THE BAR EXAM COACH

Prof. Manuel R. Riguera

BAR EXAMINATION ETIQUETTE

Question No. 4 in the 2008 Bar Examination in Remedial Law runs as

follows:

Filomeno brought an action in the Metropolitan Trial Court (MeTC) of

Pasay City against Marcelino pleading two causes of action. The first was a
demand for the recovery of physical possession of a parcel of land situated in
Pasay City with an assessed value of P40,000; the second was a claim for
damages of P500,000 for Marcelino’s unlawful retention of the property.
Marcelino filed a motion to dismiss on the ground that the total amount involved,
which is P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino correct?

An astute student of remedial law will notice that there is an imperfection

in the drafting of the question: the statement that the demand for recovery of
possession and the claim for damages were causes of action.

Section 2, Rule 2 of the Rules of Court defines a cause of action as “the

act or omission by which a party violates the right of another.” Clearly the claims
for recovery of possession and for damages are not acts or omissions by which a
party violates the right of another. There is only one cause of action: Marcelino’s
unlawful retention of the property. The demand for recovery of possession and
the claim for damages are simply the relief sought by Filomeno in his action. In
other words one should distinguish between “cause of action” and “relief.” (See 1
FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 15-16, 5th rev. ed.,
1988; WILLARD B. RIANO, CIVIL PROCEDURE: A RESTATEMENT FOR THE
BAR 174-75 [2nd bantam ed., 2009).

The question could very well confound the examinee. Since the question
stated that the action pleaded two causes of action, the examinee might analyze
the problem in the context of Section 5, Rule 2 on joinder of causes of action. He
may even try to apply the totality rule under Section 5(d) of Rule 2. His analysis
and his conclusion would then be flawed since these were anchored on an
irrelevant legal provision. The relevant legal provisions are actually Sections 19
and 33 of B.P. Blg. 129, which provide that the MTC has jurisdiction over real
actions wherein the assessed value of the realty does not exceed P50,000 and
which exclude damages in computing the jurisdictional amount.

An examinee, especially one well-drilled in civil procedure, may spot the

imperfection. Good for him as he would avoid confusion. However the
examinee should exercise restraint or discretion in his answer. Unless,
otherwise absolutely necessary in order to justify his conclusion, he should
refrain from pointing out the imperfection or the error in the drafting of the
question. Not a few law students or bar examinees, when they spot an error or
what they feel to be an error, write their answer in a patronizing manner or in a
manner which shows their pride in showing up their professor or the examiner.
This must be avoided at all costs.

For instance an answer to the question may read as follows:

Marcelino is not correct. The MeTC has jurisdiction over the action.

Firstly it should be pointed out that the claim for the recovery of
possession and for damages are not causes of action but simply the relief sought
 by Filomeno. There is only cause of action: Marcelino’s unlawful retention of the
property.

Under Section 33 of B.P. Blg. 129, the MeTC has jurisdiction over real
actions where the assessed value of the realty does not exceed P50,000 in
Metro Manila. Said provision also states that damages are excluded in
computing the jurisdictional amount.

Here the claim for damages was merely incidental to the cause of action
involving the claim for recovery of possession. Hence the MeTC has jurisdiction
over the action for recovery of possession of land since the assessed value did
not exceed P50,000.

As a bar exam coach, I have always emphasized to the examinees the

need to show deference to the examiner. The above-quoted answer, although
the examinee may not realize it, would offend or hurt the examiner since he is in
effect being told that he does not know how to draft a proper bar exam question.
One can very well imagine the attitude the examiner would have, not only
regarding the particular question answered but to other answers as well.

In support of his conclusion, there is no necessity that the examinee point

out the imperfection of the question. The second paragraph in the above answer
could very well have been omitted without any or significant loss of logic or
persuasive power. Any such loss would be amply compensated by the
avoidance of any negative reaction from the examiner.

Avoid assuming facts not stated in the problem

One reminder I always drill to the bar examinees I am coaching is never to

assume facts which are not stated in the problem unless absolutely necessary.
For example many examinees answered the given problem by stating that the
motion to dismiss should be denied since the action is one for ejectment which is
within the jurisdiction of the MeTC.

What is wrong about this answer is that it assumes, without sufficient

factual basis, that the action is for ejectment. Evidently the assumption that the
action is for ejectment is based on the statement that it “was a demand for the
recovery of physical possession of a parcel of land.” However the fact that the
action is for recovery of physical possession does not automatically mean that it
is one for forcible entry. In forcible entry the plaintiff’s dispossession must have
arisen through FISTS (force, intimidation, strategy, threats, or stealth). There is
nothing in the problem showing that Marcelino employed FISTS. Nor is there
anything to indicate that a case for unlawful detainer exists. Hence a prudent
examinee should answer based solely on the facts given in the problem and
consider Filomeno’s action as one for recovery of possession of a parcel of land,
or an accion publiciana, and thus a real action in which jurisdiction is determined
by the assessed value of the real property. At the very least, such an answer
would be more securely anchored on the facts of the question rather than an
answer which assumes that the action is for ejectment.

-oOo-

September 2009