Past Bar Exam Memorandum2011

June 30, 2016 | Author: Larry Bugaring | Category: Types, Legal forms
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Prodigals Notes Memorandum Guidelines in preparation of Memorandum: TRIAL MEMORANDUM FOR PLAINTIFF MEMORANDUM FOR THE PLAINTIFF Plaintiff, through counsel, respectfully submits this memorandum to wit: Plaintiff, by counsel, respectfully states that: Plaintiff, by counsel, respectfully submits its memorandum in the case: Plaintiff, through the undersigned counsel, unto this Honorable Court respectfully submits this Memorandum to support her cause of action and alleges: PLAINTIFF, through the undersigned counsel, most respectfully submits this Memorandum, as follows: Plaintiff, by counsel most respectfully submits this memorandum and alleges: Plaintiff, by the undersigned counsel, avers that: Plaintiff, through the undersigned counsel, respectfully submits the following Memorandum and states that:

PREFATORY STATEMENT Optional but it may create a great impression, find if any article that may described the claims of the side you have chosen. It was the General Rule or Law that support the argument that you’re going to present. You can find some on Human Relation, Chapter two of the new civil code as amended. Rights may be waived, unless the waiver is contrary to law, public policy, morals, or gooe customs or prejudicial to a third person with a right recognized by law. (Art. 6, Civil Code) Every person must, in exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19 Civil Code) (abuse of authority doctrine) 1 | Page College 2008

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Prodigals Notes Memorandum Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same (Art. 20, Civil Code). (Torts and damages) Every person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. (Art. 21 Civil Code) (in relation of Art 100 of RPC) Every person who though an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him (Art. 22 Civil Code) (promise to marry) In all contractual, property or other relations, when one of the parties is at disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. (Art. 24, Civil Code) STATEMENT OF THE CASE / (NATURE OF THE CASE)

Statement of the Case it gives a brief idea of what the case is all about. It contains the following: 1. The nature of the case; 2. Claims or Allegation of the Plaintiff; and 3. The Respond or Defense of the defendant It should be for at least three to four sentences. The following sentences can be added but not necessary (optional): Pre-conclusion for your case based on law. “Following the principle in Article 2176 of New Civil Code, Gloria Supermart, Inc. should be held liable for the damages caused to plaintiff. Both parties have presented their evidences and witnesses. The case is now submitted for decision.” STATEMENT OF FACTS

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Prodigals Notes Memorandum Statement of facts is the narration of the MATERIAL FACTS of the case. Be sure that you can identify what is material and relevant from immaterial and irrelevant, this is very important because this will be basis of your arguments and discussions. Always narrate the facts in third person voice. 1. To make things to be simple, while reading the transcript or affidavit for getting the relevant facts, cross-out the facts that you think that was immaterial or irrelevant to the case. Example

Q.

What were you doing there?

A. I was about to cook spaghetti for my son Ricky when I realized I didn’t have any tomato sauce so I went to Gloria Supermart to buy tomato sauce and some other things we needed in the house.

The answer is irrelevant and immaterial because the focus of the case was the Negligence and liability of the defendant or the contributory negligence of the plaintiff. 2. Make an outline, so that you can easily see the chronological event of the facts and it can also easily see the series of event. It helps identify the characters if ever the problem involves five or more character. Ms. Bueno and her Son Ricky, 1. Shopping/ picking up groceries; 2. a small ball rolled along the aisle and Ricky ran after Gloria Supermart it; about 10 a.m. on 3. Ricky slips with a heavy bang on a wet section of the May 11, 2010 aisle. (saw by Ms. Bueno); 4. Ricky shrieked from pain in his right wrist which he used to stop his fall; 5. No any sign near that puddle or around it, warning customers of the danger it presents; 6. Ricky was brought to the Philippine Orthopedic Hospital; 7. Ms. Bueno, mentally suffered more pain than Ricky did; 8. recover the use of his right wrist for six weeks Gloria Supermart, Inc 9. Spent P22,840.00 for doctor’s fee, hospitalization, 1. exercised proper diligence in making its premises safe for its and medicine. We also bought toys for Ricky to customers; that the accident involving Ricky was something it 3 | Page L could a r r ynotDreasonably . B u g aanticipate r i n g and so beyond M aits n icontrol; l a L athat, w College 2008 in any event, Ricky and her mother contributed to Ricky slipping on the floor and suffering physical injury and pain; and that Gloria Supermart provided immediate help and assistance to Ricky and her mother. 2. Mr. Castro infer from the position of Ricky that he bumped into the shelf containing syrup bottles and knocked off some of

Example:

Prodigals Notes Memorandum STATEMENT OF THE ISSUE/S The issues of the case, as determined by the court in its pre-trial order, are as follows:

Statement of issue or issues means the claim or disputes of the parties. In the other words those facts that are contradict the theories of the parties. This the MAIN ISSUE/S ARGUMENTS AND DISCUSSION

Arguments will depend on the issue/s that was identified on the problem. Build your case by the support of the side issues of contributing factor. Reasoning with logic is the very foundation of the memorandum and it can be made by the suggested format such as follows: (IRAC) 1. Issues – it may be the main issues or other issues that can be used to support the main issue. For example: WHETHER OR NOT GLORIA SUPERMART IS LIABLE FOR INJURY SUFFERED RICKY BUENO; (this is the MAIN issue)

Issues the supporting the main issues are: a. GLORIA SUPERMART IS LIABLE FOR DAMAGES SINCE ITS EMPLOYEES NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE ACCIDENT; b. GLORIA SUPERMART DID NOT EXERCISE PROPER DILIGENCE IN MAKING ITS PREMISES SAFE FOR ITS CUSTOMERS. Widen your imagination on the possibilities that may happen, as if you are the one who was involved in the situation itself.

2. Rules of laws Applicable; 3. Application of the Law to the Facts of the Problem; and 4 | Page College 2008

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Prodigals Notes Memorandum 4. Conclusion.

CONCLUSION

Optional for it may draw a general conclusion based on the arguments that are established. It may be based on the law itself. PRAYER The WHEREFORE phrase is the Relief that being Prayed for by the parties to the court. I.

WHEREFORE, premises considered, plaintiff most respectfully prays of this Honorable Court that judgment be rendered in favor of plaintiff and against defendant: 1) DECLARING defendant to be liable for the injuries sustained by plaintiff’s son Ricky; 2) ORDERING defendant to pay the plaintiff actual damages in the amount of P27,840.00, plus attorney’s fees and cost of the suit; and 3) ORDERING defendant to pay the plaintiff moral damages in the amount of P500,000.00 or as the Court may deem proper in the premises. OTHER RELIEFS just and equitable under the premises are likewise prayed for.

II.

WHEREFORE, premises considered, it is prayed to this HONORABLE COURT, that judgement be rendered making Gloria Supermart Inc., liable for damages for the injury suffered by Ms. Bueno’s son. Other relief just and equitable is likewise prayed for.

III.

WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered in favor of plaintiff and against defendant by: 1) FINDING Gloria Supermart liable for the commission of negligent acts under Art. 2176 & 2180 when it failed to maintain safe premises for its customers; causing injury to Ricky. 2) ORDERING Gloria Supermart to pay both actual damages of P22,840, and moral damages in an amount this Honorable Court finds just and reasonable under the circumstances. 5 | Page College 2008

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Prodigals Notes Memorandum 3) Other just and equitable remedies under the circumstances are likewise prayed for. IV.

Wherefore, premises considered, it is respectfully prayed that Defendant be made liable to pay P500,000.00 for actual damages caused by the negligent act of Defendant and its employees. Such other relief which are just and equitable under the circumstances are likewise prayed for.

V.

WHEREFORE, it is respectfully prayed that this Honorable Court will decide in favor of the plaintiff and against defendant, Gloria Supermart, Inc., the following reliefs: 1. Payment of actual or compensatory damages in the amount of P27, 840.00; 2. Moral damages for the physical suffering of the victim and mental anguish, fright and serious anxiety experienced by the plaintiff; 3. Exemplary or corrective damages; 4. Cost of litigation Other measures of reliefs that are just and equitable under the premises are likewise prayed for.

2011 Bar Exams Trial Memorandum on April 8, 2012 Jonna Bueno filed an action for damages of P500,000.00 against Gloria Supermart, Inc. before the Regional Trial Court of Quezon City for the injuries that her son, Ricky, suffered at its supermarket, for the expense, and for the emotional pain that it brought to him and his mother. Consider the following testimonies that the witnesses from either side presented at the trial of the case. Assume that you are the lawyer either for Bueno or for Gloria Supermart and write a trial memorandum for the side you have chosen to represent. You would want to convince the trial court to decide the case in your client’s favor. ——————————————————————————————————————— ———Excerpts from Transcript of Stenographic Notes 6 | Page College 2008

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Prodigals Notes Memorandum Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 7, 2011. DIRECT EXAMINATION OF PLAINTIFF’S WITNESS COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS: I am Jonna Bueno, 35 years old, married, and a resident of 89 Little Baguio St., San Juan City, Metro Manila. I am an accountant. ATTY. REX BELTRAN: Your Honor, we are offering the testimony of Ms. Bueno to prove that her son, Ricky, slipped on the wet floor of Gloria Supermart by reason of the gross negligence of its management and employees, causing him to suffer excruciating pain from a fractured arm and undergo great discomfort and depression. Ms. Bueno herself incurred an enormous medical expense and suffered from mental stress. COURT: What do you say counsel? ATTY. EMIL SUNGA: Subject to cross, Your Honor. COURT: Proceed, Atty. Beltran. ATTY. BELTRAN: Q. Ms. Bueno, do you know the defendant Gloria Supermart? A. Yes, sir. Q. Why do you know it? A. I have been buying our groceries and other things from Gloria Supermart for the past 20 years. Q. Where is Gloria Supermart located? A. On Ortigas Avenue, San Juan, Metro Manila, just two blocks from our condominium. Q. Do you remember where you were at about 10 a.m. on May 11, 2010? A. Yes, Sir. Q. Where were you? 7 | Page College 2008

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Prodigals Notes Memorandum A. I was at Gloria Supermart. Q. What were you doing there? A. I was about to cook spaghetti for my son Ricky when I realized I didn’t have any tomato sauce so I went to Gloria Supermart to buy tomato sauce and some other things we needed in the house. Q. Did you have any companion? A. Yes, my boy Ricky. Q. How old was Ricky at that time? A. His birthday is May 2, 2005. He was 5 years old already. Q. How did you do your shopping for groceries with Ricky on tag? A. I had a cart. He would sometimes ride on it or walk along the aisles with me. At times, I will ask him to pick safe things from the shelves and put them in the cart. He also grabs goodies that he likes. Q. Do you remember anything unusual that happened while you and Ricky were picking up groceries at the shelves? A. Yes, a small ball rolled along the aisle and Ricky ran after it. Q. Was he able to catch the ball? A. No. Although Ricky had gone some distance down the aisle from where I stood, I saw him slip with a heavy bang on a wet section of the aisle. Q. What happened to him after he slipped? A. He shrieked from pain in his right wrist which he used to stop his fall. Q. What did you do after you saw Ricky fall down the floor, looking hurt? A. I immediately came to his side to help him. I also asked a store clerk who came around to help me carry Ricky to my car so I could bring him to the hospital. I did not get to finish my shopping. Q. Did the store clerk help you? A. Yes, Sir. But he was not very friendly. Afterwards, I brought Ricky to the Philippine Orthopedic Hospital. Q. You said that Ricky slipped on a wet floor section of the aisle. How did you know that the section you referred to was wet? A. I saw the puddle of liquid on the floor. Q. Did you get to know what kind of liquid it was? A. It was syrup that seeped out from a leaking bottle in a nearby shelf. Q. Was there any supermarket cleaner nearby when you came near that puddle of syrup? A. None sir. 8 | Page College 2008

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Prodigals Notes Memorandum Q. Did you see any supermarket grocery clerk around? A. None, Sir. There should have been someone to warn people of that puddle of syrup on the floor. Q. Did you see any sign near that puddle or around it, warning customers of the danger it presents? A. None, Sir, although I heard someone shout, “Hoy, bata, ingat! May basa diyan!” ATTY. SUNGA: I move to strike out that testimony. It is hearsay. ATTY. BELTRAN: It is admissible as a res gestae statement, Your Honor. COURT: Strike out the answer. Q. You said that you brought your son, Ricky, to the Philippine Orthopedic Hospital, who attended to your son at the hospital? A. Dr. John D. Lim, an orthopedic surgeon. He was the physician at the emergency room. I think he is in his mid-forties. Q. You said it was his right wrist that Ricky complained of. How did you know that? A. He pointed to it while crying from pain. After we brought him to the Philippine Orthopedic Hospital, I saw the doctor operate on his right wrist to restore the position of a fractured bone. Later, the doctor showed me an xray picture of the wrist bone before and after the operation. Q. How long did Ricky stay in the hospital? A. The doctor required Ricky to stay overnight at the hospital for pain management and care. He ordered his release on the following day. Q. Based on your observation, how long did it take for Ricky to recover the use of his right wrist? A. About six weeks. Q. How did your son take these things that happened to him? A. He complained of great pain at the beginning. Later, he moved with discomfort and difficulty, unable to use both hands. Q. How about you, Ms. Bueno? How did you take these events?

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Prodigals Notes Memorandum A. He is my son. I mentally suffered more pain than he did. He is my only son. I don’t know what I would do if I lose him. My husband and I waited for years before we had Ricky. And then this happens. Q. How much expense, if any, did you incur for the hospitalization and medical treatment of Ricky? A. I spent P22,840.00 for doctor’s fee, hospitalization, and medicine. We also bought toys for Ricky to distract him from the pain that he suffered. We spent approximately P5,000.00. Q. Do you have evidence of these expenses? A. Yes, Sir, here are my receipts [Note: Assume that the marking and presentation of the receipts for the expenses mentioned above, although omitted here, were done right.] ATTY. BELTRAN: That is all for the witness. COURT: Cross. CROSS-EXAMINATION BY ATTY. SUNGA ATTY. SUNGA: Q. Ms. Bueno, you said that you brought your son Ricky to Gloria Supermart on May 11, 2010. Did you need him to be there whenever you buy your groceries? A. No, Sir, but I did not have anyone to leave him home with. Q. But when you took him there, you of course are aware that the supermarket did not have a leave-your-child service? A. Yes, Sir. Q. Consequently, you were aware that the responsibility for looking after Ricky’s needs and safety while in the supermarket is primarily in your hands as his mother? A. Yes, Sir, but supermarkets always expect children to come with their parents and so it has to make sure that the place is safe for children. Q. But do you agree that, as his mother, he is safer when he stays by your side in a public place like a supermarket? 10 | P a g e College 2008

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Prodigals Notes Memorandum A. Yes, Sir. Q. Still, you let him slip away from your control, when he ran after that ball? A. Yes, Sir, but the supermarket should keep their eyes open for things like loose balls running down their aisles, drawing children away from their parents, and letting them slip on carelessly spilled liquids. Q. But did you not notice that the aisles of Gloria Supermart have sales clerks that attend to inquiries and needs of its customers? A. Not all the time. When my son had his accident, no one was around to prevent it from happening. ATTY. SUNGA: That is all, Your Honor. Excerpts from Transcript of Stenographic Notes Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 14, 2011 DIRECT EXAMINATION OF DEFENDANT’S WITNESS COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS; I am Rene Castro, 55 years old, married, and a resident of 12 V.G. Cruz, Sampaloc, Manila. I am a supermarket supervisor. ATTY. EMIL SUNGA: Your Honor, we are offering the testimony of Mr. Castro to prove that Gloria Supermart exercised proper diligence in making its premises safe for its customers; that the accident involving Ricky was something it could not reasonably anticipate and so beyond its control; that, in any event, Ricky and her mother contributed to Ricky slipping on the floor and suffering physical injury and pain; and that Gloria Supermart provided immediate help and assistance to Ricky and her mother. COURT: What do you say counsel? ATTY. BELTRAN: Subject to cross, Your Honor. 11 | P a g e College 2008

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Prodigals Notes Memorandum COURT: Proceed Atty. Sunga. ATTY. SUNGA: Q. Mr. Castro, you said that you are a supermarket supervisor. For whom do you work as supermarket supervisor? A. I have been with Gloria Supermart for 5 years already, Sir. Q. Do you know the plaintiff Jonna Bueno? A. Yes, Sir, she has been a customer at our supermarket. Q. Do you recall seeing her at your supermarket about 10 a.m. on May 11, 2010? A. Yes, Sir. Q. Why do you recall seeing her there at that time and on that date? A. Because her son Ricky had an accident and I was around. Q. Did you see how the accident happened? A. No, Sir, but I was just at the next aisle fixing the new stocks of instant noodles. When I heard the commotion, I quickly walked down there and saw Ricky lying on the floor, crying with pain. Her mother, Ms. Bueno, was trying to minister to him. Q. What else did you see? A. Some items from a nearby shelf had fallen down the floor. Q. What were these items? A. There were a couple of bottles of syrup, mostly in plastic bottles, except one glass bottle that had broken and spilled part of its contents on the floor. Q. To what do you account this? A. I could infer from the position of Ricky that he bumped into the shelf containing syrup bottles and knocked off some of them. Q. Did you speak to Ms. Bueno about it? A. I talked to her at the hospital while we were waiting for Ricky’s treatment to be finished and I asked her what happened. Q. What did she say? A. She said that Ricky saw a ball rolling down the aisle and he ran after it. Somehow, he slipped on the floor and hurt his arm. She was so flustered. Q. Are children allowed in your supermarket? 12 | P a g e College 2008

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Prodigals Notes Memorandum A. All supermarkets allow customers to bring their children into the store. It is often a necessity for them. It is understood of course that their parents would look after them, preventing them from misbehaving, causing damage to the merchandise, or getting injured. Q. Ms. Bueno said that Ricky slid on the floor because some syrup seeped out of a leaking bottle in one of the shelves. Do you know anything about it? A. Yes, sir. What she said is not true. The syrup must have come from one of the bottles that Ricky knocked off from the shelf when he ran wild down the aisle, supposedly running after a loose ball. There can be no other explanation. Q. What did you do then? A. I helped Ms. Bueno pick up Ricky, intending to bring him to a hospital but his mom insisted that we take him to her car so she can drive him quickly to the hospital. I carried Ricky to her car and accompanied them to the hospital. Q. Did Ms. Bueno tell you anything while you were in the car? A. She was blaming the supermarket for the accident. Q. Did you reply to her? A. No, Sir, I said nothing to upset her because she was driving and was worried about her child. ATTY. SUNGA: That is all, Your Honor. CROSS-EXAMINATION BY ATTY. BELTRAN ATTY. BELTRAN: Q. Mr. Castro, You said that you did not actually see the accident when it happened, is that right? A. Yes, Sir. Q. In fact, you were in another aisle at that time? A. Yes, Sir. Q. So when you said that Ricky bumped into the shelf containing syrup bottles and knocked off some of them, you were merely speculating on what could have happened, right? 13 | P a g e College 2008

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Prodigals Notes Memorandum A. Yes, Sir, but the scene suggested it. Q. Since you did not see what actually happened at that aisle, is it possible for some other person to have knocked off those bottles? A. Yes, Sir, that is possible but not likely since I did not see any person leave the place in haste. Q. So, it is also possible that the syrup on the floor, spilled by someone else, caused Ricky to slip as he was running after some ball before you showed up? A. Yes, that is possible, but unlikely. The shelves are carefully stocked. Q. Do accidents resulting in injury happen in your supermarkets? A. Yes but not so often; about one accident a year, if I remember right. These things are unavoidable because hundreds of people come to the supermarket everyday. Q. How about shoplifting, does this happen often? A. Every now and then, Sir. It’s normal for supermarkets. Q. So naturally you must have some procedure for dealing with events like accidents or shoplifting? A. Yes, Sir. Q. To protect your rights and interests, is that correct? A. Yes, Sir. Q. Since Ricky had this serious accident that you claim was not your fault as the scene suggested, did your supermarket bother to take pictures of the puddle on the floor and the bottles of syrup that you said Ricky had knocked off? A. No, Sir. ATTY. BELTRAN: That is all for the witness. LAWS AND JURISPRUDENCE FAMILY CODE PARENTAL AUTHORITY ART. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and 14 | P a g e College 2008

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Prodigals Notes Memorandum responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. Art. 20. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. Art. 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; xxx xxx xxx (8) To impose discipline on them as may be required under the circumstances; and (9) To perform such other duties as are imposed by law upon parents and guardians. Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. CIVIL CODE PERSONAL LIABILITY Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. NUISANCE Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: 15 | P a g e College 2008

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Prodigals Notes Memorandum (1) Injures or endangers the health or safety of others; or xxx xxx

xxx

Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. Attractive Nuisance One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. (Hidalgo Enterprises, Inc., v. Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488) QUASI-DELICTS Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. xxx On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. xxx Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. (Jarco Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21, 1999, 321 SCRA 375) 16 | P a g e College 2008

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Prodigals Notes Memorandum The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant’s negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236) The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? (Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569) Art. 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is required to conform for his own protection. xxx

xxx

xxx

It is an act or omission amounting to want of ordinary care on the part of the person injured which, concurring with the defendant’s negligence, is the proximate cause of the injury. (National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008, 572 SCRA 71) Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces 17 | P a g e College 2008

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Prodigals Notes Memorandum the injury, and without which the result would not have occurred. (Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA 526) Art. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. xxx

xxx

xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. xxx

xxx

xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. DAMAGES Art. 2197. Damages may be: (1) (2) (3) (4) (5) (6)

Actual or compensatory; Moral; Nominal; Temperate or moderate; Liquidated; or Exemplary or corrective.

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

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Prodigals Notes Memorandum Art. 2203. The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question. Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. (National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008, 572 SCRA 71) In Phoenix Construction, Inc., v. Intermediate Appellate Court, where we held that the legal and proximate cause of the accident and of Dionisio’s injuries was the wrongful and negligent manner in which the dump truck was parked but found Dionisio guilty of contributory negligence on the night of the accident, we allocated most of the damages on a 20-80 ratio. In said case, we required Dionisio to bear 20% of the damages awarded by the appellate court, except as to the award of exemplary damages, attorney’s fees and costs. (Estacion v. Bernardo, G.R. No. 144723, February 27, 2006, 483 SCRA 222) Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act for omission. Art. 2219. Moral damages may be recovered in the following and analogous cases: xxx xxx (2) Quasi-delicts causing physical injuries; xxx xxx

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Prodigals Notes Memorandum RULES OF COURT EVIDENCE Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. Where the statements or writings attributed to a person who is not on the witness stand are being offered not to prove the truth of the facts stated therein but only to prove that those statements were actually made or those writings were executed, such evidence is not covered by the hearsay evidence rule.(Cornejo, Sr., vs. Sandiganbayan, G.R. No. 58831, July 31, 1987, 152 SCRA 559) Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply. (People v. Gumimba et al., G.R. No. 174056, February 27, 2007, 517 SCRA 25) Sec. 42. Part of res gestae. — Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. xxx A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances. (Zarate v. Regional Trial Court, Branch 43, Gingoog City, Misamis Oriental, G.R. No. 152263, July 3, 2009, 591 SCRA 510) Sec. 48. General rule. — The opinion of witness is not admissible, except as indicated in the following sections.

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Prodigals Notes Memorandum Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx (d) That a person takes ordinary care of his concerns; (q) That the ordinary course of business has been followed; (y) That things have happened according to the ordinary course of nature and ordinary nature habits of life; In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236)

Republic of the Philippines REGIONAL TRIAL COURT National Judicial Capital Region Branch ___, Quezon City JONNA BUENO Plaintiff, - versus -

Civil Case No. 27-112011 For Damages

GLORIA SUPERMART, INC. Defendant. x---------------------x MEMORANDUM FOR PLAINTIFF Plaintiff, through counsel, respectfully submits this memorandum to wit: 21 | P a g e College 2008

Larry D. Bugaring

Manila Law

Prodigals Notes Memorandum PREFATORY STATEMENT Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same (Art. 20, Civil Code). STATEMENT OF THE CASE / (NATURE OF THE CASE) This case refers to an action for recovery of damages filed by the plaintiff for the injuries sustained by her 5-year old son when the latter slipped on the wet floor in one of the aisles of the defendant’s grocery store. Plaintiff claims that the defendant is liable for the negligent act of its employees who failed to clear the puddle of liquid through appropriate signs or barriers and claims that the gross negligence of the management and employees of respondent is the proximate cause of the injury. Respondent for its defense claims that it exercised proper diligence in maintaining the safety of its customers and that the accident is beyond its control. In addition, the respondent also claims that the event was merely an unfortunate accident for which it could not be held liable. In any event, defendant claims, the plaintiff is guilty of contributory negligence. Following the principle in Article 2176 of New Civil Code, Gloria Supermart, Inc. should be held liable for the damages caused to plaintiff. Both parties have presented their evidences and witnesses. The case is now submitted for decision.

STATEMENT OF THE FACTS Plaintiff Jonna Bueno (BUENO), married, a resident of 89 Little Baguio St., San Juan City, Metro Manila, has been a customer of Defendant Gloria Supermart, Inc. (GSI), a supermarket located at Ortigas Avenue, San Juan, Metro Manila. On May 11, 2010, at about 10:00 a.m., plaintiff BUENO, together with her son Ricky went to GSI to buy groceries. BUENO claimed that while she and her son were picking up groceries at the shelves, a small ball rolled along the aisle and Ricky ran after it then soon thereafter, she saw him slip with a heavy bang on a wet section of the aisle. No sign near the puddle warning customers of the danger was present although she heard someone shouted “Hoy, bata, ingat! May basa diyan!” So, immediately, BUENO came to Ricky’s side to help him and brought him to the hospital where he stayed overnight for medication. BUENO 22 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum claimed that Ricky complained of great pain and it took about six (6) weeks for him to recover. BUENO further claimed that Ricky moved with discomfort and difficulty, unable to use both hands. Also, that as a mother, she suffered mental pain. BUENO blamed GSI for the injuries suffered by her son claiming that not any employee of GSI was there to prevent the incident; that the wet floor caused Ricky to slip on it. GSI, on the other hand, denies the claims of BUENO and through its witness Rene Castro, claims that it exercised proper diligence in making its premises safe for its customers. Moreover, GSI claims that the accident involving Ricky was something beyond its control; that in any event, Ricky and her mother contributed to Ricky’s slipping on the floor; that GSI provided immediate help and assistance to Ricky and her mother. Furthermore, GSI asserts that BUENO has the responsibility for looking after Ricky’s needs and safety. STATEMENT OF THE ISSUE/S The issues of the case, as determined by the court in its pre-trial order, are as follows: I. WHETHER OR NOT GLORIA SUPERMART IS LIABLE FOR INJURY SUFFERED RICKY BUENO; II. WHETHER OR NOT JONNA BUENO WAS CONTRIBUTORILY NEGLIGENT FOR THE ACCIDENT, WHICH CALLS FOR THE REDUCTION IN CLAIMED DAMAGES; III. WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO THE DAMAGES THAT SHE IS CLAIMING FOR. ARGUMENTS AND DISCUSSION On the first issue: 1. GLORIA SUPERMART IS LIABLE FOR DAMAGES SINCE ITS EMPLOYEES NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE ACCIDENT. 23 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum As it can be gleaned from the records, Ricky suffered from a fractured bone when he tried to stop his fall as he slipped over a puddle of syrup. The syrup apparently seeped out from a broken bottle in a nearby shelf. Ordinarily, the supermarket’s employees should have detected the mess and cleaned the area. At the very least, it should have placed a warning sign informing buyers to pass by with caution. But it didn’t. It failed to meet its responsibility to keep the premises neat and clear from obstructions. It was negligent in maintaining cleanliness and should be held accountable if by reason of such negligence, customers have suffered from mishaps. In Jarco Marketing Corporation v. Court of Appeals (G.R. 129792, December 21, 1999), the Court defined negligence as “the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.” Following this definition, the test of negligence is therefore this: could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? Applying this question to the case, it is clear that Gloria Supermart was negligent. As a supermarket, tons of customers pass by its aisles everyday to purchase something. It was the responsibility of Gloria to keep those aisles clean and clear in order to ensure the safety and continued patronage of its buyers. When a bottle of syrup got broken and its contents spilled on the floor, it was the burden of Gloria to keep on eye out for these expected eventualities and to immediately address the issue. It should have expected, like any ordinarily prudent and reasonable man, that a hapless buyer would eventually step on it without noticing and slip because of it. After all, buyers do not look on the floor when they buy their groceries. It is common knowledge that they look sideways on the aisles – as they search for the items they need. Gloria should have deployed employees to regularly survey their aisles and see if they steered clear from obstructions. This negligence was the proximate cause of Ricky’s injury. “Proximate cause is defined as that cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” (Ramos v. COL Realty Corp., G.R. No. 184905, August 28, 2009). Had there been no syrup on the floor, Ricky would not have slipped and suffered a bad fall. Even if, admittedly, Ricky was running at the time he stepped on the puddle, he wouldn’t have ordinarily fractured his bone had the floor been clear from obstructions. Besides, syrups, by their very nature, are transparent. Only a scrutinizing eye can detect its presence on the floor and buyers are not expected to act in this manner. Considering that Gloria Supermart’s employees were negligent and such negligence was the proximate cause for Ricky’s injury, Gloria Supermart should 24 | P a g e Larry D. Bugaring Manila Law College 2008

Prodigals Notes Memorandum be held accountable. Article 2180 of the Civil Code supports this conclusion. It states, “The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those persons for whom one is responsible. xxx xxx xxx The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.” 2. GLORIA SUPERMART DID NOT EXERCISE PROPER DILIGENCE IN MAKING ITS PREMISES SAFE FOR ITS CUSTOMERS. Diligence on the part of Gloria Supermart Inc. should not be presumed but should be proven that its management and employees were not grossly negligent in making its premises safe for its customers. As stated in Sarco Marketing Corp. vs. Court of Appeals, negligence is the omission to do something which is a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. In the instant case, there was negligence on the part of the Supermart since it failed to install any warning sign on the puddle of syrup on the floor, warning the customers of the due consequences thereof. Furthermore, in any big grocery stores such as the Gloria Supermart, there should always be a standby floor cleaner who will eventually mop the floor in case there is liquid in it since it is fact that a fitted or cemented floor is usually “slippery when wet”. There was no supermarket cleaner nearby when Ricky slipped on the floor was was alleged by Ms. Bueno during the investigation, hence proving the negligence of the management in making the premises safe. The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caued by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of and (3) the accident must have been due to any voluntary action or contribution on the part of the person injured (chilled Learning Center Inc., b. Tagorio, GR No. 150920, Nov. 25, 2005, 476 SCRA236) In this case, it was evident that the accident would have happened if it were not for the defendants’ negligence because it did not immediately wipe the spilled syrup. The cause of the accident was as well within the exclusive 25 | P a g e Larry D. Bugaring Manila Law College 2008

Prodigals Notes Memorandum management and control of the person charged with the negligence complained of because Mr. Castro could have assigned a floor cleaner in the area and the accident was not due to any voluntary action or contribution on the part of the person injured as will be proven in the succeeding paragraphs. Therefore, Gloria Supermart Inc. was grossly negligent in making its premises safe for its customers. On the second issue: 1. JONNA BUENO WAS CONTRIBUTORILY NEGLIGENT HER SON’S INJURY

NOT FOR

Jonna was not negligent in watching over her son, while they were grocery shopping. Indeed, parents have the natural right and duty to take care and discipline their children. But Jonna did not show lack of due care when she let Ricky run after the ball. The records show that she was watching her son at that time. Furthermore, a child running after a ball does not necessarily mean that he is engaged in play. The child may be actually trying to fetch the ball and return it to its rightful place or owner. There was no reason for Jonna discipline nor closely monitor her child at that time. Also, Jonna couldn’t have reasonably foreseen her son’s mishap. As mentioned earlier, the syrup was presumably transparent and couldn’t be detected unless scrutinized up close. She also had good reason to believe that the supermarket regularly maintains the cleanliness of its store. There is no basis to find her negligent. 2. THE ACCIDENT OF RICKY WAS NOT THROUGH HIS OWN CONTRIBUTORY NEGLIGENCE. As was alleged by Mr. Castro during the investigation, Ricky bumped into the shelf containing the syrup bottles and knocked off such bottles thus causing the spilling of the liquid on the floor. This was not, however, proven by Mr. Castro because he did not actually see Ricky bump into the shelf. Mr. Castro was merely speculating it as what he has stated during the investigation. As based on Rules on Evidence Sec. 36, a witness can testify only to those facts which he knows of his personal knowledge. Therefore, it cant be said that Ricky’s accident was due to his own contributory negligence. As stated in National Power Corp.vs. Heirs of Noble Casionan, contributory negligence is conduct on the part of the injured party contributing as a legal cause to the harm he has suffered which falls below the standard which is required to conform for his own protection. It is an act or omission amounting to want of ordinary care on the part of the person injured which concurrig with the defendants negligence, is the proximate cause of the injury. 26 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum In the instant case, the defendants’ negligence of not wiping the wet floor was the proximate cause of Ricky’s injuries. Proximate cause is defined as that cause which, in natural or continous sequence, unbroken by any efficient cause produces the injury and without which the result would not have occurred. (Ramos vs. C.O.L Realty Corp. G.R. No. 184905, Aug. 28, 2009, 597 SCRA 526). The proximate cause of Ricky’s injury was the puddle of syrup on the floor which caused him to slide. The owners and managers therefore of the establishment are likewise responsible for damages. 3. GRANTING ARGUENDO THAT THERE IS NO PROOF AS TO WHOM OR WHAT CAUSED THE SYRUP TO FALL ON THE FLOOR, GLORIA SUPERMARKET IS STILL LIABLE UNDER RES IPSA LOQUITOR. In his testimony, Rene Castro made a baseless inference that the syrup on the floor must have come from one of the bottles that Ricky knocked off from the shelf when he ran wild down the aisle. This should not be given credence since Rene himself testified that he did not see how the incident happened. Therefore, he did not have the competence to testify on that matter. But granting, for the sake of argument, that there is no proof as to who or what caused the spillage, Gloria Supermart should still be held liable based on the doctrine of res ipsa loquitor. First of all, Ricky’s accident, as explained earlier, was due to the supermarket employees’ negligence in failing to maintain the cleanliness of the store. Secondly, it is without a doubt that the supermarket’s premises is within exclusive management and control of Gloria Supermart. Thirdly, it has been established that Ricky did not contribute to his injury. Any other person would have slipped, had they stepped on the syrup-coated floor. All these three elements put into operation the doctrine of res ipsa loquitor, which strengthens plaintiff’s position that the supermarket is liable for damages. On the third issue: 1. THE PLAINTIFF IS ENTITLED TO THE DAMAGES SHE IS ASKING FOR. In every tort case filed under Art. 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person whose act he must respond and (3) the connection of cause and effect between the fault or negligence and the damage incurred. (Child learning Center Inc. v. Tagorio) 27 | P a g e College 2008

Larry D. Bugaring

Manila Law

Prodigals Notes Memorandum In the instant case, the plaintiff was able to prove the damages suffered since the child Ricky was hospitalized and was operated on his wrist and it took 6 weeks for the child to recover. Likewise, the fault or negligence of the defendant was also proven in that it failed to exercise the diligence of a good father of a family to prevent the damage and there was a connection between the cause and effect between the fault or negligence and the damage incurred. Moral damages can also be claimed by Ms. Bueno because of the physical suffering, mental anguish, shock, social humiliation and similar injuries which Ricky has suffered. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. And Ms. Bueno is entitled to such as shown by her hospital bills and receipts. CONCLUSION Defendant Gloria Supermarket is liable for the negligent acts of its employees. Under the concept of vicarious liability, the owners and managers of an establishment are likewise responsible for damages caused by their employees. (Article 2180, NCC) PRAYER WHEREFORE, premises considered, plaintiff most respectfully prays of this Honorable Court that judgment be rendered in favor of plaintiff and against defendant: 1) DECLARING defendant to be liable for the injuries sustained by plaintiff’s son Ricky; 2) ORDERING defendant to pay the plaintiff actual damages in the amount of P27,840.00, plus attorney’s fees and cost of the suit; and 3) ORDERING defendant to pay the plaintiff moral damages in the amount of P500,000.00 or as the Court may deem proper in the premises. OTHER RELIEFS just and equitable under the premises are likewise prayed for. (Manila for) Quezon City, Philippines. November 27, 2011.

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ATTY. REX BELTRAN Counsel for Plaintiff PTR No. 54815, 1/17/2011 IBP No. 589546 Larry D. Bugaring Manila Law

Prodigals Notes Memorandum Roll of Attorneys No. 8147 MCLE Compliance No. II-843 The Branch Clerk of Court RTC, Branch 1 Quezon City Greetings: Please submit the foregoing Memorandum for the Court’s consideration. Copy furnished: ATTY EMIL SUNGA Counsel for Defendant EXPLANATION In view of time and manpower restrictions (constrained), the above Memorandum was served via registered mail as personal service could not be availed of without causing undue hardship to plaintiff. (Sgd.) ATTY. REX BELTRAN Counsel for Palintiff

Memorandum 2012 Mr. Henry Chao is charged before the Metropolitan Trial Court (MeTC) Manila with five (5) counts of Violation of Batas Pambansa Big. 22 (B.P. 22). Consider the factual scenario from the testimonies of complainant Mr. Ben Que and accused Mr. Henry Chao. Assume to be the Defense Counsel and prepare a MEMORANDUM FOR THE ACCUSED for your client, Mr. Henry Chao. Testimony of Mr. Ben Que (After the cases were called for joint trial) P. Prosecutor : Good Morning, Your Honor. Appearing for the prosecution. Ready. D. Counsel : Good Morning, Your Honor. Appearing as counsel for the accused. Ready. P. Prosecutor : We are calling to the witness stand, the complainant, Mr. Ben Que, who will prove the commission of the offense. Court Staff : Mr. Ben Que, do you swear to tell the truth, the whole truth and nothing but the truth in this proceeding? 29 | P a g e College 2008

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Prodigals Notes Memorandum Witness : Yes, sir. Court Staff : State your name, age, status and other personal circumstances. Witness : I am Ben Que, 60 years old, married, and a resident of 123 Tridalo Street, Mandaluyong City P. Prosecutor : Mr. Que, do you know Mr. Henry Chao who is the accused in this case and, if so, under what circumstances? Witness : Yes, sir. He is the Manager of Atlas Parts. Last June 01, 2011, accused borrowed from me the amount of P 50,000.00, with 5°/o monthly interest, payable in five (5) equal monthly installments of P 12,500.00. He said that the money will be used to pay for their stocks. P. Prosecutor : Did you execute a document to evidence your transaction? Witness : As per our agreement, he issued and delivered to me five ( 5) checks. D. Counsel : Your Honor, please. For the record, I take exception to the statement of the witness that he received checks from the accused. If we closely examine these instruments, it will show that they are NOW slips, that is , Negotiable Order of Withdrawal slips. These are not bills of exchange within the meaning of the Negotiable Instruments Law, and therefore, cannot be considered as checks. P. Prosecutor : Your Honor, they are still bank instruments. Complainant Mr. Que specifically required the issuance of checks to facilitate and ensure the payment of the obligation, and the accused issued and delivered them for that purpose. Violation of the Bouncing Checks Law is malum prohibitum. The law was enacted to maintain faith in bank instruments for utilization in commercial transactions. We have to apply the spirit of the law. COURT : Observation noted. P. Prosecutor : When and where did the accused execute and hand over to you these five (5) instruments? Witness : On June 01, 2011, at my house in Mandaluyong City, after I gave him in cash the P 50,000.00 that he loaned. P. Prosecutor : And where are these instruments now? Witness : Here sir. (Witness handling them to the prosecutor.) P. Prosecutor : May I manifest for the record the observation that the instruments are of the same size and material as the normal checks and have these check-like features: NOW Account No. 123456 Atlas Parts PAY TO: Mr. Ben Que PESOS: Twelve Thousand Five 30 | P a g e College 2008

No. 0001 Date: July 1, 2011 P 12,500.00

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Manila Law

Prodigals Notes Memorandum Hundred Pesos Sgd. Chao Alloy Pasong Makati

Tamo

Henry

Bank Branch

P. Prosecutor : Do you know whose signature is that appearing on the lower right side of this instrument and all the four (4) others, as well? Witness : Those are the signatures of the accused Henry Chao. I personally saw him sign them and thereafter, handed the five (5) instruments to me. P. Prosecutor : May I request that No. 0001 dated July 1, 2011 in the amount of P 12,500.00 be marked as Exhibit A for the prosecution; No. 0002 dated August 1, 2011 also in the same amount as Exhibit B; No. 0003 dated September 2, 2011 as Exhibit C; No. 0004 dated October 1, 2011 as Exhibit D; and No. 0005 dated November 1, 2011 as Exhibit E. COURT : Mark them as requested. P. Prosecutor : What did you do with these instruments which represented the installment payments of accused for his loan obligation? Witness : On their respective due dates, I deposited each of them to my Savings Account at BOD Bank, Manila City Hall Branch in Manila, but all of them were dishonored by the drawee, Alloy Bank, for the reason "Account Closed." P. Prosecutor : What proof do you have that these instruments were dishonored? Witness : I received several debit advices from BOD Bank together with the returned slips with a stamp at the back stating as follows:

DISHONORED/RETU RNED Reason: Account Closed Officer: Mr. M

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Prodigals Notes Memorandum P. Prosecutor : May I request that the stamps of dishonor and the reason "Account Closed" appearing at the back of each instrument be correspondingly marked as Exhibits A-1 to E-1, respectively. COURT : Mark them accordingly. D. Counsel : I move to strike out this particular testimony for being hearsay. This witness is not competent to testify on these matters pertaining to bank records. COURT : Does the defense deny that all five (5) instruments were dishonored and returned to the witness? D. Counsel : No, Your Honor. But these matters should be testified on by the bank personnel. COURT : Motion to strike is denied. P. Prosecutor : What action did you take? Witness : After each dishonor, I personally went to Mr. Chao and demanded that he make good his commitment, but he merely ignored my demands. P. Prosecutor : What did you do then after all the five (5) instruments were dishonored and your demands ignored? Witness : I consulted a lawyer and he advised me to send a formal demand letter to the accused, which I did. On January 2, 2012, I sent the letter by registered mail to Mr. Henry Chao to his office address at 007 Malugay Street, Malabon City giving him five (5) days to make good his promise. Here is the registry receipt. P. Prosecutor : I request that the demand letter be marked as Exhibit F and that the Registry Receipt No. 321 dated January 2, 2012 posted at Mandaluyong City Post Office be marked as Exhibit G for the prosecution. COURT : Mark it then. P. Prosecutor : Do you know if accused actually received your letter sent by registered mail? Witness : I assumed that he had received it because the registered letter was not returned to me. D. Counsel : I take exception to that statement. Your Honor, because jurisprudence require actual receipt by the drawer of the demand before any criminal liability can attach. P. Prosecutor : May I clarify, Your Honor, that the five (5) days from notice of dishonor given to the drawer of a check to make arrangement for payment by the drawee of the amount of the dishonored checks is to forestall the existence of a prima facie evidence of knowledge of the insufficiency of funds. But here, the reason of the dishonor is "Account Closed," and not just insufficiency of funds. In short, there is actual proof of lack of credit with drawee bank. The account is already closed and accused cannot even make a deposit anymore. 32 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum COURT : The manifestation is noted. P. Prosecutor : Has the accused paid the amounts covered by the dishonored instruments? Witness : No, sir. He has arrogantly refused to make any payment. P. Prosecutor : No further questions. COURT : Cross. D. Counsel : With the Court's permission. You earlier stated that accused Henry Chao is the Manager of Atlas Parts and that the money borrowed was used to pay for their stocks, is that correct? Witness : Yes, sir. That is what he told me. D. Counsel : So, it is clear that the money loaned from you was not used by the accused for his benefit? Witness : I do not know how he used it. The fact is that I lent the money to him. D. Counsel : Regarding the demand letter that you allegedly sent to accused, do you have the registry return card showing that accused received the letter? Witness : No, sir. But I have the registry receipt. Since the letter was not returned to sender, it is presumed that it was received by the addressee. D. Counsel : Is it not a fact that you have filed another collection suit against Atlas Parts seeking to recover the same P 50,000.00 covered by the dishonored slips? Witness : Yes, sir. That is true because I want to recover my money from either of them. D. Counsel : No further questions, Your Honor. Testimony of Mr. Henry Chao (After oath and formal of his of testimony.) D. Counsel : Do you own NOW Account No. 123456 maintained at Alloy Bank, Pasong Tamo Branch? Witness : No, sir. That is owned by my employer Atlas Parts and, as the Manager, I am the signatory. D. Counsel : Mr. Chao, in June 2011 when you issued the dishonored NOW slips, did you derive any personal benefit from the amount loaned? Witness : No, sir. The money was used to pay an account payable. D. Counsel : During the due dates of the NOW slips that you issued to Mr. Que, were you still the Manager of Atlas Parts? Witness : Not anymore, sir, because in the middle of June 2011, I resigned as Manager, and I was not aware of the dishonor. D. Counsel : Did you receive the demand letter sent to you by Mr. Que after the dishonor? Witness : No, sir. COURT : Cross? 33 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum P. Prosecutor : With the kind permission of the Court. Mr. Chao, is it not a fact that Mr. Que specifically required you to issue checks to pay the monthly installment of the loan? Witness : Yes, sir. P. Prosecutor : You will agree with me that without those five (5) checks, or NOW slips as you call them, Mr. Que will not lend money to you? Witness : Yes, sir. P. Prosecutor : You will also agree that the demand letter of Mr. Que was delivered to yo'ur office address because that is the address that you gave to Mr. Que in connection with your transaction? Witness : Yes, sir. That is possible, but I was not able to receive it because I had already resigned and I could not do anything anymore. P. Prosecutor : That is all, Your Honor. LAWS AND JURISPRUDENCE A. BATAS PAMBANSA BLG. 22 AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT SUFFICIENT FUNDS OR CREDITS AND FOR OTHER PURPOSES. Section 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty (30) days but not more then one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where .the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check, payment of which is refused by the drawee because of insufficient funds in or credit with such bank when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or 34 | P a g e College 2008

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Prodigals Notes Memorandum drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Section 3. Duty of drawee; rules of evidence. - It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed, or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same. Provided, that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having 'the drawee's refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check. Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact. B. NEGOTIABLE INSTRUMENTS LAW ACT NO. 2031 AN ACT ENTITLED "THE NEGOTIABLE INSTRUMENTS LAW." Section 1. Form of negotiable instruments. - An instrument to be negotiable must conform to the following requirements: (a) It must be in writing and signed by the maker or drawer; (b) Must contain an unconditional promise or order to pay a sum certain in money; (c) Must be payable on demand, or at a fixed or determinable future time; (d) Must be payable to order or to bearer; and (e) Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty. Section 126. Bill of exchange, defined. - A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. Section 185. Check, defined. - A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this Act applicable to a bill of exchange payable on demand apply to a check. C. RULES OF COURT RULE 132 35 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum Section 34. Offer of evidence. - The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Section 35. When to make offer. - As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. JURISPRUDENCE Isip vs. People G. R. No. 170298, June 26, 2007, 525 SCRA 735 The concept of venue of actions in criminal cases, unlike in civil cases, is jurisdictional. The place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense 13llegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction. Alferez vs. People G.R. No. 182301, January 31, 2011, 641 SCRA 116 In this case, the prosecution merely presented a copy of the demand letter, together with the registry receipt and the return card allegedly sent to petitioner. However, there was no attempt to authenticate or identify the signature on the registry return card. Receipts for registered letters and return receipts do not by themselves prove receipt ; they must be properly authenticated to serve as proof of receipt of the letter, claimed to be a notice of dishonor. To be sure, the presentation of the registry card with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that petitioner received such notice. It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of the check .. The prosecution must also prove actual receipt of said notice, because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check. The burden of proving notice rests upon the party asserting its existence. Ordinarily, preponderance of evidence is sufficient to prove notice. In criminal cases, however, the 36 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum quantum of proof required is proof beyond reasonable doubt. Hence, for B. P. Big. 22 cases, there should be clear proof of notice. Moreover, for notice by mail, it must appear that the same was served on the addressee or a duly authorized agent of the addressee. From the registry receipt alone, it is possible that petitioner or his authorized agent did receive the demand letter. Possibilities, however, cannot replace proof beyond reasonable doubt. The consistent rule is that penal statutes have "to be construed strictly against the State and liberally in favor of the accused. The absence of a notice of dishonor necessarily deprives the accused an opportunity to preclude a criminal prosecution. As there is insufficient proof that petitioner received the notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot arise. Lozano vs. Hon. Martinez G.R. Nos. L-63419, L-66839-42, L-71654, L-74524-25, L-75122-49, L-7581213, L-75765-67 and L-75789, December 18, 1986, 146 SCRA 323 The gravemen of the offense punished by B.P. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by law. The law punishes the act not as an offense against property, but an offense against public order. Ambito vs. People G.R. No. 127327, February 13, 2009, 579 SCRA 69 The mere act of issuing· a worthless check - whether as a deposit, as a guarantee or even as evidence of pre-existing debt - is malum prohibitum. Under B.P. Big. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five (5) banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper. The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually sent to and received by the accused. The accused has a right to demand - and the basic postulates of fairness require-- that the notice of dishonor be actually sent to and received by the same to afford him/her the opportunity to avert prosecution under B.P. Big. 22. 37 | P a g e College 2008

Larry D. Bugaring

Manila Law

Prodigals Notes Memorandum Gosiaco vs. Ching G.R. No. 173807, April 16, 2009, 585 SCRA 471 B.P. Big. 22 imposes a distinct civil liability on the signatory of the check which is distinct from the civil liability of the corporation for the amount represented from the check. The civil liability attaching to the signatory arises from the wrongful act of signing the check despite the insufficiency of funds in the account, while the civil liability attaching to the corporation is itself the very obligation covered by the check or the consideration for its execution. Yet these civil liabilities are mistaken to be indistinct. The confusion is traceable to the singularity of the amount of each. If we conclude, as we should, that under the current Rules of Criminal Procedure, the civil action that is impliedly instituted in the B.P. Big. 22 action is only the civil liability of the signatory, and not that of the corporation itself, the distinctness of the cause of action against the signatory and that against the corporation is rendered beyond dispute. It follows that the actions involving these liabilities should be adjudged according to their respective standards and merits. In the . B. P. Big. 22 case, what the trial court should determine is whether or not the signatory had signed the check with knowledge of the insufficiency of funds or credit in the bank account, while in the civil case the trial court should ascertain whether or not the obligation itself is valid and demandable. The litigation of both questions could, in theory, proceed independently and simultaneously without being ultimately conclusive on one or the other.

REPUBLIC OF THE PHILIPPINES METROPOLITAN TRIAL COURT NATIONAL JUDICIAL CAPITAL REGION BRANCH NO.____, MANILA CITY

BEN QUE 38 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum Complainant

-versus-

CriminalCase No. 67-12345 For five (5) counts of violation of Batas Pambansa Blg. 22 (B.P.22)

HENRY CHAO Accused x-------------------------------------------x MEMORANDUM FOR THE ACCUSED Accused, through counsel, respectfully submit this memorandum to with; PREFATORY STATEMENT Every person must, in exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19, Civil Code).

STATEMENT OF THE CASE This case refers to a criminal action for violation of Batas Pambansa Blg. 22 (B.P.22) filed by Mr. Ben Que (Complainant) for the five checks issued by Mr. Henry Chao (Accused) dishonored by Alloy Bank, for the reason of “account closed”. The Accused for its defense claims that the money barrowed is for the payment of the stocks of Atlas Parts (company), which is civil liability of the company itself and not by the Accused, under the principle of separate personality of the corporation. Both parties have presented their evidences and witnesses. The case is now submitted for decision. STATEMENT OF THE FACTS

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Manila Law

Prodigals Notes Memorandum On June 1, 2011, the Complainant lent money to the Accused, Manager of Atlas Parts, the amount of P 50,000.00, with 5% monthly interest, payable in five (5) equal monthly instalment of P 12,500.00, for the payment of their stocks. As per agreement, the Accused issued and delivered to the Complainant five (5) Checks to wit; Check No. 001 dated July 1, 2011; Check No. 002 dated August 1, 2011 in the same amount; Check No. 003 dated September 2, 2011; Check No. 004 dated October 1, 2011; and Check No. 005 dated November 1, 2011; all are in the same amount of P 12, 500.00, at the residence of the Complainant in Mandaluyong City. The checks was deposited by the Complainant on their respective dates on its account at BDO Bank, Manila City Hall Branch Manila, however all the checks were dishonored by the drawee, Alloy Bank, for the reason of “Account Closed.” That was owned by the Atlas Parts. On January 2, 2012, The Complainant consulted a lawyer and advised him to send a formal demand letter by registered mail to the office of the Accused, giving him to make good his promise. However, on the middle of June 2011, the Accused resigned as manager of Atlas Parts, thus, he was not aware of the dishonor as well the demand letter sent by the Complainant. THE STATEMENT OF ISSUE The issue on this case, as determined by the Honorable Court in its pre-trial order is WHETHER OR NOT THE ACCUSED IS GUILTY UNDER THE LAW OF BATAS PAMBANSA BILANG 22. (B.P.22) ARGUMENTS AND DISCUSSION

I. THERE WAS DEMAND MADE COMPLAINANT

NO VALID BY THE

As it can be gleaned from the records that the Complainant made a demand thru registered mail to the Accused. However, the Complainant does 40 | P a g e College 2008

Larry D. Bugaring

Manila Law

Prodigals Notes Memorandum not sure or assumed that the demand letter sent to the Accused was received by the latter, under the Rules of Court, it is the fundamental principle that, there should be a proof of service which should be made by such affidavit and registry receipt issued by the mailing officer as well the registry return card. This principle was enlightenment in the case of Alferez vs. People, G.R. No. 182301, January 31, 2011, 641 SCRA 116 states that; “XXX Receipts for registered letters and return receipts do not themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letter, claimed to be a notice of dishonor.XXX The prosecution must also prove actual receipt of the said notice, because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check.” Furthermore, in the same case it states that the consistent rule is that penal statutes have “to be construed strictly against the State and liberally in favor of the Accused.” Under the facts, there is insufficient proof that the Accused received the notice of dishonored as well the demand letter, the presumption that the Accused had a knowledge Account Closed cannot arise. Thus, the Complainant failed to inform the Accused about the dishonored checks which deprive the Accused his right of due process for there was no valid notice and demand made by the Complainant against the Accused. II. THE CHECKS WAS ISSUED BY THE ACCUSED IN HIS CAPACITY AS SIGNATORY IN BEHALF OF THE ATLAS PARTS. Granting arguendo that the accused issued the checks, the facts clearly shows that the Accused as his capacity as the manager of Atlas Parts (company), he borrowed money to the Complainant for the payment of the company stocks, it also shows that being a manager he is authorized signatory in every transactions made by the company. In the Case of Gosiaco vs. Ching, G.R. No. 173807, April 16, 2009, 585 SCRA 471, the Supreme Court Held that: 41 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum “B.P.22 imposes a distinct civil liability of the check which is distinct from the civil liability of the corporation for the amount represented from the check. The civil liability attaching to the signatory arises from wrongful act of signing the check despite the insufficiency of finds in the account, while the civil liability attaching to the corporation is itself the very obligation covered by the check for its execution.” Under the principle of separate personality of the corporation to its officer and stockholders, the facts of this case clearly shows that the act made by the Accused was for the benefit of the Company itself, thus, as the ruling of the Supreme Court in the case of Gosiaco vs. Ching, the prosecution failed to established the fact that Accused use the barrowed money to his own benefit and also the prosecution also failed to established that the Accused wrongfully signed the checks despite the knowledge of insufficiency of funds in the account. Therefore, from the premises, the Accused does not issued a worthless checks but he issued the checks to his capacity as signatory because of his position of being manager to the Company, which shows that the Complainant does not have any cause of action against the Accused civilly or criminally, particularly, violation of B.P.22 III. THE ACTION WAS FILED ON THE WRONG VENUE In the case of Isip vs. People, G. R. No. 170298, June 26, 2007, 525 SCRA 735 the Supreme Court pronounce that: “The place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense 42 | P a g e College 2008

Larry D. Bugaring

Manila Law

Prodigals Notes Memorandum allegedly committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory.” The concept of venue of actions in criminal cases, unlike in civil cases, is jurisdictional. Under the facts of the case the transaction happened on the residence of the Complainant which is the City of Mandaluyong, it is a fundamental principle under the Rules of Court that jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction. The facts disclosed that the information was filed in the City of Manila Thus, the case against the Accused should be dismissed on the ground of want of jurisdiction over the subject matter.

PRAYER WHEREFORE, it is respectfully prayed that this Honorable Court will decide in favor of the Accused and against Complainant, the following reliefs: 1. Dismiss the Case against the Accused on the ground of lack of Cause of Action and want of Jurisdiction; 2. Moral damages for the mental anguish, fright and serious anxiety experienced by the Accused; 3. Exemplary or corrective damages; 4. Cost of litigation Other measures of reliefs that are just and equitable under the premises are likewise prayed for. Manila City, Philippines. November 27, 2011. ATTY. X Counsel for Accused PTR No. 54815, 1/17/2011 IBP No. 589546 Roll of Attorneys No. 8147 MCLE Compliance No. II-843 43 | P a g e College 2008

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Manila Law

Prodigals Notes Memorandum The Branch Clerk of Court RTC, Branch__ Manila City Greetings: Please submit consideration.

the

foregoing

Memorandum

for

the

Court’s

Copy furnished: ATTY Y Counsel for Complainant EXPLANATION In view of time and manpower restrictions (constrained), the above Memorandum was served via registered mail as personal service could not be availed of without causing undue hardship to plaintiff. (Sgd.) ATTY. X Counsel for Accused

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Manila Law

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