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Remedial Law Bar Examination Q & A (1997-2006)
by: sirdondee@gmail.com
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ANSWERS TO BAR EXAMINATION QUESTIONS

IN
REMEDIAL LAW
ARRANGED BY TOPIC (1997 2006)
Edited and Arranged by: version 1987-2003
Si i!"# U#i$%&'i() C* %+% *, L"- B"(./ 2000
UPDATED BY:
The RE-Take 2007 From he A!"#ER" T$ BAR E%A&'!AT'$! (UE"T'$!" )* he UP +A# ,$&P+E% - Phi.i//ine +a0 "1hoo.s Asso1ia ion 2002 34.* 225 2007
Dondee
Version 1997-2006
!dated "# Dondee
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F$R#ARD
This work is not intended for sale or commerce. This work is freeware. It may be freely copied and distributed. It is primarily intended for all those who desire to have a deeper and its trend. It is specially intended for law understanding of the issues touched by the Philippine Bar E aminations students from the provinces who! very often! are recipients of deliberately distorted notes from other unscrupulous law schools and students. "hare to others this work and you will be richly rewarded by #od in heaven. It is also very good karma.
$e would like to seek the indulgence of the reader for some Bar %uestions which are improperly classified under a topic and for some topics which are improperly or ignorantly phrased! for the authors are &ust Bar 'eviewees who have prepared this work while reviewing for the Bar E ams under time constraints and within their limited knowledge of the law. $e would like to seek the reader(s indulgence for a lot of typographical errors in this work.
The Authors )uly *+! *,,.pdated by /ondee )uly **! *,,0
Version 1997-2006
!dated "# Dondee
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TABLE O1 CONTENTS
GENERAL PRINCIPLES.....................................................................................................................8 Bar by Prior Judgment vs. Conclusiveness of Judgment (1997).................................................................8 Cause of action vs. Action (1997)....................................................................................................... 8 Civil Actions vs. S ecial Proceedings (199!).........................................................................................8 Conciliation Proceedings" #atarungang Pambarangay vs. Pre$%rial Conference (1999)................................... 8 &amily Courts Act ('((1).................................................................................................................. 8 )nterlocutory *rder ('((+).................................................................................................................8 Judgment vs. * inion of t,e Court ('((+).............................................................................................8 Judicial Autonomy - )m artiality ('((.)............................................................................................... 8 #atarungang Pambarangay" *b/ective (1999)........................................................................................ 9 0iberal Construction" 1ules of Court (199!).......................................................................................... 9 1emedial 0a2 in P,il. System of 3ov4t ('((+)........................................................................................ 9 1emedial 0a2 vs. Substantive 0a2 ('((+).............................................................................................9 1emedial 0a2" Conce t ('((+)...........................................................................................................9 1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7).....................................................................................9 2URISDICTION...................................................................................................................................10 Jurisdiction (1997)........................................................................................................................ 10 Jurisdiction vs. 5enue ('((+)...........................................................................................................10 Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+)............................................................................... 10 Jurisdiction" )nca able of Pecuniary 9stimation ('((().......................................................................... 10 Jurisdiction" )nca able of Pecuniary 9stimation ('((().......................................................................... 11 Jurisdiction" )nca able of Pecuniary 9stimation ('((.).......................................................................... 11 Jurisdiction" :%C ('((').................................................................................................................11 Jurisdiction" *ffice of t,e Solicitor 3eneral ('((+)................................................................................ 11 Jurisdiction" *mbudsman Case 8ecisions ('((+)................................................................................. 12 Jurisdiction" Probate ('((1).............................................................................................................12 Jurisdiction" 1%C ('((')................................................................................................................. 12 Jurisdiction" Subdivision 6omeo2ner ('((+).......................................................................................12 #atarungang Pambarangay" 0u on" 9;tent of Aut,ority" ('((1).............................................................. 13 CI3IL PROCEDURE..........................................................................................................................13 Actions" Cause of Action vs. Action (1999)..........................................................................................13 Actions" Cause of Action" Joinder - S litting (199!).............................................................................13 Actions" Cause of Action" Joinder of Action (1999)............................................................................... 13 Actions" Cause of Action" Joinder of Action ('((7)............................................................................... 13 Actions" Cause of Action" S litting (1999)...........................................................................................14 Actions" Cause of Action" S litting ('((7)...........................................................................................14 Actions" Cause of Actions" :otion to 8ismiss" bar by rior /udgment ('((')...............................................14 Actions" Counterclaim ('((')...........................................................................................................14 Actions" Counterclaim vs. Crossclaim (1999).......................................................................................15 Actions" Cross$Claims" %,ird Party Claims (1997).................................................................................15 Actions" 8erivative Suit vs. Class Suit ('((7).......................................................................................16 Actions" &iling" Civil Actions - Criminal Action ('((7)...........................................................................16 Actions" )ntervention" 1e<uisites ('((()............................................................................................. 16 Actions" 1eal Actions - Personal Actions ('((+)..................................................................................16 Actions" Survives 8eat, of t,e 8efendant ('((().................................................................................. 16 A eals" Period of A eal" &res, Period 1ule ('((.).............................................................................17 Certiorari" :ode of Certiorari ('((+).................................................................................................. 17 Certiorari" 1ule =7 vs. 1ule +7 (199!)................................................................................................. 17 Certiorari" 1ule =7 vs. 1ule +7 ('((7)................................................................................................. 18 Contem t" 8eat, of a Party" 9ffect (199!)........................................................................................... 18 8efault ('((()...............................................................................................................................18 8efault ('((1)...............................................................................................................................18 8efault" *rder of 8efault" 9ffects (1999)............................................................................................. 18 8efault" 1emedies" Party 8eclared in 8efault (199!)..............................................................................19
Version 1997-2006 !dated "# Dondee
8efault" 1emedies" Party 8eclared in 8efault ('((+)..............................................................................19 8efault" 1emedies" Substantial Com liance ('((()............................................................................... 20 8emurrer to 9vidence ('((1)............................................................................................................20 8emurrer to 9vidence" Civil Case vs. Criminal Case ('((.)..................................................................... 20 8iscovery" :odes of 8iscovery ('((()............................................................................................... 20 8iscovery" :odes" Sub oena 8uces %ecum (1997)............................................................................... 21 8iscovery" Production and )ns ection of 8ocuments ('((')....................................................................21 8ismissal" :otion to 8ismiss" 1es Judicata ('((()............................................................................... 21 9vidence" Admissibility" P,otoco ies ('((()....................................................................................... 22 &orum S,o ing" 8efinition ('((+)....................................................................................................22 &orum S,o ing" 9ffects" 0ac> of Certification ('((+)........................................................................... 22 3en. Princi les" ?uestions of 0a2 vs. ?uestions of &act ('((=)............................................................... 22 Judgment" Annulment of Judgment" 3rounds (199!).............................................................................22 Judgment" 9nforcement" 7$year eriod (1997)......................................................................................22 Judgment" 9nforcement" &oreign Judgment ('((7)...............................................................................22 Judgment" 9;ecution ending A eal ('((').......................................................................................23 Judgment" )nterlocutory *rder" Partial Summary Judgments ('((=)..........................................................23 Judgment" Judgment on t,e Pleadings (1999)......................................................................................23 Judgment" Judgment on t,e Pleadings ('((7)......................................................................................24 Judgment" :andamus vs. ?uo @arranto ('((1)................................................................................... 24 Judgment" Soundness" Attac,ment ('((')..........................................................................................24 Judgments" 9nforcement" 9;amination of 8efendant ('((')....................................................................24 Jurisdiction" 6abeas Cor us" Custody of :inors ('((7).........................................................................25 Jurisdiction" 0ac> of Jurisdiction" Pro er Action of t,e Court ('((=).........................................................25 Parties" 8eat, of a Party" 9ffect (199!)............................................................................................... 25 Parties" 8eat, of a Party" 9ffect (1999)............................................................................................... 25 Parties" 8eat, of a Party" 9ffect (1999)............................................................................................... 26 Parties" %,ird Party Claim ('((().......................................................................................................26 Parties" %,ird$Party Claim ('((7)...................................................................................................... 26 Petition for Certiorari ('((()............................................................................................................ 26 Petition for 1elief - Action for Annulment ('((')..................................................................................27 Petition for 1elief" )n/unction ('((')...................................................................................................27 Pleadings" Amendment of Com laint" By 0eave of Court ('((.)............................................................... 27 Pleadings" Amendment of Com laint" By 0eave of Court" Prescri tive Period ('((().................................... 27 Pleadings" Amendment of Com laint" :atter of 1ig,t ('((7)................................................................... 28 Pleadings" Amendment of Com laint" %o Conform 2A 9vidence ('((=).......................................................28 Pleadings" Ans2er" 8efense" S ecific 8enial ('((=)..............................................................................28 Pleadings" Certification Against &orum S,o ing ('((()........................................................................29 Pleadings" Counterclaim against t,e Counsel of t,e Plaintiff ('((=).......................................................... 29 Pleadings" :otions" Bill of Particulars ('((.).......................................................................................29 Pleadings" 1e ly" 9ffect of Bon$&iling of 1e ly ('((()............................................................................29 Pre/udicial ?uestion" 9/ectment vs. S ecific Performance ('((()..............................................................30 Pre$%rial" 1e<uirements ('((1).........................................................................................................30 Provisional 1emedies (1999)............................................................................................................30 Provisional 1emedies" Attac,ment (1999)...........................................................................................30 Provisional 1emedies" Attac,ment (1999)...........................................................................................30 Provisional 1emedies" Attac,ment ('((1)...........................................................................................30 Provisional 1emedies" Attac,ment ('((7)...........................................................................................30 Provisional 1emedies" Attac,ment vs. 3arnis,ment (1999).....................................................................31 Provisional 1emedies" )n/unction ('((1).............................................................................................31 Provisional 1emedies" )n/unction ('((.).............................................................................................31 Provisional 1emedies" )n/unctions" Ancillary 1emedy vs. :ain Action ('((+)..............................................31 Provisional 1emedies" )n/unctions" )ssuance 2Aout Bond ('((+).............................................................. 31 Provisional 1emedies" )n/unctions" 1e<uisites ('((+)............................................................................31 Provisional 1emedies" 1eceivers,i ('((1).........................................................................................32 Provisional 1emedies" 1e levin (1999)...............................................................................................32 Provisional 1emedies" Su ort Pendente 0ite (1999).............................................................................32 Provisional 1emedies" Su ort Pendente 0ite ('((1).............................................................................32 Provisional 1emedies" %1* ('((1).................................................................................................... 32 Provisional 1emedies" %1* ('((+).................................................................................................... 33
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Provisional 1emedies" %1* vs. Status ?uo *rder ('((+)........................................................................ 33 Provisional 1emedies" %1*" CA Justice 8e t. ('((+).............................................................................33 Provisional 1emedies" %1*" 8uration ('((+)....................................................................................... 33 1eglementary Period" Su lemental Pleadings ('((()........................................................................... 33 1emedies" A eal to SC" A eals to CA ('((')....................................................................................33 1emedies" A eal" 1%C to CA (1999)................................................................................................. 33 1emedies" A eal" 1ule =7 vs. 1ule +7 (1999)......................................................................................34 1emedies" 5oid 8ecision" Pro er 1emedy ('((=)................................................................................. 34 S ecial Civil Action" 9/ectment (1997)................................................................................................35 S ecial Civil Action" 9/ectment (199!)................................................................................................35 S ecial Civil Action" &oreclosure ('((.)............................................................................................. 35 S ecial Civil Action" Petition for Certiorari ('((')................................................................................. 35 S ecial Civil Action" ?uo @arranto ('((1)...........................................................................................36 S ecial Civil Actions" :andamus ('((+)............................................................................................. 36 Summons.....................................................................................................................................36 Summons (1999)...........................................................................................................................37 Summons" Substituted Service ('((=)................................................................................................37 Summons" 5alidity of Service" 9ffects ('((+).......................................................................................37 5enue" )m ro er 5enue" Com ulsory Counterclaim (199!)..................................................................... 38 5enue" Personal Actions (1997)........................................................................................................38 CRIMINAL PROCEDURE..................................................................................................................38 Ac<uittal" 9ffect ('((')................................................................................................................... 38 Actions" BP''" Civil Action deemed included ('((1)..............................................................................39 Actions" BP''" 8emurrer to 9vidence ('((.)....................................................................................... 39 Actions" Commencement of an Action" 8ouble Jeo ardy ('((=)...............................................................39 Actions" 8iscretionary Po2er of &iscal (1999)......................................................................................39 Actions" )n/unction (1999)............................................................................................................... 39 Arrest" @arrantless Arrest" Preliminary )nvestigation ('((=)....................................................................40 Arrest" @arrantless Arrests - Searc,es (1997).....................................................................................40 Arrest" @arrantless Arrests - SeiCures ('((.)......................................................................................40 Arrest" @arrantless Arrests" *b/ection ('((()......................................................................................41 Bail ('((')...................................................................................................................................41 Bail" A eal (199!)........................................................................................................................ 41 Bail" A lication" 5enue ('((').........................................................................................................41 Bail" &orms of Bail (1999)................................................................................................................41 Bail" :atter of 1ig,t (1999)..............................................................................................................41 Bail" :atter of 1ig,t vs. :atter of 8iscretion (1999)............................................................................... 41 Bail" :atter of 1ig,t vs. :atter of 8iscretion ('((+)............................................................................... 42 Bail" @itness Posting Bail (1999)...................................................................................................... 42 Com laint vs. )nformation (1999)...................................................................................................... 42 8emurrer to 9vidence" Contract of Carriage ('((=)............................................................................... 42 8emurrer to 9vidence" 2Ao 0eave of Court (199!)................................................................................. 42 8emurrer to 9vidence" 2Ao 0eave of Court ('((1)................................................................................. 43 8emurrer to 9vidence" 2Ao 0eave of Court ('((=)................................................................................. 43 8ismissal" &ailure to Prosecute ('((.)............................................................................................... 43 8ismissal" Provisional 8ismissal ('((.)............................................................................................. 43 8ouble Jeo ardy ('((')..................................................................................................................44 8ouble Jeo ardy" D grading" *riginal C,arges ('((7)...........................................................................44 9;tradition ('((=)..........................................................................................................................44 )nformation ('((1)......................................................................................................................... 45 )nformation" Amendment ('((1)....................................................................................................... 45 )nformation" Amendment" 8ouble Jeo ardy" Bail ('((')......................................................................... 45 )nformation" Amendment" Su ervening 9vents (1997)............................................................................45 )nformation" Bail ('((.).................................................................................................................. 45 )nformation" :otion to ?uas, ('((()..................................................................................................46 )nformation" :otion to ?uas, ('((7)..................................................................................................46 )nformation" :otion to ?uas," 3rounds (199!).....................................................................................46 Judgment" Promulgation of Judgment (1997)...................................................................................... 46 Jurisdiction" Com le; Crimes ('((.)................................................................................................. 47
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Jurisdiction" &inality of a Judgment ('((7)..........................................................................................47 Parties" Prosecution of *ffenses ('((()..............................................................................................47 Plea of 3uilty" to a 0esser *ffense ('((')........................................................................................... 47 Pre/udicial ?uestion (1999)..............................................................................................................47 Pre/udicial ?uestion ('((()..............................................................................................................47 Pre/udicial ?uestion" Sus ension of Criminal Action (1999).................................................................... 48 Pre$%rial Agreement ('((=)..............................................................................................................48 Pre$%rial" Criminal Case vs. Civil Case (1997).......................................................................................48 Provisional 8ismissal ('((')............................................................................................................48 1emedies" 5oid Judgment ('((=)......................................................................................................48 Searc, @arrant" :otion to ?uas, ('((7).............................................................................................49 %rial" %rial in Absentia" Automatic 1evie2 of Conviction (199!)................................................................49 5enue (1997)................................................................................................................................49 E3IDENCE......................................................................................................................................... 50 Admissibility (199!).......................................................................................................................50 Admissibility ('((').......................................................................................................................50 Admissibility ('((=).......................................................................................................................50 Admissibility" Admission of 3uilt" 1e<uirements ('((+)......................................................................... 51 Admissibility" 8ocument" Bot raised in t,e Pleading ('((=).....................................................................51 Admissibility" 9lectronic 9vidence ('((.)........................................................................................... 51 Admissibility" *b/ect or 1eal 9vidence (199=)......................................................................................51 Admissibility" *b/ections (1997)....................................................................................................... 51 Admissibility" *ffer to :arry" Circumstantial 9vidence (199!)..................................................................52 Admissibility" *ffer to Pay 9; enses (1997)........................................................................................ 52 Admissibility" Private 8ocument ('((7).............................................................................................. 52 Admissibility" Proof of &iliation" Action of Partition ('((()...................................................................... 52 Admissibility" 1ules of 9vidence (1997)..............................................................................................53 Best 9vidence 1ule (1997)...............................................................................................................53 Burden of Proof vs. Burden of 9vidence ('((=).................................................................................... 54 C,aracter 9vidence ('((').............................................................................................................. 54 Confession" Affidavit of 1ecantation (199!).........................................................................................54 &acts" 0egislative &acts vs. Ad/udicative &acts ('((=)............................................................................54 6earsay 9vidence ('((').................................................................................................................54 6earsay 9vidence vs. * inion 9vidence ('((=).................................................................................... 54 6earsay" 9;ce tion" 8ead :an Statute ('((1)...................................................................................... 54 6earsay" 9;ce tion" 8ying 8eclaration (199!)......................................................................................55 6earsay" 9;ce tion" 1es 3estae" * inion of *rdinary @itness ('((7)....................................................... 55 6earsay" 9;ce tions (1999).............................................................................................................55 6earsay" 9;ce tions" 8ying 8eclaration (1999).................................................................................... 55 6earsay" )na licable ('((.)............................................................................................................55 Judicial Botice" 9vidence ('((7)....................................................................................................... 56 Judicial Botice" 9vidence" &oreign 0a2 (1997)..................................................................................... 56 :emorandum (199+)......................................................................................................................57 *ffer of 9vidence (1997)................................................................................................................. 57 *ffer of 9vidence" res inter alios acta ('((.)........................................................................................57 *ffer of 9vidence" %estimonial - 8ocumentary (199=)............................................................................57 * inion 1ule (199=).......................................................................................................................57 Parol 9vidence 1ule ('((1)..............................................................................................................58 Pre onderance vs. Substantial 9vidence ('((.)................................................................................... 58 Privilege Communication (199!)....................................................................................................... 58 Privilege Communication" :arital Privilege (19!9).................................................................................58 Privilege Communication" :arital Privilege ('((().................................................................................59 Privilege Communication" :arital Privilege ('((=).................................................................................59 Privilege Communication" :arital Privilege ('((+).................................................................................59 1emedy" 0ost 8ocuments" Secondary 9vidence (199')..........................................................................60 %estimony" )nde endent 1elevant Statement (1999).............................................................................. 60 @itness" Com etency of t,e @itness vs. Credibility of t,e @itness ('((=)..................................................60 @itness" 9;amination of a C,ild @itness" via 0ive$0in> %5 ('((7).............................................................60 @itness" 9;amination of @itnesses (1997).......................................................................................... 60
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@itness" 9;amination of @itnesses ('((').......................................................................................... 60 @itness" DtiliCed as State @itness" Procedure ('((+)............................................................................ 60 SPECIAL PROCEEDINGS................................................................................................................ 61 Cancellation or Correction" 9ntries Civil 1egistry ('((7)........................................................................ 61 9sc,eat Proceedings ('((')............................................................................................................ 61 9;tra$/udicial Settlement of 9state ('((7)............................................................................................61 6abeas Cor us (199.)....................................................................................................................61 6abeas Cor us (199!)....................................................................................................................61 6abeas Cor us ('((.)....................................................................................................................62 )ntestate Proceedings ('((')............................................................................................................62 )ntestate Proceedings" 8ebts of t,e 9state ('((')................................................................................. 62 Judicial Settlement of 9state ('((7)...................................................................................................62 Probate of 0ost @ills (1999).............................................................................................................62 Probate of @ill ('((.).....................................................................................................................63 Probate of @ill ('((7).....................................................................................................................63 Probate of @ill ('((+).....................................................................................................................63 Probate of @ill" :andatory Bature ('((')............................................................................................63 Settlement of 9state ('((1)..............................................................................................................64 Settlement of 9state" Administrator (199!)..........................................................................................64 5enue" S ecial Proceedings (1997)................................................................................................... 64 SUMMARY PROCEDURE.................................................................................................................65 Pro,ibited Pleadings ('((=).............................................................................................................65 MISCELLANEOUS............................................................................................................................. 65 Administrative Proceedings ('((7)....................................................................................................65 Congress" 0a2 9; ro riating Pro erty ('((+)......................................................................................65 1A .(19" :andatory Sus ension ('((1)............................................................................................. 66
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Version 1997-2006
!dated "# Dondee
Distinguish %ause of action from action

SUGGESTED ANSWER4
& %&'() *+ &%,-*. is an act or omission of one party in !io ation of the ega right or rights of the other (Maao Sugar Central vs. Barrios, 79 Phil. 606; Sec. 2 of new ule 2!, causing damage to another. &n &%,-*. is an ordinary suit in a court of /ustice by $hich one party prosecutes another for the enforcement or protection of a right# or the pre!ention or redress of a $rong. (Sec(ion 1 o! !ormer "#le
2'.
Civil Actions vs. S ecial Proceedings (199!)
Distinguish ci!i actions from specia proceedings. 0312

SUGGESTED ANSWER4
& %-3-4 &%,-*. is one by $hich a party sues another for the enforcement or protection of a right#
or the pre!ention or redress of a $rong.

$hi e a (P)%-&4
P5*%))D-.6 is a remedy by $hich a party see7s to estab ish a status# a right or a particu ar fact. (Sec.
3[) . "#le 1%1997 "#les o! )i*il +roced#re.'
Conciliation Proceedings" #atarungang Pambarangay vs. Pre$%rial Conference (1999)

8hat is the difference# if any# bet$een the conci iation proceedings under the 9atarungang Pambarangay 4a$ and the negotiations for an amicab e sett ement during the pre"tria conference under the 5u es of %ourt: ;21<
SUGGESTED ANSWER4
1% 1997 "#les +roced#re'%
o! )i*il
(See. 3[a % "#le
,he difference bet$een the conci iation proceedings under the 9atarungang Pambarangay 4a$ and the negotiations for an amicab e sett ement during the pre"tria conference under the 5u es of %ourt is that in the former# a$yers are prohibited from appearing for the parties. Parties must appear in person on y e=cept minors or incompetents $ho may be assisted by their ne=t of 7in $ho are not a$yers .
(,ormerl- Sec. 9%
GENERAL PRINCIPLES
Bar by Prior Judgment vs. Conclusiveness of Judgment (1997)
Distinguish Bar by prior judgment from conc usi!eness of judgment

SUGGESTED ANSWER4
Bar by prior"judgment is the doctrine of res judicata# $hich bars a second action $hen there is identity of parties# subject matter and cause of action. (Sec. 49[b o! !ormer "#le 39$ Sec% 47 [b o! ne&
"#le 39'.
%onc usi!eness of judgment prec udes the re itigation of a particu ar issue in another action bet$een the same parties on a different cause of action. (Sec. 49 [c o! !ormer "#le 39$ sec. 47
[c o! ne& "#le 39'.
Cause of action vs. Action (1997)
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66
+.D. .o. 1508$ Sec. 415% /ocal 0o*ernmen( )ode o! 1991% ".1. 7160.' .o such
combined in one instrument# but may be referred to for the purpose of construing the judgment
(Contreras v. 2eli7, ". . %o. 86'77, -une (0,
&9'7!.
prohibition e=ists in the pre"tria negotiations under the 5u es of %ourt.

&amily Courts Act ('((1) a< ?o$ shou d the records of chi d and fami y cases in the +ami y %ourts or 5,% designated by the (upreme %ourt to hand e +ami y %ourt cases be treated and dea t $ith: ;31< b< 'nder $hat conditions may the identity of parties in chi d and fami y cases be di!u ged ;21<
SUGGESTED ANSWER4
Judicial Autonomy - )m artiality ('((.)

a< ,he records of chi d and fami y cases in the +ami y %ode to hand e +ami y %ourt cases sha be dea t $ith utmost confidentia ity.
(Sec. 12% ,amil- )o#r(s 1c( o! 1997'
b< ,he identity of parties in chi d and fami y cases sha not be di!u ged un ess necessary and $ith authority of the judge. (2d.'
)nterlocutory *rder ('((+)
8hat is an inter ocutory order: ;21<

SUGGESTED ANSWER4
&n inter ocutory order refers to an order issued bet$een the commencement and the end of the suit $hich is not a fina decision of the $ho e contro!ersy and ea!es something more to be done on its merits
("allar#o et al. v. Peo$le, ". . %o. &'20(0, )$ril 2&, 200*; +nvest,ents +nc. v. Court of )$$eals, ". . %o. 600(6, -anuar. 27, &9/7 cite# in 0enso Phils, v. 1)C, ". . %o. 7*000, 2e3. 27, &9/7!.
Judgment vs. * inion of t,e Court ('((+)
8hat is the difference bet$een a judgment and an opinion of the court: ;2.51<
SUGGESTED ANSWER4
,he judgment or fa o is the fina disposition of the %ourt $hich is ref ected in the dispositi!e portion of the decision. & decision is direct y prepared by a judge and signed by him# containing c ear y and distinct y a statement of the facts pro!ed and the a$ upon $hich the judgment is based (4to.a v. )3raha,
Singson, )#,. Matter %o. Se$te,3er 26, &99'!. 5-69&67*/,
&n opinion of the court is the informa e=pression of the !ie$s of the court and cannot pre!ai against its fina order. ,he opinion of the court is contained in the body of the decision that ser!es as a guide or en ightenment to determine the ra(io decidendi of the decision. ,he opinion forms no part of the judgment e!en if
instrumenta ities for the administration of pub ic
-n rendering a decision# shou d a court ta7e into consideration the possib e effect of its !erdict upon the po itica stabi ity and economic $e fare of the nation: 41
SUGGESTED ANSWER4
.o# because a court is re@uired to ta7e into consideration on y the ega issues and the e!idence admitted in the case. ,he po itica stabi ity and economic $e fare of the nation are e=traneous to the case. ,hey can ha!e persuasi!e inf uence but they are not the main factors that shou d be considered in deciding a case. & decision shou d be based on the a$# ru es of procedure# justice and e@uity. ?o$e!er# in e=ceptiona cases the court may consider the po itica stabi ity and economic $e fare of the nation $hen these are capab e of being ta7en into judicia notice of and are re e!ant to the case.
#atarungang Pambarangay" *b/ective (1999)
8hat is the object of the 9atarungang Pambarangay 4a$: ;21<

SUGGESTED ANSWER4
,he object of the 9atarungang Pambarangay 4a$ is to effect an amicab e sett ement of disputes among fami y and barangay members at the barangay e!e $ithout judicia recourse and conse@uent y he p re ie!e the courts of doc7et congestion. (+reamble o! +.D.
.o. 1508% (3e !ormer and (3e !irs( 4a(ar#ngang +ambaranga/a&.'
0iberal Construction" 1ules of Court (199!)

?o$ sha the 5u es of %ourt be construed: 0212
SUGGESTED ANSWER4
,he 5u es of %ourt shou d be ibera y construed in order to promote their objecti!e of securing a just# speedy and ine=pensi!e disposition of e!ery action and proceeding. (Sec. 6% "#le 1 1997 "#les o! )i*il
+roced#re.'
ADDITIONAL ANSWER4
?o$e!er# strict obser!ance of the ru es is an imperati!e necessity $hen they are considered indispensab e to the pre!ention of need ess de ays and to the order y and speedy dispatch of /udicia business. ()lvero vs. -u#ge #e la osa, 76 Phil. '2/!
1emedial 0a2 in P,il. System of 3ov4t ('((+)
?o$ are remedia a$s imp emented in our system of go!ernment: ;21<
SUGGESTED ANSWER4
5emedia a$s are imp emented in our system of go!ernment through the pi ars of the judicia system# inc uding the prosecutory ser!ice# our courts of justice and @uasi judicia agencies.
1emedial 0a2 vs. Substantive 0a2 ('((+)
Distinguish bet$een substanti!e a$ and remedia a$. ;21<

SUGGESTED ANSWER4
('B(,&.,-3) 4&8 is that part of the a$ $hich creates# defines and regu ates rights concerning ife# iberty# or property# or the po$ers of agencies or
Page A of 66 affairs. ,his is distinguished from 5)B)D-&4 4&8 $hich prescribes the method of enforcing rights or obtaining redress for their in!asion (Bustos v.
8ucero,
". . %o. 86206/, 9cto3er 20, &9'/!.
and the !irus or disease is transmitted to the !ictim. 'nder (ection 17;a< of 5epub ic &ct .o. >5D4 the court may compe the accused to submit himse f to a b ood test $here b ood samp es $ou d be e=tracted from his !eins to determine $hether he has ?-3. ;>1<
1emedial 0a2" Conce t ('((+)
8hat is the concept of remedia a$: ;21<

SUGGESTED ANSWER4
,he concept of 5emedia 4a$ ies at the !ery core of procedura due process# $hich means a a$ $hich hears before it condemns# $hich proceeds upon in@uiry and renders judgment on y after tria # and contemp ates an opportunity to be heard before judgment is rendered ()l3ert v. :niversit. Pu3lishing,
". . %o. 86&9&&/, -anuar. (0, &96*!.
a! )re the rights of the accuse# to 3e $resu,e# innocent of the cri,e charge#, to $rivac., an# against self6incri,ination violate# 3. such co,$ulsor. testing; 47$lain.
SUGGESTED ANSWER4
5emedia 4a$ is that branch of a$ $hich prescribes the method of enforcing the rights or obtaining redress for their in!asion (Bustos v.
8ucero, ". . %o. 86206/, 9cto3er 20, &9'/; 2irst 8e$anto Cera,ics, +nc. v. C), ". . %o. &&0*7&, March &0, &99'!.
.o. ,he court may compe the accused to submit himse f to a b ood test to determine $hether he has ?-3 under (ec. 17;a< of 5.&. .o# >D54. ?is rights to be presumed innocent of the crime charged# to pri!acy and against se f"incrimination are not !io ated by such compu sory testing. -n an action in $hich the physica condition of a party is in contro!ersy# the court may order the accused to submit to a physica e=amination. (Sec. 1% "#le 28% 1997 "#les o! )i*il
+roced#re' (/oo5 !or ci(a(ion o! la(es( case% in 2004'
1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7)

'nder 5epub ic &ct .o. >353# one may be charged $ith and found gui ty of @ua ified rape if he 7ne$ on or before the commission of the crime that he is aff icted $ith ?uman -mmuno"Deficiency 3irus ;?-3<C&c@uired -mmune Deficiency (yndrome ;&-D(< or any other se=ua y transmissib e disease
3! +f the result of such test shows that he is <+= $ositive, an# the $rosecution offers such result in evi#ence to $rove the >ualif.ing circu,stance un#er the +nfor,ation for >ualifie# ra$e, shoul# the court re?ect such result on the groun# that it is the fruit of a $oisonous tree; 47$lain.
SUGGESTED ANSWER4
(ince the rights of the accused are not !io ated because the compu sory testing is authoriEed by the
Remedial Law Bar Examination Q & A (1997-2006) a$#
(MaCati 0ev Cor$. v. 5an?uatco 27 SC ) '0&!
the resu t of the testing cannot be considered to be the fruit of a poisonous tree and can be offered in e!idence to pro!e the @ua ifying circumstance under the information for @ua ified rape under 5.&. .o. >353. ,he fruit# of the poisonous tree doctrine refers to that ru e of e!idence that e=c udes any e!idence $hich may ha!e been deri!ed or ac@uired from a tainted or po uted source. (uch e!idence is inadmissib e for ha!ing emanated from spurious origins. ,he doctrine# ho$e!er# does not app y to the resu ts obtained pursuant to (ec. 1# 5u e 2># 1AA7 5u es of %i!i Procedure# as it does not contemp ate a search $ithin the moaning of the a$. (Peo$le v.
Montilla, ". . %o. &2(/72, -anuar. (0,&99/!
2URISDICTION
Jurisdiction (1997)
8hat courts ha!e jurisdiction o!er the fo o$ing cases fi ed in Betro Bani a: a< &n action for specific performance or# in the a ternati!e# for damages in the amount of P1>D#DDD.DD b< &n action for a $rit of injunction. c< &n action for rep e!in of a motorcyc e !a ued at P15D#DDD.DD. d< &n action for interp eader to determine $ho bet$een the defendants is entit ed to recei!e the amount of P1AD#DDD.DD from the p aintiff. e< & petition for the probate of a $i in!o !ing an estate !a ued at P2DD#DDD.DD.
SUGGESTED ANSWER4
;a< &n action for specific performance or# in the a ternati!e# for damages in the amount of 1>D#DDD.DD fa s $ithin the jurisdiction of Betropo itan ,ria %ourts in Betro Bani a. & though an action for specific performance is not capab e of pecuniary estimation# since the a ternati!e demand for damages is capab e of pecuniary estimation# it is $ithin the jurisdiction of the Betropo itan ,ria %ourts in Betro Bani a. (Sec. (( of BP &29 as a,en#e# 3. ) %o. 769&@
CruA us. 5an, /7 Phil. 627B.
;b< &n action for injunction is not capab e of pecuniary estimation and hence fa s $ithin the jurisdiction of the 5,%s. ;c< &n action for rep e!in of a motorcyc e !a ued at 15D#DDD.DD fa s $ithin the jurisdiction of the Betropo itan ,ria %ourts in Betro Bani a (Sec. ((
of BP &29. as a,en#e# 3. ) %o. 769&!.
;d< &n action for interp eader to determine $ho bet$een the defendants is entit ed to recei!e the amount of P1AD#DDD.DD fa s $ithin the jurisdiction of the Betropo itan ,ria %ourts in Betro Bani a.
Page 1D of
66
;e< & petition for the probate of a $i in!o !ing an estate !a ued at 2DD.DDD.DD fa s $ithin the /urisdiction of the Betropo itan ,ria %ourts in Betro Bani a (Sec. &9D'B of BP &29, as a,en#e#!.
ADDITIONAL ANSWER4
5e!enue a comp aint for refund of ta=es paid# but it $as not acted upon. (o# he fi ed a simi ar comp aint $ith the %ourt of ,a= &ppea s raff ed to one of its Di!isions. Bar7Gs comp aint $as dismissed. ,hus# he fi ed $ith the %ourt of &ppea s a petition for certiorari under 5u e 65. Does the %ourt of &ppea s ha!e jurisdiction o!er Bar7Gs petition: ;2.51<
SUGGESTED ANSWER4
;b< &n app ication for a $rit of pre iminary injunction may be granted by a Bunicipa %ourt in an action of forcib e entry and un a$fu detainer. (Sec.(( of BP &29;
0a. vs. 5C of Ea,3oanga, &9& SC )6&0.
Jurisdiction vs. 5enue ('((+)
Distinguish jurisdiction from !enue: ;21<

SUGGESTED ANSWER4
/'5-(D-%,-*. treats of the po$er of the %ourt to decide a case on the merits# $hi e 3).') refers to the p ace $here the suit may be fi ed. -n crimina actions# ho$e!er# !enue is jurisdictiona . /urisdiction is a matter of substanti!e a$F !enue# of procedura a$. /urisdiction may be not be conferred by consent through $ai!er upon a court# but !enue may be $ai!ed# e=cept in crimina cases (%ocu, et al. v.
5an,
.o. ,he procedure is go!erned by (ec. 11 of 5. &. A2>2. Decisions of a di!ision of the %ourt of ,a= &ppea s must be appea ed to the %ourt of ,a= &ppea s en banc. +urther# the %,& no$ has the same ran7 as the %ourt of &ppea s and is no onger considered a @uasi"judicia agency. -t is i7e$ise pro!ided in the said a$ that the decisions of the %,& en bane are cogniEab e by the (upreme %ourt under 5u e 45 of the 1AA7 5u es of %i!i Procedure.
Jurisdiction" )nca able of Pecuniary 9stimation ('((()

& brings an action in the B,% of Bani a against B for the annu ment of an e=trajudicia forec osure sa e of rea property $ith an assessed !a ue of P5D#DDD.DD ocated in 4aguna. ,he comp aint a eged prematurity of the sa e for the reason that the mortgage $as not yet due. B time y mo!ed to dismiss the case on the ground that the action shou d ha!e been brought in the 5,% of 4aguna. Decide $ith reason. ;31<
SUGGESTED ANSWER4
". . %o. &'*022, Se$te,3er 2(, 200*; Santos +++ v. %orthwest )irlines, ". . %o. &0&*(/, -une 2(, &992!.
Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+)
Bar7 fi ed $ith the Bureau of -nterna
,he motion shou d be granted. ,he B,% of Bani a has no jurisdiction because the action for the annu ment of the e=trajudicia forec osure is not capab e of pecuniary estimation and is therefore
Remedial Law Bar Examination Q & A (1997-2006) under the jurisdiction of the 5,%s. ( ussell v. =estil, (0' SC ) 7(/,D&999B!.
said parce of and $as not capab e of pecuniary
?o$e!er# the action for annu ment is a persona action and the !enue depends on the residence of either & or B. ?ence# it shou d be brought in the 5,% of the p ace $here either of the parties resides.
Jurisdiction" )nca able of Pecuniary 9stimation ('((()
& fi es an action in the Bunicipa ,ria %ourt against B# the natura son of &Hs father# for the partition of a parce of and ocated in ,aytay# 5iEa $ith an assessed !a ue of P2D#DDD.DD. B mo!es to dismiss the action on the ground that the case shou d ha!e been brought in the 5,% because the action is one that is not capab e of pecuniary estimation as it in!o !es primari y a determination of hereditary rights and not mere y the bare right to rea property. 5eso !e the motion. ;21<
SUGGESTED ANSWER4
,he motion shou d be granted. ,he action for partition depends on a determination of the hereditary rights of & and B# $hich is not capab e of pecuniary estimation. ?ence# e!en though the assessed !a ue of the and is P2D#DDD.DD# the Bunicipa ,ria %ourt has no jurisdiction. ( ussell v.
=estil, su$ra!
Jurisdiction" )nca able of Pecuniary 9stimation ('((.)

& fi ed $ith the B,% of Bani a an action for specific performance against B# a resident of IueEon %ity# to compe the atter to e=ecute a deed of con!eyance co!ering a parce of and situated in IueEon %ity ha!ing an assessed !a ue of p1A#DDD.DD. B recei!ed the summons and a copy of the %omp aint on D2 /anuary 2DD3. *n 1D /anuary 2DD3# B fi ed a Botion to Dismiss the %omp aint on the ground of ac7 of jurisdiction contending that the subject matter of the suit $as incapab e of pecuniary estimation. ,he court denied the motion. -n due time# B fi ed $ith the 5,% a Petition for %ertiorari praying that the said *rder be set aside because the B,% had no jurisdiction o!er the case. 61
("#le 3% sec. 6'.

D2lores v. Mallare6Phili$$s,
*n 13 +ebruary 2DD3# & fi ed $ith the B,% a motion to dec are B in defau t. ,he motion $as opposed by B on the ground that his Petition for %ertiorari $as sti pending. ;a< 8as the denia of the Botion to Dismiss the %omp aint correct: ;b< 5eso !e the Botion to Dec are the Defendant in Defau t.
SUGGESTED ANSWER4
;a< ,he denia of the Botion to Dismiss the %omp aint $as not correct. & though the assessed !a ue of the parce of and in!o !ed $as P1A#DDD.DD# $ithin the jurisdiction of the B,% of Bani a# the action fi ed by & for (pecific Performance against B to compe the atter to e=ecute a Deed of %on!eyance of
Page 11 of 66 by: sirdondee@gmail.com estimation and# therefore# the action $as $ithin the jurisdiction of 5,%. ( ussel v. =estil, (0' SC )
7(/
Jurisdiction" :%C ('((')
D&999B; Co$ioso v. Co$ioso, ". . %o. &'92'(, 9cto3er 2/,2002; Ca3utihan v. 8an#center Construction, (/( SC ) (*( D2002B!.
ALTERNATI3E ANSWER4
-f the action affects tit e to or possession of rea property then it is a rea action and jurisdiction is determined by the assessed !a ue of the property. -t is $ithin the jurisdiction therefore of the Betropo itan ,ria %ourt.
SUGGESTED ANSWER4
P sued & and B in one comp aint in the 5,%" Bani a# the cause of action against & being on an o!erdue promissory note for P3DD#DDD.DD and that against B being on an a eged ba ance of P3DD#DDD.DD on the purchase price of goods so d on credit. Does the 5,%"Bani a ha!e jurisdiction o!er the case: )=p ain. ;31<
SUGGESTED ANSWER4
.o# the 5,%"Bani a has no jurisdiction o!er the case. & and B cou d not be joined as defendants in one comp aint because the right to re ief against both defendants do not arise out of the same transaction or series of transactions and there is no common
@uestion of a$ or fact common to both.

?ence# separate comp aints $i ha!e to be fi es and they $ou d fa under the jurisdiction of the Betropo itan ,ria %ourt.
&'' SC ) (77 (&9/6!B.
;b< ,he %ourt cou d dec are B in defau t because B did not obtain a $rit of pre iminary injunction or a temporary restraining order from the 5,% prohibiting the judge from proceeding in the case during the pendency of the petition for certiorari.
(Sec. 7 of ule 6*; 0iaA v. 0iaA, ((& SC ) (02 D2002B.
ALTERNATI3E ANSWER4
Jurisdiction" *ffice of t,e Solicitor 3eneral ('((+)

-n 1AA6# %ongress passed 5epub ic &ct .o. >1>A# other$ise 7no$n as the 3oterGs 5egistration &ct of 1AA6# pro!iding for computeriEation of e ections. Pursuant thereto# the %*B)4)% appro!ed the 3oterGs 5egistration and -dentification (ystem ;35-(< Project. -t issued in!itations to pre"@ua ify and bid for the project. &fter the pub ic bidding# +oto7ina $as dec ared the $inning bidder $ith a bid of P6 bi ion and $as issued a .otice of &$ard. But %*B)4)% %hairman 6ener 6o objected to the a$ard on the ground that under the &ppropriations &ct# the budget for the %*B)4)%Gs moderniEation is on y P1
,he %ourt shou d not dec are B in defau t inasmuch as the jurisdiction of B,% $as put in issue in the Petition +or %ertiorari fi ed $ith the 5,%. ,he B,% shou d defer further proceedings pending the resu t of such petition. (4ternal "ar#ens Me,orial ParC
Cor$oration v. Court of )$$eals, &6' SC ) '2& D&9//B!.
bi ion. ?e announced to the pub ic that the 35-( project has been set aside. ,$o %ommissioners sided $ith %hairman 6o# but the majority !oted to upho d the contract.
Bean$hi e# +oto7ina fi ed $ith the 5,% a petition for mandamus compe the %*B)4)% to imp ement the contract. ,he *ffice of the (o icitor 6enera ;*(6<# representing %hairman 6o# opposed the petition on the ground that mandamus does not ie to enforce contractua ob igations. During the proceedings# the majority %ommissioners fi ed a manifestation that %hairman 6o $as not authoriEed by the %*B)4)% )n Banc to oppose the petition.
by: sirdondee@gmail.com 8as the municipa circuit tria
Page 12 of 66
court correct in its
ru ing: 8hy: ;51<

SUGGESTED ANSWER4
Jes# the Bunicipa %ircuit ,ria %ourt $as correct in proceeding to hear the case. -t has e=c usi!e jurisdiction in a matters of probate# both testate and intestate# $here the !a ue of the estate does not e=ceed P1DD#DDD.DD ;no$ P2DD#DDD.DD<. ,he !a ue in this case of PA5#DDD.DD is $ithin its jurisdiction. -n determining the jurisdictiona amount# e=c uded are attorneyHs fees# itigation e=penses and costsF these are considered on y for determining the fi ing fees.
(6.+.6lg. 129% Sec. 33% as amended'
Ma. the 9S" re$resent Chair,an "o 3efore the 5C notwithstan#ing that his $osition is contrar. to that of the ,a?orit.; (*F!
SUGGESTED ANSWER4
Jurisdiction" 1%C ('((')
Jes# the *(6 may represent the %*B)4)% %hair" man before the 5,% not$ithstanding that his position is contrary to that of a majority of the %ommission members in the %*B)4)% because the *(6 is an independent officeF itGs hands are not shac7 ed to the cause of its c ient agency. ,he primordia concern of the *(6 is to see to it that the best interest of the go!ernment is uphe d (C9M484C v. Gu.ano6Pa#illa,
Se$te,3er &/, 2002!.
P sued & in the 5,%"Bani a to reco!er the fo o$ing sumsK ;1< P2DD#DDD.DD on an o!erdue promissory note# ;2< P>D#DDD.DD on the purchase price of a computer# ;3< P15D#DDD.DD for damages to his car and ;4< P1DD#DDD.DD for attorneyHs fees and itigation e=penses. %an & mo!e to dismiss the case on the ground that the court has no jurisdiction o!er the subject matter: )=p ain. ;21<
SUGGESTED ANSWER4
Jurisdiction" *mbudsman Case 8ecisions ('((+)
Does the %ourt of &ppea s ha!e jurisdiction to re!ie$ the Decisions in crimina and administrati!e cases of the *mbudsman: ;2.51<
SUGGESTED ANSWER4
,he (upreme %ourt has e=c usi!e appe ate jurisdiction o!er decisions of the *mbudsman in crimina cases (Sec. 14% ".1. 6770'. -n administrati!e and discip inary cases# appea s from the *mbudsman must be ta7en to the %ourt of &ppea s under 5u e 43
(8anting v. 9,3u#s,an, ". . %o. &'&'26, Ma. 6, 200*; 2a3ian v. 0esierto, ". . %o. &297'2, Se$te,3er &6, &99/; Sec. &', ). 6770!.
.o# because the 5,%"Bani a has jurisdiction o!er the subject matter. P may sue & in one comp aint asserting as many causes of action as he may ha!e and since a the c aims are principa y for reco!ery of money# the aggregate amount c aimed sha be the test of jurisdiction. ["#le 2% sec. 5(d' . ,he aggregate amount c aimed is P45D#DDD.DD# e=c usi!e of the amount of P1DD#DDD.DD for attorneyHs fees and e=penses of itigation. ?ence# the 5,%"Bani a has jurisdiction.
Jurisdiction" Subdivision 6omeo2ner ('((+)
Jurisdiction" Probate ('((1)

/osefa fi ed in the Bunicipa %ircuit ,ria %ourt of & icia and Babini# a petition for the probate of the $i of her husband# Bartin# $ho died in the Bunicipa ity of & icia# the residence of the spouses. ,he probab e !a ue of the estate $hich consisted main y of a house and ot $as p aced at PA5#DDD.DD and in the petition for the a o$ance of the $i # attorneyHs fees in the amount of P1D#DDD.DD# itigation e=penses in the amount of P5#DDD.DD and costs $ere inc uded. Pedro# the ne=t of 7in of Bartin# fi ed an opposition to the probate of the $i on the ground that the tota amount inc uded in the re ief of the petition is more than P1DD#DDD.DD# the ma=imum jurisdictiona amount for municipa circuit tria courts. ,he court o!erru ed the opposition and proceeded to hear the case.
8hat court has jurisdiction o!er an action for specific performance fi ed by a subdi!ision homeo$ner against a subdi!ision de!e oper: %hoose the correct ans$er. )=p ain. 1. ,he ?ousing and 4and 'se 5egu atory Board 2. ,he (ecurities and )=change %ommission 3. ,he 5egiona ,ria %ourt 4. ,he %ommercia %ourt or the 5egiona ,ria %ourt designated by the (upreme %ourt to hear and decide Lcommercia cases.L
SUGGESTED ANSWER4
&n action for specific performance by a subdi!ision homeo$ner against a subdi!ision de!e oper is $ithin the jurisdiction of the ?ousing and 4and 'se 5egu atory Board. (ec. 1 of P.D. 1344 pro!ides that the ?4'5B has jurisdiction o!er cases in!o !ing specific performance of contractua and statutory ob igations fi ed by buyers of subdi!ision ots and condominium units against the o$ner# de!e oper# dea er# bro7er or sa esman (Manila BanCers 8ife
+nsurance Cor$. v. 4##. %g HoC Iei, ". . %o. &(979&, 0ece,3er &2, 200(; HaCilala v. 2araon, ". . %o. &'(2((, 9cto3er &/, 200'; Sec. &, P.0. &(''!.
Version 1997-2006
!dated "# Dondee
b< &fter the si="month period# the pre!ai ing party shou d mo!e to e=ecute the sett ementCagreement in the appropriate city or municipa tria court. ;-d.<
CI3IL PROCEDURE
Actions" Cause of Action vs. Action (1999)
Distinguish action from cause of action. ;21<

SUGGESTED ANSWER4
&n &%,-*. is one by $hich a party sues another for the enforcement or protection of a right# or the pre!ention or redress of a $rong. (Sec. 3(1'% "#le ' & %&'() *+ &%,-*. is the act or omission by
$hich a party !io ates a right of another. )n action ,ust 3e 3ase# on a cause of action. (Sec. 1% "#le 2 o! (3e 1997 "#les'
Actions" Cause of Action" Joinder - S litting (199!)
6i!e the effects of the fo o$ingK 1. (p itting a sing e cause of actionK and ;31M 2. .on"joinder of a necessary party. 0212
SUGGESTED ANSWER4
1. ,he effect of sp itting a sing e cause of action is found in the ru e as fo o$sK -f t$o or more suits are instituted on the basis of the same
(Sec. 5% "#le 2 o! (3e 1997
cause of action# the fi ing of one or a judgment on the merits in any one is a!ai ab e as a ground for the dismissa of the others. (Sec. 4 o! "#le 2'
(Sec. 2% "#le 2 o! (3e 1997 "#les' Remedial Law Bar Examination Q & A (1997-2006)
#atarungang Pambarangay" 0u on" 9;tent of Aut,ority" ('((1)
&n amicab e sett ement $as signed before a 4upon ,agapamayapa on /anuary 3# 2DD1. *n /u y 6# 2DD1# the pre!ai ing party as7ed the 4upon to e=ecute the amicab e sett ement because of the non"comp iance by the other party of the terms of the agreement. ,he 4upon concerned refused to e=ecute the sett ementCagreement. a< -s the 4upon correct in refusing to e=ecute the sett ementCagreement: ;31< b< 8hat shou d be the course of action of the pre!ai ing party in such a case: ;21<
SUGGESTED ANSWER4
2. ,he effect of the non"joinder of a necessary party may be stated as fo o$sK ,he court may order the inc usion of an omitted necessary party if jurisdiction o!er his person may be obtained. ,he fai ure to comp y $ith the order for his inc usion $ithout justifiab e cause to a $ai!er of the c aim against such party. ,he court may proceed $ith the action but the judgment rendered sha be $ithout
a< Jes# the 4upon is correct in refusing to e=ecute the sett ementCagreement because the e=ecution sought is a ready beyond the period of si= months from the date of the sett ement $ithin $hich the 4upon is authoriEed to e=ecute. (Sec. 417%
/ocal 0o*ernmen( )ode o! 1991'
9 o! "#le 3'
Page 13 of 66 prejudice to the rights of each necessary party. (Sec.

Actions" Cause of Action" Joinder of Action (1999)
a< 8hat is the ru e on joinder of causes of action: ;21<

b< & secured t$o oans from B: one for P5DD#DDD.DD and the other for P1#DDD#DDD.DD# payab e on different dates. Both ha!e fa en due. -s B ob iged to fi e on y one comp aint against &
for the reco!ery of both oans: )=p ain. ;21<

SUGGESTED ANSWER4
a. ,he ru e on /*-.D)5 *+ %&'()( *+ &%,-*. is that a party may in one p eading assert# in the a ternati!e or other$ise join as many causes of action as he may ha!e against an opposing party# pro!ided that the ru e on joinder of parties is comp ied $ithF 1.2 the joinder sha not inc ude specia ci!i actions or actions go!erned by specia ru es# but may inc ude causes of action pertaining to different !enues or jurisdictions pro!ided one cause of action fa s $ithin the jurisdiction of a 5,% and !enue ies thereinF and 2.2 the aggregate amount c aimed sha be the test of jurisdiction $here the c aims in a the causes of action are principa y for the
reco!ery of money.
"#les'
b. .o. /oinder is on y permissi!e since the oans are separate oans $hich may be go!erned by the different terms and conditions. ,he t$o oans gi!e rise to t$o separate causes of action and may be the basis of t$o separate comp aints.
Actions" Cause of Action" Joinder of Action ('((7)
Perry is a resident of Bani a# $hi e 5ic7y and Bar!in are residents of Batangas %ity. ,hey are the co" o$ners of a parce of residentia and ocated in Pasay %ity $ith an assessed !a ue of P1DD#DDD.DD. Perry borro$ed P1DD#DDD.DD from 5ic7y $hich he promised to pay on or before December 1# 2DD4. ?o$e!er# Perry fai ed to pay his oan. Perry a so rejected 5ic7y and Bar!inGs proposa to partition the property. 5ic7y fi ed a comp aint against Perry and Bar!in in the 5,% of Pasay %ity for the partition of the property. ?e a so incorporated in his comp aint his action against Perry for the co ection of the atterGs P1DD#DDD.DD oan# p us interests and attorneyGs fees. (tate $ith reasons $hether it $as proper for 5ic7y to join his causes of action in his comp aint for partition against Perry and Bar!in in the 5,% of Pasay %ity. ;51<
SUGGESTED ANSWER4
-t $as not proper for 5ic7y to join his causes of action against Perry in his comp aint for partition against Perry and Bar!in. ,he causes of action may be bet$een the same parties# 5ic7y and Perry# $ith respect to the oan but not $ith respect to the partition $hich inc udes Bar!in. ,he joinder is bet$een a partition and a sum of money# but P&5,-,-*. is a specia ci!i action under 5u e 6A# $hich cannot be joined $ith other causes of action. (See. 5[b % "#le 2%' & so# the causes of action pertain to different !enues and jurisdictions. ,he case for a sum of money pertains to the municipa court and cannot be fi ed in Pasay %ity because the p aintiff is from Bani a $hi e 5ic7y and Bar!in are from Batangas
)i(-. (Sec. 5% "#le 2%'
entit ed to the goods. ,he decision became fina e=ecutory.
and
Actions" Cause of Action" S litting (1999)
a< 8hat is the ru e against sp itting a cause of action and its effect on the respecti!e rights of the parties for fai ure to comp y $ith the same: ;21<
b< & purchased a ot from B for P #5DD#DDD.DD. ?e ga!e a do$n payment of P5DD#DDD# signed a promissory note payab e thirty days after date# and as a security for the sett ement of the ob igation# mortgaged the same ot to B. 8hen the note fe due and & fai ed to pay# B commenced suit to reco!er from & the ba ance of P1#DDD#DDD.DD. &fter securing a fa!orab e judgment on his c aim# B brought another action against & before the same court to forec ose the mortgage. & no$ fi es a motion to dismiss the second action on the ground of bar by prior
judgment. 5u e on the motion. ;21<

SUGGESTED ANSWER4
a. ,he ru e against sp itting a cause of action and its effect are that if t$o or more suits are instituted on the basis of the same cause of action# the fi ing of one or a judgment upon the merits in any one is a!ai ab e as a ground for the dismissa of the others. (Sec. 4% "#le 2' b. ,he motion to dismiss shou d be granted. 8hen B commenced suit to co ect on the promissory note# he $ai!ed his right to forec ose the mortgage. B sp it his cause of action.
Actions" Cause of Action" S litting ('((7)
5aphae # a $arehouseman# fi ed a comp aint against 3 %orporation# N %orporation and J %orporation to compe them to interp ead. ?e a eged therein that the three corporations c aimed tit e and right of possession o!er the goods deposited in his $arehouse and that he $as uncertain $hich of them $as entit ed to the goods. &fter due proceedings# judgment $as rendered by the court dec aring that N %orporation $as
Page 14 of 66 5aphae fi ed a comp aint against N %orporation for the payment of P1DD#DDD.DD for storage charges and other ad!ances for the goods. N %orporation fi ed a motion to dismiss the comp aint on the ground of res judicata. N %orporation a eged that 5aphae shou d ha!e incorporated in his comp aint for interp eader his c aim for storage fees and ad!ances and that for his fai ure he $as barred from interposing his c aim. 5aphae rep ied that he cou d not ha!e c aimed storage fees and other ad!ances in his comp aint for interp eader because he $as not yet certain as to $ho $as iab e therefor. 5eso !e the motion $ith reasons. ;41<
SUGGESTED ANSWER4
sha be barred. (Sec. 2, ule 9, ; )rreAa v. 0iaA, ". .

%o. &((&&(, )ugust (0, 200&!
Actions" Cause of Actions" :otion to 8ismiss" bar by rior /udgment ('((')
5o ando fi ed a petition for dec aration of the nu ity of his marriage to %arme a because of the a eged psycho ogica incapacity of the atter.
&fter tria # the court rendered judgment dismissing the petition on the ground that 5o ando fai ed to pro!e the psycho ogica incapacity of his $ife. ,he judgment ha!ing become fina # 5o ando fi ed another petition# this time on the ground that his marriage to %arme a had been ce ebrated $ithout a icense. -s the second action barred by the judgment in the first: 8hy: ;21<
SUGGESTED ANSWER4
,he motion to dismiss shou d be granted. 5aphae shou d ha!e incorporated in his comp aint for interp eader his c aim for storage fees and ad!ances# the amounts of $hich $ere ob!ious y determinab e at the time of the fi ing of the comp aint. ,hey are part of 5aphae Gs cause of action $hich he may not be sp it. ?ence# $hen the $arehouseman as7s the court to ascertain $ho among the defendants are entit ed to the goods# he a so has the right to as7 $ho shou d pay for the storage fees and other re ated e=penses. ,he fi ing of the interp eader is a!ai ab e as a ground for dismissa of the second case. (Sec. 4% "#le 2%' -t is a7in to a compu sory counterc aim $hich# if not set up#
.o# the second action is not barred by the judgment in the first because they are different causes of action. ,he first is for annu ment of marriage on the ground of psycho ogica incapacity under &rtic e 36 of the +ami y %ode# $hi e the second is for dec aration of nu ity of the marriage in !ie$ of the absence of a basic re@uirement# $hich is a marriage icense. 01r(s% 9 7 35(3'% ,amil- )ode . ,hey are different causes of action because the e!idence re@uired to pro!e them are not the same. DPagsisihan v.
Court of )$$eals, 9* SC ) *'0
(&9/0! an# other casesB.
Actions" Counterclaim ('((')

p aintiffHs c aim. -t raises the same issue of $ho encroached on $hose and. ?ence# there $as no need to ans$er the counterc aim.
Actions" Counterclaim vs. Crossclaim (1999)
a< 8hat is a counterc aim: ;21< b< Distinguish a counterc aim crossc aim. ;21<
c<
from
("#le 11% sec. 4'.
,he p aintiff sued the defendant in the 5,% for damages a eged y caused by the atterHs encroachment on the p aintiffHs ot. -n his ans$er# the defendant denied the p aintiffHs c aim and a eged that it $as the p aintiff $ho in fact had encroached on his ;defendantHs< and. &ccording y# the defendant counterc aimed against the p aintiff for damages resu ting from the a eged encroachment on his ot. ,he p aintiff fi ed an e= parte motion for e=tension of time to ans$er the defendantHs counterc aim# but the court denied the motion on the ground that it shou d ha!e been set for hearing. *n the defendantHs motion# therefore# the court dec ared the p aintiff in defau t on the counterc aim. 8as the p aintiff !a id y dec ared in defau t: 8hy: ;51<
SUGGESTED ANSWER4
&# $ho is engaged in ti e insta ation business# $as sued by )) -ndustries for breach of contract for insta ing different marb e ti es in its offices as pro!ided in their contract. 8ithout fi ing any motion to dismiss# & fi ed its &ns$er $ith %ounterc aim theoriEing that )) -ndustries has no ega capacity to sue because it is not a du y registered corporation. By $ay of counterc aim# & as7ed for mora and actua damages as her business dep eted as a resu t of the $ithdra$a and cance ation by her c ients of their contracts due to the fi ing of the case. ,he case $as dismissed after the tria court found that )) -ndustries is not a registered corporation and therefore has no ega capacity to sue. ?o$e!er# it set a date for the reception of e!idence on &Gs counterc aim. )) -ndustries opposed on the ground that the counterc aim cou d no onger be prosecuted in !ie$ of the dismissa of the main
.o# the p aintiff $as not !a id y dec ared in defau t. & motion for e=tension of time to fi e an ans$er may be fi ed e= parte and need not be set for hearing.
D),ante vs. Sunga, 6' SC ) &92 (&97*!B.
ALTERNATI3E ANSWER4
,he genera ru e is that a counterc aim must be ans$ered $ithin ten ;1D< days from ser!ice.
?o$e!er# a counterc aim that raises issues

$hich are deemed automatica y joined by the a egations of the %omp aint need not be ans$ered.
D"o?o v. "o.ala, (* SC ) **7 (&970!B.
-n this case# the defendantHs counterc aim is a compu sory counterc aim $hich arises out or is connected $ith the transaction and occurrence constituting the subject matter of the
Page 15 of 66 case. -s the stand of )) -ndustries sustainab e: )=p ain. 0212
SUGGESTED ANSWER4
a< & %*'.,)5%4&-B is any c aim $hich a defending party may ha!e against an opposing party. (Sec. 6% "#le 6' b< & counterc aim is distinguished from a %5*((" %4&-B in that a cross"c aim is any c aim by one party against a co"party arising out of the transaction or occurrence that is the subject matter either of the origina action or of a counterc aim therein. & counterc aim is against an opposing party $hi e a cross"c aim is against a co"party. (Sec. 8% "#le 6' c< .o# because if no motion to dismiss has been
fi ed# any of the grounds for dismissa pro!ided in the 5u es may be p eaded as an affirmati!e defense in the ans$er $hich may inc ude a counterc aim. ,his is $hat & did by fi ing an &ns$er a eging the ac7 of ega capacity of )) -ndustries to sue because it is not a du y registered corporation $ith a counterc aim for damages. ,he dismissa of the comp aint on this ground is $ithout prejudice to the prosecution of the counterc aim in the same action because it is a compu sory counterc aim. (Sec. 6 o! "#le 16.'
B and % borro$ed P4DD#DDD.DD from &. ,he promissory note $as e=ecuted by B and % in a /oint and se!era capacity. B# $ho recei!ed the money from &# ga!e % P2DD#DDD.DD. %# in turn# oaned P1DD#DDD.DD out of the P2DD#DDD.DD he recei!ed to D.
a< -n an action fi ed by & against B and % $ith the 5,% of IueEon %ity# can B fi e a cross" c aim against % for the amount of P2DD#DDD.DD: b< %an % fi e a third party comp aint against D for the amount of P 1DD#DDD.DD:
SUGGESTED ANSWER4
;a< Jes. B can fi e a cross"c aim against % for the

amount of 2DD#DDD.DD gi!en to %. & cross"c aim is a c aim fi ed by one party against a co"party arising out of the transaction or occurrence that is the subject matter of the origina action or a counterc aim therein and may inc ude a c aim that the party against $hom it is asserted is or may be iab e to the cross"c aimant for a or part of a c aim asserted against the cross" c aimant. (Sec. 8 "#le 6' ;b< .o# % cannot fi e a third"party comp aint against D because the oan of P1DD#DDD has no connection $ith the opponentGs c aim. % cou d ha!e oaned the
money out of other funds in his possession.

ALTERNATI3E ANSWER4
Actions" Cross$Claims" %,ird Party Claims (1997)
Jes# % can fi e a third"party comp aint against D because the oan of 1DD#DDD.DD $as ta7en out of the P2DD#DDD recei!ed from B and hence the oan see7s
Page 16 of
inso !ent. *n the other hand# the ci!i action for @uasi" de ict against the dri!er is an independent ci!i action under &rtic e 33 of the %i!i %ode and (ec. 3# 5u e 111 of the 5u es of %ourt# $hich can be fi ed separate y and can proceed independent y of the crimina action and regard ess of the resu t of the atter. (Sa,son v. 0awa.,
". . %os. &600*'6**, -ul. 2&,
200'! (8int v. 8i,6Ju, ".+8 %o. &(/('(,
Actions" )ntervention" 1e<uisites ('((()
8hat are the re@uisites for an inter!ention by a non" party in an action pending in court: ;51<
SUGGESTED ANSWER4
(Sec. 12% "#le 3' Remedial Law Bar Examination Q & A (1997-2006) contribution in respect to his opponentGs c aim. (Sec. 11 o! "#le 6'
,he re@uisites for inter!ention areK 1. 4ega interest in the matter in a contro!ersyF or 2. 4ega interest in the success of either of the partiesF or
Actions" 8erivative Suit vs. Class Suit ('((7)
Distinguish a deri!ati!e suit from a c ass suit.

SUGGESTED ANSWER4
& D)5-3&,-3) ('-, is a suit in e@uity that is fi ed by a minority shareho der in beha f of a corporation to redress $rongs committed against it# for $hich the directors refuse to sue# the rea party in interest being
the corporation itse f 2e3ruar. &9, 200&!# $hi e a %4&(( ('-, is fi ed regarding a contro!ersy of common or genera interest in beha f of many persons so numerous that it is impracticab e to join a as parties# a number $hich the court finds sufficient y representati!e $ho may sue or defend for the benefit of a . -t is $orth noting that a deri!ati!e suit is a represen" tati!e suit# just i7e a c ass suit.
Actions" &iling" Civil Actions - Criminal Action ('((7)
8hi e cruising on a high$ay# a ta=icab dri!en by Bans hit an e ectric post. &s a resu t thereof# its passenger# /o!y# suffered serious injuries. Bans $as subse@uent y charged before the Bunicipa ,ria %ourt $ith rec7 ess imprudence resu ting in serious physica injuries.
,hereafter# /o!y fi ed a ci!i action against 4ourdes# the o$ner of the ta=icab# for breach of contract# and Bans for @uasi"de ict. 4ourdes and Bans fi ed a motion to dismiss the ci!i action on the ground of itis pendentia# that is# the pendency of the ci!i action imp ied y instituted in the crimina action for rec7 ess imprudence resu ting in serious physica injuries. 5eso !e the motion $ith reasons. ;41<
SUGGESTED ANSWER4
,he motion to dismiss shou d be denied. ,he action for breach of contract against the ta=icab o$ner cannot be barred by the crimina action against the ta=icab dri!er# a though the ta=icab o$ner can be he d subsidiari y iab e in the crimina case# if the dri!er is
66
3. 4ega interest against bothF or
4. (o situated as to be ad!erse y affected by a distribution or other disposition or property in the custody of the court or of an officer thereof. 5. -nter!ention $i not undu y de ay or prejudice the adjudication of the rights or origina partiesF
6. -nter!enorHs rights may not be fu y protected in a separate proceedings.

()cenas ++ v. Court of )$$eals, 2'7 SC ) 77( D&99*B; Sec. &, ule &9, &997 ules of Civil Proce#ure.!
Actions" 1eal Actions - Personal Actions ('((+)
against him $hich $as doc7eted as %i!i %ase .o. 123. & retainership agreement $as e=ecuted bet$een P/ and &tty. (, $hereby P/ promised to pay &tty. (, a retainer sum of P24#DDD.DD a year and to transfer the o$nership of a parce of and to &tty. (, after presentation of P/Hs e!idence. P/ did not comp y $ith his underta7ing. &tty. (, fi ed a case against P/ $hich $as doc7eted as %i!i %ase .o. 456. During the tria of %i!i %ase .o. 456# P/ died. 1. -s the death of P/ a !a id ground to dismiss the money c aim of &tty. (, in %i!i %ase .o. 456: )=p ain. ;21< 2. 8i your ans$er be the same $ith respect to the rea property being c aimed by &tty. (, in %i!i %ase .o. 456: )=p ain ;21<
SUGGESTED ANSWER4
8hat do you mean by a< rea actionsF and b< persona action: ;21<
SUGGESTED ANSWER4
a. 5)&4 &%,-*.( are actions affecting tit e to or possession of rea property or an interest therein
(2ortune Motors, +nc. v. C), ". . %o. 76'(&, 9cto3er &6, &9/9; ule ', Sec. &!.
b. & other actions are P)5(*.&4 &%,-*.( ("#le 4% Sec(ion 2' $hich inc ude those arising from pri!ity of contract.
Actions" Survives 8eat, of t,e 8efendant ('((()
P/ engaged the ser!ices of &tty. (, to represent him in a ci!i case fi ed by *P
1. .o. 'nder (ec. 2D# 5u e 3# 1AA7 5u es of %i!i Procedure# $hen the action is for reco!ery of money arising from contract# e=press or imp ied# and the defendant dies before entry of fina judgment in the court in $hich the action is pending at the time of such death# it sha not be dismissed but sha instead be a o$ed to continue unti entry of fina judgment. & fa!orab e judgment obtained by the p aintiff sha be enforced in the manner especia y pro!ided in the 5u es for prosecuting c aims against the estate of a deceased person. 2. Jes# my ans$er is the same. &n action to reco!er rea property in any e!ent sur!i!es the death of the defendant. ;(ec. 1# 5u e >7# 5u es of %ourt<. ?o$e!er# a fa!orab e judgment may be enforced
Remedial Law Bar Examination Q & A (1997-2006) in
to
accordance $ith (ec. 7;b< 5u e 3A ;1AA7 5u es of %i!i Procedure< against the e=ecutor or administrator or successor in interest of the deceased.
A eals" Period of A eal" &res, Period 1ule ('((.)
Defendant N recei!ed an ad!erse Decision of the 5,% in an ordinary ci!i case on D2 /anuary 2DD3. ?e fi ed a .otice of &ppea on 1D /anuary 2DD3. *n the other hand# p aintiff & recei!ed the same Decision on D6 /anuary 2DD3 and# on 1A /anuary 2DD3# fi ed a Botion for 5econsideration of the Decision. *n 13 /anuary 2DD3# defendant N fi ed a Botion $ithdra$ing his notice of appea in order to fi e a Botion for .e$ ,ria $hich he attached. *n 2D /anuary 2DD3# the court denied &Hs Botion for 5econsideration and NHs Botion to 8ithdra$ .otice of &ppea . P aintiff & recei!ed the *rder denying his Botion for 5econsideration on D3 +ebruary 2DD3 and fi ed his .otice of &ppea on D5 +ebruary 2DD3. ,he court denied due course to &Hs .otice of &ppea on the ground that he period to appea had a ready apsed. 61
;a< -s the courtHs denia of NHs Botion to 8ithdra$ .otice of &ppea proper: ;b< -s the courtHs denia of due course to &Hs appea correct:
SUGGESTED ANSWER4
;a< .o# the courtHs denia of NHs Botion to 8ithdra$ .otice of &ppea is not proper# because the period of appea of N has not yet e=pired. +rom /anuary 2# 2DD3 $hen N recei!ed a copy of the ad!erse decision up to /anuary 13# 2DD3 $hen he fi ed his $ithdra$a of appea and Botion for .e$ ,ria # on y ten ;1D< days had e apsed and he had fifteen ;15< days to do so.
;b< .o# the courtHs denia of due course to &Hs appea is not correct because the appea $as ta7en on time. +rom /anuary 6# 2DD3 $hen & recei!ed a copy of the decision up to /anuary 1A# 2DD3 $hen he fi ed a Botion for 5econsideration# on y t$e !e ;12< days had e apsed. %onse@uent y# he had three ;3< days from receipt on +ebruary 3# 2DD3 of the *rder denying his Botion for 5econsideration $ithin $hich to appea . ?e fi ed is notice of appea on +ebruary 5#
2DD3# or on y t$o ;2< days ater.

ALTERNATI3E ANSWER4
(ince &Hs Botion for 5econsideration $as fi ed on /anuary 1A# 2DD3 and it $as denied on /anuary 2D# 2DD3# it $as c ear y not set for hearing $ith at east three daysH notice. ,herefore# the motion $as pro forma and did not interrupt the period of appea $hich e=pired on /anuary 21# 2DD3 or fifteen ;15< days after notice of the decision on /anuary 6# 2DD3. =*%9> ,o standardiEe the appea periods pro!ided in
the 5u es and to afford itigants fair opportunity to appea their cases# the %ourt deems it practica
Page 17 of 66 a o$ a 2 4S< P4 +90 of &* #a.s $ithin $hich to fi e the notice of appea in the 5,%# counted from
receipt of the order dismissing a motion for a ne$
tria or motion for reconsideration. D%e.$es et.

al. vs. C), ". . %o. &'&*2', Se$te,3er &', 200*B
reso ution of a tribuna # body or board that has acted $ithout or in e=cess of its jurisdiction or gra!e abuse of discretion amounting to ac7 or e=cess of jurisdiction# $hen there is no appea or any other p ain# speedy and ade@uate remedy in the ordinary course of a$. (. )s a ,o#e of review of the #ecisions of the %ational 8a3or elations Co,,ission an# the
SUGGESTED ANSWER4
Certiorari" :ode of Certiorari ('((+)
Constitutional Co,,issions. (2.*F!
)=p ain each mode of certiorariK

&. )s a ,o#e of a$$eal fro, the egional 5rial Court or the Court of )$$eals to the Su$re,e
SUGGESTED ANSWER4
Court. (2.*F!
%ertiorari as a mode of appea is go!erned by 5u e 45 of the 5u es of %ourt $hich a o$s appea from judg" ment# fina order of reso ution of the %ourt of &ppea s# (andiganbayan# the 5,% or other courts $hene!er authoriEed by a$ to the (upreme %ourt by !erified petition for re!ie$ raising on y @uestions of a$ distinct y set forth.
2. )s a s$ecial civil action fro, the egional 5rial Court or the Court of )$$eals to the Su$re,e Court. (2.*F!
SUGGESTED ANSWER4
%ertiorari as a mode of re!ie$ of the decision of the .45% is e e!ated to the %ourt of &ppea s under 5u e 65# as he d in the case of St. MartinKs 2uneral <o,e v. %8 C, ". . %o. &(0/66, Se$te,3er &6, &99/ . %ertiorari as a mode of re!ie$ from the %ommission on &udit ;%*&< and %*B)4)% is e e!ated to the (upreme %ourt $ithin 3D days from notice of the judgment# decision or fina order or reso ution sought to be re!ie$ed# as pro!ided for under the 5u e 64 of the 1AA7 5u es of %i!i Procedure. -n the case of the %i!i (er!ice %ommission ;%(%<# re!ie$ of its judgments is through petitions for re!ie$ under (ec. 5 of 5u e 43 of the 1AA7 5u es of %i!i Procedure. Certiorari" 1ule ?7 vs. 1ule +7 (199!)
Differentiate certiorari as an origina action from certiorari as a mode of appea . M312

SUGGESTED ANSWER4
%ertiorari as a (pecia %i!i &ction is go!erned by 5u e 65 of the 5u es of %ourt $hen an aggrie!ed party may fi e a !erified petition against a decision# fina order or
%ertiorari as an origina action and certiorari as a mode of appea may be distinguished as fo o$sK 1. ,he first is a specia ci!i action under 5u e 65 of the 5u es of %ourt# $hi e the second is an appea
Remedial Law Bar Examination Q & A (1997-2006) to
&fter the /udgment became fina # a $rit of e=ecution
the (upreme %ourt from the %ourt of &ppea s# (andiganbayan and the 5,% under 5u e 45. 2. ,he first can be fi ed on y on the grounds of ac7 or e=cess of jurisdiction or gra!e abuse of discretion tantamount to ac7 or e=cess of jurisdiction# $hi e the second is based on the errors of a$ of the o$er court.
3. ,he first shou d be fi ed $ithin si=ty ;6D< days from notice of the judgment# order or reso ution sought to be assai ed (Sec. 4. "#le 65'# $hi e the second shou d be fi ed $ithin fifteen ;15< days from notice of the judgment or fina order or reso ution appea ed from# or of the denia of the petitionerGs motion for ne$ tria or reconsideration fi ed in due time after notice of the judgment. (Sec. 2% "#le 45'
4. ,he first cannot genera y be a!ai ed of as a substitute for a ost appea under 5u es 4D# 41# 42# 43 and 45.
5. 'nder the first# the o$er court is imp eaded as a party respondent (Sec. 5 o! "#le 65'% $hi e under the second# the o$er court is not imp eaded.
(Sec. 4 o! "#le o! 45' Certiorari" 1ule ?7 vs. 1ule +7 ('((7)
Bay the aggrie!ed party fi e a petition for certiorari in the (upreme %ourt under 5u e 65 of the 1AA7 5u es of %i!i Procedure# instead of fi ing a petition for re!ie$ on certiorari under 5u e 45 thereof for the nu ification of a decision of the %ourt of &ppea s in the e=ercise either of its origina or appe ate jurisdiction: )=p ain.
SUGGESTED ANSWER4
,o .'44-+J & D)%-(-*. of the %ourt of &ppea s the aggrie!ed party shou d fi e a P),-,-*. +*5 5)3-)8 *. %)5,-*5&5- in the (upreme %ourt under 5u e 45 of the 5u es of %ourt instead of fi ing a petition for certiorari under 5u e 65 e=cept under !ery e=ceptiona circumstances. & ong ine of decisions of the (upreme %ourt# too numerous to mention# ho ds that certiorari is not a substitute for a ost appea . -t shou d be noted# ho$e!er# $hen the %ourt of &ppea s imposes the death pena ty# or a esser pena ty for offenses committed on such occasion# appea by petition for re!ie$ or ordinary appea . -n cases $hen the %ourt of &ppea s imposes rec usion perpetua# ife imprisonment or a esser pena ty# appea is by notice of appea fi ed $ith the %ourt of &ppea s.
Contem t" 8eat, of a Party" 9ffect (199!)

& fi ed a comp aint for the reco!ery of o$nership and against B $ho $as represented by her counse N. the course of the tria # B died. ?o$e!er# N fai ed notify the court of BGs death. ,he court proceeded hear the case and rendered judgment against of -n to to B.
Page 1> of 66 $as issued against %# $ho being BGs so e heir# ac@uired the property. Did the fai ure of counse N to inform the court of BGs death constitute direct contempt: ;21<
SUGGESTED ANSWER4
&fter a defendant is dec ared in defau t# the court sha proceed to render judgment granting the c aimant such re ief as his p eading may $arrant# un ess the court in its discretion re@uires the c aimant to submit e!idence# $hich may be de egated to the c er7 of court. (Sec. 3% "#le 9'
ALTERNATI3E ANSWER4
.o. -t is not direct contempt under (ec. 1 of 5u e 71# but it is indirect contempt $ithin the pur!ie$ of (ec 3 of 5u e 71. ,he a$yer can a so be the subject of discip inary action. (Sec. 16% "#le 3'
8efault ('((()
Defendant $as dec ared in defau t by the 5,% ;5,%<. P aintiff $as a o$ed to present e!idence in support of his comp aint. Photocopies of officia receipts and origina copies of affida!its $ere presented in court# identified by p aintiff on the $itness stand and mar7ed as e=hibits. (aid documents $ere offered by p aintiff and admitted in e!idence by the court on the basis of $hich the 5,% rendered judgment in fa!or of the p aintiff# pursuant to the re ief prayed for. 'pon receipt of the judgment# defendant appea s to the %ourt of &ppea s c aiming that the judgment is not !a id because the 5,% based its judgment on mere photocopies and affida!its of persons not presented in court.
,he c aim of defendant is !a id# because the court recei!ed e!idence $hich it can order in its o$n discretion# in $hich case the e!idence of the p aintiff must pass the basic re@uirements of admissibi ity.
8efault ('((1)
Bario $as dec ared in defau t but before judgment $as rendered# he decided to fi e a motion to set aside the order of defau t. a< 8hat shou d Bario state in his motion in order to justify the setting aside of the order of defau t: ;31< b< -n $hat form shou d such motion be: ;21<
SUGGESTED ANSWER4
a< -n order to justify the setting aside of the order of defau t# Bario shou d state in his motion that his fai ure to ans$er $as due to fraud# accident# mista7e or e=cusab e neg igence and that he has a meritorious defense. [Sec. 3(b' o! "#le 9% .
b< ,he motion shou d be under oath. ;-d.<
8efault" *rder of 8efault" 9ffects (1999)
-s the c aim of defendant !a id: )=p ain. ;31<

SUGGESTED ANSWER4
,he c aim of defendant is not !a id because under the 1AA7 5u es# reception of e!idence is not re@uired.
1. 8hen may a party be dec ared in defau t: ;21< 2. 8hat is the effect of an *rder of Defau t: ;21<
3. +or fai ure to seasonab y fi e his &ns$er despite due notice# & $as dec ared in defau t in a case instituted against him by B. ,he fo o$ing day# &Gs mistress $ho is $or7ing as a c er7 in the sa a of the /udge before $hom his case is pending# informed him of the dec aration of defau t. *n the same day# & presented a motion under oath to set aside the order of defau t on the ground that his fai ure to ans$er $as due to fraud and he has a meritorious defense. ,hereafter# he $ent abroad. &fter his return a $ee7 ater# $ith the case sti undecided# he recei!ed the order dec aring him in defau t. ,he motion to set aside defau t $as opposed by B on the ground that it $as fi ed before & recei!ed notice of his ha!ing been dec ared in defau t# citing the ru e that the motion to set aside may be made at anytime after notice but before judgment. 5eso !e the Botion.
by: sirdondee@gmail.com aside the order of defau t on the grounds of fraud# accident# mista7e or e=cusab e neg igence and that he has a meritorious
1% "#le 65'
;21<
SUGGESTED ANSWER4
1. & party may be dec ared in defau t $hen he fai s to ans$er $ithin the time a o$ed therefor# and upon motion of the c aiming party $ith notice to
the defending party# and proof of such fai ure.
(Sec. 3% "#le 9'
2.
,he effect of an *rder of Defau t is that the court may proceed to render judgment granting the c aimant such re ief as his p eading may $arrant un ess the court in its discretion re@uires
the c aimant to submit e!idence ;-d.< ,he party in defau t cannot ta7e part in the tria but sha be entit ed to notice of subse@uent proceedings. (Sec. 3[1 ' 3. &ssuming that the motion to set aside comp ies $ith the other re@uirements of the ru e# it shou d be granted. & though such a motion may be made after notice but before judgment (Sec. 3[6 o! "#le 9'# $ith more reason may it be fi ed after disco!ery e!en before receipt of the order of defau t.
8efault" 1emedies" Party 8eclared in 8efault (199!)
8hat are the a!ai ab e remedies of a party dec ared -n defau tK 1. Before the rendition of judgmentF 0112 2. &fter judgment but before its fina ityF and 0211 3. &fter fina ity of judgment: 0212
SUGGESTED ANSWER4
,he a!ai ab e remedies of a party dec ared in defau t are as fo o$sK 1. BEFORE THE RENDITION OF JUDGMENT
;a< he may fi e a motion under oath to set
Page 1A of 66
defense (Sec. 3[b % "#le 9'$ and if it is denied# he may mo!e to reconsider# and if reconsideration is denied# he may fi e the specia ci!i action of certiorari for gra!e abuse of discretion tantamount to ac7 or e=cess of the o$er courtGs jurisdiction. (Sec.
or c< certiorari if the judgment to !oid on its face

or by the judicia record. (Balangca# vs.
-ustices of the Court of )$$eals, ". . %o. /(///. 2e3ruar. &2, &992, 206 /C ) &7&!.
8efault" 1emedies" Party 8eclared in 8efault ('((+)

/ojie fi ed $ith the 5egiona ,ria %ourt of 4aguna a comp aint for damages against /oe. During the pre" tria # /ojie ;sic< and her ;sic< counse fai ed to appear despite notice to both of them. 'pon ora motion of /ojie# /oe $as dec ared as in defau t and /ojie $as a o$ed to present her e!idence e= parte. ,hereafter# the court rendered its Decision in fa!or of /ojie.
or
;b<he may fi e a petition for certiorari if he has been i ega y dec ared in defau t# e.g. during the pendency of his motion to dismiss or before the e=piration of the time to ans$er.
(Matute vs. Court of )$$eals, 26 SC ) 76/; )costa69falia vs. Sun#ia,, /* SC ) '&2.!
2. AFTER JUDGMENT BUT BEFORE ITS FINALITY # he may fi e a motion for ne$ tria on the grounds of fraud# accident# mista7e# e=cusab e neg igence# or a motion for reconsideration on the ground of e=cessi!e damages# insufficient e!idence or the decision or fina order being contrary to a$ (Sec. 2% "#le 37'K and thereafter. -f the motion is denied# appea to a!ai ab e under 5u es 4D or 41# $hiche!er to app icab e. 3. AFTER FINALITY OF THE JUDGMENT# there are three $ays to assai the judgment# $hich areK a< a petition for re ief under 5u e 3> on the grounds of fraud# accident# mista7e or e=cusab e neg igenceF b< annu ment of judgment under 5u e 47 for e=trinsic fraud or ac7 of jurisdictionF
/oe hired /ose as his counse . 8hat are the remedies a!ai ab e to him: )=p ain. ;51<
SUGGESTED ANSWER4
,he remedies a!ai ab e to a party against $hom a defau t decision is rendered are as fo o$sK 1. B)+*5) the judgment in defau t becomes fina and e=ecutoryK a. Botion for 5econsideration under 5u e 37F b. Botion for .e$ ,ria under 5u e 37F and c. &ppea under 5u e 41. 2. &+,)5 the judgment in defau t becomes fina and e=ecutoryK a. Petition for 5e ief under 5u e 3>F b. &nnu ment of /udgment under 5u e 47F and
Page 2D of 66
c.
%ertiorari under 5u e 65.
(See 5alsan 4nter$rises, +nc. v. Baliwag 5ransit, +nc., ". . %o. &262*/, -ul. /, &999!
8emurrer to 9vidence" Civil Case vs. Criminal Case ('((.)
8efault" 1emedies" Substantial Com liance ('((()
+or fai ure of 9./. to fi e an ans$er $ithin the reg ementary period# the %ourt# upon motion of 4B# dec ared 9/ in defau t. -n due time# 9/ fi ed an un!erified motion to ift the order of defau t $ithout an affida!it of merit attached to it. 9/ ho$e!er attached to the motion his ans$er under oath# stating in said ans$er his reasons for his fai ure to fi e an ans$er on time# as $e as his defenses. 8i the motion to ift the order of defau t prosper: )=p ain. ;31<
SUGGESTED ANSWER4
%ompare the effects of a denia of demurrer to e!idence in a ci!i case $ith those of a denia of demurrer to e!idence in a crimina case. 41
SUGGESTED ANSWER4
-n a ci!i case# the defendant has the right to fi e a demurrer to e!idence $ithout ea!e of court. -f his demurrer is denied# he has the right to present e!idence. -f his demurrer is granted and on appea by the p aintiff# the appe ate court re!erses the order and renders judgment for the p aintiff# the defendant oses his right to present e!idence. ;5u e 33<.
Jes# there is substantia comp iance $ith the ru e. & though the motion is un!erified# the ans$er attached to the motion is !erified. ,he ans$er contains $hat the motion to ift the order of defau t and the affida!it of merit shou d contain# $hich are the reasons of mo!antHs fai ure to ans$er as $e as his defenses. (Sec. ( D3B of ule 9, &997 ules of Civil
Proce#ure; Cf. Citi3anC, %.). v. Court of )$$eals, (0' SC ) 679, D&999B; Consul v. Consul, &7 SC ) 667, 67& D&966B; 5olentino v. Carlos, 66 Phil, &'*0, &'(6 &'' D&9(/B, %asser v. Court of )$$eals, &9& SC ) 7/( D&992B!.
-n a crimina case# the accused has to obtain ea!e of court to fi e a demurrer to e!idence. -f he obtains ea!e of court and his demurrer to e!idence is denied# he has the right to present e!idence in his defense. -f his demurrer to e!idence is granted# he is ac@uitted and the prosecution cannot appea . -f the accused does not obtain ea!e of court and his demurrer to e!idence is denied# he $ai!es his right to present e!idence and the case is decided on the basis of the e!idence for the prosecution. ,he court may a so dismiss the action on the ground of insufficiency of the e!idence on its o$n initiati!e after gi!ing the prosecution the opportunity to be heard. (Sec. 23 o! "#le 119'
8iscovery" :odes of 8iscovery ('((()
8emurrer to 9vidence ('((1)

%ar os fi ed a comp aint against Pedro in the 5,% of *Eamis %ity for the reco!ery of the o$nership of a car. Pedro fi ed his ans$er $ithin the reg ementary period. &fter the pre"tria and actua tria # and after %ar os has comp eted the presentation of his e!idence# Pedro mo!ed for the dismissa of the comp aint on the ground that under the facts pro!en and the a$ app icab e to the case# %ar os is not entit ed to the o$nership of the car. ,he 5,% granted the motion for dismissa . %ar os appea ed the order of dismissa and the appe ate court re!ersed the order of the tria court. ,hereafter# Pedro fi ed a motion $ith the 5,% as7ing the atter to a o$ him to present his e!idence. %ar os objected to the presentation of e!idence by Pedro.
Describe brief y at east fi!e ;5< modes of disco!ery under the 5u es of %ourt. ;51<
SUGGESTED ANSWER4
+i!e modes of disco!ery under the 5u es of %ourt areK

1. DEPOSITION. By ea!e of court after jurisdiction has been obtained o!er any defendant or o!er property $hich is the subject of the action# or $ithout such ea!e after an ans$er has been ser!ed# the testimony of any person# $hether a party or not# may be ta7en# at the instance of any party# by deposition upon ora e=amination or
(hou d the 5,% grant PedroHs motion to present his e!idence: 8hy: ;51<
SUGGESTED ANSWER4
$ritten interrogatories. (Sec. 1% "#le 23% 1997

"#les o! )i*il +roced#re.'
2. INTERROGATORIES
.o. PedroHs motion shou d be denied. ?e can no onger present e!idence. ,he 5u es pro!ide that if the motion for dismissa is granted by the tria court but on appea the order of dismissa is re!ersed# he sha be deemed to ha!e $ai!ed the right to present e!idence. (Sec. 1 o! "#le 33%
"#les o! )i*il +roced#re'
ALTERNATI3E ANSWER4
.o# because $hen the appe ate court re!ersed the order of the tria court it shou d ha!e rendered judgment in fa!or of %ar os. (8#ebral *.
)o#r( o! 199eals% 252 S)"1 353% 1996'
TO PARTIES. 'nder the same conditions specified in section 1 of 5u e 23# any party sha fi e and ser!e upon any ad!erse party $ritten interrogatories regarding materia and re e!ant facts to be ans$ered by the party ser!ed. ;Sec. 1% "#le 25% 1997 "#les o! )i*il +roced#re.' 3. ADMISSION BY ADVERSE PARTY . &t any time after issues ha!e been joined# a party may fi e and ser!e upon any other party a $ritten re@uest for the admission by the atter of the genuineness of any materia and re e!ant document or of the
truth of any materia and re e!ant matter of fact.
(Sec. 1% "#le 26% 1997 "#les o! )i*il +roced#re.'

Remedial Law Bar Examination Q & A (19972006)
4.
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS. 'pon motion of any party sho$ing good cause therefore# a court may order any party to produce and permit the inspection and copying or photographing of any designated documents# etc. or order any party to permit entry upon designated and or property for inspecting# measuring# sur!eying# or photographing the property or any designated
tecum on the ground that he resides more than 5D ;no$ 1DD< 7i ometers from the p ace $here he is to testify#
(Sec. 9 o! !ormer "#le 23$ Sec. 10 o! ne& "#le 21'.
;b< & can ta7e the testimony of J and present the documents as e=hibits by ta7ing his deposition
through ora e=amination or $ritten interrogatories. ("#le 24$ ne& "#le 23' ?e may a so fi e a motion for the production or inspection of documents. ("#le 27'.
ALTERNATI3E ANSWER4
re e!ant object or operation thereon.

(Sec. 1% "#le 27% 1997 "#le 27 "#les o! )i*il +roced#re.'
;a< ,he $itness can a so refuse to comp y $ith the subpoena duces tecum on the ground that the documents are not re e!ant and there $as no tender of fees for one dayGs attendance and the 7i ometrage a o$ed by the ru es.
8iscovery" Production and )ns ection of 8ocuments ('((')
,he p aintiff sued the defendant in the 5,% to co ect on a promissory note# the terms of $hich $ere stated in the comp aint and a photocopy attached to the comp aint as an anne=. Before ans$ering# the defendant fi ed a motion for an order directing the p aintiff to produce the origina of the note so that the defendant cou d inspect it and !erify his signature and the hand$ritten entries of the dates and amounts.
8iscovery" :odes" Sub oena 8uces %ecum (1997)

-n an admira ty case fi ed by & against J (hipping 4ines ;$hose principa offices are in Bani a< in the 5,%# Da!ao %ity# the court issued a subpoena duces tecum directing J# the president of the shipping company# to appear and testify at the tria and to bring $ith him se!era documents.
;a< *n $hat !a id ground can J refuse to comp y $ith the subpoena duces tecum: ;b< ?o$ can & ta7e the testimony of J and present the documents as e=hibits other than through the subpoena from the 5,%:
SUGGESTED ANSWER4
1. (hou d the judge grant the defendantHs motion for production and inspection of the origina of the promissory note: 8hy: ;21<
2. &ssuming that an order for production and inspection $as issued but the p aintiff fai ed to comp y $ith it#
;a< J can refuse to comp y

$ith the subpoena duces
ho$ shou d the defendant p ead to the a eged e=ecution of the note: ;31<
Page 21 of 66
SUGGESTED ANSWER4
;1< Jes# because upon motion of any party sho$ing good cause# the court in $hich the action is pending may order any party to produce and permit the inspection of designated documents. ("#le 27'. ,he defendant has the right to inspect and !erify the origina of the promissory note so that he cou d inte igent y prepare his ans$er. ;2< ,he defendant is not re@uired to deny under oath the genuineness and due e=ecution of the promissory note# because of the non" comp iance by the p aintiff $ith the order for production and inspection of the origina thereof. ("#le 8% sec.
8'.
ALTERNATI3E ANSWER4
action for support against )+# as father of %D and &BHs a$fu y $edded husband. )+ fi ed his ans$er denying his paternity $ith counterc aim for damages. (ubse@uent y# &B fi ed a manifestation in court that in !ie$ of the denia made by )+# it $ou d be futi e to pursue the case against )+. &B agreed to mo!e for the dismissa of the comp aint# subject to the condition that )+ $i $ithdra$ his counter c aim for damages. &B and )+ fi ed a joint motion to dismiss. ,he court dismissed the case $ith prejudice. 4ater on# minor son %D# represented by &B# fi ed another comp aint for support against )+. )+ fi ed a motion to dismiss on the ground of res judicata.
essentia re@uisite of res judicata:
;21<
SUGGESTED ANSWER4
;a< .o# res judicata is not a defense in an action for support e!en if the first case $as dismissed $ith prejudice on a joint motion to dismiss. ,he p aintiffHs mother agreed to the dismissa of the comp aint for support in !ie$ of the defendantHs ans$er denying his paternity $ith a counterc aim for damages. ,his $as in the nature of a compromise of the right of support $hich is prohibited by a$. ()rt,
20(*, Civil Co#e; 0e
)sis v. Court of )$$eals, (0( SC ) &76 D&999B!.
;2< ,he defendant may fi e a motion to dismiss the comp aint because of the refusa of the p aintiff to obey the order of the court for the production and inspection of the promissory note.
["#le 29 Sec. 3(c' .
a< -s res judicata a !a id ground for dismissa of the second comp aint: )=p ain your ans$er ;31<
b< 8hat are the
;b< ,he )ssentia 5e@uisites of 5es /udicata areK 1. the judgment or order rendered must be fina F 2. the court rendering the same must ha!e jurisdiction of the subject matter and of the partiesF 3. it must be a judgment or order on the meritsF and
8ismissal" :otion to 8ismiss" 1es Judicata ('((()

&B# as mother and in her capacity as ega guardian of her egitimate minor son# %D# brought
Remedial Law Bar Examination Q & A
(1997-2006)
Page 22 of 66
4.
there must be bet$een the t$o cases identity of parties# identity of subject matter# and identity of causes of action. (San 0iego v.
Car#ona, 70 Phil, 2/& D&9'0B!
9vidence" Admissibility" P,otoco ies ('((()
-f the photocopies of officia receipts and photocopies of affida!its $ere attached to the position paper submitted by p aintiff in an action for un a$fu detainer fi ed $ith Bunicipa ,ria %ourt on $hich basis the court rendered judgment in fa!or of p aintiff: )=p ain. ;21<
SUGGESTED ANSWER4
,he c aim of defendant is !a id# because a though summary procedure re@uires mere y the submission of position papers# the e!idence submitted $ith the position paper must be admissib e in e!idence. (Sec. 9 Photocopies of o! (3e "e*ised "#le on S#mmar+roced#re'. officia receipts and affida!its are not admissib e $ithout proof of oss of the origina s. (Sec. 3 o! "#le
130'
&orum S,o
ing" 8efinition ('((+) 8hat is forum shopping: ;2.51< SUGGESTED ANSWER4

+orum shopping is the act of a party $hich consists of fi ing mu tip e suits# simu taneous y or successi!e y# for the purpose of obtaining a fa!orab e judgment
(8e.son v. 9ffice of the 9,3u#s,an, ". . %o. &('990, )$ril 27, 2000; Julienco v. C), ". . %o. &(&692, -une &0,&999; Che,$hil 47$ort L +,$ort Cor$. v. C), ". . %os. &&2'(/6(9, 0ece,3er &2, &99*!.
&orum S,o
ing" 9ffects" 0ac@ of Certification ('((+)
?oney fi ed $ith the 5egiona ,ria %ourt# ,aa # Batangas a comp aint for specific performance against Bernie. +or ac7 of certification against forum shopping# the judge dismissed the comp aint. ?oneyGs a$yer fi ed a motion for reconsideration# attaching thereto an amended comp aint $ith the certification against forum shopping. -f you $ere the judge# ho$ $i you reso !e the motion: SUGGESTED ANSWER4 ;51< -f - $ere the judge# the motion shou d be denied after hearing because# as e=press y pro!ided in the 5u es# fai ure to comp y $ith the re@uirement of forum shopping is not curab e by mere amendment of the comp aint or other initiatory p eading# but sha be cause for the dismissa of the case# $ithout prejudice# un ess other$ise pro!ided (Sec. 5% "#le 7% 1997 "#les o! )i*il +roced#re'. ?o$e!er# the tria court in the e=ercise of its sound discretion# may choose to be ibera and consider the amendment as ("reat Southern Mariti,e substantia comp iance Services Cor$. v. )cuna, ". .
%o. &'0&/9, 2e3ruar. 2/,200*; Chan v. 5C of Ea,3oanga #el %orte, ". . %o. &'92*(, )$ril &*, 200'; :. v. 8an# BanC, ". . &(6&00, -ul. 2', 2000!.
3en. Princi les" Auestions of 0a2 vs. Auestions of &act ('((?)

Distinguish Iuestions of a$ from Iuestions of fact.
SUGGESTED ANSWER4
&
QUESTION OF LAW
is $hen
the
doubt or
difference arises as to $hat the a$ is on a certain set of facts# $hi e a QUESTION OF FACT is $hen the doubt or difference arises as to the truth or fa sehood of a eged facts. ( a,os v. Pe$si6Cola Bottling Co., &9
SC ) 2/9, D&9670B!.
Judgment" Annulment of Judgment" 3rounds (199!)
8hat are the grounds for the annu ment of a judgment of the 5,% ;5,%<: 0212
SUGGESTED ANSWER4
,he grounds for annu ment of judgment of the 5,% are )=trinsic +raud and 4ac7 of /urisdiction. (Sec% 2% "#le 47% 1997 "#les o! )i*il +roced#re.'
Judgment" 9nforcement" 7$year eriod (1997)
&# a resident of Dagupan %ity# secured a fa!orab e judgment in an ejectment case against N# a resident of IueEon %ity# from the B,%of Bani a. ,he judgment# entered on 15 /une 1AA1# had not as yet been e=ecuted. a< -n /u y 1AA6# & decided to enforce the judgment of the B,%of Bani a. 8hat is the procedure to be fo o$ed by & in enforcing the judgment:
b< 8ith $hat court shou d & institute the
proceedings:
SUGGESTED ANSWER4
;a< & can enforce the judgment by another action re!i!ing the /udgment because it can no onger be enforced by motion as the fi!e"year period $ithin $hich a judgment may be enforced by motion has a ready e=pired. (Sec. 6 o! !ormer and ne& "#le 39'. ;b< & may institute the proceedings in the 5,% in accordance $ith the ru es of !enue because the enforcement of the /udgment is a persona action
incapab e of pecuniary estimation.

ALTERNATI3E ANSWER4
;b< & may institute the proceeding in a B,%$hich has jurisdiction o!er the area $here the rea property in!o !ed is situated. (Sec. 1 o! "#le 4'.
Judgment" 9nforcement" &oreign Judgment ('((7)
'nder &rtic e 1144 of the .e$ %i!i %ode# an action upon a judgment must be brought $ithin 1D years from the time the right of action accrues. -s this pro!ision app icab e to an action fi ed in the Phi ippines to enforce a foreign judgment: )=p ain. ;1D1<
ALTERNATI3E ANSWER4
&rtic e 1144 of the %i!i %ode $hich re@uires that an action upon a judgment ;though $ithout distinction< must be brought $ithin 1D years from the time the right of action accrues# does not app y to an action fi ed in the Phi ippines to enforce a foreign judgment. 8hi e $e can say that $here the a$ does not distinguish# $e shou d not distinguish# sti the a$ does not e!ident y contemp ate the inc usion of
Page 23 of 66
foreign judgments. & oca judgment may be enforced by motion $ithin fi!e years and by action $ithin the ne=t fi!e years. ("#le 39' ,hat is not the case $ith respect to foreign judgments $hich cannot be enforced by mere motion.
ALTERNATI3E ANSWER4
Judgment" )nterlocutory *rder" Partial Summary Judgments ('((?)

&fter defendant has ser!ed and fi ed his ans$er to p aintiffs comp aint for damages before the proper 5,%# p aintiff ser!ed and fi ed a motion ;$ith supporting affida!its< for a summary judgment in his fa!or upon a of his c aims. Defendant ser!ed and fi ed his opposition ;$ith supporting affida!its< to the motion. &fter due hearing# the court issued an order ;1< stating that the court has found no genuine issue as to any materia fact and thus conc uded that p aintiff is entit ed to judgment in his fa!or as a matter of a$ e=cept as to the amount of damages reco!erab e# and ;2< according y ordering that p aintiff sha ha!e judgment summari y against defendant for such amount as may be found due p aintiff for damages# to be ascertained by tria on *ctober 7# 2DD4# at >K3D oGc oc7 in the morning. Bay defendant proper y ta7e an appea from said order: *r# may defendant proper y cha enge said order thru a specia ci!i action for certiorari: 5eason. ;51<
SUGGESTED ANSWER4
&rtic e 1144 of the %i!i %ode re@uires that an action upon a judgment ;though $ithout distinction< must be brought $ithin 1D years from the time the right of action accrues. ,here seems no cogent reason to e=c ude foreign judgments from the operation of this ru e# subject to the re@uirements of 5u e 3A# (ec. 4> of the 5u es of %ourt $hich estab ishes certain re@uisites for pro!ing the foreign judgment. Pursuant to these pro!isions# an action for the enforcement of the foreign judgment may be brought at any time $ithin 1D years from the time the right of action accrues.
Judgment" 9;ecution ending A eal ('((')
,he tria court rendered judgment ordering the defendant to pay the p aintiff mora and e=emp ary damages. ,he judgment $as ser!ed on the p aintiff on *ctober 1# 2DD1 and on the defendant on *ctober 5# 2DD1. *n *ctober ># 2DD1# the defendant fi ed a notice of appea from the judgment# but the fo o$ing day# *ctober A# 2DD1# the p aintiff mo!ed for the e=ecution of the judgment pending appea . ,he tria court granted the motion upon the posting by the p aintiff of a bond to indemnify the defendant for damages it may suffer as a resu t of the e=ecution. ,he court ga!e as a specia reason for its order the imminent inso !ency of the defendant.
.o# p aintiff may not proper y ta7e an appea from said order because it is an inter ocutory order# not a fina and appea ab e order (Sec. 4 o! "#le 35'. -t does not dispose of the action or proceeding ;Sec. 1 o! "#le 39<. P&5,-&4 ('BB&5J /'D6B).,( are inter ocutory. ,here is sti something to be done# $hich is the tria for the adjudication of damages
(Province of Pangasinan v. Court of )$$eals, 220 SC ) 726 D&99(-; "uevarra v. Court of )$$eals, 209 Phil. 2'& D&9/(B!# but the defendant may proper y
-s the order of e=ecution pending appea correct: 8hy: ;51<

SUGGESTED ANSWER4
cha enge said order thru a specia ci!i action for certiorari. (Sec. 1 [c and las( 9ar. o! "#le 41'
Judgment" Judgment on t,e Pleadings (1999)
.o# because a$ards for mora and e=emp ary damages cannot be the subject of e=ecution pending appea . ,he e=ecution of any a$ard for mora and e=emp ary damages is dependent on the outcome of the main case. 4iabi ities for mora and e=emp ary damages# as $e as the e=act amounts remain uncertain and indefinite pending reso ution by the %ourt of &ppea s or (upreme %ourt. D CP+ v. 8antin,
&(' SC ) (9* (&9/*!; +nternational School, +nc. v. Court of )$$eals, (09 SC ) '7' (&999!B.
ALTERNATI3E ANSWER4
a< 8hat are the grounds for judgment on the p eadings: ;21<
b< &Gs &ns$er admits the materia a egations of BGs %omp aint. Bay the court mo(# 9ro9rio render judgment on the p eadings: )=p ain. ;21< c< & brought an action against her husband B for annu ment of their marriage on the ground of
Jes# because on y mora and e=emp ary damages are a$arded in the judgment and they are not dependent on other types of damages. Boreo!er# the motion for e=ecution $as fi ed $hi e the court had jurisdiction o!er the case and $as in possession of the origina record.
-t is based on good reason $hich is the imminent inso !ency of the defendant. ;5u e 3A# sec. 2<
psycho ogica incapacity# B fi ed his &ns$er to the %omp aint admitting a the a egations therein contained. Bay & mo!e for judgment on the p eadings: )=p ain. ;21<
SUGGESTED ANSWER4
a< ,he grounds for judgment on the p eadings are $here an ans$er fai s to tender an issue# or other$ise admits the materia a egations of the ad!erse partyGs p eading.
(Sec. 1% "#le 34'.
b< .o# a motion must be fi ed by the ad!erse party. (Sec. 1% "#le 34' ,he court cannot mo(# 9ro9rio render judgment on the p eadings.
c< .o# because e!en if BGs ans$er to &Gs comp aint for
annu ment of their marriage admits a the a egations therein contained# the materia facts
Remedial Law Bar Examination Q & A (1997-2006) a eged
in the comp aint must a $ays be pro!ed.

(Sec. 1 o! "#le 34.'
ANOT5ER ANSWER4
,he defendant must a!er or state positi!e y ho$ it is that he is ignorant of the facts a eged. (Phil,
)#vertising Counselors, +nc. v. evilla,
". . %o. 86(&/69, )ugust /, &97(; Sec. &0, ule /!
c. .o. ,he court sha order the prosecutor to in!estigate $hether or not a co usion bet$een the parties e=ists# and if there is no co usion# to inter!ene for the (tate in order to see to it that the e!idence submitted is not fabricated. (Sec. 3[: % "#le 9' )!idence must ha!e to be presented in accordance $ith the re@uirements set do$n by the (upreme %ourt in
e$u3lic vs. Court of )$$eals an# Molina (26/ SC ) &9/.!
Boreo!er# the genuineness and due e=ecution of the deed of sa e can on y be denied by the defendant under oath and fai ure to do so is a so an admission of the deed. (Sec. 8% "#le 8' ?ence# a judgment on the p eadings can be rendered by the court $ithout need of a tria .
Judgment" :andamus vs. Auo Barranto ('((1)
Petitioner +abian $as appointed ) ection 5egistrar of the Bunicipa ity of (e!i a supposed y to rep ace the respondent ) ection 5egistrar Pab o $ho $as transferred to another municipa ity $ithout his consent and $ho refused to accept his aforesaid transfer# much ess to !acate his position in Bogo to$n as e ection registrar# as in fact he continued to occupy his aforesaid position and e=ercise his functions thereto. Petitioner +abian then fi ed a petition for mandamus against Pab o but the tria court dismissed +abianHs petition contending that @uo $arranto is the proper remedy.
Judgment" Judgment on t,e Pleadings ('((7)
-n a comp aint for reco!ery of rea property# the p aintiff a!erred# among others# that he is the o$ner of the said property by !irtue of a deed of sa e e=ecuted by the defendant in his fa!or. %opy of the deed of sa e $as appended to the comp aint as &nne= L&L thereof.
-n his un!erified ans$er# the defendant denied the a egation concerning the sa e of the property in @uestion# as $e as the appended deed of sa e# for ac7 of 7no$ edge or information sufficient to form a be ief as to the truth thereof. -s it proper for the court to render judgment $ithout tria : )=p ain. ;41<
SUGGESTED ANSWER4
-s the court correct in its ru ing: 8hy: ;51<

SUGGESTED ANSWER4
Defendant cannot deny the sa e of the property for ac7 of 7no$ edge or information sufficient to form a be ief as to the truth thereof. ,he ans$er amounts to an admission.
Jes# the court is correct in its ru ing. Bandamus $i not ie. ,his remedy app ies on y $here petitionerHs right is founded c ear y in a$# not $hen it is doubtfu . Pab o $as transferred $ithout his consent
by the defendant of by: sirdondee@gmail.com a counterbond the $hich is tantamount to remo!a $ithoutin cause# same amount of contrary to the fundamenta guarantee on P1 non" mi ion. &fter tria # the court rendered remo!a e=cept for judgment finding continued to that the p aintiff had occupy the no cause of action disputed position against the defendant and e=ercise his and that he had functions therein# sued out the $rit of the proper remedy attachment is @uo $arranto# ma icious y. not mandamus. &ccording y# the M"arces v. Court of court dismissed the )$$eals, 2*9 SC ) 99 (&996!B comp aint and ALTERNATI3E ordered the p aintiff ANSWER4 and its surety to pay Jes# the court is joint y to the correct in its defendant P1.5 ru ing. mi ion as actua Bandamus ies damages# PD.5 $hen the mi ion as mora respondent damages and PD.5 un a$fu y mi ion as e=emp ary e=c udes another damages. from the use
summons $ith a copy of the comp aint on the defendant at his Bu acan residence# the sheriff $as to d that the defendant had gone to Bani a for business and $ou d not be bac7 unti the e!ening of that day. (o# the sheriff ser!ed the summons# together $ith a copy of the comp aint# on the defendantHs 1>"
year"o d daughter# $ho $as a co ege student. +or the defendantHs fai ure to ans$er the comp aint $ithin the reg ementary period# the tria court# on motion of the p aintiff# dec ared the defendant in defau t. & month ater# the tria court rendered judgment ho ding the defendant iab e for the entire amount prayed for in the comp aint.
and enjoyment of a right or office to $hich such other is entit ed. (Sec. 2% "#le 65'. -n this case# Pab o has not un a$fu y e=c uded +abian from the *ffice of ) ection 5egistrar. ,he remedy of +abian is to fi e an action of @uo $arranto in his name against Pab o for usurping the office. (Sec. 5%
"#le 66'
)!a uate the soundness of the judgment from the point of !ie$ of procedure. ;51<
SUGGESTED ANSWER4
,he judgment against the surety is not sound if due notice $as not gi!en to him of the app icant for damages. ("#le 57% sec. 20' Boreo!er# the judgment against the surety cannot e=ceed the amount of its counterbond of P1 mi ion.
Judgments" 9nforcement" 9;amination of 8efendant ('((')
Judgment" Soundness" Attac,ment ('((')

,he p aintiff obtained a $rit of pre iminary attachment upon a bond of P1 mi ion. ,he $rit $as e!ied on the defendantHs property# but it $as discharged upon the posting
,he p aintiff# a Bani a resident# sued the defendant# a resident of Ba o os Bu acan# in the 5,%"Bani a for a sum of money. 8hen the sheriff tried to ser!e the
&. &fter the judgment had become fina # a $rit of e=ecution $as issued by the court. &s the $rit $as returned unsatisfied# the p aintiff fi ed a motion for an order re@uiring the defendant to appear before it and to be e=amined regarding his property and income. ?o$ shou d the court reso !e the motion: ;21<
SUGGESTED ANSWER4
Page 25 of 66 by: sirdondee@gmail.com Jes. ,he Be,% did not ha!e jurisdiction o!er the case because the tota amount of the demand e=c usi!e of interest# damages of $hate!er 7ind# attorneyGs fees# itigation e=penses# and costs# $as P1B. -ts jurisdictiona amount at this time shou d not e=ceed P4DD.DDD.DD (Sec. 33 o! 6.+.
6ig. 129% as amended b- ".1. .o. 7691'.
Jurisdiction" 6abeas Cor us" Custody of :inors ('((7)

8hi e Barietta $as in her p ace of $or7 in Ba7ati %ity# her estranged husband %ar o barged into her house in Parana@ue %ity# abducted their si="year o d son# Perci!a # and brought the chi d to his hometo$n in Baguio %ity. Despite BariettaGs p eas# %ar o refused to return their chi d. Barietta# through counse # fi ed a petition for habeas corpus against %ar o in the %ourt of &ppea s in Bani a to compe him to produce their son# before the court and for her to regain custody. (he a eged in the petition that despite her efforts# she cou d no onger ocate her son. -n his comment# %ar o a eged that the petition $as erroneous y fi ed in the %ourt of &ppea s as the same shou d ha!e been fi ed in the +ami y %ourt in Baguio %ity $hich# under 5epub ic &ct .o. >36A# has e=c usi!e jurisdiction# o!er the petition. Barietta rep ied that under 5u e 1D2 of the 5u es of %ourt# as amended# the petition may be fi ed in the %ourt of &ppea s and if granted# the $rit of habeas corpus sha be enforceab e any$here in the Phi ippines. 8hose contention is correct: )=p ain. ;51<
SUGGESTED ANSWER4
,he courtGs order to for$ard the case to the 5,% is not proper. -t shou d mere y dismiss the comp aint. 'nder (ec. 3 of 5u e 16# the court may dismiss the action or c aim# deny the motion or order the amendment of the p eading but not to for$ard the case to another court.
Parties" 8eat, of a Party" 9ffect (199!)
& fi ed a comp aint for the reco!ery of o$nership of and against B $ho $as represented by her counse N. -n the course of the tria # B died. ?o$e!er# N fai ed to notify the court of BGs death. ,he court proceeded to hear the case and rendered judgment against B. &fter the /udgment became fina # a $rit of e=ecution $as issued against %# $ho being BGs so e heir# ac@uired the property. -f you $ere counse of %# $hat course of action $ou d you ta7e: 0312
SUGGESTED ANSWER4
&s counse of %# - $ou d mo!e to set aside the $rit of e=ecution and the judgment for ac7 of jurisdiction and ac7 of due process in the same court because the
(Sec. 16 o! "#le
BariettaGs contention is correct. ,he %ourt of &ppea s has concurrent jurisdiction $ith the fami y courts and the (upreme %ourt in petitions for habeas corpus $here the custody of minors is at issue# not$ithstanding the pro!ision in the +ami y %ourts &?. (".1. .o. 8369' that fami y courts ha!e e=c usi!e jurisdiction in such cases. (5hornton v. 5hornton, ". .
%o. &*'*9/, )ugust, 200'!
judgment is !oid. -f N had notified the court of BGs death# the court $ou d ha!e ordered the substitution
of the deceased by %# the so e heir of B. 3' ,he court ac@uired no jurisdiction o!er % upon $hom the tria and the judgment are not binding.
(2erreira us. +3arra =#a. #e "onAales, &0' Phil. &'(; =#a. #e la CruA vs. Court of )$$eals, // SC ) 69*; 8awas us. Court of )$$eals, &'6 SC ) &7(.! - cou d a so fi e an
Jurisdiction" 0ac@ of Jurisdiction" Pro er Action of t,e Court ('((?)

P aintiff fi ed a comp aint for a sum of money against defendant $ith the Be,%"Ba7ati# the tota amount of the demand# e=c usi!e of interest# damages of $hate!er 7ind# attorneyGs fees# itigation e=penses# and costs# being P1#DDD#DDD. -n due time# defendant fi ed a motion to dismiss the comp aint on the ground of the Be,%Gs ac7 of jurisdiction o!er the subject matter. &fter due hearing# the Be,% ;1< ru ed that the court indeed ac7ed jurisdiction o!er the subject matter of the comp aintF and ;2< ordered that the case therefore shou d be for$arded to the proper 5,% immediate y. 8as the courtGs ru ing concerning jurisdiction correct: 8as the courtGs order to for$ard the case proper: )=p ain brief y. ;51<
SUGGESTED ANSWER4
action to annu the judgment for ac7 of jurisdiction because %# as the successor of B# $as depri!ed of due process and shou d ha!e been heard before judgment.
("#le 47'
ALTERNATI3E ANSWER4
8hi e there are decisions of the (upreme %ourt $hich ho d that if the a$yer fai ed to notify the court of his c ientGs death# the court may proceed e!en $ithout substitution of heirs and the judgment is !a id and binding on the heirs of the deceased
(2loren#o vs. Colo,a, &29 SC ) (0.!, as counse of %# -
$i assai the judgment and e=ecution for ac7 of due process.

Parties" 8eat, of a Party" 9ffect (1999)
8hat is the effect of the death of a party upon a pending action: ;21<
SUGGESTED ANSWER4
1. 8hen the c aim in a pending action is pure y persona # the death of either of
the
parties e=tinguishes
the
c aim
and
the
action
is dismissed.
!dated "# Dondee
Version 1997-2006
2. 8hen the c aim is not pure y persona and is not thereby e=tinguished# the party shou d be substituted by his heirs or his e=ecutor or administrator. (Sec. 16% "#le 3'
3. -f the action is for reco!ery of money arising from contract# e=press or imp ied# and the defendant dies before entry of fina judgment in the court in $hich the action $as pending at the time of such death# it sha not be dismissed but sha instead be a o$ed to continue unti entry of fina judgment. & fa!orab e judgment obtained by the p aintiff sha be enforced in the manner pro!ided in the ru es for prosecuting c aims
Page 26 of 66 attached# stating the grounds of his tit e thereto# and ser!e such affida!it upon the sheriff $hi e the atter has possession of the attached property# and a copy
thereof upon the attaching party. (Sec. 14% "#le 57' ,he third"party c aimant may a so inter!ene or fi e a separate action to !indicate his c aim to the property in!o !ed and secure the necessary re iefs# such as pre iminary injunction# $hich $i not be considered as interference $ith a court of coordinate jurisdiction.
(9ng v. 5ating, &'9 SC ) 26*, D&9/7B!
Parties" %,ird$Party Claim ('((7)
against the estate of a deceased person.

(Sec. 20% "#le 3'
Parties" 8eat, of a Party" 9ffect (1999)
8hen & ;buyer< fai ed to pay the remaining ba ance of the contract price after it became due and demand" ab e# B ;se er< sued him for co ection before the 5,%. &fter both parties submitted their respecti!e e!idence# & perished in a p ane accident. %onse@uent y# his heirs brought an action for the sett ement of his estate and mo!ed for the dismissa of the co ection suit. 1. 8i you grant the motion: )=p ain. ;21< 2. 8i your ans$er be the same if & died $hi e the case is a ready on appea to the %ourt of &ppea s: )=p ain. ;21<
3. -n the same case# $hat is the effect if B died
& obtained a money judgment against B. &fter the fina ity of the decision# the court issued a $rit of e=ecution for the enforcement thereof. %onformab y $ith the said $rit# the sheriff e!ied upon certain properties under BGs name. % fi ed a third"party c aim o!er said properties c aiming that B had a ready transferred the same to him. & mo!ed to deny the third"party c aim and to ho d B and % joint y and se!era y iab e to him for the money judgment a eging that B had transferred said properties to % to defraud him ;&<. &fter due hearing# the court denied the third" party c aim and rendered an amended decision dec aring B and % joint y and se!era y iab e to & for the money judgment. -s the ru ing of the court correct: )=p ain. ;41<
SUGGESTED ANSWER4
before the 5,% has rendered judgment: ;21<

SUGGESTED ANSWER4
1. .o# because the action $i not be dismissed but sha instead be a o$ed to continue unti entry of fina judgment. ;-d.< 2. .o. -f & died $hi e the case $as a ready on appea in the %ourt of &ppea s# the case $i continue because there is no entry yet of fina judgment. ;-d.< 3. ,he effect is the same. ,he action $i not be dismissed but $i be a o$ed to continue unti entry of fina judgment. ;-d.<
Parties" %,ird Party Claim ('((()
.*. % has not been proper y imp eaded as a party defendant. ?e cannot be he d iab e for the judgment against & $ithout a tria . -n fact# since no bond $as fi ed by B# the sheriff is iab e to % for damages. % can fi e a separate action to enforce his third"party c aim. -t is in that suit that B can raise the ground of fraud against %. ?o$e!er# the e=ecution may proceed $here there is a finding that the c aim is fraudu ent.
(5anongan v. Sa,son, ". . %o. &'0//9, Ma. 9, 2002!
Petition for Certiorari ('((()

&B mortgaged his property to %D. &B fai ed to pay his ob igation and %D fi ed an action for forec osure of mortgage. &fter tria # the court issued an *rder granting %DHs prayer for forec osure of mortgage and ordering &B to pay %D the fu amount of the mortgage debt inc uding interest and other charges not ater than 12D days from date of receipt of the *rder. &B recei!ed the *rder on &ugust 1D# 1AAA. .o other proceeding too7 p ace thereafter. *n December 2D# 1AAA# &B tendered the fu amount adjudged by the court to %D but the atter refused to accept it on the ground that the amount $as tendered beyond the 12D"day period granted by the court. &B fi ed a motion in the same court praying that %D be directed to recei!e the amount tendered by him on the ground that the *rder does not comp y $ith the pro!isions of (ection 2# 5u e 6> of the 5u es of %ourt
/9Hs rea property is being attached by the sheriff in a ci!i action for damages against 4B. /9 c aims that he is not a party to the caseF that his property is not in!o !ed in said caseF and that he is the so e registered o$ner of said property. 'nder the 5u es of %ourt# $hat must /9 do to pre!ent the (heriff from attaching his property: ;51<
SUGGESTED ANSER4
-f the rea property has been attached# the remedy is to fi e a third"party c aim. ,he third"party c aimant shou d ma7e an affida!it of his tit e to the property
$hich gi!e &B 12D days from entry of judgment#
and
not from date of receipt of the *rder. ,he court denied his motion on the ground that the *rder had a ready become fina and can no onger be amended to conform $ith (ection 2# 5u e 6>. &ggrie!ed# &B fi es a petition for certiorari against the %ourt and %D. 8i the petition for certiorari prosper: )=p ain. ;51<
SUGGESTED ANSWER4
Page 27 of 66 judgment# e!en if the dismissa is not yet fina .

D"oleA v. 8eoni#as, &07 SC ) &/7 (&9/&!B.
Pleadings" Amendment of Com laint" By 0eave of Court ('((.)
Jes. ,he court erred in issuing an *rder granting %DHs prayer for forec osure of mortgage and ordering &B to pay %D the fu amount of the mortgage debt inc uding interest and other charges not ater than 12D days from receipt of the *rder. ,he court shou d ha!e rendered a judgment $hich is appea ab e. (ince no appea $as ta7en# the judgment became fina on &ugust 25# 1AAA# $hich is the date of entry of judgment. (Sec 2% "#le 36' ?ence# &B had up to December 24# 1AAA $ithin $hich to pay the amount due. (Sec. 2% "#le 68' ,he court gra!e y abused its discretion amounting to ac7 or e=cess of jurisdiction in denying &BHs motion praying that %D be directed to recei!e the amount tendered.
&fter an ans$er has been fi ed# can the p aintiff amend his comp aint# $ith ea!e of court# by changing entire y the nature of the action: 41
SUGGESTED ANSWER4
Jes# the present ru es a o$ amendments substantia y a tering the nature of the cause of action. (Sec. 3% "#le 10% 1977 "#les o! )i*il
+roced#re$ <eirs of Marcelino Pago3o )$$eals, 2/0 SC ) /70 D&997B!. v. Court of
,his shou d on y be true# ho$e!er# $hen the substantia change or a teration in the cause of action or defense sha ser!e the higher interests of substantia justice and pre!ent de ay and e@ua y promote the audab e objecti!e of the ru es $hich is to secure a just# speedy and ine=pensi!e disposition of e!ery action and proceeding. ;3a enEue a !. %ourt of &ppea s# 363 (%5& 77A 02DD12<.
Petition for 1elief - Action for Annulment ('((')
Bay an order denying the probate of a $i sti be o!erturned after the period to appea therefrom has apsed: 8hy: ;31<
SUGGESTED ANSWER4
Pleadings" Amendment of Com laint" By 0eave of Court" Prescri tive Period ('((()
N# an i egitimate chi d of J# ce ebrated her 1>th birthday on Bay 2# 1AA6. & month before her birthday# J died. ,he egitimate fami y of J refused to recogniEe N as an i egitimate chi d of J. &fter count ess efforts to con!ince them# N fi ed on &pri 25# 2DDD an action for recognition against O# $ife of J. &fter O fi ed her ans$er on &ugust 14# 2DDD# N fi ed a motion for ea!e to fi e an amended comp aint and a motion to admit the said amended comp aint imp eading the three ;3< egitimate chi dren of J. ,he tria court admitted the amended comp aint on &ugust 22# 2DDD. 8hat is the effect of the admission of the amended comp aint: ?as the action of N prescribed: )=p ain. ;51<
SUGGESTED ANSWER4
Jes# an order denying the probate of a $i may be o!erturned after the period to appea therefrom has apsed. & P),-,-*. +*5 5)4-)+ may be fi ed on the grounds of fraud# accident# mista7e or e=cusab e neg igence $ithin a period of si=ty ;6D< days after the petitioner earns of the judgment or fina order and not more than si= ;6< months after such judgment or fina order $as entered D ule (/, secs. & L (; Soriano v.
)si, &00 Phil. 7/* (&9*7!B.
&n &%,-*. +*5 &..'4B)., may a so be fi ed on the ground of e=trinsic fraud $ithin four ;4< years from its disco!ery# and if based on ac7 of jurisdiction# before it is barred by aches or estoppe .
("#le 47% secs. 2 7 3'
Petition for 1elief" )n/unction ('((')

& defau t judgment $as rendered by the 5,% ordering D to pay P a sum of money. ,he judgment became fina # but D fi ed a petition for re ief and obtained a $rit of pre iminary injunction staying the enforcement of the judgment. &fter hearing# the 5,% dismissed DHs petition# $hereupon P immediate y mo!ed for the e=ecution of the judgment in his fa!or. (hou d PHs motion be granted: 8hy: ;31<
SUGGESTED ANSWER4
.o. ,he action fi ed on &pri 25# 2DDD is sti $ithin the four"year prescripti!e period $hich started to run on Bay 2# 1AA6. ,he amended comp aint imp eading the three egitimate chi dren# though admitted on &ugust 22# 2DDD beyond the four"year prescripti!e period# retroacts to the date of fi ing of the origina comp aint. &mendments imp eading ne$ defendants retroact to the date of the fi ing of the comp aint because they do not constitute a ne$ cause of action.
(=erAosa v. Court of )$$eals, 299 SC ) &00 D&99/B!.
;.oteK ,he four"year period is based on &rtic e 2>5 of the %i!i %ode< ALTERNATI3E ANSWER4
PHs immediate motion for e=ecution of the judgment in his fa!or shou d be granted because the dismissa of DHs petition for re ief a so disso !es the $rit of pre iminary injunction staying the enforcement of the
'nder the 1AA7 5u es of %i!i Procedure# if an additiona defendant is imp eaded in a ater p eading# the action is commenced $ith regard to him on the date of the fi ing of such ater p eading# irrespecti!e of $hether the motion for its admission# if necessary# is denied by the court. (Sec. 5 o! "#le 1'.
Version 1997-2006
!dated "# Dondee
%onse@uent y# the action of N has prescribed $ith respect to the three ;3< egitimate chi dren of J $ho are indispensab e parties.
ANOT5ER ALTERNATI3E ANSWER4
Page 2> of 66 ,he motion to dismiss shou d be granted. /urisdiction

must be conferred by the contents of the origina comp aint. &mendments are not proper and shou d be denied $here the court has no jurisdiction o!er the origina comp aint and the purpose of the amendment is to confer jurisdiction on the court.
( osario v. Caran#ang, ". . %o. 867076, )$ril 2/, &9**!
'nder &rtic e 175 of the +ami y %ode# the action must be brought $ithin the ifetime of N if the action is based on a record of birth or an admission of fi iation in a pub ic document or a pri!ate hand$ritten instrument signed by J. -n such case# the action of N has not prescribed. ?o$e!er# if the action is based on the open and continuous possession of the status of an i egitimate chi d# the action shou d ha!e been brought during the ifetime of J. -n such case# the action of N has prescribed.
Pleadings" Amendment of Com laint" :atter of 1ig,t ('((7)
*n Bay 12# 2DD5# the p aintiff fi ed a comp aint in the 5,% of IueEon %ity for the co ection of P25D#DDD.DD. ,he defendant fi ed a motion to dismiss the comp aint on the ground that the court had no jurisdiction o!er the action since the c aimed amount of P25D#DDD.DD is $ithin the e=c usi!e jurisdiction of the Betropo itan ,ria %ourt# of IueEon %ity. Before the court cou d reso !e the motion# the p aintiff# $ithout ea!e of court# amended his comp aint to a ege a ne$ cause of action consisting in the inc usion of an additiona amount of P2DD#DDD.DD# thereby increasing his tota c aim to P45D#DDD.DDD. ,he p aintiff thereafter fi ed his opposition to the motion to dismiss# c aiming that the 5,% had jurisdiction# o!er his action.
8hi e a p aintiff is entit ed to amend the comp aint before a responsi!e p eading is ser!ed (Sec. 2% "#le
10% 1997 "#les o! )i*il +roced#re ; Sales e,ington +n#ustrial
Cor$oration v. Court of )$$eals, ". . %o. &((6*7, Ma. 29, 2002'% sti # a comp aint cannot be amended
to confer jurisdiction on a court $here there $as none to begin $ith.

Pleadings" Amendment of Com laint" %o Conform 2C 9vidence ('((?)
During tria # p aintiff $as ab e to present# $ithout objection on the part of defendant in an ejectment case# e!idence sho$ing that p aintiff ser!ed on defendant a $ritten demand to !acate the subject property before the commencement of the suit# a matter not a eged or other$ise set forth in the p eadings on fi e. Bay the corresponding p eading sti be amended to conform to the e!idence: )=p ain. ;51<
SUGGESTED ANSWER4
5u e on the motion of the defendant $ith reasons. ;41<

SUGGESTED ANSWER4
,he motion to dismiss shou d be denied. Basic is the ru e that a motion to dismiss is not a responsi!e p eading. Under the Rules, a pleader may amend his pleading as a matter of right before the other party has served his responsive pleading. (Sec. 2% "#le 10% "#les o! )o#r(' ,he court# in a o$ing the amendment# $ou d not be acting $ithout jurisdiction because a o$ing an amendment as a matter of right does not re@uire the e=ercise of discretion. ,he court therefore $ou d not be LactingL and thus# cou d not ha!e acted $ithout jurisdiction. -t $ou d ha!e been different had the amendments been made after a responsi!e p eading had been ser!ed. ,he court then $ou d ha!e been e=ercising its discretion in a o$ing or disa o$ing the amendment. -t cannot do so ho$e!er# because it $ou d be then acting on an amendment of a comp aint o!er $hich it has no jurisdiction. (Sole#a# v. Ma,angun, ". . %o. 86&79/(,
Ma. (0, &96(; "u,a3a. v. Baralin, ". . %o. 86 (06/(, Ma. (&, &977; Pru#ence ealt. v. C), ". . %o. &&027', March 2&, &99'!
ALTERNATI3E ANSWER4
Jes. ,he corresponding p eading may sti be amended to conform to the e!idence# because the $ritten demand to !acate# made prior to the commencement of the ejectment suit# $as presented by the p aintiff in e!idence $ithout objection on the part of the defendant. )!en if the demand to !acate $as jurisdictiona # sti # the amendment proposed $as to conform to the e!idence that $as a ready in the record and not to confer jurisdiction on the court# $hich is not a o$ed. +ai ure to amend# ho$e!er# does not affect the resu t of the tria on these issues. ;(ec. 5 of 5u e 1D<.
&4,)5.&,-3) &.(8)5K
-t depends. -n forcib e entry# the motion may be a o$ed at the discretion of the court# the demand ha!ing been presented at the tria $ithout objection on the part of the defendant. -n un a$fu detainer# ho$e!er# the demand to !acate is jurisdictiona and since the court did not ac@uire jurisdiction from the !ery beginning# the motion to conform to the e!idence cannot be entertained. ,he amendment cannot be a o$ed because it $i in effect confer jurisdiction $hen there is other$ise no jurisdiction.
Pleadings" Ans2er" 8efense" S ecific 8enial ('((?)

-n his comp aint for forec osure of mortgage to $hich $as du y attached a copy of the mortgage deed# p aintiff PP a eged inter a ia as fo o$sK ;1< that
defendant DD du y e=ecuted
the mortgage
deed#
Remedial Law Bar Examination Q & A (1997-2006) copy
ground that he is not a proper party to the case#
of $hich is &nne= L&L of the comp aint and made an integra part thereofF and ;2< that to prosecute his comp aint# p aintiff contracted a a$yer# %%# for a fee of P5D.DDD. -n his ans$er# defendant a eged# inter a ia# that he had no 7no$ edge of the mortgage deed# and he a so denied any iabi ity for p aintiffs contracting $ith a a$yer for a fee.
Does defendantGs ans$er as to p aintiffHs a egation no. 1 as $e as no. 2 sufficient y raise an issue of fact: 5eason brief y. ;51<
SUGGESTED ANSWER4
&s to p aintiffs a egation no. 1# defendant does not sufficient y raise an issue of fact# because he cannot a ege ac7 of 7no$ edge of the mortgage deed since he shou d ha!e persona 7no$ edge as to $hether he signed it or not and because he did not deny under oath the genuineness and due e=ecution of the mortgage deed# $hich is an actionab e document. &s to p aintiffHs a egation no. 2# defendant did not proper y deny iabi ity as to p aintiffs contracting $ith a a$yer for a fee. ?e did not e!en deny for ac7 of 7no$ edge. (Sec. 10 o! "#le 8'.
Pleadings" Certification Against &orum S,o
ing ('((()
&s counse for &# B# % and D# &tty. NJ prepared a comp aint for reco!ery of possession of a parce of and against O. Before fi ing the comp aint# NJ disco!ered that his c ients $ere not a!ai ab e to sign the certification of non"forum shopping. ,o a!oid further de ays in the fi ing of the comp aint# NJ signed the certification and immediate y fi ed the comp aint in court. -s NJ justified in signing the certification: 8hy: ;51<
SUGGESTED ANSWER4
.*# counse cannot sign the anti"forum shopping certification because it must be e=ecuted by the Pp aintiff or principa partyQ himse f (Sec. *,
ule 7; 47cor$iAo v. :niversit. of Baguio, (06 SC ) '97, D&999B!# since the ru e re@uires persona 7no$ edge
by the party e=ecuting the certification# '.4)(( counse gi!es a good reason $hy he is not ab e to secure his c ientsH signatures and sho$s that his c ients $i be depri!ed of substantia justice
(9rtiA v. Court of )$$eals, 299 SC ) 70/, D&99/B!
or un ess he is authoriEed to sign it by his c ients through a specia po$er of attorney. Pleadings" Counterclaim against t,e Counsel of t,e Plaintiff ('((?)
PN fi ed a suit for damages against DJ. -n his ans$er# DJ incorporated a counterc aim for damages against PN and &%# counse for p aintiff in said suit# a eging in said counterc aim# inter a ia# that &%# as such counse # ma icious y induced PN to bring the suit against DJ despite &%Gs 7no$ edge of its utter ac7 of factua and ega basis. -n due time# &% fi ed a motion to dismiss the counterc aim as against him on the
Page 2A of 66 by: sirdondee@gmail.com he being mere y p aintiffs counse . -s the counterc aim of DJ compu sory or not: (hou d &%Gs motion to dismiss the counterc aim be granted or not: 5eason. ;51<
SUGGESTED ANSWER4
a$yer fi es a case for a c ient# he shou d not be sued on a counterc aim in the !ery same case he has fi ed as counse . -t shou d be fi ed in a separate and distinct ci!i action. (ChaveA v. San#igan3a.an, &9(
SC ) 2/2
D&99&B!
Jes. ,he counterc aim of DJ is compu sory because it is one $hich arises out of or is connected $ith the transaction or occurrence constituting the subject matter of the opposing partyGs c aim and does not re@uire for its adjudication the presence of third parties of $hom the court cannot ac@uire jurisdiction.(Sec. 7 o! "#le 6'. ,he motion to dismiss of p aintiffs counse shou d not be granted because bringing in p aintiffs counse as a defendant in the counterc aim is authoriEed by the 5u es. 8here it is re@uired for the grant of comp ete re ief in the determination of the counterc aim# the court sha order the defendantGs counse to be brought in since jurisdiction o!er him can be obtained. (Sec. &2
of ule 6; )urelio v. Court of )$$eals, &96 SC ) 67' D&99'B!. ?ere# the counterc aim $as
Pleadings" :otions" Bill of Particulars ('((.)
1. 8hen can a bi of particu ars be a!ai ed of:

2. 8hat is the effect of non"comp iance $ith the
order of a bi of particu ars: 41

SUGGESTED ANSWER4
1. Before responding to a p eading# a party may mo!e for a bi or particu ars of any matter $hich is not a!erred $ith sufficient definiteness or particu arity to enab e him proper y to prepare his responsi!e p eading. -f the p eading is a rep y# the motion must be fi ed $ithin ten ;1D< days from ser!ice thereof. (Sec. 1 o! "#le 12'
2. -f the order is not comp ied $ith# the court may order the stri7ing out of the p eading or the portions thereof to $hich the order $as directed or ma7e such other order as it deems just. (Sec. 4 o! "#le 12'
Pleadings" 1e ly" 9ffect of =on$&iling of 1e ly ('((()
N fi es a comp aint in the 5,% for the reco!ery of a sum of money $ith damages against J. J fi es his ans$er denying iabi ity under the contract of sa e and praying for the dismissa of the comp aint on the ground of ac7 of cause of action because the contract of sa e $as superseded by a contract of ease#
against both the p aintiff and his a$yer $ho a eged y ma icious y induced the p aintiff to fi e the suit.
ALTERNATI3E ANSWER4
,he counterc aim shou d be dismissed because it is not a compu sory counterc aim. 8hen a
Page 3D of 66
e=ecuted and signed by N and J t$o $ee7s after the contract of sa e $as e=ecuted. ,he contract of ease $as attached to the ans$er. N does not fi e a rep y. 8hat is the effect of the non" fi ing of a rep y: )=p ain. ;31<
SUGGESTED ANSWER4
Provisional 1emedies" Attac,ment (1999)
-n a case# the property of an incompetent under guardianship $as in custodia egis. %an it be attached: )=p ain. ;21<
SUGGESTED ANSWER4
& rep y is genera y optiona . -f it is not fi ed# the ne$ matters a eged in the ans$er are deemed contro!erted. (Sec. 10 o! "#le 6'. ?o$e!er# since the contract of ease attached to the ans$er is the basis of the defense# by not fi ing a rep y denying under oath the genuineness and due e=ecution of said contract# the p aintiff is deemed to ha!e admitted the genuineness and due e=ecution thereof. (Secs. 7 an# /
ule /; 5ori3io v. Bi#in, &(2 SC ) &62 D&9/*B!.
& though the property of an incompetent under guardianship is in custodia egis# it may be attached as in fact it is pro!ided that in such case# a copy of the $rit of attachment sha be fi ed $ith the proper court and notice of the attachment ser!ed upon the custodian of such property. (Sec. 7% las( 9ar.% "#le 57'
Provisional 1emedies" Attac,ment (1999)
Pre/udicial Auestion" Performance ('((()
9/ectment
vs.
S ecific
Bay damages be c aimed by a party prejudiced by a $rongfu attachment e!en if the judgment is ad!erse to him: )=p ain. ;21<
SUGGESTED ANSWER4
BB fi es a comp aint for ejectment in the B,%on the ground of non"payment of renta s against //. &fter t$o days# // fi es in the 5,% a comp aint against BB for specific performance to enforce the option to purchase the parce of and subject of the ejectment case. 8hat is the effect of //Hs action on BBHs comp aint: )=p ain. ;51<
SUGGESTED ANSWER4
Jes# damages may be c aimed by a party prejudiced by a $rongfu attachment e!en if the judgment is ad!erse to him. ,his is authoriEed by the 5u es. & c aim# for damages may be made on account of improper# irregu ar or e=cessi!e attachment# $hich sha be heard $ith notice to the ad!erse party and his surety or sureties. (Sec. 20, ule *7; -avellana v. 0. 9.
PlaAa 4nter$rises +nc., (2 SC ) 2/&.!
,here is no effect. ,he ejectment case in!o !es possession de facto on y. ,he action to enforce the option to purchase $i not suspend the action of ejectment for non"payment of renta s. (Iill,an )uto
Su$$l. Cor$. v. Court of )$$eals, 20/ SC ) &0/ D&992B!.
Provisional 1emedies" Attac,ment ('((1)
Bay a $rit of pre iminary attachment be issued e=" parte: Brief y state the reason;s< for your ans$er. ;31<
SUGGESTED ANSWER4
Pre$%rial" 1e<uirements ('((1)
4i io fi ed a comp aint in the Bunicipa ,ria %ourt of 4anuEa for the reco!ery of a sum against /uan. ,he atter fi ed his ans$er to the comp aint ser!ing a copy thereof on 4i io. &fter the fi ing of the ans$er of /uan# $hose duty is it to ha!e the case set for pre"tria : 8hy: ;51<
SUGGESTED ANSWER4
Jes# an order of attachment may be issued e="parte
(Sec. 2 o! "#le
&fter the fi ing of the ans$er of /uan# the P4&-.,-++ has the duty to prompt y mo!e e= parte that the case be set for pre"tria . (Sec. 1% "#le18'. ,he reason is that it is the p aintiff $ho 7no$s $hen the ast p eading has been fi ed and it is the p aintiff $ho has the duty to prosecute.
ALTERNATI3E ANSWER4
or upon motion $ith notice and hearing. 57' ,he reason $hy the order may be issued e= parte isK that re@uiring notice to the ad!erse party and a hearing $ou d defeat the purpose of the pro!isiona remedy and enab e the ad!erse party to abscond or dispose of his property before a $rit of attachment issues. (Min#anao Savings an# 8oan
)ssociation, +nc. v.
Court of )$$eals, &72 SC ) '/0!.
Provisional 1emedies" Attac,ment ('((7)

9aty fi ed an action against ,yrone for co ection of the sum of P1 Bi ion in the 5,%# $ith an e="parte app ication for a $rit of pre iminary attachment. 'pon posting of an attachment bond# the court granted the app ication and issued a $rit of pre iminary attachment. &pprehensi!e that ,yrone might $ithdra$ his sa!ings deposit $ith the ban7# the sheriff immediate y ser!ed a notice of garnishment on the ban7 to imp ement the $rit of pre iminary attachment. ,he fo o$ing day# the sheriff proceeded to ,yroneGs house and ser!ed him the summons# $ith copies of the comp aint containing the app ication for $rit of pre iminary attachment# 9atyGs affida!it# order of attachment# $rit of pre iminary attachment and attachment bond.
-n the e!ent the p aintiff fi es a rep y# his duty to mo!e that the case be set for pre"tria arises after the rep y has been ser!ed and fi ed.
Provisional 1emedies (1999)
8hat are the pro!isiona remedies under the ru es: ;21<

SUGGESTED ANSWER4
,he pro!isiona remedies under the ru es are pre iminary attachment# pre iminary injunction# recei!ership# rep e!in# and support pendente ite. ("#les 57 (o 61% "#les o! )o#r('.
8ithin fifteen ;15< days from ser!ice of the summons# ,yrone fi ed a motion to dismiss
and to
ser!e as a ground for reso !ing the impro!ident issuance of the $rit# because this matter de !es into the merits of the case# and re@uires fu " b o$n tria . Payment# ho$e!er# ser!es as a ground for a motion to dismiss.
Provisional 1emedies" Attac,ment vs. 3arnis,ment (1999)
Distinguish attachment from garnishment. ;21<

SUGGESTED ANSWER4
&ttachment and garnishment are distinguished from each other as fo o$sK &,,&%?B)., is a pro!isiona remedy that effects a e!y on property of a party as security for the satisfaction of any judgment that
304 [1917 '. (;adarang *. San(amaria% 37 +3il.
may be reco!ered# $hi e 6&5.-(?B)., is a e!y on debts due the judgment ob igor or defendant and other credits# inc uding ban7 deposits# roya ties and other persona property not capab e of manua de i!ery under a $rit of e=ecution or a $rit of attachment.
Provisional 1emedies" )n/unction ('((1)
Bay a $rit of pre iminary injunction be issued e=" parte: 8hy: ;31<
SUGGESTED ANSWER4
"#le 57'
disso !e the $rit of pre iminary attachment on the fo o$ing groundsK ;i< the court did not ac@uire jurisdiction o!er his person because the $rit $as ser!ed ahead of the summonsF ;ii< the $rit $as improper y imp ementedF and ;iii< said $rit $as impro!ident y issued because the ob igation in @uestion $as a ready fu y paid. 5eso !e the motion $ith reasons. ;41<
SUGGESTED ANSWER4
.o# a $rit of pre iminary injunction may not be issued e= parte. &s pro!ided in the 5u es# no pre iminary injunction sha be granted $ithout hearing and prior notice to the party or person sought to be enjoined. (Sec. 5 o! "#le 58' ,he reason is that a
,he motion to dismiss and to disso !e the $rit of pre iminary attachment shou d be denied.
;1< ,he fact that the $rit of attachment $as ser!ed ahead of the summons did not affect the jurisdiction of the court o!er his person. -t ma7es the $rit# unenforceab e. (Sec. 5% "#le. 57' ?o$e!er# a that is needed to be done is to re"ser!e the $rit. (9nate v.
)3rogar, "M. %o. &97(9(, 2e3ruar. 2(, &9/*!
"#les o! )i*il +roced#re'
(Sec. 4% "#le 58 1997
;2< ,he $rit $as improper y imp emented. (er!ing a notice of garnishment# particu ar y before summons is ser!ed# is not proper. -t shou d be a copy of the $rit of attachment that shou d be ser!ed on the defendant# and a notice that the ban7 deposits are attached pursuant to the $rit.
(Sec. 7[d % "#le 57'
;3< ,he $rit $as impro!ident y issued if indeed it can be

sho$n that the ob igation $as a ready fu y paid. ,he $rit is on y anci ary to the main action. (Sec. 13% ,he a eged payment of the account cannot#
Page 31 of 66 pre iminary injunction may cause gra!e and irreparab e injury to the party enjoined.
Provisional 1emedies" )n/unction ('((.)
b. 8hi e a fina $rit of injunction may be rendered by judgment after tria # sho$ing app icant to be entit ed to the $rit (Sec. 9% "#le 58 1997 "#les o! )i*il
+roced#re'.
%an a suit for injunction be apt y fi ed $ith the (upreme %ourt to stop the President of the Phi ippines from entering into a peace agreement $ith the .ationa Democratic +ront: ;41<
SUGGESTED ANSWER4
.o# a suit for injunction cannot apt y be fi ed $ith the (upreme %ourt to stop the President of the Phi ippines from entering into a peace agreement $ith the .ationa Democratic +ront# $hich is a
pure y po itica @uestion.

,he President of the Phi ippines is
immune from suit.

Provisional 1emedies" )n/unctions" Ancillary 1emedy vs. :ain Action ('((+)
Distinguish bet$een injunction as an anci ary remedy and injunction as a main action. ;2.51<
SUGGESTED ANSWER4
-njunction as an anci ary remedy refers to the pre iminary injunction $hich re@uires the e=istence of a pending principa caseF $hi e injunction as a main action refers to the principa case itse f that prays for the remedy of permanent y restraining the ad!erse party from doing or not doing the act comp ained of.
Provisional 1emedies" )n/unctions" )ssuance 2Cout Bond ('((+)
Bay a 5egiona ,ria %ourt issue injunction $ithout bond: ;21<

SUGGESTED ANSWER4
Jes# if the injunction that is issued is a fina injunction. 6enera y# ho$e!er# pre iminary injunction cannot issue $ithout bond un ess e=empted by the tria court (Sec. 4[b o! "#le 58'.
Provisional 1emedies" )n/unctions" 1e<uisites ('((+)

8hat are the re@uisites for the issuance of ;a< a $rit of pre iminary injunctionF and ;b< a fina $rit of
injunction: 5e@uisites for the issuance of aK

SUGGESTED ANSWER4
a.
8rit of Pre iminary -njunction
are R ;1< & !erified comp aint sho$ingF ;2< ,he e=istence of a right in esseF ;3< 3io ation or threat of !io ation of such rightF ;4< Damages or injuries sustained or that $i be sus" tained by reason of such !io ationF ;5< .otice to a parties of raff e and of hearingF ;6< ?earing on the app icationF ;7< +i ing of an appropriate bond and ser!ice thereof.
SUGGESTED ANSWER4
inc udes support for the offspring as a conse@uence of the crime and the ci!i aspect thereof has not been
Provisional 1emedies" 1eceivers,i ('((1)

/oa@uin fi ed a comp aint against /ose for the forec osure of a mortgage of a furniture factory $ith a arge number of machinery and e@uipment. During the pendency of the forec osure suit# /oa@uin earned from re iab e sources that /ose $as @uiet y and gradua y disposing of some of his machinery and e@uipment to a businessman friend $ho $as a so engaged in furniture manufacturing such that from confirmed reports /oa@uin gathered# the machinery and e@uipment eft $ith /ose $ere no onger sufficient to ans$er for the atterHs mortgage indebtedness. -n the meantime judgment $as rendered by the court in fa!or of /oa@uin but the same is not yet fina .
9no$ing $hat /ose has been doing. -f you $ere /oa@uinHs a$yer# $hat action $ou d you ta7e to preser!e $hate!er remaining machinery and e@uipment are eft $ith /ose: 8hy: ;51<
SUGGESTED ANSWER4
,o preser!e $hate!er remaining machinery and e@uipment are eft $ith /ose# /oa@uinHs a$yer shou d fi e a !erified app ication for the appointment by the court of one or more recei!ers. ,he 5u es pro!ide that recei!ership is proper in an action by the mortgagee for the forec osure of a mortgage $hen it appears that the property is in danger of being $asted or dissipated or materia y injured and that its !a ue is probab y insufficient to discharge the mortgage debt.
(Sec. 1 o! "#le 59'.
Provisional 1emedies" 1e levin (1999)
8hat is 5ep e!in: ;21<

SUGGESTED ANSWER4
5ep e!in or de i!ery of persona property consists in the de i!ery# by order of the court# of persona property by the defendant to the p aintiff# upon the fi ing of a bond. (Calo v. ol#an, 76 Phil. ''* D&9'6B!
Provisional 1emedies" Su
ort Pendente 0ite (1999) Before the 5,%# & $as charged $ith rape of his 16" year o d daughter. During the pendency of the case# the daughter ga!e birth to a chi d a eged y as a conse@uence of the rape. ,hereafter# she as7ed the accused to support the chi d# and $hen he refused# the former fi ed a petition for support pendente ite. ,he accused# ho$e!er# insists that he cannot be made to gi!e such support arguing that there is as yet no finding as to his gui t. 8ou d you agree $ith the tria court if it denied the app ication for support pendente ite: )=p ain. ;21<
SUGGESTED ANSWER4
.o. ,he pro!isiona remedy of support pendente ite may be granted by the 5,% in the crimina action for rape. -n crimina actions $here the ci!i iabi ity
Page 32 of 66 $ai!ed# reser!ed or instituted prior to its fi ing# the accused may be ordered to pro!ide support pendente ite to the chi d born to the offended party a eged y because of the crime. (Sec. 6 o! "#le 61.'
Provisional 1emedies" Su ort Pendente 0ite ('((1)
Bodesto $as accused of seduction by 3irginia# a poor# unemp oyed young gir # $ho has a chi d by Bodesto. 3irginia $as in dire need of pecuniary assistance to 7eep her chi d# not to say of herse f# a i!e. ,he crimina case is sti pending in court and a though the ci!i iabi ity aspect of the crime has not been $ai!ed or reser!ed for a separate ci!i action# the tria for the case $as foreseen to ta7e t$o ong years because of the hea!i y c ogged court ca endar before the judgment may be rendered.
61'
Provisional 1emedies" %1* ('((1)

&n app ication for a $rit of pre iminary injunction $ith a prayer for a temporary restraining order is inc uded in a comp aint and fi ed in a mu ti"sa a 5,% consisting of Branches 1#2#3 and 4. Being urgent in nature# the )=ecuti!e /udge# $ho $as sitting in Branch 1# upon the fi ing of the aforesaid app ication immediate y raff ed the case in the presence of the judges of Branches 2#3 and 4. ,he case $as raff ed to Branch 4 and judge thereof immediate y issued a temporary restraining order.
-s the temporary restraining order !a id: 8hy: ;51<

SUGGESTED ANSWER4
-f you $ere the a$yer of 3irginia# $hat action shou d you ta7e to he p 3irginia in the meantime especia y $ith the prob em of feeding the chi d: ;51<
SUGGESTED ANSWER4
,o he p 3irginia in the meantime# her a$yer shou d app y for S#99or( +enden(e /i(e as pro!ided in the 5u es. -n crimina actions $here the ci!i iabi ity inc uded support for the offspring as a conse@uence of the crime and the ci!i aspect thereof has not been $ai!ed or reser!ed for a separate ci!i action# the accused may be ordered to pro!ide support pendent e ite to the chi d born to the offended party. (Sec. 6 o! "#le
.o. -t is on y the )=ecuti!e /udge $ho can issue immediate y a temporary restraining order effecti!e on y for se!enty"t$o ;72< hours from issuance. .o other /udge has the right or po$er to issue a temporary restraining order e= parte. ,he /udge to $hom the case is assigned $i then conduct a summary hearing to determine $hether the temporary restraining order sha be e=tended# but in no case beyond 2D days# inc uding the origina 72" hour period. (Sec. 5 o! "#le 58'
ALTERNATI3E ANSWER4
,he temporary restraining order is not !a id because the @uestion does not state that the matter is of e=treme urgency and the app icant $i suffer gra!e injustice and irreparab e injury.
(Sec. 5 o! "#le 58'
Provisional 1emedies" %1* ('((+)
2DDD# rea iEing that the Botion ac7ed a notice of hearing# (,Hs counse fi ed a supp ementa p eading.
Define a temporary restraining order ;,5*<. ;21<

SUGGESTED ANSWER4
& temporary restraining order is an order issued to restrain the opposite party and to maintain the status @uo unti a hearing for determining the propriety of granting a pre iminary injunction
(Sec. 4[c +roced#re'. and [d % "#le 58%1997 "#les o! )i*il
Provisional 1emedies" %1* vs. Status Auo *rder ('((+)
Differentiate a ,5* from a status @uo order. ;21<

SUGGESTED ANSWER4
& status @uo order ;(I*< 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 injuncti!e re ief. & ,5* is on y good for 2D days if issued by the 5,%F 6D days if issued by the %&F unti further notice if issued by the (%. ,he (I* is $ithout any prescripti!e period and may be issued $ithout a bond. & ,5* dies a natura death after the a o$ab e periodF the (I* does not. & ,5* is pro!isiona . (I* asts unti re!o7ed. & ,5* is not e=tendib e# but the (I* may be subject to agreement of the parties.
Provisional 1emedies" %1*" CA Justice 8e t. ('((+)
Bay a justice of a Di!ision of the %ourt of &ppea s issue a ,5*: ;21<

SUGGESTED ANSWER4
Jes# a justice of a di!ision of the %ourt of &ppea s may issue a ,5*# as authoriEed under 5u e 5> and by (ection 5# 5u e -3 of the -5%& $hich additiona y re@uires that the action sha be submitted on the ne=t $or7ing day to the absent members of the di!ision for the ratification# modification or reca (<eirs of the
late -ustice -ose B.8. e.es v. Court of )$$eals, ". . %os. &(*'2*626, %ove,3er &', 2000!.
Provisional 1emedies" %1*" 8uration ('((+)
8hat is the duration of a ,5* issued by the )=ecuti!e /udge of a 5egiona ,ria %ourt: ;21<
SUGGESTED ANSWER4
-n cases of e=treme urgency# $hen the app icant $i suffer gra!e injustice and irreparab e injury# the duration of a ,5* issued e= parte by an )=ecuti!e /udge of a 5egiona ,ria %ourt is 72 hours (2nd 9ar. o! Sec. 5% "#le 58 1997 "#les o! )i*il +roced#re'. -n the e=ercise of his regu ar functions o!er cases assigned to his sa a# an )=ecuti!e /udge may issue a ,5* for a duration not e=ceeding a tota of 2D days.
1eglementary Period" Su lemental Pleadings ('((()
,he 5,% rendered judgment against (,# copy of $hich $as recei!ed by his counse on +ebruary 2># 2DDD. *n Barch 1D# 2DDD# (,# through counse # fi ed a motion for reconsideration of the decision $ith notice to the % er7 of %ourt submitting the motion for the consideration of the court. *n Barch 15#
Page 33 of
to appea to the (upreme %ourt. ;31<

SUGGESTED ANSWER4
66
8as the motion for 5econsideration fi ed $ithin the reg ementary period: )=p ain. ;51<
SUGGESTED ANSWER4
&. ,he modes of appea to the (upreme %ourt areK ;a<

&PP)&4 BJ %)5,-*5&5- on pure @uestions of a$ under 5u e 45 through a petition for re!ie$ on certiorariF and ;b< *5D-.&5J &PP)&4 in crimina cases through a notice of appea from con!ictions imposing rec usion perpetua or ife imprisonment or $here a esser pena ty is in!o !ed but for offenses committed on the same occasion or $hich arose out of the same occurrence that ga!e rise to the more serious offense. ("#le 122% sec. 3' %on!ictions imposing the death pena ty are e e!ated through automatic re!ie$.
Jes# because the ast day of fi ing a motion for reconsideration $as Barch 15 if +ebruary had 2> days or Barch 16 if +ebruary had 2A days. & though the origina motion for reconsideration $as defecti!e because it ac7ed a notice of hearing# the defect $as cured on time by its fi ing on Barch 15 of a supp ementa p eading# pro!ided that motion $as set for hearing and ser!ed on the ad!erse party at east three ;3< days before the date of hearing. (Sec. 4% "#le 15'.
ALTERNATI3E ANSWER4
(ince the supp ementa p eading $as not set for hearing# it did not cure the defect of the origina motion.
1emedies" A eal to SC" A eals to CA ('((') a< 8hat are the modes of appea to the (upreme %ourt: ;21<
b< %omment on a proposa to amend 5u e 122# (ection 2;b<# in re ation to (ection 3;c<# of the 5e!ised 5u es of %rimina Procedure to pro!ide for appea to the %ourt of &ppea s from the decisions of the 5,% in crimina cases# $here the pena ty imposed is rec usion perpetua or ife imprisonment# subject to the right of the accused
B. ,here is no constitutiona objection to pro!iding in the 5u es of %ourt for an appea to the %ourt of &ppea s from the decisions of the 5,% in crimina cases $here the pena ty imposed is rec usion perpetua or ife imprisonment subject to the right of the accused to appea to the (upreme %ourt# because it does not depri!e the (upreme %ourt of the right to e=ercise u timate re!ie$ of the judgments in such cases.
1emedies" A eal" 1%C to CA (1999) a. 8hen is an appea from the 5,% to the %ourt of &ppea s deemed perfected: ;21S
b. NNN recei!ed a copy of the 5,% decision on /une A# 1AAAF JJJ recei!ed it on the ne=t day# /une 1D# 1AAA. NNN fi ed a .otice of &ppea on /une 15# 1AAA. ,he parties entered into a compromise on
/une 16# 1AAA. *n /une 13# 1AAA# JJJ# $ho did not appea # fi ed $ith the 5,% a motion for appro!a of the %ompromise &greement. NNN changed his mind and opposed the motion on the ground that the 5,% has no more jurisdiction. 5u e on the motion assuming that the records ha!e not yet been for$arded to the %&. ;21<
SUGGESTED ANSWER4
Page 34 of 66 there is no appea nor any p ain# speedy and ade@uate

remedy in the ordinary course of a$# to be fi ed $ithin si=ty ;6D< days from notice of the judgment# ;(ecs. order or reso ution subject of the petition. 1 and 4.<
ADDITIONAL ANSWER4
a. &n appea from the 5,% to the %ourt of &ppea s is deemed perfected as to the appe ant upon the fi ing of a notice of appea in the 5,% in due time or $ithin the reg ementary period of appea . &n appea by record on appea is deemed perfected as to the appe ant $ith respect to the subject matter thereof upon the appro!a of the record on appea fi ed in due time. (Sec. 9% "#le 41'
b. ,he contention of NNN that the 5,% has no more jurisdiction o!er the case is not correct because at the time that the motion to appro!e the compromise had been fi ed# the period of appea of JJJ had not yet e=pired. Besides# e!en if that period had a ready e=pired# the records of the case had not yet been for$arded to the %ourt of &ppea s. ,he ru es pro!ide that in appea s by notice of appea # the court oses jurisdiction o!er the case upon the perfection of the appea s fi ed in due time and the
1< -n appea by certiorari under 5u e 45# the petitioner and respondent are the origina parties to the action and the o$er court is not imp eaded. -n certiorari# under 5u e 65# the o$er court is imp eaded.
2< -n appea by certiorari# the fi ing of a motion for reconsideration is not re@uired# $hi e in the specia ci!i action of certiorari# such a motion is genera y re@uired.
SUGGESTED ANSWER4
e=piration of the time to appea of the other parties.

(Sec. 9% (3ird 9ar.% "#le 41'
b. .*# because as a genera ru e# certiorari is proper if there is no appea (Sec. 1 o! "#le 65.' ?o$e!er# if appea is not a speedy and ade@uate remedy# certiorari may be resorted to. (4chaus v. Court of )$$eals, &99 SC ) (/&.! %ertiorari is sanctioned# e!en if appea is a!ai ab e# on the basis of a patent# capricious and $himsica e=ercise of discretion by a tria judge as $hen an appea $i not prompt y re ie!e petitioner from the injurious effects of the disputed order
(=as>ueA vs. o3illa6)lenio, 27& SC ) 67!
,he ru es a so pro!ide that prior to the transmitta of the record# the court may# among others# appro!e compromises. (Sec. 9% !i!(3 9ar.% "#le 41' ;.oteK /une 13# the date of the fi ing of the motion for appro!a of the %ompromise &greement# appears to be a c erica error<
1emedies" A eal" 1ule ?7 vs. 1ule +7 (1999)
1emedies" 5oid 8ecision" Pro er 1emedy ('((?)

&fter p aintiff in an ordinary ci!i action before the 5,%F OO has comp eted presentation of his e!idence# defendant $ithout prior ea!e of court mo!ed for dismissa of p aintiffs comp aint for insufficiency of p aintiffHs e!idence. &fter due hearing of the motion and the opposition thereto# the court issued an order# reading as fo o$sK ,he %ourt hereby grants defendantGs motion to dismiss and according y orders the dismissa of p aintiffHs comp aint# $ith the costs ta=ed against him. -t is so ordered.L -s the order of dismissa !a id: Bay p aintiff proper y ta7e an appea : 5eason. ;51<
SUGGESTED ANSWER4
a< Distinguish a petition for certiorari as a mode of appea from a specia ci!i action for certiorari. ;21<
b< Bay a party resort to certiorari $hen appea is
sti a!ai ab e: )=p ain. ;21<

SUGGESTED ANSWER4
a. & P),-,-*. +*5 5)3-)8 *. %)5,-*5&5- as a mode of appea may be distinguished from a specia ci!i action for certiorari in that the petition for certiorari as a mode of appea is go!erned by 5u e 45 and is fi ed from a judgment or fina order of the 5,%# the (andiganbayan or the %ourt of &ppea s# $ithin fifteen ;15< days from notice of the judgment appea ed from or of the denia of the motion for ne$ tria or reconsideration fi ed in due time on @uestions of a$ on y (Secs. 1 and 2'F (P)%-&4 %-3-4 &%,-*. +*5 %)5,-*5&5- is go!erned by 5u e 65 and is fi ed to annu or modify judgments# orders or reso utions rendered or issued $ithout or in e=cess of jurisdiction or $ith gra!e abuse of discretion tantamount to ac7 or e=cess of jurisdiction# $hen
,he order or decision is !oid because it does not state findings of fact and of a$# as re@uired by (ec. 14# &rtic e 3--- of the %onstitution and (ec. 1# 5u e 36. Being !oid# appea is not a!ai ab e. ,he proper remedy is certiorari under 5u e 65.
ANOT5ER ANSWER4
)ither certiorari or ordinary appea may be resorted to on the ground that the judgment is !oid. &ppea # in fact# may be the more e=pedient remedy.
ALTERNATI3E ANSWER4
Jes. ,he order of dismissa for insufficiency of the p aintiffs e!idence is !a id upon defendantGs motion to dismiss e!en $ithout prior ea!e of
court. (Sec. 1 o! "#le 33'.

Jes# p aintiff may proper y ta7e an appea because the dismissa of the comp aint is a fina and appea ab e order. ?o$e!er# if the order of dismissa is re!ersed
Remedial Law Bar Examination Q & A (1997-2006) on appea #
the p aintiff is deemed to ha!e $ai!ed his right to present e!idence. ;-d.<
S ecial Civil Action" 9/ectment (1997)
*n 1D /anuary 1AAD# N eased the $arehouse of & under a ease contract $ith a period of fi!e years. *n D> /une 1AA6# & fi ed an un a$fu detainer case against N $ithout a prior demand for N to !acate the premises. ;a< %an N contest his ejectment on the ground that there $as no prior demand for him to !acate the premises:
;b< -n case the Bunicipa ,ria %ourt renders judgment in fa!or of &# is the judgment immediate y
;a< Jes# N can contest his ejectment on the ground that since he continued enjoying the thing eased for fifteen days after the termination of the ease on /anuary A# 1AA5 $ith the ac@uiescence of the essor $ithout a notice to the contrary# there $as an -BP4-)D .)8 4)&(). (1r(. 1670. )i*il
)ode'.
S ecial Civil Action" 9/ectment (199!)
e=ecutory:
SUGGESTED ANSWER4
;a< Jes. N can contest his ejectment on the ground that there $as no prior demand to !acate the premises. ;Sec. 2
of ule 70; Casilan vs.5o,assi l0 SC ) 26&; +esaca vs.Cuevas. &2* SC ) ((*<.
6ig. 129% as amended.'
;b< Jes# because the judgment of the Bunicipa ,ria %ourt against the defendant N is immediate y e=ecutory upon motion un ess an appea has been perfected# a supersedeas bond has been fi ed and the periodic deposits of current renta s. -f any# as determined by the judgment $i be made $ith the appe ate court.
ALTERNATI3E ANSWER4
-n an action for un a$fu detainer in the Bunicipa ,ria %ourt ;B,%<# defendant N raised in his &ns$er the defense that p aintiff & is not the rea o$ner of the house subject of the suit. N fi ed a counterc aim against & for the co ection of a debt of P>D#DDD p us accrued interest of P15#DDD and attorneyGs fees of P2D#DDD. 1. -s NGs defense tenab e: 0312 2. Does the B,% ha!e jurisdiction o!er the counterc aim: 0212 SUGGESTED ANSWER4K 1. .o. NGs defense is not tenab e if the action is fi ed by a essor against a essee. ?o$e!er# if the right of possession of the p aintiff depends on his o$nership then the defense is tenab e.
2.
,he counterc aim is $ithin the jurisdiction of the Bunicipa ,ria %ourt $hich does not e=ceed P1DD#DDD# because the principa demand is P>D#DDD# e=c usi!e of interest and attorneyGs fees. (Sec. 33%
6.+.
?o$e !er#
inas muc h as a acti ons of

forcib e entry and un a$fu detainer are subject to
Page 35 of 66 summary procedure and since the counterc aim is on y permissi!e# it cannot be entertained by the Bunicipa %ourt.
("e*ised "#le on S#mmar- +roced#re.'
S ecial Civil Action" &oreclosure ('((.)

& borro$ed from the De!e opment Ban7 of the Phi ippines ;DBP< the amount of P1 mi ion secured by the tit ed and of his friend B $ho# ho$e!er# did not assume persona iabi ity for the oan. & defau ted and DBP fi ed an action for judicia forec osure of the rea estate mortgage imp eading & and B as defendants. -n due course# the court rendered judgment directing & to pay the outstanding account of P1.5 mi ion ;principa p us interest< to the ban7. .o appea $as ta7en by & on the Decision $ithin the reg ementary period. & fai ed to pay the judgment debt $ithin the period specified in the decision. %onse@uent y# the court ordered the forec osure sa e of the mortgaged and. -n that forec osure sa e# the and $as so d to the DBP for P1.2 mi ion. ,he sa e $as subse@uent y confirmed by the court# and the confirmation of the sa e $as registered $ith the 5egistry of Deeds on D5 /anuary 2DD2.
*n 1D /anuary 2DD3# the ban7 fi ed an e=" parte motion $ith the court for the issuance of a $rit of possession to oust B from the and. -t a so fi ed a deficiency c aim for P>DD#DDD.DD against & and B. the deficiency c aim $as opposed by & and B. ;a< 5eso !e the motion for the issuance of a $rit of possession. ;b< 5eso !e the deficiency c aim of the ban7. 61
SUGGESTED ANSWER4
0eneral 6an5ing /a& o! 2000'. ,he motion for
$rit of possession# ho$e!er# cannot be fi ed e= parte. ,here must be a notice of hearing. ;b< ,he deficiency c aim of the ban7 may be enforced against the mortgage debtor &# but it cannot be enforced against B# the o$ner of the mortgaged property# $ho did not assume persona iabi ity for the oan.
S ecial Civil Action" Petition for Certiorari ('((')
,he defendant $as dec ared in defau t in the 5,% for his fai ure to fi e an ans$er to a comp aint for a sum of money. *n the basis of the p aintiffHs e= parte presentation of e!idence# judgment by defau t $as rendered against the defendant. ,he defau t judgment $as ser!ed on the defendant on *ctober 1# 2DD1. *n *ctober 1D# 2DD1# he fi es a !erified motion to ift the
;a< -n judicia forec osure by ban7s such as DBP# the mortgagor or debtor $hose rea property has been so d on forec osure has the right to redeem the property so d $ithin one year after the sa e ;or registration of the sa e<. ?o$e!er# the purchaser at the auction sa e has the right to obtain a $rit of possession after the fina ity of the order confirming the sa e.
(Sec. 3 o! "#le 68$ Sec. 47 o! "1 8791. <3e
V e
order of defau t and to set aside the judgment. -n his motion# the defendant a eged that# immediate y upon receipt of the summon# he sa$ the p aintiff and confronted him $ith his receipt e!idencing his payment and that the p aintiff assured him that he $ou d instruct his a$yer to $ithdra$ the comp aint. ,he tria court denied the defendantHs motion because it $as not accompanied by an affida!it of merit. ,he defendant fi ed a specia ci!i action for certiorari under 5u e 65 cha enging the denia order.
Page 36 of 66 c aiming that its main office and operations are in %ebu %ity and not in Bani a. -s the contention of %ars %o. correct: 8hy: ;51<
SUGGESTED ANSWER4
.o. &s e=press y pro!ided in the 5u es# $hen the (o icitor 6enera commences the action for @uo $arranto# it may be brought in a 5,% in the %ity of Bani a# as in this case# in the %ourt of &ppea s or in the (upreme %ourt. (Sec. 7 o! "#le 66'
S ecial Civil Actions" :andamus ('((+)
-n 1AA6# %ongress passed 5epub ic &ct .o. >1>A# other$ise 7no$n as the 3oterGs 5egistration &ct of 1AA6# pro!iding for computeriEation of e ections. Pursuant thereto# the %*B)4)% appro!ed the 3oterGs 5egistration and -dentification (ystem ;35-(< Project. -t issued in!itations to pre"@ua ify and bid for the project. &fter the pub ic bidding# +oto7ina $as dec ared the $inning bidder $ith a bid of P6 bi ion and $as issued a .otice of &$ard. But %*B)4)% %hairman 6ener 6o objected to the a$ard on the ground that under the &ppropriations &ct# the budget for the %*B)4)%Gs moderniEation is on y P1 bi ion. ?e announced to the pub ic that the 35-( project has been set aside. ,$o %ommissioners sided $ith %hairman 6o# but the majority !oted to upho d the contract. Bean$hi e# +oto7ina fi ed $ith the 5,% a petition for mandamus compe the %*B)4)% to imp ement the contract. ,he *ffice of the (o icitor 6enera ;*(6<# representing %hairman 6o# opposed the petition on the ground that mandamus does not ie to enforce contractua ob igations. During the proceedings# the majority %ommissioners fi ed a manifestation that %hairman 6o $as not authoriEed by the %*B)4)% )n Banc to oppose the petition.
&. -s certiorari under remedy: 8hy: ;21<
5u e
65
the
proper
B. Did the tria court abuse its discretion or act $ithout or in e=cess of its jurisdiction in denying the defendantHs motion to ift the order of defau t
judgment: 8hy: ;31<

SUGGESTED ANSWER4
&. ,he petition for certiorari under 5u e 65 fi ed by the defendant is the proper remedy because appea is not a p ain# speedy and ade@uate remedy in the ordinary course of a$. -n appea # the defendant in defau t can on y @uestion the decision in the ight of the e!idence of the p aintiff. ,he defendant cannot in!o7e the receipt to pro!e payment of his ob igation to the p aintiff.
ALTERNATI3E ANSWER4
&. 'nder ordinary circumstances# the proper remedy of a party $rong y dec ared in defau t is either to appea from the judgment by defau t or fi e a petition for re ief from judgment. D-ao, +nc. v. Court of )$$eals,
2*& SC ) (9& (&99*!
SUGGESTED ANSWER4
B. Jes# the tria court gra!e y abused its discretion or acted $ithout or in e=cess of jurisdiction in denying the defendantHs motion because it $as not accompanied by a separate affida!it of merit. -n his !erified motion to ift the order of defau t and to set aside the judgment# the defendant a eged that immediate y upon the receipt of the summons# he sa$ the p aintiff and confronted him $ith his receipt sho$ing payment and that the p aintiff assured him that he $ou d instruct his a$yer to $ithdra$ the comp aint. (ince the good defense of the defendant $as a ready incorporated in the !erified motion# there $as not need for a separate affida!it of merit. DCa$uA v.
Court of )$$eals, 2(( SC ) '7& (&99'!; Mago v. Court of )$$eals, (0( SC ) 600 (&999!B.
+s a $etition for ,an#a,us an a$$ro$riate re,e#. to enforce contractual o3ligations; (*F!

SUGGESTED ANSWER4
.o# the petition for mandamus is not an appropriate remedy because it is not a!ai ab e to enforce a contractua ob igation. Bandamus is directed on y to ministeria acts# directing or commanding a person to do a ega duty (C9M484C v. Gui?ano6Pa#illa, ". .
%o. &*&992, Se$te,3er &/, 2002; Sec. (, ule 6*!.
S ecial Civil Action" Auo Barranto ('((1)

& group of businessmen formed an association in %ebu %ity ca ing itse f %ars %. to distribute C se cars in said city. -t did not incorporate itse f under the a$ nor did it ha!e any go!ernment permit or icense to conduct its business as such. ,he (o icitor 6enera fi ed before a 5,% in Bani a a !erified petition for @uo $arranto @uestioning and see7ing to stop the operations of %ars %o. ,he atter fi ed a motion to dismiss the petition on the ground of improper !enue
Summons
(e!en years after the entry of judgment# the p aintiff fi ed an action for its re!i!a . %an the defendant successfu y oppose the re!i!a of the judgment by contending that it is nu and !oid because the 5,%" Bani a did not ac@uire jurisdiction o!er his person: 8hy: ;31<
SUGGESTED ANSWER4
,he 5,%"Bani a shou d deny the motion because it is in !io ation of the ru e that no judgment ob igor sha be re@uired to appear before a court# for the purpose of e=amination concerning his property and
Version 1997-2006
!dated "# Dondee
income# outside the pro!ince or city in $hich such ob igor resides. -n this case the judgment ob igor resides in Bu acan. ("#le 39% sec.36'.
Summons (1999)
Page 37 of 66 the ground that the court had no jurisdiction o!er his person as there $as no !a id ser!ice of summons on
him because the sheriffs return or proof of ser!ice
a< 8hat is the effect of absence of summons on the judgment rendered in the case: ;21< b< 8hen additiona defendant is imp eaded in the action# is it necessary that summons be ser!ed upon him: )=p ain. ;21< c< -s summons re@uired to be ser!ed upon a defendant $ho $as substituted for the deceased: )=p ain. ;21<
d< & sued NN %orporation ;NN%<# a corporation organiEed under Phi ippine a$s# for specific performance $hen the atter fai ed to de i!er ," shirts to the former as stipu ated in their contract of sa e. (ummons $as ser!ed on the corporationGs cashier and director. 8ou d you consider ser!ice of summons on either officer
does not sho$ that the sheriff first made a genuine attempt to ser!e the summons on defendant persona y before ser!ing it thru his $ife. -s the motion to dismiss meritorious: 8hat is the purpose of summons and by $hom may it be ser!ed: )=p ain. ;51<
SUGGESTED ANSWER4
sufficient: )=p ain. ;21<

SUGGESTED ANSWER4
a< ,he effect of the absence of summons on a

judgment $ou d ma7e the judgment nu and !oid because the court $ou d not ha!e jurisdiction o!er the person of the defendant# but if the defendant !o untari y appeared before the court# his appearance is e@ui!a ent to the ser!ice of summons. (Sec. 20% "#le 14'
,he motion to dismiss is not meritorious because the defendant actua y recei!ed the summons on time from his $ife. (er!ice on the $ife $as sufficient. (Boticano v. Chu, &'/ SC ) *'& D&9/7B!. -t is the duty of the court to oo7 into the sufficiency of the ser!ice. ,he sheriffs neg igence in not stating in his return that he first made a genuine effort to ser!e the summons on the defendant# shou d not prejudice the p aintiff. (Ma$a v. Court of )$$eals, 2&' SC ) '&71&992!. ,he purpose of the summons is to inform the defendant of the comp aint fi ed against him and to enab e the court to ac@uire jurisdiction o!er his person. -t maybe ser!ed by the sheriff or his deputy or any person authoriEed by the court.
ALTERNATI3E ANSWER4
b< Jes. (ummons must be ser!ed on an additiona defendant imp eaded in the action so that the court can ac@uire jurisdiction o!er him# un ess he ma7es a !o untary appearance.
Jes. ,he motion to dismiss is meritorious. (ubstituted ser!ice cannot be effected un ess the sheriffs return sho$s that he made a genuine attempt to effect persona ser!ice on the husband.
Summons" 5alidity of Service" 9ffects ('((+)

,ina 6uerrero fi ed $ith fi ed the 5egiona ,ria %ourt of Binan# 4aguna# a comp aint for sum of money amounting to P1 Bi ion against %ar os %orro. ,he comp aint a eges# among others# that %ar os borro$ed from ,ina the said amount as e!idenced by a promissory note signed by %ar os and his $ife# joint y and se!era y. %ar os $as ser!ed $ith summons $hich $as recei!ed by 4inda# his secretary. ?o$e!er# %ar os fai ed to fi e an ans$er to the comp aint $ithin the 15"day reg ementary period. ?ence# ,ina fi ed $ith the court a motion to dec are %ar os in defau t and to a o$ her to present e!idence e= parte. +i!e days thereafter# %ar os fi ed his !erified ans$er to the comp aint# denying under oath the genuineness and due e=ecution of the promissory note and contending that he has fu y paid his oan $ith interest at 121 per annum.
c< .o.
& defendant $ho $as substituted for the deceased need not be ser!ed $ith summons because it is the court $hich orders him as the ega representati!e of the deceased to appear and substitute the deceased. (Sec. 16 o! "#le 3.'
d< (ummons on a domestic corporation through its

cashier and director are not !a id under the present ru es. (Sec. 11% "#le 14' ,hey ha!e been remo!ed from those $ho can be ser!ed $ith summons for a domestic corporation. %ashier $as substituted by treasurer. ;-d.<
Summons" Substituted Service ('((?)

(ummons $as issued by the BB 5,% and actua y recei!ed on time by defendant from his $ife at their residence. ,he sheriff ear ier that day had de i!ered the summons to her at said residence because defendant $as not home at the time. ,he sheriffs return or proof of ser!ice fi ed $ith the court in sum states that the summons# $ith attached copy of the comp aint# $as ser!ed on defendant at his residence thru his $ife# a person of suitab e age and discretion then residing therein. Defendant mo!ed to dismiss on
&.
ALTERNATI3E ANSWER4
Ias the su,,ons vali#l. serve# on Carlos; (2.*F!
,he summons $as not !a id y ser!ed on %ar os be" cause it $as ser!ed on his secretary and the re@uirements for substituted ser!ice ha!e not been fo o$ed# such as a sho$ing that efforts ha!e been e=erted to ser!e the same on %ar os and such attempt has
fai ed despite due di igence (Manotoc v. C), ". .

%o. &(097', )ugust &6, 2006; )ngPing v. C),
". . %o. &269'7, -ul. &*, &999!.

ALTERNATI3E ANSWER4
(er!ice of (ummons on %ar os $as !a id y ser!ed upon him if the 5eturn $i sho$ that it $as done through (ubstituted (er!ice because the defendant can not be ser!ed persona y $ithin a reasonab e time despite di igent efforts made to ser!e the summons persona y. 4inda# the secretary of defendant %ar os# must i7e$ise be sho$n to be a competent person in charge of defendantGs office $here summons $as ser!ed (Sec. 7% "#le 14'.
2.
+f .ou were the ?u#ge, will .ou grant 5inaKs ,otion to #eclare Carlos in #efault; (2.*F!
Page 3> of 66 2. ,he motion to dismiss on the ground of ac7 of jurisdiction o!er the subject matter shou d be denied. ,he counterc aim for attorneyGs fees and e=penses of itigation is a compu sory counterc aim because it necessari y arose out of and is connected $ith the comp aint. -n an origina action before the 5,%# the counterc aim may be considered compu sory regard ess of the amount. (Sec. 7 o! "#le
6'
ALTERNATI3E ANSWER4
-f - $ere the judge# - $i not grant ,inaGs motion to dec are %ar os in defau t because summons $as not proper y ser!ed and any$ay# a !erified ans$er to the comp aint had a ready been fi ed. Boreo!er# it is better to decide a case on the merits rather than on technica ity.
ALTERNATI3E ANSWER4
5enue" Personal Actions (1997)

N# a resident of &nge es %ity# borro$ed P3DD#DDD.DD from &# a resident of Pasay %ity. -n the oan agreement# the parties stipu ated that Lthe parties agree to sue and be sued in the %ity of Bani a.L
Jes. -f it $as sho$n that summons $as !a id y ser!ed# and that the motion to dec are %ar os in defau t $as du y furnished on %ar os# and after conducting a hearing on the same motion.
5enue" )m ro er 5enue" Com ulsory Counterclaim (199!)
a< -n case of non"payment of the oan# can & fi e his comp aint to co ect the oan from N in &nge es %ity: b< (uppose the parties did not stipu ate in the oan agreement as to the !enue# $here can & fi e his comp aint against N:
c< (uppose the parties stipu ated in their oan agreement that L!enue for a suits arising from this contract sha be the courts in IueEon %ity#L
&# a resident of 4ingayen# Pangasinan sued N# a resident of (an +ernando 4a 'nion in the 5,% ;5,%< of IueEon %ity for the co ection of a debt of P1 mi ion. N did not fi e a motion to dismiss for improper !enue but fi ed his ans$er raising therein improper !enue as an affirmati!e defense. ?e a so fi ed a counterc aim for P>D#DDD against & for attorneyGs fees and e=penses for itigation. N mo!ed for a pre iminary hearing on said affirmati!e defense. +or his part# & fi ed a motion to dismiss the counterc aim for ac7 of jurisdiction. 1. 5u e on the affirmati!e defense of improper !enue. 0312
2. 5u e on the motion to dismiss the counterc aim on the ground of ac7 of jurisdiction o!er the
can & fi e his comp aint against N in Pasay %ity:

(Sec% 2 o! "#le 4'.
SUGGESTED ANSWER4
;a< Jes# because the stipu ation in the oan agreement that Lthe parties agree to sue and be sued in the %ity of Bani aL does not ma7e Bani a the Le=c usi!e !enue thereof.L (Sec% 4 o! "#le 4% as amended b- )irc#lar .o. 13= 95: Sec. 4 o! ne& "#le 4' ?ence# & can fi e his comp aint in
&nge es %ity $here he resides# ;b<-f the parties did not stipu ate on the !enue# & can fi e his comp aint either in &nge es %ity $here he resides or in Pasay %ity $here N resides# ;-d<. ;c< Jes# because the $ording of the stipu ation does
not ma7e IueEon
ALTERNATI3E ANSWER4
subject matter. 0212

SUGGESTED ANSWER4
1. ,here is improper !enue. ,he case for a sum of money# $hich $as fi ed in IueEon %ity# is a persona action. -t must be fi ed in the residence of either the p aintiff# $hich is in Pangasinan# or of the defendant# $hich is in (an +ernando# 4a 'nion . (Sec. 2 o! "#le 4' ,he fact that it $as not raised in a motion to dismiss does not matter because the ru e that if improper !enue is not raised in a motion to dismiss it is deemed $ai!ed $as remo!ed from the 1AA7 5u es of %i!i Procedure. ,he ne$ 5u es pro!ide that if no motion to dismiss has been fi ed# any of the grounds for dismissa may be p eaded as an affirmati!e defense in the ans$er. (Sec. 6 o! "#le 16.'
%ity
the
e=c usi!e
!enue.
(Phil3anCing v. 5ensuan. 2(0 SC ) '&(; :ni,asters Conglo,eration, +nc. v. C). C 6&&96*7, 2e3. 7, &997!
;c< .o. -f the parties stipu ated that the !enue Lsha be in the courts in IueEon %ityL# & cannot fi e his comp aint in Pasay %ity because the use of the $ord Lsha L ma7es IueEon %ity the e=c usi!e !enue thereof. (<oechst Phili$$ines vs. 5orres, /( SC ) 297!.
CRIMINAL PROCEDURE
Ac<uittal" 9ffect ('((')
De ia sued 3ictor for persona injuries $hich she a eged y sustained $hen she $as struc7 by a car dri!en by 3ictor. Bay the court recei!e in e!idence# o!er proper and time y objection by
De ia# a certified true copy of a judgment of ac@uitta in a crimina prosecution charging 3ictor $ith hit"and" run dri!ing in connection $ith De iaHs injuries: 8hy: ;31<
SUGGESTED ANSWER4
contro!erting e!idence on the ci!i
iabi ity# because
-f the judgment of ac@uitta in the crimina case finds that the act or omission from $hich the ci!i iabi ity may arise does not e=ist# the court may recei!e it in e!idence o!er the objection by De ia. ["#le 111% sec. 2% las( 9aragra93 .
ALTERNATI3E ANSWER4
-f the judgment of ac@uitta is based on reasonab e doubt# the court may recei!e it in e!idence because in such case# the ci!i action for damages $hich may be instituted re@uires on y a preponderance of the e!idence. (1r(. 29% )i*il
)ode'.
Actions" BP''" Civil Action deemed included ('((1)
(aturnino fi ed a crimina action against & e= for the atterHs bouncing chec7. *n the date of the hearing after the arraignment# (aturnino manifested to the court that he is reser!ing his right to fi e a separate ci!i action. ,he court a o$ed (aturnino to fi e a ci!i action separate y and proceeded to hear the crimina case. & e= fi ed a motion for reconsideration contending that the ci!i action is deemed inc uded in the crimina case. ,he court reconsidered its order and ru ed that (aturnino cou d not fi e a separate action. -s the courtHs order granting the motion for reconsideration correct: 8hy: ;51<
SUGGESTED ANSWER4
Jes# the courtHs order granting the motion for reconsideration is correct. ,he 5u es pro!ide that the crimina action for !io ation of B.P. B g. 22 sha be deemed to inc ude the corresponding ci!i action# and that no reser!ation to fi e such ci!i action separate y sha be a o$ed. [Sec. 1(b'%
"#le 111% "e*ised "#les o! )riminal +roced#re
Actions" BP''" 8emurrer to 9vidence ('((.)

-n an action for !io ation of Batas Pambansa Big. 22# the court granted the accusedHs demurrer to e!idence $hich he fi ed $ithout ea!e of court. & though he $as ac@uitted of the crime charged# he# ho$e!er# $as re@uired by the court to pay the pri!ate comp ainant the face !a ue of the chec7. ,he accused fi ed a Botion of 5econsideration regarding the order to pay the face !a ue of the chec7 on the fo o$ing groundsK
a< the demurrer to e!idence app ied on y too the crimina aspect of the caseF and b< at the !ery east# he $as entit ed to adduce contro!erting e!idence on the ci!i iabi ity. 5eso !e the Botion for 5econsideration. ;61<
SUGGESTED ANSWER4
;a<
,he Botion for 5econsideration shou d be denied. ,he ground that the demurrer to e!idence app ied on y to the crimina aspect of the case $as not correct because the crimina action for !io ation of Batas Pambansa B g. 22 inc uded the corresponding ci!i action. (Sec. 1(b' o! "#le 111'. ;b< ,he accused $as not entit ed to adduce
Page 3A of 66 he fi ed his demurrer to e!idence $ithout ea!e of court. (Sec. 23 o! "#le 119'.
Actions" Commencement of an Action" 8ouble Jeo ardy ('((?)
(P*1 %.% fi ed $ith the B,% in IueEon %ity ;Be,%"I%< a s$orn $ritten statement du y subscribed by him# charging 565 ;an actua resident of %ebu %ity< $ith the offense of s ight physica injuries a eged y inf icted on (P( ;an actua resident of IueEon %ity<. ,he /udge of the branch to $hich the case $as raff ed thereupon issued an order dec aring that the case sha be go!erned by the 5u e on (ummary Procedure in crimina cases. (oon thereafter# the /udge ordered the dismissa of the case for the reason that it $as not commenced by information# as re@uired by said 5u e.
;51<
SUGGESTED ANSWER4
Jes# the dismissa of the comp aint for s ight physica injuries is proper because in Betropo itan Bani a and in chartered cities# the case has to be commenced on y by information. (Sec. 11%
"e*ised "#le on S#mmar- +roced#re'.
.o# the grant of the motion to @uash the attempted homicide information on the ground of doub e jeopardy $as not correct# because there $as no !a id prosecution for s ight physica injuries.
Actions" 8iscretionary Po2er of &iscal (1999)
& fi ed $ith the *ffice of the +isca a %omp aint for estafa against B. &fter the pre iminary in!estigation# the +isca dismissed the %omp aint for ac7 of merit. Bay the +isca be compe ed by mandamus to fi e the case in court: )=p ain. ;21<
SUGGESTED ANSWER4
(ometime ater# based on the same facts gi!ing rise to the s ight physica injuries case# the %ity Prosecutor fi ed $ith the same Be,%"I% an information for attempted homicide against the same 565. -n due time# before arraignment# 565 mo!ed to @uash the information on the ground of doub e jeopardy and after due hearing# the /udge granted his motion. 8as the dismissa of the comp aint for s ight physica injuries proper: 8as the grant of the motion to @uash the attempted homicide information correct: 5eason
.o. ,he pub ic prosecutor may not be compe ed by mandamus to fi e the case in court because the determination of probab e cause is $ithin the discretion of the prosecutor. ,he remedy is an appea to the (ecretary of /ustice. (Sec. 4 "#le 112.'
Actions" )n/unction (1999)
8i injunction ie to restrain the commencement of a crimina action: )=p ain. ;21<

SUGGESTED ANSWER4
&s a genera ru e# injunction $i not ie to restrain a crimina prosecution e=ceptK

Remedial Law Bar Examination Q & A (1997-2006) a<
comp aint of the $ido$ of &# the po ice arrested B
,o b< c< d< e<
afford ade@uate protection to the constitutiona rights of the accusedF 8hen necessary for the order y administration of justice or to a!oid oppression or mu tip icity of actionsF 8hen doub e jeopardy is c ear y apparentF 8here the charges are manifest y fa se and moti!ated by the ust for !engeanceF 8here there is c ear y no prima facie case against the accused and a motion to @uash on that ground has been denied.
(See cases cite# in o3erts, -r., vs. Court of )$$eals, 2*' SC ) (07 D&996B an# BrocCa v. 4nrile, &92 SC ) &/( D&990B.!
Arrest" Barrantless Arrest" Preliminary )nvestigation ('((?)

&N s$ind ed 5J in the amount of P1D#DDD sometime in mid"2DD3. *n the strength of the s$orn statement gi!en by 5J persona y to (P*1 /uan 5amos sometime in mid"2DD4# and $ithout securing a $arrant# the po ice officer arrested &N. +orth$ith the po ice officer fi ed $ith the %ity Prosecutor of Bani a a comp aint for estafa supported by 5JLs s$orn statement and other documentary e!idence. &fter due in@uest# the prosecutor fi ed the re@uisite information $ith the BB 5,%. .o pre iminary in!estigation $as conducted either before or after the fi ing of the information and the accused at no time as7ed for such an in!estigation. ?o$e!er# before arraignment# the accused mo!ed to @uash the information on the ground that the prosecutor suffered from a $ant of authority to fi e the information because of his fai ure to conduct a pre iminary in!estigation before fi ing the information# as re@uired by the 5u es of %ourt. -s the $arrant ess arrest of &N !a id: -s he entit ed to a pre iminary in!estigation before the fi ing of the information: )=p ain. ;51<
SUGGESTED ANSWER4
113'.
(Sec. 5% "#le
(0o *s. )o#r( o! 199eals. 206 S)"1 138'.
.o. ,he $arrant ess arrest is not !a id because the a eged offense has not just been committed. ,he crime $as a eged y committed one year before the arrest. (Sec. 5 (b' o! "#le 113'. Jes# he is entit ed to a pre iminary in!estigation because he $as not a$fu y arrested $ithout a $arrant (See Sec. 7 o! "#le 112'. ?e can mo!e for a rein!estigation.
ALTERNATI3E ANSWER4
?e is not entit ed to a pre iminary in!estigation because the pena ty for estafa is the sum of P1D#DDD does not e=ceed 4 years and 2 months. 'nder (ec. 1# second par.# 5u e 112# a pre iminary in!estigation is not re@uired. (.o(e: <3e 9enal(- is no( s(a(ed in (3e >#es(ion.'
Arrest" Barrantless Arrests - Searc,es (1997)

& $as 7i ed by B during a @uarre o!er a hostess in a nightc ub. ,$o days after the incident# and upon
Page 4D of 66 $ithout a $arrant of arrest and searched his house $ithout a search $arrant. a< %an the gun used by B in shooting &# $hich $as seiEed during the search of the house of B# be admitted in e!idence: b< -s the arrest of B ega : c< 'nder the circumstances# can B be con!icted of homicide:
SUGGESTED ANSWER4
the accused and seiEed from him a sachet of shabu and an un icensed firearm. ,he accused $as charged in t$o -nformations# one for !io ation of the PDangerous Drug &ctQ# as amended# and another for i ega possession of firearms.
;a< .o. ,he gun seiEed during the search of the

house of B $ithout a search $arrant is not admissib e in e!idence. (Secs. 2 and 3[2 % 1r(. 222 o! )ons(i(#(ion'.
Boreo!er# the search $as not an incident to a a$fu arrest of a person under (ec. 12 of 5u e 126.
;b< .o. & $arrant ess arrest re@uires that the crime has in fact just been committed and the po ice arresting has persona 7no$ edge of facts that the person to be arrested has committed it. ?ere# the crime has not just been committed since a period of t$o days had a ready apsed# and the po ice arresting has no such persona 7no$ edge because he $as not present $hen the incident
,he accused fi ed an action for reco!ery of the firearm in another court against the po ice officers $ith an app ication for the issuance of a $rit of rep e!in. ?e a eged in his %omp aint that he $as a mi itary informer $ho had been issued a $ritten authority to carry said firearm. ,he po ice officers mo!ed to dismiss the comp aint on the ground that the subject firearm $as in custodia egis. ,he court denied the motion and instead issued the $rit of rep e!in. ;a< 8as the seiEure of the firearm !a id: ;b< 8as the denia of the motion to dismiss proper: 61
SUGGESTED ANSWER4
;a< Jes# the seiEure of the firearm $as !a id because it $as seiEed in the course of a !a id arrest in a buy"bust operation. (Sec. 12 and 13 o! "#le 126' & search $arrant $as not necessary. (Peo$le v. SalaAar, 266
SC ) 607
happened. ;c< Jes. ,he gun is not indispensab e in the con!iction of & because the court may re y on testimonia or other e!idence.
Arrest" Barrantless Arrests - SeiDures ('((.)
-n a buy"bust operation# the po ice operati!es arrested
D&997B!.
;b< ,he denia of the motion to dismiss $as not proper. ,he court had no authority to issue the $rit of rep e!in $hether the firearm $as in custodia egis
Remedial Law Bar Examination Q & A (1997-2006) or
not. ,he motion to reco!er the firearm shou d be fi ed in the court $here the crimina action is pending.
Arrest" Barrantless Arrests" *b/ection ('((()
Page 41 of 66 he cou d be con!icted of the capita offense.

(93osa vs. Court of )$$eals, 266 SC ) 2/&.!
ALTERNATI3E ANSWER4
+6 $as arrested $ithout a $arrant by po icemen $hi e he $as $a 7ing in a busy street. &fter pre iminary in!estigation# he $as charged $ith rape and the corresponding information $as fi ed in the 5,%. *n arraignment# he p eaded not gui ty. ,ria on the merits ensued. ,he court rendered judgment con!icting him. *n appea # +6 c aims that the judgment is !oid because he $as i ega y arrested. -f you $ere the (o icitor 6enera # counse for the Peop e of the Phi ippines# ho$ $ou d you refute said c aim: ;51<
SUGGESTED ANSWER4
'nder %ircu ar .o. 2"A2# & is entit ed to bai because he $as con!icted of homicide and hence the e!idence of gui t of murder is not strong.
SUGGESTED ANSWER4
2.
B# $ho did not appea # can be benefited by the

(Sec. 11 [a . "#le 122% "#les o!
)riminal +roced#re.'
decision of the %ourt of &ppea s $hich is fa!orab e and app icab e to him.
,he benefit $i a so app y to % e!en if his appea is dismissed because of his escape.
Bail" A lication" 5enue ('((')
&ny objection to the i ega ity of the arrest of the accused $ithout a $arrant is deemed $ai!ed $hen he p eaded not gui ty at the arraignment $ithout raising the @uestion. , is too ate to comp ain about a $arrant ess arrest after tria is commenced and comp eted and a judgment of con!iction rendered against the accused. (Peo$le v. Ca3iles, 2/' SC ) &99,
D&999B!
-f an information $as fi ed in the 5,%" Bani a charging D $ith homicide and he $as arrested in IueEon %ity# in $hat court or courts may he app y for bai : )=p ain. ;31<
SUGGESTED ANSWER4
Bail ('((')
D $as charged $ith murder# a capita offense. &fter arraignment# he app ied for bai . ,he tria court ordered the prosecution to present its e!idence in fu on the ground that on y on the basis of such presentation cou d it determine $hether the e!idence of DHs gui t $as strong for purposes of bai . -s the ru ing correct: 8hy: ;31<
SUGGESTED ANSWER4
D may app y for bai in the 5,%"Bani a $here the information $as fi ed or in the 5,%"IueEon %ity $here he $as arrested# or if no judge# thereof is a!ai ab e# $ith any metropo itan tria judge# municipa tria judge or municipa circuit tria judge therein. ("#le 114% sec.
17'.
Bail" &orms of Bail (1999)
-n $hat forms may bai be gi!en: ;21<

SUGGESTED ANSWER4
Bai may be gi!en by a corporate surety# or through a property bond# cash deposit or recogniEance.
Bail" :atter of 1ig,t (1999)
8hen the accused is entit ed as a matter of right to bai # may the %ourt refuse to grant him bai on the ground that there e=ists a high degree of probabi ity that he $i abscond or escape: )=p ain. ;21<
SUGGESTED ANSWER4
.o# the prosecution is on y re@uired to present as much e!idence as is necessary to determine $hether the e!idence of DHs gui t is strong for purposes of bai .("#le 114% sec. 8'.
Bail" A eal (199!)
-n an information charging them of Burder# po icemen &# B and % $ere con!icted of ?omicide. & appea ed from the decision but B and % did not. B started ser!ing his sentence but % escaped and is at arge. -n the %ourt of &ppea s# & app ied for bai but $as denied. +ina y# the %ourt of &ppea s rendered a decision ac@uitting & on the ground that the e!idence pointed to the .P& as the 7i ers of the !ictim.
-f bai is a matter of right# it cannot be denied on the ground that there e=ists a high degree of probabi ity that the accused $i abscond or escape. 8hat the court can do is to increase the amount of the bai . *ne of the guide ines that the judge may use in fi=ing a reasonab e amount of bai is the probabi ity of the accused appearing in tria .
Bail" :atter of 1ig,t vs. :atter of 8iscretion (1999)
1. 8as the %ourt of &ppea Gs denia of &Gs app ication for bai proper: 0212 2. %an B and % be benefited by the decision of the %ourt of &ppea s: 0312
SUGGESTED ANSWER4
8hen is bai a matter of right and $hen is it a matter of discretion: ;21<

SUGGESTED ANSWER4
Ihen Bail is a ,atter of right@

& persons in custody sha ;a< before or after con!iction by the metropo itan and municipa tria courts# and ;b< before con!iction by the 5,% of an offense not punishab e by death# rec usion perpetua
1# Jes# the %ourt of &ppea s proper y denied &Gs app ication for bai . ,he court had the discretion to do so. & though & $as con!icted of homicide on y# since he $as charged $ith a capita offense# on appea
or ife imprisonment# be admitted to bai as a matter of right# $ith sufficient sureties# or be re eased on recogniEance as prescribed by a$ or 5u e 114. (Sec. 4% "#le 114% "#les o! )o#r(% as
amended b- )irc#lar .o. 12=94.'
Remedial Law Bar Examination Q & A (19972006)
1# -d.<
Bail" :atter of 1ig,t vs. :atter of 8iscretion ('((+)
Ihen 3ail is a ,atter of #iscretion@ 'pon con!iction by the 5,% of an offense not punishab e by death# rec usion perpetua or ife imprisonment# on app ication of the accused. -f the pena ty of imprisonment e=ceeds si= years but not more than 2D years# bai sha be denied upon a sho$ing by the prosecution# $ith notice to the accused# of the fo o$ing or other simi ar circumstancesK 1. ,hat the accused is a recidi!ist# @uasi" re"cidi!ist or habitua de in@uent# or has committed the crime aggra!ated by the circumstance of reiterationF 2. ,hat the accused is found to ha!e pre!ious y escaped from ega confinement# e!aded sentence# or has !io ated the conditions of his bai $ithout !a id justificationF 3. ,hat the accused committed the offense $hi e on probation# paro e# or under conditiona pardonF 4. ,hat the circumstances of the accused or his case indicate the probabi ity of f ight if re eased on bai F or 5. ,hat there is undue ris7 that during the pendency of the appea # the accused may commit another crime. ;(ec.
8hen is bai a matter of right and $hen is it a matter of discretion: ;51<

SUGGESTED ANSWER4
Bai is a matter of right ;a< before or after con!iction by the inferior courtsF ;b< before con!iction by the 5,% of an offense not punishab e by death# rec usion perpetua or ife imprisonment.# $hen the e!idence of gui t is not strong (Sec. 4% "#le 114%
2000 "#les +roced#re'. o! )riminal
Bai is discretionaryK 'pon con!iction by the 5,% of an offense not punishab e by death# rec usion perpetua or ife imprisonment (Sec. 5% "#le
114% 2000 "#les +roced#re'. o! )riminal
Bail" Bitness Posting Bail (1999)
Bay the %ourt re@uire a $itness to post bai : )=p ain your ans$er. ;21<
SUGGESTED ANSWER4
Jes. ,he court may re@uire a $itness to post bai if he is a materia $itness and bai is needed to secure his appearance. ,he ru es pro!ide that $hen the court is satisfied# upon proof or oath# that a materia $itness $i not testify $hen re@uired# it may# upon motion of either party# order the $itness to post bai in such sum as may be deemed proper. 'pon refusa to post bai # the court sha commit him to prison unti he comp ies or is ega y discharged after his testimony is ta7en. (Sec.
6% "#le 119'
Com laint vs. )nformation (1999)
Distinguish a %omp aint from -nformation. ;21<
p aintiffHs e!idence is insufficient SUGGESTED ANSWER4 because it not -n crimina procedure# a comp aint is a did s$orn sho$ ;1< that $ritten defendant statement charging a person $ith an $as offense# neg igent and ;2< or subscribed by the offended party# any peace officer that such neg igence of other peace officer charged $ith the enforcement (Sec. 3% "#le $as 110% the pro=imate the a$ !io ated. 1985 cause of the +roced#re'$ $hi e co ision. (hou d the information an court grant or deny $riting charging defendantGs demurrer a person $ith an to e!idence: 5eason offense brief y. ;51<
to e!idence $ithout ea!e of court but it $as denied by the court. 1. Did the court ha!e the discretion to deny the demurrer to e!idence under the circumstances mentioned abo!e: ;21<
2. -f the ans$er to the preceding @uestion is in the affirmati!e# can N
adduce e!idence in his defense after the denia of his demurrer to e!idence: 0112
3. 8ithout further proceeding and on the so e basis of the e!idence of the prosecution# can the court ega y con!ict N for Burder: ;21<
SUGGESTED ANSWER4
subscribed by the prosecutor and fi ed $ith the court. (Sec. 4% 2d.'
SUGGESTED ANSWER4
8emurrer to 9vidence" Contract of Carriage ('((?)

&N# a Ba7ati" bound paying passenger of PB'# a pub ic uti ity bus# died instant y on board the bus on account of the fata head $ounds he sustained as a resu t of the strong impact of the co ision bet$een the bus and a dump truc7 that happened $hi e the bus $as sti tra!e ing on )D(& to$ards Ba7ati. ,he foregoing facts# among others# $ere du y estab ished on e!idence"in" chief by the p aintiff ,J# so e heir of &N# in ,JHs action against the subject common carrier for breach of contract of carriage. &fter ,J had rested his case# the common carrier fi ed a demurrer to e!idence# contending that
.o. ,he court shou d not grant defendantGs demurrer to e!idence because the case is for breach of contract of carriage. Proof that the defendant $as neg igent and that such neg igence $as the pro=imate cause of the co ision is not re@uired.
()rticles 220&, &&70 an#
1. Jes. ,he %ourt had the discretion to deny the demurrer to the e!idence# because a though the
Civil Co#e; (Men#oAa v. Phil. )irlines, +nc., 90 Phil. /(6 D&9*2B; Batangas 5rans$ortation Co. v. Cagui,3al, 22 SC )&7& : 96/B; )3eto v. P)8, &&* SC ) '/9 D&9/2B; )3oitiA v. Court of )$$eals, &29 SC ) 9* D&9/'B!.
8emurrer to 9vidence" 2Co 0eave of Court (199!)
+acing a charge of Burder# N fi ed a petition for bai . ,he petition $as opposed by the prosecution but after hearing the court granted bai to N. *n the first schedu ed hearing on the merits# the prosecution manifested that it $as not adducing additiona e!idence and that it $as resting its case. N fi ed a demurrer
(Sec. 15% "#le 119% "#les o! )riminal
(Peo$le vs. 2ores, 269 SC ) Remedial Law Bar Examination Q & A (1997-2006)
,he information for i ega possession of firearm fi ed against the accused specifica y a eged that he had no icense or permit to possess the ca iber .45 pisto mentioned therein. -n its e!idence"in"chief# the prosecution estab ished the fact that the subject firearm $as a$fu y seiEed by the po ice from the possession of the accused# that is# $hi e the pisto $as tuc7ed at his $aist in p ain !ie$# $ithout the accused being ab e to present any icense or permit to possess the firearm. ,he prosecution on such e!idence rested its case and $ithin a period of fi!e days therefrom# the accused fi ed a demurrer to e!idence# in sum contending that the prosecution e!idence has not estab ished the gui t of the accused beyond reasonab e doubt and so prayed that he be ac@uitted of the offense charged.
e!idence presented by the prosecution at the hearing for bai $as not strong# $ithout any e!idence for the defense# it cou d be sufficient for con!iction. .o. Because he fi ed the demurrer to the e!idence $ithout ea!e. +roced#re.' ?o$e!er# the tria court shou d in@uire as to $hy the accused fi ed the demurrer $ithout ea!e and $hether his a$yer 7ne$ that the effect of fi ing it $ithout ea!e is to $ai!e the presentation of the e!idence for the accused.
2.
62.!
3. Jes. 8ithout any e!idence from the accused# the prima facie e!idence of the prosecution has been con!erted to proof beyond reasonab e doubt.
ALTERNATI3E ANSWER4
-f the e!idence of gui t is not strong and beyond reasonab e doubt then the court cannot ega y con!ict N for murder.
8emurrer to 9vidence" 2Co 0eave of Court ('((1)
%ar os# the accused in a theft case# fi ed a demurrer to e!idence $ithout ea!e of court. ,he court denied the demurrer to e!idence and %ar os mo!ed to present his e!idence. ,he court denied %ar osH motion to present e!idence and instead judgment on the basis of the e!idence for the prosecution. 8as the court correct in pre!enting %ar os from presenting his e!idence and rendering judgment on the basis of the e!idence for the prosecution: 8hy: ;51<
SUGGESTED ANSWER4
Jes# because the demurrer to the e!idence $as fi ed $ithout ea!e of court. ,he 5u es pro!ide that $hen the demurrer to e!idence is fi ed $ithout ea!e of court# the accused $ai!es the right to present e!idence and submits the case for judgment on the basis of the e!idence for the prosecution. (Sec. 23 o! "#le 119%
"e*ised "#les o! )riminal +roced#re'
8emurrer to 9vidence" 2Co 0eave of Court ('((?)
Page 43 of 66 ,he tria court denied the demurrer to e!idence and

deemed the accused as ha!ing $ai!ed his right to present e!idence and submitted the case for judgment on the basis of the prosecution e!idence. -n due time# the court rendered judgment finding the accused gui ty of the offense charged beyond reasonab e doubt and according y imposing on him the pena ty prescribed therefor. -s the judgment of the tria court !a id and proper: 5eason. ;51<
SUGGESTED ANSWER4
&s a genera ru e# $hen a crimina case is dismissed on nolle 9rose>#i before the accused is p aced on tria and before he is ca ed on to p ead# this is not e@ui!a ent to an ac@uitta and does not bar a subse@uent prosecution for the same offense.
("alveA v. Court of )$$eals, 2(7 SC ) 6/* D&99'B!.
8ismissal" Provisional 8ismissal ('((.)

Before the arraignment for the crime of murder# the pri!ate comp ainant e=ecuted an &ffida!it of Desistance stating that she $as not sure if the accused $as the man $ho 7i ed her husband. ,he pub ic prosecutor fi ed a Botion to Iuash the -nformation on the ground that $ith pri!ate comp ainantHs desistance# he did not ha!e e!idence sufficient to con!ict the accused. *n D2 /anuary 2DD1# the court $ithout further proceedings granted the motion and pro!isiona y dismissed the case. ,he accused ga!e his e=press consent to the pro!isiona dismissa of the case. ,he offended party $as notified of the dismissa but she refused to gi!e her consent.
Jes. ,he judgment of the tria court is !a id. ,he accused did not as7 for ea!e to fi e the demurrer to e!idence. ?e is deemed to ha!e $ai!ed his right to present e!idence. (Sec. 2( of
ule &&9; Peo$le v. 2lores, 269 SC ) 62 D&997B; Bernar#o v. Court of )$$eals, 27/ SC ) 7/2 D&997B. ?o$e!er# the
judgment is not proper or is erroneous because there $as no sho$ing from the proper office i7e the +irearms )=p osi!e 'nit of the Phi ippine .ationa Po ice that the accused has a permit to o$n or possess the firearm# $hich is fata to the con!iction of the accused.
(Mallari v. Court of
)$$eals LPeo$le,26* SC ) '*6D&996B!.
8ismissal" &ailure to Prosecute ('((.)
8hen a crimina case is dismissed on nolle 9rose>#i# can it ater be refi ed: ;41<
SUGGESTED ANSWER4
(ubse@uent y# the pri!ate comp ainant urged the pub ic prosecutor to refi e the murder charge because the accused fai ed to pay the consideration $hich he had promised for the e=ecution of the &ffida!it of Desistance. ,he pub ic prosecutor ob iged and refi ed the murder charge against the accused on D1 +ebruary 2DD3# the accused fi ed a Botion to Iuash the -nformation on the ground that the pro!isiona dismissa of the case had a ready become permanent. ;61<
a< 8as the pro!isiona dismissa of the case proper: b< 5eso !e the Botion to Iuash.
SUGGESTED ANSWER4
homicide in the 5,%. 'pon arraignment# he entered a p ea of gui ty to said crime. .either the court nor the prosecution
;a< ,he pro!isiona dismissa of the case $as proper because the accused ga!e his e=press consent thereto and the offended party $as notified. -t $as not necessary for the offended party to gi!e her consent thereto. (Sec. 8 o! "#le
117'.
;b<
,he motion to @uash the information shou d be denied because# $hi e the pro!isiona dismissa had a ready become permanent# the prescripti!e period for fi ing the murder charge had not prescribed. ,here $as no doub e jeopardy because the first case $as dismissed before the accused had p eaded to the charge. (Sec. 7 o! "#le 117'.
8ouble Jeo ardy ('((')

D $as charged $ith s ight physica injuries in the B,%. ?e p eaded not gui ty and $ent to tria . &fter the prosecution had presented its e!idence# the tria court set the continuation of the hearing on another date. *n the date schedu ed for hearing# the prosecutor fai ed to appear# $hereupon the court# on motion of D# dismissed the case. & fe$ minutes ater# the prosecutor arri!ed and opposed the dismissa of the case. ,he court reconsidered its order and directed D to present his e!idence. Before the ne=t date of tria came# ho$e!er# D mo!ed that the ast order be set aside on the ground that the reinstatement of the case had p aced him t$ice in jeopardy. &cceding to this motion# the court again dismissed the case. ,he prosecutor then fi ed an information in the 5,%# charging D $ith direct assau t based on the same facts a eged in the information for s ight physica injuries but $ith the added a egation that D inf icted the injuries out of resentment for $hat the comp ainant had done in the performance of his duties as chairman of the board of e ection inspectors. D mo!ed to @uash the second information on the ground that its fi ing had p aced him in doub e jeopardy. ?o$ shou d DHs motion to @uash be reso !ed: ;41<
SUGGESTED ANSWER4
DHs motion to @uash shou d be granted on the ground of doub e jeopardy because the first offense charged is necessari y inc uded in the second offense charged. D0raculan v. 0onato, &'0 SC ) '2* (&9/*!B.
ALTERNATI3E ANSWER4
DHs motion to @uash shou d be denied because the t$o dismissa s of the case against him $ere on his motion ;hence $ith his e=press consent< and his right to a speedy tria $as not !io ated.
8ouble Jeo ardy" E grading" *riginal C,arges ('((7)
+or the mu tip e stab $ounds sustained by the !ictim# .oe $as charged $ith frustrated
Page 44 of 66 by: sirdondee@gmail.com $as a$are that the !ictim had died t$o days ear ier on account of his stab $ounds. Because of his gui ty p ea# .oe $as con!icted of frustrated homicide and
meted the corresponding pena ty. 8hen the prosecution earned of the !ictimGs death# it fi ed $ithin fifteen ;15< days therefrom a motion to amend the information to upgrade the charge from frustrated homicide to consummated homicide. .oe opposed the motion c aiming that the admission of the amended information $ou d p ace him in doub e jeopardy. 5eso !e the motion $ith reasons. ;41<
SUGGESTED ANSWER4
account of his stab $ounds.
9;tradition ('((?)
5P and (tate NN ha!e a subsisting )=tradition ,reaty. Pursuant thereto 5PGs (ecretary of /ustice ;(*/< fi ed a Petition for )=tradition before the BB 5,% a eging that /uan 9$an is the subject of an arrest $arrant du y issued by the proper crimina court of (tate NN in connection $ith a crimina case for ta= e!asion and fraud before his return to 5P as a ba i7bayan. Petitioner prays that /uan be e=tradited and de i!ered to the proper authorities of (tate NN for tria # and that to pre!ent /uanGs f ight in the interim# a $arrant for his immediate arrest be issued. Before the 5,% cou d act on the petition for e=tradition# /uan fi ed before it an urgent motion# in sum praying ;1< that (o/Gs app ication for an arrest $arrant be set for hearing and ;2< that /uan be a o$ed to post bai in the e!ent the court $ou d issue an arrest $arrant. (hou d the court grant or deny /uanGs prayers: 5eason. ;51<
SUGGESTED ANSWER4
,he amended information to consummated homicide from frustrated homicide does not p ace the accused in doub e jeopardy. &s pro!ided in the second paragraph of Sec. 7% "#le 117%2000 "#les o! )riminal +roced#re# the con!iction of the accused sha not be a bar to another prosecution for an offense $hich necessari y inc udes the offense charged in the former comp aint or information $henK ;a< the gra!er offense de!e oped due to super!ening facts arising from the same act or omission constituting the former chargeF or ;b< the facts constituting the gra!er charge became 7no$n or $ere disco!ered on y after a p ea $as entered in the former comp aint or information. ?ere# $hen the p ea to frustrated homicide $as made# neither the court nor the prosecution $as a$are that the !ictim had died t$o days ear ier on
'nder the )=tradition ,reaty and 4a$# the app ication of the (ecretary of /ustice for a $arrant of arrest need not be set for hearing# and /uan cannot be a o$ed to post bai if the court $ou d issue a $arrant of arrest. ,he pro!isions in the 5u es of %ourt on arrest and bai are not basica y app icab e.
("overn,ent of the :nite# States of ),erica v. Puruganan, (/9 SC ) 62( D2002B!
)nformation ('((1)
,he prosecution fi ed an information against /ose for s ight physica injuries a eging the acts constituting the offense but $ithout anymore a eging that it $as committed after /oseHs un a$fu entry in the comp ainantHs abode. 8as the information correct y prepared by the prosecution: 8hy: ;51<
SUGGESTED ANSWER4
Page 45 of 66 by: sirdondee@gmail.com can re"fi e the B. Jes# the prosecution information for murder in substitution of the information for homicide because no doub e jeopardy has as yet attached. D"alveA v. Court of )$$eals, 2(7
SC ) 6/* (&99'!B.
)nformation" Amendment" Su ervening 9vents (1997)
.o. ,he aggra!ating circumstance of un a$fu entry in the comp ainantHs abode has to be specified in the informationF other$ise# it cannot be considered as aggra!ating. (Sec. 8 o! "#le
110% "e*ised "#les o! )riminal +roced#re'
ALTERNATI3E ANSWER4
& $as accused of homicide for the 7i ing of B. During the tria # the pub ic prosecutor recei!ed a copy of the marriage certificate of & and B. ;a< %an the pub ic prosecutor mo!e for the amendment of the information to charge & $ith the crime of parricide:
;b< (uppose instead of mo!ing for the amendment information# the pub ic prosecutor of the
,he information prepared by the prosecutor is not correct because the accused shou d ha!e been charged $ith @ua ified trespass to d$e ing.
)nformation" Amendment ('((1)
&mando $as charged $ith frustrated homicide. Before he entered his p ea and upon the ad!ice of his counse # he manifested his $i ingness to admit ha!ing committed the offense of serious physica injuries. ,he prosecution then fi ed an amended information for serious physica injuries against &mando. 8hat steps or action shou d the prosecution ta7e so that the amended information against &mando $hich do$ngrades the nature of the offense cou d be !a id y made: 8hy: ;51<
SUGGESTED ANSWER4
e!idenc marriag in e the e certificate $ithout objection on the part of the defense# cou d &be con!icted of parricide:
presented
SUGGESTED ANSWER4
;a< .o. ,he -nformation cannot be amended to change the offense charged from homicide to parricide. +irst y# the marriage is not a super!ening fact arising from the act constituting the charge of homicide. (Sec. 7[a o! "#le 117'. (econd y# after p ea# amendments may be done on y as to matters of form. ,he amendment is substantia because it $i change the nature of the offense. (Sec. &' of ule &&0;
0ional#o us. 0acu.cu.. &0/ SC ) 7(6!.
-n order that the amended information $hich do$ngrades the nature of the offense cou d be !a id y made# the prosecution shou d fi e a motion to as7 for ea!e of court $ith notice to the offended party.
(Sec.14 o! "#le 110% "e*ised "#les o! )riminal +roced#re'.
;b< .o. & can be con!icted on y of homicide not of parricide $hich is a gra!er offense. ,he accused has the constitutiona rights of due process and to be informed of the nature and the cause of the accusation against him. (Secs. 1%
14 (1' and (2? 1r(. 222. 1987 )ons(i(#(ion'%
,he ne$ ru e is for the protection of the interest of the offended party and to pre!ent possib e abuse by the prosecution.
)nformation" Amendment" 8ouble Jeo ardy" Bail ('((')
)nformation" Bail ('((.)

&fter the re@uisite proceedings# the Pro!incia Prosecutor fi ed an -nformation for homicide against N. ,he atter# ho$e!er# time y fi ed a Petition for 5e!ie$ of the 5eso ution of the Pro!incia Prosecutor $ith the (ecretary of /ustice $ho# in due time# issued a 5eso ution re!ersing the reso ution of the Pro!incia Prosecutor and directing him to $ithdra$ the -nformation.
&. D and ) $ere charged $ith homicide in one information. Before they cou d be arraigned# the prosecution mo!ed to amend the information to e=c ude ) therefrom. %an the court grant the motion to amend: 8hy: ;21<
B. *n the facts abo!e stated# suppose the prosecution# instead of fi ing a motion to amend# mo!ed to $ithdra$ the information a together and its motion $as granted. %an the prosecution re" fi e the information a though this time for
Before the Pro!incia Prosecutor cou d comp y $ith the directi!e of the (ecretary of /ustice# the court issued a $arrant of arrest against N.
,he Pub ic Prosecutor fi ed a Botion to Iuash the 8arrant of &rrest and to 8ithdra$ the -nformation# attaching to it the 5eso ution of the (ecretary of /ustice. ,he court denied the motion. ;61<
murder: )=p ain ;31<

SUGGESTED ANSWER4
&. Jes# pro!ided notice is gi!en to the offended party and the court states its reasons for granting the same. ("#le 110% sec. 14'.
a< 8as there a ega basis for the court to deny the motion:
b< -f you $ere the counse for the accused# $hat
remedies# if any# $ou d you pursue:
SUGGESTED ANSWER4
dismissed on the ground that the -nformation is defecti!e because the officer signing it ac7ed the authority to do so. ,he Pro!incia Prosecutor opposes the motion on the ground of estoppe as B% did not mo!e to @uash the -nformation before arraignment. -f you are counse for B%# $hat is your argument to refute the opposition of the Pro!incia Prosecutor: ;51<
SUGGESTED ANSWER4
- $ou d argue that since the Pro!incia Prosecutor had no authority to fi e the information# the court did not ac@uire jurisdiction o!er the person of the accused and o!er the subject matter of the offense
charged. D&999B!. ?ence# this ground is not $ai!ed if not raised in a motion to @uash and cou d be raised at the pre" tria . )nformation" :otion to Auas, ('((7) 5odo fo is charged $ith possession of un icensed firearms in an -nformation fi ed in the 5,%. -t $as a eged therein that 5odo fo $as in possession of t$o un icensed firearmsK a .45 ca iber and"a .32 ca iber. 'nder 5epub ic &ct .o. >2A4# possession of an un icensed .45 ca iber gun is punishab e by prision mayor in its minimum period and a fine of P3D.DDD.DD# $hi e possession of an un icensed .32 ca iber gun is punishab e by prision correctiona in its ma=imum period and a fine of not ess than P15#DDD.DD. &s counse of the accused# you intend to fi e a motion to @uash the -nformation. 8hat ground or grounds shou d you in!o7e: )=p ain. ;41<
SUGGESTED ANSWER4
(Cu#ia v. Court of )$$eals, 2/' SC ) &7(
,he ground for the motion to @uash is that more than one offense is charged in the information. (Sec. 3[! % "#le 117% 2000 "#les o! )riminal +roced#re' 4i7e$ise# the 5,% has no jurisdiction o!er the second offense of
(Sec. 3%
(Sec. 8% "#le 117% "#les o! )o#r('. Remedial Law Bar Examination Q & A (1997-2006) a.
Jes# there is a ega basis for the court to deny the motion to @uash the $arrant of arrest and to $ithdra$ the information. ,he court is not bound by the 5eso ution of the (ecretary of /ustice. (Cres$o v.
Mogul, &*& SC ) '62 D&9/7B!.
b. -f - $ere the counse for the accused# $ou d surrender the accused and app y for bai because the offense is mere y homicide# a non" capita offense. &t the pre"tria # - $ou d ma7e a stipu ation of facts $ith the prosecution $hich $ou d sho$ that no offense $as committed.
)nformation" :otion to Auas, ('((()
B% is charged $ith i ega possession of firearms under an -nformation signed by a Pro!incia Prosecutor. &fter arraignment but before pre"tria # B% found out that the Pro!incia Prosecutor had no authority to sign and fi e the information as it $as the %ity Prosecutor $ho has such authority. During the pre" tria # B% mo!es that the case against him be
Page 46 of 66 by: sirdondee@gmail.com possession of an un icensed .32 ca iber gun# punishab e by prision correctiona in its ma=imum period and a fine of not ess than P15.DDD.DD. -t is the B,% that has e=c usi!e and origina jurisdiction o!er a offenses punishab e by imprisonment not e=ceeding si= years.
(Sec. 2% ".1. .o. 7691% amending 6.+. 6lg. 129'
$hich e=isting a$s prescribe a sing e punishment for !arious offensesF f< ,hat the crimina action or iabi ity has been e=tinguishedF g< ,hat it contains a!erments $hich# if true# $ou d constitute a ega e=cuse or justificationF and
h< ,hat the accused has been pre!ious y con!icted or in jeopardy of being con!icted# or ac@uitted of the offense charged.
"#le 117. "#les o! )riminal +roced#re.'
SUGGESTED ANSWER4
)nformation" :otion to Auas," 3rounds (199!)
1. 6i!e t$o ;2< grounds to @uash an -nformation.0212

2. -f the -nformation is not accompanied by a certification that a pre iminary in!estigation has
2. .o. ,he certification $hich is pro!ided in (ec. 4# 5u e 112. 5u es of %rimina Procedure# is not an indispensab e part of the information. (Peo$le
vs. 8a$ura, 2** SC ) /*.!
been conducted. -s the -nformation !oid: 0312

SUGGESTED ANSWER4
1. ,$o grounds to @uash an -nformation areK a< ,hat the facts charged do not constitute an offenseF and b< ,hat the court trying the case has no jurisdiction o!er the offense charged or the person of the accused. c< ,hat the officer $ho fi ed the information had no authority to do soF d< ,hat it does not conform substantia y to the prescribed formF e< ,hat more than one offense is charged e=cept in those cases in
Judgment" Promulgation of Judgment (1997)
N# the accused in a homicide case before the 5,%. Dagupan %ay# $as persona y notified of the promu gation of judgment in his case set for 1D December 1AA6. *n said date. N $as not present as he had to attend to the tria of another crimina case against him in ,ar ac# ,ar ac. ,he tria court denied the motion of the counse of N to postpone the promu gation. ;a< ?o$ sha the court promu gate the judgment in the absence of the accused:
;b< %an the tria court a so order the arrest of N:
SUGGESTED ANSWER4
;a< -n the absence of the accused# the promu gation sha be made by recording the /udgment in the
Remedial Law Bar Examination Q & A
(1997-2006)
Page 47 of 66
crimina doc7et and a copy thereof ser!ed upon the accused or counse . (Sec. 6. (3ird 9ar.% "#le 120'
;b< .o# the tria court cannot order the arrest of N if the judgment is one of ac@uitta and# in any e!ent# his fai ure to appear $as $ith justifiab e cause since he had to attend to another crimina case against him. Jurisdiction" Com le; Crimes ('((.)
-n comp e= crimes# ho$ is the jurisdiction of a court determined: 41

SUGGESTED ANSWER4
-n a comp e= crime# jurisdiction o!er the $ho e comp e= crime must be odged $ith the tria court ha!ing jurisdiction to impose the ma=imum and most serious pena ty imposab e on an offense forming part of the comp e= crime. (Cu.os v. "arcia, &60 SC ) (02
D&9//B!.
Jurisdiction" &inality of a Judgment ('((7)
Bariano $as con!icted by the 5,% for raping 3ictoria and meted the pena ty of rec usion perpetua. 8hi e ser!ing sentence at the .ationa Penitentiary# Bariano and 3ictoria $ere married. Bariano fi ed a motion in said court for his re ease from the penitentiary on his c aim that under 5epub ic &ct .o. >353# his marriage to 3ictoria e=tinguished the crimina action against him for rape# as $e as the pena ty imposed on him. ?o$e!er# the court denied the motion on the ground that it had ost jurisdiction o!er the case after its decision had become fina and e=ecutory. ;71< a) Is the filing of the ourt orre t! "#plain$
SUGGESTED ANSWER4
.o. ,he court can ne!er ose jurisdiction so ong as its decision has not yet been fu y imp emented and satisfied. +ina ity of a judgment cannot operate to di!est a court of its jurisdiction. ,he court retains an interest in seeing the proper e=ecution and imp ementation of its judgments# and to that e=tent# may issue such orders necessary and appropriate for these purposes. (4chegara. v. Secretar. of -ustice, ". .
%o. &(20*, -anuar. &9, &999!
b) %hat remedy&remedies should the ounsel of 'ariano ta(e to se ure his proper and most e#peditious release from the )ational *enitentiary! "#plain$
SUGGESTED ANSWER4
,o secure the proper and most e=peditious re ease of Bariano from the .ationa Penitentiary# his counse shou d fi eK ;a< a petition for habeas corpus for the i ega confinement of Bariano ;5u e 1D2<# or ;b< a motion in the court $hich con!icted him# to nu ify the e=ecution of his sentence or the order of his commitment on the ground that a super!ening de!e opment had occurred (Melo v. Peo$le, ". . %o.
86(*/0, March 22, &9*0! despite the fina ity of the
judgment.
Parties" Prosecution of *ffenses ('((()
Jour friend JJ# an orphan# 16 years o d# see7s
your ega ad!ice. (he te s you that OO# her unc e# subjected her to acts of asci!iousnessF that $hen she to d her grandparents# they to d her to just 7eep @uiet and not to fi e charges against OO# their son. +ee ing !ery much aggrie!ed# she as7s you ho$ her unc e OO can be made to ans$er for his crime. a< 8hat $ou d your ad!ice be: )=p ain. ;31< b< (uppose the crime committed against JJ by her unc e OO is rape# $itnessed by your mutua friend NN. But this time# JJ $as pre!ai ed upon by her grandparents not to fi e charges. NN as7s you if she can initiate the comp aint against OO. 8ou d your ans$er be the same: )=p ain. ;21<.
SUGGESTED ANSWER4
;a< - $ou d ad!ise the minor# an orphan of 16 years of

age# to fi e the comp aint herse f independent y of her grandparents# because she is not incompetent or incapab e to doing so upon grounds other than her minority. (Sec. 5% "#le 110% "#les o! )riminal +roced#re.'
;b< (ince rape is no$ c assified as a %rime &gainst

Persons under the &nti"5ape 4a$ of 1AA7 ("1 8353'% $ou d ad!ise NN to initiate the comp aint against OO.
Plea of 3uilty" to a 0esser *ffense ('((')

D $as charged $ith theft of an artic e $orth p15#DDD.DD. 'pon being arraigned# he p eaded not gui ty to the offense charged. ,hereafter# before tria commenced# he as7ed the court to a o$ him to change his p ea of not gui ty to a p ea of gui t but on y to estafa in!o !ing P5#DDD.DD. %an the court a o$ D to change his p ea: 8hy: ;21<
SUGGESTED ANSWER4
.o# because a p ea of gui ty to a esser offense may be a o$ed if the esser offense is necessari y inc uded in the offense charged. ("#le 116% sec. 2'. )stafa in!o !ing P5#DDD.DD is not necessari y inc uded in theft of an artic e $orth P15#DDD.DD
Pre/udicial Auestion (1999)
8hat is a prejudicia @uestion: ;21<

SUGGESTED ANSWER4
& prejudicia @uestion is an issue in!o !ed in a ci!i action $hich is simi ar or intimate y re ated to the issue raised in the crimina action# the reso ution of $hich determines $hether or not the crimina action may proceed.
(Sec. 5 o! "#le 111.'
ANOT5ER ANSWER4
& prejudicia @uestion is one based on a fact distinct and separate from the crime but so intimate y connected $ith it that it determines the gui t or innocence of the accused.
Pre/udicial Auestion ('((()
%N is charged $ith estafa in court for fai ure to remit to BB sums of money co ected by him ;%N< for BB in payment for goods purchased from BB# by
Version 1997-2006
!dated "# Dondee
because the defense of & in the ci!i action# that he ne!er so d the property to B and that his purported signatures in the first deed of sa e $ere forgeries# is a prejudicia @uestion the reso ution of $hich is determinati!e of his gui t or innocence. -f the first sa e is nu and !oid# there $ou d be no doub e sa e and & $ou d be innocent of the offense of estafa.
( as v. asul, &00 SC ) &2*.!
Pre$%rial Agreement ('((?)

Bayor ,B $as charged of ma !ersation through fa sification of officia documents. &ssisted by &tty. *P as counse de parte during pre"tria # he signed together $ith *mbudsman Prosecutor ,6 a L/oint (tipu ation of +acts and Documents#L $hich $as presented to the (andiganbayan. Before the court cou d issue a pre"tria order but after some de ay caused by &tty. *P# he $as substituted by &tty. I5 as defense counse . &tty. I5 forth$ith fi ed a motion to $ithdra$ the L/oint (tipu ation#L a eging that it is prejudicia to the accused because it contains# inter
(Sec. 5% "#le
depositing the amounts in his ;%NHs< persona ban7 account. %N fi es a motion to suspend proceedings pending reso ution of a ci!i case ear ier fi ed in court by %N against BB for accounting and damages in!o !ing the amounts subject of the crimina case. &s the prosecutor in the crimina case# brief y discuss your grounds in support of your opposition to the motion to suspend proceedings. ;51<.
SUGGESTED ANSWER4
("#le 118%
(Sec. 1 o! !ormer "#le 20$ Sec% 1 o! ne& "#le
&s the prosecutor# - $i argue that the motion to suspend is not in order for the fo o$ing reasonsK 1. ,he ci!i case fi ed by %N against BB for accounting and damages does not in!o !e an issue simi ar to or intimate y re ated to the issue of estafa raised in the crimina action.
2. ,he reso ution of the issue in the ci!i case for accounting $i not determine $hether or not the
crimina action for estafa may proceed.

111% "#les o! )riminal +roced#re.'
Pre/udicial Auestion" Sus ension of Criminal Action (1999)

& a eged y so d to B a parce of and $hich & ater a so so d to N. B brought a ci!i action for nu ification of the second sa e and as7ed that the sa e made by & in his fa!or be dec ared !a id. & theoriEed that he ne!er so d the property to B and his purported signatures appearing in the first deed of sa e $ere forgeries. ,hereafter# an -nformation for estafa $as fi ed against & based on the same doub e sa e that $as the subject of the ci!i action. & fi ed a LBotion for (uspension of &ctionL in the crimina case# contending that the reso ution of the issue in the ci!i case $ou d necessari y be determinati!e of his gui t or innocence. -s the suspension of the crimina action in order: )=p ain. ;21<
SUGGESTED ANSWER4
Jes. ,he suspension of the crimina action is in order
Page 4> of 66 a ia# the statement that the LDefense admitted a the
documentary e!idence of the Prosecution#L thus
mandatory.
18'.
ea!ing the accused itt e or no room to defend himse f# and !io ating his right against se f" incrimination. (hou d the court grant or deny I5Gs motion: 5eason. ;51<
SUGGESTED ANSWER4
2. ,he pre"tria in a crimina case does not consider the possibi ity of a compromise# $hich is one important aspect of the pre"tria in a ci!i case.
3. -n a crimina
,he court shou d deny I5Gs motion. -f in the pre" tria agreement signed by the accused and his counse # the accused admits the documentary e!idence of the prosecution# it does not !io ate his right against se f" incrimination. ?is a$yer cannot fi e a motion to $ithdra$. & pre"tria order is not needed. (Ba.as v. San#igan3a.an, (9& SC ) '&*(2002N!. ,he admission of such documentary e!idence is a o$ed by the ru e.
(Sec. 2 of ule &&/; Peo$le v. <ernan#eA, 260 SC ) 2* D&996B!.
case# a pre"tria agreement is re@uired to be reduced to $riting and signed by the accused and his counse (See$ "#le 118% Sec. 4'F $hi e in a ci!i case# the agreement may be
contained in the pre"tria order. (Sec. 4 o! !ormer

"#le 20$ See 7 o! ne& "#le 78'.
Provisional 8ismissal ('((')

-n a prosecution for robbery against D# the prosecutor mo!ed for the postponement of the first schedu ed hearing on the ground that he had ost his records of the case. ,he court granted the motion but# $hen the ne$ date of tria arri!ed# the prosecutor# a eging that he cou d not ocate his $itnesses# mo!ed for the pro!isiona dismissa of the case. -f DHs counse does not object# may the court grant the motion of the prosecutor: 8hy: ;31<
SUGGESTED ANSWER4
Pre$%rial" Criminal Case vs. Civil Case (1997)
6i!e three distinctions bet$een a pre" tria in a crimina case and a pre"tria in a ci!i case.
SUGGESTED ANSWER4
,hree distinctions bet$een a pre"tria in a crimina case and a pre"tria in a ci!i case are as fo o$sK 1. ,he pre"tria in a crimina case is conducted on y
.o# because a case cannot be pro!isiona y dismissed e=cept upon the e=press consent of the accused and $ith notice to the offended party. ("#le 117% sec. 8'.
1emedies" 5oid Judgment ('((?)
&N $as charged before the JJ 5,% $ith theft of je$e ry !a ued at P2D.DDD# punishab e $ith
L$here the accused and counse agreeL Sec. 1'K $hi e the pre"tria in a ci!i case is
imprisonment of up to 1D years of prision mayor under the 5e!ised Pena %ode. &fter tria # he $as con!icted of the offense charged# not$ithstanding that the materia facts du y estab ished during the tria sho$ed that the offense committed $as estafa# punishab e by imprisonment of up to eight years of prision mayor under the said %ode. .o appea ha!ing been ta7en therefrom# said judgment of con!iction became fina . -s the judgment of con!iction !a id: -s the said judgment re!ie$ab e thru a specia ci!i action for certiorari: 5eason. ;51<
SUGGESTED ANSWER4
is not e!en necessary that a particu ar person be
Jes# the judgment of con!iction for theft upon an information for theft is !a id because the court had jurisdiction to render judgment. ?o$e!er# the judgment $as gross y and b atant y erroneous. ,he !ariance bet$een the e!idence and the judgment of con!iction is substantia since the e!idence is one for estafa $hi e the judgment is one for theft. ,he e ements of the t$o crimes are not the same. (8auro Santos v. Peo$le, &/& SC ) '/7!. *ne offense does not necessari y inc ude or is inc uded in the other. (Sec. 5 o! "#le 120'.
,he judgment of con!iction is re!ie$ab e by certiorari e!en if no appea had been ta7en# because the judge committed a gra!e abuse of discretion tantamount to ac7 or e=cess of his jurisdiction in con!icting the accused of theft and in !io ating due process and his right to be informed of the nature and the cause of the accusation against him# $hich ma7e the judgment !oid. 8ith the mista7e in charging the proper offense# the judge shou d ha!e directed the fi ing of the proper information and thereafter dismissed the origina information. (Sec. 19 o!
"#le 119'.
Searc, Barrant" :otion to Auas, ('((7)

Po ice operati!es of the 8estern Po ice District# Phi ippine .ationa Po ice# app ied for a search $arrant in the 5,% for the search of the house of /uan (antos and the seiEure of an undetermined amount of shabu. ,he team arri!ed at the house of (antos but fai ed to find him there. -nstead# the team found 5oberto %o. ,he team conducted a search in the house of (antos in the presence of 5oberto %o and barangay officia s and found ten ;1D< grams of shabu. 5oberto %o $as charged in court $ith i ega possession of ten grams of shabu. Before his arraignment# 5oberto %o fi ed a motion to @uash the $arrant on the fo o$ing grounds ;a< it $as not the accused named in the search $arrantF and ;b< the $arrant does not describe the artic e to be seiEed $ith sufficient particu arity. 5eso !e the motion $ith reasons. ;41<
SUGGESTED ANSWER4
,he motion to @uash shou d be denied. ,he name of the person in the search $arrant is not important. -t
Page 4A of 66
imp icated (Mantaring v. o,an, ).M. %o. 5-69(690', 2e3ruar. 2/, &996!, so ong as the search is conducted in the p ace $here the search $arrant $i be ser!ed. Boreo!er# describing the shabu in an undetermined amount is sufficient y particu ar.
(Peo$le v. 5ee, ". .
information may therefore be fi ed in ,agaytay %ity or %a amba or Ba7ati $hich ha!e concurrent territoria /urisdiction. (Catingu3 vs. Court of )$$eals,
&2& SC ) &06!.
%os. &'0*'66'7, -anuar. 20, 200(!
%rial" %rial in Absentia" Automatic 1evie2 of Conviction (199!)
1. 8hat are the re@uisites of a tria in absentia: 0212 2. -f an accused $ho $as sentenced to death escapes# is there sti a ega necessity for the (upreme %ourt to re!ie$ the decision of con!iction: 0312
SUGGESTED ANSWER4
1. ,he re@uisites of tria in absentia areK ;a< the accused has a ready been arraignedF ;b< he has been du y notified of the tria F and ;c< his fai ure to appear is unjustifiab e. (Sec. &' D2B, )rticle +++. Constitution;
Para#a vs. =eneracion, 269 SC ) (7& D&997B.!
2. Jes# there is sti a ega necessity for the (upreme %ourt (as o! 2004 (3e )o#r( o! 199eals 3as (3e @#risdic(ion (o s#c3 re*ie&' to re!ie$ the decision of con!iction sentencing the accused to death# because he is entit ed to an automatic re!ie$ of the death sentence. (Sees.
(DeB an# &0, ule &22, ules of Cri,inal Proce#ure; Peo$le vs. 4s$argas, 260 SC ) *(9.!
5enue (1997)
8here is the proper !enue for the fi ing of an information in the fo o$ing cases: a< ,he theft of a car in Pasig %ity $hich $as brought to *bando# Bu acan# $here it $as canniba iEed.
b< ,he theft by N# a bi co ector of &B% %ompany# $ith main offices in Ba7ati %ity# of his co ections from customers in ,agaytay %ity. -n the contract of emp oyment# N $as detai ed to the %a amba branch office# 4aguna# $here he $as to turn in his co ections.
c< ,he ma !ersation of pub ic funds by a Phi ippine consu detai ed in the Phi ippine )mbassy in 4ondon.
SUGGESTED ANSWER4
;a< ,he proper !enue is in Pasig %ity $here the theft of the car $as committed# not in *bando $here it $as canniba iEed. ,heft is not a continuing offense.
(Peo$le v Merca#o, 6* Phil 66*!.
;b< -f the crime charged is theft# the !enue is in %a amba $here he did not turn in his co ections. -f the crime of N is estafa# the essentia ingredients of the offense too7 p ace in ,agaytay %ity $here he recei!ed his co ections# in %a amba $here he shou d ha!e turned in his co ections# and in Ba7ati %ity $here the &B% %ompany $as based. ,he
Admissibility ('((')
;c< ,he proper court is the (andiganbayan $hich has jurisdiction o!er crimes committed by a consu or higher officia in the dip omatic ser!ice. (Sec.
'(c!. P0 &606, as a,en#e# 3. ). %o. 797*!.
,he
(%uneA
(andiganbayan
is
nationa
court.
v. San#igan3a.an, &&& SC ) '(( D&9/2B. -t has
on y one !enue at present# $hich is in Betro Bani a# unti 5&. .o. 7A75# pro!iding for t$o other branches in %ebu and in %agayan de *ro# is imp emented.
A (%&#"(i$% A#'-%&'4
;b< ,he information may be fi ed either in %a amba or in Ba7ati %ity# not in ,agaytay %ity $here no offense had as yet been committed#
;c< &ssuming that the (andiganbayan has no jurisdiction# the proper !enue is the first 5,% in $hich the charge is fi ed (Sec. 15(d'. "#le
110'.
E3IDENCE
Admissibility (199!)
,he barangay captain reported to the po ice that N $as i ega y 7eeping in his house in the barangay an &rma ite B16 rif e. *n the strength of that information# the po ice conducted a search of the house of N and indeed found said rif e. ,he po ice raiders seiEed the rif e and brought N to the po ice station. During the in!estigation# he !o untari y signed a ($orn (tatement that he $as possessing said rif e $ithout icense or authority to possess# and a 8ai!er of 5ight to %ounse . During the tria of N for i ega possession of firearm# the prosecution submitted in e!idence the rif e. ($orn (tatement and 8ai!er of 5ight to %ounse # indi!idua y ru e on the admissibi ity in e!idence of theK
1. 5if eF 0212 2. ($orn (tatementF and 0211 3. 8ai!er of 5ight to %ounse of N. 0112
SUGGESTED ANSWER4
1. ,he rif e is not admissib e in e!idence because it $as seiEed $ithout a proper search $arrant. & $arrant ess search is not justified. ,here $as time to secure a search $arrant. (Peo le us. 9ncinada 3.1. Bo.
11+7'(E *ctober '. 1997 and ot,er cases)
2. ,he s$orn statement is not admissib e in e!idence because it $as ta7en $ithout informing him of his custodia rights and $ithout the assistance of counse $hich shou d be independent and competent and preferab y of the choice of the accused. (Peo le us.
JanuarioE '+7 SC1A +(!.)
3. ,he $ai!er of his right to counse is not admissib e because it $as made $ithout the assistance of counse of his choice. (Peo le us.
3omeCE '7( SC1A =...)
Page 5D of 66 &cting on a tip by an informant# po ice officers stopped a car being dri!en by D and ordered him to open the trun7. ,he officers found a bag containing
se!era 7i os of cocaine. ,hey seiEed the car and the cocaine as e!idence and p aced D under arrest. 8ithout ad!ising him of his right to remain si ent and to ha!e the assistance of an attorney# they @uestioned him regarding the cocaine. -n rep y# D said# P- donHt 7no$ anything about it. -t isnHt e!en my car.Q D $as charged $ith i ega possession of cocaine# a prohibited drug. 'pon motion of D# the court suppressed the use of cocaine as e!idence and dismissed the charges against him. D commenced proceedings against the po ice for the reco!ery of his car. -n his direct e=amination# D testified that he o$ned the car but had registered it in the name of a friend for con!enience. *n cross"e=amination# the attorney representing the po ice as7ed# P&fter your arrest# did you not te the arresting officers that it $asnHt your car:Q -f you $ere DHs attorney# $ou d you object to the @uestion: 8hy: ;51<
SUGGESTED ANSWER4
1.A. 7=.! (199')E secE '" Peo le v. :a,inayE .(' SC1A =77G.
ALTERNATI3E ANSWER4
Jes# because the @uestion did not ay the predicate to justify the cross"e=amination @uestion.
Admissibility ('((?)
(gt. 65 of 8PD arrested t$o .P& suspects# Ba= and Bri=# both aged 22# in the act of robbing a grocery in )rmita. &s he handcuffed them he noted a pisto tuc7ed in Ba=Gs $aist and a dagger hidden under Bri=Gs shirt# $hich he prompt y confiscated. &t the po ice in!estigation room# Ba= and Bri= ora y $ai!ed their right to counse and to remain si ent. ,hen under oath# they free y ans$ered @uestions as7ed by the po ice des7 officer. ,hereafter they signed their s$orn statements before the po ice captain# a a$yer. Ba= admitted his part in the robbery# his possession of a pisto and his o$nership of the pac7et of shabu found in his poc7et. Bri= admitted his ro e in the robbery and his possession of a dagger. But they denied being .P& hit men. -n due course# proper charges $ere fi ed by the %ity Prosecutor against both arrestees before the BB 5,%.
Jes# because his admission made $hen he $as @uestioned after he $as p aced under arrest $as in !io ation of his constitutiona right to be informed of his right to remain si ent and to ha!e competent and independent counse of his o$n choice. ?ence# it is inadmissib e in e!idence. FConstitutionE Art. )))E sec. 1'"
Bay the $ritten statements signed and s$orn to by Ba= and Bri= be admitted by the tria court as e!idence for the prosecution: 5eason. ;51<
SUGGESTED ANSWER4
.o. ,he s$orn $ritten statements of Ba= and Bri= may not be admitted in e!idence# because they $ere not assisted by counse . )!en if the po ice captain
any other form of $riting# such term sha
be
before $hom they signed the statements $as a a$yer# he $as not functioning as a a$yer# nor can he be considered as an independent counse . 8ai!er of the right to a a$yer must be done in $riting and in the presence of independent counse . (Peo le v.
:a,inayE .(' SC1A =77 11999G" Peo le v. 9s irituE .(' SC1A 7.. F1999G).
Admissibility" Admission of 3uilt" 1e<uirements ('((+)
8hat are the re@uirements in order that an admission of gui t of an accused during a custodia in!estigation be admitted in e!idence: ;2.51<
SUGGESTED ANSWER4
1. 2. 3.
,he admission must be !o untary. ,he admission must be in $riting. ,he admission must be made $ith the assistance of competent# independent counse .
,he admission must be e=press (Peo$le v.
Prinsi$e, ". . %o. &(*/62, Ma. 2, 2002!.
4.
5.
-n case the accused $ai!es his rights to si ence and to counse # such $ai!er must be in $riting# e=ecuted $ith the assistance of competent# independent counse .
Admissibility" 8ocument" =ot raised in t,e Pleading ('((?)

-n a comp aint for a sum of money fi ed before the BB 5,%# p aintiff did not mention or e!en just hint at any demand for payment made on defendant before commencing suit. During the tria # p aintiff du y offered )=h. L&L in e!idence for the stated purpose of pro!ing the ma7ing of e=trajudicia demand on defendant to pay P5DD.DDD# the subject of the suit. )=h. L&L $as a etter of demand for defendant to pay said sum of money $ithin 1D days from receipt# addressed to and ser!ed on defendant some t$o months before suit $as begun. 8ithout objection from defendant# the court admitted )=h. L&L in e!idence. 8as the courtGs admission of )=h. L&L in e!idence erroneous or not: 5eason. ;51<
SUGGESTED ANSWER4
,he courtGs admission of )=h. L&L in e!idence is not erroneous. -t $as admitted in e!idence $ithout objection on the part of the defendant. -t shou d be treated as if it had been raised in the p eadings. ,he comp aint may be amended to conform to the e!idence# but if it is not so amended# it does not affect the resu t of the tria on this issue. (Sec. 5 o! "#le 10'.
Admissibility" 9lectronic 9vidence ('((.)
a< (tate the ru e on the admissibi ity of an e ectronic e!idence. b< 8hen is an e ectronic e!idence regarded as being the e@ui!a ent of an origina document under the Best )!idence 5u e: 41
SUGGESTED ANSWER4
;a< 8hene!er a ru e of e!idence refers to the term $riting# document# record# instrument# memorandum or
Page 51 of 66 deemed to inc ude an e ectronic document as defined in these 5u es. (Sec. 1 o! "#le 3% "#les o!
:lec(ronic :*idence e!!ec(i*e 1#g#s( 1% 2001'.
a< -s the photocopy rea ;object< e!idence or documentary e!idence: b< -s the photocopy admissib e in e!idence:
SUGGESTED ANSWER4
&n e ectronic document is admissib e in e!idence if it comp ies $ith the ru es on admissibi ity prescribed by the 5u es of %ourt and re ated a$s and is authenticated in the manner prescribed by these 5u es. (Sec. 2 o! "#le 3% 2d.'. ,he authenticity of any pri!ate e ectronic document must be pro!ed by e!idence that it had been digita y signed and other appropriate security measures ha!e been app ied. (Sec. 2 o! "#le
5% 2d.'.
a< ,he photocopy of the mar7ed bi s is rea ;object< e!idence not documentary e!idence# because the mar7ed bi s are rea e!idence. b< Jes# the photocopy is admissib e in e!idence# because the best e!idence ru e does not app y to object or rea e!idence.
Admissibility" *b/ections (1997)
8hat are the t$o 7inds of objections: )=p ain each brief y. 6i!en an e=amp e of each.
SUGGESTED ANSWER4
;b< &n e ectronic document sha be regarded as the e@ui!a ent of an origina document under the Best )!idence 5u e if it is a printout or output readab e by sight or other means# sho$n to ref ect the data accurate y. (Sec. 1 o! "#le 4'
Admissibility" *b/ect or 1eal 9vidence (199?)
&t the tria of &ce for !io ation of the Dangerous Drugs &ct# the prosecution offers in e!idence a photocopy of the mar7ed P1DD.DD bi s used in the Pbuy"bustQ operation. &ce objects to the introduction of the photocopy on the ground that the Best )!idence 5u e prohibits the introduction of secondary e!idence in ieu of the origina .
,$o 7inds of objections areK ;1< the e!idence being presented is not re e!ant to the issueF and ;2< the e!idence is incompetent or e=c uded by the a$ or the ru es# (Sec. 3% "#le 138'. &n e=amp e of the first is $hen the prosecution offers as e!idence the a eged offer of an -nsurance company to pay for the damages suffered by the !ictim in a homicide case.
(See 1997 .o. 14'. )=amp es of the second are e!idence obtained in !io ation of the %onstitutiona prohibition against unreasonab e searches and seiEures and confessions and admissions in !io ation of the rights of a person under custodia -n!estigation.
ALTERNATI3E ANSWERS4
1< (pecific objectionsK )=amp eK paro e!idence and best e!idence ru e 6enera *bjectionsK )=amp eK continuing objections ;(ec. 37 of 5u e 132<.
2< ,he t$o 7inds of objections areK ;1< objection to a @uestion propounded in the course of the ora e=amination of the $itness and ;2< objection to an offer of e!idence in $riting. *bjection to a @uestion propounded in the course of the ora e=amination of a $itness sha be made as soon as the grounds therefor sha become reasonab y apparent other$ise# it is $ai!ed. &n offer of objection in $riting sha be made $ithin three ;3< days after notice of the offer# un ess a different period is a o$ed by the court. -n both instances the grounds for objection must be specified. &n e=amp e of the first is $hen the $itness is being cross"e=amined and the cross e=amination is on a matter not re e!ant. &n e=amp e of the second is that the e!idence offered is not the best e!idence.
the injuries and in e!idence:
damages
of
admissib e
Admissibility" *ffer to :arry" Circumstantial 9vidence (199!)
& $as accused of ha!ing raped N. 5u e on the admissibi ity of the fo o$ing pieces of e!idenceK 1. an offer of & to marry NF and ;312
2. a pair of short pants a eged y eft by & at the crime $hich the court# o!er the objection of &# re@uired him to put on# and $hen he did# it fit
o! )o#r('
(Sec. 1% "#le 130% "#les o! )o#r('
him $e . 0212
SUGGESTED ANSWER4
1. &Gs offer to marry N is admissib e in e!idence as an -mp ied admission of gui t because rape cases are not a o$ed to be compromised. (Sec. 27 of ule
&(9; Peo$le vs. 0o,ingo, 226 SC ) &*6.!
2. ,he pair of short pants# $hich fit the accused $e # is circumstantia e!idence of his gui t# a though standing a one it cannot be the basis of con!iction. ,he accused cannot object to the court re@uiring him to put the short pants on. -t is not part of his right against se f"incrimination because it is a mere physica act.
Admissibility" *ffer to Pay 9; enses (1997)
&# $hi e dri!ing his car# ran o!er B. & !isited B at the hospita and offered to pay for his hospita iEation e=penses. &fter the fi ing of the crimina case against & for serious physica injuries through rec7 ess imprudence. &Gs insurance carrier offered to pay for the injuries and damages suffered by B. ,he offer $as rejected because B considered the amount offered as inade@uate. a< -s the offer by & to pay the hospita iEation e=penses of B admissib e in e!idence: b< -s the offer by &Gs insurance carrier to pay for
Page 52 of
;Sec. 2% "#le 130% "#les
66
SUGGESTED ANSWER4
?ence# a pri!ate document may be presented

as object e!idence in order to Gestab ish certain physica e!idence or characteristics that are !isib e on the paper and $ritings that comprise the document.
;a< ,he offer by & to pay the hospita iEation e=penses of B is not admissib e in e!idence to pro!e his gui t in both the ci!i and crimina cases. ("#le 130%
Sec. 27% !o#r(3 9ar.'.
;b< .o. -t is irre e!ant. ,he ob igation of the insurance company is based on the contract of insurance and is not admissib e in e!idence against the accused because it $as not offered by the accused but by the insurance company $hich is not his agent.
Admissibility" Proof of &iliation" Action of Partition ('((()

4inda and spouses &rnu fo and 5egina %eres $ere co"o$ners of a parce of and. 4inda died intestate and $ithout any issue. ,en ;1D< persons headed by /oce yn# c aiming to be the co atera re ati!es of the deceased 4inda# fi ed an action for partition $ith the 5,% praying for the segregation of 4indaHs T share# submitting in support of their petition the baptisma certificates of se!en of the petitioners# a fami y bib e be onging to 4inda in $hich the names of the petitioners ha!e been entered# a photocopy of the birth certificate of /oce yn# and a certification of the oca ci!i registrar that its office had been comp ete y raEed by fire. ,he spouses %eres refused to partition on the fo o$ing groundsK 1< the baptisma certificates of the parish priest are e!idence on y of the administration of the sacrament of baptism and they do not pro!e fi iation of the a eged co atera re ati!es of the deceasedF 2< entry in the fami y bib e is hearsayF 3< the certification of the registrar on non"a!ai abi ity of the records of birth does not pro!e fi iationK 4< in partition cases $here fi iation to the deceased is in dispute# prior and separate judicia dec aration of heirship in a sett ement of estate proceedings is necessaryF and 5< there is need for pub ication as rea
Admissibility" Private 8ocument ('((7)
Bay a pri!ate document be offered# and admitted in e!idence both as documentary e!idence and as object e!idence: )=p ain.
SUGGESTED ANSWER4
Jes# it can be considered as both documentary and object e!idence. & pri!ate document may be offered and admitted in e!idence both as documentary e!idence and as object e!idence. & document can a so be considered as an object for purposes of the case. *bjects as e!idence are those addressed to the
senses of the court.

Documentary e!idence consists of $ritings or any materia containing etters# $ords# numbers# figures# symbo s or other modes of $ritten e=pressions# offered ns proof of their contents.
memory on y. (,rancisco% "#les o! )o#r( Aol. A22% +ar( 2. 9. 154'
property is in!o !ed. &s counse for /oce yn and her co"petitioners# argue against the objections of the spouses %eres so as to con!ince the court to a o$ the partition. Discuss each of the fi!e ;5< arguments brief y but comp ete y. ;1D1<
SUGGESTED ANSWER4
;1< ,he baptisma certificate can sho$ fi iation or pro!e pedigree. -t is one of the other means a o$ed under the 5u es of %ourt and specia a$s to sho$ pedigree. (5rini#a# v. Court of )$$eals, 2/9 SC ) &//
D&99/B; <eirs of +8gnacio Conti v. Court of )$$eals, (00 SC ) ('* D&99/B!.
;2< )ntries in the fami y bib e may be recei!ed as e!idence of pedigree. (Sec. '0, ule &(0, ules of
Court!.
;3< ,he certification by the ci!i registrar of the non" a!ai abi ity of records is needed to justify the presentation of secondary e!idence# $hich is the photocopy of the birth certificate of /oce yn. (<eirs of
+gnacio Conti v. Court of )$$eals, su$ra.!
;4< Dec aration of heirship in a sett ement proceeding is not necessary. -t can be made in the ordinary action for partition $herein the heirs are e=ercising the right pertaining to the decedent# their predecessor"in" interest# to as7 for partition as co"o$ners ;-d.<
;5< )!en if rea property is in!o !ed# no pub ication is

necessary# because $hat is sought is the mere segregation of 4indaHs share in the property. (Sec. 1 o!
"#le 69$ 2d.'
Admissibility" 1ules of 9vidence (1997)
6i!e the reasons under ying the adoption of the fo o$ing ru es of e!idenceK ;a< Dead Ban 5u e ;b< Paro )!idence 5u e ;c< Best )!idence 5u e ;d< ,he ru e against the admission of i ega y obtained e=trajudicia confession
;e< ,he ru e against the admission of an offer of
compromise in ci!i cases

SUGGESTED ANSWER4
,he reasons behind the fo o$ing ru es are as fo o$sK ;a< +",+ ',) RU-"K if death has c osed the ips of one party# the po icy of the a$ is to c ose the ips of the other. ("oni v. Court
of)$$eals, 8677'('. Se$te,3er 2(, &9/6, &'' SC ) 222!. ,his is to pre!ent the temptation to perjury
because death has a ready sea ed the ips of the party.

;b< *,R.- "/I+")0" RU-"K -t is designed to gi!e certainty to a transaction $hich has been reduced to $riting# because $ritten e!idence is much more certain and accurate than that $hich rests on f eeting
Page 53 of 66 ;c< 1"23 "/I+")0" RU-"K ,his 5u e is

adopted for the pre!ention of fraud and is dec ared to
be essentia to the pure administration of justice. (;oran% Aol. 5% 9. 12.' -f a party is in possession of such e!idence and $ithho ds it# the presumption natura y arises that the better e!idence is $ithhe d for fraudu ent purposes. (,rancisco. "#les o! )o#r(%
*ol. A22. +ar( 2% 99% 121%122'
;d< &n i ega y obtained e=trajudicia confession nu ifies the intrinsic !a idity of the confession and renders it unre iab e as e!idence of the truth. (;oran% *ol. 5% 9. 257' it is the fruit of a poisonous tree.
;=ero=ed< copies of the promissory note# gi!ing one copy to B and retaining the other copy. & entrusted the type$ritten copy to his counse for safe7eeping. ,he copy $ith &Gs counse $as destroyed $hen the a$ office $as burned. a< -n an action to co ect on the promissory note# $hich is deemed to be the Lorigina L copy for the purpose of the LBest )!idence 5u eL: b< %an the photocopies in the hands of the parties be considered Ldup icate origina copiesL:
c< &s counse for &# ho$ $i you pro!e the oan
gi!en to & and B:

SUGGESTED ANSWER4
;e< ,he reason for the ru e against the admission of an offer of compromise in ci!i case as an admission of any iabi ity is that parties are encouraged to enter into compromises. %ourts shou d endea!or to persuade the itigants in a ci!i case to agree upon some fair compromise. (1r(. 2029% )i*il )ode'. During pre"tria # courts shou d direct the parties to consider the possibi ity of an amicab e sett ement. (Sec.
1[a o! !ormer "#le 20: Sec. 2 [a o! ne& "#le 16'.
;a< ,he copy that $as signed and ost is the on y Lorigina L copy for purposes of the Best )!idence 5u e. (Sec. 4 [b o! "#le 130'.
;b< .o# ,hey are not dup icate origina copies
because there are photocopies $hich $ere not signed ;:a,ilum v. Court of A ealsE 17 SC1A =!'<# ,hey constitute secondary e!idence. (Sec. 5 o!
"#le 130'.
Best 9vidence 1ule (1997)
8hen & oaned a sum of money to B. & typed a sing e copy of the promissory note# $hich they both signed & made t$o photo
;c< ,he oan gi!en by & to B may be pro!ed by secondary e!idence through the =ero=ed copies of the promissory note. ,he ru es pro!ide that $hen the origina document is ost or destroyed# or cannot be produced in court# the offerer# upon proof of its e=ecution or e=istence and the cause of its una!ai abi ity $ithout bad faith on his part# may pro!e its contents by a copy# or by a recita of its contents in some authentic document# or by the
Remedial Law Bar Examination Q & A (1997-2006) testimony of $itnesses in the order stated. (Sec. 5 o! "#le 130'.
$itnesses# usua y through intimidation or for a monetary consideration# 5ecanted testimony is e=ceeding y unre iab e. ,here is a $ays the probabi ity
Burden of Proof vs. Burden of 9vidence ('((?)
Distinguish Burden of proof and burden of e!idence.

SUGGESTED ANSWER4
Burden of proof is the duty of a party to present e!idence on the facts in issue necessary to estab ish his c aim or defense by the amount of e!idence re@uired by a$. (Sec. 1 o! "#le 131'% $hi e burden of e!idence is the duty of a party to go for$ard $ith the e!idence to o!erthro$ prima facie e!idence estab ished against him. (Bautista v. SarmientoE 1.! SC1A
7!7 F19!7G).
C,aracter 9vidence ('((')
D $as prosecuted for homicide for a eged y beating up 3 to death $ith an iron pipe. &. Bay the prosecution introduce e!idence that 3 had a good reputation for peacefu ness and non" !io ence: 8hy: ;21< B. Bay D introduce e!idence of specific !io ent acts by 3: 8hy: ;31<
SUGGESTED ANSWER4
&. ,he prosecution may introduce e!idence of the good or e!en bad mora character of the !ictim if it tends to estab ish in any reasonab e degree the probabi ity or improbabi ity of the offense charged. ["#le 130% sec. 51 a (3' . -n this case# the e!idence is not re e!ant. B. Jes# D may introduce e!idence of specific !io ent acts by 3. )!idence that one did or did not do a certain thing at one time is not admissib e to pro!e that he did or did not do the same or a simi ar thing at another timeF but it may be recei!ed to pro!e a specific intent or 7no$ edge# identity# p an# system# scheme# habit# custom or usage# and the i7e. ("#le 130% sec. 34'.
Confession" Affidavit of 1ecantation (199!)
(Sec. 49%
1. -f the accused on the $itness stand repeats his ear ier uncounse ed e=trajudicia confession imp icating his co"accused in the crime charged# is that testimony admissib e in e!idence against the atter: 0312 2. 8hat is the probati!e !a ue of a $itnessG &ffida!it of 5ecantation: 0212
SUGGESTED ANSWER4
1. Jes. ,he accused can testify by repeating his ear ier uncounse ed e=trajudicia confession# because he can be subjected to cross"e=amination.
2. *n the probati!e !a ue of an affida!it of recantation# courts oo7 $ith disfa!or upon recantations because they can easi y be secured from
that it $i
SC1A
Page 54 of 66 be repudiated. (:olina vs. Peo le. '79
1.!.)
&acts" 0egislative &acts vs. Ad/udicative &acts ('((?)
?earsay e!idence consists of testimony that is not based on persona 7no$ edge of the person testifying# (see Sec. 36% "#le 130'% $hi e opinion e!idence is e=pert e!idence based on the persona 7no$ edge s7i #
4egis ati!e facts and adjudicati!e facts.

SUGGESTED ANSWER4
4egis ati!e facts refer to facts mentioned in a statute or in an e=p anatory note# $hi e adjudicati!e facts are facts found in a court decision.
6earsay 9vidence ('((')
e=perience or training of the person testifying 2d.' and e!idence of an ordinary $itness on imited matters (Sec. 50% 2d.'.
6earsay" 9;ce tion" 8ead :an Statute ('((1)
5omeo is sued for damages for injuries suffered by the p aintiff in a !ehicu ar accident. /u ieta# a $itness in court# testifies that 5omeo to d her ;/u ieta< that he ;5omeo< heard &ntonio# a $itness to the accident# gi!e an e=cited account of the accident immediate y after its occurrence. -s /u ietaHs testimony admissib e against 5omeo o!er proper and time y objection: 8hy: ;51<
SUGGESTED ANSWER4
.o# /u ietaHs testimony is not admissib e against 5omeo# because $hi e the e=cited account of &ntonio# a $itness to the accident# $as to d to 5omeo# it $as on y 5omeo $ho to d /u ieta about it# $hich ma7es it hearsay.
6earsay 9vidence vs. * inion 9vidence ('((?)
Ba=imo fi ed an action against Pedro# the administrator of the estate of deceased /uan# for the reco!ery of a car $hich is part of the atterHs estate. During the tria # Ba=imo presented $itness Bariano $ho testified that he $as present $hen Ba=imo and /uan agreed that the atter $ou d pay a renta of P2D#DDD.DD for the use of Ba=imoHs car for one month after $hich /uan shou d immediate y return the car to Ba=imo. Pedro objected to the admission of BarianoHs testimony. -f you $ere the judge# $ou d you sustain PedroHs objection: 8hy: ;51<
SUGGESTED ANSWER4
?earsay e!idence and opinion e!idence.

SUGGESTED ANSWER4
.o# the testimony is admissib e in e!idence because $itness Bariano $ho testified as to $hat Ba=imo and /uan# the deceased person agreed upon# is not dis@ua ified to testify on the agreement. ,hose dis@ua ified are parties or assignors of parties to a case# or persons in $hose beha f a case is prosecuted# against the administrator or /uanHs estate# upon a
c aim or demand against his estate as to any matter of fact occurring before /uanHs death. (Sec. 23 o! "#le 130'
6earsay" 9;ce tion" 8ying 8eclaration (199!)
$as testifying on $hat he actua y obser!ed. ,he paragraph of (ec. 5D# 5u e 13D# 5e!ised 5u es of
ast
5e@uisites of Dying Dec aration. 021<

SUGGESTED ANSWER4
,he re@uisites for the admissibi ity of a dying dec aration areK ;a< the dec aration is made by the deceased under the consciousness of his impending deathF ;b< the deceased $as at the time competent as a $itnessF ;c< the dec aration concerns the cause and surrounding circumstances of the dec arantGs deathF and ;d< the dec aration is offered in a ;crimina < case $herein the dec arantGs death is the subject of in@uiry.
(People vs.Santos, 270 SCRA 650.)
ALTERNATI3E ANSWER4
,he dec aration of a dying person# made under the consciousness of an impending death# may be recei!ed in any case $herein his death is the subject of -n@uiry# as e!idence of the cause and surrounding circumstances of such death. (Sec. 37 o! "#le 13B.'
6earsay" 9;ce tion" 1es 3estae" * inion of *rdinary Bitness ('((7)

Dencio barged into the house of Barce a# tied her to a chair and robbed her of assorted pieces of je$e ry and money. Dencio then brought %andida# Barce aGs maid# to a bedroom $here he raped her. Barce a cou d hear %andida crying and p eadingK L?u$agU Baa$a 7a sa a7inUL &fter raping %andida# Dencio f ed from the house $ith the oot. %andida then untied Barce a and rushed to the po ice station about a 7i ometer a$ay and to d Po ice *fficer 5oberto Baa$a that Dencio had barged into the house of Barce a# tied the atter to a chair and robbed her of her je$e ry and money. %andida a so re ated to the po ice officer that despite her p eas# Dencio had raped her. ,he po iceman noticed that %andida $as hysterica and on the !erge of co apse. Dencio $as charged $ith robbery $ith rape. During the tria # %andida can no onger be ocated. ;>1<
a! +f the $rosecution $resents Police 9fficer o3erto Maawa to testif. on what Can#i#a ha# tol# hi,, woul# such testi,on. of the $olice,an 3e hearsa.; 47$lain.
SUGGESTED ANSWER4
.o. ,he testimony of the po iceman is not hearsay. -t is part of the res gestae. -t is a so an independent y re e!ant statement. ,he po ice officer testified of his o$n persona 7no$ edge# not to the truth of %andidaGs statement# i.e.# that she to d him# despite her p eas# Dencio had raped her. (Peo$le v. "a##i,". .
%o. 7'06*, 2e3ruar. 27,&9/9! 3! +f the $olice officer will testif. that he notice# Can#i#a to 3e h.sterical an# on the verge of colla$se, woul# such testi,on. 3e consi#ere# as o$inion, hence, ina#,issi3le; 47$lain.
SUGGESTED ANSWER4
.o# it cannot be considered as opinion# because he
Page 55 of
66
)!idence# e=press y pro!ides that a $itness may testify on his impressions of the emotion# beha!ior# condition or appearance of a person.
6earsay" 9;ce tions (1999)
a< Define hearsay e!idence: ;21<

b< 8hat are the e=ceptions to the hearsay ru e: ;21<
SUGGESTED ANSWER4
$ounds. -t appears that e e!en ;11< hours after the crime# $hi e the !ictim $as being brought to the hospita in a jeep# $ith his brother and a po iceman as companions# the !ictim $as as7ed certain @uestions $hich he ans$ered# pointing to the accused as his assai ant. ?is ans$ers $ere put do$n in $riting# but since he $as a in a critica condition# his brother and the po iceman signed the statement. -s the statement admissib e as a dying dec aration: )=p ain. ;21<
SUGGESTED ANSWER4
a. ?earsay
e!idence may be defined as e!idence that consists of testimony not coming from persona 7no$ edge (Sec. 36% "#le 130% "#les o! )o#r('. ?earsay testimony is the testimony of a $itness as to $hat he has heard other persons say about the facts in issue.
Jes. ,he statement is admissib e as a dying dec aration if the !ictim subse@uent y died and his ans$ers $ere made under the consciousness of impending death (Sec. 37 o! "#le 130'. ,he fact that he did not sign the statement point to the accused as his assai ant# because he $as in critica condition# does not affect its admissibi ity as a dying dec aration. & dying dec aration need not be in $riting (Peo$le v.
=iovicente, 2/6 SC ) &!
b. ,he e=ceptions to the hearsay ru e areK dying dec aration# dec aration against interest# act or dec aration about pedigree# fami y reputation or tradition regarding pedigree# common reputation# part of the res ges(ae# entries in the course of business# entries in officia records# commercia ists and the i7e# earned treatises# and testimony or deposition at
6earsay" )na
licable ('((.)
a former proceeding. (37 (o 47% "#le 13B% "#les

o! )o#r('
N $as charged $ith robbery. *n the strength of a $arrant of arrest issued by the court# N $as arrested by po ice operati!es. ,hey seiEed from his person a handgun. & charge for i ega possession of firearm $as a so fi ed against him. -n a press conference ca ed by the po ice# N admitted that he had robbed the !ictim of je$e ry !a ued at P5DD#DDD.DD. ,he robbery and i ega possession of firearm cases $ere tried joint y. ,he prosecution presented in e!idence a ne$spaper c ipping of the report to the reporter $ho $as present during the press conference
6earsay" 9;ce tions" 8ying 8eclaration (1999)

,he accused $as charged $ith robbery and homicide. ,he !ictim suffered se!era stab
stating that N admitted the robbery. -t i7e$ise presented a certification of the P.P +irearms and )=p osi!e *ffice attesting that the accused had no icense to carry any firearm. ,he certifying officer# ho$e!er# $as not presented as a $itness. Both pieces of e!idence $ere objected to by the defense. ;61<
(. 2oreign laws;
SUGGESTED ANSWER4
a< -s the ne$spaper c ipping admissib e in e!idence against N: b< -s the certification of the P.P +irearm and )=p osi!e *ffice $ithout the certifying officer testifying on it admissib e in e!idence against N:
SUGGESTED ANSWER4
;a<
Jes# the ne$spaper c ipping is admissib e
in
e!idence against N. regard ess of the truth or fa sity of a statement# the hearsay ru e does not app y and the statement may be sho$n $here the fact that it is made is re e!ant. )!idence as to the ma7ing of such statement is not secondary but primary# for the statement itse f may constitute a fact in issue or be circumstantia y re e!ant as to the e=istence of such fact. ("otesco +nvest,ent Cor$oration vs. Chatto, 2&0
SC ) &/ D&992B!
;b< Jes# the certification is admissib e in e!idence against N because a $ritten statement signed by an officer ha!ing the custody of an officia record or by his deputy that after di igent search no record or entry of a specified tenor is found to e=ist in the records of his office# accompanied by a certificate as abo!e pro!ided# is admissib e as e!idence that the records of his office contain no such record or entry.
(Sec. 28 o! "#le 132'.
Judicial =otice" 9vidence ('((7)
)=p ain brief y $hether the 5,% may# mo(# 9ro9rio# ta7e judicia notice ofK ;51< &. 5he street na,e of ,etha,$heta,ine h.#ro6chlori#e is sha3u.
SUGGESTED ANSWER4
,he 5,% may mo(# 9ro9rio ta7e judicia notice of the street name of methamphetamine hydroch oride is shabu# considering the chemica composition of shabu. (Peo$le v. Macasling, "M, %o. 90('2, Ma. 27,
&99(!
2. 9r#inances a$$rove# 3. ,unici$alities un#er its territorial ?uris#iction;

SUGGESTED ANSWER4
-n the absence of statutory authority# the 5,% may not ta7e judicia notice of ordinances appro!ed by municipa ities under their territoria jurisdiction# e=cept on appea from the municipa tria courts# $hich too7 judicia notice of the ordinance in @uestion. (:.S. v. Blanco, ". , %o. &2'(*, %ove,3er
9,&9&7; :.S. v. <ernan#eA, ". . %o. 9699, )ugust 26, &9&*!
(Sec. 1 o! "#le
(Sec. 46. "#le 130'.
Page 56 of 66 by: sirdondee@gmail.com ,he 5,% may not genera y ta7e judicia notice of foreign a$s (+n re 4state of -ohnson, ". . %o.
&2767, %ove,3er &6, &9&/; 2lue,er v. <i7, ". . %o. (26(6, March &7, &9(0!, $hich must be pro!ed i7e any other matter of fact (S. -oe 8ieng v. S. Guia, ". . %o. '7&/, March &9, &9&0! e=cept in a fe$
$u3lic $laces.
SUGGESTED ANSWER4
,he 5,% may ta7e judicia notice of the fact that rape may be committed e!en in pub ic p aces. ,he Lpub ic settingL of the rape is not an indication of consent.
(Peo$le v. 5ongson, ". . %o. 9&26&, 2e3ruar. &/, &99&!
instances# the court in the e=ercise of its sound judicia discretion# may ta7e notice of foreign a$s $hen Phi ippine courts are e!ident y fami iar $ith them# such as the (panish %i!i %ode# $hich had ta7en effect in the Phi ippines# and other a ied egis ation. (Par#o v. e$u3lic,
". . %o. 86
,he (upreme %ourt has ta7en judicia notice of the fact that a man o!ercome by per!ersity and beast y passion chooses neither the time# p ace# occasion nor !ictim. (Peo$le v, Barcelona, ". . %o. /2*/9, 9cto3er (&,
&990!
22'/ -anuar. 2(, &9*0; 0elga#o v. e$u3lic, ". . %o. 86 2*'6, -anuar. .2/, &9*0!
Judicial =otice" 9vidence" &oreign 0a2 (1997) a< 6i!e three instances $hen a Phi ippine court can ta7e judicia notice of a foreign a$. b< ?o$ do you pro!e a $ritten foreign a$:
c< (uppose a foreign a$ $as p eaded as part of the defense of defendant but no e!idence $as presented to pro!e the e=istence of said a$# $hat is the presumption to be ta7en by the court
'.
ules an# egulations issue# 3. >uasi6 ?u#icial 3o#ies i,$le,enting statutes;
SUGGESTED ANSWER4
,he 5,% may ta7e judicia notice of 5u es and 5egu ations issued by @uasi"judicia bodies imp ementing statutes# because they are capab e of un@uestionab e demonstration (Chatta,al v.
Collector %ove,3er of Custo,s, ". . %o. &6('7, (,&920!# un ess the a$ itse f
as to the $ordings of said a$L:

SUGGESTED ANSWER4
;a< ,he three instances $hen a Phi ippine court can ta7e judicia notice of a foreign a$ areK ;1< $hen the Phi ippine courts are e!ident y fami iar $ith the foreign a$ (;oran. Aol. 5% 9. 34% 1980 edi(ion'$ ;2< $hen the foreign a$ refers to the a$ of nations
129' and ;3< $hen it refers to a pub ished treatise#
considers such ru es as an integra part of the statute# in $hich case judicia notice becomes mandatory. *. a$e ,a. 3e co,,itte# even in
periodica or pamph et on the subject of a$ if the court ta7es judicia notice of the fact that the $riter thereof is recogniEed in his profession or ca ing as
e=pert on the subject

testimonia e!idence.
;b< & $ritten foreign a$ may be e!idenced by an officia pub ication thereof or by a copy attested by the officer ha!ing the ega custody of the record# or by his deputy# and accompanied. -f the record is not 7ept in the Phi ippines# $ith a certificate that such officer has the custody# if the office in $hich the record is 7ept is in a foreign country# the certificate may be made by a secretary of the embassy or egation# consu genera # consu # !ice"consu # or consu ar agent or by any officer in the foreign ser!ice of the Phi ippines stationed in the foreign country in $hich the record is 7ept# and authenticated by the sea of his office (Sec. 2', ule &(2, Eala,ea v. C), 22/
SC ) 2(!.
;c< ,he presumption is that the $ordings of the foreign a$ are the same as the oca a$.
(%orthwest 9rient )irlines v. Court of )$$eals, 2'& SC ) &92; Moran, =ol. 6. $age (', &9/0 e#ition; 8i, v. Collector of Custo,s, (6 Phil. '72!. ,his is 7no$n as the
P5*%)(('&4 P5)('BP,-*..
:emorandum (199+)
N states on direct e=amination that he once 7ne$ the facts being as7ed but he cannot reca them no$. 8hen handed a $ritten record of the facts he testifies that the facts are correct y stated# but that he has ne!er seen the $riting before. -s the $riting admissib e as past reco ection recorded: )=p ain#
SUGGESTED ANSWER4
.o# because for the $ritten record to be admissib e as past reco ection recorded. -t must ha!e been $ritten or recorded by N or under his direction at the time $hen the fact occurred# or immediate y thereafter# or at any other time $hen the fact $as fresh in his memory and he 7ne$ that the same $as correct y $ritten or recorded. (Sec. 16 o! "#le 132' But in this case N has ne!er seen the $riting before.
*ffer of 9vidence (1997)
& tria court cannot ta7e into consideration in deciding a case an e!idence that has not been Lforma y offeredL. 8hen are the fo o$ing pieces of e!idence forma y offered: ;a< ,estimonia e!idence ;b< Documentary e!idence ;c< *bject e!idence
SUGGESTED ANSWER4
;a< ,estimonia e!idence is forma y offered at the time the $itness is ca ed to testify. ("#le 132.
Sec. 35% !irs( 9ar.'.
;b< Documentary e!idence is forma y offered after the presentation of the testimonia e!idence.
("#le 132% Sec. 35% second 9ar.'.
;c< ,he same is true $ith object e!idence. -t is a so offered after the presentation of the
Page 57 of
66
*ffer of 9vidence" res inter alios acta ('((.)
N and J $ere charged $ith murder. 'pon app ication of the prosecution# J $as discharged from the -nformation to be uti iEed as a state $itness. ,he prosecutor presented J as $itness but forgot to state the purpose of his testimony much ess offer it in e!idence. J testified that he and N conspired to 7i the !ictim but it $as N $ho actua y shot the !ictim. ,he testimony of J $as the on y materia e!idence estab ishing the gui t of N. J $as thorough y cross" e=amined by the defense counse . &fter the prosecution rested its case# the defense fi ed a motion for demurrer to e!idence based on the fo o$ing grounds.
e=c uded because the defense counse did not object to his testimony despite the fact that the prosecutor forgot to state its purpose or offer it in e!idence. Boreo!er# the defense counse thorough y cross" e=amined J and thus $ai!ed the objection. b< ,he res in(er alios ac(a r#le does not app y because J testified in open court and $as subjected to cross e=amination.
*ffer of 9vidence" %estimonial - 8ocumentary (199?)
8hat is the difference bet$een of testimonia e!idence and an documentary e!idence:

SUGGESTED ANSWER4
an offer offer of
;a< ,he testimony of J shou d be e=c uded because its purpose $as not initia y stated and it $as not forma y offered in e!idence as re@uired by (ection 34# 5u e 132 of the 5e!ised 5u es of )!idenceF and ;b< JHs testimony is not admissib e against N pursuant to the ru e on Pres inter a ios actaQ. 5u e on the motion for demurrer to e!idence on the abo!e grounds. ;61<
SUGGESTED ANSWER4
&n offer of testimonia e!idence is made at the time the $itness is ca ed to testify# $hi e an offer of documentary e!idence is made after the presentation of a partyHs testimonia e!idence. (Sec.
35% "#le 132'.
* inion 1ule (199?)

&t .o anHs tria for possession and use of the prohibited drug# 7no$n as PshabuK# his gir friend 9im# testified that on a particu ar day# he $ou d see .o an !ery prim and proper# a ert and sharp# but that three days after# he $ou d appear haggard# tired and o!er y ner!ous at the s ightest sound he $ou d hear. .o an objects to the admissibi ity of 9imHs testimony on the ground that 9im mere y stated her opinion $ithout ha!ing been first @ua ified as e=pert $itness.
,he demurrer to the e!idence shou d be denied becauseK a< ,he testimony of J shou d not be
(hou d you# as judge# e=c ude the testimony of 9im:

testified that the truth is that the agreement bet$een him and 4ucio is for the atter to pay immediate y after ninety dayHs time. & so# since the origina note $as $ith 4ucio and the atter $ou d not surrender to Pedro the origina note $hich 4ucio 7ept in a p ace about one dayHs trip from $here he recei!ed the notice to produce the note and in spite of such notice to produce the same $ithin si= hours from receipt of such notice# 4ucio fai ed to do so. Pedro presented a copy of the note $hich $as e=ecuted at the same time as the origina and $ith identica contents. a< *!er the objection of 4ucio# $i Pedro be a o$ed to testify as to the true agreement or contents of the promissory note: 8hy: ;21<
b< *!er the objection of 4ucio# can Pedro present a copy of the promissory note and ha!e it admitted as !a id e!idence in his fa!or: 8hy: ;31<
SUGGESTED ANSWER4
a< Jes# because Pedro has a eged in his comp aint that the promissory note does not e=press the true intent and agreement of the parties. ,his is an e=ception to the paro e!idence ru e. [Sec. 9(b' o!
"#le 130% "#les o! )o#r(
b< Jes# the copy in the possession of Pedro is a dup icate origina and $ith identica contents. Boreo!er# the fai ure of 4ucio to produce
the origina of the note is e=cusab e because he $as not gi!en reasonab e notice# as re@uirement under the 5u es before secondary e!idence may be presented.
(Sec. 6 o! "#le 130% "#les o! )o#r('
=ote> The pro !""or# $o%e !" &$ &'%!o$&()e *o'+ e$% &$* %he or!,!$&) or & 'op# %hereo- "ho+)* h&.e (ee$ &%%&'he* %o %he 'o p)&!$%. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). I$
"+'h & '&"e/ %he ,e$+!$e$e"" &$* *+e e0e'+%!o$ o- %he $o%e/ !$o% *e$!e* +$*er o&%h/ 1o+)* (e *ee e* &* !%%e*.
(Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)
Pre onderance vs. Substantial 9vidence ('((.)
Distinguish preponderance substantia e!idence. 41

SUGGESTED ANSWER4
of
e!idence
from
[Sec. 4(b' o! "#le 130 . Remedial Law Bar Examination Q & A (1997-2006)
SUGGESTED ANSWER4
.o. ,he testimony of 9im shou d not be e=c uded. )!en though 9im is not an e=pert $itness# 9im may testify on her impressions of the emotion# beha!ior# condition or appearance of a person. (Sec. 50% las( 9ar.% "#le 130'.
Parol 9vidence 1ule ('((1)
Pedro fi ed a comp aint against 4ucio for the reco!ery of a sum of money based on a promissory note e=ecuted by 4ucio. -n his comp aint# Pedro a eged that a though the promissory note says that it is payab e $ithin 12D days# the truth is that the note is payab e immediate y after AD days but that if Pedro is $i ing# he may# upon re@uest of 4ucio gi!e the atter up to 12D days to pay the note. During the hearing# Pedro
Page 5> of
SUGGESTED ANSWER4
66
P5)P*.D)5&.%) *+ )3-D).%) means that the e!idence as a $ho e adduced by one side is superior to that of the other. ,his is app icab e in ci!i cases. (Sec. & of ule &((;
Munici$alit. of Monca#a v. Ca?uigan, 2& Phil, &/' D&9&2B!.
1. ,he ru e of marita pri!i ege cannot be in!o7ed in the annu ment case under 5u e 36 of the +ami y %ode because it is a ci!i case fi ed by one against the other#
(Sec. 22 % "#le 130. "#les o! )o#r(.'
('B(,&.,-&4 )3-D).%) is that amount of re e!ant e!idence $hich a reasonab e mind might accept as ade@uate to justify a conc usion. ,his is app icab e in case fi ed before administrati!e or @uasi" judicia bodies. (Sec. 5 o! "#le 133'
Privilege Communication (199!)
2. ,he doctrine of parenta pri!i ege cannot i7e$ise be in!o7ed by 8 as against the testimony of %# their chi d. % may not be compe ed to testify but is free to testify against her. (Sec. 25.
"#le 130. "#les o! )o#r($ 1r(. 215% ,amil- )ode.'
3. D# as a doctor $ho used to treat 8# is dis@ua ified to testify against 8 o!er her objection as to any ad!ice or treatment gi!en by him or any information $hich he may ha!e ac@uired in his professiona capacity. (Sec. 24
[c % "#le 130. "#les o! )o#r(.'
ALTERNATI3E ANSWER4
% is the chi d of the spouses ? and 8. ? sued his $ife 8 for judicia dec aration of nu ity of marriage under &rtic e 36 of the +ami y %ode. -n the tria # the fo o$ing testified o!er the objection of 8K %# ? and D# a doctor of medicine $ho used to treat 8. 5u e on 8Gs objections $hich are the fo o$ingK 1. ? cannot testify against her because of the ru e on marita pri!i egeF 0112 2. % cannot testify against her because of the doctrine on parenta pri!i egeF and 0212 3. D cannot testify against her because of the doctrine of pri!i eged communication bet$een patient and physician. 0212
-f the doctorGs testimony is pursuant to the re@uirement of estab ishing the psycho ogica incapacity of 8# and he is the e=pert ca ed upon to testify for the purpose# then it shou d be a o$ed.
( e$u3lic vs. Court of )$$eals an# Molina, 26S SC ) &9/.!
Privilege Communication" :arital Privilege (19!9)

*dy sued spouses %esar and Baby for a sum of money and damages. &t the tria # *dy ca ed Baby as his first $itness. Baby objected# joined by %esar# on the ground that she may not be compe ed to testify against her husband. *dy insisted and contended that after a # she $ou d just be @uestioned about a conference they had $ith the barangay captain# a
matter $hich is not confidentia in nature. ,he tria court ru ed in fa!or of *dy. 8as the ru ing proper: 8i your ans$er be the same if the matters to be testified on $ere 7no$n to Baby or ac@uired by her prior to her marriage to %esar: )=p ain.
SUGGESTED ANSWER4
faci itating chi d prostitution and other se=ua abuses under 5ep. &ct .o. 761D. ,he principa $itness against him $as his +i ipina $ife# &B%. )ar ier# she had comp ained that NJOGs hote $as
.o. 'nder the 5u es on )!idence# a $ife cannot be e=amined for or against her husband $ithout his consent# e=cept in ci!i cases by one against the other# or in a crimina case for a crime committed by one against the other. (ince the case $as fi ed by *dy against the spouses %esar and Baby# Baby cannot be compe ed to testify for or against %esar $ithout his consent. (8eAa,a vs. o#rigueA, 2( SC ) &&66!.
,he ans$er $ou d be the same if the matters to be testified on $ere 7no$n to Baby or ac@uired by her prior to her marriage to %esar# because the marita dis@ua ification ru e may be in!o7ed $ith respect to testimony on any fact. -t is immateria $hether such matters $ere 7no$n to Baby before or after her marriage to %esar.
Privilege Communication" :arital Privilege ('((()
(Sec. 22% "#le
3ida and 5omeo are ega y married. 5omeo is charged to court $ith the crime of serious physica injuries committed against (e mo# son of 3ida# step" son of 5omeo. 3ida $itnessed the inf iction of the injuries on (e mo by 5omeo. ,he pub ic prosecutor ca ed 3ida to the $itness stand and offered her testimony as an eye$itness. %ounse for 5omeo objected on the ground of the marita dis@ua ification ru e under the 5u es of %ourt. a< -s the objection !a id: ;31< b< 8i your ans$er be the same if 3idaHs testimony is offered in a ci!i case for reco!ery of persona property fi ed by (e mo against 5omeo: ;21<
SUGGESTED ANSWER4
(9r#ono v. 0a>uigan, 62
;a< .o. 8hi e neither the husband nor the $ife may testify for or against the other $ithout the consent of the affected spouse# one e=ception is if the testimony of the spouse is in a crimina case for a crime committed by one against the other or the atterHs direct descendants or ascendants. (Sec% 22% "#le 130'. ,he case fa s under this e=ception because (e ma is the direct descendant of the spouse 3ide.
;b< .o. ,he marita dis@ua ification ru e app ies this time. ,he e=ception pro!ided by the ru es is in a ci!i case by one spouse against the other. ,he case here in!o !es a case by (e mo for the reco!ery of persona property against 3idaHs spouse# 5omeo.
Privilege Communication" :arital Privilege ('((?)

NJO# an a ien# $as crimina y charged of promoting and
Page 5A of 66 being used as a center for se= tourism and chi d traffic7ing. ,he defense counse for NJO objected to
the testimony of &B% at the tria of the chi d
Privilege Communication" :arital Privilege ('((+)

4eticia $as estranged from her husband Pau for more than a year due to his suspicion that she $as ha!ing an affair $ith Banue their neighbor. (he $as temporari y i!ing $ith her sister in Pasig %ity. +or un7no$n reasons# the house of 4eticiaGs sister $as burned# 7i ing the atter. 4eticia sur!i!ed. (he sa$ her husband in the !icinity during the incident. 4ater he $as charged $ith arson in an -nformation fi ed $ith the 5egiona ,ria %ourt# Pasig %ity. During the tria # the prosecutor ca ed 4eticia to the $itness stand and offered her testimony to pro!e that her husband committed arson. %an 4eticia testify o!er the objection of her husband on the ground of marita pri!i ege: ;51<
ALTERNATI3E ANSWER4
prostitution case and the introduction of the affida!its she e=ecuted against her husband as a !io ation of espousa confidentia ity and marita pri!i ege ru e. -t turned out that D)+# the minor daughter of &B% by her first husband $ho $as a +i ipino# $as mo ested by NJO ear ier. ,hus# &B% had fi ed for ega separation from NJO since ast year. Bay the court admit the testimony and affida!its of the $ife# &B%# against her husband# NJO# in the crimina case in!o !ing chi d prostitution: 5eason. ;51<
SUGGESTED ANSWER4
Jes. ,he court may admit the testimony and affida!its of the $ife against her husband in the crimina case $here it in!o !es chi d prostitution of the $ifeGs daughter. -t is not co!ered by the marita pri!i ege ru e. *ne e=ception thereof is $here the crime is committed by one against the other or the atterGs direct descendants or ascendants.
130'. & crime by the husband against the
.o# 4eticia cannot testify o!er the objection of her husband# not under marita pri!i ege $hich is inapp icab e and $hich can be $ai!ed# but she $ou d be barred under (ec. 22 of 5u e 13D# $hich prohibits her from testifying and $hich cannot be $ai!ed
()lvareA v. a,ireA, ". . %o. &'('(9, 9cto3er &', 200*!.
ALTERNATI3E ANSWER4
daughter is a crime against the $ife and direct y attac7s or !ita y
impairs the conjuga re ation.

SC ) 270 D&97*B!.
Jes# 4eticia may testify o!er the objection of her husband. ,he dis@ua ification of a $itness by reason of marriage under (ec. 22# 5u e 13D of the 5e!ised 5u es of %ourt has its e=ceptions as $here the marita re ations are so strained that there is no more harmony to be preser!ed. ,he acts of Pau eradicate a major aspects of marita ife. *n the other hand# the (tate has an interest in punishing the gui ty and
Page 6D of 66
e=onerating the innocent# and must ha!e the right to offer the testimony of 4eticia o!er the objection of her husband ()lvareA v. a,ireA, ". . %o. &'('(9,
9cto3er &', 200*!.
Bitness" 9;amination of a C,ild Bitness" via 0ive$0in@ %5 ('((7)
8hen may the tria court order that the testimony of a chi d be ta7en by i!e" in7 te e!ision: )=p ain.
SUGGESTED ANSWER4
1emedy" 0ost 8ocuments" Secondary 9vidence (199')

&ja= Po$er %orporation# a uti ity company# sued in the 5,% to enforce a supposed right of $ay o!er a property o$ned by (imp icio. &t the ensuing tria # &ja= presented its retired fie d auditor $ho testified that he 7no$ for a fact that a certain sum of money $as periodica y paid to (imp icio for some time as consideration for a right of $ay pursuant to a $ritten contract. ,he origina contract $as not presented. -nstead# a purported copy# identified by the retired fie d auditor as such# $as forma y offered as part of his testimony. 5ejected by the tria court# it $as fina y made the subject of an offer of proof by &ja=.
,he testimony of a chi d may be ta7en by i!e" in7 te e!ision if there is a substantia i7e ihood that the chi d $ou d suffer trauma from testifying in the presence of the accused# his counse or the prosecutor as the case may be. ,he trauma must of a 7ind $hich $ou d impair the comp eteness or truthfu ness of the testimony of the chi d. (See Sec. 25%
"#le on :Camina(ion o! a )3ild Di(ness'.
Bitness" 9;amination of Bitnesses (1997)
%an &ja= !a id y c aim that it had sufficient y met its burden of pro!ing the e=istence of the contract estab ishing its right of $ay: )=p ain#
SUGGESTED ANSWER4
.o. &ja= had not sufficient y met the burden of pro!ing the e=istence of the $ritten contract because. -t had not aid the basis for the admission of a purported copy thereof as secondary e!idence. &ja= shou d ha!e first pro!en the e=ecution of the origina document and its oss or destruction. (Sec. 5 o! "#le 130'
a< &side from as7ing a $itness to e=p ain and supp ement his ans$er in the cross" e=amination# can the proponent as7 in re" direct e=amination @uestions on matters not dea t $ith during cross" e=amination: b< &side from as7ing the $itness on matters stated in his re"direct e=amination# can the opponent in his re"cross"e=amination as7 @uestions on matters not dea t $ith during the re"direct:
c< &fter p aintiff has forma y submitted his e!idence# he rea iEed that he had forgotten to present $hat he considered an important
e!idence. %an he reca a $itness:

SUGGESTED ANSWER4
;a< Jes# on redirect e=amination# @uestions on matters

not dea t $ith during the cross"e=amination may be a o$ed by the court in its discretion. (Sec. 7 o! "#le 132'. ;b< Jes# the opponent in his re"cross"e=amination may a so as7 @uestions on such other matters as may
%estimony" )nde endent 1elevant Statement (1999)
& o!erheard B ca N a thief. -n an action for defamation fi ed by N against B# is the testimony of & offered to pro!e the fact of utterance i.e.# that B ca ed N a thief# admissib e in e!idence: )=p ain. ;21<
SUGGESTED ANSWER4
be a o$ed by the court in its discretion. (Sec.

8. "#le 132'.
Jes. ,he testimony of & $ho o!erheard B ca N a thief is admissib e in e!idence as an independent y re e!ant statement. -t is offered in e!idence on y to pro!e the tenor thereof# not to pro!e the truth of the facts asserted therein. -ndependent y re e!ant statements inc ude statements $hich are on the !ery facts in issue or those $hich are circumstantia e!idence thereof. ,he hearsay ru e does not app y.
(See Peo$le vs. "a##i, &70 SC ) 6'9!
;c< Jes# after forma y submitting his e!idence# the p aintiff can reca a $itness $ith ea!e of court. ,he court may grant or $ithho d ea!e in its discretion as the interests of justice may re@uire. (Sec. 9. "#le 132'.
Bitness" 9;amination of Bitnesses ('((')
Bitness" Com etency of t,e Bitness vs. Credibility of t,e Bitness ('((?)
-s this @uestion on direct e=amination objectionab eK P8hat happened on /u y 12# 1AAAQ: 8hy: ;21<
SUGGESTED ANSWER4
Distinguish %ompetency of and credibi ity of the $itness.

SUGGESTED ANSWER4
the
$itness
,he @uestion is objectionab e because it has no basis# un ess before the @uestion is as7ed the proper basis is aid.
Bitness" EtiliDed as State Bitness" Procedure ('((+)
%ompetency of the $itness refers to a $itness $ho can percei!e# and percei!ing# can ma7e 7no$n his perception to others (Sec. 20 o! "#le 130'% $hi e credibi ity of the $itness refers to a $itness $hose testimony is be ie!ab e.
&s counse of an accused charged $ith homicide# you are con!inced that he can be uti iEed as a state $itness. 8hat procedure $i you ta7e: ;2.51<
SUGGESTED ANSWER4
&s counse of an accused charged $ith homicide# the procedure that can be fo o$ed for the accused
to be uti iEed as a state $itness is to as7 the Prosecutor to recommend that the accused be
made a state $itness.

themse !es by means of a pub ic instrument or by
-t is the Prosecutor $ho must recommend and mo!e for the acceptance of the accused as a state $itness. ,he accused may a so app y under the 8itness Protection Program.
SPECIAL PROCEEDINGS
Cancellation or Correction" 9ntries Civil 1egistry ('((7)
?e en is the daughter of ) iEa# a +i ipina# and ,ony# a %hinese# $ho is married to another $oman i!ing in %hina. ?er birth certificate indicates that ?e en is the egitimate chi d of ,ony and ) iEa and that she is a %hinese citiEen. ?e en $ants her birth certificate corrected by changing her fi iation from L egitimateL to Li egitimateL and her citiEenship from L%hineseL to L+i ipinoL because her parents $ere not married. 8hat petition shou d ?e en fi e and $hat procedura re@uirements must be obser!ed: )=p ain. ;51<
SUGGESTED ANSWER4
& petition to change the record of birth by changing the fi iation from L egitimateL to Li egitimateL and petitionerGs citiEenship from L%hineseL to L+i ipinoL because her parents $ere not married# does not in!o !e a simp e summary correction# $hich cou d other$ise be done under the authority of 5.&. .o. AD4>. & petition has to be fi ed in a proceeding under 5u e 1D> of the 5u es of %ourt# $hich has no$ been interpreted to be ad!ersaria in nature. ( e$u3lic v. =alencia, ". . %o. 86(2&/&, March *, &9/6! Procedura re@uirements inc udeK ;a< fi ing a !erified petitionF ;b< naming as parties a persons $ho ha!e or c aim any interest $hich $ou d be affectedF ;c< issuance of an order fi=ing the time and p ace of hearingF ;d< gi!ing reasonab e notice to the parties named in the petitionF and ;e< pub ication of the order once a $ee7 for three consecuti!e see7s in a ne$spaper of genera circu ation. ("#le
108% "#les o! )o#r('
9sc,eat Proceedings ('((')
(uppose the property of D $as dec ared escheated on /u y 1# 1AAD in escheat proceedings brought by the (o icitor 6enera . .o$# N# $ho c aims to be an heir of D# fi ed an action to reco!er the escheated property. -s the action !iab e: 8hy: ;21<
SUGGESTED ANSWER4
.o# the action is not !iab e. ,he action to reco!er escheated property must be fi ed $ithin fi!e years from /u y 1# 1AAD or be fore!er barred. ("#le 91% sec. 4'.
9;tra$/udicial Settlement of 9state ('((7)
.estor died intestate in 2DD3# ea!ing no debts. ?o$ may his estate be sett ed by his heirs $ho are of ega age and ha!e ega capacity: )=p ain. ;21<
SUGGESTED ANSWER4
-f the decedent eft no $i and no debts# and the heirs are a of age# the parties may# $ithout securing etters of administration# di!ide the estate among
Page 61 of 66 stipu ation in a pending action for partition and sha

fi e a bond $ith the register of deeds in an amount
SUGGESTED ANSWER4
e@ui!a ent to the !a ue of the persona property in!o !ed as certified to under oath by the parties concerned. ,he fact of e=tra"judicia sett ement sha be pub ished in a ne$spaper of genera circu ation once a $ee7 for three consecuti!e $ee7s in the pro!ince. (Sec. 1% "#le 74% "#les o! )o#r('
6abeas Cor us (199.)
.o# because $hi e the %& has origina jurisdiction o!er habeas corpus concurrent $ith the 5,%s# it has no authority for remanding to the atter origina actions fi ed $ith the former. *n the contrary# the %& is specifica y gi!en the po$er to recei!e e!idence and perform any and a acts necessary to reso !e factua issues raised in cases fa ing $ithin its origina jurisdiction.
ALTERNATI3E ANSWER4
5o=anne# a $ido$# fi ed a petition for habeas corpus $ith the %ourt of &ppea s against Bajor &mor $ho is a eged y detaining her 1>"year o d son Bong $ithout authority of the a$.
&fter Bajor &mor had a fi ed a return a eging the cause of detention of Bong# the %ourt of &ppea s promu gated a reso ution remanding the case to the 5,% for a fu "b o$n tria due to the conf icting facts presented by the parties in their p eadings. -n directing the remand# the court of &ppea s re ied on (ec.A;1<# in re ation to (ec. 21 of BP 12A conferring upon said %ourt the authority to try and decide habeas corpus cases concurrent y $ith the 5,%s.
Jes# because there is no prohibition in the a$ against a superior court referring a case to a o$er court ha!ing concurrent jurisdiction. ,he (upreme %ourt has referred to the %& or the 5,% cases fa ing $ithin their concurrent jurisdiction.
6abeas Cor us (199!)
& $as arrested on the strength of a $arrant of arrest issued by the 5,% in connection $ith an -nformation for ?omicide. 8# the i!e"in partner of & fi ed a petition for habeas corpus against &Gs jai er and po ice in!estigators $ith the %ourt of &ppea s. 1. Does 8 ha!e the persona ity to fi e the petition for habeas corpus: 0212 2. -s the petition tenab e: 0312
SUGGESTED ANSWER4
Did the %ourt of &ppea s act correct y in remanding the petition to the 5,%: 8hy:
1. Jes. 8# the i!e"in partner of the persona ity to fi e the petition for corpus because it may be fi ed by person in his beha f.L (Sec. 3. "#le 102.
)o#r(.'
&# has habeas Lsome

"#les o!
2. .o. ,he petition is not tenab e because the $arrant of arrest $as issued by a court $hich had /urisdiction to issue it (Sec. 4% "#le 102 "#les o! )o#r('
Page 62 of 66 ;1< .o# because since the c aim of N $as disa o$ed# there is no amount against $hich to offset the c aim of DHs administrator. ;2< Jes# DHs administrator can prosecute the c aim in an independent proceeding since the c aim of N $as disa o$ed. -f N had a !a id c aim and DHs administrator did not a ege any c aim against N by $ay of offset# his fai ure to do so $ou d bar his c aim fore!er. ("#le 86% sec. 10'.
)ntestate Proceedings" 8ebts of t,e 9state ('((')
&# B and %# the on y heirs in DHs intestate proceedings# submitted a project of partition to the partition# t$o ots $ere assigned to %# $ho immediate y entered into the possession of the ots. ,hereafter# % died and proceedings for the sett ement of his estate $ere fi ed in the 5,%"IueEon %ity. DHs administrator then fi ed a motion in the probate court ;5,%"Bani a<# praying that one of the ots assigned to % in the project of partition be turned o!er to him to satisfy debts corresponding to %Hs portion. ,he motion $as opposed by the administrator of %Hs estate. ?o$ shou d the 5,%"Bani a reso !e the motion of DHs administrator: )=p ain. ;31<
SUGGESTED ANSWER4
6abeas Cor us ('((.)

8ido$ & and her t$o chi dren# both gir s# aged > and 12 years o d# reside in &nge es %ity# Pampanga. & ea!es her t$o daughters in their house at night because she $or7s in a brothe as a prostitute. 5ea iEing the danger to the mora s of these t$o gir s# B# the father of the deceased husband of &# fi es a petition for habeas corpus against & for the custody of the gir s in the +ami y %ourt in &nge es %ity. -n said petition# B a eges that he is entit ed to the custody of the t$o gir s because their mother is i!ing a disgracefu ife. ,he court issues the $rit of habeas corpus. 8hen & earns of the petition and the $rit# she brings her t$o chi dren to %ebu %ity. &t the e=pense of B the sheriff of the said +ami y %ourt goes to %ebu %ity and ser!es the $rit on &. & fi es her comment on the petition raising the fo o$ing defensesK
a< ,he enforcement of the $rit of habeas corpus in %ebu %ity is i ega F and b< B has no persona ity to institute the petition. 61 5eso !e the petition in the ight of the abo!e defenses of &. ;61<
SUGGESTED ANSWER4
,he motion of DHs administrator shou d be granted. ,he assignment of the t$o ots to % $as premature because the debts of the estate had not been fu y paid. D ule
90, sec. &; e.es v. Barreto60atu, &9 SC ) /*
;a< ,he $rit of habeas corpus issued by the +ami y %ourt in &nge es %ity may not be ega y enforced in %ebu %ity# because the $rit is enforceab e on y $ithin the judicia region to $hich the +ami y %ourt be ongs# un i7e the $rit granted by the (upreme %ourt or %ourt of &ppea s $hich is enforceab e any$here in the Phi ippines. (Sec. 20 of
ule on Custo#. of Minors an# Irit of <a3eas Cor$us in elation to Custo#. of Minors. ().M. %o. 0(60'60'6 SC; see also Sec. ' of ule &02, ules of Court.!
(&967!B.
Judicial Settlement of 9state ('((7)
(tate the ru e on !enue in judicia sett ement of estate of deceased persons. ;21<
SUGGESTED ANSWER4
-f the decedent is an inhabitant of the Phi ippines at the time ofG his death# $hether a citiEen or an a ien# the !enue sha be in the 5,% in the pro!ince in $hich he resides at the time of his death# not in the p ace $here he used to i!e. (-ao v. Court of )$$eals,
". . %o. &2/(&', Ma. 29, 2002!
;b< B# the father of the deceased husband of &# has the persona ity to institute the petition for habeas corpus of the t$o minor gir s# because the grandparent has the right of custody as against the mother & $ho is a prostitute. (Sec(ioins 2 and 13% 2d.'
)ntestate Proceedings ('((')
N fi ed a c aim in the intestate proceedings of D. DHs administrator denied iabi ity and fi ed a counterc aim against N. NHs c aim $as disa o$ed. ;1< Does the probate court sti ha!e jurisdiction to a o$ the c aim of DHs administrator by $ay of offset: 8hy: ;21< ;2< (uppose DHs administrator did not a ege any c aim against N by $ay of offset# can DHs administrator prosecute the c aim in an independent proceedingC $hyC ;31<
SUGGESTED ANSWER4
-f he is an inhabitant# of a foreign country# the 5,% of any pro!ince or city in $hich he had estate sha be the !enue. ,he court first ta7ing cogniEance of the case sha e=ercise jurisdiction to the e=c usion of a other courts. 8hen the marriage is disso !ed by the death of the husband or $ife# the community property sha be in!entoried# administered and i@uidated# and the debts thereof paid# in the testate or intestate proceedings of the deceased spouse. -f both spouses ha!e died# the conjuga partnership sha be i@uidated in the testate or intestate proceedings of either. (Sees. & an# 2, ule 7(, ules of Court!
Probate of 0ost Bills (1999)
8hat are the re@uisites in order that a or destroyed 8i may be a o$ed: ;21<
ost
Version 1997-2006
!dated "# Dondee
Probate of Bill ('((+)
&Gs 8i $as a o$ed by the %ourt. .o appea $as ta7en from its a o$ance. ,hereafter# J# $ho $as interested in the estate of &# disco!ered that the 8i $as not genuine because &Gs signature $as forged by N. & crimina action for forgery $as instituted against N. Bay the due e=ecution of the 8i be !a id y @uestioned in such crimina action: ;21<
SUGGESTED ANSWER4
(ergio PunEa an# +i ipino# 5D years o d# married# and residing at &ya a & abang 3i age# Buntin upa %ity# of
a. -n order that a ost or destroyed $i may be a o$ed# the fo o$ing must be comp ied $ithK 1. the e=ecution and !a idity of the same shou d be estab ishedF 2. the $i must ha!e been in e=istence at the time of the death of the testator# or sho$n to ha!e been fraudu ent y or accidenta y destroyed in the ifetime of the testator $ithout his 7no$ edgeF and 3. its pro!isions are c ear y and distinct y
pro!ed by at east t$o credib e
(Sec. 6% "#le 76 o! (3e "#les o! )o#r('
SUGGESTED ANSWER4
$itnesses.
b. .o. ,he a o$ance of the $i from $hich no appea $as ta7en is conc usi!e as to its due e=ecution. (Sec. 1 o! "#le 75.' Due e=ecution inc udes a finding that the $i is genuine and not a forgery. &ccording y# the due e=ecution of the $i cannot again be @uestioned in a subse@uent proceeding# not e!en in a crimina action for forgery of the $i . Probate of Bill ('((.)
&# a resident of Ba o os# Bu acan# died ea!ing an estate ocated in Bani a# $orth P2DD#DDD.DD. -n $hat court# ta7ing into consideration the nature of jurisdiction and of !enue# shou d the probate proceeding on the estate of & be instituted: ;41<
SUGGESTED ANSWER4
,he probate proceeding on the estate of & shou d be instituted in the Bunicipa ,ria %ourt of Ba o os# Bu acan $hich has jurisdiction# because the estate is !a ued at P2DD#DDD.DD# and is the court of proper !enue because & $as a resident of Ba o os at the time of his death. (Sec. (( of BP &29 as a,en#e# 3. )
769&; Sec. & of ule 7(!.
Probate of Bill ('((7)

&fter 4u uGs death# her heirs brought her ast $i to a a$yer to obtain their respecti!e shares in the estate. ,he a$yer prepared a deed of partition distributing 4u uGs estate in accordance $ith the terms of her $i . -s the act of the a$yer correct: 8hy: ;21<
SUGGESTED ANSWER4
.o. .o $i # sha pass either rea or persona estate un ess it is pro!ed and a o$ed in the proper court.
(Sec. 1% "#le 75% "#les o! )o#r('
Page 63 of 66 by: sirdondee@gmail.com sound and disposing mind# e=ecuted a ast $i and testament in )ng ish# a anguage spo7en and $ritten estat by him proficient y. ?e disposed of his e consisting of a parce of and in Ba7ati %ity and cash deposit at the %ity Ban7 in the sum of P 3DD Bi ion. ?e be@ueathed P 5D Bi ion each to his 3 sons and P 15D Bi ion to his $ife. ?e de!ised a piece of and $orth P1DD Bi ion to (usan# his fa!orite daughter" in" a$. ?e named his best friend# %ancio 3ida # as e=ecutor of the $i $ithout bond.
+s Cancio =i#al, after learning of SergioKs #eath, o3lige# to file with the $ro$er court a $etition of $ro3ate of the latterKs last will an# testa,ent; (2F!
SUGGESTED ANSWER4
to the e=ecutor# as pro!ided in (ec. 2# 5u e 75# 5u es of %ourt.

Can the $ro3ate court a$$oint the wi#ow as e7ecutor of the will; (2F!
SUGGESTED ANSWER4
Jes# the probate court can appoint the $ido$ as e=ecutor of the $i if the e=ecutor does not @ua ify# as $hen he is incompetent# refuses the trust# or fai s to gi!e bond (Sec. 6% "#le 78% "#les o!
)o#r('.
Can the wi#ow an# her chil#ren settle e7tra?u#iciall. a,ong the,selves the estate of the #ecease#; (2F!
SUGGESTED ANSWER4
%ancio 3ida probate and trust $ithin days under %ourt.
is ob iged to fi e a petition for for accepting or refusing the the statutory period of 2D (ec. 3# 5u e 75# 5u es of
.o# the $ido$ and her chi dren cannot sett e the es" tate e=trajudicia y because of the e=istence of the 8i . .o $i sha pass either rea or persona estate un ess it is pro!ed and a o$ed in the proper court
(Sec. 1% "#le 75% "#les o! )o#r('.
Su$$osing the original co$. of the last will an# tes6 ta,ent was lost, can Cancio co,$el Susan to $ro6 #uce a co$. in her $ossession to 3e su3,itte# to the $ro3ate court. (2F!
SUGGESTED ANSWER4
Can the wi#ow an# her chil#ren initiate a se$arate $etition for $artition of the estate $en#ing the $ro3ate of the last will an# testa,ent 3. the court; (2F!
SUGGESTED ANSWER4
Jes# %ancio can compe (usan to produce the copy in her possession. & person ha!ing custody of the $i is bound to de i!er the same to the court of competent jurisdiction or
.o# the $ido$ and her chi dren cannot fi e a separate petition for partition pending the probate of the $i . Partition is a mode of sett ement of the estate (Sec. 1% "#le 75% "#les o! )o#r('.
Probate of Bill" :andatory =ature ('((')
8hat shou d the court do if# in the course of intestate proceedings# a $i is found and it is submitted for probate: )=p ain. ;21<
SUGGESTED ANSWER4
Page 64 of 66 appointed administrator of said estate. (# the

sur!i!ing spouse# opposed the petition and &Gs
-f a $i is found proceedings and it is intestate proceedings $i probated. 'pon the intestate proceedings $i
in the course of intestate submitted for probate# the be suspended unti the $i is probate of the $i # the be terminated. ("#le 82% sec. 1'.
Settlement of 9state ('((1)

,he ru es on specia proceedings ordinari y re@uire that the estate of the deceased shou d be judicia y administered thru an administrator or e=ecutor.
8hat are the t$o e=ceptions to said re@uirements: ;51<

SUGGESTED ANSWER4
app ication to be appointed the administrator on the ground that he $as not the chi d of her deceased husband D. ,he court# ho$e!er# appointed & as the administrator of said estate. (ubse@uent y# (# c aiming to be the so e heir of D# e=ecuted an &ffida!it of &djudication# adjudicating unto herse f the entire estate of her deceased husband D. ( then so d the entire estate to N. 8as the appointment of & as administrator proper: 0212 8as the action of ( in adjudicating the entire estate of her ate husband to herse f ega : 0312
SUGGESTED ANSWER4
,he t$o e=ceptions to the re@uirement areK ;a< 8here the decedent eft no $i and no debts and the
heirs are a of age# or the minors are represented by their judicia or ega representati!es du y authoriEed for the purpose# the parties may $ithout securing etters of administration# di!ide the estate among themse !es by means of pub ic instrument fi ed in the office of the register of deeds# or shou d they disagree# they may do so in an ordinary action of partition. -f there is on y one heir# he may adjudicate to himse f the entire estate by means of an affida!it fi ed in the office of the register of deeds. ,he parties or the so e heir sha fi e simu taneous y abound $ith the register of deeds# in an amount e@ui!a ent to the !a ue of the persona property as certified to under oath by the parties and conditioned upon the payment of any just c aim that may be fi ed ater. ,he fact of the e=trajudicia sett ement or administration sha be pub ished in a ne$spaper of genera circu ation in the pro!ince once a $ee7 for three consecuti!e $ee7s. (Sec. 1 o! "#le 74% "#les o! )o#r(' ;b< 8hene!er the gross !a ue of the estate of a deceased person# $hether he died testate or intestate# does not e=ceed ten thousand pesos# and that fact is made to appear to the 5,% ha!ing jurisdiction or the estate by the petition of an interested person and upon hearing# $hich sha be he d not ess than one ;1< month nor more than three ;3< months from the date of the ast pub ication of a notice $hich sha be pub ished once a $ee7 for three consecuti!e $ee7s in a ne$spaper of genera circu ation in the pro!ince# and after such other notice to interested persons as the court may direct# the court may proceed summari y# $ithout the appointment of an e=ecutor
1. Jes# un ess it is sho$n that the court gra!e y" abused its discretion in appointing the i egitimate chi d as administrator# instead of the spouse. 8hi e the spouse enjoys preference# it appears that the spouse has neg ected to app y for etters of administration $ithin thirty ;3D< days from the death of the decedent. (Sec. 6, ule 7/, ules of Court;
"as$a., -r. vs. Court of )$$eals. 2(/ SC ) &6(.!
ALTERNATI3E ANSWER4
(# the sur!i!ing spouse# shou d ha!e been appointed administratri= of the estate# in as much as she enjoys first preference in such appointment under the ru es.
(Sec. 6(a' o! "#le 78% "#les o! )o#r(.'
SUGGESTED ANSWER4
2. .o. &n affida!it of se f"adjudication is a o$ed on y if the affiant is the so e heir of the. deceased. (Sec. 1% "#le 74% "#les o! )o#r('. -n this case# & a so c aims to be an heir. Boreo!er# it is not ega because there is a ready a pending juridica proceeding for the sett ement of the estate.
5enue" S ecial Proceedings (1997)
6i!e the proper !enue for the fo o$ing specia proceedingsK a< & petition to dec are as escheated a parce of and o$ned by a resident of the Phi ippines $ho died intestate and $ithout heirs or persons entit ed to the property. b< & petition for the appointment of an administrator o!er the and and bui ding eft by an &merican citiEen residing in %a ifornia# $ho had been dec ared an incompetent by an &merican court.
c< & petition for the adoption of a minor residing in
or administrator# to sett e the estate. (Sec. 2 o!

"#le 74% "#les o! )o#r('
Pampanga.
SUGGESTED ANSWER4
Settlement of 9state" Administrator (199!)

&# c aiming to be an i egitimate chi d of the deceased D# instituted an -ntestate proceeding to sett e the estate of the atter. ?e a so prayed that he be
;a< ,he !enue of the escheat proceedings of a parce of and in this case is the p ace $here the deceased ast resided. (Sec. 1. "#le 91% "#les o! )o#r('.
;b< ,he !enue for the appointment of an
administrator o!er &merican citiEen
and and bui ding of an residing in %a ifornia#
dec ared -ncompetent

by an &merican %ourt# is the 5,% of the p ace $here his property or part thereof is situated. (Sec.
1. "#le 92'.
said crimina case $as fi ed against him in the same office. ,he *mbudsman assigned a team
;c< ,he !enue of a petition for the adoption of a minor residing in Pampanga is the 5,% of the p ace in $hich the petitioner resides. (Sec. 1. "#le 99'
SUMMARY PROCEDURE
Pro,ibited Pleadings ('((?)
%harged $ith the offense of s ight physica injuries under an information du y fi ed $ith the Be,% in Bani a $hich in the meantime had du y issued an order dec aring that the case sha be go!erned by the 5e!ised 5u e on (ummary Procedure# the accused fi ed $ith said court a motion to @uash on the so e ground that the officer $ho fi ed the information had no authority to do so. ,he Be,% denied the motion on the ground that it is a prohibited motion under the said 5u e. ,he accused thereupon fi ed $ith the 5,% in Bani a a petition for certiorari in sum assai ing and see7ing the nu ification of the Be,%Gs denia of his motion to @uash. ,he 5,% in due time issued an order denying due course to the certiorari petition on the ground that it is not a o$ed by the said 5u e. ,he accused forth$ith fi ed $ith said 5,% a motion for reconsideration of its said order. ,he 5,% in time denied said motion for reconsideration on the ground that the same is a so a prohibited motion under the said 5u e. 8ere the 5,%Gs orders denying due course to the petition as $e as denying the motion for reconsideration correct: 5eason. ;51<
SUGGESTED ANSWER4
,he 5,%Gs orders denying due course to the petition for certiorari as $e as denying the motion for reconsideration are both not correct. ,he petition for certiorari is a prohibited p eading under (ection 1A;g< of the 5e!ised 5u e on (ummary Procedure and the motion for reconsideration# $hi e it is not prohibited motion (8ucas v. 2a3ros, )M %o. M5-6996
&226, -anuar. (&, 2000, citing -oven v. Court of )$$eals, 2&2 SC ) 700, 707670/ (&992!, shou d be denied because the
petition for certiorari is a prohibited p eading.
MISCELLANEOUS
Administrative Proceedings ('((7)
5egiona Director &6 of the Department of Pub ic 8or7s and ?igh$ays $as charged $ith !io ation of (ection 3;e< of 5epub ic &ct .o. 3D1A in the *ffice of the *mbudsman. &n administrati!e charge for gross misconduct arising from the transaction subject matter of
Page 65 of 66 by: sirdondee@gmail.com composed of in!estigators from the *ffice of the (pecia Prosecutor and from the *ffice of the Deputy *mbudsman for the Bi itary to conduct a joint in!estigation of the crimina case and the administrati!e case. ,he team of in!estigators recommended to the *mbudsman that &6 be pre!enti!e y suspended for a period not e=ceeding si= months on its finding that the e!idence of gui t is strong. ,he *mbudsman issued the said order as recommended by the in!estigators. &6 mo!ed to reconsider the order on the fo o$ing groundsK ;a< the *ffice of the (pecia Prosecutor had e=c usi!e authority to conduct a pre iminary in!estigation of the crimina caseF ;b< the order for his pre!enti!e suspension $as premature because he had yet to fi e his ans$er to the administrati!e comp aint and submit counter!ai ing e!idenceF and ;c< he $as a career e=ecuti!e ser!ice officer and under Presidentia Decree .o. >D7 ;%i!i (er!ice 4a$<# his pre!enti!e suspension sha be for a ma=imum period of three months. 5eso !e $ith reasons the motion of respondent &6. ;51<
SUGGESTED ANSWER4
does not ha!e e=c usi!e authority to conduct a pre iminary in!estigation of the crimina case but it participated in the in!estigation together $ith the Deputy *mbudsman for the Bi itary $ho can hand e cases of ci!i ians and is not imited to the mi itary.
2. ,he order of pre!enti!e suspension need not $ait

for the ans$er to the administrati!e comp aint and the submission of counter!ai ing e!idence.
1999'
;0arcia *. ;o@ica% 0.". .o. 13903% Se9(ember 10%
-n Aas>#eE case% 0.". .o. 110801% 19ril 6% 1995 # the court ru ed that pre!enti!e suspension pursuant to (ec. 24 of 5.&. .o. 677D ;*mbudsman &ct of 1A>A<# sha continue unti termination of the case but sha not e=ceed si= ;6< months# e=cept in re ation to 5.&. .o# 3D1A and P.D. .o. >D7. &s a career e=ecuti!e officer# his pre!enti!e suspension under the %i!i (er!ice 4a$ may on y be for a ma=imum period of three months. ,he period of the suspension under the &nti"6raft 4a$ sha be the same pursuant to the e@ua protection c ause. ("arcia v. Mo?ica, ". . %o.
&(90(, Se$te,3er &0, &999; 8a.no v. San#igan3a.an, ". . %o. 866*/'/, Ma. 2&, &9/*!
Congress" 0a2 9; ro riating Pro erty ('((+)

Bay %ongress enact a a$ pro!iding that a 5# DDD s@uare meter ot# a part of the '(, compound in (ampa oc Bani a# be e=propriated for the construction of a par7 in honor of former %ity Bayor &rsenic 4acson: &s compensation to '(,# the %ity
,he motion shou d be denied for the fo o$ing reasonsK 1. ,he *ffice of the (pecia Prosecutor
Remedial Law Bar Examination Q & A (1997-2006) of
Bani a sha de i!er its 5"hectare ot in (ta. 5osa# 4aguna origina y intended as a residentia subdi!ision for the Bani a %ity ?a emp oyees. )=p ain. ;51<
SUGGESTED ANSWER4
Page 66 of 66 by: sirdondee@gmail.com decree or e=ecuti!e order can mandate that the determination of just compensation by the e=ecuti!e or egis ati!e departments can pre!ai o!er the courtGs
findings (47$ort Processing Eone )uthorit. v. 0ula.,
". . %o. 86*960(, )$ril 29,&9/7; Sees. * to / ule 67,&997 ules of Civil Proce#ure!. -n addition# compensation must be paid in money (4ste3an v. 9norio, ).M. %o.
Jes# %ongress may enact a a$ e=propriating property pro!ided that it is for pub ic use and $ith just compensation. -n this case# the construction of a par7 is for pub ic use (See Sena v.
Manila ailroa# Co., ". .
%o. &*9&*, Se$te,3er 7, &92&; e.es v. %<), " %o. &'7*&&, March 2', 200(!. ,he p anned compensation#
006'6&666 5C, -une 29, 200&!.
ho$e!er# is not ega y tenab e as the determination of just compensation is a judicia function. .o statute#
1A .(19" :andatory Sus ension ('((1)
6o!ernor Pedro Bario of ,ar ac $as charged $ith indirect bribery before the (andiganbayan for accepting a car in e=change of the a$ard of a series of contracts for medica supp ies. ,he (andiganbayan# after going o!er the information# found the same to be !a id and ordered the suspension of Bario. ,he atter contested the suspension c aiming that under the a$ ;(ec. 13 of 5.&. 3D1A< his suspension is not automatic upon the fi ing of the information and his suspension under (ec. 13# 5.&. 3D1A is in conf ict $ith (ec. 5 of the Decentra iEation &ct of 1A67 ;5.&. 51>5<. ,he (andi ganbayan o!erru ed BarioHs contention stating that BarioHs suspension under the circumstances is mandatory. -s the courtHs ru ing correct: 8hy:
SUGGESTED ANSWER4
Jes. BarioHs suspension is mandatory# a though not automatic# (Sec. 13 o! ".1. .o. 3019 in rela(ion (o Sec. 5 o! (3e Decen(raliEa(ion 1c( o! 1967 (".1. .o. 5185'. -t is mandatory after the determination of the !a idity of the information in a pre" suspension hearing. DSegovia v. San#igan3a.an, 2// SC ) (2/ (&9//!B. ,he purpose of suspension is to pre!ent the accused pub ic officer from frustrating or hampering his prosecution by intimidating or inf uencing $itnesses or tampering $ith e!idence or from committing further acts of ma feasance $hi e in office.
Version 1997-2006
!dated "# Dondee

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Remedial Law Bar Examination Q & A (1997-2006)

ANSWERS TO BAR EXAMINATION QUESTIONS

Si i!"# U#i$%&'i() C* %+% *, L"- B"(./ 2000

!dated "# Dondee

Remedial Law Bar Examination Q & A (1997-2006)

The Authors )uly *+! *,,.pdated by /ondee )uly **! *,,0

!dated "# Dondee

Remedial Law Bar Examination Q & A (1997-2006)

Remedial Law Bar Examination Q & A (1997-2006)

Remedial Law Bar Examination Q & A (1997-2006)

Remedial Law Bar Examination Q & A (1997-2006)

Remedial Law Bar Examination Q & A (1997-2006)

!dated "# Dondee

Distinguish %ause of action from action

Civil Actions vs. S ecial Proceedings (199!)

Distinguish ci!i actions from specia proceedings. 0312

or the pre!ention or redress of a $rong.

Conciliation Proceedings" #atarungang Pambarangay vs. Pre$%rial Conference (1999)

1% 1997 "#les +roced#re'%

(See. 3[a % "#le

Remedial Law Bar Examination Q & A (1997-2006)

Distinguish Bar by prior judgment from conc usi!eness of judgment

Cause of action vs. Action (1997)

prohibition e=ists in the pre"tria negotiations under the 5u es of %ourt.

Judicial Autonomy - )m artiality ('((.)

8hat is an inter ocutory order: ;21<

Judgment vs. * inion of t,e Court ('((+)

Remedial Law Bar Examination Q & A (1997-2006)

instrumenta ities for the administration of pub ic

#atarungang Pambarangay" *b/ective (1999)

8hat is the object of the 9atarungang Pambarangay 4a$: ;21<

0iberal Construction" 1ules of Court (199!)

1emedial 0a2 in P,il. System of 3ov4t ('((+)

Distinguish bet$een substanti!e a$ and remedia a$. ;21<

". . %o. 86206/, 9cto3er 20, &9'/!.

1emedial 0a2" Conce t ('((+)

8hat is the concept of remedia a$: ;21<

1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7)

Remedial Law Bar Examination Q & A (1997-2006) a$#

(MaCati 0ev Cor$. v. 5an?uatco 27 SC ) '0&!

Jurisdiction vs. 5enue ('((+)

Distinguish jurisdiction from !enue: ;21<

Jurisdiction" )nca able of Pecuniary 9stimation ('((()

Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+)

Bar7 fi ed $ith the Bureau of -nterna

said parce of and $as not capab e of pecuniary

Jurisdiction" )nca able of Pecuniary 9stimation ('((()

Jurisdiction" )nca able of Pecuniary 9stimation ('((.)

("#le 3% sec. 6'.

Jurisdiction" :%C ('((')

@uestion of a$ or fact common to both.

Jurisdiction" *ffice of t,e Solicitor 3eneral ('((+)

Remedial Law Bar Examination Q & A (1997-2006)

by: sirdondee@gmail.com 8as the municipa circuit tria

ru ing: 8hy: ;51<

Jurisdiction" 1%C ('((')

Jurisdiction" *mbudsman Case 8ecisions ('((+)

Jurisdiction" Subdivision 6omeo2ner ('((+)

Jurisdiction" Probate ('((1)

!dated "# Dondee

Distinguish action from cause of action. ;21<

#atarungang Pambarangay" 0u on" 9;tent of Aut,ority" ('((1)

Page 13 of 66 prejudice to the rights of each necessary party. (Sec.

The Authors )uly +! ,,.pdated by /ondee )uly **! *,,0