the court over his person.
&t ma<es the writ, unenforceable. (!ec. , 1ule. *2 owever, all
that is needed to be done is to re-serve the writ. (#nate v. Abrogar,;). 'o. 4+*6+6, $ebruary 06, 4+2
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(02 %he writ was improperly implemented. !erving a notice of
garnishment, particularly before summons is served, is not proper.
&t should be a copy of the writ of attachment that should be servedon the defendant, and a notice that the ban< deposits are attached
pursuant to the writ. (!ec. *5d8, 1ule *2
(62 %he writ was improvidently issued if indeed it can be shown that
the obligation was already fully paid. %he writ is only ancillary to
the main action. (!ec. 46, 1ule *2 %he alleged payment of the
account cannot, serve as a ground for resolving the improvident
issuance of the writ, because this matter delves into the merits of
the case, and reHuires full-blown trial. ayment, however, serves as
a ground for a motion to dismiss.
)rit or Preliminary Attac4ment !01">%
As a rule, courts may not grant an application for provisionalremedy without complying with the reHuirements of notice andhearing. %hese reHuirements, however, may be dispensed with inan application forN !"?% !A% writ of preliminary injunction!B% writ for preliminary attachment!C% an order granting support 2en!en#e li#e!(% a writ of replevin
A'!="1N
(B2 writ for preliminary attachment
Provisional Remedies- Attac4ment vs. Garnis4ment !"###%
Distinguish attachment from garnishment. (072
S&GGES'E( ANS)ER*
Attachment and garnishment are distinguished from each other as
followsN A%%AC)"'% is a provisional remedy that eects a levy
on property of a party as security for the satisfaction of any
judgment that may be recovered, while ;A1'&!)"'% is a levy
on debts due the judgment obligor or defendant and other credits,
including ban< deposits, royalties and other personal property not
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)ay a 1egional %rial Court issue injunction without bond> (072
S&GGES'E( ANS)ER*
Qes, if the injunction that is issued is a Enal injunction. ;enerally,
however, preliminary injunction cannot issue without bond unless
e@empted by the trial court (!ec. 5b8 of 1ule 2.
Provisional Remedies- In7unctions- ReDuisites !0113%
=hat are the reHuisites for the issuance of (a2 a writ of preliminary
injunction/ and (b2 a Enal writ of injunction> 1eHuisites for the
issuance of aN
S&GGES'E( ANS)ER*
a. =rit of reliminary &njunction (!ec. , 1ule 4++* 1ules of
Civil rocedure2 are ]
(42 A veriEed complaint showing/
(02 %he e@istence of a right in :esse/
(62 9iolation or threat of violation of such right/
(2 Damages or injuries sustained or that will be sustained by
reason of such violation/
(2 'otice to all parties of raIe and of hearing/
(2 earing on the application/
(*2 $iling of an appropriate bond and service thereof.
S&GGES'E( ANS)ER*
b. =hile a Enal writ of injunction may be rendered by judgment
after trial, showing applicant to be entitled to the writ (!ec. +, 1ule
4++* 1ules of Civil rocedure2.
Provisional Remedies- Receivers4i+ !011"%
3oaHuin Eled a complaint against 3ose for the foreclosure of a
mortgage of a furniture factory with a large number of machinery
and eHuipment. During the pendency of the foreclosure suit,
3oaHuin learned from reliable sources that 3ose was Huietly and
gradually disposing of some of his machinery and eHuipment to a
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businessman friend who was also engaged in furniture
manufacturing such that from conErmed reports 3oaHuin gathered,
the machinery and eHuipment left with 3ose were no longersuicient to answer for the latterMs mortgage indebtedness. &n the
meantime judgment was rendered by the court in favor of 3oaHuin
but the same is not yet Enal.
?nowing what 3ose has been doing. &f you were 3oaHuinMs lawyer,
what action would you ta<e to preserve whatever remaining
machinery and eHuipment are left with 3ose> =hy> (72
S&GGES'E( ANS)ER*
%o preserve whatever remaining machinery and eHuipment are left
with 3ose, 3oaHuinMs lawyer should Ele a veriEed application for the
appointment by the court of one or more receivers. %he 1ules
provide that receivership is proper in an action by the mortgagee
for the foreclosure of a mortgage when it appears that the property
is in danger of being wasted or dissipated or materially injured and
that its value is probably insuicient to discharge the mortgage
debt. (!ec. 4 of 1ule +2.
Provisional Remedies- Re+levin !"###%
=hat is 1eplevin> (072
S&GGES'E( ANS)ER*
1eplevin or delivery of personal property consists in the delivery,
by order of the court, of personal property by the defendant to the
plainti, upon the Eling of a bond. (Calo v. 1oldan, * hil.
54+82
Provisional Remedies- Su++ort Pendente Lite !"###%
Before the 1%C, A was charged with rape of his 4-year old
daughter. During the pendency of the case, the daughter gave
birth to a child allegedly as a conseHuence of the rape. %hereafter,
she as<ed the accused to support the child, and when he refused,
the former Eled a petition for support pendente lite. %he accused,
however, insists that he cannot be made to give such support
arguing that there is as yet no Ending as to his guilt. =ould you
agree with the trial court if it denied the application for support
pendente lite> "@plain. (072
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temporary restraining order. &s the temporary restraining order
valid> =hy> (72
S&GGES'E( ANS)ER*
'o. &t is only the "@ecutive 3udge who can issue immediately a
temporary restraining order eective only for seventy-two (*02
hours from issuance. 'o other 3udge has the right or power to
issue a temporary restraining order e@ parte. %he 3udge to whom
the case is assigned will then conduct a summary hearing to
determine whether the temporary restraining order shall be
e@tended, but in no case beyond 0 days, including the original
*0Shour period. (!ec. of 1ule 2
AL'ERNA'I:E ANS)ER*
%he temporary restraining order is not valid because the Huestion
does not state that the matter is of e@treme urgency and the
applicant will suer grave injustice and irreparable injury. (!ec.
of 1ule 2
Provisional Remedies- 'R2 !0113%
DeEne a temporary restraining order (%1#2. (072
S&GGES'E( ANS)ER*
A temporary restraining order is an order issued to restrain the
opposite party and to maintain the status Huo until a hearing for
determining the propriety of granting a preliminary injunction (!ec.
5c8 and 5d8, 1ule ,4++* 1ules of Civil rocedure2.
Provisional Remedies- 'R2 vs. Status uo 2rder !0113%
Dierentiate a %1# from a status Huo order. (072
S&GGES'E( ANS)ER*
A status Huo order (!P#2 is more in the nature of a cease and
desist order, since it does not direct the doing or undoing of acts,
as in the case of prohibitory or mandatory injunctive relief. A %1#
is only good for 0 days if issued by the 1%C/ days if issued by
the CA/ until further notice if issued by the !C. %he !P# is without
any prescriptive period and may be issued without a bond. A %1#
dies a natural death after the allowable period/ the !P# does not. A
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%1# is provisional. !P# lasts until revo<ed. A %1# is not
e@tendible, but the !P# may be subject to agreement of the
parties.
Provisional Remedies- 'R2- CA Justice (e+t. !0113%
)ay a justice of a Division of the Court of Appeals issue a %1#>
(072
S&GGES'E( ANS)ER*
Qes, a justice of a division of the Court of Appeals may issue a %1#,
as authoriJed under 1ule and by !ection , 1ule &9 of the &1CA
which additionally reHuires that the action shall be submitted onthe ne@t wor<ing day to the absent members of the division for the
ratiEcation, modiEcation or recall (eirs of the late 3ustice 3ose B.:.
1eyes v. Court of Appeals, ;.1. 'os. 460-0, 'ovember 4,
02.
Provisional Remedies- 'R2- (uration !0113%
=hat is the duration of a %1# issued by the "@ecutive 3udge of a
1egional %rial Court> (072
S&GGES'E( ANS)ER*
&n cases of e@treme urgency, when the applicant will suer grave
injustice and irreparable injury, the duration of a %1# issued e@
parte by an "@ecutive 3udge of a 1egional %rial Court is *0 hours
(0nd par. of !ec. , 1ule 4++* 1ules of Civil rocedure2. &n the
e@ercise of his regular functions over cases assigned to his sala, an
"@ecutive 3udge may issue a %1# for a duration not e@ceeding a
total of 0 days.
Reglementary Period- Su++lemental Pleadings !0111%
%he 1%C rendered judgment against !%, copy of which was
received by his counsel on $ebruary 0, 0. #n )arch 4, 0,
!%, through counsel, Eled a motion for reconsideration of the
decision with notice to the Cler< of Court submitting the motion for
the consideration of the court. #n )arch 4, 0, realiJing that
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the )otion lac<ed a notice of hearing, !%Ms counsel Eled a
supplemental pleading.
=as the motion for 1econsideration Eled within the reglementary
period> "@plain. (72
S&GGES'E( ANS)ER*
Qes, because the last day of Eling a motion for reconsideration was
)arch 4 if $ebruary had 0 days or )arch 4 if $ebruary had 0+
days. Although the original motion for reconsideration was
defective because it lac<ed a notice of hearing, the defect was
cured on time by its Eling on )arch 4 of a supplemental pleading,
provided that motion was set for hearing and served on the adverse
party at least three (62 days before the date of hearing.(!ec. , 1ule
42.
AL'ERNA'I:E ANS)ER*
!ince the supplemental pleading was not set for hearing, it did not
cure the defect of the original motion.
Remedies- Annulment o Judgment !01">%
0om *allis Eled with the 1egional %rial Court ( R0C2 a etition forDeclaration of 'ullity of his marriage with :ebi *allis on theground of psychological incapacity of the latter. Before Eling thepetition, 0om *allis had told :ebi *allis that he wanted theannulment of their marriage because he was already fed up withher irrational and eccentric behavior. owever, in the petition fordeclaration of nullity of marriage, the correct residential addressof :ebi *allis was deliberately not alleged and instead, theresidential address of their married son was stated. !ummons wasserved by substituted service at the address stated in the petition.$or failure to Ele an answer, :ebi *allis was declared in!efaul# and 0om *allis presented evidence e2ar#e. %he 1%Crendered judgment declaring the marriage null and void on theground of psychological incapacity of :ebi *allis. %hree (62 yearsafter the 1%C judgment was rendered, :ebi *allis got hold of acopy thereof and wanted to have the 1%C judgment reversed andset aside.
&f you are the lawyer of :ebi *allis, what judicial remedy orremedies will you ta<e> Discuss and specify the ground or grounds
for said remedy or remedies.!<?%
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S&GGES'E( ANS)ER*
&f & were the lawyer of Debi =allis, the judicial remedy & would
ta<e is to Ele with the Court of Appeals an action for annulment of the 1%C judgment under 1ule *. An action for annulment of judgment may be resorted to since the remedies of appeal andpetition for relief are no longer available through no fault of Debi=allis. (!4 1*2.
%he ground for annulment of judgment would be lac< of jurisdiction. :ac< of jurisdiction also covers lac< of jurisdictionover the person of the defendant since the judgment would be void. (4 $:#1"'O D. 1";A:AD#, 1")"D&A: :A=C#)"'D&) 5*th rev. ed., 6rd printing82.
ere the court did not acHuire jurisdiction over the person of Debisince there was no valid substituted service of summons.!ubstituted service of summons should have been made at DebiMsresidence. (!* 142. ence the judgment of the 1%C was void.!ince the judgment is void, the petition for annulment thereof isimprescriptible. (!6 1*2.
$urthermore, default judgments are not allowed in declaration of nullity of marriage. (!65e8 1+2. ence the trial courtMs rendition of a default judgment was made with grave abuse of discretionamounting to lac< of jurisdiction.
Remedies- A++eal to SC- A++eals to CA !0110%
a2 =hat are the modes of appeal to the !upreme Court> (072
b2 Comment on a proposal to amend 1ule 400, !ection 0(b2, in
relation to !ection 6(c2, of the 1evised 1ules of Criminal rocedure
to provide for appeal to the Court of Appeals from the decisions of
the 1%C in criminal cases, where the penalty imposed is reclusion
perpetua or life imprisonment, subject to the right of the accused
to appeal to the !upreme Court. (672
S&GGES'E( ANS)ER*
A. %he modes of appeal to the !upreme Court areN (a2 A"A: BQ
C"1%A1& on pure Huestions of law under 1ule through a
petition for review on certiorari/ and (b2 #1D&'A1Q A"A: in
criminal cases through a notice of appeal from convictions
imposing reclusion perpetua or life imprisonment or where a lesser
penalty is involved but for oenses committed on the same
occasion or which arose out of the same occurrence that gave rise
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to the more serious oense. (1ule 400, sec. 62 Convictions imposing
the death penalty are elevated through automatic review.
B. %here is no constitutional objection to providing in the 1ules of
Court for an appeal to the Court of Appeals from the decisions of
the 1%C in criminal cases where the penalty imposed is reclusion
perpetua or life imprisonment subject to the right of the accused to
appeal to the !upreme Court, because it does not deprive the
!upreme Court of the right to e@ercise ultimate review of the
judgments in such cases.
Remedies- A++eal ='C to CA !01">%
=hen a )unicipal %rial Court ( '0C2, pursuant to its delegated jurisdiction, renders an adverse judgment in an application for landregistration, the aggrieved partyMs remedy isN !"?%!A% ordinary appeal to the 1egional %rial Court!B% petition for review on cer#iorari to the !upreme Court!C% ordinary appeal to the Court of Appeals!(% petition for review to the Court of Appeals
S&GGES'E( ANS)ER*
(C2 (See !ec. 6, B.. Blg. 40+2
Remedies- A++eal- R'C to CA !"###%
=hen is an appeal from the 1%C to the Court of Appeals
deemed perfected> (07\
KKK received a copy of the 1%C decision on 3une +, 4+++/ QQQ
received it on the ne@t day, 3une 4, 4+++. KKK Eled a 'otice of
Appeal on 3une 4, 4+++. %he parties entered into a compromise on
3une 4, 4+++. #n 3une 46, 4+++, QQQ, who did not appeal, Eledwith the 1%C a motion for approval of the Compromise Agreement.
KKK changed his mind and opposed the motion on the ground that
the 1%C has no more jurisdiction. 1ule on the motion assuming that
the records have not yet been forwarded to the CA. (072
S&GGES'E( ANS)ER*
An appeal from the 1%C to the Court of Appeals is deemed
perfected as to the appellant upon the Eling of a notice of appeal in
the 1%C in due time or within the reglementary period of appeal.
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An appeal by record on appeal is deemed perfected as to the
appellant with respect to the subject matter thereof upon the
approval of the record on appeal Eled in due time. (!ec. +, 1ule 42
%he contention of KKK that the 1%C has no more jurisdiction
over the case is not correct because at the time that the motion to
approve the compromise had been Eled, the period of appeal of QQQ
had not yet e@pired. Besides, even if that period had already
e@pired, the records of the case had not yet been forwarded to the
Court of Appeals. %he rules provide that in appeals by notice of
appeal, the court loses jurisdiction over the case upon the
perfection of the appeals Eled in due time and the e@piration of the
time to appeal of the other parties. (!ec. +, third par., 1ule 42
%he rules also provide that prior to the transmittal of the record,
the court may, among others, approve compromises. (!ec. +, Efth
par., 1ule 42 ('oteN 3une 46, the date of the Eling of the motion for
approval of the Compromise Agreement, appears to be a clerical
error2
Remedies- A++eal- Rule >< vs. Rule 3< !"###%
a2 Distinguish a petition for certiorari as a mode of appeal froma special civil action for certiorari. (072
b2 )ay a party resort to certiorari when appeal is still available>
"@plain. (072
S&GGES'E( ANS)ER*
a. A "%&%&#' $#1 1"9&"= #' C"1%A1& as a mode of appeal
may be distinguished from a special civil action for certiorari in
that the petition for certiorari as a mode of appeal is governed by
1ule and is Eled from a judgment or Enal order of the 1%C, the
!andiganbayan or the Court of Appeals, within Efteen (42 days
from notice of the judgment appealed from or of the denial of the
motion for new trial or reconsideration Eled in due time on
Huestions of law only (!ecs. 4 and 02/ !"C&A: C&9&: AC%&#' $#1
C"1%A1& is governed by 1ule and is Eled to annul or modify
judgments, orders or resolutions rendered or issued without or in
e@cess of jurisdiction or with grave abuse of discretion tantamount
to lac< or e@cess of jurisdiction, when there is no appeal nor any
plain, speedy and adeHuate remedy in the ordinary course of law, to
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be Eled within si@ty (2 days from notice of the judgment, order or
resolution subject of the petition. (!ecs. 4 and .2
A((I'I2NAL ANS)ER*
42 &n appeal by certiorari under 1ule , the petitioner and
respondent are the original parties to the action and the lower
court is not impleaded. &n certiorari, under 1ule , the lower court
is impleaded.
02 &n appeal by certiorari, the Eling of a motion for reconsideration
is not reHuired, while in the special civil action of certiorari, such a
motion is generally reHuired.
S&GGES'E( ANS)ER*
b. '#, because as a general rule, certiorari is proper if there is no
appeal (!ec. 4 of 1ule .2 owever, if appeal is not a speedy and
adeHuate remedy, certiorari may be resorted to. ("chaus v. Court of
Appeals, 4++ !C1A 64.2 Certiorari is sanctioned, even if appeal is
available, on the basis of a patent, capricious and whimsical
e@ercise of discretion by a trial judge as when an appeal will not
promptly relieve petitioner from the injurious eects of the
disputed order (9asHueJ vs. 1obilla-Alenio, 0*4 !C1A *2
Remedies- :oid (ecision- Pro+er Remedy !011>%
After plainti in an ordinary civil action before the 1%C/ OO has
completed presentation of his evidence, defendant without prior
leave of court moved for dismissal of plaintis complaint for
insuiciency of plaintiMs evidence. After due hearing of the motion
and the opposition thereto, the court issued an order, reading as
followsN %he Court hereby grants defendantRs motion to dismiss and
accordingly orders the dismissal of plaintiMs complaint, with the
costs ta@ed against him. &t is so ordered.L &s the order of dismissal
valid> )ay plainti properly ta<e an appeal> 1eason. (72
S&GGES'E( ANS)ER*
%he order or decision is void because it does not state Endings of
fact and of law, as reHuired by !ec. 4, Article 9&&& of the
Constitution and !ec. 4, 1ule 6. Being void, appeal is not
available. %he proper remedy is certiorari under 1ule .
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AN2';ER ANS)ER*
"ither certiorari or ordinary appeal may be resorted to on the
ground that the judgment is void. Appeal, in fact, may be the more
e@pedient remedy.
AL'ERNA'I:E ANS)ER*
Qes. %he order of dismissal for insuiciency of the plaintis
evidence is valid upon defendantRs motion to dismiss even without
prior leave of court. (!ec. 4 of 1ule 662. Qes, plainti may properly
ta<e an appeal because the dismissal of the complaint is a Enal and
appealable order. owever, if the order of dismissal is reversed on
appeal, the plainti is deemed to have waived his right to present
evidence. (&d.2
I:. SPECIAL CI:IL AC'I2NS
S+ecial Civil Action- E7ectment !"##$%
#n 4 3anuary 4++, K leased the warehouse of A under a lease
contract with a period of Eve years. #n 3une 4++, A Eled an
unlawful detainer case against K without a prior demand for K to
vacate the premises.
(a2 Can K contest his ejectment on the ground that there was noprior demand for him to vacate the premises>
(b2 &n case the )unicipal %rial Court renders judgment in favor of
A, is the judgment immediately e@ecutory>
S&GGES'E( ANS)ER*
(a2 Qes. K can contest his ejectment on the ground that there was
no prior demand to vacate the premises. (!ec. 0 of 1ule */ Casilan
vs.%omassi l !C1A 04/ &esaca vs.Cuevas. 40 !C1A 662.
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(b2 Qes, because the judgment of the )unicipal %rial Court against
the defendant K is immediately e@ecutory upon motion unless an
appeal has been perfected, a supersedeas bond has been Eled andthe periodic deposits of current rentals. &f any, as determined by
the judgment will be made with the appellate court. (!ec. of
former 1ule */ !ec. 4+ of new 1ule *2.
AL'ERNA'I:E ANS)ER*
(a2 Qes, K can contest his ejectment on the ground that since he
continued enjoying the thing leased for Efteen days after the
termination of the lease on 3anuary +, 4++ with the acHuiescence
of the lessor without a notice to the contrary, there was an&):&"D '"= :"A!". (Art. 4*. Civil Code2.
S+ecial Civil Action- E7ectment !"##,%
&n an action for unlawful detainer in the )unicipal %rial Court
()%C2, defendant K raised in his Answer the defense that plainti A
is not the real owner of the house subject of the suit. K Eled a
counterclaim against A for the collection of a debt of , plus
accrued interest of 4, and attorneyRs fees of 0,.
4. &s KRs defense tenable> 5678
0. Does the )%C have jurisdiction over the counterclaim> 5078
S&GGES'E( ANS)ER*
4. 'o. KRs defense is not tenable if the action is Eled by a lessor
against a lessee. owever, if the right of possession of the plainti
depends on his ownership then the defense is tenable.
0. %he counterclaim is within the jurisdiction of the )unicipal %rialCourt which does not e@ceed 4,, because the principal
demand is ,, e@clusive of interest and attorneyRs fees. (!ec.
66, B.. Big. 40+, as amended.2 owever, inasmuch as all actions of
forcible entry and unlawful detainer are subject to summary
procedure and since the counterclaim is only permissive, it cannot
be entertained by the )unicipal Court. (1evised 1ule on !ummary
rocedure.2
S+ecial Civil Action- /oreclosure !0116%
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A borrowed from the Development Ban< of the hilippines (DB2
the amount of 4 million secured by the titled land of his friend B
who, however, did not assume personal liability for the loan. A defaulted and DB Eled an action for judicial foreclosure of the real
estate mortgage impleading A and B as defendants. &n due course,
the court rendered judgment directing A to pay the outstanding
account of 4. million (principal plus interest2 to the ban<. 'o
appeal was ta<en by A on the Decision within the reglementary
period. A failed to pay the judgment debt within the period
speciEed in the decision. ConseHuently, the court ordered the
foreclosure sale of the mortgaged land. &n that foreclosure sale, the
land was sold to the DB for 4.0 million. %he sale wassubseHuently conErmed by the court, and the conErmation of the
sale was registered with the 1egistry of Deeds on 3anuary 00.
#n 4 3anuary 06, the ban< Eled an e@-parte motion with the
court for the issuance of a writ of possession to oust B from the
land. &t also Eled a deEciency claim for ,. against A and
B. the deEciency claim was opposed by A and B.
(a2 1esolve the motion for the issuance of a writ of possession.
(b2 1esolve the deEciency claim of the ban<. 7
S&GGES'E( ANS)ER*
(a2 &n judicial foreclosure by ban<s such as DB, the mortgagor or
debtor whose real property has been sold on foreclosure has the
right to redeem the property sold within one year after the sale (or
registration of the sale2. owever, the purchaser at the auction sale
has the right to obtain a writ of possession after the Enality of the
order conErming the sale. (!ec. 6 of 1ule / !ec. * of 1A *+4.
%he ;eneral Ban<ing :aw of 02. %he motion for writ of possession, however, cannot be Eled e@ parte. %here must be a
notice of hearing.
(b2 %he deEciency claim of the ban< may be enforced against the
mortgage debtor A, but it cannot be enforced against B, the owner
of the mortgaged property, who did not assume personal liability
for the loan.
/oreclosure- Certication Against Non /orum S4o++ing
!011$%
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(a2 1C Eled a complaint for annulment of the foreclosure saleagainst Ban< 9. &n its answer, Ban< 9 set up a counterclaimfor actual damages and litigation e@penses. 1C Eled a motionto dismiss the counterclaim on the ground that Ban< 9Ms Answer with counterclaim was not accompanied by acertiEcation against forum shopping. 1ule. (72
S&GGES'E( ANS)ER*
A certiEcation against forum shopping is reHuired only ininitiatory pleadings. &n this case, the counterclaim pleaded inthe defendant’s Answer appears to have arisen from theplainti ‟s complaint or compulsory in nature and thus, may not
be regarded as an initiatory pleading.%he absence thereof in the Ban< ’s Answer is not a fataldefect. %herefore, the motion to dismiss on the ground raisedlac<s merit and should be denied (!% v. !uria, 0+ !C1A 6054++82.#n the other hand, if the counterclaim raised by thedefendant Ban< ’s Answer was not predicated on theplainti ’s claim or cause of action, it is considered a permissivecounterclaim. &n which case, tit would parta<e an initiatorypleading which reHuires a certiEcation against forum shopping.
Correspondingly, the motion to dismiss based on lac< of thereHuired certiEcate against forum shopping should be granted.
S+ecial Civil Action- Petition or Certiorari !0110%
%he defendant was declared in default in the 1%C for his failure to
Ele an answer to a complaint for a sum of money. #n the basis of
the plaintiMs e@ parte presentation of evidence, judgment by
default was rendered against the defendant. %he default judgment
was served on the defendant on #ctober 4, 04. #n #ctober 4,
04, he Eles a veriEed motion to lift the order of default and to set
aside the judgment. &n his motion, the defendant alleged that,
immediately upon receipt of the summon, he saw the plainti and
confronted him with his receipt evidencing his payment and that
the plainti assured him that he would instruct his lawyer to
withdraw the complaint. %he trial court denied the defendantMs
motion because it was not accompanied by an aidavit of merit.
%he defendant Eled a special civil action for certiorari under 1ule
challenging the denial order.
A. &s certiorari under 1ule the proper remedy> =hy> (072
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B. Did the trial court abuse its discretion or act without or in e@cess
of its jurisdiction in denying the defendantMs motion to lift the order
of default judgment> =hy> (672
S&GGES'E( ANS)ER*
A. %he petition for certiorari under 1ule Eled by the defendant is
the proper remedy because appeal is not a plain, speedy and
adeHuate remedy in the ordinary course of law. &n appeal, the
defendant in default can only Huestion the decision in the light of
the evidence of the plainti. %he defendant cannot invo<e the
receipt to prove payment of his obligation to the plainti.
AL'ERNA'I:E ANS)ER*
A. nder ordinary circumstances, the proper remedy of a party
wrongly declared in default is either to appeal from the judgment
by default or Ele a petition for relief from judgment. 53ao, &nc. v.
Court of Appeals, 04 !C1A 6+4 (4++2
S&GGES'E( ANS)ER*
B. Qes, the trial court gravely abused its discretion or acted without
or in e@cess of jurisdiction in denying the defendantMs motionbecause it was not accompanied by a separate aidavit of merit. &n
his veriEed motion to lift the order of default and to set aside the
judgment, the defendant alleged that immediately upon the receipt
of the summons, he saw the plainti and confronted him with his
receipt showing payment and that the plainti assured him that he
would instruct his lawyer to withdraw the complaint. !ince the
good defense of the defendant was already incorporated in the
veriEed motion, there was not need for a separate aidavit of
merit. 5CapuJ v. Court of Appeals, 066 !C1A *4 (4++2/ )ago v.Court of Appeals, 66 !C1A (4+++28.
S+ecial Civil Action Certiorari- Petition or Certiorari Rule3< !01"0%
(a2 After an information for rape was Eled in the 1%C, theD#3 !ecretary, acting on the accusedRs petition for review,reversed the investigating prosecutorRs Ending of probable cause.pon order of the D#3 !ecretary, the trial prosecutor Eled a)otion to =ithdraw &nformation which the judge granted. %heorder of the judge stated only the followingN
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LBased on the review by the D#3 !ecretary of the Endings of the investigating prosecutor during the preliminaryinvestigation, the Court agrees that there is no suicientevidence against the accused to sustain the allegation in theinformation. %he motion to withdraw &nformation is, therefore,granted.L
&f you were the private prosecutor, what should you do>"@plain. (72
S&GGES'E( ANS)ER*
&f & were the private prosecutor, & would Ele a petition forcertiorari under 1ule with the Court of Appeals (CereJo vs.eople, ;.1. 'o.406, 3une 4, 0442.
&t is well-settled that when the trial court is confronted with amotion to withdraw and &nformation (on the ground of lac< of probable cause to hold the accused for trial based on resolutionof the D#3 !ecretary2, the trial court has the duty to ma<e anindependent ssessment of the merits of the motion. &t mayeither agree or disagree with the recommendation of the!ecretary. 1eliance alone on the resolution of the !ecretary
would be an abdication of the trial court‟s duty and jurisdiction to determine a prima facie case. %he court mustitself be convinced that there is indeed no suicient evidenceagainst the accused. #therwise, the judge acted with grave abuseof discretion if he grants the )otion to =ithdraw &nformation bythe trial prosecutor. (arold %amargo vs. 1omulo Awingan et.al. ;.1. 'o. 4***0*, 3anuary 4+, 042.
AL'ERNA'I:E ANS)ER*
&f & were the private prosecutor, & would Ele a )otion for1econsideration of the #rder of the trial court. if the samehas been denied, & would Ele a petition for review oncertiorari under 1ule on pure Huestion of law, whichactually encompasses both the criminal and civil aspectsthereof. %he Eling of the petition is merely a continuation of theappellate process.
Certiorari- Petition or Certiorari- Contem+t !01"0%
)r. !heri attempts to enforce a =rit of "@ecution against K,
a tenant in a condominium unit, who lost in an ejectmentcase. K does not want to budge and refuses to leave. Q, the
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winning party, moves that K be declared in contempt and afterhearing, the court held K guilty of indirect contempt. &f youwere KRs lawyer, what would you do> =hy> (72
S&GGES'E( ANS)ER* &f & were K’s :awyer, & would Ele a petition for certiorariunder 1ule . %he judge should not have acted on QMs motionto declare K in contempt. %he charge of indirect contempt isinitiated through a veriEed petition. (1ule *4, !ec. , 1ules of Court2. %he writ was not directed to K but to the sheri whowas directed to deliver the property to Q. As the writ did notcommand the judgment debtor to do anything, he cannot be
guilty of the facts described in 1ule *4 which isXdisobedience of or resistance to a lawful writ, process, order, judgment, or command any court.Y the proper procedure isfor the sheri to oust K availing of the assistance of peaceoicers pursuant to !ection 4 (c2 of 1ule 6+ (:ipa vs.%utaan, :-46, 0+ !eptember 4+6/ )edina vs. ;arces, :-0+06, 3uly 4, 4+/ ascua vs. eirs of !egundo !imeon,44 !C1A 4/ atagan et. al. 9s. anis, ;.1. 'o. 6, April , 4+2.
&s a petition for mandamus an appropriate remedy to enforce
contractual obligations> (72
S&GGES'E( ANS)ER*
'o, the petition for mandamus is not an appropriate remedy
because it is not available to enforce a contractual obligation.
)andamus is directed only to ministerial acts, directing or
commanding a person to do a legal duty (C#)":"C v. Puijano-
adilla, ;.1. 'o. 44++0, !eptember 4, 00/ !ec. 6, 1ule 2.
S+ecial Civil Action- uo )arranto !011"%
A group of businessmen formed an association in Cebu City calling
itself Cars C. to distribute F sell cars in said city. &t did not
incorporate itself under the law nor did it have any government
permit or license to conduct its business as such. %he !olicitor
;eneral Eled before a 1%C in )anila a veriEed petition for Huo
warranto Huestioning and see<ing to stop the operations of Cars
Co. %he latter Eled a motion to dismiss the petition on the ground
of improper venue claiming that its main oice and operations are
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in Cebu City and not in )anila. &s the contention of Cars Co.
correct> =hy> (72
S&GGES'E( ANS)ER*
'o. As e@pressly provided in the 1ules, when the !olicitor ;eneral
commences the action for Huo warranto, it may be brought in a
1%C in the City of )anila, as in this case, in the Court of Appeals or
in the !upreme Court. (!ec. * of 1ule 2
S+ecial Civil Actions- =andamus !0113%
&n 4++, Congress passed 1epublic Act 'o. 4+, otherwise <nown
as the 9oterRs 1egistration Act of 4++, providing forcomputeriJation of elections. ursuant thereto, the C#)":"C
approved the 9oterRs 1egistration and &dentiEcation !ystem (91&!2
roject. &t issued invitations to pre-Hualify and bid for the project.
After the public bidding, $oto<ina was declared the winning bidder
with a bid of billion and was issued a 'otice of Award. But
C#)":"C Chairman ;ener ;o objected to the award on the
ground that under the Appropriations Act, the budget for the
C#)":"CRs moderniJation is only 4 billion. e announced to the
public that the 91&! project has been set aside. %woCommissioners sided with Chairman ;o, but the majority voted to
uphold the contract.
)eanwhile, $oto<ina Eled with the 1%C a petition for mandamus
compel the C#)":"C to implement the contract. %he #ice of the
!olicitor ;eneral (#!;2, representing Chairman ;o, opposed the
petition on the ground that mandamus does not lie to enforce
contractual obligations. During the proceedings, the majority
Commissioners Eled a manifestation that Chairman ;o was not
authoriJed by the C#)":"C "n Banc to oppose the petition.
=andamus !01"02
A Eles a Complaint against for recovery of title andpossession of land situated in )a<ati with the 1%C of asig. BEles a )otion to Dismiss for improper venue. %he 1%C asig 3udge denies BRs )otion to Dismiss, which obviously wasincorrect. Alleging that the 1%C 3udge Lunlawfully neglectedthe performance of an act which the law speciEcally enjoins as
a duty resulting from an oiceL, Eles a etition for)andamus against the judge.
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=ill )andamus lie> 1easons. (672
S&GGES'E( ANS)ER*
'o, mandamus will not lie. %he proper remedy is a petitionfor prohibition. (!erana vs. !andiganbayan, ;.1. 'o. 40+, 3anuary 00, 02. %he dismissal of the case based onimproper venue is not a ministerial duty. )andamus does notlie to compel the performance of a discretionary duty. ('iloaloma vs. Danilo )ora, ;.1. 'o. 4**6, !eptember 06,02.
Partition- Non7oinder !011#%
$lorencio sued ;uillermo for partition of a property theyowned in common. ;uillermo Eled a motion to dismiss thecomplaint because $lorencio failed to implead erando and&nocencio, the other co-owners of the property. As 3udge, will you grant the motion to dimiss> "@plain. (672
S&GGES'E( ANS)ER*
'#, because the non-joinder of parties is not a ground fordismissal of action (1ule 6, !ec. 42. %he motion to dismiss
should be denied.
S+ecial Civil Actions* E+ro+riation- =otion to (ismiss!011#%
%he 1epublic of the hilippines, through the department of ublic =or<s and ighways (D=2 Eled with the 1%C acomplaint for the e@propriation of the parcel of land owned by 3ovito. %he land is to be used as an e@tension of the nationalhighway. Attached to the complaint is a ban< certiEcateshowing that there is, on deposit with the :and Ban< of thehilippines, an amount eHuivalent to the assessed value of theproperty. %hen D= Eled a motion for the issuance of a writ of possession. 3ovito Eled a motion to dismiss the complaint on theground that there are other properties which would better servethe purpose.
(a2 =ill 3ovitoMs motion to dismiss prosper> "@plain
S&GGES'E( ANS)ER*
'#. the present 1ule of rocedure governing e@propriation(1ule *2, as amended by the 4++* 1ules of Civil rocedure,
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S&GGES'E( ANS)ER* Qes, the Court of Appeals is correct in remanding the case tothe 1%C for the latter to try the same on the merits. %he 1%C,having jurisdiction over the subject matter of the case appealedfrom )%C should try the case on the merits as if the casewas originally Eled with it, and not just to airm thedismissal of the case. 1.A. 'o. *+4, however, vested jurisdiction over speciEed accion publiciana with courts of theErst level ()etropolitan %rial Courts, )unicipal %rial Courts,and )unicipal Circuit %rial Courts2 in cases where theassessed value of the real property involved does not e@ceed
0,. outside )etro)anila, or in )etro )anila, where such value does not e@ceed,..
Jurisdiction- &nla8ul (etainer !011,%
'o.&9. $ilomeno brought an action in the )etropolitan %rialCourt ()"%C2 of asayCity against )arcelino pleading two causes of action. %he Erstwas a demand for therecovery of physical possession of a parcel of land situated in
asay City with anassessed value of ,/ the second was a claim for damages of , for )arcelinoMs unlawful retention of the property.)arcelino Eled a motion to dismiss on the ground that thetotal amount involved, which is ,, is beyond the jurisdiction of the )e%C. &s)arcelino correct>
S&GGES'E( ANS)ER* 'o, )etropolitan or )unicipal trial Courts have e@clusive jurisdiction over a complaint for forcible entry and unlawfuldetainer regardless of the amount of the claim for damages (!ec.66 508, B.. 40+2.
Also, !ec. 6, 1ule * gives jurisdiction to the said courtsirrespective of the amount of damages. %his is the sameprovision in the 1evised 1ules of !ummary rocedure thatgoverns all ejectment cases (!ec. 45A8548, 1evised 1ule on!ummary rocedure2. %he 1ule,
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however, refers to the recovery of a reasonable amount of damages. &n this case, the property is worth only ,, butthe claim for damages is ,.
&nla8ul (etainer- Preliminary Conerence !011$%
(a2 K Eles an unlawful detainer case against Q before theappropriate )etropolitan %rial Court. &n his answer, Q avers asa special and airmative defense that he is a tenant of KMsdeceased father in whose name the property remains registered.=hat should the court do> "@plain brieGy. (72
S&GGES'E( ANS)ER*
%he court should hold a preliminary conference not later thanthirty (62 days after the defendant’ Answer was Eled, sincethe case is governed by summary procedure under 1ule *,1ules of Court, where a 1eply is not allowed. %he courtshould receive evidence to determine the allegations of tenancy.&f tenancy had in fact been shown to be the real issue, thecourt should dismiss the case for lac< of jurisdiction.
&f it would appear that Q ‟s occupancy of the subject propertywas one of agricultural tenancy, which is governed by agrarianlaws, the court should dismiss the case because it has no jurisdiction over agricultural tenancy cases. Defendant’sallegation that he is a XtenantY of plainti ’s deceased fathersuggests that the case is one of landlord-tenant relation andtherefore, not within the jurisdiction of ordinary courts.
&nla8ul- (etainer- Prior Possession !011,%
Ben sold a parcel of land to Del with right to repurchase withinone(42 year. Ben remained in possession of the property. =henBen failed to repurchase the same, title was consolidated infavor of Del. Despite demand, Ben refused to vacate the land,constraining Del to Ele a complaint for unlawful detainer. &n hisdefense, Ben averred that the case should be dismissedbecause Del had never been in possession of the property. &sBen correct>
S&GGES'E( ANS)ER*
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'o, for unlawful detainer, the defendant need not have beenin prior possession of the property. %his is upon the theorythat the vendee steps into the shoes of the vendor andsucceeds to his rights and interests. &n contemplation of law,the vendee‟s possession is that of the vendor‟s ()aninang vs.C.A., ;.1. 'o. 404*4+, 4 !eptember 4+++/ Dy !un vs.Brillantes, +6 hil. 4* 54+682/ (harma &ndustries, &nc., vs.ajarillaga, ;.1. 'o. :-6*, 4* #ctober 4+2.
Summons !"###%
a2 =hat is the eect of absence of summons on the judgment
rendered in the case> (072
b2 =hen additional defendant is impleaded in the action, is it
necessary that summons be served upon him> "@plain. (072
c2 &s summons reHuired to be served upon a defendant who was
substituted for the deceased> "@plain. (072
d2 A sued KK Corporation (KKC2, a corporation organiJed under
hilippine laws, for speciEc performance when the latter failed to
deliver %-shirts to the former as stipulated in their contract of sale.
!ummons was served on the corporationRs cashier and director.=ould you consider service of summons on either oicer suicient>
"@plain. (072
S&GGES'E( ANS)ER*
a2 %he eect of the absence of summons on a judgment would
ma<e the judgment null and void because the court would not have
jurisdiction over the person of the defendant, but if the defendant
voluntarily appeared before the court, his appearance is eHuivalent
to the service of summons. (!ec. 0, 1ule 42
b2 Qes. !ummons must be served on an additional defendant
impleaded in the action so that the court can acHuire jurisdiction
over him, unless he ma<es a voluntary appearance.
c2 'o. A defendant who was substituted for the deceased need
not be served with summons because it is the court which orders
him as the legal representative of the deceased to appear and
substitute the deceased. (!ec. 4 of 1ule 6.2
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d2 !ummons on a domestic corporation through its cashier and
director are not valid under the present rules. (!ec. 44, 1ule 42
%hey have been removed from those who can be served withsummons for a domestic corporation. Cashier was substituted by
treasurer. (&d.2
Summons- Substituted Service !011>%
!ummons was issued by the )) 1%C and actually received on time
by defendant from his wife at their residence. %he sheri earlier
that day had delivered the summons to her at said residence
because defendant was not home at the time. %he sheris return or
proof of service Eled with the court in sum states that thesummons, with attached copy of the complaint, was served on
defendant at his residence thru his wife, a person of suitable age
and discretion then residing therein. Defendant moved to dismiss
on the ground that the court had no jurisdiction over his person as
there was no valid service of summons on him because the sheris
return or proof of service does not show that the sheri Erst made
a genuine attempt to serve the summons on defendant personally
before serving it thru his wife. &s the motion to dismiss
meritorious> =hat is the purpose of summons and by whom may itbe served> "@plain. (72
S&GGES'E( ANS)ER*
%he motion to dismiss is not meritorious because the defendant
actually received the summons on time from his wife. !ervice on
the wife was suicient. (Boticano v. Chu, 4 !C1A 4 54+*82. &t
is the duty of the court to loo< into the suiciency of the service.
%he sheris negligence in not stating in his return that he Erst
made a genuine eort to serve the summons on the defendant,should not prejudice the plainti. ()apa v. Court of Appeals, 04
!C1A 4*F4++02. %he purpose of the summons is to inform the
defendant of the complaint Eled against him and to enable the
court to acHuire jurisdiction over his person. &t maybe served by
the sheri or his deputy or any person authoriJed by the court.
AL'ERNA'I:E ANS)ER*
Qes. %he motion to dismiss is meritorious. !ubstituted service
cannot be eected unless the sheris return shows that he made agenuine attempt to eect personal service on the husband.
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Summons- :alidity o Service- E@ects !0113%
%ina ;uerrero Eled with Eled the 1egional %rial Court of Binan,
:aguna, a complaint for sum of money amounting to 4 )illion
against Carlos Corro. %he complaint alleges, among others, that
Carlos borrowed from %ina the said amount as evidenced by a
promissory note signed by Carlos and his wife, jointly and severally.
Carlos was served with summons which was received by :inda, his
secretary. owever, Carlos failed to Ele an answer to the complaint
within the 4-day reglementary period. ence, %ina Eled with the
court a motion to declare Carlos in default and to allow her to
present evidence e@ parte. $ive days thereafter, Carlos Eled his
veriEed answer to the complaint, denying under oath thegenuineness and due e@ecution of the promissory note and
contending that he has fully paid his loan with interest at 407 per
annum.
4. =as the summons validly served on Carlos> (0.72
AL'ERNA'I:E ANS)ER*
%he summons was not validly served on Carlos beScause it was
served on his secretary and the reHuirements for substitutedservice have not been followed, such as a showing that eorts have
been e@erted to serve the same on Carlos and such attempt has
failed despite due diligence ()anotoc v. CA, ;.1. 'o. 46+*,
August 4, 0/ Anging v. CA, ;.1. 'o. 40+*, 3uly 4, 4+++2.
AL'ERNA'I:E ANS)ER*
!ervice of !ummons on Carlos was validly served upon him if the
1eturn will show that it was done through !ubstituted !ervice
because the defendant can not be served personally within areasonable time despite diligent eorts made to serve the summons
personally. :inda, the secretary of defendant Carlos, must li<ewise
be shown to be a competent person in charge of defendantRs oice
where summons was served (!ec. *, 1ule 42.
0. &f you were the judge, will you grant %inaRs motion to declare
Carlos in default> (0.72
AL'ERNA'I:E ANS)ER*
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&f & were the judge, & will not grant %inaRs motion to declare Carlos
in default because summons was not properly served and anyway, a
veriEed answer to the complaint had already been Eled. )oreover,it is better to decide a case on the merits rather than on
technicality.
AL'ERNA'I:E ANS)ER*
Qes. &f it was shown that summons was validly served, and that the
motion to declare Carlos in default was duly furnished on Carlos,
and after conducting a hearing on the same motion.
Summons- By Publication !011,%
'o. &. :ani Eled an action for partition and accounting in the1egional %rial Court (1%C2 of )anila against her sister )ary1ose, who is a resident of !ingapore and is not found in thehilippines. pon moition, the court ordered the ublication of the summons for three wee<s in a local tabloid, Bulgar. :inda, an#$= vacationing in the hilippines, saw the summons inBulgar and brought a copy of the tabloid when she returned to!ingapore. :inda showed thetabloid and the page containing the summons to )ary 1ose,
who said, XQes & <now, my <umara Anita scanned and e-mailedthat page of Bulgar to me^Y Did the court acHuire jurisdiction over)ary 1ose>
S&GGES'E( ANS)ER* artition is an action Huasi in rem. !ummons by publicationis proper when the defendant does not reside and is not found inthe hilippines, provided that a copy of the summons and orderof the court are sent by registered mail to the last <nownaddress of the defendant
(!ec. 4, 1ule 42. ublication of the notice in Bulgar, anewspaper of general circulation, satisEes the reHuirements of summons by publication (ereJ vs. ereJ, ;.1. 'o 46, 0)arch 02.
Summons- Served by Email !011#%
!ummons may be served by mail.
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S&GGES'E( ANS)ER*
$A:!". 1ule 4 of the 1ules of Court, on !ummons, provide onlyfor serving !ummons (a2 to the defendant in person/ or (b2 if this is not possible within a reasonable time, then bysubstituted service in accordance with !ec. * thereof/ or (c2 if any of the foregoing two ways is not possible, then with leaveof court, by publication in accordance with the same 1ule.
AL'ERNA'I:E ANS)ER*
%1", but only in e@traterritorial service under !ec. 4 of the1ule on !ummons where service may be eected Xin any other
manner the court may deem suicient.Y
Summons- :alid Service !01"6%
AlEe Bravo Eled with the 1egional %rial Court of Caloocan, acomplaint for a sum of money against Charlie Delta. %he claimis for hp4.)illion. %he complaint alleges that Charlieborrowed the amount from AlEe and duly e@ecuted apromissory note as evidence of the loan. CharlieMs oice secretary,"sther, received the summons at CharlieMs oice. Charlie failed toEle an answer within the reHuired period, and AlEe moved to
declare Charlie in default and to be allowed to presentevidence e@ parte. %en days later, Charlie Eled his veriEedanswer, raising the defense of full payment with interest.
(A2 =as there proper and valid service of summons on Charlie>(672
S&GGES'E( ANS)ER*
'o. %here is no showing that earnest eorts were e@erted to
personally serve the summons on the defendant beforesubstituted service was resorted toN hence, the service of summons was improper.
&n an action strictly in personam li<e a complaint for a sumof money, personal service on the defendant is the preferred modeof service, that is, by handing a copy of the summons to thedefendant in person. &f defendant, for e@cusable reasons,cannot be served with thesummons within a reasonable period, then substituted servicecan be resorted to ()anotoc vs. Court of Appeals, ;.1. 'o.
46+*, August 4, 0, 9elasco, 3.2.
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#therwise stated, it is only when the defendant cannot beserved personally within a reasonable time that a substitutedservice may be made. &mpossibility of prompt service should beshown by stating the eorts made to End the defendantpersonally and thefact that such eorts failed. %his statement should be madein the proof of service (;alura vs. )ath-Agro Corporation, ;.1.'o. 4*06, August 4, 0+, 4st Division, Carpio, 3.2.
AL'ERNA'I:E ANS)ER* Qes. &f earnest eorts were e@erted to serve the summons inpersons but the same proved futile, then substituted service
through defendant‟s secretary is valid.
&n ;entle !upreme hilippines, &nc. vs. 1icardo Consulta, ;.1.'o. 4640, !eptember 4, 04, the !upreme Court held thatit is not necessary that the person in charge of thedefendant’s regular place of business be speciEcallyauthoriJed to receive the summons. &t isenough that he appears to be in charge. ConseHuently, thesubstituted service ofsummons to the defendant’s secretary in the oice is valid.
(B2 &f declared in default, what can Charlie do to obtain relief>(72
S&GGES'E( ANS)ER*
&f Charlie is declared in default, he has the following remediesto witN
42 he may, at any time after discovery of the default but before judgment, Ele a motion, under oath, to set aside the order of
default on the ground that his failure to answer was due tofraud, accident, mista<e, or e@cusable neglect, and that he hasa meritorious defense/
02 if judgment has already been rendered when he discoveredthe default, but before the same has become Enal ande@ecutor, he may Ele a motion for new trial under !ection 4(a2of 1ule 6*N
62 if he discovered the default after the judgment has becomeEnal and e@ecutor, he may Ele a petition for relief under
!ection 0 of 1ule 6/ and
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2 he may also appeal from the judgment rendered against himas contrary to the evidence or to the law, even if no petitionto set aside the order of default has been presented by him.(B.D. :ongspan Builders, &nc. vs. 1.!. AmpeloHuio 1ealtyDevelopment, ;.1. 'o. 4++4+, !eptember 44, 0+2.
5'oteN there are additional remedies to address judgments bydefaultN )otion for reconsideration (1ule 6*2, Annulment of 3udgment (1ule *2 and etition for Certiorari (1ule 28.
AL'ERNA'I:E ANS)ER*
%he court committed grave abuse of discretion when it
declared the defending party in default despite the latter‟s
Eling of an Answer. %hus, a petition for certiorari under 1ule is the proper remedy.
&n !an edro Cineple@ roperties vs. eirs of )anuel umada"nano, ;.1. 'o. 4+*, 'ovember 4*, 04, the !upremeCourt held that where the answer is Eled beyond thereglementary period but before the defendant is declared indefault and there is noshowing that defendant intends to delay the case, the answershould be admitted. %hus, it was error to declare the defending party in defaultafter the Answer was Eled (!ee !ablas vs. !ablas, ;.1. 'o.4, 3uly 6, 0*2.
After all, the defect in the service of summons was cured byCharlie’s Eling of a veriEed answer raising only the defense of full payment. %he belated Eling of veriEed Answer amounts to voluntary submission to the jurisdiction of the court andwaiver of any defect in the service of summons.
Sub+oena- :iatory Rig4t o )itness !011#%
%he viatory right of a witness served with a subpoena adtestiEcandum refers to his right not to comply with thesubpoena.
S&GGES'E( ANS)ER*
$A:!". %he viatory right of a witness, embodied in !ec. 4,1ule 04 of the 1ules of Civil rocedure, refers to his right not
to be compelled to attend upon a subpoena, by reason of the
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counterclaim may be considered compulsory regardless of the
amount. (!ec. * of 1ule 2
:enue- Personal Actions !"##$%
K, a resident of Angeles City, borrowed 6,. from A, a
resident of asay City. &n the loan agreement, the parties stipulated
that Lthe parties agree to sue and be sued in the City of )anila.L a2
&n case of non-payment of the loan, can A Ele his complaint to
collect the loan from K in Angeles City>
b2 !uppose the parties did not stipulate in the loan agreement
as to the venue, where can A Ele his complaint against K>
c2 !uppose the parties stipulated in their loan agreement that
Lvenue for all suits arising from this contract shall be the courts in
PueJon City,L can A Ele his complaint against K in asay City>
S&GGES'E( ANS)ER*
(a2 Qes, because the stipulation in the loan agreement that Lthe
parties agree to sue and be sued in the City of )anilaL does not
ma<e )anila the Le@clusive venue thereof.L (!ec, of 1ule , as
amended by Circular 'o. 46S
+N !ec. of new 1ule 2 ence, A can Ele his complaint in Angeles
City where he resides, (!ec, 0 of 1ule 2.
(b2 &f the parties did not stipulate on the venue, A can Ele his
complaint either in Angeles City where he resides or in asay City
where K resides, (&d2.
(c2 Qes, because the wording of the stipulation does not ma<e
PueJon City the e@clusive venue. (hilban<ing v. %ensuan. 06!C1A 46/ nimasters Conglomeration, &nc. v. CA. C1-44+*,
$eb. *, 4++*2
AL'ERNA'I:E ANS)ER*
(c2 'o. &f the parties stipulated that the venue Lshall be in the
courts in PueJon CityL, A cannot Ele his complaint in asay City
because the use of the word LshallL ma<es PueJon City the
e@clusive venue thereof. (oechst hilippines vs. %orres, 6 !C1A
0+*2.
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:enue- Real Actions !011,%
'o.&&&. (a2 Angela, a resident of PueJon City, sued Antonio, aresident of )a<ati City before the 1%C of PueJon City forthe reconveyance of two parcels of land situated in %arlac and'ueva "cija, respectively. )ay her action prosper>
S&GGES'E( ANS)ER*
'o, the action will not prosper because it was Eled in the wrong venue. !ince the action for reconveyance is a real action, itshould have been Eled separately in %arlac and 'ueva "cija,where the parcels of land are located (!ection 4, 1ule /
nited #verseas Ban< of the hilippines vs. 1osemoore)ining V Development Corp., et al., ;.1. nos. 4++ V4604, )arch 40, 0*2.
owever, an improperly laid venue may be waived, if notpleaded in a timely motion to dismiss (!ec. , 1ule 2.=ithout a motion to dismiss on the ground of improperly laid venue, it would be incorrect for the Court to dismiss the actionfor improper venue.
(b2 Assuming that the action was for foreclosure on themortgage of the same parcels of land, what is the proper venue for the action>
S&GGES'E( ANS)ER*
%he action must be Eled in any province where any of the landsinvolved lies Z either in %arlac or in 'ueva "cija, because theaction is a real action (B& vs. ;reen, * hil. *40/ !ec. 4,1ule / Ban< of America vs. American 1ealty Corp., ;.1. 'o.466*, 0+ December 4+++2. owever, an improperly laid
venue may be waived if not pleaded as aground for dismissal (!ec. , 1ule 2. 5'oteN %he Huestion is thesame as 0+ 1emedial :aw Bar Huestion 'o.&&. 3urisdictionN 3urisdiction/ 1%C, !upra Z rovisional 1emedies (1ules *-42
:enue- Real Actions !01"0%
A, a resident of PueJon City, wants to Ele an action against B, aresident of
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asay, to compel the latter to e@ecute a Deed of !alecovering a lot situated in )ari<ina and that transfer of title beissued to him claiming ownership of the land.
=here should A Ele the case> "@plain. (72
S&GGES'E( ANS)ER* A should Ele the case in )ari<ina, the place where the realproperty subject matter of the case is situated. An action forspeciEc performance would still be considered a real actionwhere it see<s the conveyance or transfer of real property, orultimately, the e@ecution of
deeds of conveyance of real property. (;ochan vs. ;ochan,06 hil. +4, 45048/ Copioso vs. Copioso, 6+4 !C1A 60 50082
Attac4ment- Bond !011,%
After his properties were attached, defendant orErio Eled asuicient counterbond. %he trial court discharged the attachment.'onetheless, orErio suered substantial prejudice due to theunwarranted attachment. &n the end, the trial court rendered a judgment in orErioMs
favor by ordering the plainti to pay damages because theplainti was not entitled to the attachment. orErio moved tocharge the plaintiMs attachment bond.
%he plainti and his sureties opposed the motion, claimingthat the Eling of the counterbond had relieved the plaintiMsattachment bond from all liability for the damages. 1ule onorErioMs motion.
S&GGES'E( ANS)ER*
orErio‟s motion to charge the plainti
’
s attachment bond isproper. %he Eling of the counterbond by the defendant doesnot mean that he has waived his right to proceed against theattachment bond for damages. nder the law (!ec. 0, 1ule*2, an application for damages on account of improper,irregular, or e@cessive attachment is allowed. !uch damagesmay be awarded only after proper hearing and shall beincluded in the judgment on the main case.
)oreover, nothing shall prevent the party against whom theattachment was issued from recovering in the same action the
damages awarded to him from any property of the attachingparty not e@empt from e@ecution should the bond or deposit
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given by the latter be insuicient or fail to fully satisfy theaward. (D.). =enceslao V Associates, &nc. vs. 1eadycon%rading V Construction Corp., ;.1. 'o. 44, 0+ 3une 02.
Attac4ment- Garnis4ment !011,%
(a2 %he writ of e@ecution was returned unsatisEed. %he judgment obligee subseHuently received information that aban< holds a substantial deposit belonging to the judgmentobligor. &f you are the counsel of the judgment oblige, whatsteps would you ta<e to reach the deposit to satisfy the judgment>
S&GGES'E( ANS)ER*
& will as< for a writ of garnishment against the deposit inthe ban< (!ec. +5c8, 1ule *2.
AL'ERNA'I:E ANS)ER*
& shall move the court to apply to the satisfaction of the judgment the property of the judgment obligor or the moneydue him in the hands of another person or corporation under!ec. , 1ule 6+.
(b2 &f the ban< denies holding the deposit in the name of the judgment obligor but yourclientMs informant is certain that the deposit belongs to the judgment obligor under anassumed name, what is your remedy to reach the deposit>
S&GGES'E( ANS)ER*
& will move for the e@amination under oath of the ban< as adebtor of the judgment debtor (!ec. 6*, 1ule 6+2. & will as< thecourt to issue an #rder reHuiring the judgment obligor, or theperson who has property of such judgment obligor, to appearbefore the court and be e@amined in accordance with !ecs.6 and 6* of the 1ules of Court for the complete satisfactionof the judgment award (Co vs. !illador, A.). 'o. -*- 060,64 August 0*2.
AL'ERNA'I:E ANS)ER*
%he judgment oblige may invo<e the e@ception under !ec. 0 of the !ecrecy of Ban< Deposits Act. Ban< Deposits may be
e@amined upon order of a competent court in cases if the
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money deposited is the subject matter of the litigation (1.A.42.
Attac4ment- Hinds o Attac4ment !01"0%
BrieGy discussFdierentiate the following <inds of AttachmentNpreliminary attachment, garnishment, levy on e@ecution,warrant of seiJure and warrant of distraint and levy. (72
S&GGES'E( ANS)ER*
1":&)&'A1Q A%%AC)"'%- is a provisional remedy under1ule * of the 1ules of Court. it may be sought at thecommencement of an action or at any time before entry judgment where property of an adverse party may be attachedas security for the atisfaction of any judgment, where thisadverse party is about to depart from the hilippines, wherehe has intent to defraud or has committed fraud, or is notfound in the hilippines. An aidavit and a bond is reHuiredbefore the preliminary attachment issues. &t is discharged uponthe payment of a counterbond.
;A1'&!)"'%- is a manner of satisfying or e@ecuting judgmentwhere the sheri may levy debts, credits, royalties,commissions, ban< deposits, and other personal property notcapable of manual delivery that are in the control orpossession of third persons and are due the judgment obligor.'otice shall be served on third parties. %he third partygarnishee must ma<e a written report on whether or not the judgment obligor has suicient funds or credits to satisfy theamount of the judgment. &f not, the report shall state howmuch fund or credits the garnishee holds for the judgment
obligor. !uch garnish amountsshall be delivered to the judgment oblige-creditor (1ule 6+,!ec.+ 5c82.
:"9Q #' "K"C%&#'- is a manner of satisfying or e@ecuting judgment where the sheri may sell property of the judgmentobligor if he is unable to payall or part of the obligation in cash, certiEed ban< chec< orany other manner acceptable to the oblige. &f the obligor doesnot chose which among his property may be sold, the sheri shall sell personal property Erst and then real property second.
e must sell only so much of the personal and real property
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as is suicient to satisfy judgment and other lawful fees. (1ule6+, !ec.+ 5b82.
=A11A'% #$ !"&O1"- is normally applied for, with a searchwarrant, in criminal cases. %he warrant of seiJure mustparticularly describe the things to be seiJed. =hile it is truethat the property to be seiJed under a warrant must beparticularly described therin and no other property can beta<en thereunder, yet the description is reHuired to be speciEconly insofar as the circumstances will ordinarily allow.
An application for search and seiJure warrant shall be Eled withthe followingN (a2 Any court within whose territorial jurisdiction
a crime was committed. (b2 $or compelling reasons stated inthe application, any court within the judicial region where thecrime was committed if the place of the commission of the crime is<nown, or any court within the judicial region where thewarrant shall be enforced. owever, if the criminal action hasalready been Eled, the application shall only be made in thecourt where the criminal action is pending.
=A11A'% #$ D&!%1A&'% A'D :"9Q- is remedy available tolocal governments and the B&1 in ta@ cases to satisfydeEciencies or delinHuencies in inheritance and estate ta@es,
and real estate ta@es. Distraint is the seiJure of personalproperty to be sold in an authoriJed auction sale. :evy is theissuance of a certiEcation by the proper oicer showing thename of the ta@payer and the ta@, fee, charge, or penalty duehim. :evy is made by writing upon said certiEcate thedescription of the property upon which levy is made.
Attac4ment- Preliminary Attac4ment !01"0%
(a2 A sues B for collection of a sum of money. Alleging fraud
in the contracting of the loan, A applies for preliminaryattachment with the court. %he Court issues the preliminaryattachment after A Eles a bond. =hile summons on B was yetunserved, the sheri attached BRs properties. Afterwards,summons was duly served on B. moves to lift the attachment.1ule on this. (72
S&GGES'E( ANS)ER*
& will grant the motion since no levy on attachment pursuantto the writ shall be enforced unless it is preceded or
contemporaneously accompanied by service of summons. %here
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must be prior or contemporaneous service of summons with thewrit of attachment. (1ule *, !ec., 1ules of Court2.
In7unction- Preliminary In7unction !011#%
A suit for injunction is an action in rem.
S&GGES'E( ANS)ER*
$A:!". A suit for injunction is an action in personam. &n the earlycase of Auyong ian vs. Court of %a@ Appeals 5+ !C1A 4454+*82, it was held that a restraining order li<e an injunction,operates upon a person. &t is granted in the e@ercise of eHuity
of jurisdiction andhas no in rem eect to invalidate an act done in contempt of anorder of the court e@cept where by statutory authoriJation, thedecree is so framed as to act in rem on property. (Air )ateriel=ing !avings and :oan Association, &nc. vs. manay, 6 !C1A 6 50*82.
:. CRI=INAL PR2CE(&RE
AcDuittal- E@ect !0110%
Delia sued 9ictor for personal injuries which she allegedly
sustained when she was struc< by a car driven by 9ictor. )ay the
court receive in evidence, over proper and timely objection by
Delia, a certiEed true copy of a judgment of acHuittal in a criminal
prosecution charging 9ictor with hit-and-run driving in connection
with DeliaMs injuries> =hy> (672
!;;"!%"D A'!="1N
1emedial :aw Bar "@amination P V A (4++*-02
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&f the judgment of acHuittal in the criminal case Ends that the act
or omission from which the civil liability may arise does not e@ist,
the court may receive it in evidence over the objection by Delia.51ule 444, sec. 0, last paragraph8.
A:%"1'A%&9" A'!="1N
&f the judgment of acHuittal is based on reasonable doubt, the court
may receive it in evidence because in such case, the civil action for
damages which may be instituted reHuires only a preponderance of
the evidence. (Art. 0+, Civil Code2.
Actions- Commencement o an Action !01"0%
K was arrested, en Gagrante, for robbing a ban<. After aninvestigation, he was brought before the oice of theprosecutor for inHuest, but unfortunately no inHuest prosecutorwas available. )ay the ban< directly Ele the complaint with theproper court> &f in the airmative, what document should beEled> (72
!;;"!%"D A'!="1N Qes, the ban< may directly Ele the complaint with the proper
court. &n the absence or unavailability of an inHuest prosecutor,the complaint may be Eled by the oended party or a peaceoicer directly with the proper court on the basis of theaidavit of the oendedparty or arresting oicer or person (!ection , 1ule 440 of the 1evised 1ules of Criminal rocedure2.
Actions- Commencement o an Action- Criminal Civil !01"6%
=hile in his 'issan atrol and hurrying home to PueJon Cityfrom his wor< in )a<ati, ;ary Egured in a vehicular mishap along
that portion of "D!A within the City of )andaluyong. e wasbumped from behind by a $ord "@pedition !9 driven byorace who was observed using his cellular phone at the timeof the collision. Both vehicles - more than years old Z no longercarried insurance other than the compulsory third party liabilityinsurance. ;ary suered physical injuries while his 'issanatrol sustained damage in e@cess of hp,.
(A2 As counsel for ;ary, describe the process you need tounderta<e starting from the point of the incident if ;ary wouldproceed criminally against orace, and identify the court with jurisdiction over the case. (672
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S&GGES'E( ANS)ER*
A2 As counsel for ;ary, & will Erst have him medicallye@amined in order to ascertain the gravity and e@tent of theinjuries sustained from the accident. !econd, & will secure anaccurate police report relative to the mishap unless oraceadmits his fault in writing, andreHuest ;ary to secure a car damage estimate from a car repairshop. %hird, & will as< him to e@ecute his !inumpaang !alaysay.%hereafter, & will use his !inumpaang !alaysay or prepare aComplaint-aidavit and Ele the same in the #ice of the Cityrosecutor of )andaluyong City (!ections 4 and 4 1ule 44,
1ules of Criminal rocedure2. %his being a case of simplenegligence and the penalty for the oense does not e@ceed si@months imprisonment, thecourt with original and e@clusive jurisdiction is the)etropolitan %rial Court of )andaluyong City.
(B2 &f ;ary chooses to Ele an independent civil action fordamages, e@plain brieGy thistype of actionN its legal basis/ the dierent approaches inpursuing this type of action/the evidence you would need/ and types of defenses you could
e@pect. (72
S&GGES'E( ANS)ER* An independent civil action is an action which is entirelydistinct and separate from the criminal action. !uch civil actionshall proceed independently of the criminal prosecution andshall reHuire only a preponderance of evidence. !ection 6 of 1ule 444 allows the Eling of an independent civil action bythe oended party based on Article 66 and 04* of the 'ewCivil Code. %he dierent approaches that the plainti can pursuein this type of actionare as followsN
(a2 $ile the independent civil action and prosecute the criminalcase separately.(b2 $ile the independent civil action without Eling the criminalcase.(c2 $ile the criminal case without need of reserving theindependent civil action.
Aside from the testimony of ;ary, the pieces of evidence thatwould be reHuired in an independent civil action are the
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committed abroad. ence, the contemplated criminal action isnot viable as the same was committed outside of the hilippinecourts.
(B2 &s a civil action to impugn the paternity of the baby boyfeasible, and if so, in what proceeding may such issue bedetermined> (72
S&GGES'E( ANS)ER*
Qes, under Article 4*4 of the $amily Code, the heirs of thehusband may impugn the Eliation of the child in the followingcasesNa2 &f the husband should die before the e@piration of theperiod E@ed for bringing his actionNb2 &f he should die after the Eling of the complaint, withouthaving desisted therefrom/ orc2 &f the child was born after the death of the husband. !inceDario is already dead when the baby was, his heirs have theright toimpugn the Eliation of the child.
ConseHuently, the heirs may impugn the Eliation either by adirect action to impugn such Eliation or raise the same in aspecial proceeding for settlement of the estate of the decedent.&n the said proceeding, the robate court has the power todetermine Huestions as to who are the heirs of the decedent(1eyes vs. Qsip, et. al., +* hil. 44, 3imeneJ vs.&AC, 4 !C1A 6*2.
&ncidentally, the heirs can also submit the baby boy for D'A
testing (A.). 'o. - 44--!C, 1ules on D'A "vidence2 or evenblood-test in order to determine paternity and Eliation.
&n 3ao vs. Court of Appeals, ;.1. 'o. :- +40, 3uly 0, 4+*,the !upreme Court held that blood grouping tests areconclusive as to non-paternity, although inconclusive as topaternity. %he fact that the blood type of the child is apossible product of the mother and alleged father does notconclusively prove that the child is born by such parents/ but,if the blood type of the child is not the possible blood type whenthe blood of the mother and the alleged father are cross
matched, then the child cannot possibly be that of the allegedfather.
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AL'ERNA'I:E ANS)ER* 'o, there is no showing in the problem of any ground that wouldserve as a basis for an action to impugn paternity of the babyboy.&n Concepcion vs. Almonte, ;.1. 'o. 406, August 64,0 citing Cabatania vs. Court of Appeals, the !upreme Courtheld that the law reHuires that every reasonable presumptionbe made in favour of legitimacy.
%he presumption of legitimacy does not only Gow out of declaration in the statute but is based on the broadprinciples of natural justice and the supposed virtue of the
mother. &t is grounded on the policy to protect the innocentospring from the odium of illegitimacy. %he presumption of legitimacy proceeds from the se@ual union in marriage,particularly during the period of conception. %o overthrow thispresumption on the basis of Article 4 (42 (b2 of the $amilyCode, it must be shown beyond reasonable doubt that therewas no access that could have enabled the husband to fatherthe child. !e@ual &ntercourse is to be presumed where personalaccess is not disposed, unless such presumption is rebutted byevidence to the contrary. ence, a child born to a husband andwife during a valid marriage is presumed legitimate. %hus, the
child‟s legitimacy may be impugned only under the strictstandards provided by law (errera vs. Alba, ;.1. 'o. 400, 3une 4, 02.
5'oteN %he $amily Code is not covered by the 046 bar "@amination!yllabus for 1emedial :aw8.
Actions- Com+laint- /orum S4o++ing !01"1%
K was driving the dump truc< of Q along Cattleya !treet in!ta. )aria, Bulacan. Due to his negligence, K hit and injured 9 who was crossing the street. :awyer :, who witnessed theincident, oered his legal services to 9. 9, who suered physicalinjuries including a fractured wrist bone, underwent surgery toscrew a metal plate to his wrist bone. #n complaint of 9, acriminal case for 1ec<less &mprudence 1esulting in !erioushysical &njuries was Eled against K before the )unicipal %rialCourt ()%C2 of !ta.)aria. Atty. :, the private prosecutor, did not reserve theEling of a separate civilaction. 9 subseHuently Eled a complaint for Damages against K
and Q before the
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1egional %rial Court of angasinan in rdaneta where heresides. &n his LCertiEcation Against $orum !hopping,L 9 madeno mention of the pendency of the criminal case in !ta. )aria.
(a2 &s 9 guilty of forum shopping> (072
S&GGES'E( ANS)ER*
'o, 9 is not guilty of forum shopping because the case in!ta. )aria, Bulacan, is a criminal action Eled in the name of the eople of the hilippines, where civil liability arising from thecrime is deemed also instituted therewith/ whereas the caseEled in rdaneta,
angasinan, is a civil action for Huasi-delict in the name of 9 and against both K and Q for all damages caused by K and Q to 9,which may be beyond the jurisdiction of )%C. ence, thetests of forum shopping, which is res adjudicate or litispendencia, do not obtain here.)oreover, substantive law (Art. 66, Civil Code2 and !ec. 6,1ule 444, 1evised 1ules of Criminal rocedure, e@presslyauthoriJe the Eling such action for damages entirely separateand distinct from the criminal action.
(b2 &nstead of Eling an Answer, K and Q move to dismiss the
complaint for damages on the ground of litis pendentia. &s themotion meritorious> "@plain. (072
S&GGES'E( ANS)ER*'o, the motion to dismiss base on alleged litis pendencia iswithout merit because there is no identity of parties andsubject matter in the two cases. Besides, Art. 66 of the CivilCode and 1ule 444, !ec. 6 of the 1ules of Criminal rocedureauthoriJe the separate civil
action for damages arising from physical injuries to proceedindependently.(c2 !uppose only K was named as defendant in the complaint fordamages, may he movefor the dismissal of the complaint for failure of 9 to implead Q asan indispensableparty> (072
S&GGES'E( ANS)ER* 'o, K may not move for dismissal of the civil action for damages
on the contention that Q is an indispensable party who shouldbe impleaded. Q is not an indispensable party but only
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necessary party. Besides, nonjoinder and misjoinder of parties isnot a ground for dismissal of actions (1ule 6, !ec. 44, 1ules of Court2.
(d2 K moved for the suspension of the proceedings in thecriminal case to await the decision in the civil case. $or his part, Q moved for the suspension of the civil case to await thedecision in the criminal case. =hich of them is correct> "@plain.(072
S&GGES'E( ANS)ER* 'either of them is correct. Both substantive law (Art. 66 of
the Civil Code2 and procedural law (1ule 444, !ec. 6, 1ules of Criminal rocedure2 provide for the two actions to proceedindependently of each other, therefore, no suspension of action isauthoriJed.
(e2 Atty. : oered in the criminal case his aidavit respectingwhat he witnessed during the incident. KMs lawyer wanted tocross-e@amine Atty. : who, however, objected on the ground of lawyer-client privilege. 1ule on the objection. (072
S&GGES'E( ANS)ER*
%he objection should be overruled. :awyer-client privilege isnot involved here. %he subject on which the counsel would bee@amined has been made public in the aidavit he oered andthus, no longer privileged, aside from the fact that it is inrespect of what the counselwitnessed during the incident and not to the communication madeby the client to him or the advice he gave thereon in hisprofessional capacity.
Actions- ;old (e+arture 2rder !01"1%
=hile window-shopping at the mall on August , 0, Dantelost his organiJer including his credit card and billingstatement. %wo days later, upon reporting the matter to thecredit card company, he learned that a one-way airplane tic<etwas purchased online usinghis credit card for a Gight to )ilan in mid- August 0.
pon e@tensive inHuiry with
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the airline company, Dante discovered that the plane tic<et wasunder the name of oneDina )eril. Dante approaches you for legal advice.
(a2 =hat is the proper procedure to prevent Dina from leaving thehilippines> (072
S&GGES'E( ANS)ER*
& would adviseN
(42 %he Eling of an appropriate criminal action cogniJable bythe 1%C against
Dina and the Eling in said criminal action a )otion for theissuance of a old Departure #rder/(02 thereafter, a written reHuest with the Commissioner of the
Bureau of &mmigration for a =atch :ist #rder pending theissuance of the old Departure #rder should be Eled/(62 then, the airline company should be reHuested to cancelthe tic<et issued to Dina.(b2 !uppose an &nformation is Eled against Dina on August 40,0 and she isimmediately arrested. =hat pieces of electronic evidence willDante have to
secure in order to prove the fraudulent online transaction> (072
S&GGES'E( ANS)ER*
e will have to present (a2 his report to the ban< that helost his credit card (b2that the tic<et was purchased after the report of the lost and (c2the purchase of one-way tic<et. Dante should bring an original(or an eHuivalent copy2 printout ofN 42 the online tic<etpurchase using his credit card/ 02 the phone call log to show
that he already alerted the credit card company of his loss/and 62 his credit card billing statement bearing theonline tic<et transaction.
Actions- BP 00- Civil Action deemed included !011"%
!aturnino Eled a criminal action against Ale@ for the latterMs
bouncing chec<. #n the date of the hearing after the arraignment,
!aturnino manifested to the court that he is reserving his right to
Ele a separate civil action. %he court allowed !aturnino to Ele a
civil action separately and proceeded to hear the criminal case.
Ale@ Eled a motion for reconsideration contending that the civil
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action is deemed included in the criminal case. %he court
reconsidered its order and ruled that !aturnino could not Ele a
separate action. &s the courtMs order granting the motion forreconsideration correct> =hy> (72
S&GGES'E( ANS)ER*
Qes, the courtMs order granting the motion for reconsideration is
correct. %he 1ules provide that the criminal action for violation of
B.. Blg. 00 shall be deemed to include the corresponding civil
action, and that no reservation to Ele such civil action separately
shall be allowed. 5!ec. 4(b2, 1ule 444, 1evised 1ules of Criminal
rocedure8
Actions- BP00- (emurrer to Evidence !0116%
&n an action for violation of Batas ambansa Big. 00, the court
granted the accusedMs demurrer to evidence which he Eled without
leave of court. Although he was acHuitted of the crime charged, he,
however, was reHuired by the court to pay the private complainant
the face value of the chec<. %he accused Eled a )otion of
1econsideration regarding the order to pay the face value of the
chec< on %he following groundsN a2 the demurrer to evidenceapplied only too the criminal aspect of the case/ and b2 at the very
least, he was entitled to adduce controverting evidence on the civil
liability. 1esolve the )otion for 1econsideration. (72
S&GGES'E( ANS)ER*
(a2 %he )otion for 1econsideration should be denied. %he ground
that the demurrer to evidence applied only to the criminal aspect of
the case was not correct because the criminal action for violation of
Batas ambansa Blg. 00 included the corresponding civil action.(!ec. 4(b2 of 1ule 4442.
(b2 %he accused was not entitled to adduce controverting evidence
on the civil liability, because he Eled his demurrer to evidence
without leave of court. (!ec. 06 of 1ule 44+2.
Actions- Commencement o an Action- (ouble Jeo+ardy
!011>%
!#4 C'C Eled with the )%C in PueJon City ()e%C-PC2 a sworn
written statement duly subscribed by him, charging 1;1 (an actual
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resident of Cebu City2 with the oense of slight physical injuries
allegedly inGicted on !! (an actual resident of PueJon City2. %he
3udge of the branch to which the case was raIed thereupon issuedan order declaring that the case shall be governed by the 1ule on
!ummary rocedure in criminal cases. !oon thereafter, the 3udge
ordered the dismissal of the case for the reason that it was not
commenced by information, as reHuired by said 1ule.
!ometime later, based on the same facts giving rise to the slight
physical injuries case, the City rosecutor Eled with the same
)e%C-PC an information for attempted homicide against the same
1;1. &n due time, before arraignment, 1;1 moved to Huash the
information on the ground of double jeopardy and after duehearing, the 3udge granted his motion. =as the dismissal of the
complaint for slight physical injuries proper> =as the grant of the
motion to Huash the attempted homicide information correct>
1eason (72
S&GGES'E( ANS)ER*
Qes, the dismissal of the complaint for slight physical injuries is
proper because in )etropolitan )anila and in chartered cities, the
case has to be commenced only by information. (!ec. 44, 1evised1ule on !ummary rocedure2.
'o, the grant of the motion to Huash the attempted homicide
information on the ground of double jeopardy was not correct,
because there was no valid prosecution for slight physical injuries.
Actions- (iscretionary Po8er o /iscal !"###%
A Eled with the #ice of the $iscal a Complaint for estafa against
B. After the preliminary investigation, the $iscal dismissed the
Complaint for lac< of merit. )ay the $iscal be compelled by
mandamus to Ele the case in court> "@plain. (072
S&GGES'E( ANS)ER*
'o. %he public prosecutor may not be compelled by mandamus to
Ele the case in court because the determination of probable cause
is within the discretion of the prosecutor. %he remedy is an appeal
to the !ecretary of 3ustice. (!ec. 1ule 440.2
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'o. %he warrantless arrest is not valid because the alleged oense
has not just been committed. %he crime was allegedly committed
one year before the arrest. (!ec. (b2 of 1ule 4462.
Qes, he is entitled to a preliminary investigation because he was not
lawfully arrested without a warrant (!ee !ec. * of 1ule 4402. e
can move for a reinvestigation.
AL'ERNA'I:E ANS)ER*
e is not entitled to a preliminary investigation because the
penalty for estafa is the sum of 4, does not e@ceed years
and 0 months. nder !ec. 4, second par., 1ule 440, a preliminary
investigation is not reHuired. ('oteN %he penalty is not stated in the
Huestion.2
Arrest- )arrantless Arrests 5 Searc4es !"##$%
A was <illed by B during a Huarrel over a hostess in a nightclub.
%wo days after the incident, and upon complaint of the widow of A,
the police arrested B without a warrant of arrest and searched his
house without a search warrant. a2 Can the gun used by B in
shooting A, which was seiJed during the search of the house of B,
be admitted in evidence> b2 &s the arrest of B legal> c2 nder the
circumstances, can B be convicted of homicide>
S&GGES'E( ANS)ER*
(a2 'o. %he gun seiJed during the search of the house of B without
a search warrant is not admissible in evidence. (!ecs. 0 and 6508,
Art. &&& of Constitution2. )oreover, the search was not an incident
to a lawful arrest of a person under !ec. 40 of 1ule 40.
(b2 'o. A warrantless arrest reHuires that the crime has in fact just
been committed and the police arresting has personal <nowledge of
facts that the person to be arrested has committed it. (!ec. , 1ule
4462. ere, the crime has not just been committed since a period of
two days had already lapsed, and the police arresting has no such
personal <nowledge because he was not present when the incident
happened. (;o vs. Court of Appeals. 0 !C1A 462.
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(c2 Qes. %he gun is not indispensable in the conviction of A because
the court may rely on testimonial or other evidence.
Arrest- )arrantless Arrests 5 Seiures !0116%
&n a buy-bust operation, the police operatives arrested the accused
and seiJed from him a sachet of shabu and an unlicensed Erearm.
%he accused was charged in two &nformations, one for violation of
the XDangerous Drug ActY, as amended, and another for illegal
possession of Erearms.
%he accused Eled an action for recovery of the Erearm in another
court against the police oicers with an application for the issuance
of a writ of replevin. e alleged in his Complaint that he was a
military informer who had been issued a written authority to carry
said Erearm. %he police oicers moved to dismiss the complaint on
the ground that the subject Erearm was in custodia legis. %he court
denied the motion and instead issued the writ of replevin.
(a2 =as the seiJure of the Erearm valid>
(b2 =as the denial of the motion to dismiss proper> 7
S&GGES'E( ANS)ER*
(a2 Qes, the seiJure of the Erearm was valid because it was seiJed in
the course of a valid arrest in a buy-bust operation. (!ec. 40 and 46
of 1ule 402 A search warrant was not necessary. (eople v.
!alaJar, 0 !C1A * 54++*82.
(b2 %he denial of the motion to dismiss was not proper. %he court
had no authority to issue the writ of replevin whether the Erearm
was in custodia legis or not. %he motion to recover the Erearm
should be Eled in the court where the criminal action is pending.
Arrest- )arrantless Arrests 5 Searc4es !011$% (a2 #n his way home, a member of the Caloocan City police
force witnesses a bus robbery in asay City and eects thearrest of the suspect. Can he bring the suspect to CaloocanCity for boo<ing since that is where his station is> "@plain brieGy.(72
S&GGES'E( ANS)ER*
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Any objection to the illegality of the arrest of the accused without a
warrant is deemed waived when he pleaded not guilty at the
arraignment without raising the Huestion. % is too late to complainabout a warrantless arrest after trial is commenced and completed
and a judgment of conviction rendered against the accused. (eople
v. Cabiles, 0 !C1A 4++, 54+++82
Searc4 5 Seiure- Plain :ie8 !01">%
A search warrant was issued for the purpose of loo<ing forunlicensed Erearms in the house of &ssasin, a notorious gun forhire. =hen the police served the warrant, they also sought theassistance of baran$a% #ano!s who were assigned to loo< at otherportions of the premises around the house. &n a ni2a hut thirty (62meters away from the house of &ssasin, a baran$a% #ano! cameupon a <ilo of marijuana that was wrapped in newsprint. e too< itand this was later used by the authorities to charge &ssasin withillegal possession of marijuana. &ssasin objected to theintroduction of such evidence claiming that it was illegally seiJed.&s the objection of &ssasin valid> !>?%
S&GGES'E( ANS)ER*
Qes, the objection of Ass-asin is valid.
nder the Constitution, the right of the people against unlawfulsearch is inviolable e@cept in cases where a valid search warrantwas issued or in e@ceptional cases where the law provides for awarrantless search. (!ec. 0, Art. &&&, Constitution2. nder the fruitof the poisonous tree doctrine, items seiJed by virtue of an unlawfulsearch are inadmissible in evidence. (!ec. 6508, Art. &&&,Constitution2.
ere the the seiJure of the marijuana was illegal since it was notpursuant to a search warrant. %he search warrant was for thesearch and seiJure of unlicensed Erearms not marijuana. 'orwould the e@ception regarding items seiJed under plain view apply.%he marijuana was wrapped in newsprint and clearly not in plainsight. ence the marijuana may not be introduced in evidence over Ass-asinMs objection.
Searc4 5 Seiure- Plain :ie8 !011,%
%he search warrant authoriJed the seiJure of Xundetermined
Huantity of shabu.Y During the service of the search warrant,the raiding team also recovered a <ilo of dried marijuana
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leaves wrapped in newsprint. %he accused moved to suppressthe marijuana leaves as evidence for the violation of !ection44 of the Comprehensive Dangerous Drugs Act of00 since they were not covered by the search warrant. %he!tate justiEed the seiJure of the marijuana leaves under theXplain viewY doctrine. %here was no indication of whether themarijuana leaves were discovered and seiJed before or afterthe seiJure of the shabu. &f you are the judge, how would yourule on the motion to suppress>
S&GGES'E( ANS)ER*
%he Xplain viewY doctrine cannot be invo<ed because the
marijuana leaves were wrapped in newsprint and there was noevidence as to whether the marijuana leaves were discovered andseiJed before or after the seiJure of the shabu. &f they werediscovered after the seiJure of theshabu, then the marijuana could not have been seiJed in palin view (C$. eo vs. )ua, ;.1. 'o. +4**, 0* 3anuary 4++*2. &nany case, the marijuana should be conEscated as a prohibitedarticle.
Searc4 5 Seiure- )arrantless Searc4 !01"1%
As Cicero was wal<ing down a dar< alley one midnight, he sawan Lowner-type jeepneyL approaching him. !ensing that theoccupants of the vehicle were up to no good, he darted intoa corner and ran. %he occupants of the vehicle _ elementsfrom the =estern olice District _ gave chase and apprehendedhim. %he police apprehended Cicero, fris<ed himand found a sachet of .+ gram of shabu tuc<ed in his waistand a !wiss <nife in his secret poc<et, and detained himthereafter. &s the arrest and body-searchlegal> (672
S&GGES'E( ANS)ER*
%he arrest and body-search was legal. Cicero appears to bealone `wal<ing down the dar< alleyY and at midnight. %hereappears probable cause for the policemen to chec< him,especially when he darted into a corner (presumably also dar<2and run under such circumstance. Although the arrest came after the body- search where Cicerowas found with shabu and a !wiss <nife, the body-search is legalunder the X%erry searchY rule or the Xstop and fris<Y rule.
And because the mere possession, with animus, of dangerous
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drug (the shabu2 is a violation of the law (1.A. +42, the suspect isin a continuing state of committing a crimewhile he is illegally possessing the dangerous drug, thusma<ing the arrest tantamount to an arrest in GagranteN so thearrest is legal and correspondingly, the search and seiJure of the shabu and the concealed <nife may be regarded asincident to a lawful arrest.
AL'ERNA'I:E ANS)ER* 'o, the arrest and the body-search were not legal. &n this case,Cicero did not run because the occupants of the vehicleidentiEed themselves as police oicers. e darted into the
corner and ran upon the belief that the occupants of the vehicle were up to no good. CiceroMs act of running does notshow any reasonable ground to believe that a crime has beencommitted or is about to be committed for the police oicers toapprehend him and conduct body search.ence, the arrest was illegal as it does not fall under any of the circumstances for a valid warrantless arrest provided in !ec. of 1ule 446 of the 1ules of Criminal rocedure.
Searc4 )arrant- A++lication- :enue !01"0%
A D"A assetFinformant tipped the D"A Director !habunotthat a shabu laboratory was operating in a house at !ta. CruJ,:aguna, rented by two (02 Chinese nationals, o ia and !ioao. D"A Director !habunot wants to apply for a searchwarrant, but he is worried that if he applies for a search warrant inany :aguna court, their plan might lea< out. (a2 =here can heEle an application for search warrant> (072
S&GGES'E( ANS)ER* D"A Director !habunot may Ele an application for searchwarrant in any court within the judicial region where thecrime was committed. (1ule 40, !ec.05b82.
AL'ERNA'I:E ANS)ER*
D"A Director !habunot may Ele an application for searchwarrant before the "@ecutive 3udge and 9ice "@ecutive 3udgesof the 1egional %rial Courts of )anila or PueJon Cities. (A.).'o. ++-4-+-!C, 3anuary 0, 02.
(b2 =hat documents should he prepare in his application forsearch warrant> (072
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S&GGES'E( ANS)ER* e should prepare a petition for issuance of a search warrantand attach therein sworn statements and aidavits. (c2 Describethe procedure that should be ta<en by the judge on theapplication. (072
S&GGES'E( ANS)ER*
%he judge must, before issuing the warrant, e@aminepersonally in the form of searching Huestions and answers, inwriting and under oath, the complainant and the witnesses he
may produce on facts personally <nown to them and attach tothe record their swornstatements, together with the aidavits submitted. (1ule 40,!ec., 1ules of Court2. if the judge is satisEed of the e@istenceof facts upon which the application is based or that there isprobable cause to believe that they e@ist, he shall issue thewarrant, which must be substantially in the form prescribed bythe 1ules. (1ule 40, !ec., 1ules of Court2. !uppose the judge issues the search warrant worded in this wayN
"#:" #$ %" &:&&'"!
lainti-versus-
Criminal Case 'o. * for 9iolation of 1.A. +4
o ia and !io ao, Accused.
@- - - - - - - - - - - - - - - - - - - - - -@%# A'Q "AC" #$$&C"1
;reetingsN
&t appearing to the satisfaction of the undersigned aftere@amining under oath D"A Director shabu not that there isprobable cause to believe that violations of !ection 4 and 4of 1.A. +4 have been committed and that there are goodand suicient reasons to believe that o ia and !io aohave in their possession or control, in a two (02 door apartmentwith an iron gate located at 3upiter !t., !ta. CruJ, :aguna,undetermined amount of LshabuL and drug manufacturingimplements and paraphernalia which should be seiJed and
brought to the undersigned, Qou are hereby commanded to ma<ean immediate search, at any time in the day or night, of the
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premises above described and forthwith seiJe and ta<epossession of the abovementioned personal property, and bringsaid property to the undersigned to be dealt with as the lawdirects. =itness my hand this 4st day of )arch, 040.
(signed2 3udge KQO
(d2 CiteFenumerate the defects, if any, of the search warrant.(672
S&GGES'E( ANS)ER*
(42 %he search warrant failed to particularly describe the placeto be searched and the things to be seiJed (1ule 40, !ec.,1ules of Court2. (02 %he search warrant commanded the immediate search, atany time in the day or night. %he general rule is that asearch warrant must be served in the day time (1ule 40,!ec., 1evised 1ules on Criminal rocedure2, or that portion of the twenty-four hours in which a man’s person andcountenance are distinguishable (4* C.3. 4462. By way of e@ception, a search warrant may be made at night when it is
positively asserted in the aidavit that the property is on theperson or in the place ordered to be searched (Alvares vs. C$&of %ayabas, hil. 662. %here is no showing that the e@ceptionapplies.
(e2 !uppose the search warrant was served on )arch 4,040 and the search yieldedthe described contraband and a case was Eled against theaccused in 1%C, !ta. CruJ, :aguna and you are the lawyer of !io ao and o ia, what will you do> (672
S&GGES'E( ANS)ER*
)otion to Puash the search warrant for having been servedbeyond its period of validity. (1ule 40, !ec. 4, 1ules of Court2. A search warrant shall be valid only for ten (42 daysfrom its date. %hereafter, it shall be void. (1ule 40, !ec.4,1evised 1ules of Court2.
(f2 !uppose an unlicensed armalite was found in plain view bythe searchers and the warrant was ordered Huashed, should
the court order the return of the same to the Chinesenationals>
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"@plain your answer. (672
S&GGES'E( ANS)ER*
'o, the court should not order the return of the unlicensedarmalite because it is contraband or illegal per se. (D"A vs.Brodett, ;.1. 'o. 4+6+, !eptember 0, 0442. %he possessionof an unlicensed armalite found in plain view is malaprohibita. %he same should be <ept in custodial legis.
Bail- A++lication !01"0%
'o.&.B. A was charged with a non-bailable oense. At the timewhen the warrant of arrest was issued, he was conEned inthe hospital and could not obtain a valid clearance to leavethe hospital. e Eled a petition for bail saying therein that hebe considered as having placed himself under the jurisdictionof the court. )ay the court entertain his petition> =hy orwhy not> (72
S&GGES'E( ANS)ER*'o, the court may not entertain his petition as he has not yetbeen placed under arrest. A must be XliterallyY placed under the
custody of the law before his petition for bail could beentertained by the court ()iranda vs. %uliao, ;.1. 'o. 4*6,)arch 64, 02.
AL'ERNA'I:E ANS)ER*
Qes, a person is deemed to be under the custody of the laweither when he hasbeen arrested or has surrendered himself to the jurisdiction of the court. %he accused who is conEned in a hospital may be
deemed to be in the custody of the law if he clearlycommunicates his submission to the court while he is conEnedin the hospital. (aderanga vs. Court of Appeals, ;.1. 'o. 'o.44*, August 0, 4++2.
Bail !0110%
D was charged with murder, a capital oense. After arraignment,
he applied for bail. %he trial court ordered the prosecution to
present its evidence in full on the ground that only on the basis of
such presentation could it determine whether the evidence of DMs
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guilt was strong for purposes of bail. &s the ruling correct> =hy>
(672
S&GGES'E( ANS)ER*
'o, the prosecution is only reHuired to present as much evidence
as is necessary to determine whether the evidence of DMs guilt is
strong for purposes of bail.(1ule 44, sec. 2.
Bail- A++eal !01">% & was charged with murder in the lower court. is e#i#ion for -ail was denied after a summary hearing on the ground that the
prosecution had established a strong evidence of guilt. 'o 'o#ion for Reconsi!era#ion was Eled from the denial of the e#i#ion for -ail. During the reception of the evidence of the accused, theaccused reiterated his petition for bail on the ground that thewitnesses so far presented by the accused had shown that noHualifying aggravating circumstance attended the <illing. %he courtdenied the petition on the grounds that it had already ruled thatN (i2the evidence of guilt is strong/ (ii2 the resolution for the e#i#ion for -ail is solely based on the evidence presented by the prosecution/and (iii2 no )otion for 1econsideration was Eled from the denial of the e#i#ion for -ail. !3?%
!A% &f you are the 3udge, how will you resolve the incident>
S&GGES'E( ANS)ERS*
&f & were the judge, & will grant the etition for Bail if theevidence does not show any Hualifying aggravating circumstance.&n such a case the oense would be only homicide which isbailable.
(i2 %he ground that the court had already ruled that the evidenceof guilt is strong is improper. An order denying an application forbail is interlocutory and remains at the control of the court untilEnal judgment. ence the court is not bound by its earlier rulingand may reconsider the same if the evidence or law warrants thesame.
(ii2 %he ground that the resolution for the etition for Bail is solelybased on the evidence presented by the prosecution is improper.=hile ! 144 provides that the prosecution has the burden ofproof to show that the evidence of guilt is strong, it should not beta<en to mean that the resolution of the bail application is basedsolely on the prosecution evidence. At the hearing for the bailapplication, both the prosecution and the accused must be given
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reasonable opportunity to prove or to disprove, respectively, thatthe evidence of guilt is strong. (!antos v. #Elada, 0 !C1A 2.
(iii2 %he ground that no motion for reconsideration was Eled fromthe order denying the petition for bail is improper. As previouslydiscussed, an order denying bail is merely interlocutory. ence thefailure to move for reconsideration thereof during the trial will notrender the order Enal and conclusive.
!B% !uppose the accused is convicted of the crime of homicide andthe accused Eled a 'otice of Appeal, is he entitled to bail>
S&GGES'E( ANS)ER*
'o, after conviction by the 1%C of an oense not punishable by
death, reclusion 2er2e#ua, or life imprisonment, admission to bail isdiscretionary. (! 1442.
Bail- A++eal !"##,%
&n an information charging them of )urder, policemen A, B and C
were convicted of omicide. A appealed from the decision but B
and C did not. B started serving his sentence but C escaped and is
at large. &n the Court of Appeals, A applied for bail but was denied.
$inally, the Court of Appeals rendered a decision acHuitting A on
the ground that the evidence pointed to the 'A as the <illers of the victim.
4 =as the Court of AppealRs denial of ARs application for bail
proper> 5078
0 Can B and C be beneEted by the decision of the Court of
Appeals> 5678
S&GGES'E( ANS)ER*
4, Qes, the Court of Appeals properly denied ARs application for bail.%he court had the discretion to do so. Although A was convicted of
homicide only, since he was charged with a capital oense, on
appeal he could be convicted of the capital oense. (#bosa vs.
Court of Appeals, 0 !C1A 04.2
AL'ERNA'I:E ANS)ER*
nder Circular 'o. 0-+0, A is entitled to bail because he was
convicted of homicide and hence the evidence of guilt of murder is
not strong.
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S&GGES'E( ANS)ER*
0. B, who did not appeal, can be beneEted by the decision of the
Court of Appeals which is favorable and applicable to him. (!ec.
44 5a8. 1ule 400, 1ules of Criminal rocedure.2 %he beneEt will also
apply to C even if his appeal is dismissed because of his escape.
Bail- A++lication- :enue !0110%
&f an information was Eled in the 1%C-)anila charging D with
homicide and he was arrested in PueJon City, in what court or
courts may he apply for bail> "@plain. (672
S&GGES'E( ANS)ER*
D may apply for bail in the 1%C-)anila where the information was
Eled or in the 1%C-PueJon City where he was arrested, or if no
judge, thereof is available, with any metropolitan trial judge,
municipal trial judge or municipal circuit trial judge therein. (1ule
44, sec. 4*2.
Bail- /orms o Bail !"###%
&n what forms may bail be given> (072
S&GGES'E( ANS)ER*
Bail may be given by a corporate surety, or through a property
bond, cash deposit or recogniJance.Bail/ )atter of 1ight (4+++2
=hen the accused is entitled as a matter of right to bail, may the
Court refuse to grant him bail on the ground that there e@ists a
high degree of probability that he will abscond or escape> "@plain.
(072
S&GGES'E( ANS)ER*
&f bail is a matter of right, it cannot be denied on the ground thatthere e@ists a high degree of probability that the accused will
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abscond or escape. =hat the court can do is to increase the amount
of the bail. #ne of the guidelines that the judge may use in E@ing a
reasonable amount of bail is the probability of the accusedappearing in trial.
Bail- =atter o Rig4t vs. =atter o (iscretion !"###%
=hen is bail a matter of right and when is it a matter of discretion>
(072
S&GGES'E( ANS)ER*
=hen Bail is a matter of rightN
All persons in custody shall (a2 before or after conviction by the
metropolitan and municipal trial courts, and (b2 before conviction
by the 1%C of an oense not punishable by death, reclusion
perpetua or life imprisonment, be admitted to bail as a matter of
right, with suicient sureties, or be released on recogniJance as
prescribed by law or 1ule 44. (!ec. ,
1ule 44, 1ules of Court, as amended by Circular 'o. 40-+.2
=hen bail is a matter of discretionN
pon conviction by the 1%C of an oense not punishable by death,
reclusion perpetua or life imprisonment, on application of the
accused. &f the penalty of imprisonment e@ceeds si@ years but not
more than 0 years, bail shall be denied upon a showing by the
prosecution, with notice to the accused, of the following or other
similar circumstancesN
4 %hat the accused is a recidivist, Huasi-re-cidivist or habitual
delinHuent, or has committed the crime aggravated by the
circumstance of reiteration/
0 %hat the accused is found to have previously escaped from
legal conEnement, evaded sentence, or has violated the conditions
of his bail without valid justiEcation/
6 %hat the accused committed the oense while on probation,
parole, or under conditional pardon/
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%1". %he accused has the right to move for the production orinspection of material evidence in the possession of theprosecution. &t authoriJes the defense to inspect, copy orphotograph any evidence of the prosecution in its possessionafter obtaining permissionfrom the court (1ule 44, !ec. 4/ =ebb vs. De :eon, 0*!C1A 0 54++82.
AL'ERNA'I:E ANS)ER* $A:!". %he accused in criminal case only has the right to availof conditional e@amination of his witness before a judge, or, if not practicable, a member of a Bar in good standing so
designated by the judge in the order, or if the order be made by acourt of superior jurisdiction,before an inferior court to be designated therein. (sec.40 V46, 1ule44+2. )odes of discovery under civil actions does not apply tocriminal proceedings because the latter is primarily governedby the 1"9&!"D 1:"! #$ C1&)&'A: 1#C"D1" (9da. de)anguerravs 1isos Z 6 !C1A ++2.
(emurrer to Evidence- Contract o Carriage !011>%
AK, a )a<ati-bound paying passenger of B, a public utility bus,
died instantly on board the bus on account of the fatal head wounds
he sustained as a result of the strong impact of the collision
between the bus and a dump truc< that happened while the bus
was still travelling on "D!A towards )a<ati. %he foregoing facts,
among others, were duly established on evidence-in-chief by the
plainti %Q, sole heir of AK, in %QMs action against the subjectcommon carrier for breach of contract of carriage. After %Q had
rested his case, the common carrier Eled a demurrer to evidence,
contending that plaintiMs evidence is insuicient because it did not
show (42 that defendant was negligent and (02 that such negligence
was the pro@imate cause of the collision. !hould the court grant or
deny defendantRs demurrer to evidence> 1eason brieGy. (72
S&GGES'E( ANS)ER*
'o. %he court should not grant defendantRs demurrer to evidencebecause the case is for breach of contract of carriage. roof that
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6. Qes. =ithout any evidence from the accused, the prima facie
evidence of the prosecution has been converted to proof beyond
reasonable doubt.
AL'ERNA'I:E ANS)ER*
&f the evidence of guilt is not strong and beyond reasonable doubt
then the court cannot legally convict K for murder.
(emurrer to Evidence- 8o Leave o Court !011"%
Carlos, the accused in a theft case, Eled a demurrer to evidence
without leave of court. %he court denied the demurrer to evidence
and Carlos moved to present his evidence. %he court denied CarlosMmotion to present evidence and instead judgment on the basis of
the evidence for the prosecution. =as the court correct in
preventing Carlos from presenting his evidence and rendering
judgment on the basis of the evidence for the prosecution> =hy>
(72
S&GGES'E( ANS)ER*
Qes, because the demurrer to the evidence was Eled without leave
of court. %he 1ules provide that when the demurrer to evidence isEled without leave of court, the accused waives the right to present
evidence and submits the case for judgment on the basis of the
evidence for the prosecution. (!ec. 06 of 1ule 44+, 1evised 1ules of
Criminal rocedure2
(emurrer to Evidence- 8o Leave o Court !011>%
%he information for illegal possession of Erearm Eled against the
accused speciEcally alleged that he had no license or permit to
possess the caliber . pistol mentioned therein. &n its evidence-in-chief, the prosecution established the fact that the subject Erearm
was lawfully seiJed by the police from the possession of the
accused, that is, while the pistol was tuc<ed at his waist in plain
view, without the accused being able to present any license or
permit to possess the Erearm. %he prosecution on such evidence
rested its case and within a period of Eve days therefrom, the
accused Eled a demurrer to evidence, in sum contending that the
prosecution evidence has not established the guilt of the accused
beyond reasonable doubt and so prayed that he be acHuitted of theoense charged.
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consent to the provisional dismissal of the case. %he oended party
was notiEed of the dismissal but she refused to give her consent.
!ubseHuently, the private complainant urged the public prosecutor
to reEle the murder charge because the accused failed to pay the
consideration which he had promised for the e@ecution of the
Aidavit of Desistance. %he public prosecutor obliged and reEled
the murder charge against the accused on 4 $ebruary 06, the
accused Eled a )otion to Puash the &nformation on the ground that
the provisional dismissal of the case had already become
permanent. (72
a2 =as the provisional dismissal of the case proper> b2 1esolve the)otion to Puash.
S&GGES'E( ANS)ER*
(a2 %he provisional dismissal of the case was proper because the
accused gave his e@press consent thereto and the oended party
was notiEed. &t was not necessary for the oended party to give her
consent thereto. (!ec. of 1ule 44*2.
(b2 %he motion to Huash the information should be denied because,
while the provisional dismissal had already become permanent, the
prescriptive period for Eling the murder charge had not prescribed.
%here was no double jeopardy because the Erst case was dismissed
before the accused had pleaded to the charge. (!ec. * of 1ule 44*2.
(ouble Jeo+ardy !0110%
D was charged with slight physical injuries in the )%C. e pleaded
not guilty and went to trial. After the prosecution had presented its
evidence, the trial court set the continuation of the hearing on
another date. #n the date scheduled for hearing, the prosecutor
failed to appear, whereupon the court, on motion of D, dismissed
the case. A few minutes later, the prosecutor arrived and opposed
the dismissal of the case. %he court reconsidered its order and
directed D to present his evidence. Before the ne@t date of trial
came, however, D moved that the last order be set aside on the
ground that the reinstatement of the case had placed him twice in
jeopardy. Acceding to this motion, the court again dismissed the
case. %he prosecutor then Eled an information in the 1%C, charging
D with direct assault based on the same facts alleged in the
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information for slight physical injuries but with the added
allegation that D inGicted the injuries out of resentment for what
the complainant had done in the performance of his duties aschairman of the board of election inspectors. D moved to Huash the
second information on the ground that its Eling had placed him in
double jeopardy. ow should DMs motion to Huash be resolved> (72
S&GGES'E( ANS)ER*
DMs motion to Huash should be granted on the ground of double
jeopardy because the Erst oense charged is necessarily included
in the second oense charged. 5Draculan v. Donato, 4 !C1A 0
(4+28.
AL'ERNA'I:E ANS)ER*
DMs motion to Huash should be denied because the two dismissals of
the case against him were on his motion (hence with his e@press
consent2 and his right to a speedy trial was not violated.
(ouble Jeo+ardy- &+grading- 2riginal C4arges !011<%
$or the multiple stab wounds sustained by the victim, 'oel was
charged with frustrated homicide in the 1%C. pon arraignment,he entered a plea of guilty to said crime. 'either the court nor the
prosecution was aware that the victim had died two days earlier on
account of his stab wounds. Because of his guilty plea, 'oel was
convicted of frustrated homicide and meted the corresponding
penalty. =hen the prosecution learned of the victimRs death, it Eled
within Efteen (42 days therefrom a motion to amend the
information to upgrade the charge from frustrated homicide to
consummated homicide. 'oel opposed the motion claiming that the
admission of the amended information would place him in double jeopardy. 1esolve the motion with reasons. (72
S&GGES'E( ANS)ER*
%he amended information to consummated homicide from
frustrated homicide does not place the accused in double jeopardy.
As provided in the second paragraph of !ec. *, 1ule 44*,0
1ules of Criminal rocedure, the conviction of the accused shall not
be a bar to another prosecution for an oense which necessarily
includes the oense charged in the former complaint orinformation whenN (a2 the graver oense developed due to
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subject of an arrest warrant duly issued by the proper criminal
court of !tate KK in connection with a criminal case for ta@ evasion
and fraud before his return to 1 as a bali<bayan. etitioner praysthat 3uan be e@tradited and delivered to the proper authorities of
!tate KK for trial, and that to prevent 3uanRs Gight in the interim, a
warrant for his immediate arrest be issued. Before the 1%C could
act on the petition for e@tradition, 3uan Eled before it an urgent
motion, in sum praying (42 that !o3Rs application for an arrest
warrant be set for hearing and (02 that 3uan be allowed to post bail
in the event the court would issue an arrest warrant. !hould the
court grant or deny 3uanRs prayers> 1eason. (72
S&GGES'E( ANS)ER*
nder the "@tradition %reaty and :aw, the application of the
!ecretary of 3ustice for a warrant of arrest need not be set for
hearing, and 3uan cannot be allowed to post bail if the court would
issue a warrant of arrest. %he provisions in the 1ules of Court on
arrest and bail are not basically applicable. (;overnment of the
nited !tates of America v. uruganan, 6+ !C1A 06 50082
Inormation !011"%
%he prosecution Eled an information against 3ose for slight physical
injuries alleging the acts constituting the oense but without
anymore alleging that it was committed after 3oseMs unlawful entry
in the complainantMs abode. =as the information correctly prepared
by the prosecution> =hy> (72
S&GGES'E( ANS)ER*
'o. %he aggravating circumstance of unlawful entry in the
complainantMs abode has to be speciEed in the information/otherwise, it cannot be considered as aggravating. (!ec. of 1ule
44, 1evised 1ules of Criminal rocedure2
AL'ERNA'I:E ANS)ER*
%he information prepared by the prosecutor is not correct because
the accused should have been charged with HualiEed trespass to
dwelling.
Com+laint vs. Inormation !"###%
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Distinguish a Complaint from &nformation. (072
S&GGES'E( ANS)ER*
&n criminal procedure, a complaint is a sworn written statement
charging a person with an oense, subscribed by the oended
party, any peace oicer or other peace oicer charged with the
enforcement of the law violated. (!ec. 6, 1ule 44, 4+ 1ules of
Criminal rocedure2/ while an information is an accusation in
writing charging a person with an oense subscribed by the
prosecutor and Eled with the court. (!ec. , &d.2
Inormation- =otion to uas4 !011#%
edrito and %omas, )ayor and %reasurer, respectively, of the)unicipality of !an )iguel, :eyte, are charged before the!andiganbayan for violation of !ection 6(e2, 1A no. 64+ (Anti-;raft and Corrupt ractices Act2. %he information alleges,among others, that the two conspired in the purchase of severalunits of computer through personal canvass instead of a publicbidding, causing undue injury to the municipality. Beforearraignment, the accused moved for reinvestigation of thecharge, which the court granted. After reinvestigation, the
#ice of the !pecial rosecutor Eled an amended informationduly singed and approved by the !pecial rosecutor, alleging thesame delictual facts, but with an additional allegation that theaccused gave unwarranted beneEts to !B enterprises owned by!amuel. !amuel was also indicted under the amendedinformation. Before !amuel was arraigned, he moved to Huashthe amended information on the ground that the oicer whoEled had no authority to do so. 1esolve the motion to Huashwith reasons.
S&GGES'E( ANS)ER*
%he motion to Huash Eled by !amuel should be granted. %hereis no showing that the special prosecutor was duly authoriJedor deputiJed to prosecute !amuel. nder 1.A. 'o. **, also<nown as the #mbudsman Act of 4++, the !pecial rosecutorhas the power and authority, under the supervision and control of the #mbudsman, to conduct preliminary investigation andprosecute criminal cases before the !andiganbayan and performsuch other duties assigned to him by the #mbudsman(Calingin vs. Desierto, 0+ !C1A *0 50*82.
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Absent a clear delegation of authority from the #mbudsman tothe !pecial rosecutor to Ele the information, the latter wouldhave no authority to Ele the same. %he !pecial rosecutor cannotbe considered an alter ego of the #mbudsman as the doctrineof HualiEed political agency does not apply to the oice of the#mbudsman. &n fact, the powers of the oice of the !pecialrosecutor under the law may be e@ercised only under thesupervision and control and upon authority of the #mbudsman(ereJ vs. !andiganbayan, 6 !C1A 00 5082.
AL'ERNA'I:E ANS)ER*
%he motion to Huash should be denied for lac< of merit. %hecase is already Eled in court which must have been done withthe approval of the #mbudsman, and thus the !pecialrosecutor’s oice of the #mbudsman ta<es over. As it is thecourt which ordered the reinvestigation, the #ice of the !pecialrosecutor which is handling the case in court, has theauthority to act and when warranted, reEle the case. %heamendment made is only a matterof form which only particulariJed the violation of the sameprovision of 1ep. Act 64+, as amended.
Inormation- =otion to uas4 !011#%
A criminal information is Eled in court charging Anselmowith homicide. Anselmo Eles a motion to Huash information onthe ground that no preliminary investigation was onducted.
=ill the motion be granted> =hy or why not>
S&GGES'E( ANS)ER* '#, the motion to Huash will not be granted. %he lac< of preliminary investigation is not a ground for a motion to Huashunder the 1ules of Criminal rocedure. reliminaryinvestigation is only a statutory right and can be waived. %heaccused should instead Ele a motion for reinvestigation withinEve (2 days after he learns of the Eling in Court of the caseagainst him (!ec. , 1ule 440, as amended2.
Inormation- Amendment !011"%
Amando was charged with frustrated homicide. Before he enteredhis plea and upon the advice of his counsel, he manifested his
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willingness to admit having committed the oense of serious
physical injuries. %he prosecution then Eled an amended
information for serious physical injuries against Amando. =hatsteps or action should the prosecution ta<e so that the amended
information against Amando which downgrades the nature of the
oense could be validly made> =hy> (72
S&GGES'E( ANS)ER*
&n order that the amended information which downgrades the
nature of the oense could be validly made, the prosecution should
Ele a motion to as< for leave of court with notice to the oended
party. (!ec.4 of 1ule 44, 1evised 1ules of Criminal rocedure2.%he new rule is for the protection of the interest of the oended
party and to prevent possible abuse by the prosecution.
Inormation- Amendment- (ouble Jeo+ardy- Bail !0110%
A. D and " were charged with homicide in one information.
Before they could be arraigned, the prosecution moved to amend
the information to e@clude " therefrom. Can the court grant the
motion to amend> =hy> (072
B. #n the facts above stated, suppose the prosecution, instead
of Eling a motion to amend, moved to withdraw the information
altogether and its motion was granted. Can the prosecution re-Ele
the information although this time for murder> "@plain (672
!;;"!%"D A'!="1N
A. Qes, provided notice is given to the oended party and the court
states its reasons for granting the same. (1ule 44, sec. 42.
B. Qes, the prosecution can re-Ele the information for murder insubstitution of the information for homicide because no double
jeopardy has as yet attached. 5;alveJ v. Court of Appeals, 06*
!C1A (4++28.
Inormation- Amendment- Su+ervening Events !"##$%
A was accused of homicide for the <illing of B. During the trial, the
public prosecutor received a copy of the marriage certiEcate of A
and B.
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(a2 Can the public prosecutor move for the amendment of the
information to charge A with the crime of parricide>
(b2 !uppose instead of moving for the amendment of the
information, the public prosecutor presented in evidence the
marriage certiEcate without objection on the part of the defense,
could Abe convicted of parricide>
S&GGES'E( ANS)ER*
(a2 'o. %he &nformation cannot be amended to change the oense
charged from homicide to parricide. $irstly, the marriage is not a
supervening fact arising from the act constituting the charge of
homicide. (!ec. *5a8 of 1ule 44*2. !econdly, after plea, amendments
may be done only as to matters of form. %he amendment is
substantial because it will change the nature of the oense. (!ec.
4 of 1ule 44/ Dionaldo us. Dacuycuy. 4 !C1A *62.
(b2 'o. A can be convicted only of homicide not of parricide which
is a graver oense. %he accused has the constitutional rights of
due process and to be informed of the nature and the cause of the
accusation against him. (!ecs. 4, 4 (42 and (0\ Art. &&&. 4+*
Constitution2, &nformation/ Bail (062
After the reHuisite proceedings, the rovincial rosecutor Eled an
&nformation for homicide against
K. %he latter, however, timely Eled a etition for 1eview of the
1esolution of the rovincial rosecutor with the !ecretary of
3ustice who, in due time, issued a 1esolution reversing the
resolution of the rovincial rosecutor and directing him to
withdraw the &nformation.
Before the rovincial rosecutor could comply with the directive of
the !ecretary of 3ustice, the court issued a warrant of arrest
against K.
%he ublic rosecutor Eled a )otion to Puash the =arrant of
Arrest and to =ithdraw the &nformation, attaching to it the
1esolution of the !ecretary of 3ustice. %he court denied the motion.
(72 a2 =as there a legal basis for the court to deny the motion> b2
&f you were the counsel for the accused, what remedies, if any,
would you pursue>
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unlicensed . caliber gun is punishable by prision mayor in its
minimum period and a Ene of 6.., while possession of an
unlicensed .60 caliber gun is punishable by prision correctional inits ma@imum period and a Ene of not less than 4,.. As
counsel of the accused, you intend to Ele a motion to Huash the
&nformation. =hat ground or grounds should you invo<e> "@plain.
(72
S&GGES'E( ANS)ER*
%he ground for the motion to Huash is that more than one oense is
charged in the information. (!ec. 65f8, 1ule 44*, 0 1ules of
Criminal rocedure2 :i<ewise, the 1%C has no jurisdiction over thesecond oense of possession of an unlicensed .60 caliber gun,
punishable by prision correctional in its ma@imum period and a Ene
of not less than 4... &t is the )%C that has e@clusive and
original jurisdiction over all oenses punishable by imprisonment
not e@ceeding si@ years. (!ec. 0, 1.A. 'o. *+4, amending B.. Blg.
40+2
Inormation- =otion to uas4- Grounds !"##,%
4 ;ive two (02 grounds to Huash an &nformation.5078
0 &f the &nformation is not accompanied by a certiEcation that a
preliminary investigation has been conducted. &s the &nformation
void> 5678
S&GGES'E( ANS)ER*
4. %wo grounds to Huash an &nformation areN a2 %hat the facts
charged do not constitute an oense/ and
b2 %hat the court trying the case has no jurisdiction over the
oense charged or the person of the accused.
c2 %hat the oicer who Eled the information had no authority to do
so/ d2 %hat it does not conform substantially to the prescribed form/
e2 %hat more than one oense is charged e@cept in those cases
in which e@isting laws prescribe a single punishment for various
oenses/
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f2 %hat the criminal action or liability has been e@tinguished/
g2 %hat it contains averments which, if true, would constitute a
legal e@cuse or justiEcation/ and
h2 %hat the accused has been previously convicted or in
jeopardy of being convicted, or acHuitted of the oense charged.
(!ec. 6, 1ule 44*. 1ules of Criminal rocedure.2
S&GGES'E( ANS)ER*
0. 'o. %he certiEcation which is provided in !ec. , 1ule 440. 1ules
of Criminal rocedure, is not an indispensable part of the
information. (eople vs. :apura, 0 !C1A .2
=otion to (issmiss* Grounds !01">%
Co Batong, a %aipan, Eled a civil action for damages with the1egional %rial Court (1%C2 of araaHue City against 3ose endu<o,a news reporter of the hilippine %imes, a newspaper of generalcirculation printed and published in araaHue City. %he complaintalleged, among others, that 3ose endu<o wrote malicious anddefamatory imputations against Co Batong/ that Co BatongMsbusiness address is in )a<ati City/ and that the libelous article was
Erst printed and published in araaHue City. %he complaint prayedthat 3ose endu<o be held liable to pay 0,., as moraldamages/ 4,., as e@emplary damages/ and ,., asattorneyMs fees. 3ose endu<o Eled a )otion to Dismiss on thefollowing groundsN 4. %he 1%C is without jurisdiction because under the %otality 1ule,the claim for damages in the amount of 6,. fall within thee@clusive original jurisdiction of the )etropolitan %rial Court()e%C2 of araaHue City.
0. %he venue is improperly laid because what the complaint allegedis Co BatongMs business address and not his residence address.
Are the grounds invo<ed in the )otion to Dismiss proper> !>?%
S&GGES'E( ANS)ER*
'o, the grounds invo<ed in the motion to dismiss improper.
%he invocation of the %otality 1ule is misplaced. nder Art.6 of the 1evised enal Code, jurisdiction over a civil action fordamages in case of libel is with the Court of $irst &nstance, now the
1egional %rial Court. ('ocum v. %an, 06 !eptember 02. %he said
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Described as Xres judicata in prison grey,Y the right againstdouble jeopardy prohibits the prosecution of a person for a crimeof which he has been previously acHuitted or convicted. %hepurpose is to set the eects of the Erst prosecution forever atrest, assuring the accused thathe shall not thereafter be subjected to the danger and an@ietyof a second charge against him for the same oense (3oel B.Caes vs. &ntermediate Appellate Court, 'ovember , 4++2.
Jurisdiction- Com+le Crimes !01"6%
#n his way to the ' Academy in !ilang, Cavite on board apublic transport bus as a passenger, olice &nspector )asigasig
of the 9alenJuela olice witnessed an on-going armed robberywhile the bus was traversing )a<ati. is alertness and trainingenabled him to foilthe robbery and to subdue the malefactor. e disarmed thefelon and while fris<inghim, discovered another handgun tuc<ed in his waist. e seiJedboth handguns and themalefactor was later charged with the separate crimes of robbery and illegal possession of Erearm.
A2 =here should olice &nspector )asigasig bring the felon for
criminal processing> %o !ilang, Cavite where he is bound/ to)a<ati where the bus actually was when the felonies too< place/ or bac< to 9alenJuela where he is stationed> =hichcourt has jurisdiction over the criminal cases> (672
S&GGES'E( ANS)ER*
olice &nspector )asigasig should bring the felon to the nearestpolice station or jail in )a<ati City where the bus actually waswhen the felonies too< place. &n cases of warrantless arrest,
the person arrested without a warrant shall be forthwithdelivered to the nearest police station or jail and shall beproceeded against in accordance with section * of 1ule 44(!ection 446, 1ules of Criminal rocedure2. ConseHuently, thecriminal case for robbery and illegal possession of Erearms can beEled in 1egional %rial Court of )a<ati City or on any of theplaces of departure or arrival of the bus.
(B2 )ay the charges of robbery and illegal possession of Erearm be Eled directly by theinvestigating prosecutor with the appropriate court without a
preliminary investigation> (72
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S&GGES'E( ANS)ER*
Qes. !ince the oender was arrested in Gagrante delictowithout a warrant of arrest, an inHuest proceeding should beconducted and thereafter a case may be Eled in court evenwithout the reHuisite preliminary investigation.
nder !ection , 1ule 440, 1ules of Criminal rocedure, whena person is lawfully arrested without a warrant involving anoense which reHuires a preliminary investigation, thecomplaint or information may be Eled by a prosecutor withouta need of such investigation provided an inHuest has beenconducted in accordance with e@isting rules.
3urisdiction/ 1einvestigation/ Arrest (02
3ose, Alberto and 1omeo were charged with murder. ponEling the information, the 1%C judge issued warrants for theirarrest. :earning of the issuance of the warrants, the three accused jointly Eled a motion for reinvestigation and for the recall of thewarrants of arrest. #n the date set for hearing of their motion,none of accused showed up in court for fear of being arrested.%he 1%C judge denied their motion because the 1%C did notacHuire jurisdiction over the persons of the movants. Did the
1%C rule correctly>
S&GGES'E( ANS)ER*
%he 1%C was not entirely correct in stating that it had no jurisdiction over the persons of the accused. By Eling motionsand see<ing airmative reliefs from the court, the accused voluntarily submitted themselves to the jurisdiction of the court.owever, the 1%C correctly denied the motion forreinvestigation. Before an accused can move for reinvestigation
and the recall of his warrant of arrest, he must Erst surrenderhis person to the court ()iranda, et al. vs. %uliao, ;.1. 'o.4*6, 64 )arch 02.
Jurisdiction- Com+le Crimes !0116%
&n comple@ crimes, how is the jurisdiction of a court determined>
7
S&GGES'E( ANS)ER*
&n a comple@ crime, jurisdiction over the whole comple@ crime mustbe lodged with the trial court having jurisdiction to impose the
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ma@imum and most serious penalty imposable on an oense
forming part of the comple@ crime. (Cuyos v. ;arcia, 4 !C1A 60
54+82.
Jurisdiction- /inality o a Judgment !011<%
)ariano was convicted by the 1%C for raping 9ictoria and meted
the penalty of reclusion perpetua. =hile serving sentence at the
'ational enitentiary, )ariano and 9ictoria were married. )ariano
Eled a motion in said court for his release from the penitentiary on
his claim that under 1epublic Act 'o. 66, his marriage to
9ictoria e@tinguished the criminal action against him for rape, as
well as the penalty imposed on him. owever, the court denied themotion on the ground that it had lost jurisdiction over the case
after its decision had become Enal and e@ecutory. (*72
a2 &s the Eling of the court correct> "@plain.
S&GGES'E( ANS)ER*
'o. %he court can never lose jurisdiction so long as its decision has
not yet been fully implemented and satisEed. $inality of a judgment
cannot operate to divest a court of its jurisdiction. %he court retains
an interest in seeing the proper e@ecution and implementation of
its judgments, and to that e@tent, may issue such orders necessary
and appropriate for these purposes. ("chegaray v. !ecretary of
3ustice, ;.1. 'o. 460, 3anuary 4+, 4+++2
b2 =hat remedyFremedies should the counsel of )ariano ta<e to
secure his proper and most e@peditious release from the 'ational
enitentiary> "@plain.
S&GGES'E( ANS)ER*
%o secure the proper and most e@peditious release of )ariano from
the 'ational enitentiary, his counsel should EleN (a2 a petition for
habeas corpus for the illegal conEnement of )ariano (1ule 402, or
(b2 a motion in the court which convicted him, to nullify the
e@ecution of his sentence or the order of his commitment on the
ground that a supervening development had occurred ()elo v.
eople, ;.1. 'o. :-6, )arch 00, 4+2 despite the Enality of the
judgment.
Parties- Prosecution o 2@enses !0111%
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Qour friend QQ, an orphan, 4 years old, see<s your legal advice.
!he tells you that OO, her uncle, subjected her to acts of
lasciviousness/ that when she told her grandparents, they told herto just <eep Huiet and not to Ele charges against OO, their son.
$eeling very much aggrieved, she as<s you how her uncle OO can
be made to answer for his crime. a2 =hat would your advice be>
"@plain. (672 b2 !uppose the crime committed against QQ by her
uncle OO is rape, witnessed by your mutual friend KK. But this time,
QQ was prevailed upon by her grandparents not to Ele charges. KK
as<s you if she can initiate the complaint against OO. =ould your
answer be the same> "@plain. (072.
S&GGES'E( ANS)ER*
(a2 & would advise the minor, an orphan of 4 years of age, to Ele
the complaint herself independently of her grandparents, because
she is not incompetent or incapable to doing so upon grounds other
than her minority. (!ec. , 1ule 44, 1ules of Criminal rocedure.2
(b2 !ince rape is now classiEed as a Crime Against ersons under
the Anti-1ape :aw of 4++* (1A 662, & would advise KK to initiate
the complaint against OO.
Plea o Guilty- to a Lesser 2@ense !0110%
D was charged with theft of an article worth p4,.. pon
being arraigned, he pleaded not guilty to the oense charged.
%hereafter, before trial commenced, he as<ed the court to allow
him to change his plea of not guilty to a plea of guilt but only to
estafa involving ,.. Can the court allow D to change his
plea> =hy> (072
S&GGES'E( ANS)ER*
'o, because a plea of guilty to a lesser oense may be allowed if
the lesser oense is necessarily included in the oense charged.
(1ule 44, sec. 02. "stafa involving ,. is not necessarily
included in theft of an article worth 4,.
Pre7udicial uestion !"###%
=hat is a prejudicial Huestion> (072
S&GGES'E( ANS)ER*
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A prejudicial Huestion is an issue involved in a civil action which is
similar or intimately related to the issue raised in the criminal
action, the resolution of which determines whether or not thecriminal action may proceed. (!ec. of 1ule 444.2
AN2';ER ANS)ER*
A prejudicial Huestion is one based on a fact distinct and separate
from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused.
Pre7udicial uestion !0111%
CK is charged with estafa in court for failure to remit to )) sumsof money collected by him (CK2 for )) in payment for goods
purchased from )), by depositing the amounts in his (CKMs2
personal ban< account. CK Eles a motion to suspend proceedings
pending resolution of a civil case earlier Eled in court by CK against
)) for accounting and damages involving the amounts subject of
the criminal case. As the prosecutor in the criminal case, brieGy
discuss your grounds in support of your opposition to the motion to
suspend proceedings. (72.
S&GGES'E( ANS)ER*
As the prosecutor, & will argue that the motion to suspend is not in
order for the following reasonsN
4 %he civil case Eled by CK against )) for accounting and
damages does not involve an issue similar to or intimately related
to the issue of estafa raised in the criminal action.
0 %he resolution of the issue in the civil case for accounting will
not determine whether or not the criminal action for estafa mayproceed. (!ec. , 1ule 444, 1ules of Criminal rocedure.2
Pre7udicial uestion !01">%
Solomon and +ai# got married in 0. &n04, Solomon contracted a second marriage with o2e.=hen +ai# found out about the second marriageof Solomon and o2e, she Eled a criminal case for bigamy beforethe 1egional %rial Court ( R0C2 of )anila sometime in 044.
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void, there would be no double sale and A would be innocent of the
oense of estafa. (1as v. 1asul, 4 !C1A 40.2
Pre'rial Agreement !011>%
)ayor %) was charged of malversation through falsiEcation of
oicial documents. Assisted by Atty. # as counsel de parte during
pre-trial, he signed together with #mbudsman rosecutor %; a
L3oint !tipulation of $acts and Documents,L which was presented to
the !andiganbayan. Before the court could issue a pre-trial order
but after some delay caused by Atty. #, he was substituted by Atty.
P1 as defense counsel. Atty. P1 forthwith Eled a motion to
withdraw the L3oint !tipulation,L alleging that it is prejudicial to theaccused because it contains, inter
byN sirdondeeUgmail.com age of alia, the statement that the
LDefense admitted all the documentary evidence of the
rosecution,L thus leaving the accused little or no room to defend
himself, and violating his right against self-incrimination. !hould
the court grant or deny P1Rs motion> 1eason. (72
S&GGES'E( ANS)ER*
%he court should deny P1Rs motion. &f in the preStrial agreement
signed by the accused and his counsel, the accused admits the
documentary evidence of the prosecution, it does not violate his
right against self-incrimination. is lawyer cannot Ele a motion to
withdraw. A pre-trial order is not needed. (Bayas v. !andiganbayan,
6+4 !C1A 4(00\2. %he admission of such documentary
evidence is allowed by the rule. (!ec. 0 of 1ule 44/ eople v.
ernandeJ, 0 !C1A 0 54++82.
Pre'rial- Criminal Case vs. Civil Case !"##$%
;ive three distinctions between a pre-trial in a criminal case and a
pre-trial in a civil case.
S&GGES'E( ANS)ER*
%hree distinctions between a pre-trial in a criminal case and a pre-
trial in a civil case are as followsN
4. %he pre-trial in a criminal case is conducted only Lwhere the
accused and counsel agreeL (1ule 44, !ec. 42N while the pre-trial
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in a civil case is mandatory. (!ec. 4 of former 1ule 0/ !ec, 4 of new
1ule 42.
0. %he pre-trial in a criminal case does not consider the
possibility of a compromise, which is one important aspect of the
pre-trial in a civil case. (!ec. 4 of former 1ule 0/ !ec. 0 of new
1ule 42.
6. &n a criminal case, a pre-trial agreement is reHuired to be
reduced to writing and signed by the accused and his counsel (!ee/
1ule 44, !ec. 2/ while in a civil case, the agreement may be
contained in the pre-trial order. (!ec. of former 1ule 0/ !ee * of
new 1ule *2.
'rial- Remedies !01"6%
At the ublic AttorneyRs #ice station in %aguig where youare assigned, your wor< reHuires you to act as public defenderat the local 1egional %rial Court and to handle cases involvingindigents. (A2 &n one criminal action for HualiEed theft where youare the defense attorney, you learned that the woman accusedhas been in detention for si@ months, yet she has not been to acourtroom nor seen a judge. =hat remedy would you underta<e
toaddress the situation and what forum would you use to invo<ethis relief> (672
S&GGES'E( ANS)ER*
!ection *, 1ule 44+ provides, if the public attorney assignedto defend a person charged with a crime <nows that the latteris preventively detained, either because he is charged with abailable crime but has no means to post bail, or, is chargedwith a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do thefollowingN
(a2 !hall promptly underta<e to obtain the presence of theprisoner for trial or cause a notice to be served on the personhaving custody of the prisoner reHuiring such person to soadvise the prisoner of his right to demand trial. (b2 pon receiptof that notice, the custodian of the prisoner shall promptlyadvise the prisoner of the charge and of his right to demandtrial. &f at any time thereafter the prisoner informs his
custodian that he demands such trial, the latter shall causenotice to that eect to be sent promptly to the public attorney.
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K@@ )oreover, !ection 4 (e2, 1ule 44 provides, when theaccused is underpreventive detention, his case shall be raIed and its recordstransmitted to the judge to whom the case was raIed withinthe three (62 days from the Eling of the information orcomplaint. %he accused shall be arraigned within ten (42 daysfrom the date of the raIe. %he pre-trial conference of his caseshall be held within ten (42 days after the arraignment.
#n the other hand, if the accused is not under preventivedetention, the arraignment shall be held within thirty (62 daysfrom the date the court acHuires jurisdiction over the personof the accused. (!ection 4 (g2, 1ule 442. !ince the accused has
not been brought for arraignment within the limit reHuired in theaforementioned 1ule, the &nformation may be dismissed uponmotion of the accused invo<ing his right to speedy trial (!ection+, 1ule 44+( or to a speedy disposition of cases (!ection 4, Article &&&, 4+* Constitution2.
AL'ERNA'I:E ANS)ER* A etition for )andamus is also feasible. &n eople vs. :umanlaw,;.1. 'o. 4+6, $ebruary 46, 0, the !upreme Court heldthat Xa writ of mandamus may be issued to control the
e@ercise of discretion when, in the performance of duty, thereis undue delay that can be characteriJed as a grave abuse of discretion resulting in manifest injustice. Due to the unwarranteddelays in the conduct of the arraignment of petitioner, he hasindeed the right to demand Z through a writ of mandamus Ze@peditious action from all oicial tas<ed with theadministration of justice. %hus, he may not only demand thathis arraignment be held but, ultimately, that the informationagainst him be dismissed on the ground of the violation of hisright to speedy trial.Y "rgo, a writ of mandamus is available to
the accused to compel the dismissal of the case.
AL'ERNA'I:E ANS)ER*
%he appropriate remedy of the detained accused is to applyfor bail since HualiEed theft is bailable, and she is in the1egional %rial Court (!ection , 1ule 44 of the 1ules of Criminalrocedure2. 5'oteN unless the aggregate value of the propertystolen is , and the above she will not be entitled to bailas a matter of right, because the penalty for the oense isreclusion perpetua pursuant to )emorandum #rder 'o. 44*8.
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(B2 &n another case, also for HualiEed theft, the detained young domestic helper has been brought to court Eve times inthe last si@ months, but the prosecution has yet to commencethe presentation of its evidence. Qou End that the reason forthis is the continued absence of the employer-complainant whois wor<ing overseas. =hat remedy is appropriate and beforewhich forum would you invo<e this relief> (672
S&GGES'E( ANS)ER* & will Ele a motion to dismiss the information in the courtwhere the case is pending on the ground of denial of the accusedright to speedy trial (!ection +, 1ule 44+/ %an vs. eople, ;.1.
'o. 4*66*, April 04, 0+, %hird Division, Chico-'aJario, 3.2.this remedy can beinvo<ed, at any time, before trial and if granted will result toan acHuittal. !ince the accused has been brought to Court Evetimes and in each instance it was postponed, it is clear thather right to a !peedy %rial has been violated. )oreover, & mayreHuest the court toissue !ubpoena Duces %ecum and Ad %estiEcandum to thewitness, so in case he disobeys same, he may be cited incontempt. & may also Ele a motion to order the witnessemployer-complainant to post bail to secure his appearance in
court. (!ection 4, 1ule 44+2.
AL'ERNA'I:E ANS)ER*
& will move for the dismissal of the case for failure toprosecute. %he grant of the motion will be with prejudice unlessthe court says otherwise. %he )otion will be Eled with the Courtwhere the action is pending.
C2 !till in another case, this time for illegal possession of
dangerous drugs, the prosecution has rested but you saw fromthe records that the illegal substance allegedly involved has notbeen identiEed by any of the prosecution witnesses nor has it beenthe subject of any stipulation.
!hould you now proceed posthaste to the presentation of defense evidence or consider some other remedy> "@plainremedial steps you propose to underta<e. (672
S&GGES'E( ANS)ER*
'o. & will not proceed with the presentation of defenseevidence. & will Erst Ele a motion for leave to Ele demurrer to
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evidence within Eve (2 days from the time the prosecution hasrested its case. &f the )otion is granted, & will Ele a demurrerto evidence within a non-e@tendible period of ten (42 days fromnotice on the ground of insuiciency of evidence. &n thealternative, & may immediately Ele a demurrer to evidencewithout leave of court (!ection 06, 1ule 44+, 1ules of Criminalrocedure2.&n eople vs. De ;uJman, ;.1. 'o. 4+, )arch 0, 04,the !upreme Court held that in a prosecution for violation of the Dangerous Drugs Act, the e@istence of the dangerous drugs isa condition sine Hua non for conviction. %he dangerous drug isthe very corpus delicti of the crime. !imilarly, in eople vs.!itco, ;.1. 'o. 4*00, )ay 4, 04, the igh Court held
that in prosecutions involving narcotics and other illegalsubstances, the substance itself constitutes part of the corpusdelicti of the oense and the fact of its e@istence is vital tosustain a judgment of conviction beyond reasonable doubt. (D2&n one other case, an indigent mother see<s assistance for her4-year old son who has been arrested and detained formalicious mischief. =ould an application for bail be theappropriate remedy or is there another remedy available> 3ustify your chosen remedy and outline the appropriate steps tota<e. (672
S&GGES'E( ANS)ER*
Qes. An application for bail is an appropriate remedy to secureprovisional liberty of the 4-year old boy. nder the 1ules, bail isa matter of right before or even after conviction before the)etropolitan %rial Court which has jurisdiction over the crimeof maliciousmischief. (!ection , 1ule 44 of the 1ules of Criminalrocedure2.
AL'ERNA'I:E ANS)ER* nder 1.A. +6 or otherwise <nown as the 3uvenile 3usticeand =elfare Act of 0 as amended by 1.A. 46, a child inconGict with the law has the right to bail and ecogniJance orto be transferred to a youth detention homeFyouth rehabilitationcenter. %husN
=here a child is detained, the court shall orderN(a2 the release of the minor on recogniJance to hisFherparents and other suitable person/
(b2 the release of the child in conGict with the law on bail/ or
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(c2 the transfer of the minor to a youth detention homeFyouthrehabilitation center. %he court shall not order the detention of a child in a jail pending trial or hearing of his case. %he writ of habeas corpus shall e@tend to all cases of illegal conEnement ordetention by which any person is deprived of his liberty, or bywhich the rightful custody of any person is withheld from theperson entitled thereto (&' %" )A%%"1 #$ %" "%&%&#'#$ AB"A! C#1! #$ "$")&A ". 1#D1&;"O, Eled by"D;A1D# ". 9":O vs. :&!A 1. 9&::A'"9A and%"1"!&%A 1. AB"::#, ;.1. 'o. 4+0, 3anuary 0+, 0,C#1#'A, 3.2.
!ince minors Efteen (42 years of age and under are not
criminally responsible,the child may not be detained to answer for the alleged oense.%he arresting authority has the duty to immediately release thechild to the custody of his parents or guardians or in theirabsence to the child’s nearest relative (!ection 0, republic Act+62.$ollowing the hierarchy of courts, the etition must be Eled inthe 1egional trial Court having jurisdiction over the placewhere the child is being detained. 5'oteN 1.A. +6 is notcovered by the 046 Bar "@amination !yllabus for 1emediallaw8.
'rial- Reverse 'rial !011$%
'o.9. (b2 =hat is reverse trial and when may it be resorted to>"@plain brieGy. (72
S&GGES'E( ANS)ER*
A reverse trial is one where the defendant or the accusedpresent evidence ahead of the plainti or prosecution and thelatter is to present evidence by way of rebuttal to theformer’s evidence. %his <ind of trial may ta<e place in a civilcase when the defendant’s Answer pleads new matters by wayof airmative defense, to defeat or evade liability forplainti ’s claim which is not denied but controverted.
&n a criminal case, a reverse trial may ta<e place when theaccused <nown to the trial court, on arraignment, that headduce airmative defense of a justifying or e@emptingcircumstances and thus impliedly admitting the act imputed to
him. %he trial court may then reHuire the accused to presentevidence Erst, proving the reHuisites of the justifying or
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e@empting circumstance he is invo<ing, and the prosecution topresent rebuttal evidence controverting the same.
'rial- S+eedy 'rial !011$%
: was charged with illegal possession of shabu before the 1%C. Although bail was allowable under his indictment, he could notaord to post bail, and so he remained in detention at theCity 3ail. $or various reasons ranging from the promotion of the residing 3udge, to the absence of the trial prosecutor,and to the lac< of notice to the City 3ail =arden, thearraignment of : was postpones nineteen times over a periodof two years. %wice during that period, :Ms counsel Eled
motions to dismiss, invo<ing the right of the accused tospeedy trial. Both motions were denied by the 1%C. Can : Ele apetition for mandamus. 1eason brieGy.
S&GGES'E( ANS)ER*
Qes, : can Ele a petition for mandamus to enforce hisconstitutional right to a speedy trial which was capriciouslydenied to him. %here is absolutely no justiEcation for postponingan arraignment of the accused nineteen (4+2 times and over aperiod of two (02 years. %he numerous, unreasonable
postponements of the arraignment demonstrate an abusivee@ercise of discretion (:umanlaw v. eralta, 0 !C1A 6+5082. Arraignment of an accused would not ta<e thirtyminutes of the precious time of the court, as against thepreventive imprisonment and deprivation of liberty of theaccused just because he does not have the means to post bailalthough the crime charged is bailable. %he right to a speedy trialis guaranteed by the Constitution to every citiJen accused of acrime, more so when is under preventive imprisonment. :, inthe given case, was merely invo<ing his constitutional rightwhen a motion to dismiss the case was twice Eled by hiscounsel. %he 1%C is virtually enjoined by the fundamental law torespect such right/ hence a duty. aving refused or neglectedto discharge the duty enjoined by law whereas there is noappeal nor any plain, speedy, and adeHuate remedy in theordinary course of law, the remedy of mandamus may be availedof.
'rial- 'rial in Absentia !01"1%
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'o, because a case cannot be provisionally dismissed e@cept upon
the e@press consent of the accused and with notice to the oended
party. (1ule 44*, sec. 2.
Remedies- :oid Judgment !011>%
AK was charged before the QQ 1%C with theft of jewelry valued at
0., punishable with imprisonment of up to 4 years of prision
mayor under the 1evised enal Code. After trial, he was convicted
of the oense charged, notwithstanding that the material facts duly
established during the trial showed that the oense committed was
estafa, punishable by imprisonment of up to eight years of prision
mayor under the said Code. 'o appeal having been ta<en
therefrom, said judgment of conviction became Enal. &s the
judgment of conviction valid> &s the said judgment reviewable thru
a special civil action for certiorari> 1eason. (72
S&GGES'E( ANS)ER*
Qes, the judgment of conviction for theft upon an information for
theft is valid because the court had jurisdiction to render judgment.
owever, the judgment was grossly and blatantly erroneous. %he
variance between the evidence and the judgment of conviction is
substantial since the evidence is one for estafa while the judgment
is one for theft. %he elements of the two crimes are not the same.
(:auro !antos v. eople, 44 !C1A *2. #ne oense does not
necessarily include or is included in the other. (!ec. of 1ule 402.
%he judgment of conviction is reviewable by certiorari even if no
appeal had been ta<en, because the judge committed a grave abuse
of discretion tantamount to lac< or e@cess of his jurisdiction inconvicting the accused of theft and in violating due process and his
right to be informed of the nature and the cause of the accusation
against him, which ma<e the judgment void. =ith the mista<e in
charging the proper oense, the judge should have directed the
Eling of the proper information and thereafter dismissed the
original information. (!ec. 4+ of 1ule 44+2.
Searc4 )arrant- =otion to uas4 !011<%
olice operatives of the =estern olice District, hilippine 'ationalolice, applied for a search warrant in the 1%C for the search of the
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house of 3uan !antos and the seiJure of an undetermined amount of
shabu. %he team arrived at the house of !antos but failed to End
him there. &nstead, the team found 1oberto Co. %he teamconducted a search in the house of !antos in the presence of
1oberto Co and barangay oicials and found ten (42 grams of
shabu. 1oberto Co was charged in court with illegal possession of
ten grams of shabu. Before his arraignment, 1oberto Co Eled a
motion to Huash the warrant on the following grounds (a2 it was not
the accused named in the search warrant/ and (b2 the warrant does
not describe the article to be seiJed with suicient particularity.
1esolve the motion with reasons. (72
S&GGES'E( ANS)ER*
%he motion to Huash should be denied. %he name of the person in
the search warrant is not important. &t is not even necessary that a
particular person be implicated ()antaring v. 1oman, A.). 'o. 1%3-
+6-+, $ebruary 0, 4++2, so long as the search is conducted in
the place where the search warrant will be served. )oreover,
describing the shabu in an undetermined amount is suiciently
particular. (eople v. %ee, ;.1.'os. 4-*, 3anuary 0, 062
'rial- 'rial in Absentia- Automatic Revie8 o Conviction
!"##,%
4. =hat are the reHuisites of a trial in absentia> 5078
0. &f an accused who was sentenced to death escapes, is there
still a legal necessity for the !upreme Court to review the decision
of conviction> 5678
S&GGES'E( ANS)ER*
4. %he reHuisites of trial in absentia areN (a2 the accused has
already been arraigned/ (b2 he has been duly notiEed of the trial/
and (c2 his failure to appear is unjustiEable. (!ec. 4 508, Article &&&.
Constitution/ arada vs. 9eneracion, 0+ !C1A 6*4 54++*8.2
0. Qes, there is still a legal necessity for the !upreme Court (as of
0 the Court of Appeals has the jurisdiction to such review2 to
review the decision of conviction sentencing the accused to death,
because he is entitled to an automatic review of the death
sentence. (!ees. 65e8 and 4, 1ule 400, 1ules of Criminalrocedure/ eople vs. "spargas, 0 !C1A 6+.2
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A++eal- Remedy !01">%
u!on$, -ala#on$, and abon$ were charged with murder. Aftertrial, the court announced that the case was considered submittedfor decision. !ubseHuently, the Cler< of Court issued the notices of promulgation of judgment which were duly received. #npromulgation day, u!on$ and his lawyer appeared. %he lawyersof -ala#on$ and abon$ appeared but without their clients andfailed to satisfactorily e@plain their absence when Hueried by thecourt. %hus, the judge ordered the Cler< of Court to proceed withthe reading of the judgment convicting all the accused. =ithrespect to -ala#on$ and abon$, the judge ordered that the judgment be entered in the criminal doc<et and copies be furnished
their lawyers. %he lawyers of u!on$, -ala#on$, and abon$ Eledwithin the reglementary period a 3oint )otion for 1econsideration.%he court favorably granted the motion of u!on$ downgrading hisconviction from murder to homicide but denied the motion asregards -ala#on$ and abon$. !>?%
!A% =as the court correct in ta<ing cogniJance of the 3oint )otionfor 1econsideration>
S&GGES'E( ANS)ER*
'o, the court was not correct in ta<ing cogniJance of the 3oint )otion for 1econsideration insofaras -ala#on$ and abon$ were concerned.
nder !ection 1ule 40, if the judgment was for conviction andthe failure of the accused to appear was without justiEable cause,he shall lose the remedies available under the 1ules of Court andthe court shall order his arrest. %he accused may regain theremedies only if he surrenders and Eles a motion for leave to availof the remedies under the 1ules of Court.
ere the failure of -ala#on$ and abon$ to appear was without justiEable cause as even their lawyers were not aware of the reasonfor their absence. ence they lost their remedies under the 1ules.!ince -ala#on$ and abon$ did not surrender and Ele a motion forleave to avail of remedies, it was incorrect for the trial court to ta<ecogniJance of the joint motion for reconsideration insofaras -ala#on$ and abon$ were concerned. %he trial court shouldinstead have ordered their arrest. (eople v. De ;rano, 3une 0+,eralta, 3.2.
#n the other hand, it was correct for the trial court to ta<e
cogniJance of the joint motion for reconsideration insofar
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as u!on$ was concerned since he and his lawyer were presentduring the promulgation.
!B% Can -ala#on$ and abon$ appeal their conviction incase u!on$ accepts his conviction for homicide> S&GGES'E( ANS)ER*
'o, -ala#on$ and abon$ cannot appeal their conviction incase u!on$ accepts his conviction for homicide.
!ince -ala#on$ and abon$ failed to appear during thepromulgation of the conviction without justiEable cause, they lostthe remedies under the 1ules of Court including the remedy of anappeal.
:enue !"##$%
=here is the proper venue for the Eling of an information in the
following cases> a2 %he theft of a car in asig City which was
brought to #bando, Bulacan, where it was cannibaliJed.
b2 %he theft by K, a bill collector of ABC Company, with main
oices in )a<ati City, of his collections from customers in %agaytay
City. &n the contract of employment, K was detailed to the Calambabranch oice, :aguna, where he was to turn in his collections.
c2 %he malversation of public funds by a hilippine consul
detailed in the hilippine "mbassy in :ondon.
S&GGES'E( ANS)ER*
(a2 %he proper venue is in asig City where the theft of the car was
committed, not in #bando where it was cannibaliJed. %heft is not a
continuing oense. (eople v )ercado, hil 2.(b2 &f the crime charged is theft, the venue is in Calamba where he
did not turn in his collections. &f the crime of K is estafa, the
essential ingredients of the oense too< place in %agaytay City
where he received his collections, in Calamba where he should
have turned in his collections, and in )a<ati City where the ABC
Company was based. %he information may therefore be Eled in
%agaytay City or Calamba or )a<ati which have concurrent
territorial 3urisdiction. (Catingub vs. Court of Appeals, 404 !C1A
42.
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(c2 %he proper court is the !andiganbayan which has jurisdiction
over crimes committed by a consul or higher oicial in the
diplomatic service. (!ec. (c2. D 4, as amended by 1A. 'o.*+*2. %he !andiganbayan is a national court. ('uneJ v.
!andiganbayan, 444 !C1A 66 54+08. &t has only one venue at
present, which is in )etro )anila, until 1A. 'o. *+*, providing for
two other branches in Cebu and in Cagayan de #ro, is
implemented.
AL'ERNA'I:E ANS)ERS*
(b2 %he information may be Eled either in Calamba or in )a<ati
City, not in %agaytay City where no oense had as yet beencommitted,
(c2 Assuming that the !andiganbayan has no jurisdiction, the
proper venue is the Erst 1%C in which the charge is Eled (!ec.
4(d2. 1ule 442.
:I. E:I(ENCE
Admissibility !"##,%
%he barangay captain reported to the police that K was illegally
<eeping in his house in the barangay an Armalite )4 riGe. #n the
strength of that information, the police conducted a search of the
house of K and indeed found said riGe. %he police raiders seiJed the
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riGe and brought K to the police station. During the investigation,
he voluntarily signed a !worn !tatement that he was possessing
said riGe without license or authority to possess, and a =aiver of 1ight to Counsel. During the trial of K for illegal possession of
Erearm, the prosecution submitted in evidence the riGe. !worn
!tatement and =aiver of 1ight to Counsel, individually rule on the
admissibility in evidence of theN
4. 1iGe/ 5078
0. !worn !tatement/ and 5074
6. =aiver of 1ight to Counsel of K. 5478
S&GGES'E( ANS)ER*
4. %he riGe is not admissible in evidence because it was seiJed
without a proper search warrant. A warrantless search is not
justiEed. %here was time to secure a search warrant. (eople us.
"ncinada ;.1. 'o. 44*0, #ctober 0. 4++* and other cases2
0. %he sworn statement is not admissible in evidence because it
was ta<en without informing him of his custodial rights and without
the assistance of counsel which should be independent andcompetent and preferably of the choice of the accused. (eople us.
3anuario, 0* !C1A .2
6. %he waiver of his right to counsel is not admissible because it
was made without the assistance of counsel of his choice. (eople
us. ;omeJ, 0* !C1A 66.2
Admissibility !0110%
Acting on a tip by an informant, police oicers stopped a car beingdriven by D and ordered him to open the trun<. %he oicers found a
bag containing several <ilos of cocaine. %hey seiJed the car and the
cocaine as evidence and placed D under arrest. =ithout advising
him of his right to remain silent and to have the assistance of an
attorney, they Huestioned him regarding the cocaine. &n reply, D
said, X& donMt <now anything about it. &t isnMt even my car.Y D was
charged with illegal possession of cocaine, a prohibited drug. pon
motion of D, the court suppressed the use of cocaine as evidence
and dismissed the charges against him. D commenced proceedings
against the police for the recovery of his car. &n his direct
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e@amination, D testiEed that he owned the car but had registered it
in the name of a friend for convenience. #n cross-e@amination, the
attorney representing the police as<ed, XAfter your arrest, did younot tell the arresting oicers that it wasnMt your car>Y &f you were
DMs attorney, would you object to the Huestion> =hy> (72
S&GGES'E( ANS)ER*
Qes, because his admission made when he was Huestioned after he
was placed under arrest was in violation of his constitutional right
to be informed of his right to remain silent and to have competent
and independent counsel of his own choice. ence, it is
inadmissible in evidence. 5Constitution, Art. &&&, sec. 40/ 1.A. *6(4++02, sec, 0/ eople v. )ahinay, 60 !C1A 8.
AL'ERNA'I:E ANS)ER*
Qes, because the Huestion did not lay the predicate to justify the
cross-e@amination Huestion.
Admissibility- P4otoco+ies !0111%
&f the photocopies of oicial receipts and photocopies of aidavits
were attached to the position paper submitted by plainti in anaction for unlawful detainer Eled with )unicipal %rial Court on
which basis the court rendered judgment in favor of plainti>
"@plain. (072
S&GGES'E( ANS)ER N
%he claim of defendant is valid, because although summary
procedure reHuires merely the submission of position papers, the
evidence submitted with the position paper must be admissible in
evidence. (!ec. + of the 1evised 1ule on !ummary rocedure2.hotocopies of oicial receipts and aidavits are not admissible
without proof of loss of the originals. (!ec. 6 of 1ule 462
Admissibility !011>%
!gt. ;1 of =D arrested two 'A suspects, )a@ and Bri@, both
aged 00, in the act of robbing a grocery in "rmita. As he
handcued them he noted a pistol tuc<ed in )a@Rs waist and a
dagger hidden under Bri@Rs shirt, which he promptly conEscated. At
the police investigation room, )a@ and Bri@ orally waived their
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right to counsel and to remain silent. %hen under oath, they freely
answered Huestions as<ed by the police des< oicer. %hereafter
they signed their sworn statements before the police captain, alawyer. )a@ admitted his part in the robbery, his possession of a
pistol and his ownership of the pac<et of shabu found in his poc<et.
Bri@ admitted his role in the robbery and his possession of a
dagger. But they denied being 'A hit men. &n due course, proper
charges were Eled by the City rosecutor against both arrestees
before the )) 1%C. )ay the written statements signed and sworn
to by )a@ and Bri@ be admitted by the trial court as evidence for
the prosecution> 1eason. (72
S&GGES'E( ANS)ER*
'o. %he sworn written statements of )a@ and Bri@ may not be
admitted in evidence, because they were not assisted by counsel.
"ven if the police captain before whom they signed the statements
was a lawyer, he was not functioning as a lawyer, nor can he be
considered as an independent counsel. =aiver of the right to a
lawyer must be done in writing and in the presence of independent
counsel. (eople v. )ahinay, 60 !C1A 44+++8/ eople v.
"spiritu, 60 !C1A 66 54+++82. Admissibility- Admission o Guilt- ReDuirements !0113%
=hat are the reHuirements in order that an admission of guilt of an
accused during a custodial investigation be admitted in evidence>
(0.72
S&GGES'E( ANS)ER*
4 %he admission must be voluntary.
0 %he admission must be in writing.
6 %he admission must be made with the assistance of
competent, independent counsel.
. %he admission must be e@press (eople v. rinsipe, ;.1. 'o.
460, )ay 0, 002.
. &n case the accused waives his rights to silence and to
counsel, such waiver must be in writing, e@ecuted with the
assistance of competent, independent counsel.
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Admissibility- Admission o Guilt !011,%
%he mutilated cadaver of a woman was discovered near a cree<.Due to witnesses attesting that he was the last person seenwith the woman when she was still alive, Carlito was arrestedwithin Eve hours after the discovery of the cadaver and brought tothe police station. %he crime laboratory determined that thewoman had been raped. =hile in police custody, Carlito bro<edown in the presence of an assisting counsel orally confessedto the investigator that he had raped and <illed the woman,detailing the acts he had performed up to his dumping of thebody near the cree<. e was genuinely remorseful. During thetrial, the state presented the investigator to testify on the oral
confession of Carlito. &s the oral confession admissible inevidence of guilt> (72
S&GGES'E( ANS)ER*
%he declaration of the accused e@pressly ac<nowledging his guilt,in the presence of assisting counsel, may be given in evidenceagainst him and any person, otherwise competent to testify asa witness, who heard the confession is competent to testify as tothe substance to what he heard and understood it. =hat is crucialhere is that the accused was informed of his right to anattorney and that what he says may be used in evidenceagainst him. As the custodial confession was given in thepresence of an assisting counsel, Carlito is deemed fully awareof the conseHuences of his statements (eople v. !ilvano, ;1 'o. 4, 0+ April 002.
Admissibility- (ocument- Not raised in t4e Pleading !011>%
&n a complaint for a sum of money Eled before the )) 1%C,
plainti did not mention or even just hint at any demand for
payment made on defendant before commencing suit. During thetrial, plainti duly oered "@h. LAL in evidence for the stated
purpose of proving the ma<ing of e@trajudicial demand on
defendant to pay ., the subject of the suit. "@h. LAL was a
letter of demand for defendant to pay said sum of money within 4
days from receipt, addressed to and served on defendant some two
months before suit was begun. =ithout objection from defendant,
the court admitted "@h. LAL in evidence. =as the courtRs admission
of "@h. LAL in evidence erroneous or not> 1eason. (72
S&GGES'E( ANS)ER*
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%he courtRs admission of "@h. LAL in evidence is not erroneous. &t
was admitted in evidence without objection on the part of the
defendant. &t should be treated as if it had been raised in thepleadings. %he complaint may be amended to conform to the
evidence, but if it is not so amended, it does not aect the result of
the trial on this issue. (!ec. of 1ule 42.
Admissibility- Electronic Evidence !0116%
a2 !tate the rule on the admissibility of an electronic evidence. b2
=hen is an electronic evidence regarded as being the eHuivalent of
an original document under the
Best Evidence Rule >?
S&GGES'E( ANS)ER*
(a2 =henever a rule of evidence refers to the term writing,
document, record, instrument, memorandum or any other form of
writing, such term shall be deemed to include an electronic
document as deEned in these 1ules. (!ec. 4 of 1ule 6, 1ules of
"lectronic "vidence eective August 4, 042.
An electronic document is admissible in evidence if it complies withthe rules on admissibility prescribed by the 1ules of Court and
related laws and is authenticated in the manner prescribed by
these 1ules. (!ec. 0 of 1ule 6, &d.2. %he authenticity of any private
electronic document must be proved by evidence that it had been
digitally signed and other appropriate security measures have been
applied. (!ec. 0 of 1ule , &d.2.
(b2 An electronic document shall be regarded as the eHuivalent of
an original document under the Best "vidence 1ule if it is a
printout or output readable by sight or other means, shown to
reGect the data accurately. (!ec. 4 of 1ule 2
Admissibility- 2b7ect or Real Evidence !"##>%
At the trial of Ace for violation of the Dangerous Drugs Act, the
prosecution oers in evidence a photocopy of the mar<ed 4.
bills used in the Xbuy-bustY operation. Ace objects to the
introduction of the photocopy on the ground that the Best "vidence
1ule prohibits the introduction of secondary evidence in lieu of the
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original. a2 &s the photocopy real (object2 evidence or documentary
evidence> b2 &s the photocopy admissible in evidence>
S&GGES'E( ANS)ER*
a2 %he photocopy of the mar<ed bills is real (object2 evidence not
documentary evidence, because the mar<ed bills are real evidence.
b2 Qes, the photocopy is admissible in evidence, because the best
evidence rule does not apply to object or real evidence.
Admissibility- 2b7ections !"##$%
=hat are the two <inds of objections> "@plain each brieGy. ;iven ane@ample of each.
S&GGES'E( ANS)ER*
%wo <inds of objections areN (42 the evidence being presented is not
relevant to the issue/ and (02 the evidence is incompetent or
e@cluded by the law or the rules, (!ec. 6, 1ule 462. An e@ample of
the Erst is when the prosecution oers as evidence the alleged
oer of an &nsurance company to pay for the damages suered by
the victim in a homicide case. (!ee 4++* 'o. 42.
"@amples of the second are evidence obtained in violation of the
Constitutional prohibition against unreasonable searches and
seiJures and confessions and admissions in violation of the rights of
a person under custodial &nvestigation.
AL'ERNA'I:E ANS)ERS*
42 !peciEc objectionsN "@ampleN parol evidence and best evidencerule
;eneral #bjectionsN "@ampleN continuing objections (!ec. 6* of
1ule 4602.
02 %he two <inds of objections areN (42 objection to a Huestion
propounded in the course of the oral e@amination of the witness
and (02 objection to an oer of evidence in writing. #bjection to a
Huestion propounded in the course of the oral e@amination of a
witness shall be made as soon as the grounds therefor shall becomereasonably apparent otherwise, it is waived. An oer of objection in
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writing shall be made within three (62 days after notice of the oer,
unless a dierent period is allowed by the court. &n both instances
the grounds for objection must be speciEed. An e@ample of the Erstis when the witness is being cross-e@amined and the cross
e@amination is on a matter not relevant. An e@ample of the second
is that the evidence oered is not the best evidence.
Admissibility- 2@er to =arry- Circumstantial Evidence
!"##,%
A was accused of having raped K. 1ule on the admissibility of the
following pieces of evidenceN
4 an oer of A to marry K/ and (678
0 a pair of short pants allegedly left by A at the crime which the
court, over the objection of A, reHuired him to put on, and when he
did, it Et him well. 5078
!;;"!%"D A'!="1N
4. ARs oer to marry K is admissible in evidence as an &mplied
admission of guilt because rape cases are not allowed to be
compromised. (!ec. 0* of 1ule 46#/ eople vs. Domingo, 00 !C1A 4.2
0. %he pair of short pants, which Et the accused well, is
circumstantial evidence of his guilt, although standing alone it
cannot be the basis of conviction. %he accused cannot object to the
court reHuiring him to put the short pants on. &t is not part of his
right against self-incrimination because it is a mere physical act.
Admissibility- 2@er to Pay E+enses !"##$%
A, while driving his car, ran over B. A visited B at the hospital and
oered to pay for his hospitaliJation e@penses. After the Eling of
the criminal case against A for serious physical injuries through
rec<less imprudence. ARs insurance carrier oered to pay for the
injuries and damages suered by B. %he oer was rejected because
B considered the amount oered as inadeHuate. a2 &s the oer by A
to pay the hospitaliJation e@penses of B admissible in evidence> b2
&s the oer by ARs insurance carrier to pay for the injuries and
damages of B admissible in evidence>
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certiEcates of the parish priest are evidence only of the
administration of the sacrament of baptism and they do not prove
Eliation of the alleged collateral relatives of the deceased/ 02 entryin the family bible is hearsay/ 62 the certiEcation of the registrar on
non-availability of the records of birth does not prove EliationN 2 in
partition cases where Eliation to the deceased is in dispute, prior
and separate judicial declaration of heirship in a settlement of
estate proceedings is necessary/ and 2 there is need for
publication as real property is involved. As counsel for 3ocelyn and
her co-petitioners, argue against the objections of the spouses
Ceres so as to convince the court to allow the partition. Discuss
each of the Eve (2 arguments brieGy but completely. (472S&GGES'E( ANS)ER*
(42 %he baptismal certiEcate can show Eliation or prove pedigree. &t
is one of the other means allowed under the 1ules of Court and
special laws to show pedigree. (%rinidad v. Court of Appeals, 0+
!C1A 4 54++8/ eirs of &:gnacio Conti v. Court of Appeals, 6
!C1A 6 54++82.
(02 "ntries in the family bible may be received as evidence of
pedigree. (!ec. , 1ule 46, 1ules of Court2.
(62 %he certiEcation by the civil registrar of the non-availability of
records is needed to justify the presentation of secondary evidence,
which is the photocopy of the birth certiEcate of 3ocelyn. (eirs of
&gnacio Conti v. Court of Appeals, supra.2
(2 Declaration of heirship in a settlement proceeding is not
necessary. &t can be made in the ordinary action for partition
wherein the heirs are e@ercising the right pertaining to the
decedent, their predecessor-inSinterest, to as< for partition as co-owners (&d.2
(2 "ven if real property is involved, no publication is necessary,
because what is sought is the mere segregation of :indaMs share in
the property. (!ec. 4 of 1ule +/ &d.2
Admissibility- Rules o Evidence !"##$%
;ive the reasons underlying the adoption of the following rules of
evidenceN
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endeavor to persuade the litigants in a civil case to agree upon
some fair compromise. (Art. 00+, Civil Code2. During pre-trial,
courts should direct the parties to consider the possibility of anamicable settlement. (!ec. 45a8 of former 1ule 0N !ec. 0 5a8 of new
1ule 42.
Admissibility- (eat4 o Adverse Party !011$%
(a2 %he surviving parties rule bars )aria from testifying for theclaimant as to what the deceased 3ose had said to her, in a claimEled by edro against the estate of 3ose. (672
S&GGES'E( ANS)ER*
$alse. %he said rule bars only parties-plainti and theirassignors, or persons prosecuting a claim against the estate of adeceased/ it does not cover )aria who is a mere witness.$urthermore, the disHualiEcation is in respect of any matter of fact occurring before the deathof said deceased (!ec. 06, 1ule 46, 1ules of Court, 1aJon v.&ntermediate Appellate Court, 0* !C1A 06 54++082. &t isedro who Eled the claim against the estate of 3ose.
Admissibility- (NA Evidence !01"1%
'o.&K. &n a prosecution for rape, the defense relied onDeo@yribonucleic Acid (D'A2 evidence showing that the semenfound in the private part of the victim was not identical withthat of the accusedMs. As private prosecutor, how will you disputethe veracity and accuracy of the results of the D'A evidence>(672
S&GGES'E( ANS)ER*
As a private prosecutor, & shall try to discredit the results of the D'A test by Huestioning and possibly impugning theintegrity of the D'A proEle by showing a GawFerror in obtainingthe biological sample obtained/ the testing methodologyemployed/ the scientiEc standard observed/ the forensic D'A laboratory which conducted the test/ and the HualiEcation,training and e@perience of the forensic laboratory personnelwho conducted the D'A testing.
Admissibility- (NA Evidence !011#%
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Bembol was charged with rape. BembolMs father, 1amil,approached Artemon, the victimMs father, during the preliminaryinvestigation and oered 4 )illion to Artemon to settle thecase. Artemon refused the oer. (A2 During trial, the prosecutionpresented Artemon to testify on 1amilMs oer and therebyestablish and implied admission of guilt. &s 1amilMs oer to settleadmissible in evidence> (672
S&GGES'E( ANS)ER*
Qes, the oer to settle by the father of the accused, is admissible inevidence as an implied admission of guilt. (eo v. !alvador, ;1 'o.46*-*0, 0 3anuary 062
AL'ERNA'I:E ANS)ER*
'o, nder !ec. 0*, 1ule 46 of the 1ules of Court, it is the oer of compromise by the accused that may be received in evidenceas an implied admission of guilt. %he testimony of rtemonwould cover the oer of 1amil and not an oer of the accusedhimself. (eo v. 9iernes, ;1 'os. 46*66-6, 46 December 042(B2 During the pretrial ,Bembol personallyoered to settle the case for 4 )illion to the privateprosecutor, who immediately put the oer on record in thepresence of the trial judge. &s BembolMsoer a judicialadmission of his guilt. (672
S&GGES'E( ANS)ER*
Qes, Bembol‟s oer is an admission of guilt (!ec. 66 1ule462. &f it was repeated by the private prosecutor in the presenceof judge at the pretrial the e@trajudicial confession becomestransposed into a judicial confession. %here is no need of assistance of counsel. (eo v. Buntag, ;1 'o. 406*, 4 April
02.
Best Evidence Rule- Electronic Evidence !011#%
5d8 An electronic evidence is the eHuivalent of an originaldocument under the Best "vidence 1ule if it is a printout orreadable by sight or other means, shown to reGect the dataaccurately.
S&GGES'E( ANS)ER*
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%1". %his statement is embodied in !ec. 4, 1ule of A.m. 'o.4-*-4-!C, reN 1ules on "lectronic "vidence.
C4ain o Custody !01"0%
'o.&&.A. (a2 Discuss the Lchain of custodyL principle withrespect to evidence seiJed under 1.A. +4 or theComprehensive Dangerous Drugs Act of 00. (72
S&GGES'E( ANS)ER* &n prosecutions involving narcotics and other illegal
substances, the substance itself constitutes part of the corpusdelicti of the oense and the fact of its e@istence is vital tosustain a judgment of conviction beyond reasonable doubt. %hechain of custody reHuirement is essential to ensure that doubtsregarding the identity of the evidence are removed through themonitoring and trac<ing of the movements of the seiJed drugsfrom the accused, to the police, to the forensic chemist, andEnally to the court. (eople vs. !itco, ;.1. 'o. 4*00, )ay4, 04, 9elasco, 3r. 3.2. "rgo, the e@istence of the dangerousdrug is a condition sine Hua non for conviction. (eople vs.De ;uJman Q DanJil, ;.1. 'o. 4+, )arch 0, 04 'achura
3.2. %he failure to establish, through convincing proof, that theintegrity of the seiJed items has been adeHuately preservedthrough an unbro<en chain of custody is enough to engenderreasonable doubt on the guilt of an accused (eople vs. De;uJman Q DanJil2. 'onetheless, non-compliance with theprocedure shall not render void and invalid the seiJure andcustody of the drugs whenN (42 such non-compliance is attendedby justiEable grounds/ and (02 the integrity and theevidentiary value of the seiJed items are properly preserved bythe apprehending team. %here must be proof that these two(02 reHuirements were met before such non-compliance may besaid to fall within the scope of then proviso. (eople vs. DelaCruJ, ;.1. 'o. 4**000, #ctober 0+, 0, * !C1A 0*62.
AL'ERNA'I:E ANS)ER* Crucial in proving chain of custody is the mar<ing of the seiJeddrugs or other related items immediately after they are seiJedfrom the accused. )ar<ing after seiJure is the starting pointin the custodial lin<, thus, it is vital that the seiJedcontraband are immediately mar<ed because succeeding
handlers of the specimens will use the mar<ings as reference.%hus, non-compliance by the apprehendingFbuy-bust team with
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!ec.04 of 1.A. +4 is not fatal as long as there is justiEableground therefore, and as long as the integrity and theevidentiary value of the conEscatedFseiJed items are properlypreserved by the apprehending oicerFteam. (eople vs.)antalaba, ;.1. 'o. 400*, 3uly 0, 0442.
C4aracter Evidence- Bad Re+utation !01"1%
&n a prosecution for murder, the prosecutor as<s accusedDarwin if he had been previously arrested for violation of the Anti- ;raft and Corrupt ractices Act. As defense counsel, youobject. %he trial court as<s you on what groundFs. 1espond. (672
S&GGES'E( ANS)ER*
%he objection is on the ground that the fact sought to beelicited by the prosecution is irrelevant and immaterial to theoense under prosecution and trial. )oreover, the 1ules donot allow the prosecution to adduce evidence of bad moralcharacter of the accused pertinent to the oense charged,e@cept on rebuttal and only if it involves a prior conviction by Enal judgment (1ule 46, !ec. 4, 1ules of Court2.
(octrine o Ado+tive Admission !011#%
'o.&.D. nder the doctrine of adoptive admission, a thirdpartyMs statement becomes the admission of the partyembracing or espousing it.
S&GGES'E( ANS)ER* %1". %he eect or conseHuence of the admission will bindalso the party who adopted or espoused the same, as appliedin "strada vs. Desierto, 6 !C1A 4 5048. An adoptiveadmission is a party’s reaction to a statement or action byanother person when it is reasonable to treat the party’s reactionas an admission of something stated or implied by the otherperson.
Best Evidence Rule !"##$%
=hen A loaned a sum of money to B. A typed a single copy of the
promissory note, which they both signed A made two photo
(@ero@ed2 copies of the promissory note, giving one copy to B and
retaining the other copy. A entrusted the typewritten copy to his
counsel for safe<eeping. %he copy with ARs counsel was destroyed
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:egislative facts and adjudicative facts.
S&GGES'E( ANS)ER*
:egislative facts refer to facts mentioned in a statute or in an
e@planatory note, while adjudicative facts are facts found in a court
decision.
;earsay Rule !011$%
(a2 =hat is the hearsay rule> (72
S&GGES'E( ANS)ER*
%he hearsay rule is a rule of evidence to the eect that a witnesscan testify only to those facts which he <nows of his own<nowledge or derived from his own perceptions, e@cept asotherwise provided in the rules of court (1ule 46, !ec. 6 1ules of Court2.
(b2 &n relation to the hearsay rule, what do the followingrules of evidence have in common> (72
(42 %he rule on statements that are part of the res gestae.
(02 %he rule on dying declarations.(62 %he rule on admissions against interest.
S&GGES'E( ANS)ER*
%he rules on the evidence speciEed in the Huestion as<ed, havein common the followingN
(42 %he evidence although hearsay, are allowed by the 1ulesas e@ceptions to the hearsay rule/
(02 %he facts involved are admissible in evidence for reasonsof necessity and trustworthiness/ and
(62 %he witness is testifying on facts which are not of hisown <nowledge or derived from his own perception.
;earsay Evidence !0110%
1omeo is sued for damages for injuries suered by the plainti in a
vehicular accident. 3ulieta, a witness in court, testiEes that 1omeo
told her (3ulieta2 that he (1omeo2 heard Antonio, a witness to the
accident, give an e@cited account of the accident immediately after
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earsay evidence and opinion evidence.
!;;"!%"D A'!="1N
earsay evidence consists of testimony that is not based on
personal <nowledge of the person testifying, (see !ec. 6, 1ule
462, while opinion evidence is e@pert evidence based on the
personal <nowledge s<ill, e@perience or training of the person
testifying (!ec. +, &d.2 and evidence of an ordinary witness on
limited matters (!ec. , &d.2.
;earsay Evidence- 2b7ection !01"0%
(a2 Counsel A objected to a Huestion posed by opposing CounselB on the grounds that it was hearsay and it assumed a fact not yetestablished. %he judge banged his gavel and ruled by sayingL#bjection !ustainedL. Can Counsel as< for a reconsiderationof the ruling> =hy> (72
S&GGES'E( ANS)ER* Qes, Counsel B may as< the 3udge to specify the ground’srelied upon for sustaining the objection and thereafter move its
reconsideration thereof. (1ule 460, !ec.6, 1ules of Court2.
;earsay- Ece+tion- (ead =an Statute !011"%
)a@imo Eled an action against edro, the administrator of the
estate of deceased 3uan, for the recovery of a car which is part of
the latterMs estate. During the trial, )a@imo presented witness
)ariano who testiEed that he was present when )a@imo and 3uan
agreed that the latter would pay a rental of 0,. for the use
of )a@imoMs car for one month after which 3uan should immediately
return the car to )a@imo. edro objected to the admission of
)arianoMs testimony. &f you were the judge, would you sustain
edroMs objection> =hy> (72
S&GGES'E( ANS)ER*
'o, the testimony is admissible in evidence because witness
)ariano who testiEed as to what )a@imo and 3uan, the deceased
person agreed upon, is not disHualiEed to testify on the agreement.
%hose disHualiEed are parties or assignors of parties to a case, or
persons in whose behalf a case is prosecuted, against the
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administrator or 3uanMs estate, upon a claim or demand against his
estate as to any matter of fact occurring before 3uanMs death. (!ec.
06 of 1ule 462
;earsay- Ece+tion- (ying (eclaration !"##,%
1eHuisites of Dying Declaration. (072
S&GGES'E( ANS)ER*
%he reHuisites for the admissibility of a dying declaration areN (a2
the declaration is made by the deceased under the consciousness of
his impending death/ (b2 the deceased was at the time competent
as a witness/ (c2 the declaration concerns the cause andsurrounding circumstances of the declarantRs death/ and (d2 the
declaration is oered in a (criminal2 case wherein the declarantRs
death is the subject of inHuiry. (eople vs. !antos, 0* !C1A .2
AL'ERNA'I:E ANS)ER*
%he declaration of a dying person, made under the consciousness of
an impending death, may be received in any case wherein his death
is the subject of &nHuiry, as evidence of the cause and surrounding
circumstances of such death. (!ec. 6* of 1ule 46#.2
;earsay* Ece+tion Res Gestae !01">%
=hile passing by a dar< uninhabited part of their baran$a% , => &sin#a!o observed shadows and heard screams from adistance. => &sin#a!o hid himself behind the bushes and saw aman beating a woman whom he recogniJed as his neighbor, "ulasa.=hen "ulasa was already in agony, the man stabbed her and shefell on the ground. %he man hurriedly left thereafter.
=> &sin#a!o immediately went to "ulasaMs rescue. "ulasa, whowas then in a state of hysteria, <ept mentioning to => &sin#a!o XSi Rene, $us#o a8on$ 2a#a%in? Sina8sa8 ni%a a8o?Y=hen => &sin#a!o was about to carry her, "ulasa refused and saidX "a%a 8o. 'ababaw lan$ #o. abulin mo si Rene.@
%he following day, Rene learned of "ulasaMs death and, bothered byhis conscience, surrendered to the authorities with his counsel. Ashis surrender was broadcasted all over media, Rene opted torelease his statement to the press which goesN
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to the hearsay rule, especially here where the declarant is deadand thus unavailable to testify. (A'%#'&# 1. BA%&!%A, BA!&C"9&D"'C" 04-04 50 ed.82. &n A.S. v. il, 46 hil. 6 (4++2,the !upreme Court upheld dying declarations as an e@ception tothe confrontation clause since Xsuch declarations have always beenregarded as an e@ception to the general rule regarding hearsayevidence.Y
%he argument that the trial court erred in holding that ReneMsstatement to the press was a confession which, standing alone,would be suicient to warrant conviction is meritorious.
$irstly, 1eneMs statement is not a confession but an admission. A confession is one wherein a person ac<nowledges his guilt of a
crime, which 1ene did not do. !econdly, even assuming it is aconfession, standing alone it would not be suicient to warrantconviction since it is an e@trajudicial confession which is notsuicient ground for conviction unless corroborated by evidence of corpus delicti. (!6 14662.
'onetheless this was a harmless error since the admission of 1enewas corroborated by the testimony of #0 Asintado on ?ulasaMsstatement.
;earsay- Ece+tion- Res Gestae- 2+inion o 2rdinary )itness
!011<%
Dencio barged into the house of )arcela, tied her to a chair and
robbed her of assorted pieces of jewelry and money. Dencio then
brought Candida, )arcelaRs maid, to a bedroom where he raped
her. )arcela could hear Candida crying and pleadingN Luwag^
)aawa <a sa a<in^L After raping Candida, Dencio Ged from the
house with the loot. Candida then untied )arcela and rushed to the
police station about a <ilometer away and told olice #icer
1oberto )aawa that Dencio had barged into the house of )arcela,
tied the latter to a chair and robbed her of her jewelry and money.Candida also related to the police oicer that despite her pleas,
Dencio had raped her. %he policeman noticed that Candida was
hysterical and on the verge of collapse. Dencio was charged with
robbery with rape. During the trial, Candida can no longer be
located. (72
a2 &f the prosecution presents olice #icer 1oberto )aawa to
testify on what Candida had told him, would such testimony of the
policeman be hearsay> "@plain.
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'o. %he testimony of the policeman is not hearsay. &t is part of the
res gestae. &t is also an independently relevant statement. %he
police oicer testiEed of his own personal <nowledge, not to thetruth of CandidaRs statement, i.e., that she told him, despite her
pleas, Dencio had raped her. (eople v. ;addi,;.1. 'o. *,
$ebruary 0*,4++2
b2 &f the police oicer will testify that he noticed Candida to be
hysterical and on the verge of collapse, would such testimony be
considered as opinion, hence, inadmissible> "@plain.
S&GGES'E( ANS)ER*
'o, it cannot be considered as opinion, because he was testifying
on what he actually observed. %he last paragraph of !ec. , 1ule
46, 1evised 1ules of "vidence, e@pressly provides that a witness
may testify on his impressions of the emotion, behavior, condition
or appearance of a person.
;earsay- Ece+tion !01">%
A foreign !o$ trained to sni dangerous drugs from pac<ages, washired by +: Cor2ora#ion, a door to door forwarder company, tosni pac<ages in their depot at the international airport. &n one of the routinary inspections of pac<ages waiting to be sent to thenited !tates of America (AS&2, the !o$ sat beside one of thepac<ages, a signal that the pac<age contained dangerous drugs.%hereafter, the guards opened the pac<age and found two (02<ilograms of cocaine. %heowner of the pac<age was arrested andcharges were Eled against him. During the trial, the prosecution,through the trainer who was present during the incident and ane@pert in this <ind of Eeld, testiEed that the !o$ was highly trainedto sni pac<ages to determine if the contents were dangerous
drugs and the sniing techniHue of these highly trained dogs wasaccepted worldwide and had been successful in dangerous drugsoperations. %he prosecution moved to admit this evidence to justifythe opening of the pac<age. %he accused objected on the groundsthatN (i2 the guards had no personal <nowledge of the contents of the pac<age before it was opened/ (ii2 the testimony of the trainerof the !o$ is hearsay/ and (iii2 the accused could not cross-e@aminethe !o$. Decide. !>?%
S&GGES'E( ANS)ER*
%he accusedMs objections are overruled.
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%he objection that the guards had no personal <nowledge of thecontents of the pac<age before it was opened is misplaced. %heone testifying is the trainer not the guards and he had personal<nowledge of the circumstances since he was present during theincident. Besides there is no rule of evidence that one cannottestify about the contents of a pac<age if he did not have priorpersonal <nowledge of its contents before opening it.
%he objection that the testimony of the trainer of the dog is hearsayis not valid. earsay is an out-of-court declaration made by aperson which is oered for the truth of the matter asserted.
ere what is involved is a dog who is not a person who can ma<ean out-of-court declaration. (:empert V !altJburg, A )#D"1'
A1#AC %# "9&D"'C" 6*-6*4 54+082. A dog is not treatedas a declarant or witness who can be cross-e@amined. (eople v.Centolella, 6 '.Q.!.0d 0*+2. ence testimony that the dog satbeside the pac<age is not testimony about an out-of-courtdeclaration and thus not hearsay.
%he objection that the accused could not cross-e@amine the dog iswithout merit. nder the Constitution, the accusedMs right of confrontation refers to witnesses. As previously discussed, a dog isnot a witness who can be cross-e@amined.
Bo#e # is ur$e! #a# u#mos# liberali#% be eercise! in $ra!in$#is number. 0e answer is no# foun! in ili22ine law an! 6uris2ru!ence an! even in commen#aries b% wri#ers on evi!ence.
;earsay Rule* Ece+tion- :icarious Admission !01">%
A vicarious admission is considered an e@ception to the hearsayrule. &t, however, does not coverN !"?%!A% admission by a conspirator!B% admission by a privy
!C% judicial admission!(% adoptive admission S&GGES'E( ANS)ER*
(C2 'oteN a vicarious admission is an e@trajudicial admission.ence C is not covered by the rule regarding vicarious admissions.
;earsay- Ece+tions !"###%
a2 DeEne hearsay evidence> (072 b2 =hat are the e@ceptions to thehearsay rule> (072
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S&GGES'E( ANS)ER*
earsay evidence may be deEned as evidence that consists of
testimony not coming from personal <nowledge (!ec. 6, 1ule 46,
1ules of Court2. earsay testimony is the testimony of a witness as
to what he has heard other persons say about the facts in issue.
%he e@ceptions to the hearsay rule areN dying declaration,
declaration against interest, act or declaration about pedigree,
family reputation or tradition regarding pedigree, common
reputation, part of the res gestae, entries in the course of business,
entries in oicial records, commercial lists and the li<e, learned
treatises, and testimony or deposition at a former proceeding. (6*to *, 1ule 46#, 1ules of Court2
;earsay- Ece+tions- (ying (eclaration !"###%
%he accused was charged with robbery and homicide. %he victim
suered several stab wounds. &t appears that eleven (442 hours
after the crime, while the victim was being brought to the hospital
in a jeep, with his brother and a policeman as companions, the
victim was as<ed certain Huestions which he answered, pointing to
the accused as his assailant. is answers were put down in writing,but since he was a in a critical condition, his brother and the
policeman signed the statement. &s the statement admissible as a
dying declaration> "@plain. (072
S&GGES'E( ANS)ER*
Qes. %he statement is admissible as a dying declaration if the victim
subseHuently died and his answers were made under the
consciousness of impending death (!ec. 6* of 1ule 462. %he fact
that he did not sign the statement point to the accused as hisassailant, because he was in critical condition, does not aect its
admissibility as a dying declaration. A dying declaration need not
be in writing (eople v. 9iovicente, 0 !C1A 42
;earsay- Ina++licable !0116%
K was charged with robbery. #n the strength of a warrant of arrest
issued by the court, K was arrested by police operatives. %hey
seiJed from his person a handgun. A charge for illegal possession
of Erearm was also Eled against him. &n a press conference called
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by the police, K admitted that he had robbed the victim of jewelry
valued at ,..
%he robbery and illegal possession of Erearm cases were tried
jointly. %he prosecution presented in evidence a newspaper clipping
of the report to the reporter who was present during the press
conference stating that K admitted the robbery. &t li<ewise
presented a certiEcation of the ' $irearms and "@plosive #ice
attesting that the accused had no license to carry any Erearm. %he
certifying oicer, however, was not presented as a witness. Both
pieces of evidence were objected to by the defense. (72 a2 &s the
newspaper clipping admissible in evidence against K> b2 &s the
certiEcation of the ' $irearm and
"@plosive #ice without the certifying oicer testifying on it
admissible in evidence against K>
S&GGES'E( ANS)ER*
(a2 Qes, the newspaper clipping is admissible in evidence against K.
regardless of the truth or falsity of a statement, the hearsay rule
does not apply and the statement may be shown where the fact that
it is made is relevant. "vidence as to the ma<ing of such statementis not secondary but primary, for the statement itself may
constitute a fact in issue or be circumstantially relevant as to the
e@istence of such fact. (;otesco &nvestment Corporation vs. Chatto,
04 !C1A 4 54++082
(b2 Qes, the certiEcation is admissible in evidence against K
because a written statement signed by an oicer having the
custody of an oicial record or by his deputy that after diligent
search no record or entry of a speciEed tenor is found to e@ist in
the records of his oice, accompanied by a certiEcate as aboveprovided, is admissible as evidence that the records of his oice
contain no such record or entry. (!ec. 0 of 1ule 4602.
Judicial Notice- Evidence !011<%
"@plain brieGy whether the 1%C may, motu proprio, ta<e judicial
notice ofN (72
4. %he street name of methamphetamine hydro-chloride is
shabu.
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S&GGES'E( ANS)ER*
%he 1%C may motu proprio ta<e judicial notice of the street name
of methamphetamine hydrochloride is shabu, considering the
chemical composition of shabu. (eople v. )acasling, ;), 'o.
+60, )ay 0*, 4++62
0. #rdinances approved by municipalities under its territorial
jurisdiction/
S&GGES'E( ANS)ER*
&n the absence of statutory authority, the 1%C may not ta<e judicial
notice of ordinances approved by municipalities under theirterritorial jurisdiction, e@cept on appeal from the municipal trial
courts, which too< judicial notice of the ordinance in Huestion. (.!.
v. Blanco, ;.1, 'o. 406, 'ovember +,4+4*/ .!. v. ernandeJ,
;.1. 'o. +++, August 0, 4+42
6. $oreign laws/
S&GGES'E( ANS)ER*
%he 1%C may not generally ta<e judicial notice of foreign laws (&nre "state of 3ohnson, ;.1. 'o. 40**, 'ovember 4, 4+4/ $luemer
v. i@, ;.1. 'o. 606, )arch 4*, 4+62, which must be proved li<e
any other matter of fact (!y 3oe :ieng v. !y Puia, ;.1. 'o. *4,
)arch 4+, 4+42 e@cept in a few instances, the court in the e@ercise
of its sound judicial discretion, may ta<e notice of foreign laws
when hilippine courts are evidently familiar with them, such as
the !panish Civil Code, which had ta<en eect in the hilippines,
and other allied legislation. (ardo v. 1epublic, ;.1. 'o. :S00
3anuary 06, 4+/ Delgado v. 1epublic, ;.1. 'o. :S0, 3anuary .
0, 4+2
. 1ules and 1egulations issued by Huasi-judicial bodies
implementing statutes/
S&GGES'E( ANS)ER*
%he 1%C may ta<e judicial notice of 1ules and 1egulations issued
by Huasi-judicial bodies implementing statutes, because they are
capable of unHuestionable demonstration (Chattamal v. Collector of
Customs, ;.1. 'o. 46*, 'ovember 6,4+02, unless the law itself
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considers such rules as an integral part of the statute, in which
case judicial notice becomes mandatory.
. 1ape may be committed even in public places.
S&GGES'E( ANS)ER*
%he 1%C may ta<e judicial notice of the fact that rape may be
committed even in public places. %he Lpublic settingL of the rape is
not an indication of consent.
(eople v. %ongson, ;.1. 'o. +404, $ebruary 4, 4++42
%he !upreme Court has ta<en judicial notice of the fact that a manovercome by perversity and beastly passion chooses neither the
time, place, occasion nor victim. (eople v, Barcelona, ;.1. 'o.
0+, #ctober 64, 4++2
Judicial Notice- Evidence- /oreign La8 !"##$%
a2 ;ive three instances when a hilippine court can
ta<e judicial notice of a foreign law. b2 ow do you prove a written
foreign law> c2 !uppose a foreign law was pleaded as part of the
defense of defendant but no evidence was presented to prove the
e@istence of said law, what is the presumption to be ta<en by the
court as to the wordings of said lawL>
S&GGES'E( ANS)ER*
(a2 %he three instances when a hilippine court can ta<e judicial
notice of a foreign law areN (42 when the hilippine courts are
evidently familiar with the foreign law ()oran. 9ol. , p. 6, 4+
edition2/ (02 when the foreign law refers to the law of nations (!ec.4 of 1ule 40+2 and (62 when it refers to a published treatise,
periodical or pamphlet on the subject of law if the court ta<es
judicial notice of the fact that the writer thereof is recogniJed in his
profession or calling as e@pert on the subject (!ec. . 1ule 462.
(b2 A written foreign law may be evidenced by an oicial
publication thereof or by a copy attested by the oicer having the
legal custody of the record, or by his deputy, and accompanied. &f
the record is not <ept in the hilippines, with a certiEcate that such
oicer has the custody, if the oice in which the record is <ept is in
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a foreign country, the certiEcate may be made by a secretary of the
embassy or legation, consul general, consul, vice-consul, or
consular agent or by any oicer in the foreign service of thehilippines stationed in the foreign country in which the record is
<ept, and authenticated by the seal of his oice (!ec. 0, 1ule 460,
Oalamea v. CA, 00 !C1A 062.
(c2 %he presumption is that the wordings of the foreign law are the
same as the local law. ('orthwest #rient Airlines v. Court of
Appeals, 04 !C1A 4+0/ )oran, 9ol. . page 6, 4+ edition/ :im
v. Collector of Customs, 6 hil. *02. %his is <nown as the
1#C"!!A: 1"!)%&#'.
=emorandum !"##3%
K states on direct e@amination that he once <new the facts being
as<ed but he cannot recall them now. =hen handed a written
record of the facts he testiEes that the facts are correctly stated,
but that he has never seen the writing before. &s the writing
admissible as past recollection recorded> "@plain,
S&GGES'E( ANS)ER*
'o, because for the written record to be admissible as past
recollection recorded. &t must have been written or recorded by K
or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was
fresh in his memory and he <new that the same was correctly
written or recorded. (!ec. 4 of 1ule 4602 But in this case K has
never seen the writing before.
2@er o Evidence !"##$%
A trial court cannot ta<e into consideration in deciding a case an
evidence that has not been Lformally oeredL. =hen are the
following pieces of evidence formally oered>
(a2 %estimonial evidence
(b2 Documentary evidence
(c2 #bject evidence
S&GGES'E( ANS)ER*
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allegedly confessed his guilt via an aidavit. After trial, he wasacHuitted on the groundthat his confession was obtained through torture, hence,inadmissible as evidence. &n a subseHuent criminal case fortorture against those who deprived him of sleep and subjectedhim to water torture. DominiHue was as<ed to testify and to,among other things, identify his above said aidavit of confession. As he was about to identify the aidavit, thedefense counsel objected on the ground that the aidavit is afruit of a poisonous tree. Can theobjection be sustained> "@plain. (672
S&GGES'E( ANS)ER*'o, the objection may not be sustained on the ground stated,because the aiant was only to identify the aidavit which isnot yet being oered in evidence. %he doctrine of the poisonoustree can only be invo<ed by Domingo as his defense in thecrime of 9iolation ofuman !ecurity Act Eled against him but not by the accusedtorture case Eled by him.&n the instant case, the presentation of the aidavit cannot beobjected to by the defense counsel on the ground that is afruit of the poisonous tree because the same is used in DomingMsfavor.
2@er o Evidence- /ruit o a Poisonous 'ree !011#%
'o.9&. Arrested in a buy-bust operation, "dmond was broughtto the police station where he was informed of his constitutionalrights. During the investigation, "dmond refused to give anystatement. owever, the arresting oicer as<ed "dmond toac<nowledge in writing that si@ (2 sachets of XshabuY wereconEscated from him. "dmond consented and also signed a
receipt for the amount of 6,, allegedly representing theXpurchase price of theshabu.Y At the trial, the arresting oicer testiEed andidentiEed the documents e@ecuted and signed by "dmond."dmondMs lawyer did not object to the testimony. After thepresentation of the testimonial evidence, the prosecutor madea formal oer of evidence which included thedocuments signed by "dmond. "dmondMs lawyer object to theadmissibility of the document for being the fruit of thepoisoned tree. 1esolve the objection with reasons. (672
S&GGES'E( ANS)ER*
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%he objection to the admissibility of the documents which thearresting oicer as<ed "dmond to sign without the beneEt of counsel, is well-ta<en. !aid documents having been signed bythe accused while under custodial investigation, imply anXadmissionY without the beneEt of counsel, that the shabucame from him and that the 6,, was received by himpursuantto the illegal selling of the drugs. %hus, it was obtained bythe arresting oicer in clear violation of !ec. 40 (62, Art. &&& of the4+* Constitution, particularly the right to be assisted bycounsel during custodial investigation. )oreover, the objectionto the admissibility of the evidence was timely made, i.e.,when the same is formally oered.
2@er o Evidence- res inter alios acta !0116%
K and Q were charged with murder. pon application of the
prosecution, Q was discharged from the &nformation to be utiliJed
as a state witness. %he prosecutor presented Q as witness but
forgot to state the purpose of his testimony much less oer it in
evidence. Q testiEed that he and K conspired to <ill the victim but it
was K who actually shot the victim. %he testimony of Q was the only
material evidence establishing the guilt of K. Q was thoroughly
cross-e@amined by the defense counsel. After the prosecutionrested its case, the defense Eled a motion for demurrer to evidence
based on the following grounds.
(a2 %he testimony of Q should be e@cluded because its purpose was
not initially stated and it was not formally oered in evidence as
reHuired by !ection 6, 1ule 460 of the 1evised 1ules of "vidence/
and
(b2 QMs testimony is not admissible against K pursuant to the rule on
Xres inter alios actaY. 1ule on the motion for demurrer to evidenceon the above grounds. (72
S&GGES'E( ANS)ER*
%he demurrer to the evidence should be denied becauseN a2 %he
testimony of Q should not be e@cluded
because the defense counsel did not object to his testimony despite
the fact that the prosecutor forgot to state its purpose or oer it in
evidence. )oreover, the defense counsel thoroughly cross-e@amined Q and thus waived the objection.
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b2 %he res inter alios acta rule does not apply because Q
testiEed in open court and was subjected to cross e@amination.
2@er o Evidence- 'estimonial 5 (ocumentary !"##>%
=hat is the dierence between an oer of testimonial evidence and
an oer of documentary evidence>
S&GGES'E( ANS)ER*
An oer of testimonial evidence is made at the time the witness is
called to testify, while an oer of documentary evidence is made
after the presentation of a partyMs testimonial evidence. (!ec. 6,
1ule 4602.
2+inion Rule !"##>%
At 'olanMs trial for possession and use of the prohibited drug,
<nown as XshabuN, his girlfriend ?im, testiEed that on a particular
day, he would see 'olan very prim and proper, alert and sharp, but
that three days after, he would appear haggard, tired and overly
nervous at the slightest sound he would hear. 'olan objects to the
admissibility of ?imMs testimony on the ground that ?im merely
stated her opinion without having been Erst HualiEed as e@pertwitness. !hould you, as judge, e@clude the testimony of ?im>
S&GGES'E( ANS)ER*
'o. %he testimony of ?im should not be e@cluded. "ven though ?im
is not an e@pert witness, ?im may testify on her impressions of the
emotion, behavior, condition or appearance of a person. (!ec. ,
last par., 1ule 462.
Parol Evidence !01">%
arole evidence is anN !"?%!A% agreement not included in the document!B% oral agreement not included in the document!C% agreement included in the document!(% oral agreement included in the document
S&GGES'E( ANS)ER*
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(A2 'oteN &t is suggested that either A or B be considered ascorrect. !trictly spea<ing parol evidence does not have to be anagreement/ it is simply any evidence, whether written or oral,which is not contained in a written agreement subject of a case andwhich see<s to modify, alter, or e@plain the terms of the writtenagreement.
Parol Evidence Rule !011"%
edro Eled a complaint against :ucio for the recovery of a sum of
money based on a promissory note e@ecuted by :ucio. &n his
complaint, edro alleged that although the promissory note says
that it is payable within 40 days, the truth is that the note is
payable immediately after + days but that if edro is willing, hemay, upon reHuest of :ucio give the latter up to 40 days to pay the
note. During the hearing, edro testiEed that the truth is that the
agreement between him and :ucio is for the latter to pay
immediately after ninety dayMs time. Also, since the original note
was with :ucio and the latter would not surrender to edro the
original note which :ucio <ept in a place about one dayMs trip from
where he received the notice to produce the note and in spite of
such notice to produce the same within si@ hours from receipt of
such notice, :ucio failed to do so. edro presented a copy of thenote which was e@ecuted at the same time as the original and with
identical contents. a2 #ver the objection of :ucio, will edro be
allowed to testify as to the true agreement or contents of the
promissory note> =hy> (072 b2 #ver the objection of :ucio, can
edro present a copy of the promissory note and have it admitted
as valid evidence in his favor> =hy> (672
S&GGES'E( ANS)ER*
a2 Qes, because edro has alleged in his complaint that the
promissory note does not e@press the true intent and agreement of
the parties. %his is an e@ception to the parol evidence rule. 5!ec.
+(b2 of 1ule 46, 1ules of Court8
b2 Qes, the copy in the possession of edro is a duplicate original
and with identical contents. 5!ec. (b2 of 1ule 468. )oreover, the
failure of :ucio to produce the original of the note is e@cusable
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because he was not given reasonable notice, as reHuirement under
the 1ules before secondary evidence may be presented. (!ec. of
1ule 46, 1ules of Court2
'oteN %he promissory note is an actionable document and the
original or a copy thereof should have been attached to the
complaint. (!ec. * of 1ule +, 4++* 1ules of Civil rocedure2. &n such
a case, the genuineness and due e@ecution of the note, if not denied
under oath, would be deemed admitted. (!ec. of 1ule +, 4++*
1ules of Civil rocedure2
Pre+onderance vs. Substantial Evidence !0116%
Distinguish preponderance of evidence from substantial evidence.
7
S&GGES'E( ANS)ER*
1"#'D"1A'C" #$ "9&D"'C" means that the evidence as a
whole adduced by one side is superior to that of the other. %his is
applicable in civil cases. (!ec. 4 of 1ule 466/ )unicipality of
)oncada v. Cajuigan, 04 hil, 4 54+4082.
!B!%A'%&A: "9&D"'C" is that amount of relevant evidencewhich a reasonable mind might accept as adeHuate to justify a
conclusion. %his is applicable in case Eled before administrative or
Huasi-judicial bodies. (!ec. of 1ule 4662
Privilege Communication !"##,%
C is the child of the spouses and =. sued his wife = for judicial
declaration of nullity of marriage under Article 6 of the $amily
Code. &n the trial, the following testiEed over the objection of =N C,
and D, a doctor of medicine who used to treat =. 1ule on =Rsobjections which are the followingN
4. cannot testify against her because of the rule on marital
privilege/ 5478
0. C cannot testify against her because of the doctrine on
parental privilege/ and 5078
6. D cannot testify against her because of the doctrine of
privileged communication between patient and physician. 5078
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S&GGES'E( ANS)ER*
4. %he rule of marital privilege cannot be invo<ed in the annulment
case under 1ule 6 of the $amily Code because it is a civil case
Eled by one against the other, (!ec. 00 , 1ule 46. 1ules of Court.2
0. %he doctrine of parental privilege cannot li<ewise be invo<ed by
= as against the testimony of C, their child. C may not be
compelled to testify but is free to testify against her. (!ec. 0.
1ule 46. 1ules of Court/ Art. 04, $amily Code.2
6. D, as a doctor who used to treat =, is disHualiEed to testify
against = over her objection as to any advice or treatment given by
him or any information which he may have acHuired in his
professional capacity. (!ec. 0 5c8, 1ule 46. 1ules of Court.2
AL'ERNA'I:E ANS)ER*
&f the doctorRs testimony is pursuant to the reHuirement of
establishing the psychological incapacity of =, and he is the e@pert
called upon to testify for the purpose, then it should be allowed.
(1epublic vs. Court of Appeals and )olina, 0! !C1A 4+.2
Privilege Communication !01"6%
$or over a year, 'enita had been estranged from her husband=alter because of the atterMs suspicion that she was having anaair with 9ladimir, a barangay <agawad who lived in nearby)andaluyong. 'enita lived in the meantime with her sister in)a<ati. #ne day, the house of 'enitaMs sister ine@plicably burnedalmost to the ground. 'enita and her sister were caught insidethe house but 'enita survived as she Ged in time, while her sistertried to save belongings and was caught inside when the house
collapsed. As she was running away from the burning house,'enita was surprised to see her husband also running awayfrom the scene.
Dr. Carlos, =alterMs psychiatrist who lived near the burnedhouse and whom =alter medically consulted after the Ere, alsosaw =alter in the vicinity some minutes before the Ere.Coincidentally, $r. latino, the parish priest who regularlyhears =alterMs confession and who heard it after the Ere, alsoencountered him not too far away from the burned house.
=alter was charged with arson and at his trial, theprosecution moved to introduce the testimonies of 'enita, the
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doctor and the priest-confessor, who all saw =alter at the vicinity of the Ere at about the time of the Ere. (A2 )ay thetestimony of 'enita be allowed over the objection of =alter>(672
S&GGES'E( ANS)ER*
'o. 'enita may not be allowed to testify against =alter. nderthe )arital DisHualiEcation 1ule, during their marriage, neitherthe husband nor the wife may testify for or against the otherwithout the consent of the aected spouse, e@cept in a civil
case by one against the other, or in a criminal case for acrime committed by one against the other or the latter’sdirect descendants or ascendants (!ection 00, 1ule 46, 1uleson "vidence2. %he foregoing e@ceptions cannot apply since itonly e@tends to a criminal case of one spouse against the otheror the latter’s direct ascendants or descendants. Clearly,'enita is not the oended partyand her sister is not her direct ascendant or descendant forher to fall within the e@ception.
AL'ERNA'I:E ANS)ER* Qes. 'enita may be allowed to testify against =alter. &t is wellsettled that the marital disHualiEcation rule does not apply whenthe marital and domestic relations between spouses are strained.&n AlvareJ vs. 1amireJ, ;.1. 'o. 466+, #ctober 4, 0, the!upreme Court citing eople vs. Castaneda, 0*4 !C1A ,held that the act of private respondent in setting Ere to thehouse of his sister-in-law !usan 1amireJ, ?nowing fully well thathis wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and
conEdences of marital relation which the disHualiEcationprimarily see<s to protect. %he criminal act complained of hadthe eect of directly and vitally impairing the conjugal relation.&t underscored the fact that the marital and domestic relationsbetween her and the accused-husband have become so strainedthat there is no more harmony, peace or tranHuillity to bepreserved. ence, the identity is non-e@istent. &n such asituation, the security and conEdences of private life which thelaw aims to protect are nothing but ideals which throughtheir absence, merely leave a void in the unhappy home. %hus,there is no reason to apply the )arital DisHualiEcation 1ule.
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(B2 )ay the testimony of Dr. Carlos, =alterMs psychiatrist, beallowed over =alterMs ojection> (672
S&GGES'E( ANS)ER*
Qes. %he testimony of =alter’s psychiatrist may be allowed.%he privileged communication contemplated under !ec. 0 (c21ule 46 of the 1ules on "vidence involves only personsauthoriJed to practice medicine, surgery or obstetrics. &t doesnot include a sychiatrist. )oreover, the privilegedcommunication applies only in civil cases and not in acriminal case for arson. Besides, the subject of the testimonyof Dr. Carlos was not in connection with the advice or treatment
given by him to =alter, or any information he acHuired inattending to =alter in a professional capacity. %he testimonyof Dr. Carlos is limited only to what he perceived at the vicinity of the Ere and at the time of the Ere.
(C2 )ay the testimony of $r. latino, the priest-confessor, beallowed over =alterMs objection> (672
S&GGES'E( ANS)ER*
Qes. %he riest can testify over the objection of =alter. %he
disHualiEcation reHuires that the same were made pursuant toa religious duty enjoined in the course of discipline of thesect or denomination to which they belong and must beconEdential and penitential in character, e.g., under the sealof confession (!ec. 0 (d2 1ule 46, 1ules on "vidence2.
ere, the testimony of $r. latino was not previously subject of a confession of =alter or an advice given by him to =alter inhis professional character. %he %estimony was merely limited towhat $r. latino perceived Xat the vicinity of the Ere and at
about the time of the Ere.Y ence, $r. latino may be allowedto testify.
Privilege Communication- La8yerClient !011,% #n August 4, 0, "dgardo committed estafa againstetronilo in the amount of 6 illion. etronilo brought hiscomplaint to the 'ational Bureau of &nvestigation, which foundthat "dgardo had visited his lawyer twice, the Erst time on August 4, 0 and the second on
August 4, 0/ and that both visits concerned the swindlingof etronilo. During the trial of "dgardo, the 1%C issued a
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subpoena ad testiEcandum to "dgardoMs lawyer for him totestify on the conversations during their Erst and secondmeetings. )ay the subpoena be Huashed on the ground of privileged communication> "@plain fully. (72
S&GGES'E( ANS)ER*
Qes, the mantle of privileged communication based on lawyer-client relationship protects the communication between a lawyerand his client against any adverse party as in this case. %hesubpoena reHuiring the lawyer to testify can be Huashed onthe ground of privileged communication (!ee 1egala v.!andiganbayan, ;1 'o. 4+6, 0 !eptember 4++2. !ec. 0
(b2 1ule 46 provides that an attorney cannot, without theconsent of his client be e@amined in any communication madeto him by his client to him, or his advice given thereon, includinghis secretary, stenographer, cler< concerning any fact the<nowledge of which has been acHuired in such capacity.owever, where the subject matter of the communicationinvolves the commission of the crime, in which the lawyer himself is a participant or conspirator, then the same is not coveredby the privilege.
)oreover, if the substance of the communication can beestablished by independent evidence, the lawyer maybe compelledto testify.
Privilege Communication- =arital Privilege !"#,#%
#dy sued spouses Cesar and Baby for a sum of money and
damages. At the trial, #dy called Baby as his Erst witness. Baby
objected, joined by Cesar, on the ground that she may not be
compelled to testify against her husband. #dy insisted and
contended that after all, she would just be Huestioned about a
conference they had with the barangay captain, a matter which isnot conEdential in nature. %he trial court ruled in favor of #dy. =as
the ruling proper> =ill your answer be the same if the matters to
be testiEed on were <nown to Baby or acHuired by her prior to her
marriage to Cesar> "@plain.
S&GGES'E( ANS)ER*
'o. nder the 1ules on "vidence, a wife cannot be e@amined for or
against her husband without his consent, e@cept in civil cases by
one against the other, or in a criminal case for a crime committed
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by one against the other. !ince the case was Eled by #dy against
the spouses Cesar and Baby, Baby cannot be compelled to testify
for or against Cesar without his consent. (:eJama vs. 1odrigueJ, 06!C1A 442.
%he answer would be the same if the matters to be testiEed on
were <nown to Baby or acHuired by her prior to her marriage to
Cesar, because the marital disHualiEcation rule may be invo<ed
with respect to testimony on any fact. &t is immaterial whether such
matters were <nown to Baby before or after her marriage to Cesar.
Privilege Communication- =arital Privilege !0111%
9ida and 1omeo are legally married. 1omeo is charged to court
with the crime of serious physical injuries committed against
!elmo, son of 9ida, stepSson of 1omeo. 9ida witnessed the
inGiction of the injuries on !elmo by 1omeo. %he public prosecutor
called 9ida to the witness stand and oered her testimony as an
eyewitness. Counsel for 1omeo objected on the ground of the
marital disHualiEcation rule under the 1ules of Court. a2 &s the
objection valid> (672 b2 =ill your answer be the same if 9idaMs
testimony is oered in a civil case for recovery of personal property
Eled by !elmo against 1omeo> (072
S&GGES'E( ANS)ER*
(a2 'o. =hile neither the husband nor the wife may testify for or
against the other without the consent of the aected spouse, one
e@ception is if the testimony of the spouse is in a criminal case for a
crime committed by one against the other or the latterMs direct
descendants or ascendants. (!ec, 00, 1ule 462. %he case falls
under this e@ception because !elma is the direct descendant of the
spouse 9ide.
(b2 'o. %he marital disHualiEcation rule applies this time. %he
e@ception provided by the rules is in a civil case by one spouse
against the other. %he case here involves a case by !elmo for the
recovery of personal property against 9idaMs spouse, 1omeo.
Privilege Communication- La8yerClient !011,%
A tugboat owned by !peedy ort !ervice, &nc. (!!2 san< in
)anila Bay while helping tow another vessel, drowning Eve (2crews in the resulting shipwrec<. At the maritime board inHuiry,
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the four (2 survivors testiEed. !! engaged Atty. "ly to defend itagainst potential claims and to sue the company owning theother vessel for damages to tug. "ly obtained signedstatements from the survivors. e also interviewed otherpersons, in some instancema<ing memoranda. %he heirs of the Eve (2 victims Eled anaction for damages against!!. laintisM counsel sent written interrogatories to "ly,as<ing whether statements of witnesses were obtained/ if written copies were to be furnished/ if oral, the e@actprovision were to be set forth in detail. "ly refused to comply,arguing that the documents and information as<ed areprivileged communication. &s the contention tenable> "@plain (72
S&GGES'E( ANS)ER*
Qes, the lawyer-client privilege covers any communication madeby the client to the lawyer, or the lawyer’s advice giventhereon in the course of, or with a view to professionalemployment. %he documents and information sought weregathered and prepared pursuant to the engagement of "ly asa lawyer for the company (Air hilippines Corporation v.ennswell, &nc., ;1 'o. 4*06, 46 December 0*2. !ec. ,1ule 0 of the 1ules of Court provides that interrogatories mayrelate to any matter that can be reHuired into under !ec. 0,1ule 06 o depositions and discovery refers to privilegedconEdential communications under !ec. 0, 1ule 46.
Privilege Communication- =arital Privilege !011>%
KQO, an alien, was criminally charged of promoting and facilitating
child prostitution and other se@ual abuses under 1ep. Act 'o. *4.
%he principal witness against him was his $ilipina wife, ABC.
"arlier, she had complained that KQORs hotel was being used as a
center for se@ tourism and child traic<ing. %he defense counsel forKQO objected to the testimony of ABC at the trial of the child
prostitution case and the introduction of the aidavits she e@ecuted
against her husband as a violation of espousal conEdentiality and
marital privilege rule. &t turned out that D"$, the minor daughter of
ABC by her Erst husband who was a $ilipino, was molested by KQO
earlier. %hus, ABC had Eled for legal separation from KQO since last
year. )ay the court admit the testimony and aidavits of the wife,
ABC, against her husband, KQO, in the criminal case involving child
prostitution> 1eason. (72
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S&GGES'E( ANS)ER*
Qes. %he court may admit the testimony and aidavits of the wife
against her husband in the criminal case where it involves child
prostitution of the wifeRs daughter. &t is not covered by the marital
privilege rule. #ne e@ception thereof is where the crime is
committed by one against the other or the latterRs direct
descendants or ascendants. (!ec. 00, 1ule 462. A crime by the
husband against the daughter is a crime against the wife and
directly attac<s or vitally impairs the conjugal relation. (#rdono v.
DaHuigan, 0 !C1A 0* 54+*82.
Privilege Communication- =arital Privilege !0113%
:eticia was estranged from her husband aul for more than a year
due to his suspicion that she was having an aair with )anuel their
neighbor. !he was temporarily living with her sister in asig City.
$or un<nown reasons, the house of :eticiaRs sister was burned,
<illing the latter. :eticia survived. !he saw her husband in the
vicinity during the incident. :ater he was charged with arson in an
&nformation Eled with the 1egional %rial Court, asig City. During
the trial, the prosecutor called :eticia to the witness stand and
oered her testimony to prove that her husband committed arson.Can :eticia testify over the objection of her husband on the ground
of marital privilege> (72
AL'ERNA'I:E ANS)ER*
'o, :eticia cannot testify over the objection of her husband, not
under marital privilege which is inapplicable and which can be
waived, but she would be barred under !ec. 00 of 1ule 46, which
prohibits her from testifying and which cannot be waived (AlvareJ
v. 1amireJ, ;.1. 'o. 466+, #ctober 4, 02.
AL'ERNA'I:E ANS)ER*
Qes, :eticia may testify over the objection of her husband. %he
disHualiEcation of a witness by reason of marriage under !ec. 00,
1ule 46 of the 1evised 1ules of Court has its e@ceptions as where
the marital relations are so strained that there is no more harmony
to be preserved. %he acts of aul eradicate all major aspects of
marital life. #n the other hand, the !tate has an interest in
punishing the guilty and e@onerating the innocent, and must have
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the right to oer the testimony of :eticia over the objection of her
husband (AlvareJ v. 1amireJ, ;.1. 'o. 466+, #ctober 4, 02.
Remedy- Lost (ocuments- Secondary Evidence !"##0%
Aja@ ower Corporation, a utility company, sued in the 1%C to
enforce a supposed right of way over a property owned by
!implicio. At the ensuing trial, Aja@ presented its retired Eeld
auditor who testiEed that he <now for a fact that a certain sum of
money was periodically paid to !implicio for some time as
consideration for a right of way pursuant to a written contract. %he
original contract was not presented. &nstead, a purported copy,
identiEed by the retired Eeld auditor as such, was formally oeredas part of his testimony. 1ejected by the trial court, it was Enally
made the subject of an oer of proof by Aja@.
Can Aja@ validly claim that it had suiciently met its burden of
proving the e@istence of the contract establishing its right of way>
"@plain,
S&GGES'E( ANS)ER*
'o. Aja@ had not suiciently met the burden of proving the
e@istence of the written contract because. &t had not laid the basis
for the admission of a purported copy thereof as secondary
evidence. Aja@ should have Erst proven the e@ecution of the
original document and its loss or destruction. (!ec. of 1ule 462
Privilege Communication- =arital Privilege !01"1%
#n )arch 40, 0, )abini was charged with )urder forfatally stabbing "milio. %o prove the Hualifying circumstance of evident premeditation, the prosecution introduced on December
44, 0+ a te@t message, which )abiniMs estranged wife;regoria had sent to "milio on the eve of his death, readingNXoney, pa0tayin u ni )abini. )tgal n nyang plano i0. )gingat u b<a ma tsugi <.Y
(A2 A subpoena ad testiEcandum was served on ;regoria for herto be presented for the purpose of identifying her cellphone andthe te@ message. )abini objected to her presentation on theground of marital privilege. 1esolve.
S&GGES'E( ANS)ER*
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sent under consciousness of an impending death, is evidentlyattendant from the victim‟s statementN XD na me ma<ahingaY
and the fact that he died shortly after he sent the te@t message. owever, cellphone messages are regarded as electronicevidence, and in a recent case (Ang vs. Court of Appeals etal., ;1 '#. 406, April 0, 042, the !upreme Court ruledthat the 1ules on "lectronic "vidence applies only to civilactions, Huasi-judicial proceedings and administrativeproceeding, not to criminal actions.
AL'ERNAN'I:E ANS)ER*
'o, the te@t message is not admissible as a dying declarationbecause it lac<s indication that the victim was underconsciousness of an impending death. %he statement XD na mema<ahingaY is still uneHuivocal in the te@t message sent thatdoes not imply consciousness of forth-coming death.
'estimony- Inde+endent Relevant Statement !"###%
A overheard B call K a thief. &n an action for defamation Eled by K
against B, is the testimony of A oered to prove the fact of
utterance i.e., that B called K a thief, admissible in evidence>
"@plain. (072
S&GGES'E( ANS)ER*
Qes. %he testimony of A who overheard B call K a thief is admissible
in evidence as an independently relevant statement. &t is oered in
evidence only to prove the tenor thereof, not to prove the truth of
the facts asserted therein. &ndependently relevant statements
include statements which are on the very facts in issue or those
which are circumstantial evidence thereof. %he hearsay rule does
not apply. (!ee eople vs. ;addi, 4* !C1A +2
)itness- Com+etency o t4e )itness vs. Credibility o t4e
)itness !011>%
Distinguish Competency of the witness and credibility of the
witness.
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S&GGES'E( ANS)ER*
Competency of the witness refers to a witness who can perceive,
and perceiving, can ma<e <nown his perception to others (!ec. 0
of 1ule 462, while credibility of the witness refers to a witness
whose testimony is believable.
=itness/ "@amination of a Child =itness/ via :ive-:in< %9 (02
=hen may the trial court order that the testimony of a child be
ta<en by live-lin< television> "@plain.
S&GGES'E( ANS)ER*
%he testimony of a child may be ta<en by live-lin< television if thereis a substantial li<elihood that the child would suer trauma from
testifying in the presence of the accused, his counsel or the
prosecutor as the case may be. %he trauma must of a <ind which
would impair the completeness or truthfulness of the testimony of
the child. (!ee !ec. 0, 1ule on "@amination of a Child =itness2.
)itness- Eamination o )itnesses !"##$%
a2 Aside from as<ing a witness to e@plain and supplement his
answer in the cross-e@amination, can the proponent as< in re-directe@amination Huestions on matters not dealt with during cross-
e@amination>
b2 Aside from as<ing the witness on matters stated in his re-
direct e@amination, can the opponent in his re-cross-e@amination
as< Huestions on matters not dealt with during the re-direct>
c2 After plainti has formally submitted his evidence, he
realiJed that he had forgotten to present what he considered an
important evidence. Can he recall a witness>
S&GGES'E( ANS)ER*
(a2 Qes, on redirect e@amination, Huestions on matters not dealt
with during the cross-e@amination may be allowed by the court in
its discretion. (!ec. * of 1ule 4602.
(b2 Qes, the opponent in his re-cross-e@amination may also as<
Huestions on such other matters as may be allowed by the court in
its discretion. (!ec. . 1ule 4602.
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(c2 Qes, after formally submitting his evidence, the plainti can
recall a witness with leave of court. %he court may grant or
withhold leave in its discretion as the interests of justice mayreHuire. (!ec. +. 1ule 4602.
)itness- Eamination o )itnesses !0110%
&s this Huestion on direct e@amination objectionableN X=hat
happened on 3uly 40, 4+++Y> =hy> (072
S&GGES'E( ANS)ER*
%he Huestion is objectionable because it has no basis, unless before
the Huestion is as<ed the proper basis is laid.
)itness- Eamination o )itness !011#%
'o.4.5b8 %he #ne-Day "@amination of witness 1ule abbreviatescourt proceedings by having a witness fully e@amined in onlyone day during trial.
S&GGES'E( ANS)ER*
%1". ar. (i2 of !upreme Court A.). 'o. 6-4-+-!CreHuires that a witness has to be fully e@amined in one (42day only. %his rule shall be strictly adhered to subject to thecourt’s discretion during trial on whether or not to e@tend thedirect andFor cross-e@amination for justiEable reasons. #n thelast hearing day allotted for each party, he is reHuired toma<e his formal oer of evidence after the presentation of hislast witness and the opposing party is reHuired to immediatelyinterpose his objection thereto. %hereafter, the judge shallma<e the ruling on the oer of evidence in open court.
owever, the judge has the discretion to allow the oer of evidence in writing in conformity with !ection 6, 1ule 460.
AL'ERNA'I:E ANS)ER*
$A:!". %his rule is not absoluteN it will still allow the trial judge the discretion whether to e@tend the direct andFor crosse@amination for justiEable reasons or not. %he e@ercise of thisdiscretion may still result in wrangling as to the proper
e@ercise of the trial court’s
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Absentee- (eclaration o Absence vs. (eclaration o Presum+tive (eat4 !011#%
$ran< and ;ina were married on 3une 40, 4+* in )anila.Barely a year after the wedding, $ran< e@hibited a violenttemperament, forcing ;ina, for reasons of personal safety, tolive with her parents. A year thereafter, ;ina foundemployment as a domestic helper in !ingapore, where shewor<ed for ten consecutive years. All the time she wasabroad, ;ina had absolutely no communications with $ran<, nordid she hear any news about him. =hile in !ingapore, ;inamet and fell in love with =illie.
#n 3uly , 0*, ;ina Eled a petition with the 1%C of manilato declare $ran< presumptively dead, so that she could marry=illie. %he 1%C granted ;inaMs petition. %he oice of the!olicitor ;eneral (#!;2 Eled a notice of Appeal with the 1%C,stating that it was appealing the decision of the Court of Appealson Huestions of fact and law.
(a2 &s a petition for declaration of resumptive Death a specialproceeding>
S&GGES'E( ANS)ER*
'o. the petition for Declaration of resumptive Death providedin Art. 4 of the X$amily CodeY is not the special proceedinggoverning absentees under 1ule 4* of the 1ules of Courtwhose rules of procedure will not be followed (1epublic vs.C.A., !C1A 5082. !aid petition for Declaration of resumptive Death under Article 4 of the $amily Code is asummary proceeding, authoriJed for purposes only of remarriageof the present spouse, to avoid incurring the crime of bigamy.'onetheless, it is in the nature of a special proceeding, being
an application to establish a status or a particular fact incourt.
AL'ERNA'I:E ANS)ER*
A petition for declaration of presumptive death may beconsidered a special proceeding, because it is so classiEed inthe 1ules of Court (1ule 4*, 1ules of Court2, asdierentiated from an ordinary action which is adversarial. &t is amere application or proceeding to establish the status of aparty or a particular fact, to viJN that a person has been
unheard of for a long time and under such circumstance that hemay be presumed dead.
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(b2 As the 1%C judge who granted ;inaMs petition, will yougive due course to the#!;Ms notice of appeal>
S&GGES'E( ANS)ER*
'#. Appeal is not a proper remedy since the decision isimmediately Enal and e@ecutor upon notice to the partiesunder Art. 0* of the $amily Code(1epublic vs BermudeJ-:orino, + !C1A * 5082. %he #!; may assail 1%C‟s
grant of the petition only on the premise of grave abuse of discretion amounting to lac< or e@cess of jurisdiction. %heremedy should be by certiorari under 1ule of the 1ules of Court.
Petition or C4ange o Name !01">%
& was adopted by - and C when & was only a toddler. :ater on inlife, & Eled with the 1egional %rial Court ( R0C2 a petition forchange of name under 1ule 46 of the 1ules of Court, as he wanted
to reassume the surname of his natural parents because thesurname of his adoptive parents sounded oensive and wasseriously aecting his business and social life.
%he adoptive parents gave their consent to the petition for changeof name. )ay & Ele a petition for change of name> &f the 1%Cgrants the petition for change of name, what, if any, will be theeect on the respective relations of & with his adoptive parents andwith his natural parents> Discuss. !>?%
S&GGES'E( ANS)ER*
Qes, A may Ele a petition for change of name. Changing name onthe ground that it is oensive and seriously aects the petitionerMsbusiness and social life is a valid ground especially where theadoptive parents had given their consent.
%he grant of the petition will not change AMs relations withhis adoptive and natural parents. %he !upreme Court has held thatchange of name under 1ule 46 aects only the name and not thestatus of the petitioner. (1epublic v. CA, 04 )ay 4++02.
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'o.9&&. (a2 B Eles a petition for cancellation of the birthcertiEcate of her daughter 1 on the ground of the falsiEedmaterial entries therein made by BMs husband as theinformant. %he 1%C sets the case for hearing and directs thepublication of the order for hearing and directs thepublication of the order once a wee< for three consecutivewee<s in a newspaper of general circulation. !ummons wasservice on the Civil 1egistrar but there was no appearanceduring the hearing. %he 1%C granted the petition. 1 Eled apetition for annulment of judgment before the Court of Appeals, saying that she was not notiEed of the petition andhence, the decision was issued in violation of due process. B
opposed saying that the publication of the court order wassuicient compliance with due process. 1ule. (72S&GGES'E( ANS)ER*
1 ’s petition for annulment of judgment before the Court of Appeals should be granted. Although there was publication of the court order acting the petition to cancel the birthcertiEcate, reasonable notice still has to be served on 1 as shehas an interest aected by the cancellation. (!ec. 6 and ,1ule 4, 1ules of Court2 !he is an indispensable party(1epublic v. Benemerito, 0 !C1A 5082, and notice has
to be served on her, not for the purpose of vesting the courtwith jurisdiction, but to comply with the reHuirements of fairplay and due process (Ceruila v. Delantar, ** !C1A 465082.
AL'ERNA'I:E ANS)ER*
%he petition for annulment of judgment should not begranted. =hile 1 is an indispensable party, it has been heldthat the failure to service notice on indispensable parties iscured by the publication made because the action is one inrem (Alba v. Court of Appeals, !C1A + 508/ Barco v.Court of Appeals, 0 !C1A 6+ 5082.
Cancellation or Correction- Entries Civil Registry !01">%
'ar% 5ane met Siela 'a% at the recruitment agency where theyboth applied for overseas employment. %hey e@changedpleasantries, including details of their personal circumstances.$ortunately, 'ar% 5ane was deployed to wor< as front des< receptionist at a hotel in Abu Dhabi where she met Sul#an
&me! who proposed marriage, to which she readily accepted.
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nfortunately for Siela 'a% , she was not deployed to wor< abroad, and this made her envious of 'ar% 5ane. 'ar% 5ane returned to the hilippines to prepare for her wedding.!he secured from the 'ational !tatistics #ice ( BS=2 a CertiEcateof 'o )arriage. &t turned out from the '!# records that 'ar% 5ane had previously contracted marriage with 5on S#arr , a BritishcitiJen, which she never did. %he purported marriagebetween 'ar% 5ane and 5on S#arr contained all the reHuiredpertinent details on 'ar% 5ane. 'ar% 5ane later on learnedthat Siela 'a% is the best friend of 5on S#arr . As a lawyer, 'ar% 5ane see<s your advice on her predicament. =hatlegal remedy will you avail to enable 'ar% 5ane to contractmarriage with Sul#an &me!>!>?%
S&GGES'E( ANS)ER*
%he legal remedy & would avail to enable )ary 3ane to contractmarriage with !ultan Ahmed is to Ele a petition under 1ule 4 tocancel entries in the marriage contract between 3ohn !tarr and)ary 3ane, particularly the portion and entries thereon relating tothe wife.
1ule 4 may be availed of to cancel erroneous or invalid entries inthe Civil 1egistry. ere the entry of )ary 3ane as the wife of 3ohn
!tarr is clearly erroneous and invalid as she never contractedmarriage with anybody, much less 3ohn !tarr. %here is no need toEle a petition for declaration of nullity of marriage since there wasno marriage to spea< of in the Erst place, the marriage contractbeing a sham contract. (1epublic v. #laybar, 4 $ebruary 04,eralta, 3.2.
Cancellation or Correction- Entries Civil Registry !011<%
elen is the daughter of "liJa, a $ilipina, and %ony, a Chinese, who
is married to another woman living in China. er birth certiEcate
indicates that elen is the legitimate child of %ony and "liJa and
that she is a Chinese citiJen. elen wants her birth certiEcate
corrected by changing her Eliation from LlegitimateL to
LillegitimateL and her citiJenship from LChineseL to L$ilipinoL
because her parents were not married. =hat petition should elen
Ele and what procedural reHuirements must be observed> "@plain.
(72
S&GGES'E( ANS)ER*
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A petition to change the record of birth by changing the Eliation
from LlegitimateL to LillegitimateL and petitionerRs citiJenship from
LChineseL to L$ilipinoL because her parents were not married, doesnot involve a simple summary correction, which could otherwise be
done under the authority of 1.A. 'o. +. A petition has to be Eled
in a proceeding under 1ule 4 of the 1ules of Court, which has
now been interpreted to be adversarial in nature. (1epublic v.
9alencia, ;.1. 'o. :-6044, )arch , 4+2 rocedural
reHuirements includeN (a2 Eling a veriEed petition/ (b2 naming as
parties all persons who have or claim any interest which would be
aected/ (c2 issuance of an order E@ing the time and place of
hearing/ (d2 giving reasonable notice to the parties named in thepetition/ and (e2 publication of the order once a wee< for three
consecutive see<s in a newspaper of general circulation. (1ule 4,
1ules of Court2
Esc4eat Proceedings !0110%
!uppose the property of D was declared escheated on 3uly 4, 4++
in escheat proceedings brought by the !olicitor ;eneral. 'ow, K,
who claims to be an heir of D, Eled an action to recover the
escheated property. &s the action viable> =hy> (072S&GGES'E( ANS)ER*
'o, the action is not viable. %he action to recover escheated
property must be Eled within Eve years from 3uly 4, 4++ or be
forever barred. (1ule +4, sec. 2.
Etra7udicial Settlement o Estate !011<%
'estor died intestate in 06, leaving no debts. ow may his estate
be settled by his heirs who are of legal age and have legal
capacity> "@plain. (072
S&GGES'E( ANS)ER*
&f the decedent left no will and no debts, and the heirs are all of
age, the parties may, without securing letters of administration,
divide the estate among themselves by means of a public
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instrument or by stipulation in a pending action for partition and
shall Ele a bond with the register of deeds in an amount eHuivalent
to the value of the personal property involved as certiEed to underoath by the parties concerned. %he fact of e@tra-judicial settlement
shall be published in a newspaper of general circulation once a
wee< for three consecutive wee<s in the province. (!ec. 4, 1ule *,
1ules of Court2
;abeas Cor+us !"##6%
1o@anne, a widow, Eled a petition for habeas corpus with the Court
of Appeals against )ajor Amor who is allegedly detaining her 4-
year old son Bong without authority of the law.
After )ajor Amor had a Eled a return alleging the cause of
detention of Bong, the Court of Appeals promulgated a resolution
remanding the case to the 1%C for a full-blown trial due to the
conGicting facts presented by the parties in their pleadings. &n
directing the remand, the court of Appeals relied on !ec.+(42, in
relation to !ec. 04 of B 40+ conferring upon said Court the
authority to try and decide habeas corpus cases concurrently with
the 1%Cs. Did the Court of Appeals act correctly in remanding the
petition to the 1%C> =hy>
S&GGES'E( ANS)ER*
'o, because while the CA has original jurisdiction over habeas
corpus concurrent with the 1%Cs, it has no authority for remanding
to the latter original actions Eled with the former. #n the contrary,
the CA is speciEcally given the power to receive evidence and
perform any and all acts necessary to resolve factual issues raised
in cases falling within its original jurisdiction.
AL'ERNA'I:E ANS)ER*
Qes, because there is no prohibition in the law against a superior
court referring a case to a lower court having concurrent
jurisdiction. %he !upreme Court has referred to the CA or the 1%C
cases falling within their concurrent jurisdiction.
;abeas Cor+us !"##,%
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A was arrested on the strength of a warrant of arrest issued by the
1%C in connection with an &nformation for omicide. =, the live-in
partner of A Eled a petition for habeas corpus against ARs jailer andpolice investigators with the Court of Appeals.
4. Does = have the personality to Ele the petition for habeas
corpus> 5078
0. &s the petition tenable> 5678
S&GGES'E( ANS)ER*
4. Qes. =, the live-in partner of A, has the personality to Ele the
petition for habeas corpus because it may be Eled by Lsome person
in his behalf.L (!ec. 6. 1ule 40. 1ules of Court.2
0. 'o. %he petition is not tenable because the warrant of arrest was
issued by a court which had 3urisdiction to issue it (!ec. , 1ule
40 1ules of Court2
;abeas Cor+us !0116%
=idow A and her two children, both girls, aged and 40 years old,
reside in Angeles City, ampanga. A leaves her two daughters in
their house at night because she wor<s in a brothel as a prostitute.
1ealiJing the danger to the morals of these two girls, B, the father
of the deceased husband of A, Eles a petition for habeas corpus
against A for the custody of the girls in the $amily Court in Angeles
City. &n said petition, B alleges that he is entitled to the custody of
the two girls because their mother is living a disgraceful life. %he
court issues the writ of habeas corpus. =hen A learns of the
petition and the writ, she brings her two children to Cebu City. Atthe e@pense of B the sheri of the said $amily Court goes to Cebu
City and serves the writ on A. A Eles her comment on the petition
raising the following defensesN a2 %he enforcement of the writ of
habeas corpus in
Cebu City is illegal/ and b2 B has no personality to institute the
petition. 7 1esolve the petition in the light of the above defenses
of A. (72
S&GGES'E( ANS)ER*
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(a2 %he writ of habeas corpus issued by the $amily Court in Angeles
City may not be legally enforced in Cebu City, because the writ is
enforceable only within the judicial region to which the $amilyCourt belongs, unli<e the writ granted by the !upreme Court or
Court of Appeals which is enforceable anywhere in the hilippines.
(!ec. 0 of 1ule on Custody of )inors and =rit of abeas Corpus
in 1elation to Custody of )inors. (A.). 'o. 6---!C/ see also
!ec. of 1ule 40, 1ules of Court.2
(b2 B, the father of the deceased husband of A, has the personality
to institute the petition for habeas corpus of the two minor girls,
because the grandparent has the right of custody as against the
mother A who is a prostitute. (!ectioins 0 and 46, &d.2
;abeas Cor+us !011$%
usband Eles a petition for declaration of nullity of marriagebefore the 1%C of asig City. =ife = Eles a petition for habeascorpus before the 1%C of asay City, praying for custody overtheir minor child. Eles a motion to dismiss the wifeMs petitionon the ground of the pendency of the other case. 1ule.
S&GGES'E( ANS)ER*
%he motion to dismiss the petition for habeas corpus should begranted to avoid multiplicity of suits. %he Huestion of whobetween the spouses should have custody of their minor childcould also be determined in the petition for declaration of nullity of their marriagewhich is already pending in the 1%C of asig City. &n otherwords, the petitionEled in asig City, praying for custody of the minor child isunnecessary and violates only the cardinal rules of procedure
against multiplicity of suits. ence, the latter suit may be abatedby a motion to dismiss on the ground of litis pendentia (Qu v. Qu, !C1A 5082.
;abeas Cor+us- Bail !011,%
After Alma had started serving her sentence for violation of B 00, she Eled a petition for a writ of habeas corpus, citing 9aca vs CA where the sentence of imprisonment of a partyfound guilty of violation of B 00 was reduced to a EneeHual to double the amount of the chec< involved. !he
prayed that her sentence be similarly modiEed and that shebe immediately released from detention. &n the alternative, she
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prayed that pending determination on whether the 9aca rulingapplies to her, she be allowed to post bail pursuant to 1ule40, !ec. 4, which provides that if a person is lawfullyimprisoned or restrained on a charge of having committed anoense not punishable by death, he may be admitted to bail inthe discretion of the court. Accordingly, the trial court allowed Alma to post bail and then ordered her release. &n youropinion, is the order of the trial court correct Z (a2 nder 1ule40>
S&GGES'E( ANS)ER*
'o, Alma, who is already convicted by Enal judgment, cannot
be entitled to bail under !ec. 4, 1ule 40. %he provisionpresupposes that she had not been convicted as yet. &tprovides that if she is lawfully imprisoned or restrained for anoense not punishable by death, she may be recommitted toimprisonment or admitted to bail in the discretion of the courtor judge (!ec. 4, 1ule 40/ Celeste vs. eople, 64 !C1A 6+4/ 9icente vs. 3udge )ajaducon, A.). 'o. 1%3-0-4+, 06 3une0/ !an edro vs. eo, ;.1. 'o. 4660+*, 4 August 002.
(b2 nder the 1ules of criminal procedure>
S&GGES'E( ANS)ER*
nder the 1ules of Criminal rocedure, 1ule 44, !ec. 0clearly prohibits the grant of bail after conviction by Enal judgment and after the convict has started to serve sentence. &nthe present case, Alma had already started serving hersentence. !he cannot, therefore,apply for bail (eo. vs. $itJgerald, ;.1. 'o. 4+*06, 0* #ctober02.
;abeas Cor+us- Jurisdiction- Sandiganbayan !011#% &n the e@ercise of its original jurisdiction, the !andiganbayanmay grant petitions for the issuance of a writ of habeascorpus.
S&GGES'E( ANS)ER*
$A:!". %he !andiganbayan may grant petitions for abeascorpus only in aid of its appellate jurisdiction (1.A. *+*, asamended by 1.A 0+2, not in the e@ercise of XoriginalY
jurisdiction.
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Settlement o Estate !01"1%
!al )ineo died intestate, leaving a 4 billion estate. e wassurvived by his wife Dayanara and their Eve children. DayanaraEled a petition for the issuance of letters of administration.Charlene, one of the children, Eled an opposition to thepetition, alleging that there was neither an allegation norgenuine eort to settle the estate amicably before the Eling of thepetition. 1ule on the opposition. (72
S&GGES'E( ANS)ER*
%he opposition should be overruled for lac< of merit. %heallegation that there was a genuine eort to settle the estateamicably before the Eling of the petition is not reHuired by the1ules. Besides, a petition for issuance of letters of administration may be contested oneither of two grounds N (42 the incompetency of the personfor whom letters are prayed therein/ and (02 the contestant’sown right to the administration. (!ec. , 1ule +2.Settlement o Estate !011#%
inoy died without a will. is wife, 1osie and three children
e@ecuted a deed of e@trajudicial settlement of his estate. %hedeed was properly published and registered with the #ice of the 1egister of Deeds. %hree years thereafter, !uJy appeared,claiming to be the illegitimate child of inoy. !he sought toannul the settlement alleging that she was deprived of herrightful share in the estate. 1osie and the %hree Childrencontended that (42 the publication of the deed constitutedconstructive notice to the whole world, and should therefore bind!uJy/ and (02 !uJyMs action had already prescribed. Are 1osie andthe %hree Children Correct> "@plain.
S&GGES'E( ANS)ER*
'#, the contention is not correct. !uJy can Ele a complaint toannul the e@trajudicial settlement and she can recover what isdue her as such heir if her status as an illegitimate child of thedeceased has been established. %he publication of thesettlement does not constitute constructive notice to the heirswho had no <nowledge or did not ta<e part in it because thesame was notice after the fact of e@ecution. %he reHuirementof publication is intended for the protection of creditors and
was never intended to deprive heirs of their lawful
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participation in the decedent’s estate. !he can Ele the actiontherefore within four (2 years after the settlement was registered.
Letters o Administration- Interested Person !011,%
Domencio and ;en lived without beneEt of marriage for 0 years, during which time they purchased properties together. After Domencio died without a will, ;en Eled a petition forletters of administration. DomencioMs siblings opposed thesame on the ground that ;en has no legal personality. Decide.
S&GGES'E( ANS)ER*
A petition for letters of administration may be Eled by anyXinterested personY (!ec. 0, 1ule *+, 1ules of Court2. ;enwould be considered an interested person if she was notmarried to Domenico, because she can claim co- ownership of the properties left by himunder their property regime of a union without marriageunder conditions provided in the $amily Code +Arts. 4*- 4,$amily Code/ !an :uis vs. !an :uis, ;.1. 'o. 466*6, $ebruary ,0*2.
Probate o )ill !01"1%
CJarina died single. !he left all her properties by will to her friendDuHueJa. &n the will, CJarina stated that she did notrecogniJe )arco as an adopted son because of his disrespectfulconduct towards her. DuHueJa soon instituted an action forprobate of CJarinaMs will. )arco, on the other hand, institutedintestate proceedings. Both actions were consolidated beforethe 1%C of asig. #n motion of )arco, DuHueJaMs petitionwas ordered dismissed on the ground that the will is void fordepriving him of his legitime. Argue for DuHueJa. (72
S&GGES'E( ANS)ER* %he petition for probate of CJarinaMs will, as Eled by DuHuesashould not be dismissed on mere motion of )arco who instituted
intestate proceedings. %he law favors testacy over intestacy, hence,the probate of the will cannot be dispensed with. (!ee !ec. ,
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1ule *2 %hus, unless the will Z which shows the obvious intent todisinherit )arco Z is probated, the right of a person todispose of his property may be rendered nugatory (!ee !eanio vs. 1eyes, ;.1. 'os. 46*4-*0, 'ov. 0*, 02. Besides, theauthority of the probate court is generally limited only to adetermination of the e@trinsic validity of the will. &n this case,)arco Huestioned the intrinsic validity of the will.
Probate o )ill !011$%
(b2 %he heirs of agree among themselves that they willhonor the division of Ms estate as indicated in her :ast =illand %estament. %o avoid the e@pense of going to court in a
etition for robate of the =ill, can they instead e@ecute an"@trajudicial !ettlement Agreement among themselves> "@plainbrieGy. (72
S&GGES'E( ANS)ER*
%he heirs of cannot validly agree to resort to e@trajudicialsettlement of his estate and do away with the probate of ’slast will and testament. robate of the will is mandatory(;uevarra v. ;uevarra, * hil. *+ 54+682. %he policy of thelaw is to respect the will of the testator as manifested in the
other dispositions in his last will and testament, insofar asthey are not contrary to law, public morals and public policy."@trajudicial settlement of an estate of a deceased is allowedonly when the deceased left no last will and testament and alldebts, if any, are paid (1ule *, !ec. 4, 1ules of Court2.
Probate o )ill !01">%
3ohnny, a naturaliJed citiJen of the nited !tates of America (!A2but formerly a $ilipino citiJen, e@ecuted a notarial will inaccordance with the laws of the !tate of California, !A. 3ohnny, atthe ime of his death, was survived by his niece Anastacia, an American citiJen residing at the condominium unitof 3ohnnylocated at $ort Bonifacio, %aguig City/ a youngerbrother, Bartolome, who manages 3ohnnyMs Esh pond in :ingayen,angasinan/ and a younger sister,Christina, whomanages 3ohnnyMs rentalcondominium units in )a<atiCity. 3ohnnyMs entire estate which he inherited from his parents is valued at 0 million. 3ohnny appointed Anastacia as e@ecutri@ of his will. !>?%
!A% Can 3ohnnyMs notarial will be probated before the proper courtin the hilippines>
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S&GGES'E( ANS)ER*
Qes, the formal validity of a will is governed also by the national lawof the decedent. (Article 4*, Civil Code2.
A will proved and allowed in a foreign country, according to thelaws of such country, may be allowed, Eled, and recorded by theproper 1egional %rial Court in the hilippines. (!4 1**2.
!B% &s Anastacia HualiEed to be the e@ecutri@ of 3ohnnyMs notarialwill>
S&GGES'E( ANS)ER*
Qes, assuming that Anastacia is of legal age, she is HualiEed to bean e@ecutor although an alien because she is a resident of thehilippines. (!4 1*2.
Probate o )ill- Jurisdictional /acts !01"0%
=hat are the jurisdictional facts that must be alleged in apetition for probate of a will> ow do you bring before the
court these jurisdictional facts> (672
S&GGES'E( ANS)ER*
%he jurisdictional facts in a petition for probate areN (42 thata person died leaving a will/ (02 in case of a resident, thathe resided within the territorial jurisdiction of the court/ and(62 in the case of a non-resident, that he left an estate withinsuch territorial jurisdiction.%he jurisdictional facts shall be contained in a petition forallowance of will.
Probate o )ill- A++lication o =odes o (iscovery !011,%
An heirFoppositor in a probate proceeding Eled a motion toremove the administrator on the grounds of neglect of dutiesas administrator and absence from the country. #n his part theheirFoppositor served written interrogatories to theadministrator preparatory to presenting the latter as a witness.%he administrator objected, insisting that the modes of discovery apply only to ordinary civil actions, not specialproceedings. 1ule on the matter.
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S&GGES'E( ANS)ER*
'o, the administrator is not correct. )odes of discovery applyalso to special proceedings. !ec. 0, 1ule *0 states that in theabsence of special provisions, the rules provided for inordinary actions shall be, as far as practicable, applicable inspecial proceedings.
Probate o )ill* )ill 2utside o t4e P4ili++ines !01"1%
edrillo, a $il-Am permanent resident of :os Angeles,California at the time of his death, beHueathed to =inston a sumof money to purchase an annuity. pon edrilloMs demise, his
will was duly probated in :os Angeles and the speciEed sumin the will was in fact used to purchase an annuity with KQOof ong ?ong so that =inston would receive the eHuivalentof !4, per month for the ne@t 4 years. =anting toreceive the principal amount of the annuity, =inston Eles for theprobate of edrilloMs will in the )a<ati 1%C. As prayed for, thecourt names =inston as administrator of the estate. =instonnow Eles in the )a<ati 1%C a motion to compel KQO toaccount for all sums in its possession forming part of edrilloMs estate. 1ule on the motion. (72
S&GGES'E( ANS)ER*
%he motion should be denied. )a<ati 1%C has no jurisdictionover KQO of hong<ong. %he letters of administration granted to=inston only covers all edrillo‟s estate in the hilippines. (1ule**, !ec. 2 %his cannot cover the annuities in ong<ong. At theoutset, )a<ati 1%C should not have ta<en cogniJance of thepetition Eled by =inston, because the will does not cover anyproperty of edrillo located here in the hilippines.
Probate o Lost )ills !"###%
=hat are the reHuisites in order that a lost or destroyed =ill may
be allowed> (072
ARs =ill was allowed by the Court. 'o appeal was ta<en from its
allowance. %hereafter, Q, who was interested in the estate of A,
discovered that the =ill was not genuine because ARs signature was
forged by K. A criminal action for forgery was instituted against K.
)ay the due e@ecution of the =ill be validly Huestioned in such
criminal action> (072
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S&GGES'E( ANS)ER*
a. &n order that a lost or destroyed will may be allowed, the
following must be complied withN
4 the e@ecution and validity of the same should be established/
0 the will must have been in e@istence at the time of the death
of the testator, or shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his <nowledge/ and
6 its provisions are clearly and distinctly proved by at least two
credible witnesses. (!ec. , 1ule * of the 1ules of Court2
S&GGES'E( ANS)ER*
b. 'o. %he allowance of the will from which no appeal was ta<en is
conclusive as to its due e@ecution. (!ec. 4 of 1ule *.2 Due
e@ecution includes a Ending that the will is genuine and not a
forgery. Accordingly, the due e@ecution of the will cannot again be
Huestioned in a subseHuent proceeding, not even in a criminal
action for forgery of the will.
Probate o )ill !0116%
A, a resident of )alolos, Bulacan, died leaving an estate located in
)anila, worth 0,.. &n what court, ta<ing into
consideration the nature of jurisdiction and of venue, should the
probate proceeding on the estate of A be instituted> (72
S&GGES'E( ANS)ER*
%he probate proceeding on the estate of A should be instituted in
the )unicipal %rial Court of )alolos, Bulacan which has
jurisdiction, because the estate is valued at 0,., and is the
court of proper venue because A was a resident of )alolos at the
time of his death. (!ec. 66 of B 40+ as amended by 1A *+4/ !ec.
4 of 1ule *62.
Probate o )ill !011<%
After :uluRs death, her heirs brought her last will to a lawyer to
obtain their respective shares in the estate. %he lawyer prepared a
deed of partition distributing :uluRs estate in accordance with the
terms of her will. &s the act of the lawyer correct> =hy> (072
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S&GGES'E( ANS)ER*
'o. 'o will, shall pass either real or personal estate unless it is
proved and allowed in the proper court. (!ec. 4, 1ule *, 1ules of
Court2
Probate o )ill !0113%
!ergio unJalan, $ilipino, years old, married, and residing at
Ayala Alabang 9illage, )untinlupa City, of sound and disposing
mind, e@ecuted a last will and testament in "nglish, a language
spo<en and written by him proEciently. e disposed of his estate
consisting of a parcel of land in )a<ati City and cash deposit at the
City Ban< in the sum of 6 )illion. e beHueathed )illion
each to his 6 sons and 4 )illion to his wife. e devised a piece
of land worth 4 )illion to !usan, his favorite daughter-inSlaw.
e named his best friend, Cancio 9idal, as e@ecutor of the will
without bond. &s Cancio 9idal, after learning of !ergioRs death,
obliged to Ele with the proper court a petition of probate of the
latterRs last will and testament> (072
S&GGES'E( ANS)ER*
Cancio 9idal is obliged to Ele a petition for probate and for
accepting or refusing the trust within the statutory period of 0
days under !ec. 6, 1ule *, 1ules of Court.
!upposing the original copy of the last will and tes-tament was lost,
can Cancio compel !usan to proSduce a copy in her possession to
be submitted to the probate court. (072
S&GGES'E( ANS)ER*
Qes, Cancio can compel !usan to produce the copy in herpossession. A person having custody of the will is bound to deliver
the same to the court of competent jurisdiction or to the e@ecutor,
as provided in !ec. 0, 1ule *, 1ules of Court.
Can the probate court appoint the widow as e@ecutor of the will>
(072
S&GGES'E( ANS)ER*
Qes, the probate court can appoint the widow as e@ecutor of thewill if the e@ecutor does not Hualify, as when he is incompetent,
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refuses the trust, or fails to give bond (!ec. , 1ule *, 1ules of
Court2.
Can the widow and her children settle e@trajudicially among
themselves the estate of the deceased> (072
S&GGES'E( ANS)ER*
'o, the widow and her children cannot settle the es-tate
e@trajudicially because of the e@istence of the =ill. 'o will shall
pass either real or personal estate unless it is proved and allowed
in the proper court (!ec. 4, 1ule *, 1ules of Court2.
Can the widow and her children initiate a separate petition forpartition of the estate pending the probate of the last will and
testament by the court> (072
S&GGES'E( ANS)ER*
'o, the widow and her children cannot Ele a separate petition for
partition pending the probate of the will. artition is a mode of
settlement of the estate (!ec. 4, 1ule *, 1ules of Court2.
Probate o )ill- =andatory Nature !0110%
=hat should the court do if, in the course of intestate proceedings,
a will is found and it is submitted for probate> "@plain. (072
S&GGES'E( ANS)ER*
&f a will is found in the course of intestate proceedings and it is
submitted for probate, the intestate proceedings will be suspended
until the will is probated. pon the probate of the will, the intestate
proceedings will be terminated. (1ule 0, sec. 42.
Intestate Proceedings !0110%
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K Eled a claim in the intestate proceedings of D. DMs administrator
denied liability and Eled a counterclaim against K. KMs claim was
disallowed.
(42 Does the probate court still have jurisdiction to allow the claim
of DMs administrator by way of oset> =hy> (072
(02 !uppose DMs administrator did not allege any claim against K by
way of oset, can DMs administrator prosecute the claim in an
independent proceedingF whyF (672
S&GGES'E( ANS)ER*
(42 'o, because since the claim of K was disallowed, there is noamount against which to oset the claim of DMs administrator.
(02 Qes, DMs administrator can prosecute the claim in an
independent proceeding since the claim of K was disallowed. &f K
had a valid claim and DMs administrator did not allege any claim
against K by way of oset, his failure to do so would bar his claim
forever. (1ule , sec. 42.
Intestate Proceedings- (ebts o t4e Estate !0110%
A, B and C, the only heirs in DMs intestate proceedings, submitted a
project of partition to the partition, two lots were assigned to C,
who immediately entered into the possession of the lots. %hereafter,
C died and proceedings for the settlement of his estate were Eled
in the 1%C-PueJon City. DMs administrator then Eled a motion in the
probate court (1%C-)anila2, praying that one of the lots assigned toC in the project of partition be turned over to him to satisfy debts
corresponding to CMs portion. %he motion was opposed by the
administrator of CMs estate. ow should the 1%C-)anila resolve the
motion of DMs administrator> "@plain. (672
!;;"!%"D A'!="1N
%he motion of DMs administrator should be granted. %he assignment
of the two lots to C was premature because the debts of the estate
had not been fully paid. 51ule +, sec. 4/ 1eyes v. Barreto-Datu, 4+!C1A (4+*28.
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Judicial Settlement o Estate !011<%
!tate the rule on venue in judicial settlement of estate of deceased
persons. (072
S&GGES'E( ANS)ER*
&f the decedent is an inhabitant of the hilippines at the time ofR his
death, whether a citiJen or an alien, the venue shall be in the 1%C
in the province in which he resides at the time of his death, not in
the place where he used to live. (3ao v. Court of Appeals, ;.1. 'o.
4064, )ay 0+, 002
&f he is an inhabitant, of a foreign country, the 1%C of any provinceor city in which he had estate shall be the venue. %he court Erst
ta<ing cogniJance of the case shall e@ercise jurisdiction to the
e@clusion of all other courts. =hen the marriage is dissolved by the
death of the husband or wife, the community property shall be
inventoried, administered and liHuidated, and the debts thereof
paid, in the testate or intestate proceedings of the deceased
spouse. &f both spouses have died, the conjugal partnership shall be
liHuidated in the testate or intestate proceedings of either. (!ees. 4
and 0, 1ule *6, 1ules of Court2
Settlement o Estate !011"%
%he rules on special proceedings ordinarily reHuire that the estate
of the deceased should be judicially administered thru an
administrator or e@ecutor. =hat are the two e@ceptions to said
reHuirements> (72
S&GGES'E( ANS)ER*
%he two e@ceptions to the reHuirement areN
(a2 =here the decedent left no will and no debts and the heirs are
all of age, or the minors are represented by their judicial or legal
representatives duly authoriJed for the purpose, the parties may
without securing letters of administration, divide the estate among
themselves by means of public instrument Eled in the oice of the
register of deeds, or should they disagree, they may do so in an
ordinary action of partition. &f there is only one heir, he may
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adjudicate to himself the entire estate by means of an aidavit Eled
in the oice of the register of deeds. %he parties or the sole heir
shall Ele simultaneously abound with the register of deeds, in anamount eHuivalent to the value of the personal property as certiEed
to under oath by the parties and conditioned upon the payment of
any just claim that may be Eled later. %he fact of the e@trajudicial
settlement or administration shall be published in a newspaper of
general circulation in the province once a wee< for three
consecutive wee<s. (!ec. 4 of 1ule *, 1ules of Court2
(b2 =henever the gross value of the estate of a deceased person,
whether he died testate or intestate, does not e@ceed ten thousand
pesos, and that fact is made to appear to the 1%C having jurisdiction or the estate by the petition of an interested person and
upon hearing, which shall be held not less than one
(42 month nor more than three (62 months from the date of the last
publication of a notice which shall be published once a wee< for
three consecutive wee<s in a newspaper of general circulation in
the province, and after such other notice to interested persons as
the court may direct, the court may proceed summarily, without the
appointment of an e@ecutor or administrator, to settle the estate.(!ec. 0 of 1ule *, 1ules of Court2
Settlement o Estate- Administrator !"##,%
A, claiming to be an illegitimate child of the deceased D, instituted
an &ntestate proceeding to settle the estate of the latter. e also
prayed that he be appointed administrator of said estate. !, the
surviving spouse, opposed the petition and ARs application to be
appointed the administrator on the ground that he was not the
child of her deceased husband D. %he court, however, appointed A as the administrator of said estate. !ubseHuently, !, claiming to be
the sole heir of D, e@ecuted an Aidavit of Adjudication,
adjudicating unto herself the entire estate of her deceased husband
D. ! then sold the entire estate to K. =as the appointment of A as
administrator proper> 5078 =as the action of ! in adjudicating the
entire estate of her late husband to herself legal> 5678
S&GGES'E( ANS)ER*
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4. Qes, unless it is shown that the court gravely-abused its
discretion in appointing the illegitimate child as administrator,
instead of the spouse. =hile the spouse enjoys preference, itappears that the spouse has neglected to apply for letters of
administration within thirty (62 days from the death of the
decedent. (!ec. , 1ule *, 1ules of Court/ ;aspay, 3r. vs. Court of
Appeals. 06 !C1A 46.2
AL'ERNA'I:E ANS)ER*
!, the surviving spouse, should have been appointed administratri@
of the estate, in as much as she enjoys Erst preference in such
appointment under the rules. (!ec. (a2 of 1ule *, 1ules of Court.2
S&GGES'E( ANS)ER*
0. 'o. An aidavit of self-adjudication is allowed only if the aiant
is the sole heir of the. deceased. (!ec. 4, 1ule *, 1ules of Court2.
&n this case, A also claims to be an heir. )oreover, it is not legal
because there is already a pending juridical proceeding for the
settlement of the estate.
:enue- S+ecial Proceedings !"##$%
;ive the proper venue for the following special proceedingsN a2 A
petition to declare as escheated a parcel of land owned by a
resident of the hilippines who died intestate and without heirs or
persons entitled to the property.
b2 A petition for the appointment of an administrator over the
land and building left by an American citiJen residing in California,
who had been declared an incompetent by an American court.
c2 A petition for the adoption of a minor residing in ampanga.
S&GGES'E( ANS)ER*
(a2 %he venue of the escheat proceedings of a parcel of land in this
case is the place where the deceased last resided. (!ec. 4. 1ule +4,
1ules of Court2.
(b2 %he venue for the appointment of an administrator over land
and building of an American citiJen residing in California, declared
&ncompetent by an American Court, is the 1%C of the place wherehis property or part thereof is situated. (!ec. 4. 1ule +02.
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(c2 %he venue of a petition for the adoption of a minor residing in
ampanga is the 1%C of the place in which the petitioner resides.
(!ec. 4. 1ule ++2
:III. S&==ARK PR2CE(&RE
Pro4ibited Pleadings !011>%
Charged with the oense of slight physical injuries under an
information duly Eled with the )e%C in )anila which in the
meantime had duly issued an order declaring that the case shall be
governed by the 1evised 1ule on !ummary rocedure, the accused
Eled with said court a motion to Huash on the sole ground that theoicer who Eled the information had no authority to do so. %he
)e%C denied the motion on the ground that it is a prohibited
motion under the said 1ule. %he accused thereupon Eled with the
1%C in )anila a petition for certiorari in sum assailing and see<ing
the nulliEcation of the )e%CRs denial of his motion to Huash. %he
1%C in due time issued an order denying due course to the
certiorari petition on the ground that it is not allowed by the said
1ule. %he accused forthwith Eled with said 1%C a motion for
reconsideration of its said order. %he 1%C in time denied saidmotion for reconsideration on the ground that the same is also a
prohibited motion under the said 1ule. =ere the 1%CRs orders
denying due course to the petition as well as denying the motion
for reconsideration correct> 1eason. (72
S&GGES'E( ANS)ER*
%he 1%CRs orders denying due course to the petition for certiorari
as well as denying the motion for reconsideration are both not
correct. %he petition for certiorari is a prohibited pleading under!ection 4+(g2 of the 1evised 1ule on !ummary rocedure and the
motion for reconsideration, while it is not prohibited motion (:ucas
v. $abros, A) 'o. )%3-++-400, 3anuary 64, 0, citing 3oven v.
Court of Appeals, 040 !C1A *, **-* (4++02, should be denied
because the petition for certiorari is a prohibited pleading.
Pro4ibited Pleadings !01"1%
)arinella is a junior oicer of the Armed $orces of the
hilippines who claims to have personally witnessed themalversation of funds given by ! authorities in connection
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with the Bali<atan e@ercises. )arinella alleges that as a resultof her e@pos, there are operatives within the military who areout to <ill her. !he Eles a petition for the issuance of a writ of amparo against, among others, the Chief of !ta but withoutalleging that the latter ordered that she be <illed. Atty. Daro,counsel for the Chief of !ta, moves for the dismissal of theetition for failure to allege that his client issued any order to<ill or harm )arinella. 1ule on Atty. DaroMs motion. "@plain.(672
S&GGES'E( ANS)ER*
%he motion to dismiss must be denied on the ground that it
is a prohibited pleading under !ection 44 (a2 of the 1ule on the=rit of Amparo. )oreover, said 1ule does not reHuire thepetition therefor to allege a complete detail of the actual orthreatened violation of the victim‟s rights. &t is suicient that therebe an allegation of real threat against petitioner‟s life, liberty,andFor security (;en. A. 1aJon, 3r. vs. %agitis, ;.1. 'o. 40+,Dec. 6, 0+2.
I. =ISCELLANE2&S
Rules Summary Procedure !01">%
an!lor!, a resident of PueJon City, entered into a lease contractwith 0enan#, a resident of )ari<ina City, over a residential house in:as ias City. %he lease contract provided, among others, for amonthly rental of 0,., plus ten percent (472 interest ratein case of non-payment on its due date.!ubseHuently, an!lor! migrated to the nited !tates of America(AS&2 but granted in favor of his sister 'aria, a special power of attorney to manage the property and Ele and defend suits over theproperty rented out to 0enan#. 0enan# failed to pay the rentals duefor Eve (2 months. 'aria as<s your legal advice on how she cane@peditiously collect from 0enan# the unpaid rentals plus interestsdue. !3?%
!A% =hat judicial remedy would you recommend to 'aria>
S&GGES'E( ANS)ER*
%he judicial remedy that & would recommend to )aria is to Ele acollection suit for the 40, rentals in arrears and the 40,interest due. %he remedy would be e@peditious since it would be
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governed by the 1ules on !ummary rocedure as the amount of thedemand, e@cluding interest, does not e@ceed 0,.
!B% =here is the proper venue of the judicial remedy which yourecommended>
S&GGES'E( ANS)ER*
%he proper venue of the collection suit would be in )ari<ina City,where %enant resides.
nder the 1ules of Civil rocedure, venue in personal actions iswith the residence of either the plainti or the defendant, at theplaintiMs election.
!ince the lainti does not reside in the hilippines, venue may belaid only in )ari<ina City where the defendant %enant resides.
!C% &f 'aria insists on Eling an ejectment suitagainst 0enan#, when do you rec<on the one (42-year period withinwhich to Ele the action>
S&GGES'E( ANS)ER*
&f )aria insists on Eling an ejectment suit against %enant, the one- year period within which to Ele the action shall be rec<oned fromthe e@piration of -days from notice of the last demand to pay and
vacate. (CruJ v. Atencio, 0 $ebruary 4++/ !y #h v. ;arcia, 6 3une 4++2.
Alternative (is+ute Resolution- Court (iversion- Stages!01"0%
Discuss the three (62 !tages of Court Diversion in connectionwith Alternative Dispute 1esolution. (72
S&GGES'E( ANS)ER*
%he three stages of diversion are Court-Anne@ed )ediation(CA)2, 3udicial Dispute 1esolution, and Appeals Court)ediation (AC)2. During CA), the judge refers the parties tothe hilippine )ediation Center ()C2 for the mediation of their dispute by trained and accredited mediators. &f CA)fails, the 3D1 is underta<en by the 3D1 judge, acting as amediator-conciliator-early neutral evaluator. %he third case isduring appeal, where covered cases are referred to AC).
A.=. No. 1#3,SC- Precautionary Princi+le !01"0%
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'o.&&.B. =hat do you understand about the LprecautionaryprincipleL under the 1ules of rocedure for "nvironmental Cases>(72
S&GGES'E( ANS)ER* recautionary principles states that when human activities maylead to threats of serious and irreversible damage to theenvironment that is scientiEcally plausible but uncertain,actions shall be ta<en to avoid or diminish that threat. &n itsessence, the precautionary principle calls for the e@ercise of caution in the face of ris< and uncertainty (!ec. 5f8, 1ule 4,art 4, and 1ule 0, A.). 'o. +---!C, 1ules of rocedure
for "nvironmentCases2.
;abeas (ata !01"1%
AJenith, the cashier of %emptation &nvestments, &nc.(%emptation, &nc.2 with principal oices in Cebu City, is eHuallyhated and loved by her co-employees because she e@tendscash advances or Lvales L to her colleagues whom she li<es.#ne morning, AJenith discovers an anonymous letter insertedunder the door of her oice threatening to <ill her.
AJenith promptly reports the matter to her superior 3oshua,who thereupon conducts an internal investigation to verify thesaid threat.
Claiming that the threat is real, %emptation, &nc. opts to transfer AJenith to its alawan #ice, a move she resists in view of the companyMs refusal to disclose the results of its investigation.
Decrying the move as a virtual deprivation of her employment, AJenith Eles a petition for the issuance of a writ of habeas atabefore the 1egional %rial Court (1%C2to enjoin %emptation, &nc.from transferring her on the ground that the companyMs refusalto provide her with a copy of the investigation resultscompromises her right to life, liberty and privacy.1esolve the petition. "@plain. (72
S&GGES'E( ANS)ER*
AJenith’s petition for the issuance of a writ of habeas datamust be dismissed as
there is no showing that her right to privacy in life, liberty,or security is violated or threatened by an unlawful act or
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omission. 'either was the company shown to be engaged inthe gathering, collecting nor storing of data or informationregarding the person, family, home and correspondence of theaggrieved party (!ec. 4, 1ule on the =rit of abeas Data2.
;abeas (ata !011#%
=hat is the writ of habeas data>
S&GGES'E( ANS)ER* A writ of habeas data is a remedy available to any personswhose right to privacy in life, liberty, or security is violated or
threatened with violation by unlawful act or omission of apublic oicial or employee, or of a private individual or entityengaged in the gathering, collecting, or storing of data orinformation regarding the person, family, home andcorrespondence of the aggrieved party.
R.A. 61"#- PreSus+ension ;earing !01"0%
K, an undersecretary of D"'1, was charged before the!andiganbayan for malversation of public funds allegedlycommitted when he was still the )ayor of a town in 1iJal. After
arraignment, the prosecution moved that K be preventivelysuspended. K opposed the motion arguing that he was nowoccupying a position dierent from that which the &nformationcharged him and therefore, there is no more possibility that he canintimidate witnesses and hamper the prosecution. Decide.
!uppose K Eles a )otion to Puash challenging the validity of the &nformation and the !andiganbayan denies the same, willthere still be a need to conduct a pre-suspension hearing>"@plain. (72
S&GGES'E( ANS)ER*
%here is no necessity for the court to conduct pre-suspensionhearing. nder !ection 46 of 1A 'o. 64+, an incumbentpublic oicer against whom any criminal prosecution under a valid information for graft-related crime such as malversation ispending in court, shall be suspended from oice. %he wordXoiceY, from which the public oicer charged shall bepreventively suspended, could apply to any oice, which hemight currently be holding and not necessarily the particular
oice under which he was charged. %he preventive suspensionof the following public oicers was sustainedN (42 a mayor,
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who was charged with acts committed as a government auditorof the Commission on Audit (Bayot vs. !andiganbayan, ;.1. 'o.:-4** to :-44, )arch 06, 4+2/ (02 a public oicer, whowas already occupying the oice of governor and not theposition of municipal mayor that he held previously whencharged with having violated Anti-;raft :aw (Deloso vs.!andiganbayan, ;.1. 'o. ++, )ay 4, 4++2/ (62 a 9ice-;overnor, whose suspension is predicated on his actssupposedly committed while still a member of the !angguniangBayan (:ibanan vs. !andiganbayan, ;.1. 'o. 4406, 3une 4,4++2. %hus, the D"'1 undersecretary can be preventivelysuspended even though he was a mayor, when he allegedlycommitted
malversation.
!ettled is the rule that where the accused Eles a motion toHuash the information or challenges the validity thereof, a showcause order of the trial court would no longer be necessary.=hat is indispensable is that the trial court duly hear theparties at a hearing held for determining the validity of theinformation, and thereafter hand down its ruling, issuing thecorresponding order of suspension should it uphold the validity of the information (:uciano vs. )ariano, ;.1. 'o. :-60+, 3uly6, 4+*42. !ince a pre-suspension hearing is basically a due
process reHuirement, when an accused public oicial is givenan adeHuate opportunity to be heard on his possible defensesagainst the mandatory suspension under 1A 'o. 64+, then anaccused would have no reason to complain that no actualhearing was conducted ()iguel vs. %he onorable!andiganbayan, ;.1. 'o. 4*06, 3uly , 0402. &n the factsgiven, the D"'1 ndersecretary was already given opportunityto Huestion the validity of the &nformation for malversation byEling a motion to Huash, and yet, the !andiganbayan sustained its validity. %here is no necessity for the court to conduct pre-
suspension hearing to determine for the second time the validity of the information for purpose of preventively suspendingthe accused.
AL'ERNA'I:E ANS)ER* %he argument that K should not be suspended as he nowholds an oice dierent from that charged in the information isunavailing. nder !ection 46(e2 of 1A 64+, a public oicer maybe charged before the !andiganbayan for Xcausing undue injuryto any party, including the ;overnment, or giving any private
party any unwarranted beneEts, advantage or preference in thedischarge of his oicial, administrative or judicial function
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through manifest partiality, evident bad faith or grossine@cusable negligence.Y %he !upreme Court has held that!ection 46 of 1A 64+ is so clear and e@plicit that there ishardly room for any e@tended court rationaliJation of the law.reventive suspension is mandatory regardless of therespondent‟s change in position.
R.A. 61"#- Remedies !01"6%
Qou are the defense counsel of Angela Bituin who has beencharged under 1A 64+ ( Anti-;raft and Corrupt ractices Act 2before the !andiganbayan. =hile Angela has posted bail, shehas yet to be arraigned. Angela revealed to you that she has
not been investigated for any oense and that it was onlywhen police oicers showed up at her residence with a warrantof arrest that she learned of the pending case against her. !hewonders why she hasbeen charged before the !andiganbayan when she is not ingovernment service.
(A2 =hat Lbefore-trialL remedy would you invo<e in AngelaMsbehalf to address the factthat she had not been investigated at all, and how would youavail of this remedy>
(72
S&GGES'E( ANS)ER*
& will Ele a )otion for the conduct of preliminary investigationor reinvestigation and the Huashal or recall of the warrant of arrest in the Court where the case is pending with anadditional prayer to suspend the arraignment. nder !ection of 1ule 440 of the 1ules of Court, after the Eling of the complaintor information in court without a preliminary investigation, the
accused may within Eve days from the time he learns of itsEling as< for preliminary investigation with the same right toadduce evidence in his defense. )oreover, !ection 0, 1ule 44of the 1ules on Criminal rocedure provides that anapplication for or admission to bail shall not bar the accusedfrom challenging the validity of his arrest or legality of thewarrant issued therefor, or from assailing the regularity orHuestioning the absence of a preliminary investigation of thecharge against him, provided that he raises them beforeentering his plea. %he court shall resolve the matter as early aspracticable but not later than the start of the trial of the case.
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AL'ERNA'I:E ANS)ER*
& will Ele a )otion to Puash on the ground that the!andiganbayan has no jurisdiction over the person of theaccused (!ection 6, 1ule 44* of the 1ules of Criminalrocedure2.
%he !andiganbayan has e@clusive original jurisdiction over violations of 1.A. 64+ (Anti-graft and Corrupt ractices law2where one or more of the accused are oicials occupying theenumerated positions in the government whether in a permanent,acting, or interim incapacity, at the time of the commission of the oense (!ec. , 1.A. 0+2.
&n Bondoc vs. !andiganbayan, ;.1. 'o. *446-, 'ovember +,4++, the !upreme Court held that before the !andiganbayanmay lawfully try a private individual under D 4, thefollowing reHuisites must be establishedN (a2 he must becharged with a public oicerFemployee/ and (b2 he must betried jointly. !ince the aforementioned reHuisites are notpresent, the !andiganbayan has no jurisdiction.
(B2 =hat Lduring-trialL remedy can you use to allow an earlyevaluation of the prosecution evidence without the need of
presenting defense evidence/ when and how can you avail of thisremedy> (72
S&GGES'E( ANS)ER* & will Ele a )otion for :eave to Ele a Demurrer to "videncewithin Eve (2 days from the time the prosecution has restedits case. &f the motion is granted, & will Ele a demurrer toevidence within a non-e@tendible period of %en (42 days fromnotice. owever, if the motion for leave to Ele demurrer to
evidence is denied, & can adduce evidence for the accusedduring the trial to meet sHuarely the reasons for its denial(!ection 06, 1ule 44+, 1ules of Criminal rocedure2.
%his remedy would allow the early evaluation of thesuiciency of prosecution’s evidence without the need of presenting defense evidence. &t may be done through the court’sinitiative or upon motion of the accused and after theprosecution rested its case.
Small Claims (2013)
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As a new lawyer, Attorney 'ovato limited his practice to smallclaims cases, legal counseling and the notariJation of documents. e put up a solo practice law oice and wasassisted by his wife who served as his secretaryFhelper. eused a ma<eshift hut in a vacant lot near the local courts and alocal transport regulatory agency. =ith this practice andlocation, he did not have big-time clients but enjoyed heavypatronage assisting wal<-in clients.
(A2 =hat role can Attorney 'ovato play in small claims caseswhen lawyers are notallowed to appear as counsel in these cases> (672
S&GGES'E( ANS)ER*
Atty. 'ovata may provide legal assistance to his clients bygiving counselling and guidance in the preparation andaccomplishment of the necessary documents and Aidavits toinitiate or defend a small claims action including thecompilation and notariJation of the aforementioned documents,if necessary.
(B2 =hat legal remedy, if any, may Attorney 'ovato pursue for a
client who loses in asmall claims case and before which tribunal or court may this bepursued> (72
S&GGES'E( ANS)ER* Atty. 'ovata may Ele a petition for Certiorari under 1ule of the 1ules of Court before the 1%C since a decision in smallclaims cases is Enal and unappealable (!ec. 06, A.). 'o. --*!C, 1ules of rocedure for !mall Claims Cases2. %he petition for
certiorari should be Eled before the 1%C conformably to therinciple of judicial ierarchy.
Writ of Amparo; Habas Corpus (200!)
=hat is the writ of amparo> ow is it distinguished from thewrit of habeas corpus>
S&GGES'E( ANS)ER* A writ of amparo is a remedy available to any person whose right
to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public oicial or
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employee, or of a private individual or entity. %he writ shallcover e@tralegal <illings and enforced disappearances orthreats thereof.
=hereas a writ of habeas corpus is a remedy available to anyindividual who is deprived of liberty or whose rightful custodyof any person is withheld, by unlawful conEnement or detention.
A writ of amparo may be appealed to the !upreme Court under1ule raising Huestions of fact or law or both. %he appealshall be made within wor<ing days from the date of noticeof the adverse judgment.
%he period for appeal for habeas corpus shall be hoursfrom the notice of the judgment appealed from.
Administrative Proceedings !011<%
1egional Director A; of the Department of ublic =or<s and
ighways was charged with violation of !ection 6(e2 of 1epublic
Act 'o. 64+ in the #ice of the #mbudsman. An administrative
charge for gross misconduct arising from the transaction subject
matter of said criminal case was Eled against him in the same
oice. %he #mbudsman assigned a team
composed of investigators from the #ice of the !pecial rosecutor
and from the #ice of the Deputy #mbudsman for the )ilitary to
conduct a joint investigation of the criminal case and the
administrative case. %he team of investigators recommended to the
#mbudsman that A; be preventively suspended for a period not
e@ceeding si@ months on its Ending that the evidence of guilt is
strong. %he #mbudsman issued the said order as recommended bythe investigators.
A; moved to reconsider the order on the following groundsN (a2 the
#ice of the !pecial rosecutor had e@clusive authority to conduct
a preliminary investigation of the criminal case/ (b2 the order for
his preventive suspension was premature because he had yet to Ele
his answer to the administrative complaint and submit
countervailing evidence/ and (c2 he was a career e@ecutive service
oicer and under residential Decree 'o. * (Civil !ervice :aw2,
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his preventive suspension shall be for a ma@imum period of three
months. 1esolve with reasons the motion of respondent A;. (72
S&GGES'E( ANS)ER*
%he motion should be denied for the following reasonsN
4 %he #ice of the !pecial rosecutor does not have e@clusive
authority to conduct a preliminary investigation of the criminal
case but it participated in the investigation together with the
Deputy #mbudsman for the )ilitary who can handle cases of
civilians and is not limited to the military.
0 %he order of preventive suspension need not wait for theanswer to the administrative complaint and the submission of
countervailing evidence. (;arcia v. )ojica, ;.1. 'o. 46+6,
!eptember 4, 4+++2 &n 9asHueJ case, ;.1. 'o. 444, April ,
4++, the court ruled that preventive suspension pursuant to !ec.
0 of 1.A. 'o. ** (#mbudsman Act of 4++2, shall continue until
termination of the case but shall not e@ceed si@ (2 months, e@cept
in relation to 1.A. 'o, 64+ and .D. 'o. *. As a career e@ecutive
oicer, his preventive suspension under the Civil !ervice :aw may
only be for a ma@imum period of three months. %he period of thesuspension under the Anti-;raft :aw shall be the same pursuant to
the eHual protection clause. (;arcia v. )ojica, ;.1. 'o. 46+6,
!eptember 4, 4+++/ :ayno v. !andiganbayan, ;.1. 'o. :-,
)ay 04, 4+2
Congress- La8 E+ro+riating Pro+erty !0113%
)ay Congress enact a law providing that a , sHuare meter lot,
a part of the !% compound in !ampaloc )anila, be e@propriated
for the construction of a par< in honor of former City )ayor Arsenic :acson> As compensation to !%, the City of )anila shall
deliver its -hectare lot in !ta. 1osa, :aguna originally intended as
a residential subdivision for the )anila City all employees.
"@plain. (72
S&GGES'E( ANS)ER*
Qes, Congress may enact a law e@propriating property provided
that it is for public use and with just compensation. &n this case, the
construction of a par< is for public use (!ee !ena v. )anila 1ailroadCo., ;.1. 'o. 4+4, !eptember *, 4+04/ 1eyes v. 'A, ;1 'o.
Questions and Answers Remedial Law Year 1!-"#1$ Compiled by: ADARAYAN, IRINCO, PRUDENCIADO "($
7/25/2019 Remedial Law(Final)
http://slidepdf.com/reader/full/remedial-lawfinal 285/285
University of EasternPhilippines-College of Law
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