SPEC PRO

Test I.

1. b ./ 11. b ./

2. c X 12. D ./

3. c ./ 13. C ./

4. a. X 14. C ./

5. b X 15. A ./

6. a. X 16. B X

7. a. X 17. A X

8. c ./ 18. C ./

9. a X 19. B X

10. c ./ 20. d ./

Test II.

1. A. Under the law, the two year period for filing claims will only apply to the heirs that participated
in the execution of extra-judicial settlement and it will also apply to the creditors, the law also
provides that the heir who do not have knowledge and participation in execution of the deed is
not bound to observe the two year period, he or she can still claim for his or her share. (10 points)
1. B. The Remedy of the missing sibling is to file a case for the annulment of deed of extra-judicial
partition; reconveyance of his or her share and for judicial partition. ( 10 points)

2. As the judge I will admit the will, the testimony of the said witness is not meritorious , it is not
required for the other two witnesses to actually see the act of affixing the signature of their co-
witness. (10 points)

3.

Cali’s Answer: The probate court can issue the notice to the creditors after it issues the letters of
administration or executor is appointed; the notice shall contain the subject parcels of land to be
liquidated; there must be a publication in a newspaper of general circulation. (8 points)

Riguera: Question: When a petition for letters of administration is filed in the probate court, what shall
the court do?

Answer : The court shall fix a time and place for hearing the petition, and shall cause notice thereof to
be given to the known heirs and creditors of the decedent, and to any other persons believed to have an
interest in the estate, in the manner provided for in section 3 (publication) and 4 ( mail or personal
service) Rule 76. (S3 R79)

4. Wrong Ang Answer ni Cali

This is from Riguera:

Question: Husband and Wife were solidary indebted for a sum of money to plaintiff. The husband died.
The plaintiff sued the wife to collect on the loan. The trial court dismissed the complaint on the ground
that under S6 R86, “where the obligation of a decedent is solidary with another debtor, the claim shall
be filed against the decedent as he were the only debtor. “ Was the trial court’s dismissal of the suit
proper?

Answer: No. There is no compulsion for a creditor to file his money claim with the probate court
because he can opt to go against the surviving solidary debtor in an ordinary civil action. Article 1216 of
the Civil Code gives the creditor the right to “proceed against anyone of the solidary debtors or some or
all of them simultaneously. “ Section 6, Rule 86 cannot be made to prevail over Article 1216 of the New
Civil Code, the former being merely procedural, while the latter is substantive.

5.

Cali’s Answer (10 points):

The grounds for the grant of habeas corpus are as follows:

1. That a person is illegally deprived of his liberty or he or she is unlawfully detained;

2. All other cases for the rightful custody of a person withheld legally by another.

This is from Albano:

State the basic grounds for granting a writ of Habeas Corpus.

They are:

1. Deprivation of any fundamental and constitutional right;

2. Lack of jurisdiction of the court to impose the sentence;
3. Excessive penalty;
4. Providing of a lower penalty for an offense where the accused was penalized with a higher
penalty under an old law.

6. Q: Distinguish a special proceeding from a special civil action

Answer:

A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular
fact.

A civil action is a remedy by which one party sues another for the protection or enforcement of a
right or the prevention or redress of a wrong.

AS TO NATURE. A special proceeding is non adversarial in nature. While a Civil action is adversarial
in nature.

AS TO BINDING EFFECT. A special proceeding is an in rem proceeding and hence binding upon the
whole world, while a civil action may or may not be an in rem proceeding.

AS TO CAUSE OF ACTION. The concept of cause of action finds no application in a special

proceeding, while a civil action, with the exception of some special civil actions, must have a cause
of action.

A special civil action is a civil action which aside from being governed by the rules for ordinary civil
actions is subject to specific rules provided for it.

Q: Distinguised an ordinary civil action from a special civil action.

A. An ordinary civil action is governed by the rules for ordinary civil actions while a special civil
action is governed by the rules for ordinary civil actions and by specific rules.

Every Ordinary Civil Action, must be based on a cause of action, while not every special action must
be based on a cause of action, as for instance, declatory relief.

Crim Pro
1.No, the dismissal after a preliminary investigation will not constitute double jeopardy because
under the law double jeopardy only applies when the person or the accused is within the jurisdiction
of the court that the accused is already arraigned; the case is already decided whether acquittal or
dismissal; and the accused is sued in the same crime and the title.

Hence, the office of the City Prosecutor is not a court and the proceeding in the conducting the
preliminary investigation is administrative and the evidence is substantial evidence and therefore
double jeopardy will not apply. (8)

( MJ- 10) No, the dismissal after the PI does not constitute double jeopardy. The following are the
requisites to invoke double jeopardy:

a. there must be valid indictment;

b.it was before a competent court;

c.there was a valid arraignment;

d. a valid plea was entered;

e. the case is dismissed or terminated without the express consent of the accused.

In the instant case, he case was dismissed after a preliminary investigation. The complaint was not
yet filed before a competent court. Hence, double jeopardy does not attached.

2. No, the action of the Judge is not proper. Under the law, a warrant of arrest shall be issued by
the judge, that he must personally examine it and the judge must determine if there is probable
cause to issue a warrant of arrest. In this case, the probable cause determined by the prosecutor is
for the filing of the information, the probable cause to issue a warrant of arrest is solely for the
judge to decide. (8points, Answer WHY?)

(MJ- 10) The action of the judge is proper. Under the law, warrant of arrest cannot be issued except
upon probable cause to be determined personally by the judge by the evidence presented with the
sworn written statement by the witnesses who have personal knowledge positive identification of
the person to be arrested. Which is in the form of searching questions.

The probable cause interposed by the prosecutor is only for the determination thereof for the
purposes of filing the information. On the other hand, the determination of probable cause by the
judge is for the purpose of issuing the warrant of arrest.

3. Wrong Ang answer ni Cali

 (MJ-5)

No, the denial is not proper. Under the law, when the accused failed to appear during trial or jump
bail he shall loss all the remedies available under the Rules, the court shall issue for a warrant of
arrest of the accused.

However, the accused shall be given 15 days from notice to file a motion for reconsideration and
give his reasons why he failed to appear during the trial.

From albano:

Question:When may the bail be forfeited?

Answer: When the presence of the accused is specifically required by the court, or these Rules, his
bondsmen shall be notified to produce him before the court on a given date. If the accused fails to
appear in person as required, the bond shall be declared forfeited and the bondsmen are given
thirty (30) days within which to produce their principal and to show cause why judgment should not
be rendered against for the amount of their bond.

Question: What shall the bondsman do within 30 days as ordered if the accused fails to appear at
the trial?

Answer: The bondsman:

a. Must produce the body of their principal or give the reason for his non-production;
b. Must explain satisfactorily why the accused did not appear before the court when first required
to do so.

Failing in these two requisites, a judgment shall be rendered against the bondman, jointly and severally,
for the amount of the bond, and the court shall not reduce or otherwise mitigate the liability of the
bondsmen, except when the accused has been surrendered or acquitted. Sec.21, Rule 114)

FROM RIGUERA:

Question: Is the judgment of forfeiture appealable?

Answer: Yes since it is a final order with respect to the bondsmen. Appeal must be perfected within 15
days from notice by the bondsmen of the judgment of forfeiture pursuant to Section 6 Rule 122

4. Cali’s Answer (7pts)

As the lawyer of Mr. A, I will file for the dismissal of the case , or motion to quash, on the ground
that the constitutional right of the accused is violated, that he is not afforded due process , that the
accused has the right to be informed of the crime charged against him and its nature so that he can
prepare his defences. (7 points)

(MJ-7pts) The significance of the finding of the lawyer that the accused was not arraigned is that it is
a ground for the accused to file a motion for new trial. The lawyer must file a motion for new trial
on the ground that there were irregularities which affects the substantial right of the accused during
the trial.
5. As judge I will grant the motion to quash even if it is raised after arraignment because under the
law if the ground is the jurisdiction of the court it can be raised anytime during the pendency of the
trial. (Cali-10 points)

MJ-10 pts

As the judge, I will grant the motion to quash. Under the law, a motion to quash assailing the
jurisdiction of the court can be filed any time before judgement of conviction becomes final.

In the instant case, the motion to quash was filed after arraignment but assailing the very
jurisdiction of the court. Hence, I will grant the motion to quash.

6. As the judge I will deny the motion. In the instant case there is no double jeopardy because the
accused has not been arraigned yet and the case is not decided and no final judgment or decision
has been rendered. The motion to quash did not bar the filing of a new information correcting the
defect in the first information. ( Cali-10 points)

MJ-10pts

As a judge I will deny the motion to quash. Under the law, when a motion to quash is filed on the
ground that the information did not charge an offense, the court shall give an opportunity to amend
the information. If sustained, the court may grant that a new information may be filed for the same
offense.

In this case, the accused cannot invoke double jeopardy. It can be invoked only when there was
valid judgment or valid indictment.

7. WRONG ANSWER

Cali-0--- The appeal by the prosecution is not proper because double jeopardy will sit in because the
case was already decided and it rendered judgement of acquittal.

Probable Answer: The appeal of the prosecution is proper.

Q:Who may appeal from a final judgment or order?

A:Any part may appeal from a final judgment or order, except if the accused would be placed
thereby in double jeopardy.

Albano –

Q:May the prosecution appeal?

A:No, if the accused had already been exposed a double jeopardy.

Q:Is the rule that the prosecution cannot appeal from a decision dismissing a criminal case absolute?

A:No. There are exceptions like:

(1) if the dismissal is made upon motion or with the express consent of the accused;

(2) if the dismissal is not an acquittal or based upon consideration of the evidence on the merits;

(3) if the question is purely legal, so that should the dismissal be found incorrect, the case shall be
remanded for further proceedings to determine the guilt or innocence of the accused.
Q:What is the extent of the right of the offended party to appeal from a judgment of acquittal?

A:It is limited to the civil liability. This is so because he is personally injured. He can even file a
petition for certiorari under his name, not under the name of the People of the Republic of the
Philippines.

Q:Is the rule that the prosecution can appeal the civil aspect absolute? Why?

A:No, because if the accused was completely exonerated, there is nothing to appeal. An example
when there is a pronouncement that there is no basis upon which the civil liability may exist.

The requirements of double jeopardy are:

a. Valid indictment
b. Competent Court
c. Valid Arraignment
d. Valid Plea entered
e. Case is dismissed or terminated without the express consent of the accused

8. No, the denial is not proper and under the law provisional remedy of preliminary attachment is
allowed in criminal cases. The motion for attachment is proper because one of the ground is for
recovery of sum of money and the embezzlement by a public officer acting in fiduciary capacity by
reason of his employment. (10 points)

Albano- When and on what grounds may attachment be issued in criminal cases? (Rule 127, Section
2)

Answer: At the commencement of a criminal action or at any time thereafter, when the civil action
for the recovery of civil liability arising from the offense charged is not expressly waived or right to
institute such civil action separately is not reserved, the offended party may have the property of
the accused attached as security for the satisfaction of any judgment that may be recovered from
the accused, in the following cases:

(a) When the accused is about is about to abscond from the Philippines;

(b) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a public officer, or any officer of a
corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or for a willfull violation of duty;

(c) when the accused has concealed, removed, or disposed of his property, or is about to do; and

(d) When the accused resides outside the Philippines.

9. Yes, anyone of the accused can be discharged as a state witness, the prosecutor must file a
motion to discharge one of the accused to be utilized as a state witness, provided that the accused is
the least guilty; that he must testify in favor of the prosecution or the state and that he is not
convicted of a crime involving moral turpitude and there is no other direct testimony to prove the
crime, the reason is for public interest. ( 10 points) Read------ Albano

10. As judge, I will order the Assistant City Prosecutor to amend the information to secure the
signature of the Chief Prosecutor because the defect is only formal and does not change or alter the
facts substantially and therefore such defects can be cured by amendments.
 REMOVAL –CIVIL PROCEDURE
1. Cali- Zero

Yes, I will grant the notice of appeal because the filing of the motion for reconsideration tells the
running of the prescriptive period and after the court renders decision upon the motion the adverse
party may file an appeal. In this case, the filing of the notice of appeal is timely it is considered as
filed within the reglementary period and therefore it is deemed proper.

Answer: No, I will not grant the notice of appeal.

Riguera (p.716)

Where, when, and how is an appeal taken from a judgement or final order of the MTC?

Where to appeal:

An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional
Trial Court exercising jurisdiction over the area to which the former pertains.

When to appeal?

An appeal may be taken within 15 days after notice to the appellant of judgement or final order
appealed from. Where a record on appeal is required, the appeal is taken within 30 days after notice
of judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. (S2
and 3 Rule40)

Where a motion for reconsideration or new trial is filed and then denied, the movant has a fresh
period of 15 days to file the notice of appeal, counted from the receipt of the order denying the
motion for reconsideration or new trial.

How to appeal:

The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final
order appealed from. Where a record on appeal is required, the appellant shall file a notice and a
record and a record on appeal within 30 days after notice of judgment or final order.

2. Cali- Zero

As a lawyer of Pedro, I will ask for the copy of the decision of the case so that we can intelligently
answer or file the appeal. The remedy is to file mandamus because it is the ministerial duty of
judgment to render judgment.

Q: The office of the Ombudsman has failed to resolve a case for more than 6 years. May the
respondent go to the court by way of mandamus to compel the rendition of a decision? Explain.

A: yes, considering that it has transgressed on the constitutional right of the respondent to due
process and to a speedy disposition of the case against him, as well as its constitutional duty to act
promptly on complaints filed before it. The delay is a case of plain injustice. But, said office can only
be directed by mandamus to act, but not to act one way or the other.
 Q:What is Mandamus?

A: it is a SCA wherein the petitioner prays that judgment be rendered commanding a tribunal,
corporation , board, officer or person to perform an act which the law specifically enjoins as a duty
resulting from an office, trust or station, the performance of which the person has been unlawfully
neglecting.

It is also available against a person who unlawfully excludes another from the use and enjoyment of
a right or office to which such other person is entitled.

It is only available when there is no other plain, speedy and adequate remedy in the ordinary course
of law.

Speedy Trial Act of 1998, Section 13. 

Remedy Where Accused is Not Brought to Trial Within the Time Limit. - If an accused is not
brought to trial within the time limit required by Section 7 of this Act as extended by Section 9, the
information shall be dismissed on motion of the accused. The accused shall have the burden of
proof of supporting such motion but the prosecution shall have the burden of going forward with the
evidence in connection with the exclusion of time under Section 10 of this Act.

In determining whether to dismiss the case with or without prejudice, the court shall consider, among
other factors, the seriousness of the offense, the facts and circumstances of the case which led to
the dismissal, and the impact of a reprosecution on the implementation of this Act and on the
administration of justice. Failure of the accused to move for dismissal prior to trial or entry of a plea
of guilty shall constitute a waiver of the right to dismissal under this section.

3. Cali- 7 points

As lawyer of the losing party, the best remedy is to file an appeal with the Court of Appeals and the
mode of appeal is Rule 45 under the Rules of Court. The filing of appeal shall be within the
reglementary period, otherwise if not filed timely the decision will become final and executory.
(what is the period?)

4. Cali- 5 points

Under the law, decisions from the Civil Service Commission can be appealed with the Court of
Appeals and the period to appeal is within 30 days from receipt of the decision.

From the rules of Court:

Rule 43,Section 4- The appeal shall be taken within fifteen (15) days from the notice of the award,
judgment, final order or resolution, or from the date of its last publication if required by law for its
effectivity, or of the denial of the petitioner’s motion for new reconsideration duly filed in
accordance with the governing law of the court or agency a quo. Only one motion for
reconsideration shall be allowed. Upon the docket fee before the expiration of the reglementary
period, the CA may grant an additional period of 15 days only within which to file the petition for
review. No further extension shall be granted except for the most compelling reason and in no case
to exceed 15 days.

5. Cali – 5 points

Yes, Pedro can file a complaint against Juan, the remedy of Pedro is to file an injunction against Juan
to prohibit him to construct a building in the land owned by Pedro.
X? (continuation pero nay question mark) The land owner may also file a case for ejectment, forcible
entry with a prayer for preliminary injunction to stop Juan for constructing.

6. Cali – 10 points

Yes, my answer would be the same with some amendment, Pedro may file an injunction with prayer
for Temporary Restraining Order so that Juan will be ordered to stop the construction immediately
so that the rights of the land owner will not be prejudiced and no further damage will incur.

7. Cali- 5 points

Mandamus is an order of the court directing a person, corporation or a public officer to carry their
ministerial duties as mandated by the law, while a preliminary mandatory injunction is a provisional
remedy granted by the court ordering a person to do an act or to carry out its duties.

8. Cali- 10 points

Yes, a judge can be compelled to decide a case because it is their ministerial duty to render
judgment on the cases submitted to them for decision and the law also mandates a speedy trial. In
this case, the case is pending for over a year and therefore the rights of the litigants is already
prejudiced.

9. Cali- 7 points

I will file an action for Injunction with a prayer for Temporary Restraining Order to stop the lower
court from further proceedings of the case for the reason that Municipal trial Court has no
jurisdiction to try and hear a case for declaration of nullity of marriage and that the Regional Trial
Court has the proper jurisdiction over the case. An action for Certiorari is also proper because there
is a question of jurisdiction and under BP Blg. 129 The RTC has the jurisdiction over cases for
declaration of nullity of marriage.

10. Riguera (p. 888)

Q: Distinguish certiorari from prohibition.

The purpose of certiorari is to annul proceedings had without jurisdiction or in excess of jurisdiction
or with grave abuse of discretion; hence certiorari is a corrective remedy and operates on acts
already consummated. On the other hand, prohibition is a preventive remedy whose function is to
restrain the doing of some act about to be done. It is not intended to provide a remedy for acts
already accomplished.

Certiorari is directed only against judicial or quasi-judicial acts while prohibition may be directed
judicial, quasi-judicial, or ministerial acts.

Q: Distinguish Injunction from prohibition

A: Injunction is generally directed against a person not exercising judicial, quasi-judicial or ministerial
functions, while prohibition is directed against a tribunal, corporation, board, officer or person
exercising judicial, quasi-judicial or ministerial functions.

Injunction may be the main action itself, or just a provisional remedy in the main action, whereas
prohibition is always a main action.
 Q: Distinguish prohibition from mandamus

A: The object of mandamus is to compel a tribunal, corporation, board, officer or person to comply
with a ministerial duty while prohibition has for its object that of preventing the tribunal,
corporation, board, officer or person from executing an act affirmative remedy for it commands that
something be done; prohibition is purely negative for it commands that something be left undone.

Q: May a Judge who retired, render and sign a judgment? Why?

A: No more. For judgment to be valid, it must be duly signed and promulgated during the incumbency of
the judge who signed it. A decision penned after his retirement cannot be validly promulgated. It is void.
The rule also applies to collegiate courts.

When is there question of law?

There is question of law when the doubt or difference is on what is the law on a certain state of facts.

Brought and raised before the SC

When is there a question of facts?

There is a question of fact when the doubt or differences is on the truth or falsehood of alleged facts.

Brought and raised before the CA