2017 Remedial Law Mock Bar Suggested Answers by Prof. Manuel Riguera

JURISTS BAR REVIEW CENTER™ SUGGESTED ANSWERS TO 2017 REMEDIAL LAW MOCK BAR EXAMINATION I No, RTC Branch 276 did not act correctly in dismissing the case on the ground of lack of subject-matter jurisdiction. In a case involving similar facts, the Supreme Court held that the proper course of action for a non-special commercial court was not to dismiss the case on the ground of lack of subjectmatter jurisdiction but simply to refer the case to the executive judge for re-docketing as a commercial case. The reason is that a Special Commercial Court’s exercise of its limited jurisdiction over corporate cases is only a matter of procedure and has nothing to do with the question of jurisdiction. Hence Branch 276 should not have dismissed the case but simply referred it to the executive judge for re-docketing as a commercial case. [Gonzalez v. GJH Land, Inc., 10 November 2015, e.b., Perlas-Bernabe, J.).

II Yes, the motion to dismiss on the ground of res judicata should be granted. a) The ground that the two cases involve different causes of action is without merit. Under the Rules of Civil Procedure, a cause of action is the act or omission by which a party violates the right of another. Here the two cases involve the same act by which RGC violated the rights of CCA, that is, the breach by RGC of the Management and Royalty Agreement. b) The ground that the parties had stipulated in the compromise agreement that the same is without prejudice to RGC’s cause of action under the Management & Royalty Agreement is without merit. The Supreme Court has held that a stipulation waiving the effects of res judicata and of splitting a cause of action is void for being against public policy. Here the provision in the compromise agreement which states that the same is without prejudice to RGC’s cause of action under the Management & Royalty Agreement in effect allows the plaintiff CCA to split its cause of action. Hence the stipulation is against public policy and is thus void. (Riviera Golf Club, Inc. v. CCA Holdings, B.V., 17 June 2015, Brion, J.) Hence the motion to dismiss on the ground of res judicata should be granted since the two cases involve the same cause of action and the stipulation against the splitting of cause of action is void. Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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III I would rule on the motion to dismiss by granting it. (a) The ground of failure to state a cause of action on the ground that Atty. Birit is not the real party in interest is not meritorious. Under the Rules of Civil Procedure, an action may be prosecuted by a representative in which case the beneficiary is deemed to be the real party in interest. Here the action was brought by Atty. Birit, who is the representative of Celso as he was authorized by the latter through a SPA. Hence the real party in interest is Celso, not Atty. Birit, and thus ground that the complaint fails to state a cause of action is without merit. (b) The ground of improper venue however is meritorious. In a case involving similar facts, the Supreme Court held that venue was improperly laid since it is the residence of the plaintiff and not of his attorney-in-fact which should be taken into account. Hence there was improper venue since this is a personal action and none of the parties resided in Quezon City. Thus the motion to dismiss should be granted on the ground of improper venue. (Ang v Ang, 22 August 2012).

IV As counsel for Petro Bank, I would raise the following grounds to oppose Jacob’s motion for the issuance of subpoena. First I would raise the ground that under the Rules of Civil Procedure, every written motion which the court may not act upon without prejudicing the rights of the adverse party shall be set for hearing by the applicant. Here the motion for the issuance of a subpoena would prejudice the rights of the adverse party Petro Bank since its officers would be compelled to testify in support of Jacob’s case. Hence the motion should not be ex parte but should be set for hearing. Second, I would raise the ground that under the Rules of Civil Procedure, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court. The Supreme Court has held that if the party not served with written interrogatories is a corporation, its officers are the ones who cannot be so compelled to give testimony. Here Petro Bank was not served with written interrogatories by Jacob. Hence Petro Bank’s officers cannot be compelled by Jacob to give testimony in open court. [Sps Afulugencia v Metro Bank, 5 Feb 2014]

Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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V (a) Yes, David’s objection that the deposition may not be used to prove the truth of the matter asserted therein may be sustained. The Supreme Court has held that a deposition may not be used to prove the truth of the matter asserted therein since the deposition would be hearsay, the adverse party having been deprived of the right to cross-examine the deponent during the trial. Hence David’s objection should be sustained. [Republic v. Sandiganbayan, 16 December 2011] [Note: Since the second paragraph is a “narrow ruling,” that is, the facts of the problem are virtually similar to the narrow ruling, an application paragraph is no longer needed] (b) No, David’s objection that the deposition may not be used to prove the truth of the matter asserted therein should not be sustained. Under the Rules of Civil Procedure, a deposition may be used to prove the truth of the matter asserted therein if the deponent resides more than 100 kilometers from the place of trial. Here Weng resides in Davao City which is more than 100 kilometers from the place of trial in Manila. Hence the deposition may be used to prove the truth of the matter asserted therein and thus David’s objection should not be sustained. [S4(c) R23]

VI Dina’s motion to dismiss, invoking the two-dismissal rule, is denied. Under the Rules on Civil Procedure, the two-dismissal rule will not apply if the second dismissal is not by notice of dismissal. Here the second dismissal by Pam was not by notice of dismissal but was by a motion for dismissal. Hence the two-dismissal rule will not apply and thus Dina’s motion to dismiss is denied.

VII No, China Bank’s objection that Yap cannot be compelled to testify since his judicial affidavit was not presented should not be sustained. In a case involving similar facts, the Supreme Court held that the provisions of the Judicial Affidavit Rule do not apply to an adverse-party witness and that it is enough that the adverse party witness be served with written interrogatories in order that he may be compelled to testify.

Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Hence China Bank’s objection should not be sustained. [Ng Meng Tam v. China Banking Corp., 5 August 2015] VIII (a) The final judgment rule is the rule that limits appealability or reviewability to a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the Rules of Court to be appealable. [S1 R41] The exceptions to the final judgment rule are the following: (DICS) 1. STATUTORY EXCEPTION. Exceptions expressly provided for in the Rules of Court like appeal from a several or separate judgment while the main case is pending [S1(f) R41]. Another example is appeal authorized under Section 1 of Rule 109. 2. DISCRETIONARY EXCEPTION. This exception involves the Supreme Court’s plenary jurisdiction to accept or refuse invocations of its appellate jurisdiction. 3. COLLATERAL ORDER EXCEPTION. Where the decision or order determines a collateral matter to the rights underlying the action and which is too important to be denied review. This exception is a narrow one and should be permitted only if there is a showing that there could be no effective review of the decision or order after a final judgment is entered. An example is an appeal from an indirect contempt conviction. [Id.] 4. IMMEDIATE HARM EXCEPTION. This rule allows a review in cases where some immediate harm might occur to the appellant if review is postponed of an act or conduct and the resulting harm would be irremediable. [BERSAMIN, APPEAL & REVIEW IN THE PHILIPPINES 120-121]. (b) The dual function served by the appellate course is as follows: 1. THE REVIEW FOR CORRECTNESS FUNCTION. This is the function of the appellate court to review a case on appeal to assure that substantial justice has been done and is concerned with the justice of the particular case and with the doctrine of res judicata. 2. INSTITUTIONAL FUNCTION. This is the function of the appellate court to contribute to the progressive development of the law for general application to the judicial system and is concerned with the doctrine of stare decisis, which refers to the precedential value which assists in deciding future similar cases. [BERSAMIN, APPEAL & REVIEW IN THE PHILIPPINES 355]

IX (a) The action or proceeding I would file in behalf of PHHA would be an action for declaratory relief. Under the Rules of Civil Procedure, any person whose rights are affected by an ordinance, may before breach or violation thereof, bring an action for declaratory relief to determine any question of validity arising thereunder. Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Here there is a question of validity arising under the ordinance, that is, whether it would violate PHHA’s constitutional right against taking of private property without just compensation. Hence the action I would file in behalf of PHHA would be an action for declaratory relief. I would file the action with the Regional Trial Court since an action for declaratory relief is incapable of pecuniary estimation and thus falls within the jurisdiction of the RTC. [Note: Since this is a secondary issue, a one-paragraph format may be used to save time] (b) Assuming that the ordinance is already being enforced, the action I would file in behalf of PHHA would be an action for injunction. Under the Law on Civil Procedure, an action for injunction is available to restrain or prevent another person from doing an act in violation of the plaintiff’s rights. Here the city government is enforcing the ordinance by allowing outsiders to pass through the main road of Posh Homes in violation of its constitutional right against the taking of private property without just compensation. Declaratory relief is no longer available since there has already been a breach or violation of PHHA’s rights and thus a cause of action has arisen. Hence an action for injunction is available to PHHA to restrain the city government from taking the main road of Posh Homes by establishing a right of way over it. I would file the action with the RTC since an action for injunction is incapable of pecuniary estimation. X The legal step I would take in behalf of Daryl in order to ensure a favorable outcome for him would be to file an answer raising the affirmative defense of lack of subject matter jurisdiction. The Supreme Court has held that in a forcible entry case, the allegation that the unlawful deprivation was due to force, intimidation, strategy, threats, or stealth is jurisdictional and that the lack of such allegation would mean that the MTC would not acquire jurisdiction over the complaint for forcible entry. Here there was no allegation that the unlawful deprivation was due to force, intimidation, strategy, threats, or stealth. Hence the Metropolitan Trial Court did not acquire jurisdiction over the case. Thus an answer with the affirmative defense of lack of subject matter jurisdiction would assure a favorable outcome for Daryl, that is, the dismissal of the case for lack of jurisdiction. I would not file a motion to dismiss since that would not assure a favorable outcome. The Supreme Court has held that a motion to dismiss is not a responsive pleading and that thus the plaintiff may amend his complaint as a matter of right. If I had filed a motion to dismiss, Paul would just file an amended complaint supplying the missing averment on how the unlawful deprivation was done and thus the MTC would have jurisdiction over the forcible entry case. Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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XI (a) The MeTC should deny the motion to dismiss on the ground of lack of barangay conciliation. The opposition that the motion to dismiss is prohibited is without merit. Under the Rule on Ejectment, a motion to dismiss on the ground of lack of barangay conciliation is not prohibited. Nevertheless the motion to dismiss should still be denied. Under the Local Government Code, the parties may go directly to court without the need of prior barangay conciliation if the action is coupled with provisional remedies like preliminary injunction. (b) If I were the lawyer for Owner, the legal step that I would take in his behalf would be to file a motion for rendition of judgment. Under the Rule on Ejectment, should the defendant fail to answer within the reglementary period, the court on motion of the plaintiff shall render judgment as may be warranted by the facts alleged in the complaint. (c) If I were the lawyer for Owner, the legal step that I would take in his behalf would be to file a motion for execution of judgment. Under the Rule on Ejectment, a motion for reconsideration of a judgment is a prohibited motion. Here the motion for reconsideration filed by Squatter is a prohibited motion which did not interrupt the running of the period to appeal. Hence the judgment in favor of Owner became final and executory. Thus I may file a motion for execution of judgment in behalf of Owner.

XII No, the RTC did not act correctly in dismissing the petition for habeas corpus. a) The ground of the President’s suspension of the privilege of the writ of habeas corpus is not proper. Under the Constitution, what may be suspended by the President is the privilege of the writ of habeas corpus, not the issuance of the writ itself. Here the RTC judge forthwith dismissed the petition without determining from the petition if the writ of habeas corpus should issue. Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Hence the RTC did not act correctly in dismissing the petition. b) The ground that the petition should have been filed with the RTC of Pagadian City where Jose was detained is improper. The Supreme Court has held that the venue of a petition for habeas corpus is with any RTC within the judicial region in which the writ is sought to be enforced and thus the petition may be filed with any such RTC. Here the RTC of Zamboanga City is within the 9th Judicial Region where the writ is sought to be enforced. Hence the venue of the petition for habeas corpus was properly laid in the RTC of Zamboanga City and thus the petition for habeas corpus may be filed therein.

XIII No, the Respondent’s argument that the requisites of a search warrant must be complied with is not meritorious. In a case involving similar facts, the Supreme Court held that the requisites for the issuance of a search warrant under the Constitution do not apply to the production order under the Amparo Rule. The reason is that the constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people. Hence the Respondent’s argument is without merit. [Secretary of National Defense v. Manalo, 7 October 2008, Puno, C.J.] XIV Yes, the motion to quash on the ground of prescription should be granted. The Supreme Court has held that in a criminal case for prosecution of an ordinance, the prescriptive period of the offense is interrupted only by the filing of the case in court and that the information should be quashed if the offense has already prescribed. Here the criminal case was filed with the MTC only on 2 October 2003 which is beyond the prescriptive period of two months from the commission of the offense on 17 May 2003. Hence the crime had already been extinguished by prescription and thus the motion to quash should be granted. [Jadewell Parking Systems Corp. v. Lidua, G.R. No. 169588, 7 October 2013] XV No, the appeal will not place Gildo in double jeopardy. Under the Rules on Criminal Procedure, a motion to dismiss on the ground of insufficiency of evidence or a demurrer to evidence may be filed only after the prosecution has rested its case. The Supreme Court has also held that an order which violates the prosecution’s right to due process is void and cannot be the basis of a first jeopardy.

Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Here the Sandiganbayan granted the motion to dismiss on the ground of insufficiency of evidence even before the prosecution had presented its evidence thus violating the prosecution’s right to due process. Hence the dismissal order was void and the appeal from it would not place Gildo in double jeopardy. (People v. Dumlao, 2 March 2009).

XVI Analogical Reasoning No, the MeTC did not act correctly in granting the motion to take oral deposition. In a case involving similar facts, the Supreme Court held that pursuant to the Rules of Criminal Procedure, the deposition of a prosecution witness may be taken only before the court where the case is pending and not in a foreign country. Hence the MeTC did not act correctly in granting the motion to take oral deposition. [Go v. People, 18 July 2012] Inductive-Deductive Reasoning No, the MeTC did not act correctly in granting the motion to take oral deposition. Under the Rules of Criminal Procedure, the deposition of a prosecution witness can be made only before the court where the case is pending. Here the deposition was sought to be taken before the Philippine consular official in Cambodia and not before the court where the case was pending. Hence the MeTC did not act correctly in granting the motion to take oral deposition. [Go v. People, 18 July 2012] XVII (a) Analogical Format No, the drug test result was not admissible in evidence against Probinsyano. In a case involving similar facts, the Supreme Court held that the drug test result violated the accused’s right against self-incrimination since it was forcibly taken from him and was thus inadmissible in evidence against him. The reason is that non-testimonial evidence is still covered by the right against self-incrimination where the evidence obtained, which was a drugtest result from a urine sample, was not material to the principal cause of the arrest, which was extortion. Hence the drug test result was not admissible in evidence. [Dela Cruz v. People, 23 July 2014]. Broad Ruling Format No, the drug test result was not admissible in evidence against Probinsyano.

Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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The Supreme Court has held that a person’s right to self-incrimination is violated if the non-testimonial evidence obtained from him is not material to the principal cause of his arrest and thus such evidence is inadmissible against him. Here the non-testimonial evidence obtained from Probinsyano, that is the drug test result, was not material to the principal cause of his arrest which was for extortion. Hence the drug test result was obtained from Probinsyano in violation of his right against self-incrimination and thus inadmissible in evidence against him.

(b) My opinion would be that Probinsyano still has a remedy from his conviction in the form of a petition for writ of habeas corpus. The Supreme Court has held that a petition for writ of habeas corpus is available as a remedy to set aside a conviction which resulted from the violation of the accused’s constitutional right. [Olaguer v. Military Commission No. 34, 22 May 1987] Here the admission of the drug-test result violated Probinsyano’s constitutional right against self-incrimination and the conviction resulted from the admission of the drug-test result. Hence the remedy to set aside Probinsyano’s conviction is a petition for writ of habeas corpus. XVIII (a) No, the sales invoices are not admissible in evidence over an objection that they are hearsay. Under the Rules on Evidence, hearsay is not admissible. Hearsay is an out-of-court statement offered to prove its truth. Here the sales invoices are hearsay since they involve the out-of-court statements of the clerks who prepared the entries therein and these were offered to prove the truth of the statement, that is, the outstanding obligations of Subas Corporation to Acme Corporation. Hence the sales invoices are not admissible over an objection that they are hearsay. (b) Yes, the sales invoices would be admissible in evidence over a hearsay objection. Under the Rules on Evidence, a business entry is excepted from the hearsay rule and thus admissible in evidence if there is a showing by the proponent that the entrant is unable to testify. Here there was a showing by the proponent Acme Corporation that the clerks who made the entries in the sales invoices, which are business entries, could no longer be found despite diligent inquiry and are thus unable to testify.

Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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Hence the sales invoices are excepted from the hearsay rule as business entries. Thus the sales invoices are admissible in evidence over a hearsay objection.

XIX No, the judgment of the RTC was not correct. a) The ground that Boris did not present the MCR in court to identify the certification is without merit. Under the Law on Evidence, a public document does not require authentication and identification by a witness and it is prima facie evidence of the facts stated therein. Here what was presented was a certification issued by the MCR which is a public document since it was issued by a public officer in the performance of a duty. Hence the certification does not require authentication and identification and may be relied upon since it is prima facie evidence of the facts stated therein. [S19(a) & S23 R132] b) The ground that the certification is not adequate proof that the marriage license does not exist since it did not state that diligent efforts were not exerted and did not categorically state that the marriage license does not exist is without merit. In a case involving similar facts, the Supreme Court held that it is not required that the certification categorically state that the license does not exist in the said office despite diligent search because of the presumption of regularity in the performance of official functions. The Court also held that the marriage certificate presented by respondent does not prove the validity of the marriage since it did not contain any entry regarding a marriage license. [Kho v. Republic, 1 June 2016, Peralta, J.]. XX Yes, if I were the prosecutor, I may successfully move to strike out Balimbing’s answer. Under the Rules on Evidence, the adverse party’s witness may not be properly impeached by evidence of particular wrongful acts. The court may also order the striking out of answers which are improper. Here the testimony or evidence of Balimbing related to particular wrongful acts of lying. Hence the answer of Balimbing was improper impeachment and may be stricken off. -oOo-

Suggested Answers to Jurists Mock Bar Examinations in Remedial Law. All rights reserved 2017 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination is strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court.

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