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"Siliman University College of L aw Batch 2005". This website version is dedicated to them. Tariff and Customs Code: Violation of Customs Laws (2004) The Collector of Customs ordered the seizure and forfeiture of new electronic ap pliances shipped by TON Corp. from Hongkong for violation of customs laws becaus e they were falsely declared as used office equipment and then undervalued for p urposes of customs duties. TON filed a complaint before the MM Regional Trial Co urt for replevin, alleging that the Customs officials erred in the classificatio n and valuation of its shipment, as well as in the issuance of the warrant of se izure. The Collector moved to dismiss the suit for lack of jurisdiction on the p art of the trial court. Should the Collectors motion be granted or denied? Reason briefly. (5%) SUGGESTED ANSWER: The Collectors motion should be granted. Under Section 602(g) of the Tariff and C ustoms Code, the Bureau of Customs has exclusive original jurisdiction over seiz ure and forfeiture cases under the tariff and customs laws. NOTE: (This question is outside the coverage of the Bar Examinations. It is ther efore recommended that whatever answer made by the candidate should be given ful l credit.) Power of the State: Regulating of Domestic Trade (2004) In its exercise of police power and business regulation, the legislature of LVM State passed a law prohibiting aliens from engaging in domestic timber trade. Vi olators including dummies would, after proper trial, be fined and imprisoned or deported. Mrs. BC, a citizen of LVM but married to ZC, an alien merchant of PNG, filed suit to invalidate the law or exempt from its coverage their timber busin ess. She contended that the law is, inter alia, gravely oppressive and discriminatory . It violated the Universal Declaration of Human Rights (UDHR) passed in 1948 by the United Nations, of which LVM is a member, she said, as well as the reciproc ity provisions of the World Trade Organization (WTO) Agreement of 1994, of which PNG and LVM are parties. Aside from denying them equal protection, according to BC, the law will also deprive her family their livelihood without due process n or just compensation. Assuming that the legal system of LVM is similar to ours, would Mrs. BCs contention be tenable or not? Reason briefly. (5%) SUGGESTED ANSWER: Mrs. BCs contention is not tenable. First, the UDHR does not purport to limit the right of states (like LVM) to regulate domestic trade. Second, the WTO Agreeme nt involves international trade between states or governments, not domestic trad e in timber or other commodities. Third, nationality is an accepted norm for mak ing classifications that do not run counter to the equal protection of law claus e of the Constitution. Fourth, there is no impairment of due process here becaus e violators of the law will be punished only after proper trial. Fifth, the issue of just compensation does not arise, because the property of Mrs. BC is not being expropriated. On the contrary, as a citizen of LVM, Mrs. BC is freely allowed to engage in domestic timber trade in LVM. Political Law; WTO (1999) Government plans to impose an additional duty on imported sugar on top of the cu rrent tariff rate. The intent is to ensure that the landed cost of sugar shall n ot be lower than P800 per bag. This is the price at which locally produced sugar would be sold in order to enable sugar producers to realize reasonable profits. Without this additional duty, the current low price of sugar in the world marke t will surely pull the domestic price to levels lower than the cost to producer domestic sugar a situation that could spell the demise of the Phil sugar industr y. a) Discuss the validity of this proposal to impose an additional levy on impo rted sugar (3%) b) Would the proposal be consistent with the tenets of the World

Trade Organization (WTO)? (3%) Recommendation: Since the subject matter of these two (2) questions is not inclu ded within the scope of the Bar Questions in Mercantile Law, it is suggested tha t whatever answer is given by the examinee, or the lack of answer should be give n full credit. If the examinee gives a good answer, he should be given additiona l credit. SUGGESTED ANSWER: a) The proposal to impose an additional duty on imported sugar on top of the cur rent tariff rate is valid, not being prohibited by the Constitution. It would en able producers to realize reasonable profits, and would allow the sugar industry of the country to survive. b) No. The proposal would not be consistent with the tenets of the WTO which cal l for the liberalization of trade. However, such proposal may be acceptable with in the allowable period under the WTO for adjustment of the local industry Government Deregulation vs. Privatization of an Industry (2004) What is the difference between government deregulation and the privatization of an industry? Explain briefly. (2%) SUGGESTED ANSWER: Government deregulation is the relaxation or removal of regulatory constraints o n firms or individuals, with a view to promoting competition and market-oriented approaches toward pricing, output, entry, and other related economic decisions. Privatization of an industry refers to the transfer of ownership and control by the government of assets, firms and operations in an industry to private investo rs. Four ACID Problems of Philippine Judiciary (2006) In several policy addresses extensively covered by media since his appointment o n December 21, 2005, Chief Justice Artemio V. Panganiban vowed to leave a judici ary characterized by four Ins and to focus in solving the four ACID problems that co rrode the administration of justice in our country. Explain this four Ins and four ACID problems. SUGGESTED ANSWER: Upon assuming his office, Chief Justice Panganiban vowed to lead a judiciary cha racterized by the four Ins: Integrity, Independence, Industry and Intelligence; on e that is morally courageous to resist influence, interference, indifference and insolence. He envisions a judiciary that is impervious to the plague of undue i nfluence brought about by kinship, relationship, friendship and fellowship. He c alls on the judiciary to battle the Four ACID problems corroding our justice syste m: (1) limited access to justice by the poor; (2) corruption; (3) incompetence; and (4) delay in the delivery of quality judgments. The judicial department should d ischarge its functions with transparency, accountability and dignity. (NOTA BENE: It is respectfully suggested that all Bar Candidates receive a 2.5% bonus for the above question regardless of the answer) 2. The Chief Justice also said that the judiciary must safeguard the liberty and nu rture the prosperity of our people. Explain this philosophy. Cite Decisions of th e Supreme Court implementing each of these twin beacons of the Chief Justice. (2 .5%) SUGGESTED ANSWER: The Chief Justices philosophy Safeguarding Liberty, Nurturing Prosperity embodies t he Supreme Courts approach in decision-making in the exercise of its constitution al power of judicial review which provides: In cases involving liberty, the scal es of justice should weight heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak; and that laws a nd action that restrict fundamental rights come to the court with a heavy presump

tion against their constitutional validity. On the other hand, as a general rule , the Supreme Court must adopt a deferential or respectful attitude towards acti ons taken by the governmental agencies that have primary responsibility for the economic development of the country; and only when an act has been clearly made or executed with grave abuse of discretion does the Court get involved in policy issues. Decisions implementing the safeguarding of liberty in-clude those involving the co nstitutionality of Presidential Proclamation No. 1017 (David v. Arroyo, G.R. No. 171390, May 3, 2006); the validity of Calibrated Pre-emptive Response (CPR) and B.P. Big. 880 or the Public Assembly Act (Bayan v. Ermita, G.R. No. 169848, Apr il 25, 2006); and the legality of Executive Order No. 464 and the Presidents exer cise of Execu-tive Privilege (Senate of the Philippines v. Ermita, G.R. No. 1697 77, April 20, 2006). On the other hand, cases that relate to nurturing the prosperity of the people inc lude the question the constitutionality of the Mining Law (La Bugal-BLaan v. Ramo s, G.R. No. 127882, Dec. 1, 2004) and the WTO Agreement (Tanada v. Angara, G.R. 118295, May 2,1997). Posted in Four ACID Problems of Philippine Judiciary, Miscellaneous | Leave a co mment Energy Regulatory Commission: Jurisdiction & Power (2004) Posted on August 31, 2010 by Bar Exams Reviewer CG, acustomer, sued MERALCO in the MM Regional Trial Court to disclose the basis of the computation of the purchased power adjustment (PPA). The trial court rul ed it had no jurisdiction over the case because, as contended by the defendant, the customer not only demanded a breakdown of MERALCOs bill with respect to PPA b ut questioned as well the imposition of the PPA, a matter to be decided by the B oard of Energy, the regulatory agency which should also have jurisdiction over t he instant suit. Is the trial courts ruling correct or not? Reason briefly. (5%) SUGGESTED ANSWER: The trial courts ruling is correct. As held in Manila Electric Company v. Court o f Appeals, 271SCRA 417 (1997), the Board of Energy had the power to regulate and fix power rates to be charged by franchised electric utilities like MERALCO. In fact pursuant to Executive Order No. 478 (April 17, 1998), this power has been transferred to the Energy Regulatory Board (now the Energy Regulatory Commission ). Under Section 43(u) of the Electric Power Industry Reform Act of 2001, the En ergy Regulatory Commission has original and exclusive jurisdiction over all case s contesting power rates. Posted in Energy Regulatory Commission, Jurisdiction & Power, Miscellaneous | Le ave a comment Usury Law (199_) Posted on August 31, 2010 by Bar Exams Reviewer Borrower obtained a loan from a money lending enterprise for which he issued a p romissory note undertaking to pay at the end of a period of 30 days the principa l plus interest at the rate 5.5% per month plus 2% per annum as service charge. On maturity of the loan, borrower failed to pay the principal debt as well as th e stipulated interest and service charge. Hence, he was sued. 1 How would you dispose of the issues raised by the borrower? 2 That the stipulated interest rate is excessive and unconscionable? (3%) 3 Is the interest rate usurious? (3%) Recommendation: Since the subject matter of these two (2) questions is not inclu ded within the scope of the Bar Questions in Mercantile Law, it is suggested tha t whatever answer is given by the examinee, or the lack of answer should be give n full credit. If the examinee gives a good answer, he should be given additiona l credit. SUGGESTED ANSWER: a. The rate of interest of 5.5% per month is excessive and unconscionable. b. The interest cannot be considered usurious. The Usury Law has been suspended in its application, and the interest rates are made floating.

Posted in Usury Law | Leave a comment Trans-Shipment; Bill of Lading; Binding Contract (1993) Posted on August 31, 2010 by Bar Exams Reviewer JRT Inc entered into a contract with C Co of Japan to export anahaw fans valued at $23,000. As payment thereof, a letter of credit was issued to JRT by the buye r. The letter of credit required the issuance of an on-board bill of lading and prohibited the transshipment. The President of JRT then contracted a shipping ag ent to ship the anahaw fans through O Containers Lines, specifying the requireme nts of the letter of credit. However, the bill of lading issued by the shipping lines bore the notation received for shipment and contained an entry indicating tr ansshipment in Hongkong. The President of JRT personally received and signed the bill of lading and despite the entries, he delivered the corresponding check in payment of the freight. The shipment was delivered at the port of discharge but the buyer refused to accept the anahaw fans because there was no on-board bill of lading, and there was transshipment since the goods were transferred in Hongk ong from MV Pacific, the feeder vessel, to MV Oriental, a mother vessel. JRT arg ued that the same cannot be considered transshipment because both vessels belong to the same shipping company. 1) Was there transshipment? Explain 2) JRT furthe r argued that assuming that there was transshipment, it cannot be deemed to have agreed thereto even if it signed the bill of lading containing such entry becau se it was made known to the shipping lines from the start that transshipment was prohibited under the letter of credit and that, therefore, it had no intention to allow transshipment of the subject cargo. Is the argument tenable? Reason. SUGGESTED ANSWER: 1) Yes. Transshipment is the act of taking cargo out of one ship and loading it in another. It is immaterial whether or not the same person, firm, or entity own s the two vessels. (Magellan v CA 201 s 102) 2) No. JRT is bound by the terms of the bill of lading when it accepted the bill of lading with full knowledge of its contents which included transshipment in H ongkong. Acceptance under such circumstances makes the bill of lading a binding contract. (Magellan v Ca 201 s 102) Posted in Bill of Lading, Binding Contract, Trans-Shipment, Transportation Law | Leave a comment Registered Owner; Conclusive Presumption (1990) Posted on August 31, 2010 by Bar Exams Reviewer Johnny owns a Sarao jeepney. He asked his neighbor Van if he could operate the s aid jeepney under Vans certificate of public convenience. Van agreed and, accordi ngly, Johnny registered his jeepney under Van name. On June 10, 1990, one of the passenger jeepneys operated by Van bumped Tomas. Tomas was injured and in due t ime, he filed a complaint for damages against Van and his driver for the injurie s he suffered. The court rendered judgment in favor of Tomas and ordered Van and his driver, jointly and severally, to pay Tomas actual and moral damages, attor neys fees, and costs. The Sheriff levied on the jeepney belonging to Johnny but registered in the name of Van. Johnny filed a 3rd party claim with the Sheriff alleging ownership of t he jeepney levied upon and stating that the jeepney was registered in the name o f Van merely to enable Johnny to make use of Vans certificate of public convenien ce. May the Sheriff proceed with the public auction of Johnnys jeepney. Discuss w ith reasons. SUGGESTED ANSWER: Yes, the Sheriff may proceed with the auction sale of Johnnys jeepney. In contemp lation of law as regards the public and third persons, the vehicle is considered the property of the registered operator (Santos v Sibug 104 S 520) Posted in Conclusive Presumption, Registered Owner, Transportation Law | Leave a comment Prior Operator Rule (2003) Posted on August 31, 2010 by Bar Exams Reviewer Bayan Bus Lines had been operating satisfactorily a bus service over the route M

anila to Tarlac and vice versa via the McArthur Highway. With the upgrading of t he new North Expressway, Bayan Bus Lines service became seemingly inadequate des pite its efforts of improving the same. Pasok Transportation, Inc., now applies for the issuance to it by the Land Transportation Franchising and Regulatory Boa rd of a certificate of public convenience for the same Manila-Tarlac-Manila rout e. Could Bayan Bus Lines, Inc., invoke the prior operator rules against Pasok Tran sportation, Inc.? Why? (6%) SUGGESTED ANSWER: (per Dondee) No, Bayan Bus Lines, Inc., cannot invoke the prior operator rules aga inst Pasok Transportation, Inc. because such Prior or Old Operator Rule under the Public Service Act only applies as a policy of the law of the Public Service Com mission to issue a certificate of public convenience to a second operator when p rior operator is rendering sufficient, adequate and satisfactory service, and wh o in all things and respects is complying with the rule and regulation of the Co mmission. In the facts of the case at bar, Bayan Bus Lines service became seemin gly inadequate despite its efforts of improving the same. Hence, in the interest of providing efficient public transport services, the use of the prior operator a nd the priority of filing rules shall is untenable n this case. Posted in Prior Operator Rule, Transportation Law | Leave a comment Maritime Commerce; Bareboat (2003) Posted on August 31, 2010 by Bar Exams Reviewer For the transportation of its cargo from the Port of Manila to the Port of Kobe, Japan, Osawa & Co., chartered bareboat M/V Ilog of Karagatan Corporation. M/V Ilo g met a sea accident resulting in the loss of the cargo and the death of some of the seamen manning the vessel. Who should bear the loss of the cargo and the de ath of the seamen? Why? (4%) SUGGESTED ANSWER: (per Dondee) Osawa and Co. shall bear the loss because under a demise or bareboa t charter, the charterer (Osawa & Co.) mans the vessel with his own people and b ecomes, in effect, the owner for the voyage or service stipulated, subject to li ability for damages caused by negligence. Posted in Bareboat, Maritime Commerce, Transportation Law | Leave a comment Kabit System; Agent of the Registered Owner (2005) Posted on August 31, 2010 by Bar Exams Reviewer Procopio purchased an Isuzu passenger jeepney from Enteng, a holder of a certifi cate of public convenience for the operation of public utility vehicle plying th e Calamba-Los Baos route. While Procopio continued offering the jeepney for publi c transport services, he did not have the registration of the vehicle transferre d in his name. Neither did he secure for himself a certificate of public conveni ence for its operation. Thus, per the records of the Land Transportation Franchi sing and Regulatory Board, Enteng remained its registered owner and operator. On e day, while the jeepney was traveling southbound, it collided with a ten-wheele r truck owned by Emmanuel. The driver of the truck admitted responsibility for t he accident, explaining that the truck lost its brakes. Procopio sued Emmanuel for damages, but the latter moved to dismiss the case on the ground that Procopio is not the real party in interest since he is not the r egistered owner of the jeepney. Resolve the motion with reasons. (3%) SUGGESTED ANSWER: The motion to dismiss should be denied because Procopio, as the real owner of th e jeepney, is the real party in interest. Procopio falls under the Kabit system. However, the legal restriction as regards the Kabit system does not apply in th is case because the public at large is not deceived nor involved. (Lim v. Court of Appeals, G.R. No. 125817, January 16, 2002, citing Baliwag Transit v. Court o f Appeals, G.R. No. 57493, January 7, 1987) In any event, Procoprio is deemed to be the agent of the registered owner. (First Malayan Leasing v. Court of Appeals, G.R. No. 91378, June 9,1992; and F Transit Co ., Inc. v. NLRC, G.R. Nos, 88195-96, January 27, 1994)

Posted in Agent of the Registered Owner, Kabit System, Transportation Law | Leav e a comment Kabit System (2005) Posted on August 31, 2010 by Bar Exams Reviewer Discuss the kabit system in land transportation and its legal consequences. (2%) SUGGESTED ANSWER: The kabit system is an arrangement where a person granted a certificate of publi c convenience allows other persons to operate their motor vehicles under his lic ense, for a fee or percentage of their earnings (Lim v. Court of Appeals and Gon zalez, G.R, No. 125817, January 16, 2002, citing Baliwag Trannit v. Court of App eals, G.R. No. 57493, January 7, 1987) The law enjoining the kabit system aims t o identify the person responsible for an accident in order to protect the riding public. The policy has no force when the public at large is neither deceived no r involved. The law does not penalize the parties to a kabit agreement. But the kabit system is contrary to public policy and therefore void and inexistent. (Art. 1409[1], Civil Code) Posted in Kabit System, Transportation Law | Leave a comment Common vs. Private Carrier; Defenses (2002) Posted on August 31, 2010 by Bar Exams Reviewer Name two (2) characteristics which differentiate a common carrier from a private carrier. (3%). SUGGESTED ANSWER: Two (2) characteristics that differentiate a common carrier from a private carri er are: 1 A common carrier offers its service to the public; a private carrier does not. 2 A common carrier is required to observe extraordinary diligence; a private car rier is not so required. Posted in Common vs. Private Carrier, Defenses, Transportation Law | Leave a com ment Common Carriers; Liability for Loss (1991) Posted on August 31, 2010 by Bar Exams Reviewer Alejandor Camaling of Alegria, Cebu, is engaged in buying copra, charcoal, firew ood, and used bottles and in reselling them in Cebu City. He uses 2 big Isuzu tr ucks for the purpose; however, he has no certificate of public convenience or fr anchise to do business as a common carrier. On the return trips to Alegria, he l oads his trucks with various merchandise of other merchants in Alegria and the n eighboring municipalities of Badian and Ginatilan. He charges them freight rates much lower than the regular rates. In one of the return trips, which left Cebu City at 8:30 p.m. 1 cargo truck was loaded with several boxes of sardines, value d at P100th, belonging to one of his customers, Pedro Rabor. While passing the z igzag road between Carcar and Barili, Cebu, which is midway between Cebu City an d Alegria, the truck was hijacked by 3 armed men who took all the boxes of sardi nes and kidnapped the driver and his helper, releasing them in Cebu City only 2 days later. Pedro Rabor sought to recover from Alejandro the value of the sardines. The latt er contends that he is not liable therefore because he is not a common carrier u nder the Civil Code and, even granting for the sake of argument that he is, he i s not liable for the occurrence of the loss as it was due to a cause beyond his control. If you were the judge, would you sustain the contention of Alejandro? SUGGESTED ANSWER: If I were the Judge, I would hold Alejandro as having engaged as a common carrie r. A person who offers his services to carry passengers or goods for a fee is a common carrier regardless of whether he has a certificate of public convenience or not, whether it is his main business or incidental to such business, whether it is scheduled or unscheduled service, and whether he offers his services to th e general public or to a limited few (De Guzman v CA GR 47822 27Dec1988)

I will however, sustain the contention of Alejandro that he is not liable for th e loss of the goods. A common carrier is not an insurer of the cargo. If it can be established that the loss, despite the exercise of extraordinary diligence, c ould not have been avoided, liability does not ensue against the carrier. The hi jacking by 3 armed men of the truck used by Alejandro is one of such cases (De G uzman v CA GR 47822 27Dec1988). Posted in Common Carrier, Liability for Loss, Transportation Law | Leave a comme nt Older posts Search This Site Jurisprudence Insurance Law Links to Other Bar Exams Civil Law Political & Intl Law Remedial Law Related Links Law List Directory Build Your Own Library Categories Banking Law (28) Anti-Money Laundering Law(1) Applicability (1) BSP (1) Classifications of Banks (1) Collateral Security (1) Conservator vs. Receiver (1) Diligence Required (1) Exceptions (2) Foreign Currency Deposit Act & Secrecy of Bank Deposits (1) Garnishment (2) Insolvency (2) Jurisdiction (1) Legal Tender (1) Liability (1) PDIC Law vs. Secrecy of Bank Deposits Act (1) Prohibited Transactions (1) Receivership (1) Requirements (1) Responsibilities & Objectives of BSP (1) Restrictions on Loan Accommodations (2) Safety Deposit Box (1) Secrecy of Bank Deposit (2) Secrecy of Bank Deposits (10) Truth in Lending Act (2) Bulk Sales Law (8) Covered Transactions (3) Exclusions (1) Obligation of the Vendor (3) Consumer Protection Law (1) Metric System Law (1) Corporation Law (95) Acts or Activities (1) Appraisal Right (1) Articles of Incorporation (1) Doing Business in the Philippines (3) Board of Directors (10) BOD & Stockholders (1)

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Rudy is jobless but is reputed to be a jueteng operator. He has never been charg ed or convicted of any crime. He maintains several bank accounts and has purchas ed 5 houses and lots for his children from the Luansing Realty, Inc. Since he do es not have any visible job, the company reported his purchases to the Anti-Mone y Laundering Council (AMLC). Thereafter, AMLC charged him with violation of the Anti-Money Laundering Law. Upon request of the AMLC, the bank disclosed to it Ru dys bank deposits amounting to P100 Million. Subsequently, he was charged in cour t for violation of the Anti-Money Laundering Law. 1. Can Rudy move to dismiss the case on the ground that he has no criminal recor d? (2.5%) SUGGESTED ANSWER: No. Under the Anti-Money Laundering Law, Rudy would be guilty of a money launderi ng crime committed when the proceeds of an unlawful activity, like jueteng operatio ns, are made to appear as having originated from legitimate sources. The money l aundering crime is separate from the unlawful activity of being a jueteng operat or, and requires no previous conviction for the unlawful activity (See also Sec. 3, Anti-Money Laundering Act of 2001). 2. To raise funds for his defense, Rudy sold the houses and lots to a friend. Ca n Luansing Realty, Inc. be compelled to transfer to the buyer ownership of the h ouses and lots? (2.5%) SUGGESTED ANSWER: Luansing Realty, Inc. is a real estate company, hence it is not a covered instit ution under Section 3 of the Anti-Money Laundering Act. Only banking institution s, insurance companies, securities dealers and brokers, pre-need companies and o ther entities administering or otherwise dealing in currency, commodities or fin ancial derivatives are covered institutions. Hence, Luansing Realty, Inc. may no t use the Anti-Money Laundering Act to refuse to transfer to the buyer ownership of the houses and lots. 3. In disclosing Rudys bank accounts to the AMLC, did the bank violate any law? ( 2.5%) SUGGESTED ANSWER: No, the bank did not violate any law. The bank being specified as a covered insti tution under the Anti-Money Laundering Law, is obliged to report to the AMLC cove red and suspicious transactions, without thereby violating any law. This is one of the exceptions to the Secrecy of Bank Deposit Act. 4. Supposing the titles of the houses and lots are in possession of the Luansing Realty, Inc., is it under obligation to deliver the titles to Rudy? (2.5%) SUGGESTED ANSWER: Yes, it has an obligation to deliver titles to Rudy. As Luansing Realty, Inc. is not a covered institution under Section 3 of the Anti-Money Laundering Act, it may not invoke this law to refuse delivery of the titles to Rudy. This entry was posted in Anti-Money Laundering Law, Banking Law, Secrecy of Bank Deposit. Bookmark thepermalink. Banks; Safety Deposit Box; Liability Banks; Secrecy of Bank Deposit; Exceptions (2006) Leave a Reply Your email address will not be published. Required fields are marked * Name * Email * Website

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ft Banks Act of 1995 (RA 7906). 4 Rural Banks these are those which are organized primarily to extend loans and other credit facilities to farmers, fishermen or farm families, as well as coope ratives, merchants, and private and public employees and whose operations are pr imarily governed by the Rural Banks Act of 1992 (RA 7353). 5 Cooperative Banks these are those which are organized primarily to provide fin ancial and credit services to cooperatives and whose operations are primarily go verned by the Cooperative Code of the Philippines (RA 6938). 6 Islamic Banks these are those which are organized primarily to provide financi al and credit services in a manner or transaction consistent with the Islamic Sh ariah. At present, only the Al Amanah Islamic Investment Bank of the Philippines has been organized as an Islamic Bank. Remedial Law: Suggested Answers to Bar Examinations We are deeply inspired by the works made by the "Siliman University College of L aw Batch 2005". This website version is dedicated to them. Skip to content Home About Venue; Personal Actions (1997) Posted on September 13, 2010 by Salin Lahi X, a resident of Angeles City, borrowed P300,000.00 from A, a resident of Pasay City. In the loan agreement, the parties stipulated that the parties agree to sue and be sued in the City of Manila. a) In case of non-payment of the loan, can A file his complaint to collect the loan from X in Angeles City? b) Suppose the parties did not stipulate in the loan agreement as to the ven ue, where can A file his complaint against X? c) Suppose the parties stipulated in their loan agreement that venue for all suits arising from this contract shall be the courts in Quezon City, can A file h is complaint against X in Pasay City? SUGGESTED ANSWER: (a) Yes, because the stipulation in the loan agreement that the parties agree to sue and be sued in the City of Manila does not make Manila the exclusive venue the reof. (Sec, 4 of Rule 4, as amended by Circular No. 13-95: Sec. 4 of new Rule 4) Hence, A can file his complaint in Angeles City where he resides, (Sec, 2 of Rul e 4). (b) If the parties did not stipulate on the venue, A can file his complaint eith er in Angeles City where he resides or in Pasay City where X resides, (Id). (c) Yes, because the wording of the stipulation does not make Quezon City the ex clusive venue. (Philbanking v. Tensuan. 230 SCRA 413; Unimasters Conglomeration, Inc. v. CA. CR -119657, Feb. 7, 1997) ALTERNATIVE ANSWER: (c) No. If the parties stipulated that the venue shall be in the courts in Quezon City, A cannot file his complaint in Pasay City because the use of the word shall makes Quezon City the exclusive venue thereof. (Hoechst Philippines vs. Torres, 83 SCRA 297). Posted in CIVIL PROCEDURE, Personal Actions, Venue | Tagged 1997 | Leave a comme nt Venue; Improper Venue; Compulsory Counterclaim (1998) Posted on September 13, 2010 by Salin Lahi A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando La Unio n in the RTC (RTC) of Quezon City for the collection of a debt of P1 million. X did not file a motion to dismiss for improper venue but filed his answer raising therein improper venue as an affirmative defense. He also filed a counterclaim for P80,000 against A for attorneys fees and expenses for litigation. X moved for a preliminary hearing on said affirmative defense. For his part, A filed a moti on to dismiss the counterclaim for lack of jurisdiction.

1 Rule on the affirmative defense of improper venue. [3%] 2 Rule on the motion to dismiss the counterclaim on the ground of lack of jurisd iction over the subject matter. [2%] SUGGESTED ANSWER: 1. There is improper venue. The case for a sum of money, which was filed in Qu ezon City, is a personal action. It must be filed in the residence of either the plaintiff, which is in Pangasinan, or of the defendant, which is in San Fernand o, La Union. (Sec. 2 of Rule 4) The fact that it was not raised in a motion to d ismiss does not matter because the rule that if improper venue is not raised in a motion to dismiss it is deemed waived was removed from the 1997 Rules of Civil Procedure. The new Rules provide that if no motion to dismiss has been filed, a ny of the grounds for dismissal may be pleaded as an affirmative defense in the answer. (Sec. 6 of Rule 16.) 2. The motion to dismiss on the ground of lack of jurisdiction over the subject matter should be denied. The counterclaim for attorneys fees and expenses of lit igation is a compulsory counterclaim because it necessarily arose out of and is connected with the complaint. In an original action before the RTC, the counterc laim may be considered compulsory regardless of the amount. (Sec. 7 of Rule 6) Posted in CIVIL PROCEDURE, Compulsory Counterclaim, Improper Venue, Venue | Tagg ed 1998 | Leave a comment Summons; Validity of Service; Effects (2006) Posted on September 13, 2010 by Salin Lahi Tina Guerrero filed with filed the Regional Trial Court of Binan, Laguna, a comp laint for sum of money amounting to P1 Million against Carlos Corro. The complai nt alleges, among others, that Carlos borrowed from Tina the said amount as evid enced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was served with summons which was received by Linda, his secretary. Howe ver, Carlos failed to file an answer to the complaint within the 15-day reglemen tary period. Hence, Tina filed with the court a motion to declare Carlos in defa ult and to allow her to present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the complaint, denying under oath the genuineness a nd due execution of the promissory note and contending that he has fully paid hi s loan with interest at 12% per annum. 1. Was the summons validly served on Carlos? (2.5%) ALTERNATIVE ANSWER: The summons was not validly served on Carlos be-cause it was served on his secre tary and the requirements for substituted service have not been followed, such a s a showing that efforts have been exerted to serve the same on Carlos and such attempt has failed despite due diligence (Manotoc v. CA, G.R. No. 130974, August 16, 2006; AngPing v. CA, G.R. No. 126947, July 15, 1999). ALTERNATIVE ANSWER: Service of Summons on Carlos was validly served upon him if the Return will show that it was done through Substituted Service because the defendant can not be s erved personally within a reasonable time despite diligent efforts made to serve the summons personally. Linda, the secretary of defendant Carlos, must likewise be shown to be a competent person in charge of defendants office where summons w as served (Sec. 7, Rule 14). 2. If you were the judge, will you grant Tinas motion to declare Carlos in de fault? (2.5%) ALTERNATIVE ANSWER: If I were the judge, I will not grant Tinas motion to declare Carlos in default b ecause summons was not properly served and anyway, a verified answer to the comp laint had already been filed. Moreover, it is better to decide a case on the mer its rather than on technicality. ALTERNATIVE ANSWER:

Yes. If it was shown that summons was validly served, and that the motion to dec lare Carlos in default was duly furnished on Carlos, and after conducting a hear ing on the same motion. Posted in CIVIL PROCEDURE, Effect, Summons, Validity of Service | Tagged 2006 | Leave a comment Summons; Substituted Service (2004) Posted on September 13, 2010 by Salin Lahi Summons was issued by the MM RTC and actually received on time by defendant from his wife at their residence. The sheriff earlier that day had delivered the sum mons to her at said residence because defendant was not home at the time. The sh eriffs return or proof of service filed with the court in sum states that the su mmons, with attached copy of the complaint, was served on defendant at his resid ence thru his wife, a person of suitable age and discretion then residing therei n. Defendant moved to dismiss on the ground that the court had no jurisdiction o ver his person as there was no valid service of summons on him because the sheri ffs return or proof of service does not show that the sheriff first made a genui ne attempt to serve the summons on defendant personally before serving it thru h is wife. Is the motion to dismiss meritorious? What is the purpose of summons an d by whom may it be served? Explain. (5%) SUGGESTED ANSWER: The motion to dismiss is not meritorious because the defendant actually received the summons on time from his wife. Service on the wife was sufficient. (Botican o v. Chu, 148 SCRA 541 [1987]). It is the duty of the court to look into the suf ficiency of the service. The sheriffs negligence in not stating in his return th at he first made a genuine effort to serve the summons on the defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals, 214 SCRA 417/1992). The purpose of the summons is to inform the defendant of the complaint filed against him and to enable the court to acquire jurisdiction over his person. It maybe s erved by the sheriff or his deputy or any person authorized by the court. ALTERNATIVE ANSWER: Yes. The motion to dismiss is meritorious. Substituted service cannot be effecte d unless the sheriffs return shows that he made a genuine attempt to effect pers onal service on the husband. Posted in CIVIL PROCEDURE, Substituted Service, Summons | Tagged 2004 | Leave a comment Summons (1999) Posted on September 13, 2010 by Salin Lahi a) What is the effect of absence of summons on the judgment rendered in the case? (2%) b) When additional defendant is impleaded in the action, is it necessary tha t summons be served upon him? Explain. (2%) c) Is summons required to be served upon a defendant who was substituted for the deceased? Explain. (2%) d) A sued XX Corporation (XXC), a corporation organized under Philippine law s, for specific performance when the latter failed to deliver T-shirts to the fo rmer as stipulated in their contract of sale. Summons was served on the corpora tions cashier and director. Would you consider service of summons on either offic er sufficient? Explain. (2%) SUGGESTED ANSWER: a) The effect of the absence of summons on a judgment would make the judgmen t null and void because the court would not have jurisdiction over the person of the defendant, but if the defendant voluntarily appeared before the court, his appearance is equivalent to the service of summons. (Sec. 20, Rule 14) b) Yes. Summons must be served on an additional defendant impleaded in the a ction so that the court can acquire jurisdiction over him, unless he makes a vol untary appearance. c) No. A defendant who was substituted for the deceased need not be served w

ith summons because it is the court which orders him as the legal representative of the deceased to appear and substitute the deceased. (Sec. 16 of Rule 3.) d) Summons on a domestic corporation through its cashier and director are no t valid under the present rules. (Sec. 11, Rule 14) They have been removed from those who can be served with summons for a domestic corporation. Cashier was su bstituted by treasurer. (Id.) Posted in CIVIL PROCEDURE, Summons | Tagged 1999 | Leave a comment Summons Posted on September 13, 2010 by Salin Lahi Seven years after the entry of judgment, the plaintiff filed an action for its r evival. Can the defendant successfully oppose the revival of the judgment by con tending that it is null and void because the RTC-Manila did not acquire jurisdic tion over his person? Why? (3%) SUGGESTED ANSWER: The RTC-Manila should deny the motion because it is in violation of the rule tha t no judgment obligor shall be required to appear before a court, for the purpos e of examination concerning his property and income, outside the province or cit y in which such obligor resides. In this case the judgment obligor resides in Bu lacan. (Rule 39, sec.36). Posted in CIVIL PROCEDURE, Summons | Leave a comment Special Civil Actions; Mandamus (2006) Posted on September 13, 2010 by Salin Lahi In 1996, Congress passed Republic Act No. 8189, otherwise known as the Voters Reg istration Act of 1996, providing for computerization of elections. Pursuant ther eto, the COMELEC approved the Voters Registration and Identification System (VRIS ) Project. It issued invitations to pre-qualify and bid for the project. After t he public bidding, Fotokina was declared the winning bidder with a bid of P6 bil lion and was issued a Notice of Award. But COMELEC Chairman Gener Go objected to the award on the ground that under the Appropriations Act, the budget for the C OMELECs modernization is only P1 billion. He announced to the public that the VRI S project has been set aside. Two Commissioners sided with Chairman Go, but the majority voted to uphold the contract. Meanwhile, Fotokina filed with the RTC a petition for mandamus compel the COMELE C to implement the contract. The Office of the Solicitor General (OSG), represen ting Chairman Go, opposed the petition on the ground that mandamus does not lie to enforce contractual obligations. During the proceedings, the majority Commiss ioners filed a manifestation that Chairman Go was not authorized by the COMELEC En Banc to oppose the petition. Is a petition for mandamus an appropriate remedy to enforce contractual obligati ons? (5%) SUGGESTED ANSWER: No, the petition for mandamus is not an appropriate remedy because it is not ava ilable to enforce a contractual obligation. Mandamus is directed only to ministe rial acts, directing or commanding a person to do a legal duty (COMELEC v. Quija no-Padilla, G.R. No. 151992, September 18, 2002; Sec. 3, Rule 65). Posted in CIVIL PROCEDURE, Mandamus, Special Civil Action | Tagged 2006 | Leave a comment Special Civil Action; Quo Warranto (2001) Posted on September 13, 2010 by Salin Lahi A group of businessmen formed an association in Cebu City calling itself Cars C. to distribute / sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before a RTC in Manila a verified petition fo r quo warranto questioning and seeking to stop the operations of Cars Co. The la tter filed a motion to dismiss the petition on the ground of improper venue clai ming that its main office and operations are in Cebu City and not in Manila. Is the contention of Cars Co. correct? Why? (5%) SUGGESTED ANSWER:

No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a RTC in the City of Manila, as i n this case, in the Court of Appeals or in the Supreme Court. (Sec. 7 of Rule 66 ) Posted in CIVIL PROCEDURE, Quo Warranto, Special Civil Action | Tagged 2001 | Le ave a comment Special Civil Action; Petition for Certiorari (2002) Posted on September 13, 2010 by Salin Lahi The defendant was declared in default in the RTC for his failure to file an answ er to a complaint for a sum of money. On the basis of the plaintiffs ex parte pre sentation of evidence, judgment by default was rendered against the defendant. T he default judgment was served on the defendant on October 1, 2001. On October 1 0, 2001, he files a verified motion to lift the order of default and to set asid e the judgment. In his motion, the defendant alleged that, immediately upon rece ipt of the summon, he saw the plaintiff and confronted him with his receipt evid encing his payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The trial court denied the defendants motion b ecause it was not accompanied by an affidavit of merit. The defendant filed a sp ecial civil action for certiorari under Rule 65 challenging the denial order. A. Is certiorari under Rule 65 the proper remedy? Why? (2%) B. Did the trial court abuse its discretion or act without or in excess of its j urisdiction in denying the defendants motion to lift the order of default judgmen t? Why? (3%) SUGGESTED ANSWER: A. The petition for certiorari under Rule 65 filed by the defendant is the prope r remedy because appeal is not a plain, speedy and adequate remedy in the ordina ry course of law. In appeal, the defendant in default can only question the deci sion in the light of the evidence of the plaintiff. The defendant cannot invoke the receipt to prove payment of his obligation to the plaintiff. ALTERNATIVE ANSWER: A. Under ordinary circumstances, the proper remedy of a party wrongly declared i n default is either to appeal from the judgment by default or file a petition fo r relief from judgment. [Jao, Inc. v. Court of Appeals, 251 SCRA 391 (1995) SUGGESTED ANSWER: B. Yes, the trial court gravely abused its discretion or acted without or in exc ess of jurisdiction in denying the defendants motion because it was not accompani ed by a separate affidavit of merit. In his verified motion to lift the order of default and to set aside the judgment, the defendant alleged that immediately u pon the receipt of the summons, he saw the plaintiff and confronted him with his receipt showing payment and that the plaintiff assured him that he would instru ct his lawyer to withdraw the complaint. Since the good defense of the defendant was already incorporated in the verified motion, there was not need for a separ ate affidavit of merit. [Capuz v. Court of Appeals, 233 SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]. Posted in CIVIL PROCEDURE, Petition for Certiorari, Special Civil Action | Tagge d 2002 | Leave a comment Special Civil Action; Foreclosure (2003) Posted on September 13, 2010 by Salin Lahi A borrowed from the Development Bank of the Philippines (DBP) the amount of P1 m illion secured by the titled land of his friend B who, however, did not assume p ersonal liability for the loan. A defaulted and DBP filed an action for judicial foreclosure of the real estate mortgage impleading A and B as defendants. In du e course, the court rendered judgment directing A to pay the outstanding account of P1.5 million (principal plus interest) to the bank. No appeal was taken by A on the Decision within the reglementary period. A failed to pay the judgment de bt within the period specified in the decision. Consequently, the court ordered

the foreclosure sale of the mortgaged land. In that foreclosure sale, the land w as sold to the DBP for P1.2 million. The sale was subsequently confirmed by the court, and the confirmation of the sale was registered with the Registry of Deed s on 05 January 2002. On 10 January 2003, the bank filed an ex-parte motion with the court for the iss uance of a writ of possession to oust B from the land. It also filed a deficienc y claim for P800,000.00 against A and B. the deficiency claim was opposed by A a nd B. (a) Resolve the motion for the issuance of a writ of possession. (b) Resolve the deficiency claim of the bank. 6% SUGGESTED ANSWER: (a) In judicial foreclosure by banks such as DBP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property sold within one year after the sale (or registration of the sale). However, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming the sale. (Sec. 3 of Rule 68; Sec. 47 of R A 8791. The General Banking Law of 2000). The motion for writ of possession, how ever, cannot be filed ex parte. There must be a notice of hearing. (b) The deficiency claim of the bank may be enforced against the mortgage debtor A, but it cannot be enforced against B, the owner of the mortgaged property, wh o did not assume personal liability for the loan. Posted in CIVIL PROCEDURE, Foreclosure, Special Civil Action | Tagged 2003 | Lea ve a comment Older posts Links to Other Bar Exams Civil Law Commercial & Mercantile Law Political & Intl Law Search This Site Build Your Own Library Subjects, Topics & Keywords CIVIL PROCEDURE (104) 5-Year Period (1) Actions (16) Admissibility (1) Amendment of Complaint(4) Ancillary Remedy vs. Main Action (1) Annulment of Judgment (1) Answer (1) Appeal (2) Appeal to SC (1) Appeals to CA (1) Attachment (5) Attachment vs. Garnishment (1) Bar By Prior Judgment (1) Bill of Particulars (1) By Leave of Court (2) CA Justice Dept. (1) Cause of Action (6) Cause of Action vs. Action (1) Certification Against Forum Shopping (1) Certiorari (3) Civil Actions & Criminal Action (1) Civil Case vs. Criminal Case(1) Compulsory Counterclaim(1) Contempt (1) Counterclaim (1)

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