2008 Remedial Law Bar Questions and Suggested Answers

2008 Remedial Law Bar Questions and Suggested Answers

I Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of Manila against her sister Mary Rose, who is a resident of Singapore and is not found in the Philippines. Upon motion, the court ordered the publication of the summons for three weeks in a local tabloid, Bulgar. Linda, an OFW vacationing in the Philippines, saw the summons in Bulgar and brought a copy of the tabloid when she returned to Singapore. Linda showed the tabloid and the page containing the summons to Mary Rose, who said, "Yes I know, my kumare Anita scanned and e-mailed that page of Bulgar to me!" Did the court acquire jurisdiction over Mary Rose? (4%) Answer: No. As a rule in constructive service, summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam. Summons by publication against a nonresident in an action in personam is not a proper mode of service. II 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. Does the RTC have jurisdiction over Ramon's counterclaims, and if so, does he have to pay docket fees therefor? (3%) 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 the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? (3%) ANSWER: The court acquires jurisdiction over the Counterclaim of Ramon, it arising out of the same transaction out of which the main action arose out of and Ramon’s counterclaim involves the same parties, subject matter and issues. According to Professor Rene Callanta’s notebank (collected by his students) the following is a summation of the rules on whether or not a counterclaim is subject to docket fees. Rule #14: Filing fees:

Rule #1: payment of filing fees is jurisdictional in civil cases Rule #2: how does the court determine filing fees? You include interest, damages, attorney’s fees etc. – pay everything that you allege for court fees but for jurisdictional purposes, just the principal claim Rule #3: Sun Insurance - Filing fees must be paid within prescriptive period or reglementary period (for appeals or compulsory counterclaims), or else it is deemed prescribed Rule #4: Alday v. FGU Insurance - Permissive counterclaims require docket fees The claim does not arise from the principal action, but involves the same parties. This could easily have been filed separately. Compulsory counterclaims do not require docket fees . In Korean Technologies case of 2009 – this is how you answer the question whether compulsory counterclaims require filing fees From nowhere, this case required that even compulsory counterclaims have docket fees paid. Korean Technologies cited Rule 141. But in practice, based on an SC Resolution, the collection of filing fees on compulsory counterclaims is suspended. This has not been lifted yet. Alday: Payment of filing fees for compulsory counterclaims is not required. But you have to take note of Korean Technologies now To sum it up, the counterclaim of Ramon is subject to payment of filing fees by virtue of Rule 141 (law), Korean Technologies (case law) and an SC Resolution (administrative issuances). 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? (3%) Answer: According to the Rules of Court, within the time provided for in the rules, you must signify to the court either 1. You choose to pursue in a separate case the filing of your counterclaim, or 2. You wish to resolve your counterclaim in the same case as the main complaint. SEC. 6. Counterclaim.—A counterclaim is any claim which a defending party may have against an opposing party. (6a) SEC. 7. Compulsory counterclaim.—A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim

and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. 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 the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? (3%) Answer: Again for variety, I cite Prof Callanta’s notebank that states that a counterclaim which in practice is not executed in a separate pleading1, this counterclaim must be answered within ten (10) days from receipt by the plaintiff (or adverse party). According to Sir Callanta, in practice a litigant only answers a permissive counterclaim and compulsory counterclaims are rarely answered. A counterclaim is not an answer, nor is it part of the answer. It is a distinct cause of action which must be answered by the adverse party within 10 days from service. The motion is not an implied admission of the allegations of the complaint but interposes the affirmative defense of payment. Under section 3 Rule 11 the plaintiff shall answer the same within fifteen (15) days after being served with a copy thereof. SEC. 3. Answer to amended complaint.-Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the Order admitting the same. An answer earlier filed may serve as the answer to the amended complaint, if no new answer is filed. This Rule shall apply to the answer to an amended counterclaim amended cross-claim, amended third (fourth, etc.)- party complaint, and amended complaint-in-intervention. III Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before the RTC of Quezon City for the reconveyance of two parcels of land situated in Tarlac and Nueva Ecija, respectively. May her action prosper? (3%) The SC in Munoz vs Go Chan, a 2011 case declared that an action for declaration of nullity of title and recovery of ownership of real property, or re-conveyance, is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing. Any judgment therein is binding only upon the parties properly impleaded.

Since they were not impleaded as parties and given the opportunity to participate in Civil Case No. Q-28580, the final judgment in said case cannot bind BPI Family and the spouses Chan. The effect of the said judgment cannot be extended to BPI Family and the spouses Chan by simply issuing an alias writ of execution against them. No man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a writ of execution can be issued only against a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution issued pursuant thereto. Therefore determination of venue follows the general rule that it follows the residence of either the plaintiff or the defendant, at the option of the plaintiff, actions for reconveyance of land being by its very nature only an ordinary civil action. Assuming that the action was for foreclosure on the mortgage of the same parcels of land, what is the proper venue for the action? (3%) Answer: There are two views as to determination of jurisdiction and venue of foreclosures on mortgage of real property. One view states that jurisdiction always lie with the RTC becaue it only covers the security of the property. The original action is always for recovery of money. The other view is that jurisdiction determination must be governed by the value of the security. As to venue, it lies with the location of the property foreclosed. IV Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City against Marcelino pleading two causes of action. The first was a demand for the recovery of physical possession of a parcel of land situated in Pasay City with an assessed value of P40,000; the second was a claim for damages of P500,000 for Marcelino’s unlawful retention of the property. Marcelino filed a motion to dismiss on the ground that the total amount involved, which is P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino correct? (4%) ANSWER: Under the law when the action refers to rights, title or interest over real property where the value is 20,000 for locations outside Metro Manila and 50,000.00 within Metro Manila area, more particularly in cases of Recovery of possession of real property, the assessed value is the basis for determining the value of the real property subject of the dispute.

In the Ouano case, there was a discussion as to which of Fair Market Value or Assessed value should be used as basis for determining jurisdiction for Actions for Recovery of possession of real property. Assessed value won. In Ouano vs. PGTT International Investment Corporation, the Court ruled that the jurisdiction over the subject mater of the claim is determined by the assessed value and not the market value since the action involves ownership and possession of real property. BP # 129 provides that MTC has jurisdiction over cases on real property where the assessed value of the property or interest therein exclusive of damages does not exceed P20,000 or P50,000 in civil actions in Metro Manila. the RTC on the other hand has jurisdiction if the assessed value exceeds P20,000 or P50,000 in civil actions in Metro Manila. Thus, the amount of damages claimed should not be added in the computation as the law explicitly excludes from the determination of jurisdictional amount the demand for ” interest, damages of whatever kind, atorney’s fees, litigation expenses, and cost. The said damages are merely incidental to, or a consequence of, the real property. However, Administrative Circular No. 09-94 provides that in cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court. V Within the period for filing a responsive pleading, the defendant filed a motion for bill of particulars that he set for hearing on a certain date. However, the defendant was surprised to find on the date set for hearing that the trial court had already denied the motion on the day of its filing, stating that the allegations of the complaint were sufficiently made. Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? (3%) Answer: When a party litigant files a Motion for a Bill of Particulars, that party aims to secure a more definite statement of facts that appear in the complaint that are not averred with sufficient particularity. As party litigant the Motion must identify the defects in the Complaint and details desired. The judge gravely abused his discretion without waiting for the date set for the hearing of the motion because how can he make a hasty determination as to the sufficiency of the evidence for the plaintiff when the issues have not as yet been joined, the defendant was not yet at this stage able to submit his responsive pleading. The filing of a motion for Bill of Particulars interrupts the period to file an answer and in no case shall the party litigant have less than five days to file the answer after his motion for Bill of Particulars have been denied.

If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does not comply with the order? (3%) Answer: Yes. The court can dismiss the case according to the case of Virata vs Sandiganbayan that cites Rule 17, section 3 on non-compliance of a court order by a party. VI After his properties were attached, defendant Porfirio filed a sufficient counterbond. The trial court discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted attachment. In the end, the trial court rendered a judgment in Porfirio’s favor by ordering the plaintiff to pay damages because the plaintiff was not entitled to the attachment. Porfirio moved to charge the plaintiff’s attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the counterbond had relieved the plaintiff’s attachment bond from all liability for the damages. Rule on Porfirio’s motion. (4%) Answer: At the outset the purpose of filing a counterbond is to indemnify the officer of the court charged with releasing property previously attached by a party litigant through the writ of attachment. It is by these merits of a counterbond that the Supreme Court elucidated in the case of Magaling vs Ong that the mere filing of a counterbond does not automatically discharge the attachment. There must be a specific resolution for the discharge. VII The writ of execution was returned unsatisfied. The judgment obligee subsequently received information that a bank holds a substantial deposit belonging to the judgment obligor. If you are the counsel of the judgment obligee, what steps would you take to reach the deposit to satisfy the judgment? (3%) Answer: According to Section 9 of the Rules of Court on Execution of judgments for money, If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and the court officer shall first levy on the personal properties. Debts and Credits may also be garnished and the court officer may levy on debts due the judgment obligor and other credits, including bank deposits not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person having in his possession or control such credits to which the judgment obligor is entitled.

The garnishee shall make a written report to the court within five days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10 working days from service of notice on said garnishee requiring such delivery. Based on the foregoing, the sheriff is required to first make a demand of the obligor the immediate payment of the full amount stated in the writ of execution before a levy can be made. In a case, respondent had shown that he caused the service of the writ of execution pending appeal upon PAL thru its legal department on December 11, 2002 at 3:25 p.m. Records will show that while PAL received the copy of the writ on December 11, 2002, its depository banks received copies of the writ as well as notices of garnishment on the same day at an earlier time than PAL received the writ of execution as shown by the stamped receipt thereon, thus, China Bank at 2:32 p.m., JPMorgan Chase Bank at 2:48 p.m., Hongkong and Shanghai Bank at 2:54 p.m., and Allied Banking Corporation at 3:20 p.m. Notably, respondent did not observe the procedure mandated under the Rules of Court that he should first make a demand of the obligor the immediate payment of the full amount stated in the writ of execution. An expeditious execution of the writ should not be done at the expense of depriving the obligor the chance to pay the judgment debt. If the bank denies holding the deposit in the name of the judgment obligor but your client’s informant is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy to reach the deposit? (3%) Answer: As counsel I will cause the service of copies of the writ as well as the notice for garnishment on the bank that my client’s informant will point out as possible depositaries of funds belonging to the judgment obligor and funds held in accounts bearing possible assumed names or identities of the judgment obligor. This is legal because we are not exactly requiring the bank to divulge the amounts held but only the information as to whether or not funds exist in their institution that belongs to the judgment obligor. VIII Bembol was charged with rape. Bembol’s father, Ramil, approached Artemon, the victim’s father, during the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer. During trial, the prosecution presented Artemon to testify on Ramil’s offer and thereby establish an implied admission of guilt. Is Ramil’s offer to settle admissible in evidence? (3%)

During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is Bembol’s offer a judicial admission of his guilt? (3%) Answer: No. An offer to compromise does not, as a general rule, amount to an admission of liability It is an implied admission of guilt. However prosecution must prove by preponderance of evidence that there is an admission of liability th reason being that there is no presumption and due to the fact that the proof will only result in a judgment of pecuniary damages or establish civil right. Guilt beyond reasonable doubt is still required to convict Bembol. Moreover during pre-trial proceedings, it is mandatory for parties to thresh out preliminary issues, define terms, explore the possibility of a compromise so as to aid the courts in unclogging its dockets by mapping out undefined territories before both parties could go to trial. IX The search warrant authorized the seizure of “undetermined quantity of shabu.” During the service of the search warrant, the raiding team also recovered a kilo of dried marijuana leaves wrapped in newsprint. The accused moved to suppress the marijuana leaves as evidence for the violation of Section 11 of the Comprehensive Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State justified the seizure of the marijuana leaves under the “plain view” doctrine. There was no indication of whether the marijuana leaves were discovered and seized before or after the seizure of the shabu. If you are the judge, how would you rule on the motion to suppress? (4% Answer: Motion to quash a search warrant or to suppress evidence (Section 14 of Rule 126) - A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court. In a case,Atty. Oliver Lozano defended an alleged drug lord by filing a motion to suppress the State’s evidence, a shipload of drugs. Atty. Lozano argued that there was no evidence linking the boatload of drugs to the accused, that the ship was registered in another person’s name, etc. The judge agreed with this contention and dismissed the complaint without a full-blown trial.

As for Motions for judicial determination of probable cause, the case of “People of the Philippines vs. Castillo et al”, G.R. No.1188, June 19, 2009 gives an instruction on this point. There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant. Corollary to the principle that a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so, the judge in turn should not override the public prosecutor’s determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient. It must be stressed that in our criminal justice system, the public prosecutor exercises a wide latitude of discretion in determining whether a criminal case should be filed in court, and that courts must respect the exercise of such discretion when the information filed against the person charged is valid on its face, and that no manifest error or grave abuse of discretion can be imputed to the public prosecutor. Summing up, a judicial determination of probable cause is concerned with the matter of whether the judge should issue a warrant of arrest against the accused or not. As to whether there is probable cause for the filing of the case in court, that is the responsibility, not of the judge, but of the prosecutor’s office. Defense lawyers should now refrain from filing a “motion for judicial determination of probable cause” for three reasons: The judge is already duty-bound to determine whether there is probable cause for the issuance of a warrant of arrest. He studies the records of the preliminary investigation (complaint, counter-affidavit, affidavit of witnesses, documentary evidences, etc. He then decides whether to issue a warrant of arrest or not. There is therefore no need for a defense lawyer to file a “motion for judicial determination of probable cause”. By filing such a motion, the defense lawyer disrespects or even insults the judge.

As discussed above, the defense lawyer’s intention for filing this motion is actually to shortcut the proceedings by asking the judge to rule whether the accused should be held for trial or not, even without a full-blown trial. As the Supreme Court ruled in this case, “whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon”. (In one controversial case extensively covered by the media, the judge has already issued a warrant of arrest and the accused has posted bail. But the judge re-set the arraignment because the defense lawyer has filed a “motion for judicial determination of probable cause”. I wonder if the defense lawyer and the judge are aware of the Supreme Court ruling in the “People of the Philippines vs. Castillo et al” case. If the defense lawyer thinks that the information filed against the accused is not valid on its face and that there was manifst error or grave abuse of discretion on the part of the public prosecutor, the proper remedy is to file a motion for re-investigation, not a “motion for judicial determination of probable cause”. X Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the RTC judge issued the 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 the 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? (4%) Answer: No. The RTC erred in denying the motion. Under the law, voluntary appearance is one of the modes of acquiring jurisdiction over the … reinvestigation and for the recall of the warrants of arrest is equivalent to voluntary appearance. Hence, when the accused filed their motion, the court acquired jurisdiction over their person. Basically, it just says the court acquires jurisdiction over the person of the accused when he/she submits motions, etc even if he’s not detained. But the exception is the petition for admission to bail - the accused has to be held in detention in such case. The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the court’s jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. XI

Arturo lent P1 Million to his friend Robert on the condition that Robert execute a promissory note for the loan and a real estate mortgage over his property located in Tagaytay City. Robert complied. In his promissory note dated September 20, 2006, Robert undertook to pay the loan within a year from its date at 12% per annum interest. In June 2007, Arturo requested Robert to pay ahead of time but the latter refused and insisted on the agreement. Arturo issued a demand letter and when Robert did not comply, Arturo filed an action to foreclose the mortgage. Robert moved to dismiss the complaint for lack of cause of action as the debt was not yet due. The resolution of the motion to dismiss was delayed because of the retirement of the judge. On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an amended complaint alleging that Robert’s debt had in the meantime become due but that Robert still refused to pay. Should the amended complaint be allowed considering that no answer has been filed? (3%) Answer: No. In the instant case, the original complaint was for the FORECLOSURE of the real estate mortgage executed in favor of ARTURO. Arturo prayed for the foreclosure on the mortage constituted by Roberto as security for the payment of his loan to Arturo which matures on September 2007, months before the Foreclosure action was instituted by Arturo. Realizing his mistake now Arturo amends his comlaint and runs after the mortgaged properties under the theory of matured loans only now becoming due and demanda Parenthetically, the amendments sought altered the cause of action of the original complaint. This cannot be done. Robert’s contentions are anchored on the following: I Section 2, Rule 1 0 of the Rules of Court gives a party a right to amend his pleading once as a matter of right. II The mere filing of a motion to dismiss does not deprive plaintiffs of their right to amend as a matter of course. Sections 1 and 2, Rule 10 of the Revised Rules of Court provide: Section 1. Amendments in general. — Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. ‘

Section 2. When amendments allowed as a matter of right —A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within ten (10) days after it is served. Taking into consideration these two provisions, we have ruled that amendments of pleadings may be resorted to subject to the condition that the amendments sought do not alter the cause of action of the original complaint (Alger Electric v. Court of Appeals, 135 SCRA 37) or are not inconsistent with the allegations in the original complaint, but are obviously intended to clarify the intrinsic ambiguity in them with respect to the time of the accrual of the movant’s cause of action Guino v. Ver, 16 SCRA 638). Would your answer be different had Arturo filed instead a supplemental complaint stating that the debt became due after the filing of the original complaint? (2%) Answer: Yes. The supplemental complaint alleged petitioner’s subsequent acts in asserting its rights as such purported obligee and mortgagor. Thus, the acts complained of under the supplemental complaint, namely: that ARTURO makes a second demand on the amounts owing and due from Roberto are acts calculated to exercise Arturo’s rights, validly or invalidly. The cause of action raised in the supplemental complaint did not substantially change the case theory or that the theory of the case altered the causes of action contained in the original complaint. If at all, the new allegations in the supplemental complaint sought remedies only for subsequent acts perpetrated by Roberto, his not filing of an answer to the original complaint, to protect his rights or in furtherance of his interests. XII After receiving the adverse decision rendered against his client, the defendant, Atty. Sikat duly filed a notice of appeal. For his part, the plaintiff timely filed a motion for partial new trial to seek an increase in the monetary damages awarded. The RTC instead rendered an amended decision further reducing the monetary awards. Is it necessary for Atty. Sikat to file a second notice of appeal after receiving the amended decision? (3%) Answer: “Fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

The final order already finally disposed of the issues involved in the case. Special Civil Action for Certiorari against the judge is the proper remedy of Atty Sikat’s client in this case. XIII An heir/oppositor in a probate proceeding filed a motion to remove the administrator on the grounds of neglect of duties as administrator and absence from the country. On his part the heir/oppositor served written interrogatories to the administrator preparatory to presenting the latter as a witness. The administrator objected, insisting that the modes of discovery apply only to ordinary civil actions, not special proceedings. Rule on the matter. (4%) Answer: Section 2 of Rule 73 Rules of Court provides that “in the absence of special provisions the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.” When, therefore, the rules on ordinary civil actions are not inconsistent with or when they may serve to supplement the provisions relating to special proceedings, the former are applicable to the latter. Thus rules regarding preparation, filing and service of applications, motions and otherpapers are the same as in civil actions made applicable to that in special proceedings. The provisons regarding omnibus motion, subpoena, computation of time, motion for new trial, discovery, trial before commissioners also apply in special proceedings. XIV On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of P3 Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for him to testify on the conversations during their first and second meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (4%) Answer: The usual practice that subpoenas are issued perfunctorily ex parte to compel production of testimonial and/or documentary evidence germane to the allegations made in a pleading (so long as they are not “privileged”). Nobody is sent to jail for procuring subpoenas in aid of prosecuting or defending cases. The paramount interest is the search for the truth. It is up to the court to determine the weight (or lack of it) of the evidence produced thereby. Exceptions to the privilege are:

1.When a lawyer is accused by the client and he needs to reveal information to defend himself 2.When the client discloses the intention to commit a crime or unlawful act (Future Crime). For attorney-client privilege to apply, however,the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents. For attorney-client privilege to apply, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed by Sansaet in the Tanodbayan. Crime of falsification had not yet been committed, hence, they are not covered by the privilege. It could also not have been covered by the privilege because Sansaet was himself a conspirator in the commission of the crime of falsification. In order that a communication between a lawyer and his client be privileged, it must be for a lawful purpose or in the furtherance of a lawful end. On the contrary, Sansaet, as lawyer, may be bound to disclose the info at once in the interest of justice. (People v. Sandiganbayan (1997))

XV Half-brothers Roscoe and Salvio inherited from their father a vast tract of unregistered land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and transferring the tax declaration thereon in his name. Roscoe sold the northern half to Bono, Salvio’s cousin. Upon learning of the sale, Salvio asked Roscoe to convey the southern half to him. Roscoe refused as he even sold one-third of the southern half along the West to Carlo. Thereupon, Salvio filed an action for the reconveyance of the southern half against Roscoe only. Carlo was not impleaded. After filing his answer, Roscoe sold the middle third of the southern half to Nina. Salvio did not amend the complaint to implead Nina. After trial, the court rendered judgment ordering Roscoe to reconvey the entire southern half to Salvio. The judgment became final and executory. A writ of execution having

been issued, the Sheriff required Roscoe, Carlo and Nina to vacate the southern half and yield possession thereof to Salvio as the prevailing party. Carlo and Nina refused, contending that they are not bound by the judgment as they are not parties to the case. Is the contention tenable? Explain fully. (4%) Answer: Since they were not impleaded as parties and given the opportunity to participate in the Reconveyance case, the final judgment in said case cannot bind the three vendees. The effect of the said judgment cannot be extended to the three vendees by simply issuing an alias writ of execution against them. No man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a writ of execution can be issued only against a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution issued pursuant thereto. EMERITA MUÑOZ,Petitioner,- versus -SPOUSES SAMUEL GO CHAN and AIDA C. CHAN, and THE BANK OF THE PHILIPPINE ISLANDS,Respondents.G.R. No. 142676 G.R. No. 146718 XVI The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible as evidence of guilt? (4%) Answer: No. Normally a confession is only admissible against its maker, unless the defense consents. XVII Ben sold a parcel of land to Del with right to repurchase within one (1) year. Ben remained in possession of the property. When Ben failed to repurchase the same, title was consolidated in favor of Del. Despite demand, Ben refused to vacate the land, constraining Del to file a complaint for unlawful detainer. In his defense, Ben averred that the case should be dismissed because Del had never been in possession of the property. Is Ben correct? (4%) Answer:

Ben occupied the property not in the concept of an owner for his stay was merely tolerated by Del. In the case of Garcia vs. Court of Appeals (G.R. No. 133140, August 10, 1999), the court had occasion to explain the difference of Possession from Ownerhsip and subsequently detailed out the two different kinds of Possession. Possession and ownership are distinct legal concepts. Ownership exists when a thing pertaining to one person is completely subjected to his will in a manner not prohibited by law and consistent with the rights of others. Ownership confers certain rights to the owner, one of which is the right to dispose of the thing by way of sale. Literally, to possess means to actually and physically occupy a thing with or without right. Possession may be had in one of two ways: possession in the concept of an owner and possession of a holder. A possessor in the concept of an owner may be the owner himself or one who claims to be so. On the other hand, one who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong. Ben acknowledges Del’s superior right over the property. XVIII Domenico and Gen lived without benefit of marriage for twenty years, during which time they purchased properties together. After Domenico died without a will, Gen filed a petition for letters of administration. Domenico’s siblings opposed the same on the ground that Gen has no legal personality. Decide. (4%) Answer: In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation like through death, therefore the surviving party can be appointed as administrator. XIX After Alma had started serving her sentence for violation of Batas Pambansa Blg. 22 (BP 22), she filed a petition for writ of habeas corpus, citing Vaca vs. CA where the sentence of imprisonment of a party found guilty of violation of BP 22 was reduced to a fine equal to double the amount of the check involved. She prayed that her sentence be similarly modified and that she be immediately released from detention. In the

alternative, she prayed that pending determination on whether the Vaca ruling applies to her, she be allowed to post bail pursuant to Rule 102, Sec.14, which provides that if a person is lawfully imprisoned or restrained on a charge of having committed an offense not punishable by death, he may be admitted to bail in the discretion of the court. Accordingly, the trial court allowed Alma to post bail and then ordered her release. In your opinion, is the order of the trial court correct - Under Rule 102? (2%) Answer: Yes. The trial court is correct. The Rules of Criminal Procedure provides that, all persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. In the case at bar, violation of BP 22 is cognizable by the MTC where bail may be availed as a matter of right before or after conviction. Hence, the Court is correct when it allowed Alma to post bail even after she started to serve her sentence. Under the Rules of Criminal Procedure? (2%) Answer: The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty.[30] It was devised as a speedy and effectual remedy to relieve persons from unlawful restraint; or, more specifically, to obtain immediate relief for those who may have been illegally confined or imprisoned without sufficient cause and thus deliver them from unlawful custody.[31] It is therefore a writ of inquiry intended to test the circumstances under which a person is detained.[32] The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.[33] However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess. However, in this case, we find that there was no violation of the constitutional rights of the accused and a resultant deprivation of liberty or due process of law. “any illegality attendant during the arrest is deemed cured when the accused voluntarily submitted themselves to the jurisdiction of the court by entering their plea.” XX

A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the five (5) victims filed an action for damages against SPS. Plaintiffs’ counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. (4%) Answer: The usual praxis that subpoenas are issued perfunctorily ex parte to compel production of testimonial and/or documentary evidence germane to the allegations made in a pleading (so long as they are not “privileged”). Nobody is sent to jail for procuring subpoenas in aid of prosecuting or defending cases. The paramount interest is the search for the truth. It is up to the court to determine the weight (or lack of it) of the evidence produced thereby. Exceptions to the privilege are: 1.When a lawyer is accused by the client and he needs to reveal information to defend himself 2.When the client discloses the intention to commit a crime or unlawful act (Future Crime). For attorney-client privilege to apply, however,the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents. XXI Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that under Rule 65 of the Rules of Civil Procedure. (4%) Give at least three instances where the Court of Appeals may act as a trial court. (3%) Answer:

In the case Delia R. Nerves vs CSC, Petition filed by Nerves with the Court of Appeals substantially complied with Revised Administrative Circular 1-95. That it was erroneously labelled as a petition for certiorari under Rule 65 of the Rules of Court is only a minor procedural lapse, not fatal to the appeal. Although it is stated in par. 1 of her petition it is one “for certiorari filed pursuant to Article IX-A, Section 7 of the Constitution of the Philippines,” and, additionally, “under Rule 65 of the Rules of Court.” The same par. 1 is explained by par. 2 which states that, “But per Supreme Court Revised Administrative Circular No. 1-95 (Revised Circular No. 1-91) petitioner is filing the instant petition with this Honorable Court (Court of Appeals) instead of the Supreme Court.” It must be emphasized that as long as there is substantial compliance with Revised Administrative Circular No. 1-95, the petition should be given due course. Moreover, the circular must be so interpreted and applied as to attain, not defeat, the ultimate purpose of all rules of procedure — which is to achieve substantial justice as expeditiously as possible. Therefore if what Delia had in mind is the action under section 7 Article IX-A of the Constitution, her court is the SC not the CA, a marked difference among other things.

Group Members:

Angelito Gatillo Alinogen Cuizon Alain Paul Sumagang Roland Alivio Celso Afable, Jr. Rolando Cañete