2017 CENTRALIZED BAR OPERATIONS

Executive Committee

Chairperson: Bandiola, Dawna Fya O.

Vice Chairperson for Academics: Najarro Jr., Violeta M.

Vice Chairperson for Academic Operations: Matibag, Kevin Christian S.

Vice Chairperson for Hotel Operations: Galvez, Ma. Johara G.

Executive Chairperson for Hotel Operations: Cancio, Ryan John C.

Vice Chairperson for Finance: Cuadra, Luis Alfonso L.

Vice Chairperson for Secretariat: Del Rosario, Janine Gabrielle A.

Vice Chairperson for Communications: Arriba, Edward Vange P.

Vice Chairperson for Recruitment and Membership: Santiago, Martin Kevin P.

Vice Chairperson for Electronic and Data Processing: Arbiol, Christian Adrianne M.

CONTENT AND LAY-OUT EDITORS

Christian Adrianne M. Arbiol Franchezka Mae S. Celis

Nikki Angeli LB Tuble John Eli Zuriel d.V. Bitong

San Beda College Alabang School of Law Administration

ATTY. Ulpiano P. Sarmiento III

Dean and Adviser

ATTY. Anna Marie Melanie B. Trinidad

Vice Dean

ATTY. Carlo D. Busmente

Prefect of Student Affairs and Adviser
 Centralized Bar Operations Advisers
ATTY. Ulpiano P. Sarmiento III
Dean and Adviser

ATTY. Carlo D. Busmente

Prefect of Student Affairs and Adviser

Centralized Bar Operations Core Group

Dawna Fya O. Bandiola Emmanuel Josef Javellanos
Kevin Christian S. Matibag Luis Alfonso L. Cuadra
Annabel F. Hernandez Edward Vange P. Arriba
Violeta M. Najarro Jr. Giulia Ingrid C. Calub
Ma. Terresa M. Marco Martin Kevin P. Santiago
Ma. Johara G. Galvez Rodel Jr. R. Cadorniga
Ryan John C. Cancio Janine Gabrielle A. del Rosario
Kristine C. Mirabueno Jemmarie Q. Pascua
Christian Adrianne M. Arbiol John Eli Zuriel d.V. Bitong
Nikki Angeli LB Tuble Mariane L. Hernandez
Marryl Ann G. Ragpala Juan Paolo N. Tamonte
 Remedial Law Team

Adviser: JUDGE WILHELMINA JORGE-WAGAN

Subject Head: GARDIANO, VON JOVEN KRISTIAN R.

Asst. Subject Head: EVANGELISTA, MA. CLARA G.

FERNANDEZ, THERESE MARIE L.

Members: ABELLA, FREDERICK JR., M.

ABUNALES, HANNA JUVENIL
ARBIOL, CHRISTIAN ADRIANNE M.
CORDON, JOHN CONSTANTINE G.
DOMINGO, ALA MEI T.
LAZARO, CHARISSA ELAINE B.
LITE, MARIA LUZ B.
MARQUEZ, DOMINIC PAOLO C.
NARVASA, JAMEH JANN R.
PABALAY, MARY ROCELYN
RAFAEL, KRISTINE DENISE C.
SANTIAGO, APRIL JOY C.
SILVA, MARIA KATHRINA V.
SUAN, ROSE ANNE G.

REMEDIAL LAW
CIVIL PROCEDURE
JURISDICTION OF COURTS
Give at least three instances where the Court
of Appeals may act as a trial court.
SUGGESTED ANSWER:
Instances where the Court of Appeals may
act as a trial court are:
1. In annulment of judgment under
Secs. 5 and 6, Rule 47. Should the
Court o£ Appeals find prima facie
merit in the petition, the same shall be
given due course and summons shall
be served on the respondent, after
which trial will follow, where the
procedure in ordinary civil cases shall
be observed.
2. When a motion for new trial is granted
by the Court of Appeals, the
procedure in the new trial shall be the
same as that granted by a Regional
Trial Court (Sec. 4, Rule 53).
3. A petition for habeas corpus shall be
set for hearing (Sec. 12, Rule 102).
4. In a petition for the writs of amparo
and habeas data, a hearing can be
conducted.
5. Under Section 12, Rule 124 of the
Rules of Criminal Procedure, the
Court of Appeals has the power to try
cases and conduct hearings, receive
evidence and perform any and all
acts necessary to resolve factual
issues cases which fall within its
original and appellate jurisdiction.
6. The Court of Appeals can grant a
new trial based on the ground of
newly discovered evidence. (Sec.
14,Rule 124).
7. The Court of Appeals, under Section
6, Rule 46, whenever necessary to
resolve factual issues, may conduct
hearing thereon or delegate the
reception of the evidence of such
issues to any of its members or to an
appropriate agency or office.
[NOTE: It is suggested that an answer with any
three (3) of the enumerated instances should
be considered as correct].
Estrella was the registered owner of a huge
parcel of land located in a remote part of
their barrio in Benguet. However, when she
visited the property after she took a long
Adviser: Judge Wilhelmina Jorge-Wagan Subject Head: Von Joven Kristian R. Gardiano Asst. Subject Head: Ma. Clara G. Evangelista, Therese Marie
L. Fernandez Members: Christian Adrianne M. Arbiol, Kristine Denise C. Rafael, Charissa Elaine B. Lazaro, Rose Anne G. Suan, Maria Luz B. Lite, April
Joy C. Santiago, Dominic Paolo C. Marquez, Ala Mei T. Domingo, Frederick Jr., M. Abella, Jameh Jann R. Narvasa, John Constantine G. Cordon, Mary
Rocelyn Pabalay, Hanna Juvenil M. Abunales, Maria Kathrina V. Silva
vacation abroad, she was surprised to see
that her childhood friend, John, had
established a vacation house on her
property.
Both Estrella and John were residents
of the same barangay. To recover
possession, Estrella filed a complaint for
ejectment with the Municipal Trial Court
(MTC), alleging that she is the true owner of
the land as evidenced by her certificate of
title and tax declaration which showed the
assessed value of the property as P21,000.00.
On the other
hand, John refuted Estrella’s claim of
ownership and submitted in evidence a
Deed of Absolute Sale between him
and Estrella. After the filing of John’s answer,
the MTC observed that the real issue was one
of ownership and not of possession. Hence,
the MTC dismissed the complaint for lack of
jurisdiction.
On appeal by Estrella to the Regional
Trial Court (RTC), a full-blown trial was
conducted as if the case was originally filed
with it. The RTC reasoned that based on the
assessed value of the property, it was the
court of proper jurisdiction. Eventually, the
RTC rendered a judgment declaring John as
the owner of the land and, hence, entitled to
the possession thereof.
a. Was the MTC correct in dismissing the
complaint for lack of jurisdiction?
Why or why not?
b. Was the RTC correct in ruling that
based on the assessed value of the
property, the case was within its
original jurisdiction and, hence, it
may conduct a full-blown trial of the
appealed case as if it was originally
filed with it? Why or why not?
SUGGESTED ANSWER:
a. No, the MTC was not correct in
dismissing the case for lack of
jurisdiction. The Supreme Court has
held that an allegation of ownership
as a defense in the answer will not
oust the MTC of jurisdiction in an
ejectment case. (Subano v. Vallecer,
24 March 1959). What determines
subject-matter jurisdiction is the
allegations in the complaint and not
those in the answer. Furthermore, the
MTC is empowered under S16 R70 to
resolve the issue of ownership, albeit
 for the purpose only of resolving the
issue of possession.
b. No, the RTC was not correct in ruling
that the case was within its original
jurisdiction and that it may conduct a
full-blown trial of the appealed case
as if it were originally filed with it.
Under S8 R40, if an appeal is taken from an
MTC order dismissing a case for lack of
jurisdiction without a trial on the merits, the
RTC on appeal may affirm the dismissal order
and if it has jurisdiction thereover, try the
case on the merits as if the case was
originally filed with it.
Here the RTC did not have jurisdiction over
the case since it is an ejectment suit
cognizable exclusively by the MTC. The
assessed value of the land is irrelevant for the
purpose of determining jurisdiction in
ejectment suits and would not oust the MTC
of jurisdiction in the same manner as
allegations of ownership would not oust the
MTC of jurisdiction. The RTC should have
reversed the dismissal order and remanded
the case to the MTC for further
proceedings. (S8 R40).
John filed with the Bureau of Internal Revenue
a complaint for refund of taxes paid, but it
was not acted upon. So, he filed a similar
complaint with the Court of Tax Appeals
raffled to one of its Divisions. John's complaint
was dismissed. Thus, he filed with the Court of
Appeals a petition for certiorari under Rule
65. Does the Court of Appeals have
jurisdiction over John’s petition?
SUGGESTED ANSWER:
No. Decisions of a division of the Court of Tax
Appeals must be appealed to the Court of
Tax Appeals en banc. The procedure is
governed by Sec. 11 of R. A. 9282. Further,
the CTA now has the same rank as the Court
of Appeals and is no longer considered a
quasi-judicial agency. It is likewise provided
in the said law that the decisions of the CTA
en banc are cognizable by the Supreme
Court under Rule 45 of the 1997 Rules of Civil
Procedure.
5 San Beda College Alabang School of Law
TOTALITY RULE; COUNTERCLAIM
Fe filed a suit for collection of P387,000
against Ramon in the RTC of Davao City.
Aside from alleging payment as a defense,
Ramon in his answer set up counterclaims for
P100,000 as damages and P30,000 as
attorney’s fees as a result of the baseless
filing of the complaint, as well as for P250,000
as the balance of the purchase price of the
30 units of air conditioners he sold to Fe.
a. Does the RTC have jurisdiction over
Ramon’s counterclaims, if so, does he
have to pay docket fees therefor?
SUGGESTED ASNWER:
a. Yes, the RTC has jurisdiction over
Ramon’s counterclaims because
they are all money claims in which
the totality rule applies in determining
jurisdiction (Sec. 5[d], Rule 2, Rules of
Court).
Essentially, the nature of a counterclaim
is determinative of whether or not the
counterclaimant is required to pay
docket fees. The rule in permissive
counterclaims is that for the trial court to
acquire jurisdiction, the counterclaimant
is bound to pay the prescribed docket
fees. On the other hand, the prevailing
rule with respect to compulsory
counterclaims is that no filing fees are
required for the trial court to acquire
jurisdiction over the subject matter. (Sy-
Vargas vs. The Estate of Ogsos, G.R. No.
221062, October 05, 2016) Under OCA
Circular 96-2009, the suspension of
payment of filing fees for compulsory
counterclaims remains in effect.
b. Suppose Ramon’s counterclaim for the
unpaid balance is P310,000, what will
happen to his counterclaims if the court,
dismisses the complaint after holding a
preliminary hearing on Ramon’s affirmative
defenses?
SUGGESTED ANSWER:
The dismissal of the complaint is without
prejudice to the right of the defendant
(Ramon) to prosecute his counterclaim in the
same or in a separate action [Sec. 6, Rule 16,
last par.; Pingav. Heirs of Santiago, 494 SCRA
393 [2006]).
c. Under the same premise as paragraph (b)
above, suppose that instead of alleging
payment as a defense in his answer, Ramon
filed a motion to dismiss on that ground, at
2017 Centralized Bar Operations
the same time setting up his counterclaims,
and the court grants his motion. What will
happen to his counterclaims?
SUGGESTED ANSWER:
Since Ramon filed only a motion to dismiss,
not an answer, the dismissal of the complaint
would also bring about the dismissal of his
counterclaims but he can file a separate
action for his permissive counterclaims. The
compulsory counterclaims are deemed
waived when he filed a motion to dismiss the
complaint instead of answering the same.
(Financial Building Corporation v. Forbes Park
Association, Inc., 338 SCRA 346 2000]).
KINDS OF ACTION
Distinguish:
a. An action in rem from an action quasi
in rem
b. An action quasi in rem from an action
in personam.
c. An action in personam from a
personal action.
d. An action in rem from a real action.
e. Personal action from a local action.
SUGGESTED ANSWER:
a. An action in rem is an action against
all who might be minded to make an
objection of any sort against the right
sought to be established, while an
action quasi in rem is an action
against an individual although the
purpose of the suit is to subject his
interest in a particular property to the
obligation or lien burdening the
property. The judgment rendered in
actions in rem binds the whole world,
while the Judgment rendered in
actions quasi in rem is conclusive only
between the parties. (Banco
EspañolFUipinov. Palanca, 37 Phil.
921; Sandejas v. Robles, 81 Phil. 421.)
b. An action quasi in rem, as stated, is an
action against a person over a
particular property or claims relating
thereto, while an action in personam
is an action to establish a claim
against a person with a judgment
that binds him personally.
c. An action in personam, as stated, is
an action against a person on the
basis of his personal liability while a
personal action is an action where
the plaintiff seeks the recovery of
personal property, the enforcement
or resolution of a contract or the
6 San Beda College Alabang School of Law
recovery of damages. (Hernandez v.
Rural Bank of Lucena, Inc., 81 SCRA
75 [1981]).
d. An action in rem is as stated above,
while a real action is an action
affecting title to real property or for
the recovery of possession, or for
partition or condemnation of, or
foreclosure of a mortgage on, real
property. (Rule 4, sec. 2[a]).
e. A personal action is as stated above,
while a local action is that which must
be brought in, a particular place.
Plaintiff in a personal action may file it
in the place where he resides or
where the defendant resides, while in
a local action, plaintiff has no choice
except to file the action in the place
where the property is located.
CERTIFICATION OF NON-FORUM SHOPPING
Tailors Toto, Nelson and Yenyen filed a
special civil action for certiorari under Rule 65
from an adverse decision of the National
Labor Relations Commission (NLRC) on the
complaint for illegal dismissal against Empire
Textile Corporation. They were terminated on
the ground that they failed to meet the
prescribed production quota at least four (4)
times. The NLRC decision was assailed in a
special civil action under Rule 65 before the
Court of Appeals (CA). In the verification and
certification against forum shopping, only
Toto signed the verification and certification,
while Atty. Arman signed for Nelson. Empire
filed a motion to dismiss on the ground of
defective verification and certification.
Decide with reasons.
SUGGESTED ANSWER:
On the requirement of a certification of non-
forum shopping, the well-settled rule is that all
the petitioners must sign the certification of
non-forum shopping. The reason for this is that
the persons who have signed the
certification cannot be presumed to have
the personal knowledge of the other non-
signing petitioners with respect to the filing or
non-filing of any action or claim the same as
or similar to the current petition. (Altres v.
Empleo, G.R. No. 180986, [December 10,
2008], 594 PHIL 246-268) Petitioners who have
not signed the certification had not shown a
justifiable cause for failure to personally sign
it. Thus, the petition must be dismissed.
ALTERNATIVE ANSWER:
The certification against forum shopping
must be signed by all the plaintiffs or
2017 Centralized Bar Operations
petitioners in a case; otherwise, those who
did not sign will be dropped as parties to the
case. Under reasonable or justifiable
circumstances, however, as when all the
plaintiffs or petitioners share a common
interest and invoke a common cause of
action or defense, the signature of only one
of them in the certification against forum
shopping substantially complies with the
Rule. (Vda. de Formoso v. Philippine National
Bank, G.R. No. 154704, [June 1, 2011], 665
PHIL 184-198)
PARTIES TO A CIVIL ACTION
Chika sued Gringo, a Venezuelan, for a sum
of money. The Metropolitan Trial Court of
Manila (MeTC) rendered a decision ordering
Gringo to pay Chika P50,000.00 plus legal
interest. During its pendency of the appeal
before the RTC, Gringo died of acute
hemorrhagic pancreatitis. Atty. Perfecto,
counsel of Gringo, filed a manifestation
attaching the death certificate of Gringo and
informing the RTC that he cannot substitute
the heirs since Gringo did not disclose any
information on his family. As counsel for
Chika, what remedy can you recommend to
your client so the case can move forward
and she can eventually recover her money?
Explain.
SUGGESTED ANSWER:
According to Rule 3 Sec. 16 of the Rules of
Court, the heirs of the deceased may be
allowed to be substituted for the deceased.
The word “may” does not restrict those who
may substitute the deceased party. In the
same section, it is said that if no legal
representative is named by the counsel of
the deceased party, as here in due to the
absence of information on the latter’s family,
the court may order the opposing party
within a specified time to procure the
appointment of an executor or administrator
for the estate of the deceased and the latter
shall immediately appear for and on behalf
of the deceased. Chika may ask the counsel
of the deceased party to appoint an
executor or administrator for the estate to
substitute him, in the absence of heirs.
NON-JOINDER OF PARTIES
X was driving the dump truck of Y along
Cattleya Street in Sta. Maria, Bulacan. Due to
his negligence, X hit and injured V who was
crossing the street: Lawyer L, who witnessed
the incident, offered his legal services to V.
7 San Beda College Alabang School of Law
V, who suffered physical injuries
including a fractured wrist bone, underwent
surgery to screw a metal plate to his wrist
bone. On complaint of V, a criminal case for
Reckless Imprudence Resulting in Serious
Physical Injuries was filed against X before
the Municipal Trial Court (MTC) of Sta. Maria.
Atty. L, the private prosecutor, did not reserve
the filing of a separate civil action.
V subsequently filed a complaint for
Damages against X and Y before the
Regional Trial Court of Pangasinan in
Urdaneta where he resides. In his
"Certification against Forum Shopping” V
made no mention of the pendency of the
criminal case in Sta. Maria.
Suppose only X was named as
defendant in the complaint for damages,
may he move for the dismissal of the
complaint for failure of V to implead Y as an
indispensable party?
SUGGESTED ANSWER:
No, X may not move for dismissal of the civil
action for damages on the contention that Y
is an indispensable party who should be
impleaded. Y is not an indispensable party
but only a necessary party. Besides, non-
joinder and misjoinder of parties is not a
ground for dismissal of actions (Rule 3, Sec.
11, Rules of Court.)
CAUSES OF ACTION
While leisurely walking along the street near
her house in Marikina, Patty unknowingly
stepped on a garden tool left behind by
CCC, a construction company based in
Makati. She lost her balance as a
consequence and fell into an open manhole.
Fortunately, Patty suffered no major injuries
except for contusions, bruises and scratches
that did not require any hospitalization.
However, she lost self-esteem, suffered
embarrassment and ridicule, and had bouts
of anxiety and bad dreams about the
accident. She wants vindication for her
uncalled for experience and hires you to act
as counsel for her and to do whatever is
necessary to recover at least Php100,000 for
what she suffered.
What action or actions may Patty pursue,
against whom, where (court and venue), and
under what legal basis?
SUGGESTED ANSWER:
Patty may avail any of the following
remedies:
2017 Centralized Bar Operations
 a. She may file a complaint for
damages arising from fault or
negligence under the Rule on Small
Claims against CCC Company
before the MTC of Marikina City
where she resides or Makati City
where the defendant corporation is
holding office, at her option (A.M. No.
8-8-7-SC in relation to Section 2, Rule
4,Rules of Court)
b. She may also file an action to recover
moral damages based on quasi-
delict under Article 2176 of the New
Civil Code. The law states that,
whoever by act or omission causes
damage to another, there being fault
or negligence is obliged to pay for
the damage done. Such fault or
negligence, if there is no pre-existing
contractual relation between the
parties, is called a quasi-delict. Since
an action of a claim for moral
damages are capable of pecuniary
estimation, they fall within the
jurisdiction depending on the
amount of damages claimed. It shall
be filed before the MTC of Marikina
City provided that the aggregate
amount of damages does not
exceed P400,000.
c. Patty can also file a civil action for
damages against the City of Marikina
for maintaining an open manhole
where she unfortunately fell. Under
article 2189 of the Civil Code,
provinces, cities, and municipalities
shall be liable for damages for the
death of, or injuries suffered by, any
person by reason of the defective
condition of roads, streets, bridges,
public buildings, and other public
works under their control or
supervision. Actions for damages
based on quasi-delicts are actions
that are capable of pecuniary
estimation. As such, they fall within
the jurisdiction depending on the
amount of damages claimed. In this
case, it shall be filed before the MTC
of Marikina City provided that the
aggregate amount of damages
does not exceed P400,000.
Distinguish “Failure to state cause of action”
vs. “Lack of cause of action”.
SUGGESTED ANSWER:
Failure to state a cause of action refers to the
insufficiency of the pleading. This is a ground
for dismissal under Rule 16 of the Rules of
8 San Beda College Alabang School of Law
Court. On the other hand, lack of cause of
action refers to the insufficiency of evidence.
It refers to a situation where the evidence
does not prove the cause of action alleged
in the pleading. (Dolores Macaslang vs.
Renato Zamora, G.R. 156375, May 30, 2011)
VENUE
Eduardo, a resident of the City of Manila, filed
before the Regional Trial Court (RTC) of
Manila a complaint for the annulment of a
Deed of Real Estate Mortgage he signed in
favor of Galaxy Bank (Galaxy), and the
consequent foreclosure and auction sale of
his mortgaged Makati property. Galaxy filed
a Motion to Dismiss on the ground of
improper venue alleging that the complaint
should be filed with the RTC of Makati since
the complaint involves the ownership and
possession of Eduardo’s lot. Resolve the
motion with reasons.
SUGGESTED ANSWER:
In Chua v. Total Office Products and Services
(Topros), Inc., the Supreme Court ruled that
an action to annul a contract of loan and its
accessory real estate mortgage is a personal
action. In accordance with Sec. 2, Rule 4 of
the Rules of Court, Manila City, where
Eduardo the plaintiff resides, is the proper
venue of the Complaint for Annulment of
Deed of Mortgage.
FAILURE TO FILE AN ANSWER; DEFAULT
Circe filed with the RTC a complaint for the
foreclosure of real estate mortgage against
siblings Scylla and Charybdis, co-owners of
the property and cosignatories to the
mortgage deed. The siblings permanently
reside in Athens, Greece. Circe tipped off
Sheriff Pluto that Scylla is on a balikbayan trip
and is billeted at the Century Plaza Hotel in
Pasay City. Sheriff Pluto went to the hotel and
personally served Scylla the summons, but
the latter refused to receive summons for
Charybdis as she was not authorized to do so.
Sheriff Pluto requested Scylla for the email
address and fax number of Charybdis which
the latter readily gave. Sheriff Pluto, in his
return of the summons, stated that “Summons
for Scylla was served personally as shown by
her signature on the receiving copy of the
summons.
Summons on Charybdis was served
pursuant to the amendment of Rule 14 by
facsimile transmittal of the summons and
2017 Centralized Bar Operations
complaint on defendant’s fax number as
evidenced by transmission verification report
automatically generated by the fax machine
indicating that it was received by the fax
number to which it was sent on the date and
time indicated therein.”
Circe, sixty (60) days after her receipt
of Sheriff Pluto’s return, filed a Motion to
Declare Charybdis in default as Charybdis
did not file any responsive pleading.
a. Should the court declare Charybdis in
default?
Scylla seasonably filed her answer setting
forth therein as a defense that Charybdis had
paid the mortgage debt.
b. On the premise that Charybdis was
properly declared in default, what is
the effect of Scylla’s answer to the
complaint?
SUGGESTED ANSWER:
a. No, the court should not declare
Charybdis in default. Under the Rules
of Court, the amendment of Rule 14
allowing service of summons by
facsimile transmittal refers only to
service of summons upon a foreign
private juridical entity under Section
12 of Rule 14, not to a non-resident
defendant under Section 15 of Rule
14. Service of summons by facsimile
cannot be effected under Section 15
unless leave of court was obtained
specifically permitting service by
facsimile transmittal.
Here the defendant is not a foreign
private juridical entity but a non-
resident defendant and no leave of
court was obtained to serve
summons by facsimile.
Hence there was no valid service of
summons and thus the court could
not declare Charybdis in default.
b. The effect of Scylla’s answer to the
complaint is that the court shall try the
case against both Scylla and
Charybdis upon the answer filed by
Scylla.
Under Section 3(c) of Rule 9, when a
pleading asserting a claim states a
common cause of action against
several defending parties, some of
whom answer and the others fail to
do so, the court shall try the case
against all upon the answers thus filed
9 San Beda College Alabang School of Law
and render judgment upon the
evidence presented. Here there was
a common cause of action against
Scylla and Charybdis since both were
co-signatories to the mortgage deed.
Hence the court should not render
judgment by default against
Charybdis but should proceed to try
the case upon the answer filed and
the evidence presented by Scylla.
MULTIPLICITY OF SUITS
Husband H files a petition for declaration of
nullity of marriage before the RTC of Pasig
City. Wife W files a petition for habeas corpus
before the RTC of Pasay City, praying for
custody over their minor child. H files a
motion to dismiss the wife’s petition on the
ground of the pendency of the other case.
Rule.
SUGGESTED ANSWER:
The motion to dismiss the petition for habeas
corpus should be granted to avoid
multiplicity of suits. The question of who
between the spouses should have custody of
their minor child could also be determined in
the petition for declaration of nullity of their
marriage which is already pending in the RTC
of Pasig City. In other words, the petition filed
in Pasig City, praying for custody of the minor
child is unnecessary and violates only the
cardinal rules of procedure against
multiplicity of suits. Hence, the latter suit may
be abated by a motion to dismiss on the
ground of litis pendentia (Yu v. Yu, 484 SCRA
485[2006])
SMALL CLAIMS
As a new lawyer, Attorney Novato limited his
practice to small claims cases, legal
counselling and the notarization of
documents. He put up a solo practice law
office and was assisted by his wife who
served as his secretary/helper. He used a
makeshift hut in a vacant lot near the local
courts and a local transport regulatory
agency. With this practice and location, he
did not have big-time clients but enjoyed
heavy patronage assisting walk-in clients.
a. What role can Attorney Novato play
in small claims cases when lawyers
are not allowed to appear as counsel
in these cases?
2017 Centralized Bar Operations
SUGGESTED ANSWER:
Atty. Novata may provide legal assistance to
his clients by giving counselling and
guidance in the preparation and
accomplishment of the necessary
documents and Affidavits to initiate or
defend a small claims action including the
compilation and notarization of the
aforementioned documents, if necessary.
b. What legal remedy, if any, may
Attorney Novato pursue for a client
who loses in a small claims case and
before which tribunal or court may
this be pursued?
SUGGESTED ANSWER:
Atty. Novata may file a petition for Certiorari
under Rule 65 of the Rules of Court before the
RTC since a decision in small claims cases is
final and unappealable (Sec. 23, A.M. No. 8-
8-7 SC, Rules of Procedure for Small Claims
Cases). The petition for certiorari should be
filed before the RTC conformably to the
Principle of judicial Hierarchy.
KATARUNGANG PAMBARANGAY;
INDIGENOUS
Pedro and Juan are residents of Barangay
Ifurug, Municipality of Dupac, Mountain
Province. Pedro owes Juan the amount of
P50,000.00. Due to non- payment, Juan
brought his complaint to the Council of Elders
of said barangay which implements the
bodong justice system. Both appeared
before the council where they verbally
agreed that Pedro will pay in installments on
specific due dates. Pedro reneged on his
promise. Juan filed a complaint for sum of
money before the Municipal Trial Court
(MTC). Pedro filed a Motion to Dismiss on the
ground that the case did not pass through the
barangay conciliation under R.A. No. 7160
and that the RTC, not the MTC, has
jurisdiction. In his opposition, Juan argued
that the intervention of the Council of Elders is
substantial compliance with the requirement
of R.A. No. 7160 and the claim of P50,000.00
is clearly within the jurisdiction of the MTC. As
MTC judge, rule on the motion and explain.
SUGGESTED ANSWER:
R.A. 7160, Section 412. Conciliation. –
Conciliation among members of indigenous
cultural communities. - The customs and
traditions of indigenous cultural communities
shall be applied in settling disputes between
members of the cultural communities.
10
Section 66 of the IPRA, the law conferring
jurisdiction on the NCIP, reads:
Sec. 66. Jurisdiction of the NCIP. — The NCIP,
through its regional offices, shall have
jurisdiction over all claims and disputes
involving rights of ICCs/IPs: Provided,
however, That no such dispute shall be
brought to the NCIP unless the parties have
exhausted all remedies provided under their
customary laws. For this purpose, a
certification shall be issued by the Council of
Elders/Leaders who participated in the
attempt to settle the dispute that the same
has not been resolved, which certification
shall be a condition precedent to the filing of
a petition with the NCIP.
Under the provisions of R.A. 7160 on
Katarungang Pambarangay conciliation, as
implemented by the Katarungang
Pambarangay Rules and Regulations
promulgated by the Secretary of Justice, the
certification for filing a complaint in court or
any government office shall be issued by
Barangay authorities only upon compliance
with the following requirements:
Issued by the Punong Barangay, as
requested by the proper party on the ground
of failure of settlement where the dispute
involves members of the same indigenous
cultural community, which shall be settled in
accordance with the customs and traditions
of that particular cultural community, or
where one or more of the parties to the
aforesaid dispute belong to the minority and
the parties mutually agreed to submit their
dispute to the indigenous system of amicable
settlement, and there has been no
settlement as certified by the datu or tribal
leader or elder to the Punong Barangay of
place of settlement (Secs. 1,4 & 5, Rule IX,
Katarungang Pambarangay Rules)
INDIGENCE; FILING FEES
Spouses Marlon and Edith have three (3)
children ages 15, 12 and 7, who are studying
at public schools. They have a combined
gross monthly income of P30,000.00 and they
stay in an apartment in Manila with a monthly
rent of PS,000.00. The monthly minimum wage
per employee in Metro Manila does not
exceed P13,000.00. They do not own any real
property. The spouses want to collect a loan
of P25,000.00 from Jojo but do not have the
money to pay the filing fees.
a. Would the spouses qualify as indigent
litigants under Section 19, Rule 141 on
Legal Fees?
San Beda College Alabang School of Law
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SUGGESTED ANSWER:
No, the spouses would not qualify as indigent
litigants under Section 19, Rule 141 on Legal
Fees since the family’s gross income exceeds
double the monthly minimum wage of an
employee (Php 13,000 x 2 = Php 26,000) and
their combined gross monthly income is Php
30,000.
Indigent litigants are those:
a. Whose gross income and that of their
immediate family do not exceed an
amount double the monthly
minimum wage of an employee
b. Who do not own real property with a
fair market value as stated in the
current tax declaration of more than
three hundred thousand pesos shall
be exempt from the payment of legal
fees.
The legal fees shall be a lien on any judgment
rendered in the case favorable to the
indigent litigant unless the court otherwise
provides.
c. If the spouses do not qualify under
Rule 141, what other remedy can they
avail of under the rules to exempt
them from paying the filing fees?
SUGGESTED ANSWER:
Section 1, Article I of the Guidelines
Governing the Establishment and Operation
of Legal Aid Offices in All Chapters of the
Integrated Bar of the Philippines (otherwise
known as Guideline[s] on Legal Aid)
provides: x x x WHEREAS, PAO clients are
automatically exempt from the payment of
docket and other fees for cases, be they
original proceedings or on appeal, by virtue
of the provisions of Section 16D of R.A. 9406
(PAO Law), without the need for the filing of
any petition or motion to declare them as
pauper litigants;
Pursuant to PAO MEMORANDUM
CIRCULAR NO. 02 Series of 2010 dated
January 27, 2010 and entitled as "AMENDING
SECTIONS 3, 4, and 5, ARTICLE II OF
MEMORANDUM CIRCULAR NO. 18, S. 2002
(Amended Standard Office Procedures in
Extending Legal Assistance)" in relation to the
provisions of Republic Act (RA) No. 9406
enacted by Congress and approved by Her
Excellency President Gloria Macapagal-
Arroyo on March 23, 2007 and its
Implementing Rules and Regulations dated
July 14, 2008, the Indigency Test set forth in
Section 3, Article II, MC No. 18, S. 2002, is
hereby amended to read as follows:
11
1. If residing in Metro Manila, whose
net income does not exceed
Php14,000.00 a month; x x x
Since the combined gross monthly
income of the spouses is P30,000, it may be
assumed that each have a gross monthly
income of P15,000. Income Tax Rates for
income more than P10,000 but not over
P30,000 is P500 plus 10% of the excess of
P10,000. 10% of 5,000 is 500. Income tax of
P1,000 deducted from P15,000 is P14,000
which qualifies them as indigent clients
qualified to be represented by PAO
exempting them to pay the required filing
fees.
SUMMONS
Juan sued Roberto for specific performance.
Roberto knew that Juan was going to file the
case so he went out of town and temporarily
stayed in another city to avoid service of
summons. Juan engaged the services of
Sheriff Matinik to serve the summons but
when the latter went to the residence of
Roberto, he was told by the caretaker thereof
that his employer no longer resides at the
house. The caretaker is a high school
graduate and is the godson of Roberto.
Believing the caretaker’s story to be true,
Sheriff Matinik left a copy of the summons
and complaint with the caretaker. Was there
a valid substituted service of summons?
Discuss the requirements for a valid service of
summons.
SUGGESTED ANSWER:
Section 7, Rule 14 of the Rules of Court
provides that if, for justifiable causes, the
defendant cannot be served within a
reasonable time as provided in the
preceding section [personal service on
defendant], service may be effected (a) by
leaving copies of the summons at the
defendants residence with some person of
suitable age and discretion then residing
therein, or (b) by leaving the copies at
defendants office or regular place of
business with some competent person in
charge thereof.
The requisites of a valid substituted service
are:
1. Service of summons within a
reasonable time is impossible;
2. The person serving the summons
exerted efforts to locate the
defendant;
3. The person to whom the summons is
served is of sufficient age and
discretion;
San Beda College Alabang School of Law
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 4. The person to whom the summons is
served resides at the defendant’s
place of residence; and
5. Pertinent facts showing the
enumerated circumstances are
stated in the return of service.
For substituted service of summons to be
available, there must be several attempts by
the sheriff to personally serve the summons
within a reasonable period which eventually
resulted in failure to prove impossibility of
prompt service. Several attempts mean at
least 3 tries, preferably on at least 2 different
dates. In addition, the sheriff must cite why
such efforts were unsuccessful. (Imelda
Manotoc vs. CA, G.R. 130974, August 16,
2006)
MODES OF DISCOVERY
Briefly explain the procedure on
“Interrogatories to Parties” under Rule 25 and
state the effect of failure to serve written
interrogatories.
SUGGESTED ANSWER:
The mode of discovery is availed of by filing
and upon the adverse party written
interrogatories to be answered by any of its
officers competent to testify in its behalf. A
party may serve written interrogatories to the
other party without leave of court only after
an answer has been served; or with leave of
court before answer has been served. (1
Regalado, p.366)
The party upon whom the interrogatories
have been served shall file and serve a copy
of the answers on the party submitting the
interrogatories within 15 days after the
service thereof, fully in writing, signed and
sworn to by the person making them.
A party not served with written interrogatories
may not be compelled by the adverse party
to give testimony in open court or to give
deposition pending appeal. Exception:
Unless after allowed by the court for good
cause shown; and to prevent failure of
justice.
ADMISSION BY ADVERSE PARTY
Briefly explain the procedure on “Admission
by Adverse Party” under Rule 26 and the
effect of failure to file and serve the request.
12
SUGGESTED ANSWER:
A party may file and serve the written request
at any time after the issues have been joined
and must be served on the party and not the
counsel. The party to whom the request is
directed must file and serve upon the party
requesting the admission within the period
designated in the request but which shall not
be less than 15 days from the service of the
request (or within such further time as the
court may allow) a sworn statement either –
1. Denying specifically the matters of
which an admission is requested; or
2. Setting forth in detail the reasons why
he cannot truthfully either admit or
deny those matters (Section 2, Rule 26
ROC).
As a consequence of the failure to file and
serve a request shall not be permitted to
present evidence on facts that are material
and relevant and which are, or ought to be,
within the personal knowledge of the other
party (Section 5, Rule 26 ROC).
DEMURRER TO EVIDENCE
Distinguish the effects of the filing of a
demurrer to the evidence in a criminal case
and its filing in a civil case.
SUGGESTED ANSWER:
a. In criminal cases, demurrer to the
evidence requires leave of court,
otherwise, the accused would lose his
right to present defense evidence if
denied; in civil cases, no leave of
court is required for filing such
demurrer.
b. In criminal cases, when such
demurrer is granted, the dismissal of
the case is not appealable inasmuch
as the dismissal would amount to an
acquittal, unless made by a court
acting without or in excess of
jurisdiction; in civil cases, when such
demurrer is granted, the dismissal of
the case can be appealed by the
plaintiff.
c. In criminal cases, the accused loses
his right to present his defense-
evidence in the trial court when he
files the demurrer without prior leave
of court, while in civil cases, the
defendant loses his right to present
defense-evidence if plaintiff appeals
the dismissal since the appellate
court will decide the appeal only on
the basis of plaintiff ’s evidence on
record.
San Beda College Alabang School of Law
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 JUDGMENT; JUDGMENT ON THE PLEADINGS
Plaintiff files a request for admission and
serves the same on Defendant who fails,
within the time prescribed by the rules, to
answer the request. Suppose the request for
admission asked for the admission of the
entire material allegations stated in the
complaint, what should plaintiff do?
SUGGESTED ANSWER:
The Plaintiff should file a Motion for Judgment
on the Pleadings because the failure of the
defendant to answer a request for admission
results to an implied admission of all the
matters which an admission is requested.
Hence, a motion for judgment on the
pleadings is the appropriate remedy where
the defendant is deemed to have admitted
the matters contained in the Request for
admission by the plaintiff. (Rule 34 in
connection with Sec.2, Rule 26, Rules of
Court).
SUMMARY JUDGMENT; JUDGMENT ON THE
PLEADINGS
Distinguish “Summary Judgment” and
“Judgment on the Pleadings.”
SUGGESTED ANSWER:
Summary judgments are proper when, upon
motion of the plaintiff or the defendant, the
court finds that the answer filed by the
defendant does not tender a genuine issue
as to any material fact and that one party is
entitled to a judgment as a matter of law. On
the other hand, Judgment on the pleadings
is proper where an answer fails to tender an
issue, or otherwise admits the material
allegations of the adverse party’s pleading
and the court may, on motion of that party,
direct judgment on such pleading.
APPEAL
Distinguish the two (2) modes of appeal from
the judgment of the Regional Trial Court to the
Court of Appeals.
SUGGESTED ANSWER:
In cases decided by the Regional Trial Courts
in the exercise of their original jurisdiction,
appeals to the Court of Appeals shall be
ordinary appeal by filing written notice of
appeal indicating the parties to the appeal;
specifying the judgment/final order or part
thereof appealed from; specifying the court
to which the appeal is being taken; and
13
stating the material dates showing the
timeliness of the appeal. The notice of
appeal shall be filed with the RTC which
rendered the judgment appealed from and
copy thereof shall be served upon the
adverse party within 15 days from notice of
judgment or final order appealed from. But if
the case admits of multiple appeals or is a
special proceeding, a record on appeal is
required aside from the written notice of
appeal to perfect the appeal, in which case
the period for appeal and notice upon the
adverse party is not only 15 days but 30 days
from notice of judgment or final order
appealed from. The full amount of the
appellate court docket fee and other lawful
fees required must also be paid within the
period for taking an appeal, to the clerk of
the court which rendered the judgment or
final order appealed from (Secs. 4 and 5,
Rule 41, Rules of Court). The periods of 15 or
30 days above-stated are non-extendible.
In cases decided by the Regional Trial
Court in the exercise of its appellate
jurisdiction, appeal to the Court of Appeals
shall be by filing a verified petition for review
with the Court of Appeals and furnishing the
RTC and the adverse party with copy
thereof, within 15 days from notice of
judgment or final order appealed from.
Within the same period for appeal, the
docket fee and other lawful fees required
with the deposit for cost should be paid. The
15-day period maybe extended for 15 days
and another 15 days for compelling reasons.
CONCLUSIVENESS OF JUDGMENT VERSUS BAR
BY PRIOR JUDGMENT
Distinguish between conclusiveness of
judgment and bar by prior judgment.
SUGGESTED ANSWER:
a. Conclusiveness of judgment bars
another action based on the same
cause; bar by prior judgment
precludes another action based on
the same issue.
b. Conclusiveness of judgment bars only
the defendant from questioning it;
bar by prior judgment bars both
plaintiff and defendant.
c. Conclusiveness of judgment bars all
matters directly adjudged; bar by
prior judgment precludes all matters
that might have been adjudged.
d. Conclusiveness of judgment
precludes the filing of an action to
annul such judgment; bar by prior
San Beda College Alabang School of Law
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 judgment allows the filing of such an
action.
What is the Doctrine of Immutability of
Judgment? Enumerate its two-fold purpose.
SUGGESTED ANSWER:
Under the doctrine of finality of judgment or
immutability of judgment, a decision that has
acquired finality becomes immutable and
unalterable, and may no longer be modified
in any respect, even if the modification is
meant to correct erroneous conclusions of
fact and law, and whether it be made by the
court that rendered it or by the Highest Court
of the land. Any act which violates this
principle must immediately be struck down.
This doctrine admits a few exceptions, usually
applied to serve substantial justice: 1. The
correction of clerical errors; 2. Nunc pro tunc
entries which cause no prejudice to any
party; 3. Void judgments; and 4. Whenever
circumstances transpire after the finality of
the decision rendering its execution unjust
and inequitable." (Gadrinab vs. Salamanca,
G.R. No. 194560, June 11, 2014)
The doctrine serves a two-fold purpose,
namely:
a. To avoid delay in the administration
of justice and thus, procedurally, to
make orderly the discharge of judicial
business; and
b. To put an end to judicial
controversies, at the risk of occasional
errors, which is precisely why the
courts exist. (Pinausukan Seafood
House, Roxas Boulevard Inc. vs.
FEBTC, G.R. No. 159926, January 20,
2014)
What is the “Harmless Error Rule”?
SUGGESTED ANSWER:
The legal doctrine of harmless error
originated in the Federal Rules of Criminal
Procedure. It comes into use when a litigant
appeals the decision of a judge arguing that
an error of law was made at trial that resulted
in an incorrect decision. The doctrine of
harmless error prevents an unnecessary new
trial when the error alleged would not have
affected the outcome at trial.
We have likewise followed the harmless error
rule in our jurisdiction. (People vs. Claudio
Teehankee, G.R. Nos. 111206-08, October 6,
1995)
14
Enumerate the Procedural Requirements for
Annulment of Judgment.
SUGGESTED ANSWER:
Under Rule 47 of the Rules of Court:
a. The first requirement prescribes that
the remedy is available only when
the petitioner can no longer resort to
the ordinary remedies of new trial,
appeal, petition for relief or other
appropriate remedies through no
fault of the petitioner.
b. The second requirement limits the
ground for the action of annulment of
judgment to either extrinsic fraud or
lack of jurisdiction. But not every kind
of fraud justifies the action of
annulment of judgment. For fraud to
be a ground for annulment of
judgment, it must be extrinsic fraud
on the part of the adverse party.
c. The third requirement sets the time for
the filing of the action. If the action is
based on extrinsic fraud, it must be
filed within 4 years from the discovery
of the extrinsic fraud; and if based on
lack of jurisdiction, must be brought
before it is barred by laches or
estoppel.
c. The fourth requirement demands that
the petition should be verified, and
should allege with particularity the
facts and the law relied upon for
annulment, as well as those
supporting the petitioner’s good and
substantial cause of action or
defense, as the case may be.
(Pinausukan Seafood House, Roxas
Boulevard Inc. vs. FEBTC, G.R. No.
159926, January 20, 2014)
ERROR OF JURISDICTION VS. ERROR OF
JUDGMENT
Distinguish error of jurisdiction from error of
judgment.
SUGGESTED ANSWER:
An error of judgment is one which the court
may commit in the exercise of its jurisdiction.
Such an error does not deprive the court of
jurisdiction and is correctible only by appeal;
whereas an error of jurisdiction is one which
the court acts without or in excess of its
jurisdiction. Such an error renders an order or
judgment void or voidable and is correctible
by the special civil action of certiorari. (Dela
Cruz vs. Moir, 36 Phil. 213; Cochingyan vs.
Claribel, 76 SCRA 361; Fortich vs. Corona,
April 24, 1998, 289 SCRA 624; Artistica
San Beda College Alabang School of Law
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Ceramica, Inc. vs. Ciudad Del Carmen period to appeal. It is explicit in Rules 42, 43
Homeowner’s Association, Inc., G.R. Nos. and 45 that the appellant or petitioner is
167583-84, June 16, 2010). accorded a fresh period of 15 days from the
notice of the decision, award, judgment,
final order or resolution or of the denial of
INJUNCTION; TRO petitioner’s motion for new trial or
reconsideration filed. (Rodriguez vs. Peoople,
What are the requisites for the issuance of (a) G.R. No. 192799, October 24, 2012)
a writ of preliminary injunction; and (b) a final
writ of injunction? In the case of Rolex Rodriguez vs. People, the
Supreme Court settled that the fresh period
SUGGESTED ANSWER: rule is also applicable in criminal cases. The
The requisites for the issuance of a writ of accused will have a fresh 15-day period
preliminary injunction are: (1) a right in esse or counted from receipt of such denial within
a clear and unmistakable right to be which to file his or her notice of appeal.
protected; (2) a violation of that right; (3) that
there is an urgent and permanent act and
urgent necessity for the writ to prevent serious
damage (Tayag v. Lacson, 426 SCRA 282
[20041). A final writ of injunction may be SPECIAL CIVIL ACTIONS
granted if after trial of the action, it appears
that the applicant is entitled to have the act QUO WARRANTO
or acts complained of permanently enjoined
(Sec. 9, Rule 58 of the 1997 Revised Rules on
Petitioner Fabian was appointed Election
Civil Procedure)
Registrar of the Municipality of Sevilla
supposedly to replace the respondent
Election Registrar Pablo who was transferred
PRINCIPLE OF JUDICIAL HIERARCHY
to another municipality without his consent
and who refused to accept his aforesaid
Can the RTC, in the exercise of its appellate
transfer, much less to vacate his position in
jurisdiction rule upon an issue not raised on
Bogo town as election registrar, as in fact he
appeal?
continued to occupy his aforesaid position
and exercise his functions thereto. Petitioner
SUGGESTED ANSWER:
Fabian then filed a petition for mandamus
Yes. As an appellate court, RTC may rule
against Pablo but the trial court dismissed
upon an issue not raised on appeal. When an
Fabian’s petition contending that quo
appeal is taken from the decision of the MTC
warranto is the proper remedy. Is the court
to the RTC, the RTC is not limited to the errors
correct in its ruling? Why?
assigned in the appeal memorandum, but
could decide on the basis of the entire
SUGGESTED ANSWER:
record of the proceedings had in the trial
Yes, the court is correct in its ruling.
court and such memoranda and/or briefs as
Mandamus will not lie. This remedy applies
may be submitted by the parties or required
only where petitioner’s right is founded
by the RTC. (Dolores Macaslang vs. Renato
clearly in law, not when it is doubtful. Pablo
Zamora, G.R. 156375, May 30, 2011)
was transferred without his consent which is
tantamount to removal without cause,
contrary to the fundamental guarantee on
Explain the applicability of Neypes Rule.
non-removal except for cause. Considering
that Pedro continued to occupy the
SUGGESTED ANSWER:
disputed position and exercise his functions
In the case of Neypes, it held that the "fresh
therein, the proper remedy is quo warranto,
period rule" applies to appeals under Rule 40
not mandamus. [Garces v. Court of Appeals,
(appeals from the Municipal Trial Courts to
259 SCRA 99 (1996)]
the RTC) and Rule 41 (appeals from the RTCs
to the CA or this Court); Rule 42 (appeals from
the RTCs to the CA); Rule 43 (appeals from CERTIORARI
quasi-judicial agencies to the CA); and Rule
45 (appeals by certiorari to this Court). Explain each mode of certiorari:
HOWEVER, a scrutiny of the said rules reveals a. As a mode of appeal from the
that the "fresh period rule" in Neypes need Regional Trial Court or the Court of
NOT apply to Rules 42, 43 and 45 as there is Appeals to the Supreme Court.
no interruption in the 15-day reglementary

15 San Beda College Alabang School of Law

2017 Centralized Bar Operations
 b. As a special civil action from the
Regional Trial Court or the Court of
Appeals to the Supreme Court.
c. As a mode of review of the decisions
of the National Labor Relations
Commission and the Constitutional
Commissions.
SUGGESTED ANSWER:
a. A petition for review on certiorari
under Rule 45 of the 1997 Revised
Rules on Civil Procedure is a mode of
ppeal on pure questions law from a
judgment or final order or resolution
of the Court of Appeals or the
Regional Court to the Supreme Court.
b. A special civil action for certiorari
under Rule 65 of the 1997 Revised
Rules of Civil Procedure, is an original
action from the Regional Trial “Court
or the Court of Appeals to the
Supreme Court against any tribunal,
board or officer exercising judicial or
quasi-judicial functions raising the
issue of lack or excess of jurisdiction or
grave abuse of discretion amounting
to lack or excess of jurisdiction, there
being no appeal or any plain, speedy
and adequate remedy in the
ordinary course of law.
c. The mode of review of the decision of
the NLRC is via a special civil action
for certiorari under Rule 65, but
pursuant to the hierarchy of the
courts enunciated in the case of St.
Martin’s Funeral Homes v. NLRC, 295
SCRA 494 (1998), the same should be
filed in the Court of Appeals. The
mode of review of the decisions of
two Constitutional Commissions, the
Commission on Elections and the
Commission on Audit, as provided
under Rule 64 of the 1997 Revised
Rules of Civil Procedure/ is a special
civil action for certiorari under Rule
65. Decisions of the Civil Service
Commission, however, are
reviewable by petition for review to
be filed with the Court of Appeals
under Rule 43 of the 1997 Revised
Rules of Civil Procedure.
CERTIORARI JURISDICTION UNDER RULE 65
AND UNDER THE CONSTITUTION
Compare the certiorari jurisdiction of the
Supreme Court under the Constitution with
that under Rule 65 of the Rules of Civil
Procedure.
16
SUGGESTED ANSWER:
Under the Constitution, the certiorari
jurisdiction of the Supreme Court provides for
its expanded jurisdiction power of judicial
power over [governs] all branches or
instrumentalities of the government where is
a grave abuse of discretion amounting to
lack or excess of jurisdiction, as [agencies
and instrumentalities] provided in Section 1,
second par., Art. VIII of the 1987 Constitution.
The petition is filed under Rule 45 of the Rules
of Court, and [The writ is directed not only to
tribunal, board or officer exercising judicial or
quasi-judicial functions. And] the period fixed
for availing of the remedy is within 30 days
from receipt of the copy of the decision,
order or ruling in question (Sec. 7, Art. IX).
But under Rule 65 of the Rules of
Court, the certiorari jurisdiction of the
Supreme Court is limited to acts done without
or in excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of
jurisdiction, by a tribunal, board or officer
exercising judicial or quasi- judicial functions
only. And the period fixed for availing of the
remedy is not later than 60 days from notice
of judgment; order or resolution in question
(Secs. 1 and 4, Rule 65, Rules of Court).
WRIT OF MANDAMUS; CONTINUING
MANDAMUS
Hannibal, Donna, Florence and Joel,
concerned residents of Laguna de Bay, filed
a complaint for mandamus against the
Laguna Lake Development Authority, the
Department of Environment and Natural
Resources, the Department of Public Work
and Highways, Department of Interior and
Local Government, Department of
Agriculture, Department of Budget, and
Philippine National Police before the RTC of
Laguna alleging that the continued neglect
of defendants in performing their duties has
resulted in serious deterioration of the water
quality of the lake and the degradation of the
marine life in the lake. The plaintiffs prayed
that said government agencies be ordered
to clean up Laguna de Bay and restore its
water quality to Class C waters as prescribed
by Presidential Decree No. 1152, otherwise
known as the Philippine Environment Code.
Defendants raise the defense that the
cleanup of the lake is not a ministerial
function and they cannot be compelled by
mandamus to perform the same. The RTC of
Laguna rendered a decision declaring that it
is the duty of the agencies to clean up
Laguna de Bay and issued a permanent writ
of mandamus ordering said agencies to
San Beda College Alabang School of Law
2017 Centralized Bar Operations
perform their duties prescribed by law
relating to the cleanup of Laguna de Bay.
a. Is the RTC correct in issuing the writ of
mandamus? Explain.
SUGGESTED ANSWER:
Yes. While the implementation of the MMDA's
mandated tasks may entail a decision-
making process, the enforcement of the law
or the very act of doing what the law exacts
to be done is ministerial in nature and may be
compelled by mandamus. (Metropolitan
Manila Development Authority v. Concerned
Residents of Manila Bay)
b. What is the writ of continuing mandamus?
SUGGESTED ANSWER:
Rules of Procedure for Environmental Cases,
Rule 1 Sec. 4(c)
Continuing mandamus is a writ issued by a
court in an environmental case directing any
agency or instrumentality of the government
or officer thereof to perform an act or series
of acts decreed by final judgment which
shall remain effective until judgment is fully
satisfied.
SPECIAL PROCEEDINGS
&OTHER SPECIAL WRITS
HABEAS CORPUS
Hercules was walking near a police station
when a police officer signaled for him to
approach. As soon as Hercules came near,
the police officer frisked him but the latter
found no contraband. The police officer told
Hercules to get inside the police station.
Inside the police station, Hercules asked the
police officer, “Sir, may problema po ba?”
Instead of replying, the police officer locked
up Hercules inside the police station jail.
What is the remedy available to Hercules to
secure his immediate release from
detention?
SUGGESTED ANSWER:
The remedy available to Hercules to secure
his immediate release from detention is a
petition for writ of habeas corpus. Under Rule
102, the writ of habeas corpus is available in
cases of illegal detention. Section 5 of Rule
102 provides that a court or judge authorized
to grant the writ must, when the petition
therefor is presented and it appears that the
writ ought to issue, grant the same forthwith,
and immediately thereupon the clerk of
court shall issue the writ or in case of
17
emergency, the judge may issue the writ
under his own hand and may depute any
officer or person to serve it. The court or judge
before whom the writ is returned must
immediately proceed to hear and examine
the return. (Section 12, Rule 102).
WRIT OF AMPARO
The residents of Mt. Ahohoy, headed by
Masigasig, formed a nongovernmental
organization - Alyansa Laban sa Minahan sa
Ahohoy (ALMA) to protest the mining
operations of Oro Negro Mining in the
mountain. ALMA members picketed daily at
the entrance of the mining site blocking the
ingress and egress of trucks and equipment
of Oro Negro, hampering its operations.
Masigasig had an altercation with Mapusok
arising from the complaint of the mining
engineer of Oro Negro that one of their trucks
was destroyed by ALMA members.
Mapusok is the leader of the Association of
Peace Keepers of Ahohoy (APKA), a civilian
volunteer organization serving as auxiliary
force of the local police to maintain peace
and order in the area. Subsequently,
Masigasig disappeared. Mayumi, the wife of
Masigasig, and the members of ALMA
searched for Masigasig, but all their efforts
proved futile. Mapagmatyag, a member of
ALMA, learned from Maingay, a member of
APKA, during their binge drinking that
Masigasig was abducted by other members
of APKA, on order of Mapusok. Mayumi and
ALMA sought the assistance of the local
police to search for Masigasig, but they
refused to extend their cooperation.
Immediately, Mayumi filed with the RTC, a
petition for the issuance of thewrit of amparo
against Mapusok and APKA. ALMA also filed
a petition for theissuance of the writ of
amparo with the Court of Appeals against
Mapusok andAPKA. Respondents Mapusok
and APKA, in their Return filed with the
RTC,raised among their defenses that they
are not agents of the State; hence, cannot
beimpleaded as respondents in an amparo
petition.
a. Is their defense tenable?
Respondents Mapusok and APKA, in their
Return filed with the Court ofAppeals, raised
as their defense that the petition should be
dismissed on the groundthat ALMA cannot
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file the petition because of the earlier petition
filed by Mayumiwith the RTC.
b. Are respondents correct in raising
their defense?
SUGGESTED ANSWER:
a. No, the defense of Mapusok and
APKA that they are not agents of the
State and hence cannot be
impleaded as respondents in an
amparo petition is not tenable. The
writ of amparo is available in cases
where the enforced or involuntary
disappearance of persons is with the
authorization, support or
acquiescence of the State. (See Sec.
3[g] of R.A. No. 9851 and Navia v.
Pardico, 19 June 2012, e.b.) Here,
Mapusok and APKA may be
considered as acting with the support
or at least the acquiescence of the
State since APKA serves as an
auxiliary force of the police and the
police refused to assist in the search
for Masigasig.
b. Yes, respondents are correct in raising
their defense. Under Section 2(c) of
the Rule on the Writ of Amparo, the
filing of a petition by an authorized
party on behalf of the aggrieved
party suspends the right of all others,
observing the order in Section 2 of the
Rule on the Writ of Amparo. Here, the
petition for writ of amparo had earlier
been filed by the spouse of the
aggrieved party Masigasig. Thus it
suspends the right of all others,
including ALMA, to file the petition.
What is the writ of amparo? How is it
distinguished from the writ of habeas corpus?
SUGGESTED ANSWER:
The petition for a writ of amparo is a remedy
available to any person whose right to life,
liberty and security is violated or threatened
with violation by an unlawful act or omission
of a public official or employee, or of a
private individual or entity. The writ shall
cover extralegal killings and enforced
disappearances or threats thereof.
The writ of amparo differs from a writ of
habeas corpus in that the latter writ is availed
of as a remedy against cases of unlawful
confinement or detention by which any
person is deprived of his liberty, or cases by
18
which rightful custody of any person is
withheld from another who is lawfully entitled
thereto (Sec 1, Rule 102, Rules of Court).
WRIT OF HABEAS DATA
What is the writ of habeas data?
SUGGESTED ANSWER:
The writ of habeas data is a remedy
available to any person whose right to
privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of
a public official or employee, or of a private
individual or entity engaged in the gathering,
collecting or storing of data or information
regarding the person, family, home and
correspondence of the aggrieved party.
WRIT OF KALIKASAN
The officers of ”Ang Kapaligiran ay Alagaan,
Inc.” engaged your services to file an action
against ABC Mining Corporation which is
engaged in mining operations in Sta. Cruz,
Marinduque. ABC used highly toxic
chemicals in extracting gold. ABC’s toxic
mine tailings were accidentally released
from its storage dams and were discharged
into the rivers of said town. The mine tailings
found their way to Calancan Bay and
allegedly to the waters of nearby Romblon
and Quezon. The damage to the crops and
loss of earnings were estimated at Pl Billion.
Damage to the environment is estimated at
Pl Billion. As lawyer for the organization, you
are requested to explain the advantages
derived from a petition for writ of kalikasan
before the Supreme Court over a complaint
for damages before the RTC of Marinduque
or vice-versa. What action will you
recommend? Explain.
SUGGESTED ANSWER:
I will recommend that the officers of “Ang
Kapaligiran ay Alagaan, Inc.” file a Writ of
Kalikasan since all the elements for a valid
petition for the writ is present in their case. A
writ of Kalikasan, under Rule 7 Sec. 1 of the
Rules of Procedure on Environmental Cases,
is a remedy available to a natural or juridical
person, entity authorized by law, people's
organization, non-governmental
organization, or any public interest group
accredited by or registered with any
government agency, on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violated, or threatened
with violation by an unlawful act or omission
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of a public official or employee, or private
individual or entity, involving environmental
damage of such magnitude as to prejudice
the life, health or property of inhabitants in
two or more cities or provinces.
Herein, since there are more than two
provinces who are suffering environmental
damages and economic losses caused by
the mining corporation, a petition for a writ of
kalikasan rather than a simple complaint for
damages would be the proper remedy.
PRECAUTIONARY PRINCIPLE
What do you understand about the
"precautionary principle" under the Rules of
Procedure for Environmental Cases?
SUGGESTED ANSWER:
Precautionary principles states that when
human activities may lead to threats of
serious and irreversible damage to the
environment that is scientifically plausible but
uncertain, actions shall be taken to avoid or
diminish that threat. In its essence, the
precautionary principle calls for the exercise
of caution in the face of risk and uncertainty
(Sec. 4 [f], Rule 1, Part 1, and Rule 20, A.M. No.
09-6-8-SC, Rules of Procedure for
Environment Cases).
CHANGE OF NAME
A was adopted by B and C when A was only
a toddler. Later on in life, A filed with the
Regional Trial Court (RTC) a petition for
change of name under Rule 103 of the Rules
of Court, as he wanted to reassume the
surname of his natural parents because the
surname of his adoptive parents sounded
offensive and was seriously affecting his
business and social life.
The adoptive parents gave their
consent to the petition for change of name.
May A file a petition for change of name? If
the RTC grants the petition for change of
name, what, if any, will be the effect on the
respective relations of A with his adoptive
parents and with his natural parents? Discuss.
SUGGESTED ANSWER:
Yes, A may file a petition for change of
name. Change of name on the ground that
it is offensive and seriously affects the
petitioner’s business and social life is a valid
ground especially where the adoptive
parents had given their consent. The grant of
the petition will not change A’s relations with
his adoptive and natural parents. The
Supreme Court has held that change of
19
name under Rule 103 affects only the name
and not the status of the petitioner. (Republic
v. CA, 21 May 1992).
CRIMINAL PROCEDURE
JURISDICTION; COMPLEX CRIMES
On his way to the PNP Academy in Silang,
Cavite on board a public transport bus as a
passenger, Police Inspector Masigasig of the
Valenzuela Police witnessed an on-going
armed robbery while the bus was traversing
Makati. His alertness and training enabled
him to foil the robbery and to subdue the
malefactor. He disarmed the felon and while
frisking him, discovered another handgun
tucked in his waist. He seized both handguns
and the malefactor was later charged with
the separate crimes of robbery and illegal
possession of firearm.
a. Where should Police Inspector
Masigasig bring the felon for criminal
processing? To Silang, Cavite where
he is bound; to Makati where the bus
actually was when the felonies took
place; or back to Valenzuela where
he is stationed? Which court has
jurisdiction over the criminal cases?
SUGGESTED ANSWER:
Police Inspector Masigasig should bring the
felon to the nearest police station or jail in
Makati City where the bus actually was when
the felonies took place. In cases of
warrantless arrest, the person arrested
without a warrant shall be forthwith delivered
to the nearest police station or jail and shall
be proceeded against in accordance with
section 7 of Rule 11 (Section 113, Rules of
Criminal Procedure). Consequently, the
criminal case for robbery and illegal
possession of firearms can be filed in
Regional Trial Court of Makati City or on any
of the places of departure or arrival of the
bus.
b. May the charges of robbery and
illegal possession of firearm be filed
directly by the investigating
prosecutor with the appropriate court
without a preliminary investigation?
SUGGESTED ANSWER:
Yes. Since the offender was arrested in
flagrante delicto without a warrant of arrest,
an inquest proceeding should be conducted
and thereafter a case may be filed in court
even without the requisite preliminary
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investigation. Under Section 6, Rule 112, Rules
of Criminal Procedure, when a person is
lawfully arrested without a warrant involving
an offense which requires a preliminary
investigation, the complaint or information
may be filed by a prosecutor without a need
of such investigation provided an inquest has
been conducted in accordance with
existing rules.
JURISDICTION; REINVESTIGATION; ARREST
Jose, Alberto and Romeo were charged with
murder. Upon filing the information, the RTC
judge issued warrants for their arrest.
Learning of the issuance of the warrants, the
three accused jointly filed a motion for
reinvestigation and for the recall of the
warrants of arrest. On the date set for hearing
of their motion, none of accused showed up
in court for fear of being arrested. The RTC
judge denied their motion because the RTC
did not acquire jurisdiction over the persons
of the movants. Did the RTC rule correctly?
SUGGESTED ANSWER:
The RTC was not entirely correct in stating
that it had no jurisdiction over the persons of
the accused. By filing motions and seeking
affirmative reliefs from the court, the
accused voluntarily submitted themselves to
the jurisdiction of the court. However, the RTC
correctly denied the motion for
reinvestigation. Before an accused can
move for reinvestigation and the recall of his
warrant of arrest, he must first surrender his
person to the court (Miranda, et al. vs. Tuliao,
G.R. No. 158763, 31 March 2006).
CIVIL ASPECT OF THE CRIME
Name two instances where the trial court can
hold the accused civilly liable even if he is
acquitted.
SUGGESTED ANSWER:
The Instances where the civil, liability is not
extinguished despite acquittal of the
accused where:
1. The acquittal is based on reasonable
doubt;
2. Where the court expressly declares
that the liability of the accused is not
criminal but only civil in nature; and
3. Where the civil liability is not derived
from or based on the criminal act of
which the accused is acquitted
(Remedios Nota Sapiera v. Court of
Appeals, September 14,1999).
20
WARRANTLESS ARREST AND SEARCH
As Cicero was walking down a dark alley
one midnight, he saw an "owner-type
jeepney" approaching him. Sensing that the
occupants of the vehicle were up to no good,
he darted into a corner and ran. The
occupants of the vehicle- elements from the
Western Police District - gave chase and
apprehended him.
The police apprehended Cicero,
frisked him and found a sachet of 0.09 gram
of shabu tucked in his waist and a Swiss knife
in his secret pocket, and detained him
thereafter. Is the arrest and body-search
legal?
SUGGESTED ANSWER:
The arrest and body-search was legal. Cicero
appears to be alone "walking down a dark
alley" and at midnight. There appears
probable cause for the policemen to check
him, especially when he darted into a corner
(presumably also dark) and run under such
circumstance. Although the arrest came
after the body-search where Cicero was
found with shabu and a Swiss knife, the body
search is legal under the "Terry search" rule or
the "stop and frisk" rule. And because the
mere possession, with animus, of dangerous
drug (the shabu) is a violation of the law
(Rep. Act 9165), the suspect is in a continuing
state of committing a crime while he is
illegally possessing the dangerous drug, thus
making the arrest tantamount to an arrest in
flagrante: so the arrest is legal and
correspondingly, the search and seizure of
the shabu and the concealed knife may be
regarded as incident to a lawful arrest.
ALTERNATIVE ANSWER:
No. The arrest and the body-search were not
legal. In this case, Cicero did not run
because the occupant’s of the vehicle
identified themselves as police officers. He
darted into the corner and ran upon the
belief that the Occupants of the vehicle
were up to no good. Cicero's act of running
does not show any reasonable ground to
believe that a crime has been committed or
is about to be committed for the police
officers to apprehend him and conduct
body search. Hence, the arrest was illegal as
it does not fall under any of the
circumstances for a valid warrantless arrest
provided in Sec. 5 of Rule 113 of the Rules of
Criminal Procedure.
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Under Section 5, Rule 113 a warrantless arrest
is allowed when an offense has just been
committed and the peace officer has
probable cause to believe, based on his
personal knowledge of facts or
circumstances, that the person to be arrested
has committed it. A policeman approaches
you for advice and asks you how he will
execute a warrantless arrest against a
murderer who escaped after killing a person.
The policeman arrived two (2) hours after the
killing and a certain Max was allegedly the
killer per information given by a witness. He
asks you to clarify the following:
a. How long after the commission of the
crime can he still execute the
warrantless arrest?
SUGGESTED ANSWER:
Rule 113 Sec. 5(b) states that ‘When an
offense has just been committed, and he has
probable cause to believe based on
personal knowledge of facts or
circumstances that the person to be arrested
has committed.’ In People v. del Rosario, the
Court held that the requirement that an
offense has just been committed means that
there must be a large measure of immediacy
between the time the offense was
committed and the time of the arrest. If there
was an appreciable lapse of time between
the arrest and the commission of the crime, a
warrant of arrest must be secured. Herein, for
as long as he has probable cause to believe
based on personal knowledge of facts or
circumstances, he may execute the
warrantless arrest within reasonable time
from when the crime was committed.
b. What does “personal knowledge of
the facts and circumstances that the
person to be arrested committed it”
mean?
SUGGESTED ANSWER:
In Pestilos vs. Generoso, the phrase covers
facts or, in the alternative, circumstances.
According to the Black's Law Dictionary,
"circumstances are attendant or
accompanying facts, events or conditions."
Circumstances may pertain to events or
actions within the actual perception,
personal evaluation or observation of the
police officer at the scene of the crime. Thus,
even though the police officer has not seen
someone actually fleeing, he could still make
a warrantless arrest if, based on his personal
evaluation of the circumstances at the
scene of the crime, he could determine the
existence of probable cause that the person
sought to be arrested has committed the
21
crime. However, the determination of
probable cause and the gathering of facts
or circumstances should be made
immediately after the commission of the
crime in order to comply with the element of
immediacy.
MOTION TO QUASH
The information against Roger Alindogan for
the crime of acts lasciviousness under Article
336 of the Revised Penal Code avers:
“That on or about 10:30 o’clock in the
evening of February 1, 2010 at Barangay
Matalaba, Imus, Cavite and within the
jurisdiction of this Honorable Court, the
above-named accused, with lewd and
unchaste design, through force and
intimidation, did then and there, wilfully,
unlawfully and feloniously commit sexual
abuse on his daughter, Rose Domingo, a
minor of 11 years old, either by raping her or
committing acts of lasciviousness on her,
against her will and consent to her damage
and prejudice.
ACTS CONTRARY TO LAW.”
The accused wants to have the case
dismissed because he believes that the
charge is confusing and the information is
defective. What ground or grounds can he
raise in moving for the quashal of the
information? Explain.
SUGGESTED ANSWER:
The motion to quash must be based on the
ground of “duplicity of the offense” or
“duplicitous information”. According to Rule
117, Sec. 3, an information may be quashed
when more than one offense is charged,
except when a single punishment for various
offenses is prescribed by law. Here, the
information charged two crimes which are
rape and acts of lasciviousness in view of the
phrase “either by raping her or committing
acts of lasciviousness”.
DOUBLE JEOPARDY
McJolly is a trouble-maker of sorts, always
getting into brushes with the law. In one
incident, he drove his Humvee recklessly,
hitting a pedicab which sent
its driver and passengers in different
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directions. The pedicab driver died, while
two (2) of the passengers suffered slight
physical injuries. Two (2) Informations were
then filed against McJolly. One, for Reckless
Imprudence Resulting in Homicide and
Damage to Property, and two, for Reckless
Imprudence Resulting in Slight Physical
Injuries. The latter case was scheduled for
arraignment earlier, on which
occasion McJolly immediately pleaded
guilty. He was meted out the penalty of
public censure. A month later, the case for
reckless imprudence resulting in homicide
was also set for arraignment. Instead of
pleading, McJolly interposed the defense of
double jeopardy. Resolve.
SUGGESTED ANSWER:
The defense of double jeopardy is meritorious
and the second information for reckless
imprudence resulting in homicide should be
quashed on the ground of double
jeopardy. The Supreme Court has held that
reckless imprudence is a single crime and
that its consequences on persons and
property are material only to determine the
penalty. Here there was only one act and
crime of reckless imprudence. The death,
the physical injuries, and the damage to the
tricycle are only consequences of the same
reckless act of McJolly. Hence there was
double jeopardy when a second information
arising from the same reckless act was
brought against the accused. (Ivler v.
Modesto-San Pedro, 17 November 2010).
PLEA OF GUILTY TO A LESSER OFFENSE
D was charged with theft of an article worth
P15,000.00. Upon being arraigned, he
pleaded not guilty to the offense charged.
Thereafter, before trial commenced, he
asked the court to allow him to change his
plea of not guilty to a plea of guilty but only
to estafa involving P5,000.00. Can the court
allow D to change his plea?
SUGGESTED ANSWER:
No, because a plea of guilty to a lesser
offense may be allowed if the lesser offense
is necessarily included in the offense
charged. (Rule 116, sec. 2). Estafa involving
P5,000.00 is not necessarily included in theft
of an article worth P15,000.00.
RES JUDICATA IN PRISON GREY
What is “res judicata in prison grey”?
22
SUGGESTED ANSWER:
“Res judicata in prison grey” is the criminal
concept of double jeopardy, as “res
judicata” is the doctrine of civil law (Trinidad
v. Office of the Ombudsman, GR No. 166038,
December 4, 2007).
Described as “res judicata in prison grey,” the
right against double jeopardy prohibits the
prosecution of a person for a crime of which
he has been previously acquitted or
convicted. The .purpose is to set the effects
of the first prosecution forever at rest, assuring
the accused that he shall not thereafter be
subjected to the danger and anxiety of a
second charge against him for the same
offense (Joel B. Caes v. Intermediate
Appellate Court, November 6, 1989).
EVIDENCE
ADMISSIBILITY OF EVIDENCE
Dominique was accused of committing a
violation of the Human Security Act. He was
detained incommunicado, deprived of
sleep, and subjected to water torture. He
later allegedly confessed his guilt via an
affidavit.
After trial, he was acquitted on the
ground that his confession was obtained
through torture, hence, inadmissible as
evidence.
In a subsequent criminal case for
torture against those who deprived him of
sleep and subjected him to water torture,
Dominique was asked to testify and to,
among other things, identify his above-said
affidavit of confession. As he was about to
identify the affidavit, the defense counsel
objected on the ground that the affidavit is a
fruit of a poisonous tree. Can the objection be
sustained? Explain.
SUGGESTED ANSWER:
No, the objection may not be sustained on
the ground stated, because the affiant was
only to identify the affidavit which is not yet
being offered in evidence. The doctrine of
the fruit of the poisonous tree can only be
invoked by Domingo as his defense in the
crime of Violation of Human Security Act filed
against him but not by the accused in a
torture case filed by him.
In the Instant case, the presentation of the
affidavit cannot be objected to by the
defense counsel on the ground that it is a fruit
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of the poisonous tree because the same is
used In Domingo's favor.
HEARSAY RULE
On March 12; 2008, Mabini was charged with
Murder for fatally stabbing Emilio. To prove
the qualifying circumstance of evident
premeditation, the prosecution introduced
on December 11, 2009 a text message, which
Mabini's estranged wife Gregoria had sent to
Emilio on the eve of his death, reading:
"Honey, pa2tayin u ni Mabini. Mtgaln nyang
plano i2. Mg ingat u bka ma tsugi k." Can he
'Object to the presentation of the text
message on the ground that it is hearsay?
SUGGESTED ANSWER:
No, Gregoria's text message In Emilio's
cellphone is not covered by the hearsay rule
because it is regarded in the rules of
evidence as independently relevant
statement: the text message is not to prove
the truth of the fact alleged therein but only
as to the circumstance of whether or not
premeditation exists.
PRIVILEGE COMMUNICATION
For over a year, Nenita had been estranged
from her husband Walter because of the
latter’s suspicion that she was having an
affair with Vladimir, a barangay kagawad
who lived in nearby Mandaluyong. Nenita
lived in the meantime with her sister in
Makati. One day, the house of Nenita’s sister
inexplicably burned almost to the ground.
Nenita and her sister were caught inside the
house but Nenita survived as she fled in time,
while her sister tried to save belongings and
was caught inside when the house
collapsed.
As she was running away from the
burning house, Nenita was surprised to see
her husband also running away from the
scene. Dr. Carlos, Walter’s psychiatrist who
lived near the burned house and whom
Walter medically consulted after the fire, also
saw Walter in the vicinity some minutes
before the fire. Coincidentally, Fr. Platino, the
parish priest who regularly hears Walter’s
confession and who heard it after the fire,
also encountered him not too far away from
the burned house. Walter was charged with
arson and at his trial, the prosecution moved
to introduce the testimonies of Nenita, the
doctor and the priest-confessor, who all saw
Walter at the vicinity of the fire at about the
time of the fire. (A) May the testimony of
23
Nenita be allowed over the objection of
Walter?
SUGGESTED ANSWER:
No. Nenita may not be allowed to testify
against Walter. Under the Marital
Disqualification Rule, during their marriage,
neither the husband nor the wife may testify
for or against the other without the consent
of the affected spouse, except in a civil case
by one against the other, or in a criminal case
for a crime committed by one against the
other or the latter’s direct descendants or
ascendants (Section 22, Rule 130, Rules on
Evidence). The foregoing exceptions cannot
apply since it only extends to a criminal case
of one spouse against the other or the latter’s
direct ascendants or descendants. Clearly,
Nenita is not the offended party and her sister
is not her direct ascendant or descendant for
her to fall within the exception.
ALTERNATIVE ANSWER:
Yes. Nenita may be allowed to testify against
Walter. It is well settled that the marital
disqualification rule does not apply when the
marital and domestic relations between
spouses are strained. In Alvarez vs. Ramirez,
G.R. No. 143439, October 14, 2005, the
Supreme Court citing People vs. Castaneda,
271 SCRA 504, held that the act of private
respondent in setting fire the house of his
sister-in-law Susan Ramirez, knowing fully well
that his wife was there, and in fact with the
alleged intent of injuring the latter, is an act
totally alien to the harmony and confidences
of marital relation which the disqualification
primarily seeks to protect.
The criminal act complained of had the
effect of directly and vitally impairing the
conjugal relation. It underscored the fact
that the marital and domestic relations
between her and the accused-husband
have become so strained that there is no
more harmony, peace or tranquillity to be
preserved. Hence, the identity is non-existent.
In such a situation, the security and
confidences of private life which the law
aims to protect are nothing but ideals which
through their absence, merely leave a void
in the unhappy home. Thus, there is no
reason to apply the Marital Disqualification
Rule.
CHILD WITNESS RULE
When may the trial court order that the
testimony of a child be taken by live-link
television? Explain.
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SUGGESTED ANSWER:
The testimony of a child may be taken by
live- link television if there is a substantial
likelihood that the child would suffer trauma
from testifying in the presence of the
accused, his counsel or the prosecutor as the
case maybe. The trauma must be of a kind
which would impair the completeness or
truthfulness of the testimony of the child.
(Sec. Sec. 25 [f], Rule on Examination of a
Child Witness)
JUDICIAL AFFIDAVIT RULE
What are the contents of a judicial affidavit?
SUGGESTED ANSWER:
A judicial affidavit shall contain:
1. The name, age, residence or business
address, and occupation of the
Witness;
2. The name and address of the Lawyer
who conducts or supervises the
examination of the witness and the
place where the examination is being
held;
3. Questions asked of the witness and
his corresponding answers,
consecutively numbered, that:
a. Show the circumstances under
which the witness acquired the
facts upon which he testifies;
b. Elicit from him those facts which
are relevant to the issues that the
case presents; and
c. Identify the attached
documentary and object
evidence and establish their
authenticity in accordance with
the Rules of Court;
4. A statement that the witness is
answering the questions asked of him,
fully conscious that he does so under
oath, and that he may face criminal
liability for false testimony or perjury;
5. The signature of the witness over his
printed name; and
6. A jurat with the signature of the
notary public who administers the
oath or an officer who is authorized
by law to administer the same. A.M.
No. 12-8-8-SC Sept. 4, 2012
The judicial affidavit shall contain a sworn
attestation at the end executed by the
lawyer who conducted or supervised the
examination of the witness, to the effect that:
1. He faithfully recorded or caused to
be recorded the questions he asked
24
and the corresponding answers that
the witness gave; and
2. Neither he nor any other person then
present or assisting him coached the
witness regarding the latter’s answers.
(Section 4)
MOST IMPORTANT WITNESS RULE
What is the “most important witness” rule
pursuant to the 2004 Guidelines of Pretrial
and Use of Deposition-Discovery Measures?
Explain.
SUGGESTED ANSWER:
Sec. 6(j) on the Most Important Witness rule
deals with limiting the number of witnesses,
determining the facts to be proved by each
witness and fixing the approximate number
of hours per witness.
ONE DAY EXAMINATION OF WITNESS RULE
What is the “one day examination of witness”
rule pursuant to the said 2004 Guidelines?
Explain.
SUGGESTED ANSWER:
A.M. No. 03-1-09-SC – RE: PROPOSED RULE ON
GUIDELINES TO BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN THE
CONDUCT OF PRE-TRIAL AND USE OF
DEPOSITION-DISCOVERY MEASURES
Par. 5(i) . . . The One-Day Examination
of Witness Rule, that is, a witness has to be
fully examined in one (1) day only, shall be
strictly adhered to subject to the courts’
discretion during trial on whether or not to
extend the direct and/or cross-examination
for justifiable reasons. On the last hearing day
allotted for each party, he is required to
make his formal offer of evidence after the
presentation of his last witness and the
opposing party is required to immediately
interpose his objection thereto. Thereafter,
the Judge shall make the ruling on the offer
of evidence in open court. However, the
judge has the discretion to allow the offer of
evidence in writing in conformity with Section
35, Rule 132.
BEST EVIDENCE RULE
When A loaned a sum of money to B, A typed
a single copy of the promissory note, which
they both signed. A made two photo
(xeroxed) copies of the promissory note,
giving one copy to B and retaining the other
copy. A entrusted the typewritten copy to his
San Beda College Alabang School of Law
2017 Centralized Bar Operations
counsel for safekeeping. The copy with A’s
counsel was destroyed when the law office
was burned.
a. In an action to collect on the
promissory note, which is deemed to
be the “original” copy for the purpose
of the “Best Evidence Rule”?
b. Can the photocopies in the hands of
the parties be considered “duplicate
original copies”?
c. As counsel for A, how will you prove
the loan given to A and B?
SUGGESTED ANSWER:
a. The copy that was signed and lost is
the only original” copy for purposes of
the Best Evidence Rule. (Sec. 4[b] of
Rule 130).
b. No. They are not duplicate original
copies because there are
photocopies which were not signed
(Mahilum v. Court of Appeals, 17
SCRA 462). They constitute secondary
evidence. (Sec. 5 of Rule 130).
c. The loan given by A to B may be
proved by secondary evidence
through the xeroxed copies of the
promissory note. The rules provide
that when the original document is
lost or destroyed, or cannot be
produced in court, the offeror, upon
proof of its execution or existence
and the cause of its unavailability
without bad faith on his part, may
prove its contents by a copy, or by a
recital of its contents in some
authentic document, or by the
testimony of witnesses in the order
stated. (Sec. 5 of Rule 130).
EXAMINATION OF WITNESSES
a. Distinguish extrajudicial admission
from extrajudicial confession in
criminal cases.
b. In the examination of witnesses, what
is meant by “laying the predicate”?
c. X states on direct examination that he
once knew the facts being asked but
he cannot recall them now. When
handed a written record of the facts
he testifies that the facts are correctly
stated, but that he has never seen the
writing before. Is the writing
admissible as past recollection
recorded? Explain.
SUGGESTED ANSWER:
a. An extrajudicial admission is a
statement of fact which does not
25
directly involve an acknowledgment
of guilt or criminal intent, while an
extrajudicial confession is a
declaration of an accused that he
has committed or participated in the
commission of a crime.
b. “Laying the predicate” is the
procedure of impeaching a witness
by evidence of prior inconsistent
statements. Before such a witness
can be impeached, the prior
statements must be related to him,
with the circumstances of the times
and places and the persons present,
and he must be asked whether he
made such statements, and if so,
allowed to explain them.
c. No, because for the written record to
be admissible as past recollection
recorded, it must have been written
or recorded by X or under his
direction at the time when the fact
occurred, or immediately thereafter,
or at any other time when the fact
was fresh in his memory and he knew
that the same was correctly written or
recorded. (Sec. 16 of Rule 132) But in
this case X has never seen the writing
before.
WEIGHT AND SUFFICIENCY OF EVIDENCE
Distinguish preponderance of evidence from
substantial evidence.
SUGGESTED ANSWER:
Preponderance of evidence means that the
evidence as a whole adduced by one side is
superior to that of the other. This is applicable
in civil cases. (Sec. 1 of Rule 133; Municipality
of Moncada v. Cajuigan, 21 Phil. 184 [1912]).
Substantial evidence is that amount
of relevant evidence which a reasonable
mind might accept as adequate to justify a
conclusion. This is applicable in cases filed
before administrative or quasi-judicial
bodies. (Sec. 5 of Rule 133)
ALTERNATIVE DISPUTE RESOLUTION
a. What are the rules on the recognition
and enforcement of foreign
judgments in our courts?
San Beda College Alabang School of Law
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 b. Can a foreign arbitral award be
enforced in the Philippines under
those rules? Explain briefly.
c. How about a global injunction issued
by a foreign court to prevent
dissipation of funds against a
defendant therein who has assets in
the Philippines? Explain briefly.
SUGGESTED ANSWER:
a. Judgments of foreign courts are
given recognition in our courts thus:
In case of judgment upon a specific
thing, the judgment is conclusive
upon the title to the thing, unless
otherwise repelled by evidence of
lack of jurisdiction, want of due
notice to the party, collusion, fraud,
or clear mistake of law or fact (Rule
39, Sec. 48 [a], Rules of Court); and
In case of judgment against a person,
the judgment is presumptive
evidence of a right as between the
parties and their successors in interest
by subsequent title, unless otherwise
repelled by evidence on grounds
abovestated (Rule 39, Sec. 48 [b],
Rules of Court).
However, judgments of foreign courts
may only be enforced in the
Philippines through an action validly
heard in a Regional Trial Court. Thus, it
is actually the judgment of the
Philippine court enforcing the foreign
judgment that shall be executed.
b. No, a foreign arbitral award cannot
be enforced in the Philippines under
the rules on the recognition and
enforcement of foreign judgments
above-stated. A foreign arbitral
award is not a foreign judgment, and
pursuant to the Alternative Dispute
Resolution Act of 2004 (R.A. No. 9285),
in relation to 1958 New York
Convention on the Recognition and
Enforcement of Foreign Arbitral
Awards, the recognition and
enforcement of the foreign arbitral
awards shall be in accordance with
the rules of procedure to be
promulgated by the Supreme Court.
At present, the Supreme Court is yet
to promulgate rules of procedure on
the subject matter.
26
c. Yes, a global injunction issued by a
foreign court to prevent dissipation of
funds against a defendant who has
assets in the Philippines may be
enforced in our jurisdiction, subject to
our procedural laws.
As a general rule, no sovereign is
bound to give effect within its
dominion to a judgment or order of a
tribunal of another country. However,
under the rules of comity, utility and
convenience, nations have
established a usage among civilized
states by which final judgments of
foreign courts of competent
jurisdiction are reciprocally respected
and rendered efficacious under
certain conditions that may vary in
different countries (St. Aviation
Services Co., Pte.,Ltd. v. Grand
International Airways, Inc., 505 SCRA
30 [2006]; Asiavest Merchant Bankers
(M) Berhad v. Court of Appeals, 361
SCRA 489 [2001]).
What are certain subject matters that
Philippine law does not allow to be the
subject of arbitration within the framework of
RA 876 and RA 9285?
SUGGESTED ANSWER:
1. Labor disputes covered by
Presidential Decree No. 442,
otherwise known as the Labor Code
of the Philippines, as amended and its
Implementing Rules and Regulations
2. The civil status of persons
3. The validity of marriage
4. Any ground for legal separation
5. The jurisdiction of courts
6. Future legitime
7. Criminal liability
8. Those which by law cannot be
compromised
What is the Principle of Separability of
Arbitration Clause?
SUGGESTED ANSWER:
The Special ADR Rules recognizes the
principle of separability of the arbitration
clause, which means that the arbitration
clause shall be treated as an agreement
independent of the other terms of contract
of which it forms part. A decision that the
container contract is null and void shall not
entail ipso jure the invalidity of the arbitration
clause.
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27 San Beda College Alabang School of Law
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