Jurists 2016 RemLaw Last Min by Comm. Manuel R. Riguera (1).pdf

JURISTS BAR REVIEW CENTER™ 2016 Last Minute Bar Tips in Remedial Law Prof. Manuel R. Riguera CIVIL PROCEDURE Q Petitioners’s father was granted a free patent over land. The land was sold within the prohibitory 5-year period by the father to Respondent. Petitioners filed with the RTC of Davao Oriental an action for repurchase against Respondent based on Section 119 of the Public Land Act. Respondent filed a motion to dismiss on ground of lack of jurisdiction alleging that the assessed value of the land does not exceed ₱20,000. Rule on the motion. A Motion to dismiss denied. The complaint to redeem a land subject of a free patent is a civil action incapable of pecuniary estimation. At first blush, it appears that the action filed by petitioners involves title to or possession of the lots he sold to respondents. Since the total selling price is less than PhP 20,000, then the MTC, not the RTC, has jurisdiction over the case. This proposition is incorrect for the re-acquisition of the lots by the petitioners is but incidental to and an offshoot of the exercise of the right by the latter to redeem said lots pursuant to Sec. 119 of CA 141. The reconveyance of the title to petitioners is solely dependent on the exercise of such right to repurchase the lots in question and is not the principal or main relief or remedy sought. Thus, the action of petitioners is, in reality, incapable of pecuniary estimation, and the reconveyance of the lot is merely the outcome of the performance of the obligation to return the property conformably to the express provision of CA 141. (Heirs of Bautista v. Lindo, 10 March 2014) (Note: Applying the ultimate relief test, it is believed that the action to repurchase is a real action since the ultimate objective is to obtain title or possession over the land). Q Does the RTC have jurisdiction over an action to quiet title over a public land within the Baguio Townsite Reservation? A No. The trial court had no jurisdiction to determine who among the parties has a better right over the disputed property which is admittedly still part of the public domain. The Public Land Act lodges the power of executive control, administration, disposition and alienation of public lands with the Director of Lands subject to the control of the Secretary of Agriculture. (Heirs of Pocdo v. Avila, 19 March 2014). Q O entrusted the title over her lot to his broker X so as to subdivide the lot. X subdivided the lot into several titles. X forged the signature of O in a deed of sale and sold one of the lots covered by a title to B. B then sold the lot to C. A new title was issued in the name of C. O filed with the RTC an action for cancellation of the title of C. The complaint alleged that the land was bought by C for P15,000. Judgment was rendered in favor of O. On appeal, C moved to set aside the judgment on the ground that the same was a real action and since the value of the land was only P15,000, then the RTC did not have jurisdiction. May the RTC’s judgment be set aside for lack of jurisdiction? A Yes. An action for cancellation of TCT is a real action where the court has two determine which of 2 titles over the same lot is valid. In such a case, jurisdiction depends upon assessed value. Since it can be inferred that the assessed value of the lot was not more than P20,000, the RTC does not have jurisdiction. Lack of jurisdiction may be raised at any stage even on appeal. (Padlan v. Dinglasan, 20 March 2013, Peralta, J.). Q Petitioners filed an action for recovery of possession of land against the Respondents before the RTC of Baguio City. After trial, judgment was rendered in favour of the Petitioners. On appeal, the Respondents raised for the first time the issue of lack of jurisdiction contending that the assessed

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All rights reserved 2016 by Jurists Review Center Inc. For exclusive use of Jurists Bar reviewees. Unauthorized copying, dissemination, and storage strictly prohibited. Primarily a survey of recent cases up to 31 May 2015, with some selected after said date. The author has edited/modified the facts of some cases for clarity and brevity without detracting from the holdings/ratio decidendi of the cases.

value of the subject realty was not averred in the complaint. May the CA dismiss the complaint for lack of jurisdiction? A Yes. Based on Sections 19 and 33 of B.P. Blg. 129, it is clear that in an action for recovery of possession, the assessed value of the property sought to be recovered determines the court's jurisdiction. In this case, for the RTC to exercise jurisdiction, the assessed value of the subject property must exceed P20,000.00. Since petitioners failed to allege in their Complaint the assessed value of the subject property, the CA correctly dismissed the Complaint as petitioners failed to establish that the RTC had jurisdiction over it. In fact, since the assessed value of the property was not alleged, it cannot be determined which trial court had original and exclusive jurisdiction over the case. The fact that lack of jurisdiction was raised for the first time on appeal is of no moment. The defense of lack of jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. (Heirs of Julao v. Sps. De Jesus, 29 September 2014). Q The CA dismissed, without prejudice, the complaint for recovery of possession and damages that the petitioner filed before the RTC of Kabankalan City, Negros Oriental, because the complaint failed to allege the assessed value of the disputed property in the case. Attached to the complaint however was a copy of a Declaration of Real Property indicating that the assessed value of the disputed property is P20,790.00. Was the CA’s dismissal proper? A No. The factual allegations in a complaint should be considered in tandem with the statements and inscriptions on the documents attached to it as annexes or integral parts. The RTC should have considered the facts contained in the Declaration of Real Property attached to the complaint in determining whether the RTC had jurisdiction over the petitioner’s case. A mere reference to the attached document could facially resolve the question on jurisdiction and would have rendered lengthy litigation on this point unnecessary. (Tumpag v. Tumpag, 29 September 2014). Q Kemper Insurance Company, an American company, sued before the RTC Cosco Philippines Shipping for damages to goods delivered by Cosco. Judgment was rendered in favor of Kemper. On appeal, Cosco raised for the first time that Atty. Lat, who had signed the verification and certification against forum shopping in behalf of Kemper Insurance, had not been authorized by a board resolution to file the complaint in behalf of Kemper and to sign the verification and CFS. May the judgment of the RTC be set aside? A Yes. The failure of Atty. Lat to show that he was authorized to file the complaint in behalf of Kemper meant that the RTC did not acquire jurisdiction over the person of the plaintiff. Hence the court did not acquire jurisdiction over the case. Lack of jurisdiction over the case may be raised at any stage of the case. (Cosco Phils. Shipping v. Kemper Insurance Company, 23 April 2012, Peralta, J.) Q Alfredo Reyes borrowed P300,000 from Danilo Chan, a resident of Makati, Metro Manila, for which he executed a promissory note dated 14 June 2006. In said promissory note, Reyes agreed to pay on or before 15 June 2008 the amount of P300,000 with interest thereon at 21% per annum. Reyes defaulted. Hence Chan filed a complaint for collection against Reyes with the RTC of Makati. The complaint recites in detail the terms of the promissory note and ends with this prayer: “WHEREFORE, it is respectfully prayed that, after due trial, judgment be rendered against Alfredo Reyes ordering him to pay plaintiff Danilo Chan the principal sum of P426,000.” The counsel for Reyes moved to dismiss on the ground that the court had no jurisdiction over the subject matter of the suit since the principal indebtedness of Reyes was only P300,000. The motion to dismiss asserted that the difference between the sum of P426,000 claimed in the complaint and the debt of P300,000 represented the stipulated interest of 21% per annum for the period from 14 June 2006 to 15 June 2008. Should the motion to dismiss be granted? A No. The Supreme Court has held that the accrued interest on a loan is a primary and inseparable component of the cause of action, not merely incidental thereto, and must be included in the computation of the jurisdictional amount, where the debtor had agreed in writing to pay interest and the accrued interest is determinable at the time of the filing of the complaint. (See Gomez v. Montalban, 548 SCRA 693 [2008]). Here the accrued interest of P126,000 should be added to the principal amount of P300,000. Hence the total amount of the demand is P426,000 which is in excess of the jurisdictional amount of P400,000 and thus within the jurisdiction of the RTC. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 2 of 33

Q D, a resident of Cebu City, borrowed P1 million from C, a resident of Los Angeles, California, U.S.A. D did not pay C despite demands. C engaged Atty. B, whose office and residence is in Quezon City, to file a collection case against D. C executed an SPA authorizing Atty. B to prosecute the case in his behalf. Atty. B, in behalf of C, filed the collection case before the RTC of Quezon City. D filed a motion to dismiss on the ground of improper venue, arguing that none of the parties reside in Quezon City. Should the motion to dismiss be granted? A Yes. In a collection suit brought by a non-resident plaintiff as represented by his attorney-infact, the real party-in-interest is the plaintiff pursuant to Section 3 of Rule 3. Hence the venue should have been laid in the place where the defendant resides and not where the attorney-in-fact resides. (Ang v. Ang, 22 August 2012). Q BPI Family Bank filed with the RTC of Makati an action to recover deficiency against the real estate mortgagors after the extrajudicial foreclosure sale had resulted in a deficiency. The realty mortgaged was located in Manila while BPI FB has its main office in Makati. The mortgagors filed a motion to dismiss on the grounds of failure to state a cause of action, res judicata, and waiver. The RTC denied the motion to dismiss. The mortgagors filed a motion for reconsideration wherein they reiterated the previous grounds and added the ground of improper venue, contending that the action for deficiency was a real action which should have been brought in Manila. The motion for reconsideration was denied. The mortgagors went up to the Court of Appeals on a petition for certiorari. The CA granted the petition and ordered the dismissal of the action on the ground of improper venue, holding that it was a real action which should have been filed in Manila. Was the CA’s decision correct? No, the CA’s decision was not correct. First, an action to recover the deficiency after extrajudicial foreclosure of a real estate mortgage is a personal action since it does not affect title to or possession of real property or any interest therein. Hence the action was properly brought in Makati where the mortgagee has its main office. Second, even assuming that there was improper venue, the ground was waived by the mortgagors since they did not timely raise it in their motion to dismiss. Here the ground of improper venue was raised belatedly in the motion for reconsideration, not in the motion to dismiss. Hence the objection was waived pursuant to S1 R9. (BPI Family Bank v. Yujuico, 22 July 2015). A

Q JEWM Corporation bought two parcels of registered land covered by TCT Nos. 325675 and 325676 on which notices of lis pendens, including that of a case filed by the spouses Crisologo against JEWM’s predecessor-in-interest, were annotated. JEWM filed with the RTC an action against the register of deeds and “John and Jane Does” to cancel the notices of lis pendens on the registered land pursuant to Section 108 of the Property Registration Decree. The spouses Crisologo were not impleaded. The spouses Crisologo filed a motion to be recognized as parties but did not file a motion for intervention on their belief that they were included among the John and Jane Does. The RTC denied the motion and a subsequent motion for reconsideration. The spouses Crisologo thus filed a petition under Rule 65 with the CA to set aside the RTC’s order. The CA dismissed the petition on the grounds that there were adequate reliefs available to the spouses Crisologo, that is, a motion for intervention and appeal; and that the spouses Crisologos as non-parties in the RTC case cannot avail of Rule 65. Did the CA act correctly in dismissing the petition for certiorari? A No. The spouses Crisologo’s liens were annotated at the back of TCT Nos. 325675 and 325676. Thus, as persons with their liens annotated, they stand to be benefited or injured by any order relative to the cancellation of annotations in the pertinent TCTs. In other words, they are as indispensable as JEWM itself in the final disposition of the case for cancellation, being one of the many lien holders. As indispensable parties, Spouses Crisologo should have been joined as defendants in the case pursuant to S7 R3. Although Intervention under Rule 19 could have been availed of, failing to use this remedy should not prejudice Spouses Crisologo. It is the duty of RTC-Br. 14, following the rule on joinder of indispensable parties, to simply recognize them, with or without any motion to intervene. Through a cursory reading of the titles, the Court would have noticed the adverse rights of Spouses Crisologo over the cancellation of any annotations in the subject TCTs. Neither will appeal prove adequate as a remedy since only the original parties to an action can appeal. Here, Spouses Crisologo were never impleaded. Hence, they could not have utilized appeal 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 3 of 33

as they never possessed the required legal standing in the first place. Moreover appeal is not available as against an interlocutory order. The fact that the spouses Crisologo were not parties in the RTC should not preclude resort to R65 because they were indispensable parties and the lack of legal standing was not their fault. The SC thus struck down the CA rulings and ordered the remand of the case to the RTC for the Spouses Crisologo and all other lien holders to be impleaded. (Crisologo v. JEWM Agro-Ind. Corp., 3 March 2014). Q Fernando mortgaged his land and building to the GSIS to secure a loan he obtained from the latter. Fernando defaulted on his loan so the GSIS foreclosed on the loan and later acquired it at the foreclosure sale. GSIS consolidated its title over the realty after the lapse of the redemption period. Subsequently GSIS awarded the realty to CMTC after public bidding in which Fernando also participated. Fernando then filed a suit with the RTC against GSIS and CMTC for nullification of the bid award to CMTC and for the declaration of his own bid as the winning one. GSIS filed an answer with counterclaim for the recovery of rentals from the realty which Fernando had been collecting from CMTC despite the consolidation of title by the GSIS. GSIS did not pay any docket fee on the counterclaim. After trial, the RTC dismissed Fernando’s complaint and granted GSIS’s counterclaim for rentals. On appeal, the Court of Appeals affirmed the dismissal but deleted the award of rentals in favor of the GSIS. a) Is the counterclaim of GSIS for rentals a compulsory or a permissive counterclaim? b) Did the CA rule correctly in deleting the award of rentals to GSIS? A

a) The counterclaim of GSIS for rentals is a permissive counterclaim. One of the tests devised by the Supreme Court is to ask whether substantially the same evidence will support or refute plaintiff’s claim as well as the defendant’s counterclaim. A negative answer as in this case means that the counterclaim is permissive. The evidence needed by Fernando to cause the annulment of the bid award and the sale to CMTC is different from that needed by GSIS to establish its claim for the recovery of rentals. A favorable judgment on GSIS’s counterclaim to recover the rentals would not defeat or undermine Fernando’s complaint to nullify the bid award to CTMC and declare his own bid as the winning one. b) Yes the CA acted correctly in deleting the award of rentals to GSIS. The rule in permissive counterclaims is that for the trial court to acquire jurisdiction, the counterclaimant is bound to pay the prescribed docket fees. Since the GSIS failed to pay the docket fees, the RTC did not acquire jurisdiction over its permissive counterclaim. The judgment rendered by the RTC, insofar as it ordered Fernando to pay GSIS the rentals which he collected from CMTC, is considered null and void. Any decision rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal. (GSIS v. Caballero, G.R. No. 158090, 4 October 2010). Q Metrobank foreclosed extrajudicially on the real estate mortgage executed in its favor by the spouses Reynoso to secure the loan of CPR Promotions. Metrobank bought the realty mortgaged at the auction sale. Subsequently Metrobank filed an action against the Reynosos with the regional trial court to collect on the deficiency of P2.6 million. The Reynosos filed an answer where they raised the defense that the bid price exceeded the amount of the mortgage obligation. They filed counterclaims for moral and exemplary damages and attorney’s fees, alleging that the suit was unfounded. The RTC rendered judgment in favor of Metrobank. The Reynosos appealed to the Court of Appeals. In their appeal brief, the Reynosos prayed for the return of the excess of the bid price over the amount due under the mortgage. The CA reversed the RTC and ordered Metrobank to refund to CPR P722,000, representing the excess of the bid price over the amount due under the mortgage. Assuming that the bid price did indeed exceed the Reynosos’ mortgage obligation, was it proper for the Court of Appeals to order the refund of the excess? A No. Under S2 R9, a compulsory counterclaim not set up is barred. Here the claim of the Reynosos for the refund of the excess over the bid price was a compulsory counterclaim since it is inconsistent with or in direct opposition to the claim for deficiency of Metrobank. Hence it should have been set up as a compulsory counterclaim in the action for deficiency filed by Metrobank. Since it was not, the claim for refund was barred. (Metrobank v. CPR Promotions, 22 June 2015, Velasco, J.). The last opportunity for the Spouses Reynoso to set up their claim for refund was by amendment before judgment pursuant to S10 R11. They could no longer set up the claim for refund on appeal. The fact that in their answer with the RTC the Reynosos raised as a defense the excess of the bid price over the obligation will not benefit them since a defense is not a counterclaim. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 4 of 33

Q Lirio and Semicon Integrated Electronics Corporation (Semicon) entered into a lease contract covering Lirio’s properties. Villalon, who was then Semicon’s president and chairman of the board, represented the lessee corporation in the lease contract. Prior to the expiration of the lease, Semicon terminated the contract and allegedly left unpaid rentals, damages, and interest. Lirio demanded payment but Semicon and Villalon failed to pay. Lirio thus filed a complaint for sum of money against Semicon and Villalon. In his complaint, Lirio alleged that Semicon and Villalon unjustly preterminated the lease and failed to pay the unpaid rentals despite demand. Lirio alleged also in his complaint that “Villalon fraudulently and surreptitiously removed Semicon’s equipment, merchandise, and other effects from the leased premises, preventing him to exercise his right, among others, to take inventories of these effects, merchandise, and equipment.” Villalon filed a motion to dismiss on the ground that the complaint failed to state a cause of action against him. He argued that he is not a real party-in-interest as he is merely an officer of Semicon. Villalon further contended that there was no competent allegation in the complaint about any supposed wrongdoing on his part to warrant his inclusion as a party defendant. The RTC granted Villalon’s motion to dismiss. It held that under the theory of separate corporate entity, the action should be limited against Semicon, the lessee; it cannot be expanded against Villalon, a mere corporate officer. The Court of Appeals reversed the RTC holding that the allegation of fraud against Villalon placed the case within the doctrine of piercing the veil of corporation fiction and thus stated a cause of action against Villalon. Did the Court of Appeals correctly reverse the RTC’s dismissal order? A No. S5 R8 requires that in all averments of fraud, the circumstances constituting fraud must be stated with particularity. Here Lirio's mere invocation of the words "surreptitiously and fraudulently" does not make the allegation particular without specifying the circumstances of Villalon's commission and employment of fraud, and without delineating why it was fraudulent for him to remove Semicon's properties in the first place. The allegation of fraud would have been averred with particularity had Lirio alleged, for example, that Villalon removed the equipment under the false pretense that they needed repair and refurbishing but the equipment were never returned, or that Villalon removed the merchandise because Semicon needed to sell them in exchange for new supplies but no new supplies were bought. No such allegation was ever made. Thus, the RTC could not have properly ruled on whether there was a need to pierce the veil of corporate entity precisely because the complaint failed to state with particularity how Villalon committed and employed fraud. Hence the complaint failed to state a cause of action against Villalon. (Villalon v. Lirio, 3 August 2015). Q PNB filed with the Pasay City RTC an action for recovery of money with application for preliminary attachment against Globe Asiatique Realty Corp and Delfin Lee. (Case 1). The case was raffled to Branch 119 and the court issued the writ of preliminary attachment against defendants. Subsequently Globe Asiatique filed a complaint for tort against Aida Padilla (PNB officer) and Judge Gutierrez (who had issued the writ of preliminary attachment) before Pasay City RTC, Branch 155. (Case 2). Defendants filed an answer with affirmative defense of lis pendens. The defendant Padilla also raised in her answer a counterclaim for damages against Globe Asiatique for filing a malicious and harassment suit against her. The judge in Case 2 dismissed the complaint for lack of jurisdiction stating that it cannot interfere with the orders of the coordinate court in Case 1. It also dismissed the counterclaim of Padilla on the ground that the dismissal of the main complaint necessarily carried with it the dismissal of the compulsory counterclaim. Was the dismissal of the compulsory counterclaim correct? A No. Under the 1997 Rules of Civil Procedure, it is now explicitly provided that the dismissal of the complaint due to failure of the plaintiff to prosecute his case is “without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action.” (S3 R17). The effect of this amendment is to abandon previous rulings that the dismissal of a complaint carries with it the dismissal of the counterclaims. While S3 R17 refers to instances covered by Section 3, Rule 17 on dismissal of complaints due to the fault of plaintiff, it does not preclude the application of the same rule when dismissal is at defendant’s instance. The court’s jurisdiction over respondent’s complaint is not to be confused with jurisdiction over petitioner’s counterclaim. (Padilla v. Globe Asiatique Realty Corp., 6 August 2014).

2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 5 of 33

Q Manuel filed a verified complaint to annul a deed of sale over community property which his wife Martha had executed in favor of Titan Corporation. The complaint alleged that the sale was made without Manuel’s knowledge and consent. In its answer, Titan Corporation attached a special power of attorney purportedly executed by Manuel in favor of his wife authorizing her to sell the land. Manuel filed a reply which was not under oath alleging that his signature to the SPA was forged. May Manuel prove that his signature to the SPA was forged? A Yes. The allegation in the verified complaint that Manuel did not know or consent to the sale of the land put Titan Corporation on adequate notice that it would be called upon during the trial to prove the genuineness and due execution of the SPA. Hence the implied admission rule under S8 R8 does not apply. (Titan Construction Corp. v. David, G.R. No. 169548, 15 March 2010; citing Toribio v. Bidin, 134 SCRA 162). It may also be said that the complaint, which was verified and which alleged that Manuel did not consent or know about the sale, was a substantial traversal of the SPA’s genuineness and due execution. Q Defendant’s motion for reconsideration of a judgment rendered by the RTC of General Santos City was filed and served through courier (LBC) by the defendant’s Manila counsel. The reasoning was that with the regular postal service, the requirement under S5 R15 that the hearing must not be later than 10 days from the filing of the motion could not be complied with. Subsequently, on the 16th day after notice of the judgment, the defendant’s lawyer filed and served, this time by registered mail, the motion for reconsideration. Did the judgment against the defendant become final and executory? A Yes. Service and filing of pleadings by courier service is a mode not provided in the Rules. Since there was no motion for reconsideration properly and timely filed, the judgment against the defendant became final and executory. (Palileo v. Planters Dev’t Bank, 8 October 2014). Q Petitioner filed a petition for cancellation of adverse claim against respondent cooperative. Article 51 of Republic Act No. 9520 or the Philippine Cooperative Code of 2008 provides that “[e]very cooperative shall have an official postal address to which all notices and communications shall be sent [and that] [s]uch address and every change thereof shall be registered with the Authority.” Relying on the above provision, petitioner argued that respondent was sufficiently served with summons and a copy of its petition for cancellation of annotations because it allegedly sent these documents to respondent’s official address as registered with the Cooperative Development Authority. Was there a valid service of summons upon respondent cooperative? A No. On matters relating to court procedure, it is the rules of court which will govern not substantive law. The pertinent provision in the rules is S11 R14. There was no proper service upon the officers mentioned in S11 R14; hence the service of summons was invalid. (Cathay Metal Corp. v. Laguna West Multi-Purpose Cooperative, Inc., 2 July 2014). Q P filed with the RTC a torts case against A, B, C, and D. The sheriff went to D’s residence and served the summons and complaint on D’s husband, since D was temporarily out of the country in Ireland. Subsequently D filed a motion to dismiss on the ground that she was not properly served with summons since she was temporarily out of the country and hence service of summons on her should conform to Section 16, Rule 14 of the Rules of Court which requires extraterritorial service. (a) Should the RTC grant the motion to dismiss? The RTC granted the motion to dismiss. P filed a timely motion for reconsideration but the same was denied. On the 60th day from notice of the order denying his motion for reconsideration, P filed with the Court of Appeals a petition for certiorari under Rule 65 contending that the dismissal order was issued with grave abuse of discretion amounting to lack of or excess of jurisdiction. D filed a motion to dismiss the petition for certiorari contending that the proper remedy for P was an appeal. (b) Should the Court of Appeals dismiss the petition for certiorari?

A

(a) No, the RTC should not grant the motion to dismiss. The Supreme Court has held that in the case of a resident temporarily out of the Philippines, extraterritorial service is not mandatory since Section 16 of Rule 14 uses the word “may” and thus substituted service of summons may be resorted to. Here D was temporarily out of the country as she was just attending a nursing conference abroad. Hence extraterritorial service is not mandatory and substituted service of summons may be resorted to. (b) No, the Court of Appeals should not dismiss the petition for certiorari. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 6 of 33

Under the Rules of Civil Procedure, no appeal may be taken from a judgment or final order for or against one or more of several parties while the main case is pending; in such case the aggrieved party may file an appropriate special civil action under Rule 65. [S1(f) R41]. Here the final order was in respect only of D who was one of several defendants, and the main case was still pending. Hence the petition for certiorari under Rule 65 was a proper remedy. (Palma v. Galvez, 10 March 2010). Q Tung Ho Steel Enterprises Corporation filed a collection case against Ting Guan Trading Corporation. Ting Guan filed a motion to dismiss based on lack of capacity to sue and prematurity. Subsequently Ting Guan filed another motion to dismiss based on lack of personal jurisdiction contending that Fe Tejero on whom summons was served was not its corporate secretary (as indeed was the case). a) Should the motion to dismiss be granted? b) If the ground of lack of personal jurisdiction was raised in the first motion to dismiss, should the motion be granted? A a) No. As a basic principle, courts look with disfavor on piecemeal arguments in motions filed by the parties. Under the omnibus motion rule, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available. The purpose of this rule is to obviate multiplicity of motions and to discourage dilatory motions and pleadings. Party litigants should not be allowed to reiterate identical motions, speculating on the possible change of opinion of the courts or of the judges thereof. The defendant should raise the affirmative defense of lack of jurisdiction over his person in the very first motion to dismiss. Failure to raise the issue of improper service of summons in the first motion to dismiss is a waiver of this defense and cannot be belatedly raised in succeeding motions and pleadings. Such amounted to a voluntary appearance which is equivalent to service of summons under S20 R14. b) No. Even assuming that Ting Guan did not voluntarily appear before the RTC, the RTC should issue an alias summons instead. Courts should not dismiss a case simply because there was an improper service of summons. The lower courts should be cautious in haphazardly dismissing complaints on this ground alone considering that the trial court can cure this defect and order the issuance of alias summons on the proper person in the interest of substantial justice and to expedite the proceedings. (Tung Ho Steel Enterprises Corp. v. Ting Guan Trading Corp., 7 April 2014). Q May a corporation file a case after its dissolution and the lapse of the 3-year grace period provided for in Section 122 of the Corporation Code? A No. In such a case the corporation petitioner lacks capacity to sue because it no longer possesses juridical personality by reason of its dissolution and lapse of the three-year grace period provided for under Sec. 122 of the Corporation Code. The case was properly dismissed on ground of lack of legal capacity to sue. (Alabang Dev’t Corp. v. Alabang Hills Village Association, 2 June 2014). (Note: It is believed that the more precise ground for dismissal is failure to state a cause of action since the dissolved corporation cannot be a real party in interest. [S1 & S2 R3]). Q Respondents filed a complaint for declaration of nullity of titles against Petitioner before the RTC Manila which was raffled to Branch 6. Petitioner filed a motion to dismiss on the ground of lack of subject-matter jurisdiction which was granted. Upon motion the Respondents were given 15 days to file the appropriate pleading. They did not do so. Respondents then filed a complaint for annulment of extrajudicial settlement and titles with RTC Manila which was raffled to Branch 20. When Branch 20 was made aware of the first case, it issued an order transferring the case to Branch 6, considering that the case before it involved substantially the same parties and causes of action. In November 2002, before the service of any responsive pleading upon them, the Respondents filed a motion to dismiss their complaint in the second case, praying that it be dismissed without prejudice. The motion was granted and the case dismissed without prejudice. Subsequently the Respondents filed with the RTC Manila a complaint for annulment of extrajudicial settlement and titles. All 3 complaints are based on the same claim. Petitioner filed a motion to dismiss on the ground of res judicata invoking the two-dismissal rule and also S3 R17. The Petitioner argues that when Respondents failed to file the appropriate pleading they violated the order of the court thereby making the dismissal with prejudice pursuant to S3 R17. Should the motion to dismiss be granted? A No. In order for the two-dismissal rule to apply, both dismissals must be at the instance of the plaintiff. Here the first dismissal was at the instance not of the plaintiff but of the defendant 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 7 of 33

(Petitioner). What governs therefore is S2 R17 which provides that the dismissal shall be without prejudice. (Note: Moreover for the two-dismissal rule to apply, the second dismissal must be upon notice [S1 R17]. Here the second dismissal was upon motion not notice; hence the two-dismissal rule was not applicable). Nor does S3 R17 apply. The trial court dismissed the first case by granting the motion to dismiss filed by the defendants. When it allowed Respondents a period of 15 days to file an appropriate pleading, it was merely acquiescing to a request made by the plaintiff’s counsel that had no bearing on the dismissal of the case and which after all is a right of the Respondents. The nonexercise of a right will not amount to a violation of a court order. (Ching v. Cheng, 8 October 2014). Q Quezon Power Ltd. filed with the RTC of Mauban, Quezon, an action for consignation and damages against the Province of Quezon for its refusal to accept payment of realty taxes. Petitioner filed a motion for intervention alleging that as a resident and taxpayer of Quezon, he has an interest in the aggressive collection of realty taxes. The RTC dismissed the action for lack of jurisdiction stating that it is the Local Board of Assessment Appeals which has jurisdiction over the complaint. The RTC also dismissed Petitioner’s motion for intervention. The issue is whether or not the RTC erred in dismissing Petitioner’s motion for intervention as a consequence of the dismissal of the main case. While acknowledging the RTC’s lack of jurisdiction, Petitioner nonetheless prayed that the Court pass upon the correctness of the Municipal Assessor’s assessment of QPL’s realty taxes, among others. Did the RTC err in dismissing Petitioner’s motion for intervention? A No. Jurisdiction over an intervention is governed by jurisdiction over the main action. Accordingly, an intervention presupposes the pendency of a suit in a court of competent jurisdiction. In this case, Petitioner did not contest the RTC's dismissal for lack of jurisdiction, but oddly maintains his intervention by asking in this appeal a review of the correctness of the subject realty tax assessment. This recourse is improper since the RTC's lack of jurisdiction over the main case necessarily resulted in the dismissal of his intervention. In other words, the cessation of the principal litigation - on jurisdictional grounds at that - means that Petitioner had, as a matter of course, lost his right to intervene. Verily, it must be borne in mind that: [I]ntervention is never an independent action, but is ancillary and supplemental to the existing litigation. Otherwise stated, the right of an intervenor should only be in aid of the right of the original party. Where the right of the latter has ceased to exist, there is nothing to aid or fight for; hence, the right of intervention ceases. (Pulgar v. RTC of Mauban, Quezon, 10 September 2014). Q Jacob filed a complaint for annulment of loan and mortgage contract against Petro Bank on the ground of fraud. Petro Bank filed an answer denying any fraud against Jacob. After the termination of the pretrial, Jacob filed an ex parte motion for the issuance of a subpoena duces tecum and ad testificandum to the senior loan manager of Petro Bank to appear and testify in the initial hearing for the presentation of Jacob’s evidence as Jacob’s first witness and to bring documents relative to Jacob’s loan. You are the counsel of Petro Bank. What ground/s if any would you raise to oppose Jacob’s motion? Explain. A 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 was made ex parte or without hearing. The motion 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 not having been set for hearing is a mere scrap of paper. 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. [S6 R25] 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 senior loan manager, an officer, cannot be compelled by Jacob to give testimony in open court. (Sps Afulugencia v Metro Bank, 5 Feb 2014). Q China Bank filed with the RTC a loan collection case against Ever Electrical Mfg. Co. and Ng Meng Tam, a surety to Ever’s loan. Ng filed an answer with affirmative defense of the nullity of the suretyship contract. Ng moved for a preliminary hearing on his affirmative defense which was 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 8 of 33

granted. After serving written interrogatories on George Yap, China Bank’s account officer, and receiving Yap’s answers thereto, Ng applied for the issuance of a subpoena duces tecum and ad testificandum against George Yap. China Bank objected, arguing that Yap cannot be compelled to testify in court because Ng did not obtain and present Yap’s judicial affidavit pursuant to Section 5 of the Judicial Affidavit Rule (JAR). Should China Bank’s objection be sustained? A No. Section 5 of the JAR expressly excludes from its application adverse party and hostile witnesses. For the presentation of these types of witnesses, the provisions on the Rules of Court under the Revised Rules of Evidence and all other correlative rules including the modes of deposition and discovery rules shall apply. Here it is enough for the party calling the adverse party witness to serve beforehand written interrogatories pursuant to S6 R25 and the case of Afulugencia v. Metropolitan Bank & Trust Co., 715 SCRA 399 (2014), which was done in this case. (Ng Meng Tam v. China Banking Corp., 5 August 2015). Q In a petition for relief under R38, it was argued by petitioners that their counsel’s failure to file the appeal was because of his advanced age of 80 and that this constituted mistake and excusable negligence. May the counsel’s advance age be so considered? A No. This argument stereotypes and demeans senior citizens. It assumes that a person with advanced age is prone to incompetence. This cannot be countenanced. (Madarang v. Sps. Morales, 9 June 2014). Q

In a demurrer to evidence, may the movant present evidence in support of his motion?

A No. What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is entitled to the relief based on the facts and the law. The “facts” referred to should include all the means sanctioned by the Rules of Court in ascertaining matters in judicial proceedings. These include judicial admissions, matters of judicial notice, stipulations made during the pre-trial and trial, admissions, and presumptions, the only exclusion being the defendant’s evidence. (GMA Network Inc. v. Central CATV, Inc., 18 July 2014). Q Respondents filed an action for cancellation of title against Petitioner (Civil Case No. 15357). The RTC, in this case, cancelled the titles of the petitioner and his father Jose because they were obtained through the misrepresentation of the petitioner’s grandfather, Isidro Campit. The judgment became final and unappealable in July 1979. The respondents have long desired to divide the subject property among themselves, but the petitioner adamantly refused to surrender his title to the property to them, or to the Register of Deeds, despite their formal demand. Due to the petitioner’s continued refusal to surrender the subject TCT, the respondents filed anew an action for annulment and cancellation of title with the RTC in August 2003, docketed as Civil Case No. 18421. The petitioner opposed the respondents’ action and argued that the August 1978 decision in Civil Case No. 15357, which declared his title null and void, could no longer be enforced because its execution was already barred by the Statute of Limitations, as the said decision was never executed within 10 years from July 19, 1979 - the date of finality of the judgment. Is the petitioner’s opposition valid? A No. Considering that the action for annulment and cancellation of title filed by the respondents is substantially in the nature of an action for reconveyance based on an implied or constructive trust, combined with the fact that the respondents have always been in possession of the subject property, Civil Case No. 18421 may be treated as an action to quiet title, the filing of which does not prescribe. Thus, the respondents’ filing of Civil Case No.18421 was proper and not barred by the time limitations set forth under the Rules of Court in enforcing or executing a final and executory judgment. (Campit v. Gripa, 17 September 2014). (Note: Another way to justify the ruling is that the decision in Civil Case No. 15375 is simply declaratory and does not need executory process. Hence S6 R39 finds no application). Q Daisy R. Yahon (respondent) filed a petition for the issuance of protection order under the provisions of Republic Act (R.A.) No. 9262, otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004," against her husband, S/Sgt. Charles A. Yahon (S/Sgt. Yahon), an enlisted personnel of the Philippine Army who retired in January 2006. Respondent and S/Sgt. Yahon were married on June 8, 2003. Subsequently the RTC issued a judgment directing Sgt. Yahon to provide P4,000 a month to respondent. Sgt. Charles A. Yahon was also directed to give to respondent 50% of whatever retirement benefits and other claims that may be due or released to him from the government and the said share of petitioner shall be automatically deducted from Sgt. Yahon’s 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 9 of 33

benefits and claims and be given directly to the respondent. The AFP Finance Center demurred from complying with the directive saying that government pension or gratuity is exempt from execution under S13(l) of R39. Is the AFP Finance Center correct? A No. Section 8(g) of R.A. No. 9262, being a later enactment, should be construed as laying down an exception to the general rule that retirement benefits are exempt from execution. The law itself declares that the court shall order the withholding of a percentage of the income or salary of the respondent by the employer, which shall be automatically remitted directly to the woman “[n]otwithstanding other laws to the contrary.” Section 8(g) of R.A. No. 9262 used the general term “employer,”which includes in its coverage the military institution, S/Sgt. Yahon’s employer. Where the law does not distinguish, courts should not distinguish. Thus, Section 8(g) applies to all employers, whether private or government. (Republic v. Yahon, 16 June 2014). Q In extrajudicial foreclosure of real estate mortgages under Act No. 3135, is the issuance of a writ of possession ministerial upon the court after the foreclosure sale and during the redemption period? A Yes. The court may issue the order for a writ of possession upon the mere filing of an ex parte motion and the approval of the corresponding bond. Q

Is there an exception to the rule?

A Yes. Under S33 R39, which is made applicable to extrajudicial foreclosures of real estate mortgages, the possession of the property shall be given to the purchaser or last redemptioner unless a third party is actually holding the property in a capacity adverse to the judgment obligor. Thus, the court’s obligation to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial when there is a third party in possession of the property claiming a right adverse to that of the judgment debtor/mortgagor. (Cabling v. Lumapas, 18 June 2014). Q Petitioner was the highest bidder in an extrajudicial foreclosure sale over a real property. After the redemption period, the final deed of sale was issued by the sheriff and a new certificate of title was issued in the name of Petitioner. The Petitioner filed an application for issuance of a writ of possession. The Respondent filed an opposition on the ground that that the property had previously been sold to her by Aida Ibabao, the property’s registered owner and the judgment debtor/mortgagor in the extrajudicial foreclosure sale, pursuant to a Deed of Conditional Sale. It appears from the records that no deed of absolute sale over the subject property has been executed in the Respondent's favor. The trial court granted the opposition and denied the application for issuance of a writ of possession. The trial court stated that its obligation to issue a writ of possession ceases to be ministerial once it appears that there is a third party in possession of the property claiming a right adverse to that of the debtor/mortgagor. Did the trial court rule correctly? A No. We emphasize that the exception provided under Section 33, Rule 39 of the Rules of Court contemplates a situation in which a third party holds the property by adverse title or right, such as that of a co-owner, tenant or usufructuary, who possesses the property in his own right, and is not merely the successor or transferee of the right of possession of another co-owner or the owner of the property. Here, the respondent cannot be said to possess the subject property by adverse title or right as her possession is merely premised on the alleged conditional sale of the property to her by the judgment debtor/mortgagor. The execution of a contract of conditional sale does not immediately transfer title to the property to be sold from seller to buyer. In such contract, ownership or title to the property is retained by the seller until the fulfillment of a positive suspensive condition which is normally the payment of the purchase price in the manner agreed upon. (Cabling v. Lumapas, 18 June 2014). Q In an action for revival of a judgment of partition, is it necessary that all the parties, in whose favor the case for partition was adjudged, be made plaintiffs to the action for revival of judgment? A No. Even just one of the co-owners, by himself alone, can bring an action for the recovery of the co-owned property, even through an action for revival of judgment, because the enforcement of the judgment would result in such recovery of property. Any which one of said prevailing parties, who had an interest in the enforcement of the decision, may file the complaint for revival of judgment, even just by himself. (Clidoro v. Jalmanzar, 9 July 2014). 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 10 of 33

PROVISIONAL REMEDIES & SPECIAL CIVIL ACTIONS Q Lessee Zuellig Pharma filed an action for interpleader against Petitioner and Philippine Bank of Communications to determine who between them is entitled to the rental payments. Petitioner failed to file its answer and was declared in default upon motion of Zuellig. Petitioner argued that Zuellig filed the interpleader case to compel Petitioner and the Philippine Bank of Communications to litigate their claims. Thus, “[d]eclaring a claimant in default would ironically defeat the very purpose of the suit.” Is the argument of Petitioner correct? A No. In this case, Zuellig filed the interpleader case to extinguish its obligation to pay rent. Its purpose in filing the interpleader case “was not defeated” when the Makati trial court declared Petitioner in default. At any rate, an adverse claimant in an interpleader case may be declared in default. Under S5 R62, a claimant who fails to answer within the required period may, on motion, be declared in default. The consequence of the default is that the court may “render judgment barring [the defaulted claimant] from any claim in respect to the subject matter.” The Rules would not have allowed claimants in interpleader cases to be declared in default if it would “ironically defeat the very purpose of the suit.” (Lui Enterprises v. Zuellig Pharma, 12 March 2014). Q In a certiorari case before the Court of Appeals seeking the review of an NLRC decision, Atty. Regalado acted as counsel for the employer. Subsequently a compromise agreement was entered into between the employer and the employee Go. The compromise agreement was entered into without the knowledge and participation of Go’s counsel. Subsequently Go, through counsel, filed a manifestation with omnibus motion wherein Go asked that Atty. Regalado be asked to explain why no disciplinary action should be taken against her for negotiating directly with Go without the knowledge of Go’s counsel. The Court of Appeals issued an order asking Atty. Regalado to appear in a hearing and to show cause why she should not be cited in contempt for violating Rule 8.02 of the Code of Professional Responsibility. Finding Atty. Regalado’s explanation unsatisfactory, the Court of Appeals issued a resolution holding Atty. Regalado guilty of indirect contempt. Two months after she had received notice of the Court of Appeal’s order finding her guilty of indirect contempt, Atty. Regalado hired you as her counsel. What legal step or remedy would you take in favor of Atty. Regalado and how would you counter or attack the resolution of the Court of Appeals? Explain. A The legal remedy I would take in favor of Atty. Regalado is to file a special civil action for certiorari with the Supreme Court attacking the Court of Appeal’s jurisdiction over the indirect contempt proceedings. Under the Rules of Civil Procedure, if the contempt proceedings are not initiated motu proprio by the court against which the contempt was committed, the charge shall be commenced by a verified petition, which petition is mandatory and jurisdictional. Here the indirect contempt proceedings were not initiated by the Court of Appeals, the court against which the contempt was committed, but by Go through the filing of an omnibus motion. Hence the filing of a verified petition was mandatory, the absence of which meant that the CA did not acquire jurisdiction over the contempt proceedings against Atty. Regalado and thus its resolution may be challenged by a special civil action for certiorari. (Regalado v Go, 6 Feb 2007). Q Petitioners, members of an urban poor organization, filed a petition for prohibition and mandamus with the Supreme Court to stop respondents DILG Secretary and mayors from evicting them pursuant to the Urban Development Housing Act (RA No. 7279) and to compel the respondents to afford them judicial process prior to evictions and demolitions. Section 28 (a) and (b) of RA 7279 provides that evictions and demolitions may be allowed without any court order when: (1) persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks, and playgrounds; and (2) persons or entities occupy areas where government infrastructure projects with available funding are about to be implemented. Did the Petitioners properly avail of prohibition? A No. Prohibition is available against a respondent exercising judicial, quasi-judicial, or ministerial functions. In exercising the power to demolish and evict illegal structures pursuant to RA 7279 the respondents are clearly not exercising judicial or quasi-judicial powers. Both judicial and quasi-judicial functions involve the determination of what the law is, and what the legal rights of the contending parties are, with respect to the matter in controversy and, on the basis thereof and the facts obtaining, the adjudication of their respective rights. Nor is there a ministerial duty on the part of respondents. Section 28 of RA 7279 in authorizing evictions and demolitions uses the word “may.” Clearly there is discretion on the part of 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 11 of 33

respondents to implement demolitions and evictions and thus there is no ministerial duty. (Kalipunan ng Damayang Mahihirap v. Robredo, 22 July 2014). Q Petitioners and Respondents are siblings. Respondents filed an action for partition against Petitioners. The action was dismissed for failure to prosecute per S3 R17. The dismissal became final and unappealable. Subsequently the Petitioners filed an action for quieting of title against the Respondents over the same lot subject of the partition suit. The court denied the action for quieting of title but granted the Respondents’ counterclaim for partition. The Petitioners contend that the trial court should not have granted the counterclaim for partition as the same was barred by res judicata. Is the counterclaim for partition barred by res judicata? A No. Dismissal with prejudice under S3 R17 cannot defeat the right of a co-owner to ask for partition at any time, provided that there is no actual adjudication of ownership of shares yet. Between dismissal with prejudice under S3 R17 and the right granted to co-owners under Art. 494 of the Civil Code, the latter must prevail. To construe otherwise would diminish the substantive right of a coowner through the promulgation of procedural rules. Such a construction is not sanctioned by the principle that a substantive law cannot be amended by a procedural rule. This finds further support from Art. 496 of the Civil Code which provides that “[p]artition shall be governed by the Rules of Court insofar as they are consistent with this Code.” (Quintos v. Nicolas, 16 June 2014). Q In an unlawful detainer complaint, it was alleged that defendant occupied the land through the plaintiff’s tolerance, that plaintiffs demanded that defendant vacate the property but to no avail; hence the plaintiffs served upon defendant a formal demand to vacate dated 1 September 2003 which was not heeded. The complaint was filed on 6 October 2003. The MTC ruled in favor of plaintiffs. On appeal, the Court of Appeals set aside the decision on the ground that the MTC did not acquire jurisdiction. The CA held that in ejectment cases, is it a requirement that the complaint should aver, as jurisdictional facts, when and how entry into the property was made. Did the CA rule correctly? A No. The requirement that the complaint should aver, as jurisdictional facts, when and how entry into the property was made by the defendants applies only when the issue is the timeliness of the filing of the complaint before the MTC. This is because, in forcible entry cases, the prescriptive period is counted from the date of defendants’ actual entry into the property; whereas, in unlawful detainer cases, it is counted from date of the last demand to vacate. Hence, to determine whether the case was filed on time, there is a necessity to ascertain whether the complaint is one for forcible entry or for unlawful detainer; and since the main distinction between the two actions is when and how defendant entered the property, the determinative facts should be alleged in the complaint. Here the Complaint was filed on October 6, 2003 or within one year from the time the formal demand to vacate was made. Hence timeliness of the complaint was not at issue and thus the Complaint sufficiently established a case for unlawful detainer as to vest the MTC with jurisdiction. (Sps. Dela Cruz v. Sps. Capco, 17 March 2014). Q A complaint for unlawful detainer was filed with the MTC by Plaintiff on 24 December 2008 which contained the following allegations: (1) Plaintiff was in possession and control of subject property, however, sometime in May 2007 she discovered that Defendants have entered the subject property and occupied the same; (2) Plaintiff demanded that they leave the premises. The defendants requested for time to leave and she acceded to said request. The defendants committed to vacate the subject property by the end of May, 2008; (3) Despite several repeated demands, defendants unjustifiably refused to vacate the subject premises prompting the Plaintiff to seek the assistance of a lawyer who wrote them a formal and final demand letter in July 2008 to vacate the premises and to pay reasonable compensation for their illegal use and occupancy of the subject property Defendants ignored the demand letter. Does the MTC have jurisdiction over the complaint? A No. To justify an action for unlawful detainer, it is essential that the plaintiff’s supposed acts of tolerance must have been present right from the start of the possession which is later sought to be recovered. Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy. The above complaint failed to allege a cause of action for unlawful detainer as it does not describe possession by the Defendants being initially legal or tolerated by the Plaintiff and which became illegal upon termination by the Plaintiff of such lawful possession. Plaintiff’s insistence that she actually tolerated Defendants’ continued occupation after her discovery of their entry into the subject premises is incorrect. As she had averred, she discovered respondents’ occupation in May 2007. Such possession could not have been legal from the start as it was without her knowledge or 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 12 of 33

consent, much less was it based on any contract, express or implied. The possession of the defendant in unlawful detainer is originally legal but became illegal due to the expiration or termination of the right to possess. Where the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer, the municipal trial court had no jurisdiction over the case. MTC clearly had no jurisdiction over the case as the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer. Since the prescriptive period for filing an action for forcible entry has lapsed, petitioner could not convert her action into one for unlawful detainer, reckoning the one-year period to file her action from the time of her demand for respondents to vacate the property. (Zacarias v. Anacay, 24 September 2014). Q In an action for unlawful detainer based on the plaintiff’s tolerance of defendant’s possession, when should the back rentals start to run? From the occupation by tolerance or from the time of the demand to vacate? A From the time of the demand to vacate. It is inconsistent to demand payment of rentals during the period of tolerance. (Pro-Guard Security v. Tormil Realty, 7 July 2014). Q The Air Transportation Office filed a complaint for unlawful detainer against Miaque. Judgment was rendered in favor of the ATO ordering Miaque to vacate the premises and to pay damages to the ATO. On appeal the RTC affirmed. Miaque filed a petition for review with the Court of Appeals under R42 which was given due course by the CA. The RTC issued a writ of execution to enforce the judgment but the CA set aside the order on the sole ground that that the RTC “has no jurisdiction to order the issuance of [the] writ of execution” because, when it gave due course to the petition for review in CA-G.R. SP No. 79439, the RTC was already divested of jurisdiction over the case pursuant to the third paragraph of S8(a), R42. Was the writ of execution properly set aside by the CA? A No. The Court of Appeals is mistaken. It disregards both (1) the immediately executory nature of the judgment of the RTC in ejectment cases under S21 R70, and (2) the rule that such judgment of the RTC is not stayed by an appeal taken therefrom under S8(b) R42. It ignores the nature of the RTC’s function to issue a writ of execution of its judgment in an ejectment case as ministerial and not discretionary. (Air Transportation Office v. Court of Appeals, 25 June 2014, Leonardo-De Castro, J.)

SPECIAL PROCEEDINGS Q In the proceedings for the settlement of the estate of Ferdinand E. Marcos before the RTC, the government opposed the issuance of letters testamentary to Bongbong Marcos on the ground that he had been convicted of failure to file income tax return. The government argued that such conviction rendered Bongbong incompetent to serve as executor. a) Is the government’s contention correct? b) Assuming that the probate court ordered the issuance of letters testamentary to Bongbong Marcos, what would be the remedy of the government? A a) No. Under Sec. 1(c) of Rule 78, no person is competent to serve as executor or administrator who is in the court’s opinion unfit to execute the duties of the trust by reason of conviction of an offense involving moral turpitude. The offense of failure to file income tax return however is not one involving moral turpitude since it is a malum prohibitum in which criminal intent is immaterial. (Republic v. Marcos, 4 August 2009, Peralta, J.) b) The remedy of the government is to appeal the order under Section 1(a) of Rule 109. Hence the petition for review on certiorari filed with the SC was the wrong mode and was properly dismissed. (Id.). Q SHC filed with the Quezon City RTC a complaint for delivery of lumber and/or damages against AMC. SHC alleged that it delivered the crossed Metro Bank checks payable to AMC through Chua, AMC’s general manager, but the lumber was never delivered to it. In the meantime Chua died and the proceeding for the settlement of his estate was filed and was pending with the Pasay RTC. In its answer, AMC alleged that it did not know of the transaction and that Chua had deposited the checks to his Metrobank account under the name of Ayala Lumber, a sole proprietorship owned by Chua, and encashed it. AMC filed a third-party complaint against Metrobank for allowing the deposit of the checks to Ayala Lumber. In its answer to the third-party complaint, Metrobank alleged that Chua represented to it that the arrangement of depositing the checks to Ayala Lumber’s account was with AMC’s consent and that AMC was estopped from questioning such deposits. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 13 of 33

Metrobank then filed a motion for leave to admit fourth-party complaint against the estate of Chua. In its fourth-party complaint, Metrobank prayed that Chua’s estate reimburse Metrobank in case it would be held liable in the third-party complaint filed against it by AMC. Should the RTC grant leave to file the fourth-party complaint? A No. The fourth-party complaint is in the nature of a contractual money claim under S5 R86 which should have been filed as a money claim in the probate court of Pasay City. A quasi-contract is considered as a contractual money claim (Maclan v. Garcia, 97 Phil. 119). Here the action of Metrobank against the estate of Chua is based on the quasi-contract of solutio indebiti. Art. 2154 of the Civil Code provides that if something is received when there is no right to demand it and it was unduly delivered by mistake, the obligation to return it arises. Metrobank acted in a manner akin to a mistake when it deposited the AMC checks to Ayala Lumber’s account; because of Chua’s control over AMC’s operations, Metrobank assumed that the checks payable to AMC could be deposited to Ayala Lumber’s account. Being a money claim, Metrobank’s claim for relief should have been filed in the probate proceedings before the Pasay City RTC. Hence the QC RTC had no authority to adjudicate the fourth-party complaint. (Metrobank v. Absolute Management Corp., 9 January 2013). Q In the proceedings for the settlement of the estate of Alice, a contingent money claim for commission in the event of the sale of property of the estate was filed by Alan with the probate court. The executrix moved for the dismissal of the claim on the ground that the docket fee under Section 7(a) of Rule 141 was not paid and on the ground that no certification against forum shopping was attached thereto pursuant to Section 5 of Rule 7. The RTC dismissed the money claim. Was the dismissal proper? Explain. A

No, the dismissal of the money claim was not proper. The ground that the docket fee under S7(a) R141 was not paid is without merit. The Supreme Court has held that the docket fee for a money claim is not jurisdictional since the probate court already acquired jurisdiction over the estate proceeding with the filing of the petition for probate and the publication of the notice of hearing. Hence since the payment of the docket fee was not jurisdictional, the claim should not be dismissed. The ground that no certification against forum-shopping was attached to the money claim is without merit. Under the Rule on Civil Procedure, a certification against forum shopping is required only of initiatory pleadings. Here what was involved was a money claim which is not an initiatory pleading as it is the petition for settlement of estate which is the initiatory pleading. Hence a certification against forumshopping is not required to be attached thereto and its absence would not result in the dismissal of the money claim. (Sheker v. Sheker, 13 December 2007) Q The Spouses Gallardo are the parents of Maricel. Maricel bore a child out of wedlock and then ran away from home. She lived with Noel Bagtas and Lydia Sioson. Afterwards Maricel left Bagtas and Sioson but she left with them the custody of her child Maryl Joy after executing a document relinquishing to Bagtas and Sioson her rights over the child. The Gallardos tried unsuccessfully to obtain from Bagtas and Sioson the custody of their granddaughter Maryl Joy. The Gallardos then filed with the RTC a petition for habeas corpus. After the court had issued the writ of habeas corpus, Maryl Joy was produced before the court. Pursuant to a compromise agreement wherein the Gallardos would have custody of the child on Fridays, Saturdays, and Sundays and Bagtas and Sioson on the other days,, the Gallardos were able to obtain custody of Maryl Joy. Later Bagtas and Sioson learned that the Gallardos had brought the child to Samar. After various incidents and motions between the parties, the RTC issued an order dismissing the habeas corpus case for having become moot and academic since the body of Maryl Joy had already been produced and custody over her delivered to the Gallardos. Bagtas and Sioson moved for the reconsideration of the order but the motion was denied. Was the RTC’s order dismissing the case for having become moot and academic proper? A No. A habeas corpus case involving a minor is not limited to the production of the minor before the court. The main purpose of the proceeding is to determine who has rightful custody over the child. The court should still proceed to determine who should have the rightful custody of the child. (Bagtas v. Santos, G.R. No. 166682, 27 November 2009). 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 14 of 33

Q Respondent filed a petition for habeas corpus before the RTC of Caloocan City seeking to compel Petitioner to produce before the court the Respondent’s biological daughter and to return custody over the child to Respondent. Petitioner and the child reside in Quezon City. The RTC issued the writ of habeas corpus and the writ was served upon the Petitioner while she was attending a preliminary investigation in Quezon City. By way of special appearance, Petitioner moved for the quashal of the writ and the dismissal of the habeas corpus case. Arguing that the RTC-Caloocan lacked jurisdiction over the case, Petitioner relies on Section 3 of A.M. No. 03-04-04-SC and maintains that the habeas corpus petition should have been filed before the family court that has jurisdiction over her place of residence or that of the minor or wherever the minor may be found. Petitioner argues also that the RTC did not acquire jurisdiction over her person as she was not served with summons. Rule on the Petitioner’s motion to quash writ and to dismiss case. A

Motion to quash writ and to dismiss case denied. The petition for habeas corpus was properly filed in the RTC of Caloocan. Section 3 of A.M. No. 03-04-04-SC, which states that “the petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resided or where the minor may be found,” is not applicable because it refers to a petition for custody of minors. What is applicable is Section 20 which covers petition for a writ of habeas corpus involving custody of minors. Considering that the writ is made enforceable within a judicial region, petitions for the issuance of the writ of habeas corpus, whether they be filed under R102 of the Rules of Court or pursuant to Section 20 of A.M. No. 03-0404-SC, may be filed with any of the proper RTCs within the judicial region where enforcement thereof is sought. As regards Petitioner’s assertion that the summons was improperly served, service of summons is not required in a habeas corpus petition, be it under R102 or A.M. No. 03-04-04-SC. A writ of habeas corpus plays a role somewhat comparable to a summons, in ordinary civil actions, in that, by service of said writ, the court acquires jurisdiction over the person of the respondent. (TujanMilitante v. Cada-Deapera, 28 July 2014). Q Cleofas and Marciana filed with the Supreme Court a petition for the issuance of a writ of amparo with motion for production and inspection against the respondent chief of staff and military officers of the Northern Luzon Command (NOLCOM). Petitioners alleged that the military was behind the disappearance of their sons Nicolas and Heherson. They presented an affidavit of Josephine who alleged therein that she saw Nicolas and Heherson inside Camp Servillano Aquino of the NOLCOM in Tarlac City. The Supreme Court resolved to issue a writ of amparo and directed the respondents to make their return before Court of Appeals Justice Edgardo Sundiam. In their return, the respondents denied having custody of Nicolas and Heherson or any knowledge as to their whereabouts. After hearing, the Court of Appeals issued an order absolving the respondents from any liability since the petitioners were not able to establish that respondents were directly or indirectly connected with the disappearance of Nicolas and Heherson. The Court of Appeals stated that the respondents’ witnesses were able to impeach the testimony of Josephine by showing that she was a pathological liar. Nonetheless the Court of Appeals in the interest of human rights and justice, granted reliefs to the petitioners in the form of inspection of Camp S. Aquino and ordering concerned units of the NOLCOM to make thorough investigation as to the disappearance. Was it proper for the Court of Appeals to grant the reliefs of inspection and investigation? A No, it was not proper for the Court of Appeals to grant the reliefs of inspection and investigation. The Supreme Court has held that the interim reliefs under the Rules on the Writ of Amparo are intended to assist the court before it arrives at a judicious determination of the amparo petition. Here the Court of Appeals issued the inspection order and the investigation order after it had arrived at a judicious determination absolving the petitioners. Hence it was not proper for the Court of Appeals to grant the reliefs of inspection and investigation. (Yano v. Sanchez, G.R. No. 186640, 11 February 2010 (e.b.). Q In 2009, Christina gave birth to Baby Julian. Sun and Moon Home for Children shouldered all the hospital and medical expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of a Deed of Voluntary Commitment to the DSWD. Subsequently, the biological father Marcelino suffered a heart attack and died without knowing about the birth of his son. Thereafter, during the wake, Christina disclosed to Marcelino’s family that she and the deceased had a son that she gave up for adoption due to financial distress and initial 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 15 of 33

embarrassment. Marcelino’s family was taken aback by the revelation and sympathized with Christina. After the emotional revelation, they vowed to help her recover and raise the baby. In November 2009, the DSWD, through Secretary Cabral issued a certificate declaring Baby Julian as “Legally Available for Adoption.” A local matching conference was held. Baby Julian was “matched” with the spouses Medina of the Kaisahang Bahay Foundation. Supervised trial custody then commenced. In May 2010, Christina who had changed her mind about the adoption, wrote a letter to the DSWD asking for the suspension of Baby Julian’s adoption proceedings. She also said she wanted her family back together. The DSWD stated that the certificate declaring Baby Julian legally available for adoption had attained finality on November 13, 2009, or three months after Christina signed the Deed of Voluntary Commitment which terminated her parental authority and effectively made Baby Julian a ward of the State. Christina filed a petition for a writ of amparo against respondent DWSD and its officers. In her petition, Christina accused respondents of “blackmailing” her into surrendering custody of her child to the DSWD utilizing what she claims to be an invalid certificate of availability for adoption which respondents allegedly used as basis to misrepresent that all legal requisites for adoption of the minor child had been complied with. Christina argued that by making these misrepresentations, the respondents had acted beyond the scope of their legal authority thereby causing the enforced disappearance of the said child and depriving her of her custodial rights and parental authority over him. Is a petition for a writ of amparo available in order for a biological mother to recover custody of child from the DWSD? A No. In this case, Christina alleged that the respondent DSWD officers caused her "enforced separation" from Baby Julian and that their action amounted to an "enforced disappearance" within the context of the Amparo rule. Contrary to her position, however, the respondent DSWD officers never concealed Baby Julian's whereabouts. In fact, Christina obtained a copy of the DSWD's 28 May 2010 Memorandum explicitly stating that Baby Julian was in the custody of the Medina Spouses when she filed her petition before the RTC. Besides, she even admitted in her petition for review on certiorari that the respondent DSWD officers presented Baby Julian before the RTC during the hearing held in the afternoon of August 5, 2010. There is therefore, no "enforced disappearance" as used in the context of the Amparo rule as the third and fourth elements are missing. Christina's directly accusing the respondents of forcibly separating her from her child and placing the latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not searching for a lost child but asserting her parental authority over the child and contesting custody over him. Since it is extant from the pleadings filed that what is involved is the issue of child custody and the exercise of parental rights over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied. (Caram v. Segui, 5 August 2014). Q Julia and Julienne, both minors, were graduating high school students at St. Theresa's College (STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for a beach party they were about to attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in their undergarments. These pictures were then uploaded by Angela on her Facebook profile. Back at the school, Mylene Escudero, a computer teacher at STC’s high school department, learned from her students that some seniors at STC posted pictures online, depicting themselves from the waist up, dressed only in brassieres. Escudero then asked her students if they knew who the girls in the photos were. In turn, they readily identified Julia, Julienne, and Chloe, among others. Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts and showed her photos of the identified students. What is more, Escudero’s students claimed that there were times when access to or the availability of the identified students’ photos was not confined to the girls’ Facebook friends, but were, in fact, viewable by any Facebook user. Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed the photos to Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter, following an investigation, STC found the identified students to have deported themselves in a manner proscribed by the school’s Student Handbook and barred them from participating in the graduation rites. Despite the issuance of the TRO by a court, STC, nevertheless, barred the sanctioned students from participating in the graduation rites, arguing that, on the date of the commencement exercises, its adverted motion for reconsideration on the issuance of the TRO remained unresolved. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 16 of 33

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data alleging that their children’s right to informational privacy was violated and praying that (a) a writ of habeas data be issued; (b) respondents be ordered to surrender and deposit with the court all soft and printed copies of the subject data before or at the preliminary hearing; and (c) after trial, judgment be rendered declaring all information, data, and digital images accessed, saved or stored, reproduced, spread and used, to have been illegally obtained in violation of the children’s right to privacy. The RTC issued the writ of habeas data and directed the Respondents to file their return. In their return, the Respondents raised the following defenses: a) Habeas data does lie against STC, it not being an entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. b) There can be no violation of their right to privacy as there is no reasonable expectation of privacy on Facebook. Decide the case. A

The petition for habeas data should not be granted. a) To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only against abuses of a person or entity engaged in the business of gathering, storing, and collecting of data. Section 1 of the Rule on the Writ of Habeas Data, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection against unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of collecting or storing data. To “engage” in something is different from undertaking a business endeavour. To “engage” means “to do or take part in something.” It does not necessarily mean that the activity must be done in pursuit of a business. What matters is that the person or entity must be gathering, collecting or storing said data or information about the aggrieved party or his or her family. Whether such undertaking carries the element of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for any other reason or even for no reason at all, is immaterial and such will not prevent the writ from getting to said person or entity. To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a very small group, i.e., private persons and entities whose business is data gathering and storage, and in the process decreasing the effectiveness of the writ as an instrument designed to protect a right which is easily violated in view of rapid advancements in the information and communications technology––a right which a great majority of the users of technology themselves are not capable of protecting. b) Nonetheless, there is no right to informational privacy on photos posted on Facebook. It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who are the minors’ Facebook “friends,” showed her the photos using their own Facebook accounts. This only goes to show that no special means to be able to view the allegedly private posts were ever resorted to by Escudero’s students, and that it is reasonable to assume, therefore, that the photos were, in reality, viewable either by (1) their Facebook friends, or (2) by the public at large. Considering that the default setting for Facebook posts is “Public,” it can be surmised that the photographs in question were viewable to everyone on Facebook, absent any proof that petitioners’ children positively limited the disclosure of the photograph. If such were the case, they cannot invoke the protection attached to the right to informational privacy. That the photos are viewable by “friends only” does not necessarily bolster the petitioners’ contention. In this regard, the cyber community is agreed that the digital images under this setting still remain to be outside the confines of the zones of privacy in view of the sheer number of Facebook “friends” and the facility in which photos can be shared even to those who are not “friends.” It is well to emphasize at this point that setting a post’s or profile detail’s privacy to “Friends” is no assurance that it can no longer be viewed by another user who is not Facebook friends with the source of the content. The user’s own Facebook friend can share said content or tag his or her own Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook friends or not with the former. Also, when the post is shared or when a person is tagged, the respective Facebook friends of the person who shared the post or who was tagged can view the post, the privacy setting of which was set at “Friends.” (Vivares v. St. Theresa’s College, 29 September 2014, Velasco, J.).

2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 17 of 33

Q A man goes by the name of Jennifer Reynes, which name he has been using and by which he has been known since childhood. Recently, he checked his birth certificate and discovered the following: (a) His surname was indicated as “Reyes” rather than “Reynes.” (b) His sex was indicated as “Female” rather than “Male.” Jennifer goes to you and wants to correct the foregoing entries. He also wants to change his first name from “Jennifer” to “Jefferson” because he is often confused for a female and many people tease him about his feminine first name. (A) What remedy/remedies would you advise Jennifer Reyes to avail of? Explain the reason for availing of such remedy/remedies. (B) Is publication a requirement for such remedy/remedies? A (A) (a) For changing “Reyes” to “Reynes”, I would advise Jennifer Reynes to avail of an administrative petition for correction of clerical or typographical with the local civil registrar under R.A. No. 9048. Under R.A. No. 9048, a petition for correction of clerical or typographical error may be filed with the LCR. A clerical or typographical error is one which is visible to the eyes or obvious to the understanding. Here the error is visible to the eyes or obvious to the understanding since it involves the deletion of only one letter from the surname. Hence a petition for correction may be filed with the LCR. (b) For changing the entry on his sex from “female” to “male,” I would advise Jennifer to file a petition for change of entry of sex with the LCR pursuant to R.A. No. 9048. Under R.A. No. 9048, the entry of sex may be changed where it is patently clear that there was a mistake in the entry. Here it is patently clear that there was a mistake in the entry of Jennifer’s sex. Hence an administrative petition for change of entry of sex may be availed of. For changing the name “Jennifer” to “Jefferson,” I would advise Jennifer Reynes to file a petition for change of first name with the LCR. Under R.A. No. 9048, a petition for change of first name may be availed of if the change will avoid confusion. Here the change will avoid confusion as to the sex of Jennifer Reynes. Hence I would advise Jennifer to file a petition for change of first name with the LCR. (B) Publication would be required in the petition to change first name and in the petition to change entry of sex pursuant to R.A. No. 9048. Publication would not be required in the petition to correct “Reyes” to “Reynes” since it is a simple typographical error not involving sex or day or month of birth under R.A. No. 9048. Q Dr. Norma Lugsanay Uy filed a petition for correction of entries under R108 to correct her name from Anita Sy to Norma Lugsanay, her status from “legitimate” to “illegitimate” and her citizenship from “Chinese” to “Filipino.” The order of hearing was duly published. The LCR was impleaded but the petitioner’s parents and siblings were not. Judgment was rendered granting the petition. The Republic argued that the judgment was null and void for failure to implead indispensable parties. Is the Republic’s argument correct? A Yes. The petitioner’s parents and siblings should have been impleaded as they would be naturally and directly affected by the petition. Publication would not be sufficient notice to them. Since the indispensable parties were not impleaded, the judgment was void. (Republic v. Uy, 12 August 2013) Q Can a petition be filed under R108 to correct the erroneous entry in birth certificate that petitioner’s parents were married? A Yes. Even substantial errors in a civil registry may be corrected and the true facts established under R108 provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. A petition seeking a substantial correction of an entry in a civil register must implead as parties to the proceedings not only the local civil registrar, as petitioner did in the dismissed petition for correction of entries, but also all persons who have or claim any interest which would be affected by the correction. This is required by S3, R108. Thus, in his new petition, petitioner should at least implead his father and mother as parties since the substantial correction he is seeking will also affect them. (Onde v. Local Civil Registrar, 10 September 2014).

2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 18 of 33

Q Petitioner Fujiki is a Japanese national who married respondent Maria Paz Marinay in the Philippines in 2004. The marriage did not sit well with petitioner’s parents. Thus, Fujiki could not bring his wife to Japan where he resides. Eventually, they lost contact with each other. In 2008, Marinay met another Japanese, Maekara. Without the first marriage being dissolved, Marinay and Maekara were married in 2008 in Quezon City, Philippines. Maekara brought Marinay to Japan. However, Marinay allegedly suffered physical abuse from Maekara. She left Maekara and started to contact Fujiki. Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In 2010, Fujiki helped Marinay obtain a judgment from a family court in Japan which declared the marriage between Marinay and Maekara void on the ground of bigamy. In 2011, Fujiki filed a petition in the RTC of Pasay City entitled: “Judicial Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage).” Fujiki prayed that (1) the Japanese Family Court judgment be recognized; (2) that the bigamous marriage between Marinay and Maekara be declared void ab initio; and (3) for the RTC to direct the LCR of Quezon City to annotate the Japanese Family Court judgment on the Certificate of Marriage between Marinay and Maekara and to endorse such annotation to the Office of the Administrator and Civil Registrar General in the NSO. A few days after the filing of the petition, the RTC immediately issued an Order dismissing the petition based on Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental (607 SCRA 638 [2009]) wherein the SC ruled that “[i]n a special proceeding for correction of entry under Rule 108, the trial court has no jurisdiction to nullify marriages x x x.” Was the Pasay City RTC’s dismissal of the petition correct? A Since the recognition of a foreign judgment only requires proof of fact of the judgment, it may be made in a special proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the Rules of Court. In Corpuz v. Sto. Tomas (628 SCRA 266 [2010]) this Court declared that “[t]he recognition of the foreign divorce decree may be made in a R108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a particular fact.” Braza is not applicable because Braza does not involve the recognition of a foreign judgment nullifying a bigamous marriage where one of the parties is a citizen of the foreign country. To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage under the Family Code, However, this rule does not apply in a petition for correction or cancellation of a civil registry entry based on the recognition of a foreign judgment annulling a marriage where one of the parties is a citizen of the foreign country. There is no circumvention of the substantive and procedural safeguards of marriage under Philippine law. A recognition of a foreign judgment is not an action to nullify a marriage. It is an action for Philippine courts to recognize the effectivity of a foreign judgment, which presupposes a case which was already tried and decided under foreign law. (Fujiki v. Marinay, 20 June 2013).

CRIMINAL PROCEDURE Q The accused in a criminal case for falsification of public document filed a motion for redetermination of probable cause before the MTC. The MTC denied the motion on the ground that it did not have jurisdiction over the person of the accused who had not yet been arrested. Was the MTC’s denial correct? A No. One who seeks affirmative relief from a court, whether in a criminal or civil case, is deemed to have submitted his person to the jurisdiction of the court. While custody of the law is required before a court can act upon a bail application, it is not required for the adjudication of other reliefs where the mere application constitutes a submission of one’s person to the court’s jurisdiction. (David v. Agbay, 18 March 2015). Q Chong issued checks in favor of Pangga. When presented for payment, the checks were dishonored on 18 March 1993 for insufficiency of funds. Demands for payment by Pangga went unheeded. On 24 August 1995, Pangga filed a complaint for violation of B.P. Blg. 22 against Chong before the Quezon City Prosecutor’s Office. In 1999, the Prosecutor’s Office dismissed Pangga’s complaint on the ground that the action had already prescribed pursuant to Act No. 3326 which provides that violations of special laws which do not provide for their own prescriptive periods shall prescribe in four years unless interrupted by the institution of judicial proceedings. According to the Prosecutor’s Office, since it was more than four years from 18 March 1993 and the information had not yet been filed in court, the criminal action had already prescribed. Was the prosecution for violation of B.P. Blg. 22 barred by prescription? Explain. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 19 of 33

A

No, the prosecution for violation of B.P. Blg. 22 was not barred by prescription. The Supreme Court held that the filing of the complaint with the prosecutor’s office already tolls the running of the prescriptive period even if the offense is for the violation of a special law. Here the complaint was filed in 1995 with the prosecutor’s office which was within four years from the dishonor of the checks in 1993. Hence the prosecution was not barred by prescription. (Panaguiton v DOJ, G.R. No. 167571, 25 November 2008; holding reiterated in People v. Pangilinan, 672 SCRA 105 [2012]) Q On 17 May 2003 Respondent parked his car in a no-parking zone in Baguio City. Petitioner Jadewell Parking Systems put clamps on the Respondent’s wheel. Respondent removed the clamps and drove away with them. On 23 May 2003 Petitioner filed a complaint-affidavit for robbery with the prosecutor’s office against Respondent. After preliminary investigation, the Prosecutor found probable cause for violation of Baguio City Ordinance No. 003-2000 (rather than robbery) against the Respondent and filed the information with the MTC of Baguio City on 2 October 2003. Respondent filed a motion to quash on the ground of extinction of the criminal liability, pointing out that under Act No. 3326, violations penalized by municipal ordinances shall prescribe after two months from the commission of the offense. The prosecution countered that the filing of the complaint with the prosecutor’s office already interrupted the period of prescription pursuant to S1 R110. Should the motion to quash be granted? A Yes. A criminal case involving the violation of a municipal or city ordinance is governed by the Rules on Summary Procedure. As provided in the Revised Rules on Summary Procedure, only the filing of a complaint or information in court tolls the prescriptive period where the crime charged the violation of an ordinance. The ruling in Zaldivia v. Reyes is applicable. Since the information was filed in court after more than two years from the violation of the ordinance, then the criminal liability was extinguished by prescription. (Jadewell Parking Systems Corp. v. Lidua, G.R. No. 169588, 7 October 2013). The court in Jadewell distinguished the facts of the case from People v. Pangilinan, 672 SCRA 105 (2012), which involved the violation of a special law, i.e., B.P. Blg. 22. Q Bankard is a credit card company engaged in acquiring credit card receivables from merchants arising from the purchase of goods and services by credit card holders using credit cards issued by banks, including Solidbank. Solidbank brought to the attention of Bankard questionable transactions which were credited to the accused’s Solidbank credit card. It was found out that the transactions were fictitious. Hence Bankard was constrained to pay the amount of the transactions to Solidbank in the course of the settlement of the transactions between Bankard and Solidbank. Bankard then filed with the prosecutor’s office a complaint for estafa through false pretense under Article 315(2)(a) of the Revised Penal Code against the accused. The accused contended that the complaint against him was not subscribed by the offended party Solidbank in violation of Section 3, Rule 110 of the Rules of Court which provides that the complaint must be subscribed by the offended party, a peace officer, or other public officer charged with the enforcement of the law violated. Was the accused’s contention correct? No, the accused’s contention was not correct. The Supreme Court has held that a complaint filed for purposes of preliminary investigation need not be filed by the offended party but may be filed by any competent person. Here the complaint was filed by Bankard which was a competent person since it had knowledge of the offense charged. Hence Bankard had the personality to file the complaint. (Francisco v. People, G.R. No. 177720, 18 February 2009; Ebarle v. Sucaldito, 156 SCRA 803). A

Q An information for libel was filed against accused for putting up a website allegedly defaming the Yuchengco family. The RTC quashed the criminal information for libel and dismissed the case for lack of jurisdiction, holding that the criminal information failed to allege where the article was printed and first published or where the offended parties reside. The People of the Philippines, through the private prosecutors, and with the conformity of public prosecutor filed a Notice of Appeal to the Court of Appeals. The CA dismissed the appeal on the ground that the Office of the Solicitor General had not given its conformity to the said appeal. Was the dismissal proper? A Yes. The CA correctly dismissed the notice of appeal interposed by petitioners against the order of the RTC because they, being mere private complainants, lacked the legal personality to appeal the dismissal of the criminal case. It is well-settled that the authority to represent the State in 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 20 of 33

appeals of criminal cases before the Supreme Court and the CA is vested solely in the OSG which is the law office of the Government. (Malayan Insurance Co. v. Piccio, 6 August 2014). Q The accused was charged with perjury through the making of a false affidavit under Article 183 of the Revised Penal Code, committed allegedly by executing a certification against forum shopping containing a false narration. Where is the proper venue of the perjury charge? Makati City, where the certificate against forum shopping was notarized, or Pasay City, where the CFS was presented to the trial court? A Makati where the affiant subscribed and swore to her CFS before the notary public. Perjury committed through the making of a false affidavit under Art. 183 is committed when the affiant subscribes and swears to his or her affidavit since it is when the crime is consummated and all the elements of perjury are executed. (Union Bank v. People, 28 February 2012, e.b.). Q Criminal complaints for falsification of commercial documents were filed in the RTC upon complaint of the PDIC against the respondent bank officers. Trial was delayed allegedly due to the fault of the prosecution. Respondents filed a motion to dismiss on the ground of violation of their right to a speedy trial which was denied. This prompted them to file a petition for certiorari before the Court of Appeals docketed as CA-G.R. SP No. 108319. A copy of said petition was served, however, only on the private complainant, i.e., the PDIC, and not the People of the Philippines (the People), through the Office of the Solicitor General (OSG), as it was not even impleaded as party to the case. In a Decision dated September 28, 2011, the CA annulled and set aside the assailed orders of the RTC, and consequently dismissed the criminal cases against respondents. Did the CA act correctly in annulling and setting aside the RTC order? A No. Respondents’ certiorari petition in CA-G.R. SP No. 108319 that sought the dismissal of the criminal cases against them should not have been resolved by the CA, without the People, as represented by the OSG, having first been impleaded. This stems from the recognition that the People is an indispensable party to the proceedings. While the failure to implead an indispensable party is not per se a ground for the dismissal of an action, considering that said party may still be added by order of the court, on motion of the party or on its own initiative at any stage of the action and/or such times as are just, it remains essential – as it is jurisdictional – that any indispensable party be impleaded in the proceedings before the court renders judgment. This is because the absence of such indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. Consequently, the CA was directed to (a) reinstate respondents' certiorari petition, and (b) order said respondents to implead the People as a party to the proceedings and thereby furnish its counsel, the OSG, a copy of the aforementioned pleading. (People v. Go, 24 September 2014). Q An information for homicide was filed in the RTC against Danilo Mananaksak, “John Doe” and “Richard Doe.” The information alleged that on 16 October 2012, Danilo Mananaksak, armed with a knife, unlawfully attacked and killed one Boy George Michael while the said two unknown assailants held his arms, “using superior strength, inflicting mortal wounds which were the direct cause of his death.” Mananaksak was arraigned and pleaded not guilty. Subsequently the prosecution moved to amend the information by changing the designation of the crime from homicide to murder. Mananaksak opposed the motion to amend stating that he had already been arraigned. a) Should the judge grant the motion to amend the information? Explain. b) Would your answer be the same if there was no allegation of abuse of superior strength in the information? Explain. A

(a) Yes the judge should grant the motion to amend the information. Under the Rules of Criminal Procedure, a formal amendment of the information may be granted even after plea. Here the amendment of the crime’s designation from homicide to murder was merely formal since the qualifying circumstance of “abuse of superior strength” was already alleged in the original information charging homicide. Hence the motion to amend the information should be granted. (Buhat v. Court of Appeals, 17 Dec 96) (b) No, my answer would not be the same if there was no allegation of abuse of superior strength in the information. In that case, the motion to amend the information should not be granted. Under the Rules of Criminal Procedure, a substantial amendment cannot be made after the accused has pleaded. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 21 of 33

Here the amendment changing the offense charged from homicide to murder would be substantial since it would change the nature of the offense charged. Hence the motion to amend the information should not be granted. (Buhat v. CA, 17 Dec 96). Q Accused were charge of murder before the RTC. What would be the remedy of the accused if during trial, they were able to show that the alleged murders were committed in furtherance of rebellion, and thus absorbed in the crime of rebellion under the political offense doctrine? A File a motion for substitution under S14 R110. Thus, if it is shown that the proper charge against the accused should have been simple rebellion, the trial court shall dismiss the murder charges upon the filing of the information for simple rebellion, as long as accused would not be placed in double jeopardy. (Ocampo v. Abando, 11 February 2014).

Q

Rimando issued 3 postdated check to the Sps. Aldaba to accommodate their investment in Multitel Corporation. The checks bounced for insufficiency of funds. Rimando was prosecuted for the violation of B.P. Blg. 22 and for estafa under Article 315(2)(d) of the Revised Penal Code. Rimando was acquitted in the BP 22 cases on the ground of reasonable doubt, with a declaration that the act or omission from which liability may arise does not exist. Later Rimando was acquitted also in the estafa case but with the pronouncement that he was civilly liable to the Spouses Rimando for the value of the postdated checks. On appeal, Rimando contended that her acquittal and exoneration from the civil liability in the BP 22 cases should have barred Sps. Aldaba from claiming civil liability from her in the estafa case. Is Rimando’s contention correct? A No. Rimando’s acquittal and subsequent exoneration in the BP 22 cases had no effect in the estafa case, even if both cases were founded on the same factual circumstances. While a BP 22 case and an estafa case may be rooted from an identical set of facts, they nevertheless present different causes of action, which, under the law, are considered "separate, distinct, and independent" from each other. Therefore, both cases can proceed to their final adjudication -both as to their criminal and civil aspects -subject to the prohibition on double recovery. Perforce, a ruling in a BP 22 case concerning the criminal and civil liabilities of the accused cannot be given any bearing whatsoever in the criminal and civil aspects of a related estafa case. (Rimando v. Sps. Aldaba, 13 October 2014). Q San Miguel Properties, Inc., through its officers, filed with the office of the prosecutor a criminal complaint against the responsible officers of BF Homes Inc. for failure to deliver titles despite full payment in violation of Section 25 of P.D. No. 957. At the same time, SMPI filed an administrative complaint with the Housing and Land Use Regulatory Board against BF Homes for delivery of titles. At the prosecutor’s office, respondents filed a motion to suspend the proceedings on the ground that there was a prejudicial question in the HLURB case. SMPI argued that there can be no prejudicial question since there was no previous civil case, the HLURB case being administrative in nature. SMPI also argued that there can be no prejudicial question since both cases were initiated by SMPI. The prosecutor’s office granted the motion to suspend. Was the grant of the motion proper? A Yes. It is clear that the resolution of the issue of whether BF Homes is obligated to deliver the titles to SMPI is determinative of whether the criminal case for violation of Sec. 25 of P.D No. 957 should proceed or not. The concept of a prejudicial question involves a civil action and a criminal case. Yet, contrary to SMPI’s submission that there could be no prejudicial question to speak of because no civil action where the prejudicial question arose was pending, the action for specific performance in the HLURB raises a prejudicial question that sufficed to suspend the proceedings determining the charge for the criminal violation of Section 25 of P.D No. 957. This is true simply because the action for specific performance was an action civil in nature which could not be instituted elsewhere except in the HLURB, whose jurisdiction over the action was exclusive and original. The submission that respondents could not validly raise the prejudicial question as a reason to suspend the criminal proceedings because respondents had not themselves initiated either the action for specific performance or the criminal action is unfounded. The rule on prejudicial question makes no distinction as to who is allowed to raise the defense. When the law makes no distinction, we ought not to distinguish. (San Miguel Properties, Inc. v. Perez, 4 September 2013). Q Is the respondent in a preliminary investigation entitled to be furnished with the counteraffidavits of his co-respondents?

2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 22 of 33

A No. Both the Rules of Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require the investigating officer to furnish the respondent with copies of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of these Rules require the investigating officer to furnish the respondent with copies of the affidavits of his co-respondents. The right of the respondent is only “to examine the evidence submitted by the complainant,” as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. (Estrada v. Ombudsman, 21 January 2015). Q What are the four instances in the Rules of Criminal Procedure where probable cause is needed to be established? A (1) In S1 and 3 R112: By the investigating officer, to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to the fine; (2) In S6 and 9 R112: By the judge, to determine whether a warrant of arrest or a commitment order, if the accused has already been arrested, shall be issued and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice; (3) In S5(b) R113: By a peace officer or a private person making a warrantless arrest when an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (4) In S4 R126: By the judge, to determine whether a search warrant shall be issued, and only upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (Estrada v. Ombudsman, 21 January 2015). Q

Is hearsay admissible in determining probable cause in a preliminary investigation?

A Yes, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is “substantial evidence” which cannot rest entirely or even partially on hearsay evidence. (Estrada v. Ombudsman, 21 January 2015). Q An information for murder was filed with the Paranaque Regional Trial Court against the PNP Special Action Force and Highway Patrol Group for the murder of a father and his 7-year-old daughter. The HPG officers filed an omnibus motion for judicial determination of probable cause and to hold in abeyance the issuance of arrest warrants. The RTC dismissed the case against the HPG officers for lack of probable cause since none of the witnesses saw them actually taking part in the shooting and on its finding that the HPG acted merely as a blocking force. Fifty days later, the OSG filed a petition for certiorari with the Court of Appeals alleging grave abuse of discretion on the part of the RTC in dismissing the case. How should the CA act on the petition? A The CA should dismiss the petition. The proper remedy that the OSG should have taken was to appeal from the dismissal order rendered under S5 R112. The dismissal for lack of probable cause under S5 R112 is a final order that should have been appealed pursuant to S1 R122. It is a final order since it disposes of the case, terminates the proceedings, and leaves the court with nothing further to do with respect to the case against petitioner HPG officers. Of course, the People may refile the case if new evidence adduced in another preliminary investigation will support the filing of a new information against them. (Cajipe v. People, 23 April 2014). Q Police officers approached the accused who was talking with another person. Upon seeing the officers, the accused ran away. He was arrested after a chase and drugs seized from him. May the seized drugs be used in evidence against the accused? 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 23 of 33

A No. Trying to run away when no crime has been overtly committed, and without more, cannot be evidence of guilt. Considering that the appellant’s warrantless arrest was unlawful, the search and seizure that resulted from it was likewise illegal. Thus, the alleged plastic bag containing white crystalline substances seized from him is inadmissible in evidence, having come from an invalid search and seizure. (People v. Edaño, 7 July 2014). Q Police officers received a text message that a Marvin Buya would be transporting marijuana. They put up a check-point. A jeepney was stopped and the driver signaled to the policeman two passengers who were carrying marijuana. Accused Victor Cogaed, one of the indicated passengers, was asked to open his bag and when he did, marijuana was found inside. May the marijuana be admitted in evidence against the accused? A No, since there was no valid search. The case would not come under the “stop-and-frisk” exception to the search warrant requirement. A basic criterion of this exception would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act. It is the police officer who should observe facts that would lead to a reasonable degree of suspicion of a person. The police officer should not adopt the suspicion initiated by another person. This is necessary to justify that the person suspected be stopped and reasonably searched. Anything less than this would be an infringement upon one’s basic right to security of one’s person and effects. Here Cogaed was simply a passenger carrying a bag and traveling aboard a jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag. The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the driver who signalled to the police that Cogaed was “suspicious.” The fact that Cogaed was the one who opened his bag would not amount to a waiver of the Constitutional right against unlawful search. The waiver must be clear and unequivocal. Here the act of opening the bag was brought about by the directive of the police officer, a person in authority and an intimidating figure. (People v. Cogaed, 30 July 2014). Q Accused police officer was arrested for extortion after an entrapment operation. He was compelled to undergo a drug test by submitting his urine sample. The urine sample tested positive for drugs. Accused was convicted of the crime of use of dangerous drugs under Section 15, Art. II of the Comprehensive Dangerous Drugs Act (R.A. 9165). He challenged the admissibilty of the urine sample on the ground that his drug testing violated his right against self-incrimination. Was the urine sample properly admitted in evidence? No. The drug testing violated the accused’s right against self-incrimination. The drug test in Section 15 of RA 9165 covers only those arrested for crimes under Art. II of RA 9165. Here the accused was arrested for extortion not for dangerous drug use. We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest. In the instant case, we fail to see how a urine sample could be material to the charge of extortion. It is thus erroneous to hold that the extraction of petitioner’s urine for purposes of drug testing was “merely a mechanical act, hence, falling outside the concept of a custodial investigation.” (Dela Cruz v. People, 23 July 2014). A

Q Arrested after a buy-bust operation, the accused was made to sign a “receipt for property seized” which included the shabu seized from him. Accused contends that he was not assisted by a lawyer when he signed the “Receipt for Property Seized;” therefore, the document cannot be admitted in evidence against him as his act of signing the same is a form of confession or admission. Is the accused’s contention correct? A Yes. There is no showing in the records of this case that accused was assisted by a counsel when he signed the “Receipt for Property Seized.” It is settled that the signature of an accused in the receipt of property seized is inadmissible in evidence if it was obtained without the assistance of counsel. The signature of the accused on such a receipt is a declaration against his interest and a tacit admission of the crime charged; hence, the constitutional safeguard must be observed. (People v. Endaya, 23 July 2014). Q Gildo was charged in the Sandiganbayan with the violation of Sec. 3(g) of the Anti-Graft Law for entering into a contract manifestly disadvantageous to the government. Gildo pleaded not guilty. The prosecution and Gildo entered into a stipulation during the pre-trial that Gildo as a director of the 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 24 of 33

GSIS did not sign the minutes wherein the board resolution approving the contract subject of the information was passed. Thereafter, invoking the stipulation, Gildo filed a motion to dismiss on the ground of insufficiency of evidence. The Sandiganbayan granted the motion and dismissed the case. The People appealed the order of dismissal to the Supreme Court under Rule 45. Will the appeal place Gildo in double jeopardy? Explain. A

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. 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). Q Private respondents filed with the Pasay City Prosecutor a complaint for violation of Sec. 74 of the Corporation Code against Petitioners who are the president and corporate secretary of STRADEC, a domestic corporation. Private respondents alleged that Petitioners refused to make available to them the stock and transfer book of STRADEC. After preliminary investigation, the criminal complaint was filed with the Metropolitan Trial Court of Pasay City. On the same date, the petitioners filed an Urgent Motion for Judicial Determination of Probable Cause and to Defer the Issuance of Warrants of Arrest Pending Determination with the MTC. The MTC denied the motion and subsequent motion for reconsideration. Petitioners filed a petition for certiorari under R65 with the Regional Trial Court of Pasay City, which was raffled to Branch 154. Petitioners were arraigned in the MTC case. In an order dated 4 June 2007, the RTC-Branch 154, granted the petition holding that there was no probable cause to hold the petitioners for trial. Consequently, it directed the MTC to dismiss the criminal case want of probable cause. The private respondents thereafter sought reconsideration but it was denied by the RTC-Branch 154. Thus, they brought an appeal to the SC via a petition for review on certiorari (docketed as G.R. No. 180416) raising pure questions of law. While G.R. No. 180416 was pending, the MTC dismissed Criminal Case No. 89724, pursuant to the RTCBranch 154’s Order. The private respondents thereafter filed a motion for reconsideration, which the MTC granted. Upon learning that a petition for certiorari had been filed before the SC, the MTC issued an order (order of Revival) recalling the order of Dismissal and reinstating the criminal information in Criminal Case No. 89724. The Petitioners argue that the order of revival would place them in double jeopardy. Is the Petitioners’ argument correct? A No. Under S7 R117, in order that there will be double jeopardy, the conviction, acquittal, or termination must be made by a court of competent jurisdiction. Once the case has been appealed and given due course by this Court, the lower court or the court of origin could no longer take cognizance of the issue under review. It cannot execute the judgment appealed from because to do so would constitute encroachment on the exclusive appellate jurisdiction of this Court. Since the MTC clearly had no jurisdiction to issue the Order of Dismissal, there can be no double jeopardy. (Quiambao v. People, 17 September 2014). Q Wife filed a complaint for bigamy against husband and Ms. X. The information for bigamy was filed against the husband and Ms. X (petitioners). The appearance of private prosecutor for the wife was denied by the Regional Trial Court. The wife filed a petition for certiorari with prayer for TRO/preliminary injunction with the Court of Appeals, which issued the TRO. Despite the TRO issued by the CA, trial of the bigamy case proceeded with the presentation of the prosecution’s evidence, to which husband filed a demurrer to evidence. In an order dated 5 September 2006, the RTC dismissed the bigamy case for failure of the prosecution to prove the petitioners’ guilt. In a decision dated 30 July 2010, the CA granted Amelia’s petition and annulled the RTC’s 3 March 2006 resolution disqualifying Atty. Atencia from participation in the case, and its 5 September 2006 order that dismissed the bigamy case against the petitioners. The petitioners contend that the CA’s order, setting aside the RTC’s dismissal order, violated their right against double jeopardy. Is the petitioners’ contention correct? A No. The RTC issued its 5 September 2006 order in defiance of the TRO issued by the CA. The records show that the CA had issued a TRO on April 19, 2006, which should have prohibited the RTC from further proceeding on the case. But the RTC, instead, continued with the presentation of the prosecution’s evidence and issued the assailed 5 September 2006 order. Under this 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 25 of 33

circumstance, the RTC’s 5 September 2006 dismissal order was actually without force and effect and would not serve as basis for the petitioners to claim that their right against double jeopardy had been violated. The RTC acted with grave abuse of discretion in issuing its 5 September 2006 order in view of the earlier TRO issued by the CA. (Villalon v. Chan, 24 September 2014). Q Section 7 of the Cybercrime Law provides that prosecution thereunder is without prejudice to liability under the Revised Penal Code and other laws. Under the said law, online child pornography is defined as the prohibited acts under the Anti-Child Pornography Act committed through a computer system while online libel is defined as the libel defined under Article 355 of the Revised Penal Code committed through a computer system or any other similar means. May the said provision be struck down as unconstitutional insofar as it relates to online libel and online child pornography? A Yes. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Charging the offender under both laws would be a blatant violation of the constitutional proscription against double jeopardy. The same observation also applies to online child pornography which is already penalized under the ACPA. (Disini v. Secretary of Justice, 18 February 2014). Q Appellant was charged with robbery with homicide. The RTC convicted him of murder on its finding that the Appellant could not have committed robbery. He appealed to the Court of Appeals which modified the judgment by convicting him of robbery with homicide. Appellant maintained that the CA erred in finding him liable for robbery with homicide as charged in the amended information. He argued that his appeal to the CA was limited to his conviction for murder and excluded his acquittal for robbery and that by appealing his conviction for murder, he does not waive his constitutional right not to be subject to double jeopardy for the crime of robbery. He claimed that even assuming that the RTC erred in acquitting him of the robbery charge, such error can no longer be questioned on appeal. Is the Appellant’s argument meritorious? A No. An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties. When an accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, whether favorable or unfavorable to the appellant. In other words, when appellant appealed the RTC’s judgment of conviction for murder, he is deemed to have abandoned his right to invoke the prohibition on double jeopardy since it became the duty of the appellate court to correct errors as may be found in the appealed judgment. Thus, appellant could not have been placed twice in jeopardy when the CA modified the ruling of the RTC by finding him guilty of robbery with homicide as charged in the Information instead of murder. (People v. Torres, 24 September 2014). Q Respondent New Prosperity Plastic Products, represented by Elizabeth Uy, is the private complainant in Criminal Cases for Violation of B.P. Blg. 22 filed against petitioner William Co, which were raffled to the MeTC of Caloocan City. In the absence of Uy and the private counsel, the cases were provisionally dismissed on 9 June 2003 in open court pursuant to S8 R117. Uy received a copy of the 9 June 2003 Order on 2 July 2003, while her counsel of record received a copy a day after (3 July). On 2 July 2004, Uy, through counsel, filed a Motion to Revive the Criminal Cases. The accused opposed the motion on the ground that the provisional dismissal had become permanent since more than one year had lapsed from the issuance of the order of provisional dismissal. The accused also argued that both the motion to revive and the court order of revival must be made within the one-year period. a) May the criminal cases be revived? b) Would your answer be the same if the private counsel received the order of provisional dismissal also on 2 July 2003, taking into account that 2004 is a leap year? A a) Yes. Although S8 R117 states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. If the offended party is represented by a private counsel the rule is that the reckoning period should commence to run from the time such private counsel was actually notified of 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 26 of 33

the order of provisional dismissal. When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his/her given address. Here the order of provisional dismissal was received by the private counsel on 3 July 2003. Hence the motion to revive filed on 2 July 2004 was filed within the one year period. The contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one-year period is unsustainable. Such interpretation is not found in the Rules. Moreover, to permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply. Judicial notice must be taken of the fact that most, if not all, of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions. b) Yes. Under the Administrative Code of 1987, a year is composed of 12 calendar months. Hence the fact that February 2004 had 29 days is irrelevant since the law speaks of calendar months. Hence a motion to revive filed on 2 July 2004 was within 12 calendar months from 2 July 2003. (Co v. New Prosperity Plastic Products, Inc., 30 June 2014). Q Accused was charged with rape and detained. The private complainant filed a petition for transfer of venue. Pretrial was conducted and terminated. On the date set for the trial, the prosecution filed a motion for continuance citing the pendency of the petition for transfer of venue. The accused filed a motion to dismiss the case on the ground of the violation of his right to a speedy trial invoking S1 R119 which provides that trial shall be conducted within 30 days from receipt of the pretrial order. The prosecution argued that the time during which the petition for transfer of venue was pending should be excluded from the 30-day period citing S3(a)(5) R119. The trial court dismissed the case and the prosecution brought the matter up to the SC by way of certiorari under R65. Did the trial court act properly in dismissing the case? A Yes. A careful reading of S3(a)(5) R119 would show that the only delays that may be excluded from the time limit within which trial must commence are those resulting from proceedings concerning the accused. The time involved in the proceedings in a petition for transfer of venue can only be excluded from said time limit if it was the accused who instituted the same. Here, the time during which the petition for transfer of venue filed by the private complainant is pending cannot be excluded from the time limit of thirty (30) days from receipt of the pre-trial order for the trial to commence imposed in S1 R119. Hence the trial court acted properly in dismissing the case. (Mari v. Gonzalez, 12 September 2011). Q Petitioners were charged before the MeTC for Other Deceits under Article 318 of the Revised Penal Code. The prosecution’s complaining witness was Li Luen Ping, a frail, old businessman from Cambodia. The private prosecutor filed with the MeTC a motion to take oral deposition of Li before the Philippine consular official in Cambodia, alleging that Li was being treated for lung infection in Cambodia and upon doctor’s advice, he could not make the long travel to the Philippines by reason of ill health. Notwithstanding the Petitioners’ objections, the MeTC granted the motion. Did the MeTC act correctly in granting the motion to take oral deposition? A No. The procedure under R23 to 28 allows the taking of depositions in civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time or place within the Philippines; or before any Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or country, with no additional requirement except reasonable notice in writing to the other party. But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would forseeably be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the case is pending as required by the clear mandate of S15 R119. To do otherwise would violate the accused’s right to confront the witnesses against him. (Go v. People, 18 July 2012). Q The accused Sevilla was charged with falsification of public document under Art. 171(4) of the Revised Penal Code. The prosecution alleged that on the first day of his term as councilor of the City of Malabon, Sevilla made a false narration in his Personal Data Sheet (PDS) to wit: that in answer to the question of whether there is a pending criminal case against him, Sevilla marked the box corresponding to the “no” answer despite the pendency of a criminal case against him for assault upon an agent of a person in authority before the Metropolitan Trial Court of Malabon City, Branch 55. The Sandiganbayan found that accused could not be convicted of falsification of public document since he did not act with malicious intent to falsify the entry but nonetheless convicted him of reckless imprudence resulting to falsification of public document under Article 365 of the RPC considering that 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. 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Sevilla’s PDS was haphazardly and recklessly done, which resulted in the false entry therein. Was the accused’s conviction proper? A Yes. In case of variance between the allegation and proof, a defendant may be convicted of the offense proved when the offense charged is included in or necessarily includes the offense proved. There is no dispute that a variance exists between the offense alleged against Sevilla and that proved by the prosecution – the Information charged him with the intentional felony of falsification of public document under Article 171(4) of the RPC while the prosecution was able to prove reckless imprudence resulting to falsification of public documents. Parenthetically, the question that has to be resolved then is whether reckless imprudence resulting to falsification of public document is necessarily included in the intentional felony of falsification of public document under Article 171(4) of the RPC. The answer is in the affirmative. (Sevilla v. People, 13 August 2014). Q The police filed with the Regional Trial Court an application for search warrant for theft following the complaint of PLDT that respondents (officers and employees of World Wide Web Corporation) were using the facility of PLDT in order to redirect long-distance calls to respondents’ customers to the damage and prejudice of PLDT. The trial court issued the search warrants but on a motion to quash, the trial court later quashed the search warrants for being general warrants. PLDT filed a motion for reconsideration but this was denied by the trial court on the ground that PLDT did not get the conformity of the public prosecutor as required by S5 R110. PLDT appealed the order quashing the search warrants to the Court of Appeals. a) Does PLDT have the personality to challenge the quashal of the search warrants? b) Is appeal or a special civil action for certiorari the proper mode to challenge the order quashing the search warrants? A a) Yes, PLDT has the legal personality to file appeals from the orders quashing the search warrant. The petition filed by PLDT before this Court does not involve an ordinary criminal action which requires the participation and conformity of the City Prosecutor or the Solicitor General when raised before appellate courts. On the contrary, what is involved here is a search warrant proceeding which is not a criminal action, much less a civil action, but a special criminal process. (HPS Software v. PLDT, 10 December 2012; Worldwide Web Corp. v. People, 13 January 2014). b) Appeal is the appropriate mode. Where a search warrant is applied for and issued in anticipation of a criminal case yet to be filed, the order quashing the warrant ends the judicial process. Hence the remedy from such an order is appeal and not certiorari. (Worldwide Web Corp. v. People, 13 January 2014). Q Accused was chased and arrested by the police after he had fired a gun against them. Recovered from him was a bag containing marijuana. Convicted of illegal possession of drugs, he argues that the marijuana could not be used against him as it was not seized by virtue of the plain view doctrine, the same being contained inside the bag. Was the accused’s contention correct? A No. Under S13 R126 a person lawfully arrested may be searched for dangerous weapons or for anything which may be used in evidence without a search warrant. Here, the marijuana was found in a black bag in Calantiao’s possession and within his immediate control. He could have easily taken any weapon from the bag or dumped it to destroy the evidence inside it. As the black bag containing the marijuana was in Calantiao’s possession, it was within the permissible area that the apprehending officers could validly conduct a warrantless search. Calantiao’s argument that the marijuana cannot be used as evidence against him because its discovery was in violation of the Plain View Doctrine, is misplaced. “The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object x x x. [It] serves to supplement the prior justification – whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused – and permits the warrantless seizure.” The Plain View Doctrine thus finds no applicability in Calantiao’s situation because the police officers purposely searched him upon his arrest. The police officers did not inadvertently come across the black bag, which was in Calantiao’s possession; they deliberately opened it, as part of the search incident to Calantiao’s lawful arrest. (People v. Calantiao, 18 June 2014, Leonardo-De Castro, J.)

2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 28 of 33

EVIDENCE Q In a disbarment case, introduced in evidence against the respondent was a birth certificate showing that he had fathered children by his mistress. The respondent invokes Article 7 of P.D. No. 603 which provides that the birth records of a person shall be kept strictly confidential and that no information thereto shall be disclosed except on request of the person himself or of a court or proper government official and which punishes with imprisonment and/or fine any unauthorized disclosure. Is the birth certificate admissible in evidence? A Yes. Article 7 of P.D. No. 603 only provides for sanctions against persons violating the rule on confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said article would render said records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures. It should be emphasized, however, that said rule against unreasonable searches and seizures is meant only to protect a person from interference by the government or the state. Consequently, in this case where complainants, as private individuals, obtained the subject birth records as evidence against respondent, the protection against unreasonable searches and seizures does not apply. Since both Article 7 of P.D. No. 603 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against respondent. (Tolentino v. Mendoza, 440 SCRA 519 [2004], cited in De Jesus v. SanchezMalit, 8 July 2014). Q PCGG on behalf of the Republic filed a complaint for reversion against former President Marcos. Upon his death he was substituted by his heirs. During the trial, the PCGG presented certified true photocopies of Pantranco’s articles of incorporations, memorandum of agreement, and purchase agreement. The PCGG also presented a photocopy of the proceedings before the PCGG. These were objected to by respondents on the ground that they violate the best evidence rule. Petitioner contends that these documents fall within the exception under S3(d) R130, that is, these documents are public records in the custody of a public officer or are recorded in a public office. It is its theory that since these documents were collected by the PCGG, then, necessarily, the conditions for the exception to apply had been met. Should the objection be sustained? A Yes. The fact that Pantranco’s articles of incorporations, memorandum of agreement, and purchase agreement were collected by the PCGG in the course of its investigation of the Marcoses’ alleged ill-gotten wealth do not make the same public records within the purview of S3(d) and S7 R130 as well as S19(c) R132. As to the copy of the TSN of the proceedings before the PCGG, while it may be considered as a public document under S19(a) R132 since it was taken in the course of the PCGG’s exercise of its mandate, it was not attested to by the legal custodian to be a correct copy of the original. This omission falls short of the requirement of S24 and S25 R132. (Republic v. Marcos-Manotoc, G.R No. 171701, 8 February 2012). Q Peter filed a petition with the Family Court for the declaration of the nullity of his marriage to his wife Rina on the ground of the latter’s psychological incapacity. Peter is presented as the first witness and his testimony is offered to prove the psychological incapacity of Rina. Rina objects on the grounds of the marital disqualification rule and the marital communication privilege. a) How should the court rule on the objections? Explain. Peter filed a motion for production of documents under Rule 27 directed to the physician overseeing the drug rehabilitation of Rina for him to produce the records regarding Rina’s rehabilitation. Rina’s lawyer objects to the motion for production invoking the physician-patient privilege. Peter’s lawyer retorts that the objection is premature as the records are not yet being offered in evidence and, assuming that the objection is not premature, that the physician-patient privilege bars only testimonial evidence since it refers only to the disqualification of the physician to testify on a matter learned in confidence but does not otherwise bar the production of documentary evidence. b) How should the court rule on Rina’s objection? Explain. After trial, the court rendered judgment dismissing Peter’s petition on the ground that he was not able to prove his wife’s psychological capacity. The judgment became final and unappealable. A year later, Peter filed a petition for declaration of nullity of his marriage to Rina on the ground of the absence of a marriage license. Rina filed a motion to dismiss on the ground of res judicata. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. 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c) How should the court rule on the motion? Explain. A

(a) The court should overrule the objections. Under the Rules of Evidence, an exception to the marital disqualification rule and the marital communication privilege is in case of a civil case filed by one spouse against the other. Here there is a civil case for declaration of nullity of marriage filed by Peter against his spouse Rina. Hence the case is exempted from the marital disqualification rule and the marital communication privilege and thus the objections should be overruled. (b) The court should sustain Rina’s objection. The argument of Peter’s lawyer that the objection is premature is without merit. Under the Rules on Discovery, documents which are privileged may not be the subject of a motion for production. (S1 R27). Here the documents subject of a motion for production were covered by the physician-patient privilege. Hence the adverse party Rina may object to the motion on the ground that the documents sought to be produced are privileged and may not be the subject of a motion for production. The argument of Peter’s lawyer that the physician-patient privilege bars only testimonial evidence is also without merit. The Supreme Court has held that the physician-patient privilege bars not only the physician’s testimony on the confidential information but also the documents embodying such confidential information. Here the documents embody the confidential information on Rina’s drug rehabilitation obtained by the physician. Hence the same are also barred under the physician-patient privilege. (Chan v. Chan, 24 July 2013). (c) The court should grant the motion to dismiss on the ground of res judicata. Under the Rules of Civil Procedure, a judgment is conclusive not only with respect to the matter directly adjudged but also as to any other matter that could have been raised in relation thereto. (S47[b] R39). Here the absence of a marriage license could have been raised in relation to the first case for declaration of nullity but was not. Hence the judgment in the first case is also conclusive as to any matter regarding the marriage license and hence the motion to dismiss on the ground of res judicata should be granted. (Mallion v. Alcantara, 31 October 2006). Q Police officers invited suspect Enojas to come with them aboard their car. Later the police got involved in a firefight at a 7-11 store in which one gunman and one officer were killed. In the confusion, Enojas disappeared but left his cell phone in his cab. Officer Cambi got the cellphone and pretending to be Enojas was able to cause the entrapment and arrest of the suspects in the killing. Enojas was himself arrested. The accused were charged with murder. The text messages sent to the phone recovered from the taxi driven by Enojas clearly made references to the 7-11 shootout and to the wounding of “Kua Justin,” one of the gunmen, and his subsequent death. The context of the messages showed that the accused were members of an organized group of taxicab drivers engaged in illegal activities. May the transcript of the text messages be used in evidence against the accused? A Yes. As to the admissibility of the text messages, the Regional Trial Court admitted them in conformity with the Court’s earlier Resolution applying the Rules on Electronic Evidence to criminal actions. (A.M. No. 01-7-01-SC, Re: Expansion of the Coverage of the Rules on Electronic Evidence, September 24, 2002, effective 14 October 2002). Text messages are to be proved by the testimony of a person who was a party to the same or has personal knowledge of them. Here, PO3 Cambi, posing as the accused Enojas, exchanged text messages with the other accused in order to identify and entrap them. As the recipient of those messages sent from and to the mobile phone in his possession, PO3 Cambi had personal knowledge of such messages and was competent to testify on them. (People v. Enojas, 10 March 2014). (Note: The pronouncement as to the inclusion of criminal actions and proceedings in the coverage of the REE cleared up doubts engendered by People v. Abad, 20 April 2010, where the Supreme Court in an obiter stated that the REE does not apply to criminal actions). (Note: Not clear from decision whether the text messages were retained or recorded). Q Sometime in 1984, subdivision developer Ayala Land, Inc. (ALI) sold a parcel of land to the spouses Yuson. In 1987, the spouses Yuson sold the land to the spouses Felipe and Mary Anne Alfonso. A Deed of Restrictions was annotated in TCT No. 149166 issued to the spouses Alfonso, as had been required by ALI. The Deed of Restrictions indicated that the property shall be used exclusively for the establishment and maintenance thereon of a preparatory (nursery and kindergarten) school. The Deed of Restrictions provides that the same may be enforced by ALI and/or the homeowners’ association. 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 30 of 33

ALI turned over the right and power to enforce the restrictions on the properties in the Ayala Alabang Village, including the above restrictions on TCT No. 149166, to the association of homeowners therein, the Ayala Alabang Village Association (AAVA). In 1989, the spouses Alfonso opened on the same lot The Learning Child Center Pre-school (TLC), a preparatory school which initially consisted of nursery and kindergarten classes. In 1991, TLC was expanded to include a grade school program, the School of the Holy Cross, which provided additional grade levels as the pupils who initially enrolled advanced. On October 13, 1992, AAVA filed with the Regional Trial Court (RTC) of Makati City an action for injunction against TLC and the spouses Alfonso, alleging breach of contract by the defendant spouses, particularly of the Deed of Restrictions, the contents of which likewise appear in the Deed of Absolute Sale. During the trial, TLC introduced in evidence statements of ALI that it had agreed to the reclassification of the subject property as “institutional” and that the school was a “worthy undertaking.” AAVA argued that it is not bound by these statements of ALI under the res inter alios acta rule in S28 R130. Is AAVA’s argument tenable? A No. Acts and declarations of the developer ALI would be binding upon AAVA in an action to enforce the deed of restrictions on subdivision lots in Ayala Alabang Village. This is because the deed of restrictions provide that the same may be enforced by ALI and/or AAVA. Hence ALI is a person jointly interested with AAVA within the purview of S29 R130. (The Learning Child Inc. v. Ayala Alabang Village Association, 7 July 2010, Leonardo-De Castro, J.). Q MBMI a Canadian corporation, entered into a joint venture with corporations A, B, and C. Redmont Corporation filed a petition to cancel the mining licenses of A, B, and C corporations on the ground that the foreign equity exceeded 40%. The Court of Appeals in finding on appeal that MBMI owned more than 60% of the capital stock of corporations A, B, and C, took into account the statements of MBMI to that effect. Corporations A, B, and C argued that MBMI’s statements are res inter alios acta since MBMI is not a party to the case. Is this argument correct? A No. The CA correctly applied S29 R130 on joint interest. By entering into a joint venture, MBMI has a joint interest with Corporations A, B, and C. Hence its statements in relation to such joint venture are an exception to the res inter alios acta rule. (Narra Nickel Mining Corp. v. Redmont Consolidated Mines Corp., 21 April 2014). Q Prosecution for rape. Dr. Mijares examined the victim AAA and executed a medical report on his findings. At the scheduled hearing, Dr. Mijares appeared, after several subpoenas and warnings from the court, but instead of presenting him to be examined on his medical report on the alleged rape of AAA, the prosecutor manifested that she was dispensing with his testimony provided the defense agreed to the prosecution’s offer of stipulation that AAA submitted herself to medical examination one week after the alleged rape, to which the defense acceded. Is the medical report hearsay? A Yes, since Dr. Mijares did not testify in court regarding the same. In fact his testimony was dispensed with. (People v. Rondina, 30 June 2014). (Note that the stipulation was not on the authenticity of the medical report but on the fact simply that AAA submitted herself to medical examination one week after the alleged rape). Q May a statement made as part of the res gestae be admissible as an exception to the hearsay rule even if made 11 hours after the incident? A Yes, provided that the declarant was still under the influence of the startling occurrence when he made the declaration. (Zarate v. People, 3 July 2009). Q Petitioner presented Kenneth Sy as its witness. Stephen Sy was in the courtroom and he listened to Kenneth’s testimony. When Petitioner was about to present Stephen as its next witness, Respondent’s counsel objected to the presentation invoking S15 R132 on exclusion and separation of witnesses. May the trial court disallow the presentation of Stephen as a witness on the ground that he heard the testimony of Kenneth? A No. Without any prior order or at least a motion for exclusion from any of the parties, a court cannot simply allow or disallow the presentation of a witness solely on the ground that the latter heard the testimony of another witness. It is the responsibility of respondent's counsel to protect the interest of his client during the presentation of other witnesses. If respondent actually believed that 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 31 of 33

Kenneth’s testimony would greatly affect that of Stephen's, then respondent's counsel was clearly remiss in his duty to protect the interest of his client when he did not raise the issue of the exclusion of the witness in a timely manner. (Design Sources International v. Eristingcol, 19 February 2014). Q Ermitaño leased a house and lot to Paglas. After the lease contract had been signed, Paglas learned that Ermitaño had mortgaged the house and lot to Yap who later acquired it at the foreclosure sale. Paglas bought the realty from Yap. Paglas then ignored demands for payment of rental from Ermitaño. Ermitaño thus filed an unlawful detainer case against Paglas which was dismissed, the trial court saying that Paglas had acquired the right to possess the land by buying it from Yap. On appeal, Ermitaño argues that Paglas is not permitted to deny Ermitaño’s title over the realty in accordance with Sec. 2(b) of Rule 131 which provides that “the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.” Is Ermitaño’s argument correct? A No. The presumption under S2(b) R131 does not bar a tenant from challenging the landlord’s title by title subsequent to the commencement of the lease contract. Here the tenant Paglas had purchased the leased land from the mortgagee-purchaser in the extrajudicial foreclosure sale and hence his title was subsequent to the commencement of the lease contract. (Ermitaño v. Paglas, 23 Jan 2013, Peralta, J.). Q Jose Marcial Ochoa died in an accident while onboard a taxi cab owned and operated by G & S Transport. His heirs sued G & S for damages. Introduced in evidence of lost income was a certification issued by the HRD chief of Jose’s employer, the United States Agency for International Development (USAID), regarding Jose’s income. This was objected to on the ground that the certification was not authenticated and identified in court by its signatory and that the income stated therein was not supported by receipts or other evidence. Should the objection be sustained? A No. Under S19(a) R132, records of official acts of official bodies whether of the Philippines or of a foreign country are considered as public records. Here the USAID is an official government agency of the USA. Hence the certification is a public document under S19(a) R132 and thus it no longer needs to be authenticated. The certification as to income does not need to be supported by other evidence for it is prima facie evidence of the facts stated therein pursuant to S23 R132. (Heirs of Ochoa v. G & S Transport Corp., 16 July 2012). RULES OF PROCEDURE IN ENVIRONMENTAL CASES Q Does the service of a Writ of Kalikasan ipso facto enjoin the respondent from doing the act subject of the petition for a Writ of Kalikasan? A No. Issuance of a Writ of Kalikasan and service upon respondent requires the latter to file a verified return within 10 days from service but does not ipso facto enjoin or restrain the respondent unless a TEPO (temporary environmental protection order) was issued. (S5 R7, Rules of Procedure in Environmental Cases). Q In July 2012, Rep. Casiño, et al. (Casiño Group), filed with the Supreme Court a Petition for Writ of Kalikasan against RP Energy, Subic Bay Metropolitan Authority (SBMA), and DENR Secretary Paje seeking in the main to stop the construction and operation of a coal-fired power plant in the Subic Bay Freeport Zone. The SC resolved to issue a Writ of Kalikasan and to refer the case to the Court of Appeals for hearing and reception of evidence and rendition of judgment. In their Petition for Writ of Kalikasan, the Casiño Group’s allegations, relative to the actual or threatened violation of the constitutional right to a balanced and healthful ecology, may be grouped into two. The first set of allegations deals with the actual environmental damage that will occur if the power plant project is implemented, involving thermal, air, and water pollution which would adversely affect the residents of the Provinces of Bataan and Zambales, particularly the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo. The second set of allegations deals with the failure to comply with certain laws and rules governing or relating to the issuance of an Environmental Compliance Certificate (ECC) and amendments thereto. The Casiño Group claims that the ECC was issued in violation of (1) the DENR rules on the issuance and amendment of an ECC, particularly, that there was no environmental impact assessment (EIA) relative to the first and second amendments to the subject ECC, (2) Section 2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 32 of 33

59 of the Indigenous Peoples’ Rights Act (IPRA) Law, requiring a certificate precondition that the project site does not overlap with an ancestral domain, and (3) Sections 26 and 27 of the Local Government Code (LGC), requiring project approval by the concerned sanggunian. The CA rendered a decision denying the privilege of the Writ of Kalikasan and the application for an environment protection order due to the failure of the Casiño Group to prove that its constitutional right to a balanced and healthful ecology was violated or threatened. However, the CA resolved to invalidate the ECC for non-compliance with Section 59 of the IPRA Law and Sections 26 and 27 of the LGC and in view of the failure of RP Energy to comply with the restrictions set forth in the ECC, which specifically require that “any expansion of the project beyond the project description or any change in the activity shall be subject to a new Environmental Impact Assessment.” Both parties appealed to the SC. There is no cavil that the Casiño Group failed to substantiate its claims that the construction and operation of the power plant would cause environmental damage of the magnitude contemplated under the Writ of Kalikasan. The critical issue is whether the CA acted properly in invalidating the ECC in a proceeding for the issuance of a Writ of Kalikasan. Can the validity of an ECC be challenged via a Writ of Kalikasan? A No. The proper procedure to question a defect in an ECC is to follow the DENR appeal process. After complying with the proper administrative appeal process, recourse may be made to the courts in accordance with the doctrine of exhaustion of administrative remedies. However, in exceptional cases, a Writ of Kalikasan may be availed of to challenge defects in the ECC provided that (1) the defects are causally linked or reasonably connected to an environmental damage of the nature and magnitude contemplated under the Rules on Writ of Kalikasan, and (2) the case does not violate, or falls under an exception to, the doctrine of exhaustion of administrative remedies and/or primary jurisdiction. As to the claims that the issuance of the ECC violated the IPRA Law and LGC, the same are not within the coverage of the Writ of Kalikasan because, assuming there was non-compliance therewith, no reasonable connection can be made to an actual or threatened violation of the right to a balanced and healthful ecology of the magnitude contemplated under the Rules. The alleged lack of approval of the concerned sanggunians over the subject project would not lead to or is not reasonably connected with environmental damage but, rather, it is an affront to the local autonomy of LGUs. Similarly, the alleged lack of a certificate precondition that the project site does not overlap with an ancestral domain would not result in or is not reasonably connected with environmental damage but, rather, it is an impairment of the right of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. These alleged violations could be the subject of appropriate remedies before the proper administrative bodies (like the NCIP) or a separate action to compel compliance before the courts, as the case may be. The allegation that there was no environmental impact assessment relative to the first and second amendments to the subject ECC is however a defect in the issuance of the ECC that can be reasonably connected to an environmental damage of the magnitude contemplated under the Rules. If this were true, then the implementation of the project can conceivably actually violate or threaten to violate the right to a healthful and balanced ecology of the inhabitants near the vicinity of the power plant. Thus, the resolution of such an issue could conceivably be resolved in a Writ of Kalikasan case provided that the case does not violate, or is an exception to the doctrine of exhaustion of administrative remedies and primary jurisdiction. Given the extreme urgency of resolving the issue due to the looming power crisis, this case may be considered as falling under an exception to the doctrine of exhaustion of administrative remedies. Nonetheless, the DENR reasonably exercised its discretion in requiring an Environmental Performance Report & Management Plan (EPRMP) and a Project Description Report (PDR) for the first and second amendments, respectively. Since what were involved were only amendments, the existing Environmental Impact Statement (EIS) need only be supplemented by the EPRMP and the PDR. Through these documents, which the DENR reviewed, a new EIA was conducted relative to the proposed project modifications. (Paje v. Casiño, G.R. No. 207257, 3 February 2015).

-oOo-

2016 Last Minute Bar Tips in Remedial Law by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination 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. Page 33 of 33