Remedial Law Updates

REMEDIAL LAW UPDATES
by: Prof. Arturo M. de Castro 1. (a) Is a motion to dismiss permitted in a complaint for expropriation? Ans: No. Significantly, the above Rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly mandates that any objection or defense to the taking of the property of a defendant must be set forth in an answer. (MASIKIP vs. CITY OF PASIG, G.R. No. 136349. January 23, 2006) (b) May the new rule be given retroactive effect to the prejudice of the Petitioner? Ans: No. The fact that the Court of Appeals rendered its Decision in CAG.R. SP No. 41860 on October 31, after the 1997 Rules of Civil Procedure took effect, is of no moment. It is only fair that the Rule at the time petitioner filed her motion to dismiss should govern. The new provision cannot be applied retroactively to her prejudice. (Ibid) 2. What are the requirements of forum shopping certificate for a corporation? Ans: Thus, only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory's authority. (PHILIPPINE AIRLINES, INC. vs. FLIGHT ATTENDANTS AND STEWARDS ASSOCIATION OF THE PHILIPPINES (FASAP), G.R. No. 143088. January 24, 2006) 3. Is expert testimony conclusive upon the Court? Ans: No. The Court is not bound by expert evidence but is free to weigh it like any other testimony. Expert testimony no doubt constitutes evidence worthy of meriting consideration, although not exclusive on questions of professional character. The courts of justice, however, are not bound to submit their findings necessarily to such testimony; they are free to weigh them, and they can give or refuse to give them any value as proof, or they can even counterbalance such evidence with other elements of conviction which may have been adduced during the trial.
Suffice it to state, expert opinion evidence is to be considered or weighed by the court like any other testimony, in the light of their own general knowledge and experience upon the subject of inquiry. The probative force of the testimony of an expert does not lie in a mere statement of the theory or opinion of the expert, but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and the reasons upon which the logic of his conclusion is founded. (PEOPLE vs. MALEJANA, G.R. No. 145002. January 24, 2006) Criminal Procedure 4. (a) Define probable cause. Ans: Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind that a crime has been committed and the respondent is probably guilty of the crime. (DE OCAMPO vs. SECRETARY OF JUSTICE, G.R. No. 147932. January 25, 2006) (b) What is the nature and purpose of preliminary investigation? Ans: Preliminary investigation is merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to determine whether a crime has been committed and whether the respondent is probably guilty of the crime. It is not the occasion for the full and exhaustive display of the parties' evidence. Hence, if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties' evidence thus presented, he may terminate the proceedings and resolve the case. (Ibid)` (c) Is clarificatory hearing mandatory during preliminary investigation? Ans: No. A clarificatory hearing is not indispensable during preliminary investigation. Rather than being mandatory, a clarificatory hearing is optional on the part of the investigating officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112. This provision states: (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or crossexamine. . . . The use of the word "may" in a statute commonly denotes that it is directory in nature. The term "may" is generally permissive only and operates to confer discretion. Under Section 3(e) of Rule 112, it is within the discretion of the investigation officer whether to set the case for further hearings to clarify some matters. (Ibid)
Prof. Arturo M. de Castro Remedial law updates
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Evidence 5. (a) Define the following: (1) Burden of proof Burden of proof is the duty of any party to present evidence to establish his claim or defense by the amount of evidence required by law, which is preponderance of evidence in civil cases. The party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. For the plaintiff, the burden of proof never parts. For the defendant, an affirmative defense is one which is not a denial of an essential ingredient in the plaintiff's cause of action, but one which, if established, will be a good defense i.e. an "avoidance" of the claim. (DBP POOL OF ACCREDITED INSURANCE CO. vs. RADIO MINDANAO NETWORK, INC., G.R. No. 147039. January 27, 2006) (2) Res gestae Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. The rule in res gestae applies when the declarant himself did not testify and provided that the testimony of the witness who heard the declarant complies with the following requisites: (1) that the principal act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances. (Ibid) (b) Distinguish between admissibility and weight of evidence. Ans: Admissibility of evidence should not be equated with its weight and sufficiency. Admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade. Even assuming that the declaration of the bystanders that it was the members of the CPP/NPA who caused the fire may be admitted as evidence, it does not follow that such declarations are sufficient proof. These declarations should be calibrated vis--vis the other evidence on record. And the trial court aptly noted that there is a need for additional convincing proof, viz.: The Court finds the foregoing to be insufficient to establish that the cause of the fire was the intentional burning of the radio facilities by the rebels or an act of insurrection, rebellion or usurped power. Evidence that
Prof. Arturo M. de Castro Remedial law updates 3 2/3/2013
persons who burned the radio facilities shouted "Mabuhay ang NPA" does not furnish logical conclusion that they are member [sic] of the NPA or that their act was an act of rebellion or insurrection. Additional convincing proof need be submitted. Defendants failed to discharge their responsibility to present adequate proof that the loss was due to a risk excluded. While the documentary evidence presented by petitioner, i.e., (1) the police blotter; (2) the certification from the Bacolod Police Station; and (3) the Fire Investigation Report may be considered exceptions to the hearsay rule, being entries in official records, nevertheless, as noted by the CA, none of these documents categorically stated that the perpetrators were members of the CPP/NPA. Rather, it was stated in the police blotter that: "a group of persons accompanied by one (1) woman all believed to be CPP/NPA . . . more or less 20 persons suspected to be CPP/NPA," while the certification from the Bacolod Police station stated that ". . . some 20 or more armed men believed to be members of the New People's Army NPA," and the fire investigation report concluded that "(I)t is therefore believed by this Investigating Team that the cause of the fire is intentional, and the armed men suspected to be members of the CPP/NPA where (sic) the ones responsible . . . " All these documents show that indeed, the "suspected" executor of the fire were believed to be members of the CPP/NPA. But suspicion alone is not sufficient, preponderance of evidence being the quantum of proof. (Ibid) 6. (a) How may recognition or acknowledgment of filiation be made? Ans: Under the new law, recognition may be compulsory or voluntary. Recognition is compulsory in any of the following cases: (1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) when the child is in continuous possession of status of a child of the alleged father (or mother) 61 by the direct acts of the latter or of his family; (3) when the child was conceived during the time when the mother cohabited with the supposed father; (4) when the child has in his favor any evidence or proof that the defendant is his father. On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing. (IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO & GUILLERMO RUSTIA, et al. vs. HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, G.R. No. 155733. January 27, 2006) (b) What is the prescriptive period for compulsory recognition?
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Ans: Any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent. On the death of either, the action for compulsory recognition can no longer be filed. (Ibid) (c) Define authentic writing. Ans: An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his. (Ibid) (d) Does the report card or published obituary qualify as authentic writing? Ans: No. Did intervenor's report card from the University of Santo Tomas and Josefa Delgado's obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenor's parent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which was published in the SUNDAY TIMES on September 10, 1972, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenor's claim. (Ibid) 7. (a) What is the order of preference in the appointment of an Administrator? Ans: An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator: Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that the administration be granted to some other person, it may be
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granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. (Ibid) (b) What is the principal consideration in the Administrator? May joint Administrators be appointed? appointment of
Ans: In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively. (Ibid) Evidence 8. (a) What determines the nature and jurisdiction over the action for ejectment? Ans: Well-settled is the rule that what determines the nature of the action as well as the court which has jurisdiction over the case are the allegations in the complaint. In actions for forcible entry, the law tells us that two allegations are mandatory for the municipal court to acquire jurisdiction: First, the plaintiff must allege prior physical possession of the property. Second, he must also allege that he was deprived of his possession by any of the means provided for in Section 1, Rule 70 of the Rules of Court. To effect the ejectment of an occupant or deforciant on the land, the complaint should embody such a statement of facts as to bring the party clearly within the class of cases for which the statutes provide a remedy, as these proceedings are summary in nature. The complaint must show enough on its face to give the court jurisdiction without resort to parol evidence. (DOMALSIN vs. SPS. VALENCIANO, G.R. No. 158687. January 25, 2006) What determine the nature of the action as well as the court which has jurisdiction over the case are the allegations in the complaint. In Hilario v. Court of Appeals (329 Phil. 202 [1996]), we ruled: The settled rule is that a complaint for unlawful detainer is sufficient if it contains the allegation that the withholding of possession or the refusal to vacate is unlawful, without necessarily employing the terminology of the law. The complaint must aver facts showing that the inferior court has jurisdiction to try the case, such as how defendant's
possession started or continued. Thus, the allegation in a complaint that the "plaintiff verbally asked the defendants to remove their houses on the lot of the former but the latter refused and still refuse to do so without just and lawful grounds" was held to be more than sufficient compliance with the jurisdictional requirements. (BALLESTEROS vs. ABION, G.R. No. 143361. February 9, 2006) (b) Who may be a defendant in forcible entry and unlawful detainer cases? Ans: An action of forcible entry and detainer may be maintained only against one in possession at the commencement of the action, and not against one who does not in fact hold the land. Under Section 1, Rule 70 of the Rules of Court, the action may be filed against persons unlawfully withholding or depriving possession or any person claiming under them. Considering that respondents are the ones in present actual possession and are depriving petitioner of the possession of the land in question, it is proper that they be the ones to be named defendants in the case. The fact that Gloria Banuca was supposedly the one who first committed forcible entry when she allegedly demolished the house of petitioner does not make her the proper party to be sued because she is no longer in possession or control of the land in controversy. (DOMALSIN vs. SPS. VALENCIANO, G.R. No. 158687. January 25, 2006) (c) From when is the one year prescriptive period for forcible entry counted? Ans: As regards the timeliness of the filing of the case for forcible entry, we find that same was filed within the one-year prescriptive period. We have ruled that where forcible entry was made clandestinely, the one-year prescriptive period should be counted from the time the person deprived of possession demanded that the deforciant desist from such dispossession when the former learned thereof. As alleged by petitioner in the Amended Complaint, he was deprived of his possession over the land by force, strategy and stealth. Considering that one of the means employed was stealth because the intrusion was done by respondents without his knowledge and consent, the one-year period should be counted from the time he made the demand to respondents to vacate the land upon learning of such dispossession. The record shows that upon being informed that respondents were constructing a building in the subject land sometime in the first week of August 1998, petitioner immediately protested and advised the former to stop; but to no avail. (Ibid) While possession by tolerance is lawful, such possession becomes illegal from the moment a demand to vacate is made by the owner and the possessor refuses to comply with such demand. A person who occupies the land of another with the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. (BALLESTEROS vs. ABION, G.R. No. 143361. February 9, 2006)
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Civil Procedure 9. (a) What is grave abuse of discretion as an equitable ground for the special civil action for certiorari? Ans: We have previously ruled that grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence. By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. The word "capricious," usually used in tandem with the term "arbitrary," conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative. (PEREZ vs. COURT OF APPEALS, G.R. No. 162580. January 27, 2006) Grave abuse of discretion is capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law. (RODRIGUEZ vs. PRESIDING JUDGE OF THE RTC OF MANILA-BRANCH 17, G.R. No. 157977. February 27, 2006) (b) What are the requirements for Intervention? Ans: The requirements for intervention are: [a] legal interest in the matter in litigation; and [b] consideration must be given as to whether the adjudication of the original parties may be delayed or prejudiced, or whether the intervenor's rights may be protected in a separate proceeding or not. Legal interest, which entitles a person to intervene, must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by direct legal operation and effect of the judgment. Such interest must be actual, direct and material, and not simply contingent and expectant. (PEREZ vs. COURT OF APPEALS, G.R. No. 162580. January 27, 2006) 10. State the rationale and justification for liberal construction of procedural rules. Ans: To begin with, the Court is fully aware that procedural rules are not to be belittled or simply disregarded for these prescribed procedures insure an orderly and speedy administration of justice. However, it is equally true that litigation is not merely a game of technicalities. The law and jurisprudence grant to courts the prerogative to relax compliance with procedural rules of even the most mandatory character, mindful of the duty to reconcile both the need to put an end to litigation speedily and the parties' right to an opportunity to be heard.
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The Court has often stressed that rules of procedure are merely tools designed to facilitate the attainment of justice. They were conceived and promulgated to effectively aid the court in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that on the balance, technicalities take a backseat against substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than promote justice, it is always within our power to suspend the rules or except a particular case from its operation. In numerous cases, the Court has allowed liberal construction of the Rules of Court with respect to the rules on the manner and periods for perfecting appeals, when to do so would serve the demands of substantial justice and in the exercise of equity jurisdiction of the Supreme Court. Indeed, laws and rules should be interpreted and applied not in a vacuum or in isolated abstraction but in light of surrounding circumstances and attendant facts in order to afford justice to all. Thus, where a decision may be made to rest on informed judgment rather than rigid rules, the equities of the case must be accorded their due weight because labor determinations should not only be secundum rationem but also secundum caritatem. (GRAND PLACEMENT and GENERAL SERVICES CORP. vs. COURT OF APPEALS, G.R. No. 142358. January 31, 2006) 11. What is the prescriptive period for reconveyance based on: (a) Fraud: 4 years from discovery of the fraud if the purpose is to annul a voidable contract. (b) Implied on constructive trust: 10 years from registration of the title. Generally, an action for reconveyance of real property based on fraud prescribes in four years from the discovery of fraud; such discovery is deemed to have taken place upon the issuance of the certificate of title over the property. Registration of real property is a constructive notice to all persons and, thus, the four-year period shall be counted therefrom. In the case at bar, respondents action which is for Reconveyance and Cancellation of Title is based on an implied trust under Art. 1456 of the Civil Code since he averred in his complaint that through fraud petitioners were able to obtain a Certificate of Title over the property. he does not seek the annulment of a viodable contract whereby Articles 1390 and 1391 of the Civil Code would find application such that the cause of action would prescribe in four years. An action for reconveyance based on implied or constructive trust prescribes in ten years from the alleged fraudulent registration or date of issuance of the certificate of title over the property. The four-year prescriptive period relied upon by the petitioners apply only if the complaint seeks to annul a voidable contract under Article 1390 of the Civil code. In such case, the four-year prescriptive period under Article 1391 begins to run from the time of
discovery of the mistake, violence, intimidation, undue influence or fraud. (Crisostomo v. Garcia, Jr., G.R. No. 164787, January 31, 2006) 12. (a) What issues may be raised in a petition for review on certiorari? Ans: Only legal issues. (b) What are the exceptions? Ans: The rule is that before this Court, only legal issues may be raised in a petition for review on certiorari. The reason is that this Court is not a trier of facts, and is not to review and calibrate the evidence on record. Moreover, the findings of facts of the trial court, as affirmed on appeal by the Court of Appeals, are conclusive on this Court unless the case falls under any of the following exceptions: (1) when the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents; and (10) when the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. (BANK OF COMMERCE vs. MANALO, G.R. No. 158149. February 9, 2006) Evidence 13. What may evidence of similar acts prove? Ans: Habit, usage, pattern of conduct or intent of the parties. Under Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time, although such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties. Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semi-automatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be
numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion. In determining whether the examples are numerous enough, and sufficiently regular, the key criteria are adequacy of sampling and uniformity of response. After all, habit means a course of behavior of a person regularly represented in like circumstances. It is only when examples offered to establish pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that examples are admissible. The key criteria are adequacy of sampling and uniformity of response or ratio of reaction to situations. (BANK OF COMMERCE vs. MANALO, G.R. No. 158149. February 9, 2006) 14. (a) When is duplicity of charges a ground to quash a criminal Information? Ans: When the Information charges more than one offense. Duplicity of charges simply means a single complaint or information charges more than one offense, as Section 13 of Rule 110 of the 1985 Rules of Criminal Procedure clearly states: Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. In short, there is duplicity (or multiplicity) of charges when a single Information charges more than one offense. Under Section 3(e), Rule 117 of the 1985 Rules of Criminal Procedure, duplicity of offenses in a single information is a ground to quash the Information. The Rules prohibit the filing of such Information to avoid confusing the accused in preparing his defense. (LONEY vs. PEOPLE, G.R. No. 152644. February 10, 2006) (b) When is there double jeopardy? Ans: When the act giving rise to the charges is punishable by an ordinance and a national statute, not when a single act gives rise to 2 or more offenses, not the same offense. As early as the start of the last century, this Court had ruled that a single act or incident might offend against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense. The only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for "the same offense." In People v. Doriquez (133 Phil. 295 [1968]), we held that two (or more) offenses arising from the same act are not "the same" . . . if one provision [of law] requires proof of an additional fact or element which the other does not, . . . . Phrased elsewise, where two different laws (or articles of the same
code) define two crimes, prior jeopardy as to no obstacle to a prosecution of the other, offenses arise from the same facts, if each some important act which is not an essential other.
one of them is although both crime involves element of the
The right against double jeopardy applies when the act giving rise to the charges was punished by an ordinance and a national statute, thus falling within the proscription against multiple prosecutions for the same act under the second sentence in Section 22, Article IV of the 1973 Constitution, now Section 21, Article III of the 1987 Constitution. (Ibid) 15. What are the requisites for issuance of a Writ of Preliminary Injunction? Ans: The requisites for preliminary injunctive relief are: (a) the invasion of right sought to be protected is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious damage. As such, a writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action. The twin requirements of a valid injunction are the existence of a right and its actual or threatened violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown. (SPS. LIM vs. COURT OF APPEALS, G.R. No. 134617. February 13, 2006) 16. When may a writ of mandamus be issued? Is it available to compel dismissal of a criminal case? Ans: It is established that a writ of mandamus may be issued to control the exercise of discretion when, in the performance of duty, there is undue delay that can be characterized as a grave abuse of discretion resulting in manifest injustice. Mandamus is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution. Besides, it has long been established in this jurisdiction that the writ of mandamus is available to the accused to compel a dismissal of the case. (LUMANLAW vs. HON. PERALTA JR., G.R. No. 164953. February 13, 2006) 17. A ground raised in a motion to dismiss may not be the subject of preliminary hearing as special and affirmative defense in the answer, except when there are several defendants but only one filed a motion to dismiss. Section 6, Rule 16 of the Rules of Court is explicit in stating that the defendant may reiterate any of the grounds for dismissal provided under Rule 16 of the Rules of Court as affirmative defenses but that a preliminary hearing may no longer be had thereon if a motion to dismiss had already been filed. The section, however, does not contemplate a situation, such as the one obtaining in this case, where there are several
defendants but only one filed a motion to dismiss. (SPS. ABRAJANO vs. HEIRS OF SALAS, JR., G.R. No. 158895. February 16, 2006) Extradition 18. (a) Is the prospective extraditee entitled to notice and hearing before the issuance of a Warrant of Arrest? Ans: No, to avoid his flight from justice. (b) May bail be granted to a possible extraditee? Ans: Yes. We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances. (RODRIGUEZ vs. PRESIDING JUDGE OF THE RTC OF MANILA-BRANCH 17, G.R. No. 157977. February 27, 2006) 19. What is the doctrine of conclusiveness of judgment or preclusion of issues or collateral estoppel? Ans: Under this doctrine, which is also known as "preclusion of issues" or "collateral estoppel," issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action. (BORLONGAN vs. BUENAVENTURA, G.R. No. 167234. February 27, 2006) 20. When may the Supreme Court resolve factual issues? Ans: It is a settled rule that in the exercise of the Supreme Court's power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court. Jurisprudence has recognized several exceptions in which factual issues may be resolved by this Court, such as: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. None of these exceptions find application in the present case. (BPI vs. SARMIENTO, G.R. No. 146021. March 10, 2006)
21. Is there identity of causes of action for declaration of nullity of marriage on the ground of psychological incapacity under Art. 36 of the Family Code and for custody of common children? Ans: Yes. By petitioner's filing of the case for declaration of nullity of marriage before the Pasig RTC he automatically submitted the issue of the custody of Bianca as an incident thereof. After the appellate court subsequently dismissed the habeas corpus case, there was no need for petitioner to replead his prayer for custody for, as above-quoted provisions of the Family Code provide, the custody issue in a declaration of nullity case is deemed pleaded. That is so gains light from Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages" which provides: Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. Since this immediately-quoted provision directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor. There is identity in the causes of action in Pasig and Pasay because there is identity in the facts and evidence essential to the resolution of the identical issue raised in both actions whether it would serve the best interest of Bianca to be in the custody of petitioner rather than respondent or vice versa. Since the ground invoked in the petition for declaration of nullity of marriage before the Pasig RTC is respondent's alleged psychological incapacity to perform her essential marital obligations as provided in Article 36 of the Family Code, the evidence to support this cause of action necessarily involves evidence of respondent's fitness to take custody of Bianca. Thus, the elements of litis pendentia, to wit: a) identity of parties, or at least such as representing the same interest in both actions; b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and c) the identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other, are present. (YU vs. YU, G.R. No. 164915. March 10, 2006)
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22. What is litis pendencia? Is it present between a Petition for Writ of Possession and action for annulment of foreclosure? Ans: Litis pendentia refers to that situation wherein another action is pending between the same parties for the same cause of actions and that the second action becomes unnecessary and vexatious. For litis pendentia to be invoked, the concurrence of the following requisites is necessary: (a) identity of parties or at least such as represent the same interest in both actions; (b) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and, (c) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res judicata in the other. Applying the foregoing criteria in the instant case, litis pendentia does not obtain in this case because of the absence of the second and third requisites. The issuance of the writ of possession being a ministerial function, and summary in nature, it cannot be said to be a judgment on the merits, but simply an incident in the transfer of title. Hence, a separate case for annulment of mortgage and foreclosure sale cannot be barred by litis pendentia or res judicata. Thus, insofar as Spec. Proc. No. 9900988-D and Civil Case No. 99-03169-D pending before different branches of RTC Dagupan City are concerned, there is no litis pendentia. (SPS. YU vs. PCIB, G.R. No. 147902. March 17, 2006) 23. May infra-structure project of the Government be restrained or enjoined? Ans: Yes, when there are questions of law or possible violation of the Constitution. In sum, what Presidential Decree No. 1818 aims to avert is the untimely frustration of government infrastructure projects, particularly by provisional remedies, to the detriment of the greater good by disrupting the pursuit of essential government projects or frustrate the economic development effort of the nation. Presidential Decree No. 1818, however, was not meant to be a blanket prohibition so as to disregard the fundamental right to health, safety and well-being of a community guaranteed by the fundamental law of the land. Presidential Decree No. 1818 was issued on 16 January 1981, prohibiting judges from issuing restraining orders against government infrastructure projects. In part, the decree says, "No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or preliminary order, preliminary mandatory injunction in any case, dispute or controversy involving an infrastructure project." Realizing the importance of this decree, this Tribunal had issued different circulars to implement this particular law. Presidential Decree No. 1818 prohibits courts from issuing injunctions against government infrastructure projects. In Garcia v. Burgos (353 Phil. 740, 743 [1998]) , Presidential Decree No. 1818 was held to prohibit courts from issuing an injunction against any infrastructure project in order not to disrupt or hamper the pursuit of
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essential government projects development effort of the nation.
or
frustrate
the
economic
While its sole provision would appear to encompass all cases involving the implementation of projects and contracts on infrastructure, natural resource development and public utilities, this rule, however, is not absolute as there are actually instances when Presidential Decree No. 1818 should not find application. In a spate of cases, this Court declared that although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in technical cases. On issues clearly outside this dimension and involving questions of law, this Court declared that courts could not be prevented from exercising their power to restrain or prohibit administrative acts. In the case at bar, petitioners sought the issuance of a preliminary injunction on the ground that the NAPOCOR Project impinged on their right to health as enshrined in Article II, Section 15 of the 1987 Constitution, which provides: Sec. 15. The State shall protect and promote the right to health of the people and instill consciousness among them. To boot, petitioners, moreover, harp on respondent's failure to conduct prior consultation with them, as the community affected by the project, in stark violation of Section 27 of the Local Government Code which provides: "no project or program shall be implemented by government authorities unless the consultations mentioned are complied with, and prior approval of the Sanggunian concerned is observed." From the foregoing, whether there is a violation of petitioners' constitutionally protected right to health and whether respondent NAPOCOR had indeed violated the Local Government Code provision on prior consultation with the affected communities are veritable questions of law that invested the trial court with jurisdiction to issue a TRO and subsequently, a preliminary injunction. As such, these questions of law divest the case from the protective mantle of Presidential Decree No. 1818. Moreover, the issuance by the trial court of a preliminary injunction finds legal support in Section 3 of Rule 58 of the Rules of Court which provides: Sec. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. The rule on preliminary injunction merely requires that unless restrained, the act complained of will probably violate his rights and tend to render the judgment ineffectual. Here, there is adequate evidence on record to justify the conclusion that the project of NAPOCOR probably imperils the health and safety of the petitioners so as to justify the issuance by the trial court of a writ of preliminary injunction. Petitioners adduced in evidence copies of studies linking the incidence of illnesses such as cancer and leukemia to exposure to electromagnetic fields. The records bear out, to boot, a copy of a brochure of NAPOCOR regarding its Quezon Power Project from which will be supplying NAPOCOR with the power which will pass through the towers subject of the controversy. The NAPOCOR brochure provides that because of the danger concomitant with high voltage power, Philippine laws mandate that the power lines should be located within safe distances from residences. And the Quezon Power Project mandates an easement of 20 meters to the right and 20 meters to the left which falls short of the 12-meter easement that NAPOCOR was proposing to petitioners. Likewise on record, are copies of letters of NAPOCOR President Federico Puno to Rep. Arnulfo Fuentebella, Chairman of the House Committee on Energy, stating updates on the negotiations being undertaken by the NAPOCOR and the Dasmarias Village and Forbes Park residents. Also on file is the Privilege Speech dated 10 May 1999 of Representative Francis Joseph G. Escudero, who denounced the cavalier manner with which NAPOCOR ignored safety and consultation requirements in the questioned project. With a member of Congress denouncing the subject project of NAPOCOR because of the very same health and safety ills that petitioners now hew to in this petition, and with documents on record to show that NAPOCOR made representations to petitioners that they are looking into the possibility of relocating the project, added to the fact that there had been series of negotiations and meetings between petitioners and NAPOCOR as well as related agencies, there is ample indicia to suggest to the mind of the court that the health concerns of the petitioners are, at the very least, far from imaginary. Indeed, if there is no cause for concern, NAPOCOR would not have been stirred to come up with options to address the woes of
petitioners, nor would Congressman Escudero have fired away those strong words of censure, assailing what to Congressman Escudero smacks of a "cavalier manner by which the NAPOCOR has responded to earnest pleas for a review of its practice of installing massive pylons supporting high tension cables in densely populated areas." True, the issue of whether or not the transmission lines are safe is essentially evidentiary in nature, and pertains to the very merits of the action below. In fact, petitioners recognize that the conclusiveness of their life, health and safety concerns still needs to be proved in the main case below and they are prepared to do so especially in the light of some studies cited by respondent that yield contrary results in a disputed subject. Despite the parties' conflicting results of studies made on the issue, the possibility that the exposure to electromagnetic radiation causes cancer and other disorders is still, indeed, within the realm of scientific scale of probability. Equally important, we take judicial notice that the area alluded to as location of the NAPOCOR project is a fragile zone being proximate to local earthquake faults, particularly the Marikina fault, among other zones. This is not to mention the risks of falling structures caused by killer tornadoes and super typhoons, the Philippines, especially Central Luzon, being situated along the typhoon belt. Moreover, the Local Government Code, requires conference with the affected communities of a government project. NAPOCOR, palpably, made a shortcut to this requirement. In fact, there appears a lack of exhaustive feasibility studies on NAPOCOR's part before making a go with the project on hand; otherwise, it should have anticipated the legal labyrinth it is now caught in. These are facts, which the trial court could not ignore, and form as sufficient basis to engender the cloud of doubt that the NAPOCOR project could, indeed, endanger the lives of the petitioners. A preliminary injunction is likewise justified prior to a final determination of the issues of whether or not NAPOCOR ignored safety and consultation requirements in the questioned project. Indeed, the court could, nay should, grant the writ of preliminary injunction if the purpose of the other party is to shield a wrongdoing. A ruling to the contrary would amount to an erosion of judicial discretion. After all, for a writ of preliminary injunction to be issued, the Rules do not require that the act complained of be in violation of the rights of the applicant. Indeed, what the Rules require is that the act complained of be probably in violation of the rights of the applicant. Under the Rules of Court, probability is enough basis for injunction to issue as a provisional remedy, which is different from injunction as a main action where one needs to establish absolute certainty as basis for a final and permanent injunction. Pending the final determination of the trial court on the main case for damages, of whether or not the NAPOCOR Project infringes on petitioners' substantive right to health and pending
determination of the question of whether there was non-observance of the prior-consultation proviso under the Local Government Code, it is prudent to preserve the status quo. . (HERNANDEZ vs. NPC, G.R. No. 145328. March 23, 2006) 24. Is an action based on quasi-delict capable of pecuniary estimation? Ans: Yes. Actions for damages based on quasi-delicts are primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendant's alleged tortious acts. The damages claimed in such actions represent the monetary equivalent of the injury caused to the plaintiff by the defendant, which are thus sought to be recovered by the plaintiff. This money claim is the principal relief sought, and is not merely incidental thereto or a consequence thereof. It bears to point out that the complaint filed by private respondent before the RTC actually bears the caption "for DAMAGES." In sum, actions for damages based on quasi-delicts are actions that are capable of pecuniary estimation. As such, they fall within the jurisdiction of either the RTC or the municipal courts, depending on the amount of damages claimed. In this case, the amount of damages claimed is within the jurisdiction of the RTC, since it is the claim for all kinds of damages that is the basis of determining the jurisdiction of courts, whether the claims for damages arise from the same or from different causes of action. (INIEGO vs. PURGANAN, G.R. No. 166876. March 24, 2006) 25. (a) Define Intervention. Ans: Intervention is "a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings." (ALFELOR vs. HALASAN, G.R. No. 165987. March 31, 2006) (b) What are its requisites? Ans: Under this Rule, intervention shall be allowed when a person has (1) a legal interest in the matter in litigation; (2) or in the success of any of the parties; (3) or an interest against the parties; (4) or when he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or an officer thereof. (Ibid) (c) May intervention in intestate proceedings be permitted even after approval of the compromise agreement and issuance of a writ of execution by the intestate court? Ans: Yes. In Uy v. Court of Appeals (232 SCRA 579 [1994]), the Court allowed petitioners (who claimed to be the surviving legal spouse
and the legitimate child of the decedent) to intervene in the intestate proceedings even after the parties had already submitted a compromise agreement involving the properties of the decedent, upon which the intestate court had issued a writ of execution. In setting aside the compromise agreement, the Court held that petitioners were indispensable parties and that "in the interest of adjudicating the whole controversy, petitioners' inclusion in the action for partition, given the circumstances, not only is preferable but rightly essential in the proper disposition of the case." (Ibid) 26. (a) Distinguish custody of the law from jurisdiction over the person? Ans: Custody of the law is accomplished either by arrest or voluntary surrender; while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced. Moreover, jurisdiction, once acquired, is not lost at the instance of parties, as when an accused escapes from the custody of the law, but continues until the case is terminated. (ALVA vs. COURT OF APPEALS, G.R. No. 157331. April 12, 2006) (b) Bail may not be granted before the arrest of the Accused. Basic is the principle that that the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature, x x x, to file a petition for bail for someone whose freedom has yet to be curtailed. (Ibid) 27. (a) Declaration against interest. Section 38 of Rule 130 of the Rules of Court provides: The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons. (PAREL vs. PRUDENCIO, G.R. No. 146556. April 19, 2006) (b) Offer of Evidence. Section 34 of Rule 132 of the Rules of Court provides: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. 21 It is a settled rule that the mere fact that a particular document is identified and marked as an exhibit does not
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mean that it has thereby already been offered as part of the evidence of a party. (Ibid) 28. (a) What is the venue for personal actions such as a Complaint for personal damages? Ans: A complaint for damages is a personal action. As such, it is governed by Section 2, Rule 4 of the Rules of Courts which reads: All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. The choice of venue for personal actions cognizable by the RTC is given to plaintiff but not to plaintiff's caprice because the matter is regulated by the Rules of Court. The rule on venue, like other procedural rules, is designed to insure a just and orderly administration of justice, or the impartial and evenhanded determination of every action and proceeding. The option of plaintiff in personal actions cognizable by the RTC is either the place where defendant resides or may be found, or the place where plaintiff resides. If plaintiff opts for the latter, he is limited to that place. (SALUDO, JR. vs. AMERICAN EXPRESS INTERNATIONAL, INC., G.R. No. 159507. April 19, 2006) (b) What is residence for purposes of venue? Ans: For purposes of venue, the less technical definition of residence is adopted. Thus, it is understood to mean as "the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. (Ibid) (c) Define residence for purposes of election law? Ans: The definition of "residence" for purposes of election law is more stringent in that it is equated with the term "domicile." Hence, for the said purpose, the term "residence" imports "not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention." When parsed, therefore, the term "residence" requires two elements: (1) intention to reside in the particular place; and (2) personal or physical presence in that place, coupled with conduct indicative of such intention. As the Court elucidated, "the place where a party actually or constructively has a permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law." (Ibid) 29. (a) What are the requisites for summary judgment?
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Ans: For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no genuine issue as to any material fact, except for the amount of damages; and (b) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. Where, on the basis of the pleadings of a moving party, including documents appended thereto, no genuine issue as to a material fact exists, the burden to produce a genuine issue shifts to the opposing party. If the opposing party fails, the moving party is entitled to a summary judgment. Where there are no disputed material facts, the determination of whether a party breached a contract is a question of law and is appropriate for summary judgment. When interpreting an ambiguous contract with extrinsic evidence, summary judgment is proper so long as the extrinsic evidence presented to the court supports only one of the conflicting interpretations. Where reasonable men could differ as to the contentions shown from the evidence, summary judgment might be denied. (RIVERA vs. SOLIDBANK CORPORATION, G.R. No. 163269. April 19, 2006; ASIAN CONSTRUCTION AND DEVT. CORP. vs. PHILIPPINE COMMERCIAL INTERNATIONAL BANK, G.R. No. 153827. April 25, 2006) (b) What is a genuine issue? Ans: A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from an issue which is a sham, fictitious, contrived or a false claim. The trial court can determine a genuine issue on the basis of the pleadings, admissions, documents, affidavits or counter-affidavits submitted by the parties. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to any fact and summary judgment called for. On the other hand, where the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of a trial. The evidence on record must be viewed in light most favorable to the party opposing the motion who must be given the benefit of all favorable inferences as can reasonably be drawn from the evidence. (RIVERA vs. SOLIDBANK CORPORATION, G.R. No. 163269. April 19, 2006) 30. Concept of Habeas Corpus. Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to "all case of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person, and if found illegal, the court orders the release of the detainee. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. (IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ENGR. ASHRAF KUNTING, G.R. No. 167193. April 19, 2006) 31. (a) What are the kinds of action to recover possession of real property?
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Ans: Under existing law and jurisprudence, there are three kinds of actions available to recover possession of real property: (a) accion interdictal; (b) accion publiciana; and (c) accion reivindicatoria. Accion interdictal comprises two distinct causes of action, namely, forcible entry (detentacion) and unlawful detainer (desahuico). In forcible entry, one is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth whereas in unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. The two are distinguished from each other in that in forcible entry, the possession of the defendant is illegal from the beginning, and that the issue is which party has prior de facto possession while in unlawful detainer, possession of the defendant is originally legal but became illegal due to the expiration or termination of the right to possess. The jurisdiction of these two actions, which are summary in nature, lies in the proper municipal trial court or metropolitan trial court. Both actions must be brought within one year from the date of actual entry on the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer. The issue in said cases is the right to physical possession. Accion publiciana is the plenary action to recover the right of possession which should be brought in the proper regional trial court when dispossession has lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. In other words, if at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendant's possession had become illegal, the action will be, not one of the forcible entry or illegal detainer, but an accion publiciana. On the other hand, accion reivindicatoria is an action to recover ownership also brought in the proper regional trial court in an ordinary civil proceeding. (SPS. VALDEZ, JR. vs. COURT OF APPEALS, G.R. No. 132424. May 4, 2006) (b) What determines jurisdiction in unlawful Detainer? Ans: Indeed, to vest the court jurisdiction to effect the ejectment of an occupant, it is necessary that the complaint should embody such a statement of facts as brings the party clearly within the class of cases for which the statutes provide a remedy, as these proceedings are summary in nature. The complaint must show enough on its face the court jurisdiction without resort to parol testimony. The jurisdictional facts must appear on the face of the complaint. When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was affected or how and when dispossession started, the remedy should either be an accion publiciana or an accion reivindicatoria in the proper regional trial court. (Ibid) 32. When may late appeals be entertained by the Court?
Ans: There have been exceptions, however, in which the Court dispensed with technical infirmities and gave due course to tardy appeals. In some of those instances, the presence of any justifying circumstance recognized by law such as fraud, accident, mistake or excusable negligence properly vested the judge with discretion to approve or admit an appeal filed out of time. In other instances, lapsed appeals were allowed in order to serve substantial justice, upon consideration of a) matters of life, liberty, honor or property; b) the existence of special or compelling circumstances; c) the merits of the case; d) causes not entirely attributable to the fault or negligence of the party that would be favored by the suspension of the rules; e) the failure to show that the review being sought was merely frivolous and dilatory; and f) the fact that the other party would not be unjustly prejudiced. (GO vs. YAMANE, G.R. No. 160762. May 3, 2006) 33. Has an association legal personality to represent its members for the injury to its members? Ans: Yes. On the first issue, the rule is that all actions must be prosecuted and defended by the real parties-in-interest and in the name of the real party-in-interest. The party whose legal right has been invaded or infringed or who sustained an injury is the only one who can maintain the action; or the party who stands to be benefited or injured by the judgment in the suit. He must appear to be the present owner of the right sought to be enforced. An association has the legal personality to represent its members and the outcome of the case will affect their vital interests. Thus, in Executive Secretary v. Court of Appeals (429 SCRA 81, 96 [2004]), the Court ruled that the modern view is that an association has standing to complain an injury to its members. This view focuses the legal identity of an association with that of its members. An association has standing to file suit for its members despite its lack of direct interest if its members are affected by the action; similarly, an organization has standing to assert the concern of its constituents. (PUROK BAGONG SILANG ASSO., INC. vs. YUIPCO, G.R. No. 135092. May 4, 2006) 34. Must a counterclaim be accompanies by non-forum certification? Ans: Yes, if the counterclaim is permissive and No, if it is compulsory. A counterclaim is permissive if it may be set up separately from the case (Suria vs. UST Hospital). However, in the recent case of Carpio vs. Rural Bank of Santo Tomas, Inc, G.R. No. 153171, May 4, 2006 handled by the author as counsel for the Petitioners, the Supreme Court did not make a distinction between permissive and compulsory counterclaim in holding that: Petitioners contend that the trial court and the Court of Appeals gravely abused their discretion in not dismissing respondent bank's counterclaim for lack of a certification against forum shopping. Petitioners' contention is utterly baseless. It bears stressing that the Rule distinctly provides that the required certification against forum shopping is intended to cover an "initiatory
pleading," meaning an "incipient application of a party asserting a claim for relief." Certainly, respondent bank's Answer with Counterclaim is a responsive pleading, filed merely to counter petitioners' complaint that initiates the civil action. In other words, the rule requiring such certification does not contemplate a defendant's/respondent's claim for relief that is derived only from, or is necessarily connected with, the main action or complaint. In fact, upon failure by the plaintiff to comply with such requirement, Section 5, quoted above, directs the "dismissal of the case without prejudice," not the dismissal of respondent's counterclaim. (SPS. CARPIO vs. RURAL BANK OF STO. TOMAS (BATANGAS), INC., G.R. No. 153171. May 4, 2006) 35. What is the objective of the Katarungang Pambarangay rule? Ans: The primordial objective of the Katarungang Pambarangay Rules, is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts. To attain this objective, Section 412(a) of Republic Act No. 7160 requires the parties to undergo a conciliation process before the Lupon Chairman or the Pangkat as a precondition to filing a complaint in court, thus: SECTION 412. Conciliation. (a) Pre-condition to Filing of Complaint in Court. No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman. (LUMBUAN vs. RONQUILLO, G.R. No. 155713. May 5, 2006) 36. Decisions of the voluntary arbitrator under the Labor Code is appealable to: (a) The NLRC (b) The Court of Appeals under Rule 43 (c) The Court of Appeals under Rule 65 (d) The Supreme Court Ans: (b) We find that the Court of Appeals did not err in holding that petitioner used a wrong remedy when it filed a special civil action on certiorari under Rule 65 instead of an appeal under Rule 43 of the 1997 Rules of Civil Procedure. The Court held in Luzon Development Bank v. Association of Luzon Development Bank Employees (249 SCRA 162 [1995]) that decisions of the voluntary arbitrator under the Labor Code are appealable to the Court of Appeals. In that case, the Court observed that the Labor Code was silent as regards the appeals from the decisions of the voluntary arbitrator, unlike those of the Labor Arbiter which may be appealed
to the National Labor Relations Commission. The Court noted, however, that the voluntary arbitrator is a government instrumentality within the contemplation of Section 9 of Batas Pambansa Blg. (BP) 129 which provides for the appellate jurisdiction of the Court of Appeals. The decisions of the voluntary arbitrator are akin to those of the Regional Trial Court, and, therefore, should first be appealed to the Court of Appeals before being elevated to this Court. (CENTRO ESCOLAR UNIVERSITY FACULTY AND ALLIED WORKERS UNION vs. COURT OF APPEALS, G.R. No. 165486. May 31, 2006) 37. What are the grounds for annulment of a judgment or final order or resolution of the Regional Trial Court before the Court of Appeals? Ans: The following: (a) Extrinsic fraud or the judgment has been obtained by fraud; (b) Lack of jurisdiction of the judgment is void for lack of due process. 38. Give instances of extrinsic fraud. (a) Among the instances of extrinsic or collateral fraud are: keeping the unsuccessful party away from court by a false promise of compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat, or being regularly employed, corruptly sells out his clients interest. (Aranda vs. Fortune Savings Bank & Loans Association, 490 SCRA 87,102 [June 8, 2006]) (b) There is extrinsic fraud within the meaning of Sec. 9, par. (2), of B.P. Blg. 129, where it is one the effect of which prevents a party from hearing a trial, or real contest, or from presenting all of his case to the court, or where it operates upon matters, not pertaining to the judgment itself, but to the manner in which it was procured so that there is not a fair submission of the controversy. In other words, extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully his side of the case by fraud or deception practiced on him by his opponent. Fraud is extrinsic where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had any knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority connives at his defeat; these and similar cases which show that there has never been a real contest in the trial or hearing of the case are reasons for which a new suit may be sustained to set aside and annul the former judgment and open the case for a new and fair hearing. (Ancheta vs. Guersey- Dalaygon, 490 SCRA 140 [June 8, 2006]) 39. What does Ex Abudanti Cautela mean? Is an Answer ex abudanti Cautela a valid Answer? Ans: Ex abudanti cautela means out of abundant caution or to be on the safe side. An answer ex abudanti cautela does not make their
answer less of an answer. A cursory look at the answers filed by petitioners shows that they contain their respective defenses. An answer is a pleading in which a defending party sets forth his defenses and the failure to file one within the time allowed, therefore, may cause a defending party to be declared in default. Thus, petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the denial of their motion to dismiss. (Rosete vs. Lim, 490 SCRA 125 138-139 [June 8, 2006]). 40. (a) Who has the right against self-incrimination? Ans: Any person who gives evidence whether voluntarily or under compulsion of subpoena, in any civil, criminal or administrative proceeding.
(b) When may the right be invoked? Ans: Only when the specific question, incriminatory in character, is actually put to the witness.
(c) Is the right against self-incrimination the same as the right not to be compelled to be a witness against himself? Ans: No. The right against self-incrimination secures to a witness, whether a party or not, the right to refuse to answer any particular incriminatory question, ie, on the answer to which has a tendency to incriminate him for some crime. Only the Accused may refuse to be a witness against himself in the criminal case. He may refuse to take the witness stand in civil or administrative cases that partake of the nature of a criminal proceeding. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls. (Rosete vs. Lim, June 8, 2006) 41. (a) What are the exceptions to the general rule that a motion for reconsideration is needed before a petition for certiorari under Rule 65 can be resorted to? Ans: These exceptions are: 1. Where the order is a patent nullity, as where the Court a quo has no jurisdiction; 2. Where the questions raised in the certiorari proceeding have been duly raised and passed upon in the lower court, or are the same as those raised and passed upon in the lower court; 3. Where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; 4. Where, under the circumstances, a motion reconsideration would be useless. (p. 164 Vol. 490 SCRA)
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(b) What question may be entertained in a special civil action of certiorari under Rule 65? Ans: Only question of lack or excess of jurisdiction or grave abuse of discretion, not errors of law or judgment. The Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither questions of fact nor of law are entertained, but only questions of fact nor of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion. The phrase grave abuse of discretion has a precise meaning in law, denoting abuse of discretion too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility. It does not encompass an error of law. Nor does it include a mistake in the appreciation of the contending parties respective evidence or the evaluation of their relative weight. (Romys Freight Service vs. Castro, 490 SCRA 165-166 [June 8, 2006]) 42. Distinguish a discretionary act from a ministerial act. Ans: A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment. (Espiridion vs. Court of Appeals, 490 SCRA 277 [June 8, 2006]) 43. Where the period of the lease has expired and several demands were sent to the lessee to vacate, when should the one year period to file unlawful detainer be reckoned with? From the date of the original demand or from the date of the last demand? Ans: From the date of the original demand if the subsequent demands are merely in the nature of remainders or reiterations of the original demand. Respondent, nevertheless, insists, for the first time, that the one-year period must be reckoned from the date of the second demand letter to vacate, that is, on May 27, 1997. Considering that petitioners Complaint was filed within days from this date, respondent contends that the RTC had no jurisdiction to hear the case. Adopting in toto the position of the CA, respondent argues that petitioners should have filed an action for unlawful detainer instead with the metropolitan or municipal trial courts. The records of the case, however, do not support this view. Demand or notice to vacate is not a jurisdictional requirement when
the action is based on the expiration of the lease. Any notice given would only negate any inference that the lessor has agreed to extend the period of the lease. The law requires notice to be served only when the action is due to the lessees failure to pay or the failure to comply with the conditions of the lease. The one-year period is thus counted from the date of first dispossession. To reiterate, the allegation that the lease was on a month-to-month basis is tantamount to saying that the lease expired every month. Since the lease already expired mid-year in 1995, as communicated in petitioners letter dated July 1, 1995, it was at that time that respondents occupancy became unlawful. Even assuming, for the sake of argument, that a demand or notice to vacate was necessary, a reading of the second letter shows that petitioners were merely reiterating their original demand for respondent to vacate on the basis of the expiration of the verbal lease contract mentioned in the first letter. The Court has, in the past, ruled that subsequent demands which are merely in the nature of reminders or reiterations of the original demand do not operate to renew the one-year period within which to commence the ejectment suit considering that the period will still be reckoned from the date of the original demand. (Racaza vs. Gozum, 490 SCRA 313 [June 8, 2006]), Azcuna, Ponente) 44. (a) Certiorari under Rule 65 is an extra-ordinary remedy that cannot and should not be a substitute for lost appeal. (b) On appeal from that MTC to RTC, failure to file on Memorandum within 15 days from notice from the Clerk of Court the RTC that the records have been received by the RTC is a ground for dismissed of the appeal. (Ang vs. Grageda, 490 SCRA 424 [June 8, 2006]) 45. Jurisdiction lies with the RTC in an action of a lot buyer for damages against a developer after the rescission of the contract to sell for fraudulent encashment of the check after such rescission. This is not a claim for refund or specific performance. (Ridgewood Estate Inc vs. Belaos, 490 SCRA 451[June 8, 2006]) 46. When may a motion be reconsideration be dispensed with before filing a petition for certiorari under Rule 65? Ans: In the following instances: (1) when the issue raised is one purely of law; (2) where public interest is involved; (3) in cases of urgency; and (4) where special circumstances warrant immediate or direct action. On the other hand, among the accepted exceptions to the rule on exhaustion of administrative remedies are: (1) where the question in dispute is purely a legal one; and, (2) where the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction. (PLDT vs. Imperial, 490 SCRA 688 [June 15, 2006]) Azcuna Ponente) 47. What is the meaning of grave abuse of discretion?
Ans: By grave abuse of discretion is meant such capricious and whimsical exercise of judgment which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. (First womens Credit Corp. vs. Perez, 490 SCRA 777 [June 15, 2006]) 48. (a) Distinguish between right of action from cause of action. Ans: Right of action is the remedial right to commence and maintain an action while a cause of action is a formal statement of the operational facts that give rise to such remedial right. The former is a matter of right and defends on the substantive law while the latter is a matter of statute and is governed by the law of procedure. The right of action springs from the cause of action but does not accrue until all the facts which constitute the cause of action have occurred. (b) What are the elements of a cause of action? Ans: A cause of action must always consist of two elements: (1) the plaintiffs primary right and the defendants corresponding primary duty, whatever may be the subject to which they relate person, character, property or contract; and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated.
(c) Compare the concept of a cause of action in a Petition for Declaratory Relief with that in an ordinary civil action. What are the requisites for Declaratory Relief? Ans: (a) The concept and meaning of the term cause of action in proceedings for declaratory relief, vis--vis an ordinary civil action, is broadened. It is not, as in ordinary civil action, the wrong or delict by which the plaintiffs rights are violated, but it is extended to a mere denial, refusal or challenge raising at least an uncertainty or insecurity which is injurious to plaintiffs rights. For a petition for declaratory relief to prosper, the following conditions sine qua non must concur; (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination. (d) Explain the concept of prescription as a statute of repose. What is its object? Ans: (b) Prescription is rightly regarded as a statute of repose whose object is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the parties or their representatives when the facts have become obscure from the lapse of time or the defective memory or death or removal of witnesses. The essence of the statute of limitations is to prevent
fraudulent claims arising from unwarranted length of time and not to defeat actions asserted on the honest belief that they were sufficiently submitted for judicial determination. Our laws do not favor property rights hanging in the air, uncertain, over a long span of time. (e) When does the statute of limitation against an equitable action for reformation of an instrument based on mistake begin to run? Ans: From the time the mistake is discovered or ought to have been discovered, i.e. from the time the cause of action accrues. The prescriptive period is 10 years for an action based on a written contract. (Multi-Realty Dev. Corp. vs. Makati Tuscan Condo. Corp., 491 SCRA 9 [June 16, 2006]) 49. When may judicial admission be contradicted? Ans: When made thru palpable mistake. (Binarao vs. Plus Builders, Inc., 490 SCRA 49, [June 16, 2006]) 50. (a) Distinguish between civil and criminal contempt of Court. Ans: Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court to disrepute or disrespect. On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is punish, then it is criminal in nature; but if to compensate, then it is civil. It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of contempt. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in whose favor that judgment was rendered is the real party-in-interest in the proceedings. (b) What is the dual function of contempt? Ans: Thus, contempt proceedings has a dual function: (1) vindication of public interest by punishment of contemptuous conduct; (2) coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also to secure the rights of the parties to a suit awarded by the Court. (Ceniza vs. Wistehuff, Sr., 491 SCRA 148 [June 16, 2006]) 51. When may courts suspend procedural rules of mandatory character?
Ans: In Sanchez v. Court of Appeals, the Court restated the reasons which may provide justification for a court to suspend a strict adherence to procedural rules, such as: (a) matters of life, liberty, honor or property; (b) the existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the other party will be unjustly prejudiced thereby. (Barranco vs. Commission on the Settlement of Land Problems, 491 SCRA 232 [June 16, 2006]) 52. Re-Arraignment is not barred by double jeopardy if the arraignment under the original complaint is conditional arraignment and the original complaint fails to state facts constituting an offense. (Cobo vs. Sandiganbayan, 491 SCRA 264 [June 16, 2006]) 53. Failure to allege the element of force and intimidation is not a fatal omission that deprives the Accused of the right to be informed of the nature and cause of the accusation against him if the sworn written Complaint specified the charge of rape thru force and intimidation. Moreover, the Accused did not object to the insufficiency during the trial and the deficiency was cured by competent evidence presented therein (People vs. Candaza, 491 SCRA 280 [ June 16, 2006]) 54. (a) May the decision of the RTC in an election protest case be subject to execution pending appeals? Ans: Yes, provided there are good reasons therefore.
(b) Is the length of time the protest has been pending, leaving a very short term to the winning party to serve the remaining term a good reason to justify execution pending appeals? Ans: No, it does not constitute good reason for execution pending appeals. Shortness of term alone and by itself cannot justify premature execution. It must be manifest in the decision sought to be executed that the defeat of the protestee and the victory of the protestant has been clearly established.: [Emphasis supplied] (Istarul vs. Comelec, 491 SCRA 309 [June 16, 2006]) 55. Is an expert witness testimony in forgery cases mandatory? Ans: No, The judge must conduct an independent examination. It is true that the opinion of handwriting experts are not necessarily binding upon the court, the experts function being to place before the court data upon which the court can form its own opinion. Handwriting experts are usually helpful in the examination of forged documents because of the technical procedure involved in analyzing them. But resort to these experts is not mandatory or indispensable to the examination or the comparison of handwriting. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must
conduct an independent examination of the questioned signature in order to arrive at reasonable conclusion as to its authenticity. (de Jesus vs. Court of Appeals, 491 SCRA 325 [June 20, 2006]). 56. (a) What are the elements of forum shopping? Ans: The elements of forum shopping are: (a) identity of parties, or at least such parties as represent the same interests in both actions; (b) identity of rights asserted and the relief prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. Otherwise stated, there is forum shopping where a litigant sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief is/are still pending. The defense of litis pendentia in one case is a bar to the other/others; and, a final judgment is one that would constitute res judicata and thus would cause the dismissal of the rest. Absolute identity of the parties is not required. It is enough that there is substantial identity of the parties. It is enough that the party against whom the estoppel is set up is actually a party to the former case. There is identity of causes of action if the same evidence will sustain the second action. The principle applies even if the relief sought in the two cases may be different. Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. (b) In what ways may forum shopping be committed? Ans: As the present jurisprudence now stands, forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (litis pendentia); (2) filing multiple cases based on the cause of action and the same prayer, the previous case having been finally resolved (res judicata); (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata). If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice. (Ao-As vs. CA, 491 SCRA 353 [June 20, 2006]) 57. (a) Will the appeal taken by one or more of the several accused affect the accused who did not appeal? Ans: No. except when the judgment of the appellate Court is favorable and applicable to the latter. (Lim vs. CA, 491 SCRA 385 [June 20, 2006]0.
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(b) Is an appeal in a criminal case limited only to assigned errors? Ans: No. The appeal in a criminal case is a review de novo and the court is not limited to the assigned errors an appeal opens the whole case for review, and the appellate tribunal may consider and correct errors though unassigned. (People vs. Ulit, 423 SCRA 374 [2004]) 58. Distinguish between Injunctions as a main action from Preliminary Injunction as a provisional remedy to the main action. Ans: The court has distinguished the main action for injunction from provisional or ancillary remedy of preliminary injunction, thus: The main action for injunction is distinct from the provisional or ancillary remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. Under the law, the main action for injunction seeks a judgment embodying a final injunction which is distinct from, and should not be confused with, the provisional remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits can be heard. A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or final order. It persists until it is dissolved or until the termination of the action without the court issuing a final injunction. (Garayblas vs. Atienza, Jr., 492 SCRA 203 [June 22, 2006]) 59. (a) What are the modes of appeal from the final judgment or order of the RTC in the exercise of its original jurisdiction? Ans: The order of the trial court dismissing the complaint of respondent (plaintiff below) on the ground that it is premature and states no cause of action is final because it terminated the proceedings so that nothing more can be done in the trial court. The order ended the litigation. There are two modes of appeal from a final order of the trial court in the exercise of its original jurisdiction (1) by writ of error under Section 2(a), Rule 41 of the Rules of Court if questions of fact or questions of fact and law are raised or involved; or (2) appeal by certiorari under Section 2(c), Rule 41, in relation to Rule 45, where only questions of law are raised or involved: Sec. 2. Modes of appeal. (a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. x x x (c) Appeal by certiorari. In all cases where only
questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. (b) What is the effect of ordinary appeal to the Court of Appeals if only questions of law are involved? Ans: An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. The nature of the issues to be raised on appeal can be gleaned from the appellants notice of appeal filed in the trial court and in his or her brief as appellant in the appellate court. (First Bancorp Inc vs. CA, 492 SCRA 221 [June 22, 2006])
(c) While a petition for review on certiorari under Rule 45 may be filed with the Supreme Court to assail the decision of the RTC on questions of law, the rule is that the Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of the Courts primary jurisdiction. The remedy of a party from a decision of the Regional Trial Court in the exercise of its original jurisdiction is an appeal by writ of error under Rule 41 to the Court of Appeals. (Gayo vs. Verceles, 452 SCRA 504 [2005]). (Air Philippines Corp. vs. Bureau of Labor Relations, p.243 Vol. 492 SCRA [June 22, 2006]) 60. An answer should be admitted, though filed late, before the defendant was declared in default and no prejudice is caused to the plaintiff. (Indiana Aerospace University vs. Commission on Higher Education, 356 SCRA 367 [2001]; Crisologo Jose vs. Land Bank, 492 SCRA 326 [June 22, 2006]) A defendant who had filed an Answer, though late, may no longer be declared in default (Rosario vs. Alonzo, 8 SCRA 397[1963]) 61. Does the Ombudsman have the power to remove erring public officials? Ans: Yes, except members of Congress and the Judiciary. The Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specially Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress, and the Judiciary. To conclude, we hold that Section 15, 21, 22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render his constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official
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other than a member of Congress and the Judiciary. (Estarija vs. Ranada, 492 SCRA 653 [June 26, 2006]) 62. May an action to recover land prosper without its identification? Ans: No. In an action to recover under Article 434 of the Civil Code, the claimant, must (1) establish the identity of the property sought to be recovered and (2) rely on the strength of his title and not on he weakness of defendants claim. It is also settled rule that what defines a piece of land is not the area, calculated with more or less certainty, mentioned in the description, but the boundaries therein laid down, as enclosing the land and indicating its limits. As held in Heirs of Anastacio Fabela v. Court of Appeals 362 SCRA 531 (2001), when the records do not show that the land subject of the action for recovery has been exactly determined, such action cannot prosper, inasmuch as respondents ownership rights in the land claimed do not appear satisfactorily and conclusively proven at the trial. (Provost vs. CA, 492 SCRA 675 [June 26, 2006]) 63. What is judicial courtesy? Ans: There are of course instances where even if there is no writ of preliminary injunction or temporary restraining order issued by a higher court, it would be proper for a lower court or court of origin to suspend its proceedings on the precept of judicial courtesy. As the Supreme Court explained in Eternal Gardens Memorial Park v. Court of Appeals, 164 SCRA 421, 427-428 (1988): Although this Court did not issue any restraining order against the Intermediate Appellate Court to prevent nit from taking any action with regard to its resolutions respectively granting respondents motion to expunge from the records he petitioners motion to dismiss and denying the latters motion to reconsider such order, upon learning of the petition, the appellate court should have refrained from ruling thereon because its jurisdiction was necessarily limited upon the filing of a petition for certiorari with this Court questioning the propriety of the issuance of the above-mentioned resolutions. Due respect for the Supreme Court and practical and ethical considerations should have prompted the appellate court to wait for the final determination of the petition before taking cognizance of the case and trying to render moot exactly what was before this court x x x. This Court explained, however, that the rule on judicial courtesy applies where there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court [or court of origin. (Republic vs. Sandigan, 492 SCRA 748 [June 26, 2006]) 64. (a) What are the three modes of appeal from the Decision of the Regional Trial Court? Explain the nature of each mode of appeal. Ans: In Murillo v. Consul, which was later adopted by the 1997 Revised Rules of Civil Procedure, this Court had the occasion to clarify the
three (3) modes of appeal from decisions of the RTC, namely: (1) ordinary appeal or appeal by writ of error, where judgment was rendered in a civil or criminal action by the RTC in the exercise of original jurisdiction; (2) petition for review, where judgment was rendered by the RTC in the exercise of appellate jurisdiction; and (3) petition for review to the Supreme Court. The first mode of appeal, governed by Rule 41, is taken to the Court of Appeals on questions of fact or mixed questions of fact and law. The second mode of appeal, covered by Rule 42, is brought to the Court of Appeals on questions of fact, of law, or mixed questions of fact and law. The third mode of appeal, provided for Rule 45, is elevated to the Supreme Court only on questions of law. It is axiomatic that a question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. (Suarez vs. Villarama, Infra) (b) What is the effect of taking the wrong mode of appeal? Ans: Section 4 of Circular No. 2-90, in effect at the time of the antecedents, provides that an appeal taken to either the Supreme Court or the Court of Appeals by the wrong mode or inappropriate mode shall be dismissed. This rule is now incorporated in Section 5, Rule 56 of the 1997 Rules of Civil Procedure. (Ibid) (c)What is the doctrine of hierarchy of courts? Ans: Pursuant to this doctrine, direct resort from the lower courts to the Supreme Court will not be entertained unless the appropriate remedy cannot be obtained in the lower tribunals. The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the Constitution and immemorial tradition. Thus, a petition for review on certiorari assailing the decision involving both questions of fact and law must first be brought before the Court of Appeals. 65. May the period to perfect the appeal be extended? Ans: No. As ruled in Habaluyas, settled is the rule that the 15-day reglementary period for appealing or filling a motion for reconsideration or new trial cannot be extended, except in cases pending with the Supreme Court as a court of last resort which may in its sound discretion either grant or deny the extension requested. However under Rules 42, 43 and 45, motion for extension may be filed with the appellate courts. (Sumaway vs. Urban Bank, 496 SCRA 106 [June 27, 2006]) 66. When may a mandatory rule of procedure be relaxed or suspended? Ans: It is an accepted tenet that rules of procedure must be faithfully followed except only when, for persuasive and weighting reasons, they may be relaxed to relieve a litigant of an injustice
commensurate with his failure to comply with the prescribed procedure. Concomitant to a liberal interpretation of the rules of procedure, however, should be an effort on the part of the party invoking liberality to adequately explain his failure to abide by the rules. (Suarez vs. Villarama, Infra) 67. What is the true test for the exercise of the power to dismiss a case on the ground of failure to prosecute? Ans: The true test for the exercise of the power to dismiss a case on the ground of failure to prosecute is whether, under the prevailing circumstances, the plaintiff is culpable for want of due diligence in failing to proceed with reasonable promptitude. (Suarez vs. Villarama, Jr., 493 SCRA 74 [June 27, 2006]) 68. What is the doctrine of primary jurisdiction? Ans: It is a doctrine of long-standing that courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with regulation of activities coming under the special and technical training and knowledge of such agency. For the exercise of administrative discretion is a policy decision and a matter that best be discharged by the government agency concerned and not by the courts. In this case, there is no showing that the HDMF arbitrarily, whimsically or capriciously denied petitioners application for renewal of its waiver. It conducted the necessary investigation, comparison, evaluation, and deliberation of petitioners retirement plan vis--vis the Fund. This Court thus holds that the Court of Appeals committed no grave abuse of discretion amounting to lack or excess of jurisdiction when it affirmed the denial of petitioners application for renewal of waiver by the HDMF. (Yazaki Torres Manufacturing, Inc. vs. Court of Appeals, 493 SCRA 68 [June 27, 2006]) 69. (a) What is the period to appeal from the Decision of the Municipal Trial Court to the Court of Appeals where there is a motion for reconsideration filed but denied by the Municipal Trial Court? Ans: 15 days from notice of the Order denying the motion for reconsideration following the precedent laid down in Neypes vs. Court of Appeals (469 SCRA 633 [GR No. 141524 Sept. 14, 2005]) which sets a fresh period of 15 days from denial of a motion for reconsideration within which to appeal. (b) May procedural rule be given retroactive effect? Ans: Yes, in as much as there is no vested rights in rules of procedure. (Sumaway vs. Urban Bank, Inc., 493 SCRA 99 [June 27, 2006]) 70. What are the exceptions to the doctrine that higher Courts may not entertain issues raised for the first time in a motion for reconsideration or on appeal? Ans: The doctrine that higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised during the proceedings below but ventilated for the first time only in a motion for reconsideration or on appeal, is subject to exceptions, such as
when: (a) grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. (Trinidad vs. Acapulco, 493 SCRA 179 [June 27, 2006]) 71. When are entries in corporate books admissible in evidence under the exception to the hearsay rule? Ans: Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the satisfaction of the following conditions: 1. the person who made the entry must be dead, or unable to testify; 2. the entries were made at or near the time of the transactions to which they refer; 3. the entrant was in a position to know the facts stated in the entries; 4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. the entries were made in the ordinary or regular course of business or duty. The ledger entries did not meet the first and third requisites. Mercado, petitioners bookkeeper who prepared the entries, was presented to testify on the transactions pertaining to the account of respondent. It was in the course of his testimony that the ledger entries were presented. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court. Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these entries. (Security Bank and Trust Company vs. Gan, 493 SCRA 244 [June 27, 2006]) 72. When is there a question of law and when is there a question of fact?
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Ans:
A question of law exists when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as the truth or falsity of alleged facts. (Philip Morris, Inc. vs. Fortune Tobacco Corporation, 493 SCRA 333 [June 27, 2006])
73. (a) What is newly discovered evidence? Forgotten evidence? Ans: Newly discovered evidence refers to that which already exists prior to or during a trial, but whose existence is not known to the offering litigant; or, though known, could not have been secured and presented during the trial despite reasonable diligence. What is essential for a particular piece of evidence to be properly regarded as newly discovered is that the offering party exercised reasonable diligence in seeking to locate the evidence before or during the trial, but nonetheless failed to secure it. Thus, a party who knows of the existence of specific pieces of evidence cannot offer them as newly discovered without any explanation for not presenting them earlier. Forgotten evidence, on the other hand, refers to evidence already in existence or available before or during a trial; known to and obtainable by the party offering it; and could have been presented and offered in a seasonable manner, were it not for the sheer oversight or forgetfulness of the party or the counsel. Presentation of forgotten evidence is disallowed, because it results in a piece-meal presentation of evidence, a procedure that is not in accord with orderly justice and serves only to delay the proceedings. A contrary ruling may open the floodgates to an endless review of decisions, whether through a motion for reconsideration or for a new trial, in the guise of newly discovered evidence. (Office of the Ombudsman vs. Coronel, 493 SCRA 392 [June 27, 2006]) (b) What is substantial evidence? Ans: Substantial evidence is defined as relevant evidence that a reasonable mind might accept as adequate to support a conclusion. (Matugas vs. Commission on Elections, 420 SCRA 365 [2004]) 74. When may relief not specifically prayed for be granted by the Court? Ans: Even without the prayer for a specific remedy, proper relief may be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant. The court shall grant relief warranted by the allegations and the proof even if no such relief is prayed for. The prayer in the complaint for other reliefs equitable and just in the premises justifies the grant of a relief not otherwise specifically prayed for. (Primelink Properties and Development Corporation vs. Lazatin-Magat, 493 SCRA 445 [June 27, 2006]) 75. Is there forum shopping if a co-plaintiff who did not join in the appeal of its co-plaintiffs files a separate action? Ans: Even assuming that separate actions have been filed by two different parties involving essentially the same subject matter, no forum shopping is committed where the parties did not resort to
multiple judicial remedies. (Development Bank of the Philippines vs. Court of Appeals, 494 SCRA 51 [June 30, 2006], Azcuna, Ponente) 76. May moot and academic question be recorded? Ans: If it is capable of repetition, yet evading review. The likelihood that the same substantive issue raised in this case will be raised again compels this Court to resolve it. The rule is that courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review. Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public. (Public Interest Center, Inc. vs. Elma, 494 SCRA 53 [June 30, 2006]) Criminal Procedure 77. After the filing of a criminal Information in Court, may the Department of Justice discharge an accused to be utilized as state witness without a hearing requiring the prosecution to present evidence and the written statement of the proposed state witness in support of the discharge? Ans: Yes. Pertinent provision of Republic Act No. 6981 employed by the prosecution in the discharge of the private respondents reads: SEC. 3. Admission into the Program.Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program: Provided, That: a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal code, or its equivalent under special laws; b) his testimony can be substantially corroborated in its material points; c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and d) he is not a law enforcement officer, even if he would be testifying against other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under this Act.
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If the Department, after examination of said applicant and other relevant facts, is convinced that the requirements of this Act and its implementing rules and regulations have been complied with, it shall admit said applicant to the Program, require said witness to execute a sworn statement detailing his knowledge or information on the commission of the crime, and thereafter issue the proper certification. For purposes of this Act, any such person admitted to the Program shall be known as the Witness. xxx xxx xxx
SEC. 10. State Witness.Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws; b) there is absolute necessity for his testimony; c) there is no other direct evidence available for the proper prosecution of the offense committed; d) his testimony can be substantially corroborated on its material points; e) he does not appear to be most guilty; and f) he has not at any time been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Revised Rules of Court. On the other hand, Rule 119, Section 17, of the Revised Rules on Criminal Procedure, upon which petitioner relies reads: Section 17. Discharge of accused to be state witness. When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accuse does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpitude. Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. The discharge of an as availed of by the respondents, is distinct accused under Section Criminal Procedure. accused under Republic Act No. 6981 prosecution in favor of the private and separate from the discharge of an 17, Rule 119 of the Revised rules on
The discharge of an accused to be a state witness under Republic Act No. 6981 is only one of the modes for a participant in the commission of a crime to be a state witness. Rule 119, Section 17, of the Revised Rules on Criminal Procedure, is another mode of discharge. The immunity provided under Republic Act No. 6981 is granted by the DOJ while the other is granted by the court. Rule 119, Section 17, of the Revised Rules on Criminal Procedure, contemplates a situation where the information has been filed and the accused had been arraigned and the case is undergoing trial. The discharge of an accused under this rule may be ordered upon motion of the prosecution before resting its case, that is, at any stage of the proceedings, from the filing of the information to the time the defense starts to offer any evidence. On the other hand, in the discharge of an accused under Republic Act No. 6981, only compliance with the requirement of Section 14, Rule 110 of the Revised Rules of Criminal Procedure is required but not the requirement of Rule 119, Section 17. (Yu vs. Presiding Judge, RTC of Tagaytay City, Br. 18, 494 SCRA 109 [June 30, 2006) 78. (a) What are the exceptional circumstance when an aggrieved party may elevate the matter of an improper execution by appeal? Ans: In the following: 1) the writ of execution varies the judgment; 2) there has been a change in the situation of the parties making execution inequitable or unjust; 3) execution is sought to be enforced against property exempt from execution; 4) it appears that the controversy has never been subject to the judgment of the court; 5) the terms of the judgment are not clear enough and there remains room for interpretation thereof; or 6) it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or other otherwise satisfied, or the writ issued without authority, (Banaga vs. Majaducon; Greater Metropolitan, Manila Solid
Waste Management Committee vs. Jancom Environmental Corporation (494 SCRA 296) (b) What is the mode of appeal permitted under the above circumstance? Ans: The mode of elevation may be either by appeal (writ of error or certiorari), or by a special civil action of certiorari, prohibition or mandamus. (Banaga vs. Majaducon, 494 SCRA 162 [June 30, 2006]) 79. Define Law of the Case. Ans: Law of the Case has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be facts of the case before the court. Indeed, courts must adhere thereto, because public policy, judicial orderliness and economy requires such stability in the final judgments of courts or tribunals of competent jurisdiction. (Private Enterprises Corporation vs. Magada, 494 SCRA 180-181 [June 30, 2006]) The doctrine of law of the case applies only when a case is before a court a second time after a ruling by an appellate court. Law of the Case relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the same case. (Kilosbayan, Incorporated vs. Morato, 246 SCRA 540 [1995]) 80. (a) Must the one signing verification and certification against forum shopping on behalf of the principal party or the other petitioners be authorized to do the same? Ans: Yes. Contrary to petitioners assertion, it is obligatory that the one signing the verification and certification against forum shopping on behalf of the principal party or the other petitioners has the authority to do same. Rules 7, Section 5 of the 1997 Revised Rules on Civil Procedure provides: Sec. 5, Certification against forum shopping- The plaintiff or principal party shall specify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not heretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and, (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. The above provision mandates that the petitioner or the principal party must execute the certification against forum shopping. The reason for this is that the principal party has actual knowledge whether a petition has previously been filed involving the same case or substantially the same issues. If, for any reason, the principal party cannot sign the petition, the one signing oh his behalf must have been duly authorized. The requirement is intended to apply to both natural and juridical persons as Supreme Court Circular No. 28-91 and Section 5, Rule 7 of the Rules of Court do not make a distinction between natural and juridical person. Where the petitioner is a corporation, the certification against forum shopping should be signed by its duly authorized director or representative. This was enunciated in Eslaban, Jr. v. Vda. de Onorio, where the Court held that if the real party-in-interest is a corporate body, an officer of the corporation can sign the certification against forum shopping so long as he has been duly authorized by a resolution of its board of directors. Likewise, where are several petitioners, it is insufficient that only one of them executes the certification, absent a showing that he was so authorized by the others. That certification requires personal knowledge and it cannot be presumed that the signatory knew that his co-petitioners had the same or similar actions filed or pending. (Fuentebella vs. Castro, 494 SCRA 189 [June 30, 2006]) Comment: It is enough that one of the co-petitioners or co-plaintiff signs the verification and the non-forum certification if he represents a common interest, ie., co-ownership with the copetitioners or co-plaintiff.
81. State a special reason for suspending the rules to serve the ends of justice Ans: Apparent merit and social justice In Uy v. Land Bank of the Philippines, we, likewise, considered the apparent merits of the substantive aspect of the case as a special circumstance or compelling reason for the reinstatement of the case, and invoked our power to suspend our rules to serve the ends of justice. (Estribillo vs. Department of Agrarian Reform, 494 SCRA 233 [June 30, 2006]) 82. Substitution of Counsel: Requisites.
Representation continues until the court dispenses with the services of counsel in accordance with Section 26, Rule 138 of the Rules of Court. No substitution of counsel record is allowed unless the following essential requisites concur: (1) there must be a written request for substitution; (2) it must be filed with the written consent of the client; (3) it must be with the written consent of the attorney to be substituted; and (4) in case the consent of the attorney to be substituted cannot be obtained, there must be at least a proof of notice that the motion for substitution was served on him in the manner prescribed by the Rules of Court. In the case at bar, there is no showing that there was a valid substitution of counsel at the time Atty. Molina filed the Omnibus Motion on July 29, 2002 before the RTC, nor that he had priorly filed a Withdrawal of Appearance. He thus continued to enjoy the presumption of authority granted to him by respondents. While clients undoubtedly have the right to terminate their relations with their counsel and effect a substitution or change at any stage of the proceedings, the exercise of such right is subject to compliance with the prescribed requirements. Otherwise, no substitution can be effective and the counsel who last appeared in the case before the substitution became effective shall still be responsible for the conduct of the case. The rule is intended to ensure the orderly disposition of cases. (Greater Metropolitan Manila Solid Waste Management Committee vs. Jancom Environmental Corporation, 494 SCRA 305 [June 30, 2006]) 83. Under Section 3 Rule 17 of the 1997 Rules of Civil Procedure, the dismissal of the complaint due to the fault of the plaintiff is without prejudice to the right of the defendant to prosecute his counterclaim under the same or a separate action. This new rule abandons previous jurisprudence that the dismissal of the complaint is sufficient to justify the dismissal as well of the compulsory counterclaim. (Pinga vs. Heirs of German Santiago, 494 SCRA 393 [June 30, 2006]) 84. Indispensable parties must be joined either as plaintiffs or defendants. Whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop the trial and to order the inclusion of such party. The absence of an indispensable party renders all subsequent actuations 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. (Uy vs. Court of Appeals, 494 SCRA 535 [July 11, 2006])
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