1

TO ANY AND ALL

INTERESTED
2017 University of Baguio
BAR CANDIDATES
[ all series ]

T ests are just little humps on a smooth highway

H igh or low, just obstacles you pass by everyday
E ach step is easy, if you prepared mentally

B ravely overcome them, no matter what they say

A ttain that noble profession . . be a wise attorney
R eward and personal fulfillment, thats the way it
should be.

So, dear friends, relatives, students, Bros and Siss,

become lawyers, were proud of you.

ALL THE BEST OF GOOD LUCK!!!

Monroe C. Tabingan
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REMEDIAL LAW CRYSTAL BALL PREDICTIONS

The history of our Remedial Law in the Philippines.

Our remedial law system or laws of procedure were of Spanish origin. The Americans
later changed this when our American System of Criminal Procedure was introduced by virtue of
the promulgation of General Order No. 58 on April 23, 1900. On August 7, 1901, Act No. 190
(Code of Civil Procedure) was enacted.
The Code of Civil Procedure (Act No. 190) repealed all laws on the matter. The two laws
General Order No. 58 and Act No. 190 constituted our principal remedial laws until the 1935
Philippine Constitution became effective.
The 1935 Constitution repealed General Order No. 58 and Act No. 190 as statutes but
declared the same as the Rules of Court. They were however superseded by the Old Rules of
Court that took effect on July 1, 1940.
The New Rules of Court that took effect on July 1, 1964 thereafter superseded the Old
Rules of Court. (Nuevas on Remedial Law).
The 1964 Rules of Court has undergone several changes since then. On January 1, 1985,
the Rules on Criminal Procedure was introduced. In 1988, the Rules of Criminal Procedure
underwent an amendment. On July 1, 1989, the Revised Rules on Evidence became effective and
on July 1, 1997, the Rules on Civil Procedure was likewise introduced and became effective. On
December 1, 2000, the Rules on Criminal Procedure underwent a major revision

Define or Explain the concept of Remedial law:

Remedial law is also known as procedural or adjective law. It is that branch of law that
prescribes the method of enforcing rights or obtaining redress for their invasion.

What is Substantive law?

It is that law that creates, defines and regulates rights.

What are the kinds of remedial law?

We have two general kinds of remedial law, namely:
public remedial law: which affords a remedy in favor of the State against individuals (criminal
procedure); in favor of the individual against the state (habeas corpus); and
private remedial law: which affords a remedy in favor of an individual against another individual
(civil procedure)

Define Procedure.
It is the method of conducting judicial proceeding and embraces pleadings, practice and
evidence.

Explain the concept of Pleadings, Practice and Evidence.

Pleadings are the written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment (Sec. 1, Rule 6).
Practice refers to those rules, governing the conduct of a case from its inception to final
judgment and execution.
Evidence is the means sanctioned by these rules of ascertaining in a judicial proceeding, the truth
respecting a matter of fact. (Sec. 1, Rule 128)

What is the object of Procedure?

The main object of procedure is to make the powers of the courts fully and completely
available for justice. It aims to facilitate the application of justice to the rival claims of
contending parties and not to hinder or delay the administration of justice.

What are the bases of the promulgation of the Rules of Court?

The power to promulgate rules is vested in the Supreme Court. (Sec. 5(6), Article VIII,
Philippine Constitution)
The said power of the Supreme Court includes the promulgation of rules concerning:
The protection and enforcement of constitutional rights;
Pleadings, practice and procedure in all courts;
The admission to the practice of law;
The Integration of the Bar and legal assistance to the underprivileged.
 3

Limitations on the rule-making power of the Supreme Court

The following are the limitations:
The rules shall provides simplified and inexpensive procedure for the speedy disposition of
cases;
The rules shall be uniform for all courts of the same grade, and
The rules shall not diminish, increase or modify substantive rights.(Sec. 5, Article VIII,
Philippine Constitution)

The Rules of Court are not applicable to the following

The rules shall not apply to the following:
a) Land registration cases;
b) Election cases;
c) Naturalization cases;
d) Insolvency proceedings;
e) Other cases not provided in the rules except in a suppletory character and whenever
practicable and convenient. (Sec. 4, Rule 1 and Rule 143)

Construction of the rules of procedure construed; Exception

The rules shall be construed liberally in order to promote their objective of securing a
just, speedy and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1)
Exception:
Rules prescribing time within which certain acts must be done, or certain proceedings taken,
periods of pleadings, are taken and considered indispensable for the prevention of needless
delays and for the orderly and speedy disposition of judicial business- strict interpretation.

Characterize our rules of procedure.

The rules are procedural in nature, hence, it must not be construed to supplant or defeat
substantive rights of the parties in litigation. Its purpose is to put in order the litigation of rights
and not to established new rights where none exists. (Constitutional limitations on the rule-
making power of the Supreme Court)

May party waive the application of the rules of court?

Rules are laid down for the convenience of the parties, such as rules on venue may be
waived, but rules adopted in the interest of speedy administration of justice may not be waived.

May the Rules of procedure be the subject of agreements:

Agreements relating to the rules of procedure, which involves anything, inconsistent with
the course of justice or which obstruct or interfere with the administration of justice and
contracts, which tend to divest or oust courts of their jurisdiction are void being contrary to
public policy.

May the Supreme Court suspend the application of its own Rules?
Only the Supreme Court has the power to suspend the application of the rules of
procedure. It was held that under special circumstances the court may suspend the application of
the rules in order to enhance fair trials and expediting justice.
If the application of the rules would tend to subvert and/or defeat instead of promote and enhance
it, their suspension is justified.

1. State the general classification of courts under the Philippine Judicial System and
briefly define each.

a. Courts of General Jurisdiction competent to decide their own jurisdiction and to take
cognizance of all kinds of cases, unless otherwise provided by the law or the rules;
b. Courts of Original Jurisdiction the courts in which actions or proceedings may be originally
commenced;
c. Courts of appellate jurisdiction courts which have the power to review on appeal decisions or
orders of a lower court;
d. Superior Courts Courts which have the power to review or supervision over another lower
court;
e. Lower Courts those which, in relation to another court, are lower in rank and subject to review
and supervision by the latter;
 4

f. Courts of Record those whose proceedings are enrolled and which are bound to keep a written
record of all trials and proceedings handled by them;
g. Courts Not of record courts which are not required to keep a written record or transcript of
proceedings held therein;
h. Constitutional Courts those which owe their creation and existence to the Constitution;
i. Statutory Courts those created, organized and with jurisdiction exclusively determined by law;
and,
j. Court of Tax Appeals held to be a part of the judicial system with special jurisdiction to act on
protests of private persons adversely affected by the tax, customs or assessment laws.

Explain the Principle of Hierarchy of Courts.

It is the principle that authorizes litigants to seek proper relief from the lower courts
before elevating the same to the higher courts. In those cases where the Supreme Court has
concurrent jurisdiction with the CA and the RTC to issue the extraordinary writs, a party is
obliged to first seek relief from the RTC.
The SC should not be burdened with the task of dealing with causes in the first instances.
The SC original jurisdiction to issue extraordinary writs should be exercised only where
absolutely necessary or where serious or important reasons therefore exist.

Following the principle of hierarchy of courts, to what court must an aggrieved party in
administrative cases decided by the Ombudsman appeal?

Cases decided by the Ombudsman in administrative disciplinary cases must be appealed to the
CA under Rule 43, not appeal by certiorari under Rule 45. The provisions of Sec. 27 of R.A.
6770 which authorizes appeal by certiorari under Rule 45, in administrative disciplinary cases
has been declared unconstitutional by the SC. (Villavert vs. Desierto, L-133715, Feb. 23, 2000).

Does the same remedy apply to aggrieved parties in criminal cases?

In criminal cases, the aggrieved party may question the decision of the Ombudsman by a Petition
for Certiorari under Rule 65. The said petition must be filed in the Supreme Court and not in the
Court of Appeals. Petitions for certiorari questioning the Ombudsmans orders, or decisions in
criminal cases should be filed in the Supreme Court and not the Court of Appeals. (Perez vs.
Ombudsman, et al., G.R. No. 131445, May 27, 2004; Kuizon vs. Ombudsman; Mendoza Arce
vs. Ombudsman)

Suppose the appeal is purely on a question of law, where must the aggrieved party appeal?
Appeal on pure question of law from the Ombudsman may be made to the SC, the findings of
facts being conclusive when supported by substantial evidence. (Morong Water District vs.
Ombudsman L-116754, Mar. 17, 2000)

Is the rule on hierarchy of courts absolute?

The principle of hierarchy of courts may be relaxed when the redress desired cannot be
obtained in the appropriate courts or where exceptional and compelling circumstances justify
the availment of a remedy within and calling for the exercise of the SCs primary jurisdiction.
(Prov. Of Batangas vs. Romulo, G.R. No. 152774, May 27, 2004)

Define or explain Jurisdiction.

The term is taken from the Latin term jus dicere or right to speak. It is the power and
authority of a court to hear, try and decide a case. It is the right to act in a case.

The question of jurisdiction is the first thing to be determined by the judge in every action
brought before him. Where the court believes that it has no jurisdiction over the action, the only
valid determination it can do is to have the case or action dismissed.

Distinguish Jurisdiction from Procedure.

Jurisdiction refers to the authority of a court to hear and decide a class of cases and is
conferred by substantive law; while procedure is the means which puts the power or authority to
hear and decide into action.
 5

Distinguish Jurisdiction from Exercise of Jurisdiction:

Jurisdiction refers to the authority to decide a case and not the decision rendered. It does
not depend upon the regularity of the exercise of that power or the rightfulness of the decision
rendered.
Exercise of jurisdiction refers to the resolution of all other questions arising in the case.

2. State the classification of Jurisdiction and briefly define each.

a. General Jurisdiction power to adjudicate all controversies except those expressly withheld;
b. Special or limited jurisdiction courts have jurisdiction only to particular cases;
c. Original Jurisdiction power to take judicial cognizance of a case instituted for judicial action
for the first time under conditions provided by law;
d. Appellate Jurisdiction authority of a court of higher rank to re-examine the final order or
judgment of a lower court which tried the case;
e. Exclusive Jurisdiction power to adjudicate a case or proceeding to the exclusion of all other
courts;
f. Concurrent Jurisdiction power upon different courts, whether of the same or different ranks, to
take cognizance of the same subject matter, of the same stage, of the case in the same or different
judicial territories;
g. Delegated Jurisdiction the grant of authority to inferior courts to hear and determine cadastral
and land registration cases under certain conditions;
h. Special Jurisdiction power of inferior courts to hear and decide petitions for a writ of habeas
corpus or applications for bail in the absence of the RTC judges in the province or city;
i. Territorial jurisdiction refers to the geographic areas within which its powers can be exercised;
j. Primary Jurisdiction refers to that instance where the case is such that its determination
requires expertise, specialized skills and knowledge of the proper administrative bodies because
technical matters or intricate questions of facts are involved;
k. Residual jurisdiction an extension of the original jurisdiction of the trial court for certain
specific purposes after the perfection of the appeal but before transmittal of the original record to
the appellate court.

3. Distinguish Jurisdiction from Venue

Jurisdiction
the authority to hear and determine a case
a matter of substantive law
establishes a relation between the court and the
subject matter
fixed by law and cannot be conferred by the parties
Venue
is the place where the case is to be filed
a matter of procedural law
establishes a relation between plaintiff and
defendant, or petitioner and respondent
may be conferred by the act or agreement of the
parties

4. How is jurisdiction acquired by the Courts?

Jurisdiction is acquired by the Courts when it acquires jurisdiction over:

a. the plaintiff or petitioner;
b. the accused, defendant or respondent;
c. the subject matter;
d. the issues of the case;
e. the res or the property/thing which is the subject of the litigation; and,
f. if there is payment of the docket fee.

Explain briefly the concept of the jurisdiction over the subject matter.
Jurisdiction over the Subject Matter refers to the power of a court or tribunal to hear and
determine cases of the general class to which the proceeding in question belongs. This kind of
jurisdiction being conferred by law cannot be the subject of any agreement. None of the parties
to litigations can enlarge or diminish it or dictate when it shall attach or when it shall be
removed. That power is vested in the legislature.

What is the effect of lack of jurisdiction over the subject matter?

Where the court has no jurisdiction over the subject matter, it has no power to hear the case,
much less, decide it. The only valid act it has is to dismiss the case. The dismissal of the case
does not violate ones right of free access to the courts.
 6

What is the nature of a judgment that is rendered by a court when it has no jurisdiction over
the subject?
Where a court having no jurisdiction over the subject matter renders a decision, the same is a
total nullity. No right or obligation may arise from such decision. A void judgment cannot be the
proper basis for the issuance of a writ of execution. (Atuel vs. Valdez, G.R. No. 139561, June
10, 2003) Titles issued pursuant to a void judgment are necessarily void.

What determines jurisdiction over the subject matter?

Jurisdiction over the subject matter is determined on the basis of the complaint. It is the
complaint that commences the action. Whatever is filed by the defendant thereafter has nothing
to do with the commencement of the action. The defenses in the answer or motion to dismiss are
not to be considered for purposes of establishing jurisdiction over the subject matter. It is
determined by the allegations of the complaint and cannot be made to depend on the defenses of
the defendant. (Republic vs. Sandiganbayan, G.R. No. 143255, March 30, 2004)

When must jurisdiction over the subject matter exist?

Jurisdiction over the subject matter must exist at the beginning of the action and as such
continues to exist up to the rendition of the judgment. Jurisdiction of courts over the subject
matter is conferred exclusively by the Constitution and by law.

May a court motu proprio consider the issue of lack of jurisdiction even if not challenged by
any party?
The answer is YES. The Court (Supreme Court) may motu proprio consider the issue of
jurisdiction even if not challenged by any party to the case. It has discretion to determine
whether a particular court validly acquired jurisdiction over a particular case. Jurisdiction over
the case is conferred by law. It may not be conferred on the court by consent or waiver of the
parties where the court otherwise would have no jurisdiction over the subject matter of the
action. (Atuel vs. Valdez, G.R. No. 139561, June 10, 2003)

May jurisdiction be acquired through or waived by, any act or omission of a party?
The answer is No. Jurisdiction over the subject matter cannot be acquired through, or
waived by, any act or omission of the parties. The active participation of the parties in the
proceedings before the court or agency does not vest jurisdiction on the court or agency, as
jurisdiction is conferred only by law. The courts or the parties cannot disregard the rule of non-
waiver of jurisdiction (Atuel vs. Valdez, G.R. No. 139561, June 10, 2003)

Does estoppel apply to confer jurisdiction to a tribunal, agency board or court?

We distinguish. Estoppel does not apply to confer jurisdiction to a tribunal that has none
over a cause of action. The failure of the parties to challenge the jurisdiction of the court,
tribunal, agency or board does not prevent the Supreme Court from addressing the issue,
especially so when the courts lack of jurisdiction is apparent on the face of the complaint.
Issues of jurisdiction are not subject to the whims of the parties. (Atuel vs. Valdez, G.R. No.
139561, June 10, 2003) However, when the party participate in the proceeding and only raises
the question of lack of jurisdiction after an unfavorable judgment has been issued against him,
he may be barred by the principle of estoppel to question the lack of jurisdiction of the court
that rendered the decision. (BPI vs. ALS, G.R 151821, April 14, 2004; Batangas Power
Corporation vs. Batangas City,G.R No. 152675, April 28, 2004)

What law determines the jurisdiction of the court over the subject matter?
The law in force at the time of the commencement of the action determines the jurisdiction of the
court over the subject matter and not the law at the time the cause of action accrued.. [Aleje vs.
Crystal 240 SCRA 495]

Explain briefly the concept of jurisdiction over the person of the parties.
This refers to the parties to a case, as either plaintiffs or defendants. Jurisdiction over the
plaintiff is acquired by the court from the time the complaint is filed.
The plaintiff may be estopped from questioning the jurisdiction of the court over his
person. A non-resident alien who files a complaint in court submits himself to the jurisdiction of
the said court.
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Jurisdiction over the defendant is acquired by the court by:

a) His voluntary submission to the authority of the court either by his personal appearance or
through his counsel; or
b) Through the exercise of the coercive processes of the court by the proper service of summons
upon the defendant.
Under the new rules a defendant who files a motion to dismiss based on the said ground
may ask for other relief without considering his appearance as voluntary. [Sec. 20, Rule 14]
Jurisdiction over the person of a party may be waived. The question of lack of
jurisdiction over the person of a party must be raised at the earliest opportunity and it must be
raised in a motion to dismiss.

How is jurisdiction over the nature of the action determined?

It is determined not by the title or caption of the pleading but rather by the allegations therein
that controls and may be made the basis of a relief granted by the court. In case of conflict
between the allegations in the body of the complaint and that of the caption of the pleading, the
allegations in the body of the complaint prevail. [Solid Homes vs. CA 271 SCRA 157]

What is lack of jurisdiction over the nature of the action?

It is the situation that arises when a court, which ordinarily would have the authority and
competence to try a case is rendered without such authority and competence either because a
special law has limited the exercise of its normal jurisdiction on a particular matter or because
the type of action has been reposed by law in certain other courts; or quasi-judicial bodies or
agencies. [La Naval vs. CA 236 SCRA 78] An example of the situation was during the time that
PD 902-A was enacted, or the effects of the expanded jurisdiction of the MTC on BP 22 cases.

Explain briefly the concept of jurisdiction over the res.

This kind of jurisdiction comes into play only in situations where jurisdiction over the
person of the defendant cannot be acquired because he is a non-resident, cannot be found in the
Philippines, or cannot be served with summons. These actions refer to quasi in rem actions.
Jurisdiction over the res, or property of the defendant or thing in contest is obtained by the actual
or constructive seizure of the property by placing the same in custodia legis. (Section 17, Rule
14, Rules of Court)

Is presentation of evidence in support of opposition to a motion to dismiss on the ground of

lack of jurisdiction over the subject matter necessary?
Generally, there is no need to present any evidence because jurisdiction over the subject
matter is determined by the allegations of the complaint.

The only exception to this rule is in a suit for ejectment where a party raises the defense
of agricultural tenancy. In such a situation, the court is called upon to conduct a preliminary
hearing to decide the issue of agricultural tenancy. The court may require the reception of
evidence during the preliminary hearing. [Concepcion vs. CFI Bulacan 119 SCRA 222]. It must
be remembered however that the rules on summary procedure do not apply to cases covered by
agricultural tenancy laws. [Bayog vs. Natino 258 SCRA 378]

When may the issue of lack of jurisdiction over the subject matter be raise?
Question of lack of jurisdiction over the subject matter may be raised at any stage of the
proceeding and even for the first time one appeal.[Lagman vs. CA 44 SCRA 228] The party
entitled to the defense of lack of jurisdiction over the subject matter must raise the same before it
is barred by laches or estoppel. [Lam vs. Chua, G.R. No. 131286, March 18, 2004;Lopez vs.
Northwest 223 SCRA 469, Navoa vs. CA 251 SCRA 545 see also Tijam vs. Sibonghanoy 23
SCRA 29 and Sec. 3 and 10, Rule 47]

When may the court, board, agency or tribunal exercise its power to adjudicate?
The rule is well-settled that for a court to exercise its power of adjudication there must be an
actual case or justiciable controversy. (Republic vs. Tan G.R. No. 145255, March 30, 2004)
 8

What is meant by an actual case or justiciable controversy?

An actual case or justiciable controversy is one, which involves a conflict of legal rights and an
assertion of opposite legal claims susceptible of judicial resolution. Where the issue has become
moot and academic, there is no justiciable controversy, and an adjudication thereon would be of
no practical use or value as courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. (Republic vs. Tan G.R. No. 145255,
March 30, 2004)

What is meant by the phrase jurisdiction must be raised in the same proceeding?
When the rule says that such issue be raised in the same proceeding, it simply means that it must
be raised in the proceedings of the same case and during the appeal of the same case. It does not
mean that lack of jurisdiction of a court in a case may be raised during the proceedings of
another case, in another court and even by anybody.

5. State the instances when residual jurisdiction may be exercised by the courts.

It is an extension of the original jurisdiction of the trial court for certain specific purposes after
the perfection of the appeal but before transmittal of the original record to the appellate court.

Examples of this kind of jurisdiction are those found in the last paragraph of Sec. 9, Rule
41, to wit:
a) Issue orders for the protection and preservation of the rights of the parties which do not
involve any matter litigated by the appeal;
b) Approve compromises;
c) Permit appeals of indigent litigants;
d) Order execution pending appeal under Sec. 2, Rule 39;
e) Allow withdrawal of appeals.

What is the Doctrine of Primary Jurisdiction?

It simply means that the regular courts cannot and will not determine a controversy involving a
question, which is within the jurisdiction of an administrative tribunal. Where the question
demands the exercise of sound administrative discretion requiring the special knowledge,
experience or services of an administrative tribunal to determine technical and intricate matters
of fact and where a uniformity of ruling is essential To comply with the purposes of the
regulatory statute administered.

What is the rule on payment of filing fees regarding the jurisdiction of the court over the
subject matter?
The filing of the complaint or appropriate initiatory pleading and the payment of the
prescribed docket fee vest a trial court with jurisdiction over the subject matter or nature of the
action. (Rivera vs. Del Rosario, G.R. No. 144934, Jan. 15, 2004)

What is the effect in case of deficiency in the payment of filing fees?

If the amount paid by way of filing fees is found insufficient after the payment of the
case, considering the amount of claim, the clerk of court of the lower court involved, or his duly
authorized deputy, has the responsibility of making a deficiency assessment. The party filing the
case will be required to pay the deficiency, but jurisdiction is not automatically lost. (Rivera vs.
Del Rosario, G.R. No. 144934, Jan. 15, 2004)

What factors are to be considered in determining which court has jurisdiction over a
particular case?
In determining which court has jurisdiction over a case, the averments of the
complaint/counterclaim, taken as a whole, are to be considered like: (a) intra-corporate disputes
(Velarde vs. CA G.R. No. 153886, Jan. 14, 2004); (b) agrarian dispute (Rivera vs. CA, G.R. No.
144934, Jan. 15, 2004)
 9

What is meant by the principle coram non-judice regarding jurisdiction over the subject
matter or nature of the action?
The principle simply means that the court has no power to decide questions, except as
presented by the parties in their pleadings. Any judgment rendered by the court beyond them is
considered coram non-judice and therefore void. So when a court renders a judgment or
awards relief beyond the prayer of the complaint or scope of its allegations, the excessive relief
is not merely irregular but is void for want of jurisdiction. (Lam vs. Chua, G.R. No. 131286,
March 18, 2004)

6. Distinguish Substantive from Procedural Law.

Substantive Law Procedural law

creates or extinguishes rights concerning life,
liberty or property, or the powers of
instrumentalities for the administration of public
affairs
creates, defines and regulates rights
are to be administered by the Courts
prescribes rules and forms of procedure in
order that courts may be able to administer
justice
prescribes the methods of enforcing the rights or
obtaining redress for their invasion
is a body of rules by which rights are effectuated
through the successful application thereof

7. Distinguish Cause of Action from a Right of Action.

Cause of Action Right of Action

is the reason why an action can be brought
the formal statement of alleged facts
depends on substantive law for its existence
and on procedural law for its effectivity and
resulting processes
is the operative fact which gives rise to a right
of action
There may be one cause of action, but several
rights of action
is the remedy provided or the consequent effect
the right given because of the occurrence of the
alleged facts
depends only on substantive law for everything
may be taken away by the running of the
statute of limitations
may accrue at different times from the same
cause of action

8. Define Auxillary Remedies

These are writs and processes available during the pendency of an action which may be
resorted to by a litigant to preserve and protect certain rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final judgment in a case. These are
provisional because they constitute temporary measures availed of during the pendency of the
action, and are ancillary because they are mere incidents in and are dependent upon the result of
the main action.

9. What are these remedies, and state the function of each.

a. Preliminary attachment a writ issued upon order of the court where an order is
pending to be levied upon the property or properties of the defendant therein, the same to be held
thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in
said action by the attaching creditor against the defendant.
b. Preliminary Injunction an order granted at any stage of an action prior to the final
judgment or final order, requiring a person, or a court, or agency to refrain from a particular act
[Preliminary Prohibitory Injunction] or to require the performance of a particular act
[Preliminary Mandatory Injunction].
c. Receivership when the court appoints a person after the initiation of the action, during
the pendency of the action, during appeal and even after the finality of the judgment, to take into
custody the property subject of the litigation to prevent its possible destruction or dissipation.
d. Replevin a proceeding by which the owner, or one who has a general or special interest
in the thing taken or detained, seeks to recover possession thereof, the recovery of damages being
only incidental.
e. Support Pendente Lite is the allowance made to the wife or family for her or their
maintenance during the pendency of an action.
 10

10) What is the common name given to the actions covered by Rules 62 to 71?
These are called special civil actions.

11) Distinguish Summary Judgment from Judgment on the Pleadings.

Summary Judgment Judgment on the Pleadings

1. There is an issue tendered in the answer, but it is not
genuine or real issue as may be shown by affidavits and
depositions that there is no real issue and that the party is
entitled to judgment as a matter of right.
2. The opposing party is given 10 days notice of hearing
3. should a judgment be rendered, it may terminate only a
portion of the case.
4. The plaintiff or the defendant may file it.
Defendants answer does not tender an issue
The movant must give a 3-day notice of hearing
The entire case may be terminated based thereon.
Only the plaintiff or the defendant as far as the
counterclaim, cross-claim, or 3rd party claim is concerned,
may file this.

12. Distinguish DEMURRER TO EVIDENCE as contemplated under Criminal

Procedure from that in Civil Procedure as to appeal only.

The grant of a demurrer to evidence in Criminal Procedure is not appealable; that in a civil
case, should the grant be reversed on appeal, the defendant shall no longer be allowed to
present its evidence.

12.a. Distinguish demurrer to evidence filed WITH LEAVE OF COURT and Demurrer
To Evidence filed WITHOUT LEAVE OF COURT in CIVIL CASES.

When a Demurrer filed with leave of court is denied, the movant is given a period of time to file his
responsive pleading. When a demurrer filed without leave of court is denied, the movant is deemed to
have waived presentation of his evidence.

13 . DEFINE Criminal Action

It is an action by which the state prosecutes a person for an act or omission punishable by law.
(Sec. 3(b), Rule 1)

14. Criminal Action, how instituted:

Criminal actions are instituted as follows:
For offenses requiring a preliminary investigation, by filing the complaint with the proper officer
for the purpose of conducting a preliminary investigation. (Sec. 1(a), Rule 110) (Note: This should be
read with Section 1, Rule 112) The term offenses requiring a preliminary investigation refer to those
offenses cognizable by the Regional Trial Courts and those offenses that are punished by at least 4 years
2 months and 1 day.

For all other offenses or those offenses that do not require preliminary investigation, by filing the
complaint or information directly with the Municipal Trial Court or with the proper prosecution office.
Note however, that for offenses committed in Manila and other chartered cities, the criminal action shall
be instituted only by filing the complaint with the proper city prosecution office unless provided
otherwise by their respective charters (Sec. 1(b), Rule 110)

15. What is the Effect of institution of the criminal action

The institution of the criminal action in accordance with the above shall interrupt the running of
the period of prescription of the offense unless otherwise provided in special laws. (Note: Thus with this
provision, the case of People vs. Olarte 19 SCRA 494, is deemed abandoned)

16. Criminal Actions, how commenced:

A criminal action is deemed commenced when the appropriate complaint or information is
actually filed in court. It is commenced in the name of the People of the Philippines against any person
responsible for the commission of the offense.(Sec. 2)

17. Complaint, defined:

It is a sworn written statement charging a person with an offense, subscribed by the offended
party, any peace officer or other public officer charged with the enforcement of the law violated.(Sec. 3)
 11

Under the definition, there are three groups of persons who may file a complaint, namely: the
offended party, any peace officer, or other public officers charged with the enforcement of the law
violated.

18. Information, defined:

It is an accusation in writing charging a person with an offense subscribed by the prosecutor and
filed with the Court.(Sec. 4)

19. Distinction between complaint and information:

The offended party, any peace officer or other public officer signs a complaint, while the
prosecutor signs an information; a complaint must be under oath while an information need not be
under oath; a complaint may or may not be filed in court, while an information must always be filed
in court.

20. Complaint or information, when considered sufficient to indict a person of an offense:

The complaint or information is sufficient if it states the following:
a) The name of the accused;
b) The designation of the offense by the statute;
c) The acts or omissions complained of as constituting the offense;
d) The name of the offended party;
e) The approximate date of the commission of the offense; and
f) The place where the offense was committed.
(Reference: See sections 6-12, rule 110)

21. Designation of the offense, what is included:

It includes all the essential elements composing the offense committed together with the
qualifying and aggravating circumstances that attended the commission of the offense. Matters of
evidence need not be alleged in the complaint or information.

22. Reason for incorporating the qualifying and aggravating circumstances:

This is needed in order to enable a person of common understanding to know what offense is
being charged and the degree of such commission. More, in order to enable the court to properly
pronounce judgment. (Sec. 9, Rule 110) Take note that with this prevailing rule, the decisions of the
Supreme Court in the cases of Pp. vs. Fuertes 229 SCRA 289 and Pp. vs. Cadevida 219 SCRA 218 are
deemed abandoned.

The failure to allege the circumstances affecting criminal liability would bar the prosecution from
presenting evidence of their existence. This applies to both qualifying and generic aggravating
circumstances. (Pp. vs. Espejon, Feb. 20, 2002) More, to sustain a conviction applying the existence of
qualifying or aggravating circumstances, they must be alleged in the information and duly proved during
the trial. (Pp. vs. Lavador, Feb. 20, 2002)

23. When is the Inclusion of Negative or excepting allegations in the information necessary
As a general rule, negative allegations or excepting allegations need not be incorporated in the
information or complaint as when they are matters of defense. They must be included only in the
information when they form the essential ingredients of the offense charged.

24. Effect of the condition precedent pursuant to Sec. 412, RA 7160 Local Government
Code:
Where the offense charged is required by law to undergo conciliation proceedings, the same must
be referred to the proper barangay official before the courts or prosecution offices may take cognizance of
the same.

25. Effect of referral of the case to the appropriate lupon for conciliation:
The referral of the case to the said barangay official shall stop the running of the period of
prescription of the offense. The said period shall commence to run again upon the issuance of the
appropriate certification by the said officer regarding the said case. (Sec. 410(c), RA 7160)

26. May criminal prosecutions be restrained?

The general rule is that no criminal prosecution may be restrained or stayed by any injunctive
writ, preliminary or final. Public interest requires that criminal acts be immediately investigated and
prosecuted for the protection of society. (Reyes vs. Camilon 192 SCRA 445) This rule admits several
exceptions, if the injunctive writ:
a) Affords protection to the constitutional rights of the accused. (Hernandez vs. Albano 19 SCRA
95)
 12

b) Necessary for orderly administration of justice or to avoid oppression or multiplicity of suits.

(Fortun vs. Labang 104 SCRA 607)
c) To avoid a threatened unlawful arrest. (Brocka vs. Enrile 192 SCRA 183)
d) Double Jeopardy (Sangalang vs. People 109 Phil. 1140)
e) There is clearly no prima facie case (Salonga vs. Puno 134 SCRA 438)
g) Acts of the officer are without or in excess of authority;
h) When there exist a prejudicial question;
i) When the prosecution is under an invalid law;(Samson vs. Guingona Dec. 14, 2000; Tirol vs.
COA Aug. 3, 2000)

27. Crimes that cannot be prosecuted de oficio:

There are three (3) classes of crimes that cannot be tried or prosecuted de oficio, namely:
a) Adultery and Concubinage;
b) Seduction, Abduction, Acts of Lasciviousness;
c) Criminal actions for Defamation which consists in the imputation of the above-mentioned
offenses.

The above offenses fall under the category of private crimes. They can only be prosecuted at the
instance or upon complaint of the offended or aggrieved party. Article 344 of the Revised Penal Code
expressly provides that no prosecution for the above offenses can be had unless there is a complaint
executed by the aggrieved party. Such execution of the complaint is a condition precedent. Non-
compliance with the said condition precedent is jurisdictional. It is the complaint that starts the
prosecutory proceeding.

The mere filing of the sworn statement of the complainant upon which an information is filed after
the conduct of preliminary investigation is sufficient compliance with the law and the rules. ( Pp vs.
Sunpongco June 30, 1988)

28. Adultery and Concubinage, how prosecuted:

The crimes of adultery and concubinage can only be prosecuted at the instance of the offended
spouse. If the guilty parties are both alive, the criminal complaint must be instituted against both.

A pardon extended by the offended party in favor of one should be applied to the other guilty party.

In the prosecution of this kind of offenses, the complainant must have the status, capacity and legal
representation at the time of the filing of the complaint. In short, the complainant must have the legal
capacity to sue.

29. The term legal capacity to sue, meaning of:

The term means that the marital relationship should be subsisting at the time the supposed offended
spouse institutes the criminal action against the erring spouse. So that if the alleged offended spouse, at
the time of the institution of the criminal action had already obtained a decree of divorce against the
alleged offending spouse, is already barred from instituting the said action because he has lost that legal
status or legal capacity to sue. (Teves vs. Vamenta, Dec. 26, 1984) However, the failure of the offended
spouse to sign the complaint or information does not affect the jurisdiction of the court to try the case.
(Pp. vs. Tanabe 166 SCRA 360; Pp. vs. Bugtong, 169 SCRA 797)

30. Death of offended spouses after filing of the complaint, effect of:
Death of the offended party is not a ground for extinguishment of criminal liability whether total
or partial. The participation of the offended party is essential not for the maintenance of the criminal
action but solely for the initiation thereof. Once the choice is made manifest (that of filing the complaint),
the law will be applied in full force beyond the control of, and in spite of the complainant, his death
notwithstanding. (Teves vs. Vamenta, Dec. 26, 1984)

31. Seduction, Abduction and Acts of Lasciviousness, how prosecuted:

These crimes may be prosecuted upon complaint of the offended party or her parents, grandparent
or guardian.

32. Application of the principle of parens patriae to the so-called private crimes:
The principle of parens patriae applies to the crimes of seduction, abduction and acts of
lasciviousness but not to cases involving the crimes of adultery or concubinage.
 13

33. Prior to the enactment of BP 129, there used to be a Juvenile and Domestic Relations
Court. Trace the history of this special court to the present, if it still exists. [5 pts]
Prior to the passage of BP 129, there used to exist a JDRC which has the special and exclusive
jurisdiction over matters relating to juveniles and domestic relations. This was abolished by BP 129, and
such jurisdiction was conferred into one of the regular RTC branches in that judicial region; later, RA
8369 was enacted, creating the Family Courts exercising expanded jurisdiction over the matters under the
old JDRC.

34. Trace the rulings of the Supreme Court on the issue of docket fees, stating the present
rule thereon [5 pts]

The old rule was that a case is deemed filed only upon payment of the docket fees regardless of
the actual date of filing, even if the fee is insufficient. Then came the Manchester Ruling, which stated
that the Court does not acquire jurisdiction over an action if the docket fee is not fully paid. This was
modified however by the Sun Insurance case which relaxed the Manchester ruling, saying that the court
may allow the payment of the docket fees within a reasonable time, as long as it is within the prescriptive
period of filing the case. Should there be additional awards in the judgment, the docket fee thereon shall
be a lien on the judgment. This was later reiterated in the Odecor case.

35. Define splitting a Cause of Action, and state the reasons for its prohibition.
Splitting a cause of action is the process of dividing a claim, a demand, or an action, into two or
more parts, bringing suit for only one of such parts, and generally intending to reserve the rest for
separate individual complaints or suits.

These are prohibited due to the following reasons:

a. to avoid multiplicity of suits;
b. to minimize expenses, inconvenience and harassment.

36. Define DEFAULT in a civil case.

This arises when the defendant who had been duly served with summons failed to file an
answer within the time provided by the Rules.[NOTE: This does not apply to cases covered by
the Rules on Summary Procedure]

37. When are the instances that a defendant can be declared in default.
a. When he fails to file an answer despite due receipt of summons, within the time
provided by the Rules.
b. Analogous manner, failure to appear during pre-trial despite due receipt of the
notice of pre-trial, as this entitles the plaintiff who appeared to a presentation of
evidence ex-parte, and thereafter a judgment may be issued based solely thereon.
c. Another analogous situation is the failure of the defendant to submit his Pre-Trial
Brief within the period required by law or by the Court, as it has the same effect
as letter (b) above.

38. How can a defendant, who had been declared in default, be undefaulted?
A defendant who had been declared in default may be undefaulted may follow the
provision of Sec. 3(b) of the Rules of Court, whereby he can file a motion, under oath, to set
aside the order of default, before the rendition of judgment, stating:
a. the failure to answer was due to Fraud, Accident, Mistake, or Excusable
Negligence
b. That he has a meritorious defense
c. That it is not to delay the proceedings in the case
d. He must specify the facts constituting the alleged fraud, and must be alleged with
particularity.
If after rendition of judgment, he may:
a. appeal from the judgment by default
b. file a petition for relief from judgment
c. file a petition for Certiorari only when the default order is improperly declared, or
even when it is properly declared where grave abuse of discretion attended such
declaration.
d. File a motion for reconsideration of the judgment of default, if the following
requisites are present:
i) it must be verified
ii) it must be filed within 60 days from the time petitioner learns of the decision not
more than 6 months from entry thereof;
 14

iii) in case of failure to answer, the motion must be accompanied by affidavits of

merit showing the Fraud, Accident, Mistake, or Excusable Negligence

39. Give the effect of declaration of default of a defendant.

this entitles the plaintiff who appeared to a presentation of evidence ex-parte, and
thereafter a judgment may be issued based solely thereon.

40.What sanction is given to the plaintiff who failed prosecute his complaint within a
reasonable period of time?
1. The Plaintiff shall be non-suited and the complaint dismissed;
2. The defendant, if he has counterclaims, especially permissive counterclaims, shall be
allowed to present his evidence ex-parte with regard thereto, and judgment may be
rendered based solely thereon.

41. What are the modes of service of pleadings?

a. personal service
a.1. to the party, or to his counsel; if a counsel entered his appearance on the
case, then service to counsel is service to client
a.2. leaving a copy thereof in office of counsel with his clerk or with a person
having charge thereof.
a.3. In his office, of his office is not known, or he has no office, then at his
residence, if known, between the hours of 8 AM to 6 PM, with any person thereat
of sufficient age and discretion then residing thereat.
b. By Registered Mail WITH RETURN CARD, as this is essential to a
determination of whether or not the recipient or the client received the processes
of the court.
c. By Substituted Service if (a) and/or (b) are not possible, by delivering a copy
to the Clerk of Court, with proof of failure of both modes.

42. Distinguish personal service of pleadings from personal service of Summons.

personal service of pleadings personal service of Summons

to the party, or to his counsel; if a counsel entered To the defendant, if he refuses to sign, by tendering it
his appearance on the case, then service to to him
counsel is service to client
leaving a copy thereof in office of counsel with
his clerk or with a person having charge thereof
In his office, of his office is not known, or he has
no office, then at his residence, if known,
between the hours of 8 AM to 6 PM, with any
person thereat of sufficient age and discretion
then residing thereat.

43. When can Substituted service of Summons be availed of?

1. by leaving copies thereof at the defendants residence with some person of suitable age
and discretion then residing therein
2. by leaving copies at the defendants office or regular place of business with some
competent person in charge thereof.
3. by publication, if the circumstances under Sec. 15 & 16 are present and attending

If the defendant is an entity WITHOUT juridical personality, then upon all of the
members as defendants in the manner stated in #43

If the defendant is a prisoner or an inmate in an institution, then the same shall be served
upon him by the officer having the management of the jail or institution.

If the defendant is a minor, then service shall be service upon his mother of father; or an
incompetent, to him personally and on his legal guardian, if he has one, in the absence
thereof, then upon his guardian ad litem whose appointment shall be applied for by the
plaintiff
 15

If the defendant is a domestic private juridical entity, then on the President, Managing
Partner, General Manager, corporate secretary, treasurer or in-house counsel.

If the defendant is a public corporation, then upon the Solicitor General for the Republic
of the Philippines; upon the executive head for its political subdivisions.

If the defendants identity is not known, or his whereabouts are unknown, then, by leave
of court, through publication in a newspaper of general circulation and in such places and
for such time as the court may order.

If the defendant does not reside and is not found in the Philippines, and the cause of
action affects the personal status of the plaintiff, or relates to, or the subject of which is,
property within the Philippines in which the defendant has claims or lien or interest,
actual or contingent, then, by leave of court, by extraterritorial service, or by publication in
a newspaper of general circulation in such places and for such time as the court may order.

If the defendant is temporarily outside the Philippines, then by leave of court, through
(a) substituted service; (b) by publication;

44. What are the modes of service of Summons?

1. By personal Service
2. By substituted service
3. by publication

45. When is Amendment of the INFORMATION needed:

The rule is that where the second information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first information, an amendment of the information
is sufficient. Under this principle there is identity of the offenses in the two informations.

46. When does Identity of Offenses exist

There is identity between the two offenses when the evidence to support a conviction for one
offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the
same as the first, or when the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the first information. (see Sec. 5,
Rule 120)

47. When do we say that an offense necessarily includes or is necessarily in the other:
An offense may be said to necessarily include another when some of the essential elements or
ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an
offense may be said to be necessarily included in another when the essential ingredients of the former
constitute or form a part of those constituting the latter.

48. When is Substitution of Information needed:

Where the new information charges an offense which is distinct and different from that initially
charged in the original information, a substitution is in order.

49. When is Amendment of the Information a matter of right:

An information or complaint may be amended as a matter of right, in form as well as in substance,
without leave of court at any time before the accused pleads.

50. When is Amendment of the Information a matter of discretion:

An information or complaint may be amended as a matter of discretion and only as to
matters of form and with leave of court after the accused has pleaded to the offense charged. This
right to amendment is further limited by the fact that such amendment must not cause prejudice
to the rights of the accused.
After arraignment and during the trial, amendments are allowed, but only as to matters of form and
provided that no prejudice is caused to the rights of the accused.
 16

51. Amendments, when considered matters of substance / form:

A substantial amendment consists of the recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of form.
The following have been held to be merely formal amendments, viz.:
(1) New allegations which relate only to the range of the penalty that the court might impose in the
event of conviction;
(2) An amendment which does not charge another offense different or distinct from that charged in
the original one;
(3) Additional allegations which do not alter the prosecution's theory of the case so as to cause
surprise to the accused and affect the form of defense he has or will assume; and
(4) An amendment which does not adversely affect any substantial right of the accused, such as his
right to invoke prescription.

52. State the Test on whether an amendment is formal or not:

The test of whether an amendment is only of form and an accused is not prejudiced by such
amendment has been said to be whether or not a defense under the information as it originally stood
would be equally available after the amendment is made, and whether or not any evidence the accused
might have would be equally applicable to the new information as in the other; if the answer is in the
affirmative, the amendment is one of form and not of substance. (Gabionza vs. CA March 30, 2001.)

53. When can an Amendment of the Information be deemed proper even if it would alter
the nature of the offense:
The amendment of the information may also be made even if it may result in altering the nature of the
charge so long as it can be done without prejudice to the rights of the accused.

In that old case of Dimalibot vs. Salcedo the accused were originally charged with homicide and
were released on bail. However after a review of the affidavits of the witnesses for the prosecution, it was
discovered that the killing complained of was perpetrated with the qualifying circumstances of treachery,
taking advantage of superior strength, and employing means to weaken the defense of the victim.

Consequently, an amended information for murder was filed against the accused who were ordered
re-arrested without the amount of bail being fixed, the new charge being a capital offense. The Court
ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court
(now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure)

54. Amendment distinguished from Substitution:

Amendment
May involve either formal or substantial changes
before plea has been entered can be effected without
leave of court
if only as to form, there is no need for another
preliminary investigation and the retaking of the
plea of the accused
refers to the same offense charged in the original
information or to an offense which necessarily
includes or is necessarily included in the original
charge, hence substantial amendments to the
information after the plea has been taken cannot be
made over the objection of the accused, for if the
original information would be withdrawn, the
accused could invoke double jeopardy
substitution
necessarily involves a substantial change from the
original charge
must be with leave of court, as the original
information has to be dismissed
another preliminary investigation is entailed and the
accused has to plead anew to the new information
requires or presupposes that the new information
involves a different offense which does not include
or is not necessarily included in the original charge;
hence the accused cannot claim double jeopardy

55. Amendment when applicable; substitution, when applicable:

In determining whether there should be an amendment under the first paragraph of Section 14,
Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where
the second information involves the same offense, or an offense which necessarily includes or is
necessarily included in the first information, an amendment of the information is sufficient;
otherwise, where the new information charges an offense which is distinct and different from that
initially charged, a substitution is in order.
 17

56. What are the requirements before Amendment downgrading the nature of the offense
or excluding an accused be made:
Any amendment before plea seeking to downgrade the nature of the offense or the exclusion of an
accused can be made subject to the following:
a) That a motion must be filed by the prosecution;
b) That there be notice to the offended party;
c) That it must be done only with leave of court. (Dimatulac vs. Villon 297 SCRA 67)
d)The court in resolving the motion to amend must state the reasons in granting or denying the
motion and furnishing copies of the order to the parties especially the offended party. (Ibid.; Sec.
14, par.2,Rule 110)

57. Remedy in case mistake has been committed in charging the proper offense:
This is what we call amendment by substitution. If at any time before judgment that a mistake has
been committed in the charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense.

This rule seems to be limited by Sec. 19, Rule 119. The limitation is to the effect that by reason of
the mistake in the charge, the accused cannot be convicted of any offense necessarily included therein.

58. What is the Certificate of Non-Forum Shopping

The plaintiff or principal party shall certify 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 theretofore 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.

59. What is the effect of failure to comply with the rule on Certificate of Non-Forum
Shopping?

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 actions, (n)

60. When is Forum Shopping deemed to exist?

For forum-shopping to exist, both actions must Involve the same transactions, essential facts and
circumstances; and the actions must raise Identical causes of action, subject matter, and issues. [Gachon v.
Devera, Jr., 274 SCRA 540 (1997); International Container Terminal Services, Inc. v. Court of Appeals,
249 SCRA 389 (1995); Samad v. Commission on Elections. 224 SCRA 631 (1993); R. Transports
Corporation v. Laguesma. 227 SCRA 826 (1993.)]

61. When can a foreign corporation sue and be sued even without license

The boundary line for an unlicensed foreign corporation to enable it to sue and be sued is
whether or not this corporation is doing or transacting business in the Philippines. But a foreign
corporation not transacting business in the Philippines may sue and be sued. It can maintain an
action even if it has no license, nor is it barred from seeking redress from Philippine courts. This
is known as the Isolated Transaction Rule, as enunciated in Commissioner of Customs v. KMK
Gani, Indrapal & Co.,[ G.R. No. 73722, 26 February 1990]. It is the rule that authorizes a
foreign corporation conducting an isolated business, not regular, to sue upon that isolated
business, though it has no license to do business in the Philippines.
 18

62. What are the Classifications of Parties in a Civil Action

Under the present rules, parties in interest may be classified and defined as follows:

1. Indispensable parties those, either as plaintiff or defendant, without

whom no final determination can be had of an action nor can there be real finality to the
judgment [Sec. 7; Servicewide Specialists, Inc. v. CA, 251 SCRA 70 (1995)]; e.g. co-owners
in an action for partition; possessor of a land in an action for the recovery thereof;
2. Necessary parties are those who are not indispensable but ought to be
parties if complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action [Sec. 8]; e.g. a co-debtor in a
joint obligation; subsequent mortgages / lien holders in judicial foreclosure of mortgage;
3. Representative Parties are those who are referred to under Sec. 3.
4. Pro Forma Parties - are those who are required to be joined as co-parties
in suits by or against another party as may be provided by the applicable substantive law or
procedural law [Sec. 4];
5. Quasi Parties are those in whose favor a class or representative suit is
brought.
6. Nominal Party are those who are joined as plaintiff or defendant, not
because they have any real interest in the subject matter or because any relief is demanded
as against them, but merely because the technical rules of pleadings require their presence
on the record. They may also be lumped with the so-called pro-forma parties.

63. What are the so-called Supplemental Pleadings

These are those which aver facts occurring after the filing of the original pleadings and which are
material to the claims or defenses therein alleged. Thus, under the Rules, upon motion of a
party the court may, upon reasonable notice and upon such terms as are just, permit him to serve
a supplemental pleading setting forth transactions, occurrence or events which have happened
since the date of the pleading sought to be supplemented. If the court deems it advisable that the
adverse party should plead thereto, it shall so order, specifying the time therefor.

64. When will Amendment of pleadings to conform to evidence resorted to.

When issues not raised by the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after judgment; but failure so to amend does not affect
the result of the trial of these issues.

65. What is Support pendente lite

It is the allowance made to the wife or family for her / their maintenance during the pendency of
an action. This may be applied for in a verified complaint, at the initiation of the action, during its
pendency, or at anytime before final judgment. It should be supported by affidavits, depositions, or other
authentic documents which state the grounds as well as the financial conditions of both parties.

66. When is Judicial notice MANDATORY

It is mandatory on the following instances:
i} the existence and territorial extent of states; their political history; forms of
government and symbols of nationality; the law of nations; the admiralty
and maritime courts of the world and their seals;
ii} the political constitution and history of the Philippines; the official acts of the
legislative, the executive and judicial departments of the Philippines;
iii} the unquestioned laws of nature; the measure of time; and
iv} the geographical divisions.

67. When is Judicial notice DISCRETIONARY

It is discretionary on the following (Sec. 2, Rule 129)
Judicial notice is discretionary on matters which are of public knowledge, or are capable of
unquestionable demonstration, or ought to be known to judges because of their juridical functions. This
includes matters of which the Court at its discretion may take judicial notice of.

68. Define SELF SERVING EVIDENCE

Self serving evidence is evidence made out of court at one time. It is an extra-judicial
declaration, oral or written, considered favorable to the interest of the declarant.
 19

69. Are self serving evidence admissible as proof per se? briefly explain.
It is not admissible as proof of the facts asserted therein primarily because it is hearsay in
character. The lack of opportunity to cross-examine the person who made the declaration renders it
objectionable. Another reason is that its introduction would open the door to fraud and perjury.

70. When are self-serving testimony as defined, be not considered as self-serving evidence?
The testimony of an interested party, either as plaintiff, defendant, complainant or accused, no
matter how favorable to his interest, is not considered self-serving because it can be subjected to cross-
examination.

71. To what statements do the rule on self-serving evidence apply?

This rule does not apply to judicial testimony. It applies only to extrajudicial statements [A.
Tuason v. CA, 241 SCRA 695, 25 Feb. 1995].

72. What is the so-called res inter alios acta Rule?

This is known as SIMILAR ACTS under of rules of Objections [Sec. 34, Rule 130]
Sec. 34. Similar acts as evidence. - Evidence that one did or did not do a certain thing at one
time is not admissible to prove that the he did or did not do the same or a similar thing at another time;
but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like.

Evidence that one did or failed to do a particular thing at one time is not admissible to show
that he did or failed to do a similar thing at another time.

73. Is this rule of res inter alios acta absolute?

This rule of res inter alios acta is not absolute. If the purpose is not to show that a person is the
author of an act on the basis of what he did in the past, evidence of previous conduct may be admitted.
Indeed, it is allowed to prove specific intent or knowledge, identity, plan, system, scheme, customs or
usage.

74. What are the exceptions to the rule res inter allos acta alteri nocere non debet
The exceptions to this rule are:

[a] those instances where the third person is a partner, agent, joint owner, joint debtor, or has a
joint interest with the party [Sec. 29];
[b] the party testifying is a co-conspirator [Sec. 30];
[c] the party testifying is a privy of the other party [Sec. 31].

75.What action should be filed by a person who has no claim over a property in his
custody or possession, but the ownership thereof is being claimed by at least two other
persons? State also where such an action should be filed. [5 pts]
An action for interpleader, to be filed in the court of proper jurisdiction, depending on the subject
matter of the case.

76. If a person is apprehensive that his rights under an existing contract might be affected
by a newly enacted law, what remedy is given to him by the Rules?
A Petition for Declaratory Relief.

77. What petition is to be filed when a party litigant would want a judgment to be annulled
or modified but there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law? State also the valid grounds for this Petition to prosper. [5 pts]

Petition for Certiorari under Rule 65, when the board, officer or tribunal exercising judicial or
quasi-judicial function had acted without or in excess of its jurisdiction, or with grave abuse of
discretion.

78. What petition should be filed if a person wishes that another be ordered to cease and
desist from further proceedings in another action and there is no appeal or any plain,
speedy and adequate remedy in the ordinary course of law? State also the valid grounds
for this Petition to prosper. [ 5 pts ]
 20

A Petition for Prohibition under Rule 65, when any corporation, officer, or person tribunal or
board exercising judicial or quasi-judicial or ministerial function had proceeded without or in
excess of its jurisdiction, or, with grave abuse of discretion.

79.What petition should be filed if a person wishes that the respondent be ordered to do an
act which is required to be done to protect his rights, and there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of law? State also the valid
grounds for this Petition to prosper. [ 5 pts ]

Petition for Mandamus under Rule 65, when any corporation, officer or person or tribunal or
board, exercising judicial, quasi-judicial or ministerial function unlawfully neglects to perform an
act which the law specifically enjoins as a duty resulting from office, trust or station, OR,
Unlawfully excludes another from the use and enjoyment of a right or office to which such other
is entitled.
80. While the Labor Arbiter was conducting a mandatory conference between the parties,
the representative of the respondent took offense on the accusations of the complainant.
The representative therefore began to angrily utter offensive words against the
complainant. When he was cautioned by the Arbiter about this, he too cursed the
Arbiter right then and there then walked out of the courtroom.
State the proper charge that can be filed, where should it be filed, and by whom. [ 5 pts ]

The proper case to be filed is DIRECT CONTEMPT, before the same tribunal, by the labor
arbiter.

81. When are the so-called OFFICIAL RECORD admissible as evidence per se? (Rule 130,
Sec. 44)

Sec. 44. Entries in official records. - Entries in official records made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated.

The important point here is that the entry or record was made because the law required it to be
made. The public officer or private individual was duty bound to make the entry or record while
performing his functions.

82. In admitting official records as evidence per se, must the person who made the entry be
presented in Court? Why or why not?

Although the person who made the entry need not be presented in court, the entry must be
authenticated. Considered official entries or records kept by a public officer are entries in the registry of
birth, etc., in the local civil registrar; sheriff's certificate of service of summons and return of writ of
execution; certificate of acknowledgment of a notary public; certificate of correctness of a court
stenographer;

It is necessary that the person who made the entry knew the facts which he recorded. Otherwise,
the entry will not be given any probative value and will not be considered prima facie evidence of the act,
condition or event that it describes.

83. When are some official records or entries not admitted without supporting testimony?
Why?

There are some official records or entries that are not admitted without supporting testimony.
Examples: autopsy report, baptismal certificate, police blotter, and police investigation report. It is
because these are not, in distinction from the provision of the Rule, public documents.

84. What is RES GESTAE (Rule 130, Sec. 42)?

Sec. 42. Part of the res gestae. - Statement made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may
be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be received as part of the res gestae.
 21

Res Gestae may either be a spontaneous exclamation or a verbal act.

A spontaneous exclamation is one caused by the stress and excitement of some startling event.

85. State the test of admissibility of those considered as part of res gestae.

The TEST of admissibility is whether the statement has been uttered spontaneously so that the
declarant has had no time to deceive or fabricate a story. Therefore, the lapse of time between the event
and the utterance is important in determining whether the declarant had time to reflect, think and
deliberate about the event.

86. When is a declaration against interest admissible?

Unlike in admission which is made by a party to a case, a declaration against interest is made by a
third person, one who is not directly involved in the case, like a predecessor-in-interest. To be admissible,
the declaration must meet the following requirements:

a] it is made by a person who is dead, [outside the Philippines] or unable to testify. The
unavailability to testify should be due to serious causes, e.g., the person is physically incapable
or mentally incompetent. In one foreign case, a declarant who was present in court but who
refused to testify because of fear for his and his family's safety was considered unavailable.
b] the declaration is not self serving. It is against the pecuniary or moral interest of the declarant. the
financial interest must be actual and substantial. Declaration against penal interest, according to
Wigmore, may be considered as declaration against moral interest.
c] the declarant knew the facts and had no motive to misrepresent or falsify them.

87. What do you call the evidence is either oral or written, that tries to prove a fact the
existence of which is based on what someone else has said and not on what the
person testifying has seen or heard himself. It is not based on the personal knowledge
or observation of the person testifying?

HEARSAY EVIDENCE (Rule 130, Sec. 36) Sec. 36. Testimony generally confined to personal
knowledge; hearsay excluded. - A witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his own perception, except as otherwise provided
in these rules.

88. When are the so-called Hearsay Evidence admissible?

1. These are admissible if these are not objected to, although as a rule, the courts do
not give it much weight considering its nature.

2. Not all hearsay evidence are inadmissible. Some can be admitted depending on the purpose for
which they are being offered.

When a statement is presented for the purpose of proving the truth of the facts asserted therein,
it is hearsay and inadmissible. But when the statement is presented to prove something else,
without reference to its truth, it is not hearsay and admissible. This is referred to as "non-assertive of
the truth".

Hearsay evidence can, therefore, be admitted if offered for the following non-assertive purposes:

1. to prove that the statement was made;

2. to show the feelings of state of mind of the declarant, like his mental condition,
motive, fear, apprehension, good or bad faith.
3. to establish notice, knowledge, consciousness or awareness of some fact.

For example: a witness in a slander case states that he heard Juan say that Pedro is a thief. Should
this be offered to prove that Pedro is a thief, then is it hearsay. But, when this is being presented to
prove that Juan uttered such words, whether it is true or not, the testimony is admissible. Such is
referred to as "an independent relevant statement".

EXCEPTIONS: these are statements which, although made out of court and cannot be subjected to
cross-examination are, nevertheless, admitted to establish their truth. They are admitted under the
necessity rule so that the court will not be deprived of the use of an evidence considered important
and necessary in deciding a case.
 22

These are also admitted because of the circumstances under which the hearsay declarations
were made which more or less guarantee or assure the court of their trustworthiness. The
circumstances serve as a substitute for cross-examination, the lack of which is the basis for
exclusion under the hearsay rule.

The foregoing exceptions are not mutually exclusive. One statement may meet the admission
requirements of more than one hearsay exception. Like, a dying declaration may be considered part
of the res gestae or an admission.

89. How are hearsay evidence classified?

Hearsay evidence are classified as written or verbal.

WRITTEN HEARSAY are:
[a] an affidavit of an accused implicating another in the commission of an offense
where the accused is not placed on the witness stand;
[b] Newspaper clippings, a letter and a telegram to show the cause of death of an
insured in an action on a life insurance policy;

VERBAL HEARSAY may be:

{a} the testimony of a mother that the alleged father of her son read to her a document
wherein he acknowledged her son as his;
{b} the testimony of an accused that a third person had confessed to the crime, to show
his innocence;

90. State the rules on presenting evidence on Character in Criminal and Civil Cases

Criminal Cases Civil Cases

the prosecution cannot prove the bad moral character evidence is allowed only if the
character of an accused. Apart from being moral character of a party is in issue. The rule
presumed innocent, the accused is entitled to be judged is that a business transaction must be judged by
on the basis of what he did and not on what other people its own circumstances and not by the character
think or say about his character. However, once the
or reputation of the parties.
accused elects to prove his good character to show that
he could not have done the felony, he opens the door for
the prosecution to present contrary evidence. An example of a civil case where
If an accused does not decide to put his character is in issue is an action for breach
character in issue, that is, does not present evidence of of promise of marriage, where the failure to
good evidence of good character, no unfavorable marry is justified by the defendant on ground
inference may be drawn, however. that he discovered the plaintiff no longer a
virgin, being a woman of unchaste character.
If the accused does opt to prove his character, the
same must relate to the traits, characteristics or elements Whether in a civil or criminal case,
of the offense charged. Like, evidence on honesty is
character evidence is limited to the general
admissible in a case of theft or estafa, but definitely not
on homicide or assault. reputation a person has in the community
where he lives, has resided and is best known.
On the part of the victim or offended person, It does not refer to specific acts or conduct
his character may be proved if it will help in which if allowed, would raise many collateral
determining the probability or improbability of committing issues that may unduly prolong the trial.
the crime. For example, the prosecution may
prove chastity in a case of rape and the defense shall
disprove the same, to show whether or not consent was
given or not.

91. QUESTION: Notwithstanding due notice to him, the accused failed to appear for trial.
Trial in absentia was held where the prosecution presented its evidence ex parte. After
the presentation of the people's evidence, the court declared the case submitted for
decision. Did the trial court act correctly?
 23

ANSWER: NO. The court committed grave abuse of discretion in declaring the case submitted for
decision. The non-appearance of the accused on the day of trial of which he was notified is a waiver of
his right to be present for trial on such date only and not for the succeeding trial dates. What the accused
waived by his absences his right to cross-examine the witness presented by the prosecution on that day. It
is error for the trial court to consider the case submitted for decision because even if the accused was
absent during the time the prosecution presented its evidence, he can still file a demurrer to evidence.

The situation is different if the accused is in custody as a detention prisoner and he escapes. His
non-appearance for trial is considered as a waiver of his right to be present on that date and on subsequent
trial dates.

92. ON FORUM SHOPPING:

Section 5. Certification against forum shopping. The plaintiff or principal party shall
certify 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 theretofore 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 leam 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 actions, (n)

The rule against forum-shopping has long been established and Supreme Court
Circular 28-91 merely formalized the prohibition and provided the appropriate
penalties against transgressors. [Chemphil Export & Import Corporation v. Court of
Appeals, 251 SCRA 257(1995.)]

Circular No. 28-91 was designed to serve as an instrument to promote and

facilitate the orderly administration of justice and should not be interpreted with
such absolute literalness as to subvert its won ultimate and legitimate objective or
the goal of all rules of procedure- which is to achieve substantial justice as
expeditiously as possible. [Cabarrus, Jr. v. Bernas, 279 SCRA 388 (1997.)] Supreme
Court Circular 28-91 was promulgated to prevent the vexatious filing of multiple
petitions and the unethical practice of subverting justice. [ Solid Homes. Inc. v. Court
of Appeals, 271 SCRA 157 (1997.)]

Two requirements which are to be complied with by every petition filed with the
Supreme Court or the Court of Appeals under the original form of Circular No.
28-91 are: (1) The first requirement related to the caption of a petition or
complaint filed with the Supreme Court or the Court of Appeals; and (2) The
second requirement related to the certification which must accompany that
petition or complaint. [Gabionza v. Court of Appeals, 234 SCRA 192 (1994.)]
 24

Subsequent filing of the required certification cannot be considered a substantial

compliance with the requirements of the Circular, the same having been submitted
only after the lapse of eighteen (18) days from the date of filing of the protests.
Mere submission of a certification after filing of a motion to dismiss on the
ground of non-compliance thereto does not necessarily operate as a substantial
compliance. [Tomarongv. Lubguban, 269 SCRA 624 (1997.)]

For forum-shopping to exist, both actions must Involve the same transactions,
essential facts and circumstances; and the actions must raise Identical causes of
action, subject matter. and issues. [Gachon v. Devera, Jr., 274 SCRA 540 (1997);
International Container Terminal Services, Inc. v. Court of Appeals, 249 SCRA 389
(1995); Samad v. Commission on Elections. 224 SCRA 631 (1993); R. Transports
Corporation v. Laguesma. 227 SCRA 826 (1993.)]

Forum-shopping originated as a concept in private international law, wherein non-

resident litigants are given the option to choose the forum or place wherein to
bring their suit for various reasons or excuses, including to secure procedural
advantages, to annoy and harass the defendant, to avoid overcrowded dockets, or
to select a more friendly use.

In the Philippines, forum-shopping has acquired a connotation encompassing not

only a choice of venues, as It was originally understood In conflict of laws, but
also to a choice of remedies. [First Philippine International Bank v. Court of Appeals,
252 SCRA 259 (1996.)]

Forum-shopping exists when, as a result of an adverse opinion in one forum, a

party seeks a favorable opinion (other than by appeal or certiorari) In another, or
when he Institutes two or more actions or proceedings grounded on the same
cause, on the gamble that one or the other court would make a favorable
disposition. [Benguet Electric Cooperative, Inc. v. Flores, 287 SCRA 449 (1998)
Laureano Investment and Development Corporation v. Court of Appeals, 272 SCRA 253
(1997); A Prime Security Services, Inc. v. Drilon, 246 SCRA 439 (1995); Millare v.
Montero, 246 SCRA 1 (1995); Silahis International Hotel, Inc. v. National Labor
Relations Commissions, 225 SCRA 94 (1993.)]

Forum-shopping or the act of a party against whom an adverse judgment has been
rendered in one forum, or seeking another (and possibly favorable) opinion in
another forum (other than by appeal or the special civil action of certiorari), or the
Institution of two (2) or more actions or proceedings grounded on the same cause
on the supposition that one or the other court would make a favorable disposition,
has been characterized as an act of malpractice that Is prohibited and condemned
as trifling with the Courts and abusing their processes. [Chemphil Export & Import
Corporation v. Court of Appeals, 251 SCRA 257 (1995.)]

Forum-shopping is contumacious [Ortigas & Company Limited Partnership v.

Velasco, 234 SCRA 455 (1994.) ] and it constitutes improper conduct which tends to
degrade the administration of justice, it has also been aptly described as
deplorable because it adds to the congestion of the heavily burdened dockets of
the courts. [Solid Homes, Inc. v. Court of Appeals. 271 SCRA 157 (1997); Gablonza v.
Court of Appeals. 234 SCRA 192 (1994); Ruiz v. Drilon, 209 SCRA 695 (1992.)]

A party to a case resorts to forum-shopping in order Increase his chances of

obtaining a favorable decision or action, and a party cannot be said to have sought
to Increase Its chances of obtaining a favorable decision or action where no
unfavorable decision had ever been rendered against It in any cases brought
before the court below. [International Container Terminal Services, Inc. v. Court of
Appeals, 249 SCRA 389 (1995.)]
 25

Forum shopping Is present when in two or more cases pending there is identity of
parties, rights or causes of action and reliefs sought. Forum shopping does not
require a literal identity of parties. It is sufficient that there is identity of Interests
represented. [Cartel v. Court of Appeals, 275 SCRA 97 (1997); Employees Compen-
sation Commission v. Court of Appeals, 257 SCRA 717 (1996.)]

The test to determine whether a party violated the rule against forum-shopping is
where the elements of litis pendentia are present or where a final judgment in one
case will amount to resjudicata in another. [Solid Homes, Inc. v. Court of Appeals,
271 SCRA 157 (1997); First Philippine International Bank v. Court of Appeals, 252
SCRA 259 (1996.)]

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
and a final judgment in one would constitute res judicata and thus would cause
the dismissal of the restin either case forum shopping could be cited by the
other party as ground to ask for summary dismissal of the two complaints or
petitions. [First Philippine International Bank v. Court of Appeals. 252 SCRA 259
(1996.)]

The principle of forum shopping applies not only with respect to suits filed in
courts but also in connection with litigations commenced In the courts while an
administrative proceeding Is pending In order to defeat-administrative processes
and In anticipation of an unfavorable ruling. [Earth Mineral Exploration, Inc. v.
Macaraig. Jr. 194 SCRA 1 (1991.)]

The rule prohibiting forum-shopping applies equally to multiple petition in the

same tribunal or agency. [A Prime Security Services, Inc. v. Drilon. 246 SCRA
439 (1995.)]

Ultimately, what is truly important to consider In determining whether forum-

shopping exists or not Is the vexation caused the courts and parties-litigant by a
party who asks different courts/administrative agencies to rule on the same or
related causes and/or grant the same or substantially the same reliefs, in the
process creating the possibility of conflicting decisions being rendered by the
different fora upon the same Issue. [First Philippine International Bank v. Court of
Appeals. 252 SCRA 259 (1996.)]

A party-litigant shall not be allowed to pursue simultaneous remedies in two

different forums, for such practice works havoc upon orderly judicial procedure.
[Gabionza v. Court of Appeals, 234 SCRA 192 (1994); Benguel Elec Cooperative,
Inc. v. National Electrification Administration, 193 SCRA (1991.)]

A litigant's resort to forum shopping not only furnishes the ground for giving their
present action short shrift but also lays the foundation for an Inquiry into their
liability for constructive contempt. [Vda. De Tolentino v. De Guzman, 172 SCRA
555 (1989.)]

Lawyers have been repeatedly warned by the Supreme Court not to resort to
forum-shopping for this practice clogs the court dockets. Willful and deliberate
forum shopping has been made punishable either as direct or Indirect contempt of
court In SC Administrative Circular No. 04-94 dated 01 April 1994. [Sanchez v.
Brion, 249 SCRA 1 (1995.)]

Administrative Circular No. 04-94 of the Supreme Court requiring a certification

on non-forum shopping is applicable to election cases. [Tomarong v. Lubguban.
269 SCRA 624 (1997.)]
 26

Private respondents can be considered to have engaged in forum-shopping if all of

them, acting as one group, filed identical special civil actions in the Court of
Appeals and in the Supreme Court. [Ruby Industrial Corporation v. Court of
Appeals. 284 SCRA (1997.)]

A party's Initiation of an administrative complaint agalns a judge, where the same

is a clear attempt to re-ventilate or re litigate issues already passed upon and
definitively or re-litigat issues already passed upon and definitively resolved by th
Supreme Court, is forum-shopping of the most blatant sort. [Flores v. Abesamis.
275 SCRA 302 (1997.)

Petitioner's act in filing an action for quieting of title wi1 the Regional Trial Court
of Bulacan while the same cause action is pending with the Office of the secretary
of Department of Environment and Natural Resources (DENR) Is clearly forum-
shopping. [Solid Homes. Inc. v. Court of Appeals. 271 SCRA 157 (1997.)]

There is forum-shopping where the stockholders, in a second case, and in

representation of the bank, seek to accomplish what the bank itself failed to do in
the original casethe filing by a party of two apparently different actions, but
with the same objective. [First Philippine International Bank v. Court of Appeals,
252 SCRA 259 (1996.)]

A lawyer who files a total of six appeals, complaints or petitions to frustrate the
execution of a judgment is guilty of forum shopping. [Millare v. Montero, 246
SCRA 1 (1995.)]

The union's second motion for reconsideration likewise constituted an act

partaking of the nature of forum-shopping. [A Prime Security Services, Inc. v.
Drilon. 246 SCRA 439 (1995.)]

A party who institutes a separate petition for certiorari instead of joining his co-
parties in their appeal, where such remedy is available is guilty of forum-
shopping. [Chemphil Export & Import Corporation v. Court of Appeals, 251
SCRA 257(1995.)]

Respondents' attempt to obtain remedies in an action in one court which had

already been solicited and refused, in other actions and proceedings in other
tribunal, deserves summary dismissal, without prejudice to the taking of appro-
priate administrative sanction or contempt proceeding against the erring counsel
or party. [MB Finance Corporation v. Abesamis. 195 SCRA 592 (1991.)]

The filing by a dismissed employee of a criminal action for libel during the
pendency of the illegal dismissal case does not constitute forum-shopping.
[Equitable Banking Corporation v. National Labor Relations Commission. 272
SCRA 352 (1997.)]

There is no forum-shopping where a counsel merely requests the assistance of the

NBI to investigate the alleged fraud and forgery committed against his client.
[Cabarrus, Jr. v. Bernas, 279 SCRA 388 (1997.)]

Charges of forum-shopping and violation of the rules on jurisdiction are

unfounded where the Ombudsman never pretended to have Jurisdiction over the
Issue of the validity of the decision leading to the dismissal of an employee but
only limited himself to the Imposition of administrative sanctions upon the
members of the Administrative Complaints Committee whose actuations during
the Investigation where alleged to be oppressive, arbitrary, and unjust and
violatlve of subsisting laws on the conduct of public officers in the performance
of their official duties. [Casuela v. Office of the Ombudsman. 276 SCRA 635
(1997.)]
 27

The mere filing of several cases based on the same Incident does not necessarily
constitute forum-shopping. [Paredes, Jr. v. Sandiganbayan, 252 SCRA 641
(1996.)]

There is no similarity of facts nor Identity of causes of action where one case is
for the recovery of damages as a result of petitioner's usurpation of the right to
pilotage of private respondent In the South and North Harbors of Manila and
Limay, Bataan, except the Manila International Port Area from April 19, 1993, to
April 29, 1993 while the other case was brought to enjoin petitioner from further
usurping the same right to private respondent in the Manila International Port
Area only from October 28, 1992 up to the present. [International Container
Terminal Services, Inc. v. Court of Appeals. 249 SCRA 389 (1995.)]

The filing of a petition for certiorari while a motion to approve supersedeas bond
was pending before the court a quo cannot be a case of forum-shopping or double
dealing. [Echauz v. Court of Appeals. 199 SCRA 381 (1991.)]

93. ON EXECUTION OF JUDGMENTS:

d. Discretionary Execution of Judgment- are the kind of execution

which may be stayed by the filing of a sufficient supersedeas bond filed by the
party against whom it is directed, conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be finally sustained in
whole or in part.
e. Double Revival of Judgment - a judgment may be enforced by
motion within a period of five years from entry, and by another within the next
five years thereafter.

94. Give and briefly discuss the distinction between Rule 45 from that of Rule
65 of the Rules of Court.
Rule 45
It is a mode of appeal
Matters to be raised are limited to questions
of law
This involves the review of judgment, award
of final order on the merits
The period to do so is 15 days from notice or
judgment or order of denial of the notion for
reconsideration
This stays the judgment, award, or order
appealed from
The parties are the original parties in the
action, thereby they become the appellant and
the appellee
The prior filing of a motion for
reconsideration is not required
The appellate court exercises appellate
jurisdiction and power of review
Rule 65
It is a special civil action
Matters to be raised are acts of the lower
court without or in excess of jurisdiction or
grave abuse of discretion
It is generally directed at an interlocutory
order of the court prior to appeal of the
judgment on the main case
The petition must be filed seasonably,
without undue delay, and before the act,
order or proceeding sought to be reviewed or
set aside becomes a fait accompli
This does not stay the judgment unless a writ
of preliminary injunction shall have been
applied for and issued
The parties are the aggrieved party against
the lower court or the quasi-judicial body or
agency and the prevailing party in the lower
court or agency, who thereby becomes the
petitioner and the respondents, respectively
The prior filing of a motion for
reconsideration is a condition precedent,
subject only to certain exceptions
The superior court exercises original
jurisdiction under its power of control and
supervision over the orders of the lower
courts
 28

1. Explain:
a. error of jurisdiction one where the act complained of was issued by the court, officer or
quasi-judicial body without or in excess of jurisdiction or with grave abuse of discretion
which is tantamount to lack or in excess of jurisdiction.
b. excess of jurisdiction when the court, officer or quasi-judicial body issues or commits
an act that is beyond its jurisdictino or with grave abuse of discretion.
c. error of judgment are when a court takes cognizance of a case over the subject matter
of which it has no jurisdiction. This may also refer to errors which a court may commit in
the exercise of such jurisdiction.
NOTE: Errors of jurisdiction are reviewable by Certiorari; while Errors of Judgment are
reviewable by Appeal.

2. What is the significance of Republic Act No. 8369?

This law establishes the Family Courts granting them exclusive original jurisdiction over
child and family cases.
a. Are those created under this law empowered to issue special provisional remedies?
Yes
b. If they can, what are these instances?
i. In case of violence among immediate family members living in the same domicile or
household, the Family Court may issue a restraining order against the accused or
defendant upon a verified application by the complainant or the victim for reliefs
from abuse
i. The court may order the temporary custody of children in all civil actions from their
custody. The court may also order support pendente lite including deduction from the
salary and use of conjugal home and other properties in all civil actions for support.

3. Is non-referral of cases cognizable by Republic Act No. 7160 jurisdictional?

Prior recourse to barangay conciliation is a pre-condition to the filing of complaint.
However, it is not jurisdictional in nature and may be waived if not raised seasonably in a
motion to dismiss. Failure of a party to specifically allege the factthat there was no compliance
with the barangay conciliation procedure constitutes waiver of that defense. Because the Rules
of Court provide that defenses nd objections not raised in a motion to dismiss i\or in the anser
are deemed waived.

4. Can a party in a barangay conciliation repudiate the settlement? Yes

a. How is it done? Within ten days from date of settlement, any party to a dispute may
repudiate the same by filing with the lupon chairman a statement to the effect sworn before him,
that his consent is vitiated by fraud, violence or intimidation.
b. If, granted, what is the effect? Such repudiation shall be sufficient basis for the
issuance of the certification of the filing of a complaint. The remedy of repudication supplants
the remedy of court annulment.

5. Can an agent sue or be sued without joining the principal?

Yes. The Rules provides that An agent acting in his own name and for the benefit of an
undisclosed principal my sue or be sued without joining the principal except when the contract
involves the things belonging to the principal.
Further, an agent can be sued alone under these circumstances: (a) if he acts in his own
name; or (b)If hebinds himself expressly; or, (c) if he exceeds the limits of his authority without
giving the other party sufficient notice thereof.

6. What are the rules governing action for or against spouses the husband and wife?
Generally, as a rule, they shall sue or be sued jointly, although possibly, one of them is
merely pro forma party. By way of exceptions, are the following:

(a) When the law so provides, they may sue separately, i.e., when he/she exercises a right to
protect or defend his / her separate properties; wife may file action alone to cancel real
estate mortgage executed by husband, if the latter abandoned her;
(b) They be sued separately when so provided by law, i.e., when it pertains to exercise of
their respective profession or occupation;
in their exercise of their rights as co-administrators of the absolute community properties
and the conjugal properties, they shall sue or be sued jointly.
 29

a. Is the failure to join the husband as plaintiff jurisdictional?

The defect is not jurisdictional. It is merely a condition precedent; hence, the formal and
procedural defect can be corrected at any stage of the proceeding by proper amendment
adding of party.

7. What is the rationale behind the rule that all parties must be impleaded?
This is intended to bring before the court parties rightfully interested in the litigation so
that only real controversies will be presented and the judgment, when entered will be binding
and conclusive. Multiplicity of suites may be minimized, thereby de-clogging the courts dockets.

8. Is misjoinder or non-joinder of parties a ground for dismissal? Explain.

No, as provided in Sec. 11, Rule 3. The remedy is dropping or adding of parties by motion
or by order of the court.

9. What is meant by Class Suit? Give an example.

It is a legal remedy available in those cases where the subject matter in controversy
involves one of common or general interest to many persons who are so numerous that it is
impracticable to bring them all in court. So the rule permits one or more to sue or defend for the
benefit of all. E.g., tax payers suit

10. WHAT ARE THE RULES GOVERNING THE PROCEDURES TO BE FOLLOWED IF

THE ACTION WAS FILED DURING THE LIFETIME OF THE DEFENDANT, AND
THEN HE DIES -

[A]. During the pendency of the action, before the rendition of judgment?
The action does not survive, thus, must be dismissed. It may be filed, however, as a money claim.
[B]. After judgment, but before its finality?
The action will not be dismissed, but the administrator should be substituted therein.
[C]. After the judgment became final, but before levy on execution against properties of
the deceased?
The judgment shall not be executed, but must be filed in the form of a money claim.
[D]. At a time when there was already a levy on execution
of the judgment, upon properties of the deceased?
The sale of the levied properties must then proceed

11. What is the duty of the lawyer in case of death of his client?
To inform the court of the death of a party and to submit the name and address of the
legal representative/s, within 30 days after said death.

12. What is the effect of the death, or separation of a public officer if he is a party to a suit?
The case must be continued under these circumstances:
(a) If it satisfactorily shown that there is substantial need for so continuing and maintaining it.
(b) If the substitute or successor as shwon by supplemental pleadings adopts or continues or
threatens to adopt or continue the action of his predecessor.

13. What is the effect if a party litigant becomes imcompetent or incapacitated?

The Court upon motion with notice allow the action to be continued assisted by his legal
guardian or guardian ad litem.

14. When may a party be allowed to litigate as an indigent?

A party may litigate as an indigent if the court upon ex parte application and hearing is
satisfied that he has no money or property sufficient and available for food, shelter, basic
necessities for himself and his family. The adverse party may contest the grant for false
statements. If proven, he shall pay the proper docket fees and other lawful fees, with eventual
dismisal of action and other sanctions.
 30

a. What privileges can be enjoyed by an indigent litigant?

These are
(i) exemptin from payment of docket and lawful fees and of transcript of stenographic notes
which the court may order to be furnished to him.
(ii) the amount of the docketand other lawful fees shall be a lien on any judgment rendered in
the case favorable to the indigent unless the court otherwise provides.

15. As to VENUE, is there any difference between the words Resides and domicile? Briefly
explain.
Resides is meant the place of abode, whether permanent or temporary, of the plaintiff or
defendants;
Domicile denotes a fixed permanent residence.
a. Which of these terms are contemplated under Rule 4?
Rule 4 contemplates more that of residence, where the party, in personal actions, should
be at the place of abode or actual residence.

b. What are the classifications of the so-called Venue Agreement under Rule 4 of
the Rules on Civil Procedure?
(i) Exclusive and restrictive venue agreement the venue agreement must be followed to
the exclusion of others because it is the law of the parties and filing it in the place not
greed upon entitles the other to file dismissal motion for improper venue.
(ii) Permissive Venue agreement the parties have option to follow the added / opted
venue or follow the venue as set forth in Rule 4.

c. Are there agreements on venue that is not binding to the parties?

Yes. (1) When the venue is coupled with the courts jurisdiction because while venue
may be waived, jurisdiction being conferred by law cannot be waived. So, theagreement in the
contract of carriage which stipulates that the dispute shall be filed in the courts of Singapore is
considered void because jurisdiction is conferred by law and not subject to agreement of the
parties.
(2) When oppressive or may eventually deny party access to court stipulation as to
venue in a passenger ticket of a vesses is in City of Manila would be contrary to the public policy
making courts inaccessible to all who may have need of their services, the stipulation is void and
unenforceable. Agreement as to venue are oppressive when the stipulations work injustice or
deny the parties concerned accesses to court by reason of poverty.

16. What are the basic purposes of pleadings?

Some basic purposes of pleadings are:
(a) to determine jurisdiction and the basis of payment of docket fees;
(b) to define the issues and foundation of proof to be submitted during the trial;
to apprise the court of the rival claims of the parties.

17. Can a court entertain or recognize a counterclaim that is beyond its jurisdiction? Explain.
If it is an MTC, it need not be set up. If it was set up, then it would only by way of
affirmative defense.
If it is an RTC, it can entertain an amount lower than its jurisdiction provided the same
arises out of the same transaction as the main case.

18. What are the cases where the court may order new parties joined or impleaded in a pending
case?
Subject to the jurisdiction of the court both as to service of process and venue, new parties may
be summoned to appear in the action:
(a) Whenever they are not indispensible, but ought to be made parties if complete relief isto be
accorded as between those already parties;
(b) When they are indispensable, and without their being parties, no relief may be obtained; and,
Whenever their presence is required in the action if complete relief is to be granted in the
determination of a counterclaim or cross claim.
 31

19. Distinguish Ultimate Facts from Evidentiary Facts.

Ultimate facts Evidentiary facts

are those material circumstances without are those material details of probative matters
which the plaintiffs cause of action fail that go to prove the cause of action.
must be pleaded need not be pleaded and the rules even ordered
them to be omitted.

20. What are the sanctions imposed for failure to include a certification of non-forum shopping
in the initiatory pleading?
- it shall cause the dismissal of the case;
a. State the effects if the party or affiant submitted a false certification.
It shall constitute indirect contempt without prejudice to the corresponding administrative
and criminal actions.
If these are willful and deliberate, it shall cause summary dismissal with prejudice and shall
constitute direct contempt, as a cause for administrative sanctions.
It is not curable by mere amendment of the complaint or other initiatory pleading.

1. What is a counterclaim?
A counterclaim is any claim which a defending party may have against an opposing party. It is in
itself a claim or a cause of action interposed or pleaded in an answer.

1.a. Classify & state the nature of each counterclaim.

i. Compulsory counterclaim is one which, being recognized by the regular courts of
justice, arises out of or is connected with the transaction or occurrence constituting the subject
matter of the opposing partys claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction. Such counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof, except that in an original
action before Regional Trial Court, the counterclaim may be considered compulsory regardless
of the amount.

ii. Permissive Counterclaim is one when it does not arise out of nor is it necessarily
connected with the subject matter of the opposing partys claim. It is not barred even if not set-up
or pleaded in the answer.

1.b. Distinguish Permissive Counterclaim from Compulsory Counterclaim.

Permissive compulsory
Requires the filing and /or docket fees No filing or docket fees required
May be filed separately When not pleaded or set-up, barred forever
Requires a Certificate of Non-Forum Shopping no Certificate of Non-forum Shopping required

1.c. Can the MTC recognize a counterclaim beyond its jurisdiction?

Since the amount is beyond the MTCs jurisdiction, it need not be set up, if set up it I done only
by way of defense. The counterclaim must be within the jurisdiction of the Court both as to
amount and as to nature. If the court entertains such counterclaim only to the extent of its
jurisdictional amount, the rest shall be considered merely as an affirmative defense.

1.d. Can a counterclaim below the jurisdiction of the RTC be entertained?

The RTC may entertain the counterclaim beyond its jurisdiction provided the same arises out of
the same transaction.
 32

2. What is intervention?
Intervention is a legal remedy whereby a person is permitted to become a party in a case
by (1) joining the plaintiff; or (2) the defendant; or (3) by asserting his right against both plaintiff
and defendant, considering that he has a legal interest in the subject matter of the action, or that
(4) he is going to be adversely affected by the disposition of the property in custody of the court.

2.a. What are the requisites for intervention by a non-party in action pending in
court?

The requisites are:

1. legal interest in the matter in controversy
2. legal interest in the success of either of the parties;
3. legal interest against both;
4. so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an office thereof;
5. intervention will not unduly delay or prejudice the adjudication of rights of the
original parties; and,
6. intervenors right may not be fully protected in a separate proceeding.

2.b. What is meant by an interest in the subject?

It means a direct interest in the cause of action pleaded and which would put the intervenor in
legal position to litigate a fact alleged in the complaint, without the establishment of which
plaintiff could not recover.

2.c. At what stage of the proceeding may intervention be permitted?

The motion to intervene may be filed any time before rendition of judgment by the trial court. It
can be done even after trial if it is necessary to protect some interest which cannot be protected in
separate proceeding or to preserve intervenors right. But intervention can no longer be allowed
in a case already terminated by final judgment.

3. What is the meaning of demurrer to evidence?

Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had
rested his case on the ground of insufficiency of evidence.

3.a. What is the purpose and objective of demurrer to evidence?

It is an aid or instrument for the expeditious termination of an action similar to a motion to

dismiss, which the court or tribunal may either grant or deny.

3.b. In case of demurrer to evidence, is the trial court obligated to make findings
of facts in his order or resolution?

If it give due course to the motion or the demurrer, the trial court must have a finding of facts
because the dismissal is final and in the nature of adjudication on the merits. If the motion is
denied, there is no necessity of finding of fact because the order is merely interlocutory.

4. What is the effect if a motion for judgment on the pleadings is being filed?

The plaintiff, by moving for judgment on the pleadings, is not deemed to have admitted
irrelevant allegations in the defendants answer.
The movant for judgment on the pleadings must be considered to have waived or renounced
his claim for damages and to have consented to such judgment as is warranted by the
material allegations of his complaint that are admitted by the defendant.
 33

4.a. Gloria brought an action against her husband Mike for annulment of their
marriage on the ground of sexual infidelity. Mike filed his answer to the
complaint admitting all the allegations therein contained. May Gloria move for
a judgment on the pleadings? Explain.

Actions for declaration of nullity or annulment of marriage or for legal separation are not
subject of judgment on the pleadings because the material facts alleged in the complaint must
always be proven.

3. What are the constitutional requirements relative to rendition of decision?

The Constitution provides that, no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based. No
petition for review or motion for reconsideration of a decision of the court shall be refused
due course or denied without stating the legal basis thereof.

5.a. What are the essential requisites of a valid judgment?

The requisites are:

a. The court must have jurisdiction over the subject matter;
b. The court must have jurisdiction over the person of the defendant or of the res;
c. The court must have jurisdiction over the issues; and,
d. The court must render the judgment after the hearing.

5.b. Distinguish Res Judicata from Stare Decisis

Res judicata State decisis

Prohibits and bars re-litigation of 2 cases of Provides for the uniformity of judicial decisions,
identical action, relief and parties past and present involving identical issues, facts,
or questions of law, but not necessarily the same
parties involved.

I. Briefly Explain your answers on the following:

1. Frustra T. Edovary died, leaving a vast estate. No will is presented. She is therefore
treated as having died without a will, and INTESTATE PROCEEDINGS were instituted.
Thereafter Jack I. Bagbag-a was appointed as Administrator and letters of administration was
issued. After having commenced his duties and responsibilities as provided by law, the will
of the decedent is discovered.

QUESTION: What is the legal effect of the discovery of the will to the letters of administration
already issued? Qualify your answer and explain it well.

The will newly discovered must still be probated. Should it be allowed, then the letters previously issued
shall be revoked and all the powers thereunder recalled.

2. In the will, Frustra named Mando R. Ugas as the executor who started
administering the estate. Mando however was killed during a drinking spree with some
friends, leaving a will naming Sany S. Ima as the executor of his estate. After three years,
Santy was able to wind up and distribute the estate of Frustra. One of the heirs
complained that he got less then his co-heirs. He now comes to you with the object of
annulling all the actions of Santy on the settlement of Frustras estate.

QUESTION: What is your contention on this point? Explain well your answer.
The client has a meritorious case. An executor of an executor cannot administer the formers estate. The
principle of potesta delegare non delegare applies here. Thus, the administrator of a deceased
administrator cannot administer the estate of the decedent where the former is the appointed
administrator.
 34

3. Frustra had been a spinster, a miser, and a recluse. In her 85

years of life, she had saved, scrimped, hoarded and kept all
her earnings and retirement benefits in a steel vault built
into the basement of her huge 3-storey, 13 bedroom, 3-car
garage, 14-T&B, 2 kitchen and multi-salaed house.

Due to her character and nature, it appears that she

had cheated the local electric cooperative by putting in
illegal connections and by tapping into the main line, thus,
the current consumption of her house and numerous appliances
did not pass through her electric meter. She was also able
to bribe some unscrupulous personnel at the city assessors
and tax mapping/zoning offices so as to have a much lesser
assessment of her house and lot. Thus, she had
been paying a minimal amount for her real estate and
property taxes. Of the 13 bedrooms, she rents out 10 of
them at P2,500.00 each per month. She however declared that
the occupants of these 10 bedrooms are her nephews and
nieces, thus, did not obtain the necessary license or
business permit as a Real Estate Lessor, and therefore was
not paying taxes thereon.

One day, all her tenants suddenly were shouting in

jubilation, held an impromptu party, then just left with
whatever they can carry. The neighbors later learned that
May finally succumbed to old age.
When it was found that she had left no issue nor are there
known relatives, her properties were subjected to assessment
and inspection. All the foregoing facts therefore were
ascertained and finally came to light. The Local Electric
Cooperative thus came up with the total of P988,564.97 as
the unpaid electric bills. The local treasurer found that
she had cheated the government of P1.7 M in taxes real
estate, business, and such. Since there are no known heirs,
these entities the electric cooperative and the municipal
government - filed the requisite Settlement of Estate
proceeding in the proper court, praying that they be
appointed as the administrator of the estate of the deceased
who left no will, on the ground that they are parties who
have interest on the estate, based on what the deceased owes
them.
QUESTIONS:
(a) Should you be the Judge, who would you uphold? Explain
this matter.
Their petition should be denied as they are juridical entities, thus
not qualified to be administrators.
(b) On the other hand, what is your personal opinion on
what should have been the proper proceeding filed in
Court?
The State should file a petition for Escheat

4. During her lifetime, she had obtained a loan secured by real estate mortgage on his land,
thereby becoming a mortgagor-debtor, to Kare Y. Yuki. After her death, the intestate
proceedings for the settlement and distribution of her estate were commenced in court.
Due to the delay in the issuance of the letters testamentary for a regular administrator to
administer the estate pending distribution of the assets to the possible heirs, a special
administrator, Malou W. Ang, was appointed by the probate court. In the meantime, the
debt of the decedent, secured by mortgage, became due and the prescriptive period to
commence the action to foreclose said mortgage is fast approaching. There being yet no
regular administrator appointed to administer decedent's estate, Kare filed an action TO
FORECLOSE the mortgage, making Malou W. Ang as defendant, applying Sec. 1, Rule
87, which provides:
 35

"Sec. 1. - Actions which may and which may not be

brought against executor or administrator. - No action upon a
claim for the recovery of money or debt or interest thereon shall
be commenced against the executor or administrator; BUT
ACTIONS x x x TO ENFORCE A LIEN [on real property] x x x
may be commenced against him."

The defendant special administrator moved to dismiss the

case on the ground that what Sec. 1, Rule 87 contemplates
is a REGULAR ADMINISTRATOR, not a special administrator
whose powers and duties are limited.

QUESTION: Rule on the contention of the special administrator.

Explain your answer.
The contention of Malou is not correct. Being the Special
Administrator, she had stepped into the shoes of the
administrator. Thus, she must assume and act as the
administrator. There is no qualification in the provision of law
cited.

5. Frustra, during her lifetime, was also a catankerous woman

who is well known to pick fights among her neighbors. Among
them is Ada K. Urorangna whom she maliciously charged with
Estafa. Eventually, Ada was acquitted from such malicious
charge. Ada thus filed against Frustra a civil action for
damages due to malicious prosecution. This case
against Frustra was pending when she died. The presiding
judge granted Adas motion to substitute the Special
Administrator of Frustra, Malou W. Ang, in the continuation
of the trial. When the decision was rendered, the judge
found for Ada, making the estate liable. The Special
Administrator came to you for the purpose of appealing the
decision.

QUESTION: What should your action be? Defend your answer sanely.
The case filed was for malicious prosecution, which arose from a
personal cause of action. The appeal on certiorari to be filed is
meritorious.

6. It appears that Frustra had acquired real estate properties

in the State of California, in the city of San Diego, USA.
Malou therefore lost no time to go there, assessed the
property, and advertised the sale thereof. Eventually it
was sold to her cousin who is a nurse in Chicago.

QUESTION: Is the sale valid and proper? Why or why not.

No it was not. This is because as a domiciliary administrator,

she cannot have such powers in the United States of
America. The will, as probated and allowed in Philippine
Courts, must be proven in the U.S.A and an anciliary
administrator be appointed thereat. This is under the
principle of territorial powers, where the presumption in
international law is that the laws in this country is the
same as that in the U.S.A.

7. During the probate proceedings, after the issuance of letters testamentary, and the publication
of the same in the local newspapers, a certain Ding Alo filed a Petition captioned
Annulment of Title over parcels of land and damages with
petition for preliminary injunction with a prayer that he be appointed
as the administrator of his recently deceased former live-in partners (Frustra) estate in
order to prosecute said case.
 36

In his Petition, he stated that while Frustra was still a professor at the Saint Louis University,
they had an affair and had actually lived together in her house for some years. He said
that he had also contributed to the improvements of the house and had spent not only his
money but also his youthful energies for the benefit of Frustra. Some of the properties
therefore titled under Frustras name were actually his, as agreed upon with Frustra, as
her security that he will not run away with her properties. He stated that during those
years with Frustra, Hell was a better place to live in than there. He is therefore claiming
for the proportionate portion of the estate corresponding to his contributions to the
improvements thereon and damages for the physical, psychological and mental abuses he
had suffered during those years.

QUESTION: If you were the probate judge, how would you rule on Ding Alos petition?
This must be denied, as under Rule 86, Claims against the Estate consist o nly of money claims that
may be presented in court in the testate or intestate proceedings. These are classified into:
[a] those arising from contracts which are express, implied, whether due or not due, or
contingent;
[c] funeral expenses;
[d] expenses for the last illness;
[e] judgment for money, except for negligence or torts

8. The RTC judge, the Honorable Bob Omali, based on a litany of cases that a court sitting as a
probate court, cannot adjudicate on matters or issues that are not in any way called as a
proper joinder of causes of action, dismissed a case filed before him. Naturally, the
Petitioner appealed such dismissal.

QUESTION: If the appeal was raffled to your court, how would you resolve the case? Support
your answer.
The decision should be reversed. As held in the case of Mendoza v.
Te cited in the book, it would seem that after the finality
of the judgment in said case, a writ of execution must be
issued. The same however shall not be served by the sheriff
on the heirs and estate of the deceased defendant.

The winning party would therefore initiate the settlement of the

estate of the deceased defendant if none had been already
filed, or file his money claim in the settlement
proceedings if one had been filed, and make use of the
judgment and the writ issued pursuant thereto as his money
claim therein. He may even pray that he be issued the
requisite letters testamentary, if he has all the
qualifications and none of the disqualifications. Although
to prosecute his own claim, a special administrator must be
appointed only with regard to his personal claim against
the estate.]

BONUS QUESTIONS: [must to answered]

9. A testator left a will. When his heirs consulted a lawyer on

how the will may be enforced, they were advised to file a
petition for the probate thereof. The heirs however were
stunned at the cost of such a court proceeding. They
therefore agreed among themselves to partition the property
in accordance with the will.

QUESTION: Are they correct? Why or why not. Explain.

NO, they are not. The provisions of the will are not to be in
effect until and unless the same is probated. However, to
shorten the proceedings and to lessen the cost, if after the
filing of the petition for probate, and if all the requisites
of a valid extra-judicial settlement of estate are present,
they may however opt for said remedy. This will then be
approved by the Court and it shall be thus settled in
accordance thereto.
 37

Briefly Explain your answers on the following:

1. Ninoy died leaving a will naming Ferdie as the executor who started administering the
estate of Ninoy. Ferdie then died, leaving a will naming Eddie as the executor of his
(Ferdie's) estate. After three years, Eddie was able to wind up and distribute the estate of
Ninoy. One of the heirs complained that he got less then his co-heirs. He now comes to you
with the object of annulling all the actions of Eddie on the settlement of the testator's estate.
What is your contention on this point? Explain well your answer.

The principle of potesta delegare non delegare applies here.

Thus, the administrator of a deceased administrator cannot administer
the estate of the decedent where the former is the appointed
administrator.

2. Ari R. Oyo mortgaged his 1.2 ha. of land to Dee F. Ensor for 3.0M for the stipulated
period of 18 months. On the 17th month, an airplane fell into the sea due to pilot error. Among
the passengers was Ari, whose remains were never recovered. What may be the viable
actions of Dee to recover his money?

Within the prescribed period, Dee has to file a petition to

declare Ari as either an absentee, or, presumptively dead for purposes
of settling his estate.

2.a. Suppose a week after the plane crash, Ari was found inside the belly of a big shark, would
your answer be the same?

No. Dee has the following possible alternative actions:

[A] abandon the mortgage then file a money claim;

[b] foreclose on the mortgage, with prayer for deficiency judgment;
or,
[c] foreclose on the mortgage, and if it shall not be sufficient, he
can not claim for additional amount anymore.

3. Lee G. Arda maliciously charged Gorya Makapal with Estafa, and upon being acquitted
from such charge, Gorya filed against Lee a civil action for damages due to malicious
prosecution. While the case against Lee was pending, she died. The presiding judge granted
Gorias motion to substitute the Administrator of Lee in the continuation of the trial. When
the decision was rendered by the judge making the estate liable, the Administrator came to
you for the purpose of appealing the decision. What should your action be? Defend your
answer sanely.

The case filed was for malicious prosecution, which arose from a
personal cause of action. The appeal on certiorari to be filed is
meritorious.

4. It had been held in a litany of cases that a court sitting as a probate court, cannot adjudicate on
matters or issues that are not in any way called as a proper joinder of causes of action. An
RTC judge, the Honorable Bob Omali, based on this precept, dismissed a Petition filed
before him by Ms. Con T. Omashos, which is captioned, Annulment of Title over
parcels of land and damages with petition for preliminary injunction with a prayer that
she be appointed as the administratrix of her recently deceased husbands estate in order
to prosecute said case.

After the trial, the Honorable Judge issued an Order denying the prayer for appointment as
administratrix, then eventually rendered a Decision dismissing the case.

Naturally, the Petitioner appealed such dismissal. If the appeal was raffled to your court, how
would you resolve the case? Support your answer.

The decision should be reversed, in accordance with the case of

Mendoza v. Teh" cited in the book.
 38

5. Katia A. Quens husband is an engineer working abroad with the Shell International, setting
up its oil refineries in numerous countries. With the more than substantial amount he
sends home, Katia decided to establish a furniture making factory in her hometown in
Isabela. Eventually, this business flourished. It even exported its products to Malaysia,
New Zealand and Australia. Due to her refusal to increase the wages of the laborers to
meet the wage increases mandated by the Regional Tripartite Wage and Production
Board, her workers complained with the local DOLE office. When an investigation was
conducted by the latter, she fired all the complaining workers. They naturally filed a case
for illegal dismissal and monetary claims with the National Labor Relations Commission.

When the case was deemed submitted for resolution, the husband was suddenly sent
home to recuperate from a work-connected injury. When he arrived at their house
however, he came upon his wife, Katia, in bed with his kumpare, Ali S. Kate. Despite his
injury, he was able to kill his wife with a bolo and seriously wound the paramour. The
death of Katia was made known to the Labor Arbiter through a manifestation filed by the
counsel for the complainants. In view thereof, the Labor Arbiter ordered that the heirs of
Katia be substituted as party respondents.

Meanwhile, the Labor Arbiter rendered a decision on the case, finding that the laborers
were illegally dismissed and awarding backwages, salary differential, overtime, service
incentive leave pay, holiday and rest day pay, moral and exemplary damages as well as
attorneys fees, in the total amount of P997,699.14. Since the husband was still in jail,
and their children were still minors, the decision was not appealed. Thus, it became final
and executory.

The complainants therefore prayed that a Writ of Execution be issued by the Labor
Arbiter and the same be immediately be implemented against the properties left by Katia.
If you were the Labor Arbiter, would you grant this motion? Why or why not. Explain
fully your answer.

As to issuance of the Writ of Execution, YES. But as to the

implementation thereof against the properties of May, NO. What
the winning party should do is to initiate the settlement
proceeding, if none had been filed, or, if one is already
pending, to file the same as a money claim against the estate.

6. Is there any remedy for the heirs of a deceased person, who would like to settle the estate
extrajudicially among themselves, but their father had left some debts? Explain your
answer, and the consequence of the remedy which you believe is right.

Yes. The heirs, or one or some of them, may pay the entire debts,
without prejudice to reimbursement from the other heirs and
interested persons.

7. Siem P. Lee, the administrator of the estate of Ma Y. Aman, has in his favor a promissory
note by the later for the amount of P1.3M. What must he do to prosecute this claim
against the estate which he is administering? Explain well. [5 pts]

Move for the appointment of a special administrator who shall

process such claim only.

8. Sam S. Ung left a will containing the disposition of his accumulated wealth of PhP249
M. When his heirs consulted Atty. Sonny Eric S. On, on how the will can be enforced,
they were advised to file a petition for the probate thereof. The heirs however were
stunned at the cost of such a court proceeding, not to mention the attorneys fees. They
therefore agreed among themselves that they might as well just partition the property in
accordance with the will. Are they correct? Why or why not. Explain. [10 pts]
 39

No they are not. What they should do is to file the petition for
probate, then while it is ongoing, they may now agree among
themselves on how to distribute the estate, then have it
approved by the court as and by of extrajudicial settlement,
which is in effect a compromise agreement. This will shorten the
proceedings and will lessen the cost of the litigation.

9. May T. Phed was a spinster, a miser, and a recluse. In her 85 years of life, she had saved,
scrimped, hoarded and kept all her earnings and retirement benefits in a steel vault built
into the basement of her huge 3-storey, 13 bedroom, 3-car garage, 14-T&B, 2 kitchen and
multi-salaed house.

Due to her character and nature, it appears that she had cheated the local electric
cooperative by putting in illegal connections and by tapping into the main line, thus, the
current consumption of her house and numerous appliances did not pass through her
electric meter. She was also able to bribe some unscrupulous personnel at the city
assessors and tax mapping/zoning offices so as to have a much lesser assessment of her
house and lot. Thus, she had been paying a minimal amount for her real estate and
property taxes. Of the 13 bedrooms, she rents out 10 of them at P2,500.00 each per
month. She however declared that the occupants of these 10 bedrooms are her nephews
and nieces, thus, did not obtain the necessary license or business permit as a Real Estate
Lessor, and therefore was not paying taxes therefore.

One day, all her tenants suddenly were shouting in jubilation, held an impromptu
party, then just left with whatever they can carry. The neighbors later learned that May
finally succumbed to old age.

When it was found that she had left no issue nor are there known relatives, her properties were
subjected to assessment and inspection. All the foregoing facts therefore were ascertained
and finally came to light. The Local Electric Cooperative thus came up with the total of
P988,564.97 as the unpaid electric bills. The local treasurer found that she had cheated
the government of P1.7 M in taxes real estate, business, and such. Since there are no
known heirs, these entities the electric cooperative and the municipal government -
filed the requisite Settlement of Estate proceeding in the proper court, praying that they

be appointed as the administrator of the estate of the deceased who left no will, on the
ground that they are parties who have interest on the estate, based on what the deceased
owes them.

(c) Should you be the Judge, who would you uphold? Explain this matter.

Their petition should be denied as they are juridical entities,

thus not qualified to be administrators.

(d) On the other hand, what is your personal opinion on what should have been
the proper proceeding filed in Court?

The State should file a petition for Escheat.

10. A Vietnamese, Lung Pei Neis, died intestate while residing at Loakan, Baguio City. He is
survived by his Filipina wife, Mayta Lung and their 11 year old daughter, Malou Lung. The
properties accumulated during the marriage are the house and lot valued at P17.4 M., a
farmlot at Tuba, Benguet valued at P12.3M, two cars valued at P2.8M each, a grocery store
with a total value of P12.8M, three bank accounts with a total deposit of P50.2 M, the
husband and wife partnership share a S.E.C. registered garments factory at the PEZA,
Loakan, consisting of the building, machineries and equipments valued at P30.1M. The
immovable properties are in the name of the wife, while all the rest are registered under the
name of the decedent.
 40

After his burial, the suppliers of the factory and the grocery store now made demands for their
payments. The wife however was not allowed by the banks to withdraw funds as these are
in the name of the decedent. Neither can the factory pay these as the other investors still
have to liquidate and reorganize the partnership.

Should she consult you, state her most expeditious course of action and briefly outline the
procedures that she should follow so that she can have access to the bank accounts of her
deceased husband. [ 10 points ]

She should file a petition for the settlement of the estate of her deceased husband, with prayer that letters
of administration be issued to her. Thereafter, the creditors can now file their respective claims against the
estate.

11. Frustra T. Edovary was a spinster and a miser. Throughout her life as a school teacher, she
had saved a sizeable part of all her earnings, scrimping on all the necessities of life,
refusing to succor her siblings and their numerous offsprings. She was thus able to
accumulate both real and personal properties such as houses and lots, farm lands and had
lots of money in several bank deposits.

After the required annual medical examinations, she was diagnosed to have terminal
tuberculosis. She thus went to the cheapest lawyer in town and had her last will and
testament executed, bringing along her three co-teachers as her witnesses. Thereafter, she
kept this document in her old baul, along with her meager memorabilia of her wasted
younger years.

When a super typhoon struck the city, she was among those who panicked, haphazardly stuffing
all kinds of paper into a jute sack and ran out of her house. When she cooked her meals
thereafter, she used these papers as fuel and also whenever she had to answer the call of
nature.

After the rains and floodwaters settled down, she returned to her house, only to learn that it had
been ransacked by unscrupulous persons, robbing almost all of the appliances, and even
her precious baul was made into kindling. In grief and disgust, she suffered a fatal
heart attack. Her siblings and relatives again ransacked the whole house, looking into
every nook and cranny, but they failed to find the will.

[a] Can the heirs still cause the probate of the lost or destroyed will? How? [5 points]

Yes, they can, considering that it was a notarial will and a copy
thereof is still available with the counsel who notarized it and
with the Clerk of Court of the Executive Judge of the local
Regional Trial Court. The petition may be filed without the will
attached, but with the information as to where a copy thereof may
be found or who is believed to be in possession thereof.

[b] Will your answer be the same if the will is a holographic one? Why or why not? [ 5 points ]
General Rule:

IF THE ONLY COPY of a holographic will is lost or

destroyed, THERE CAN BE NO PROBATE, as there would be no
possibility of comparing the handwriting.

Exception:

It may perhaps be proved by a photographic or

photostatic copy, or even a mimeographed or carbon copy,
or by other similar means, if any, whereby the authenticity
of the handwriting of the deceased may be exhibited and
tested before the probate court. [Gan v. Yap, L-12190, 30
Aug. 1958]
 41

Hearsay evidence regarding a lost will cannot be accepted

for the witnesses testifying thereto cannot be considered
credible witnesses.

12. Remington Steel [formerly Remegio Bakal], an American of Filipino origin, was appointed as
the administrator of all the properties of Peter Saint [also formerly Pedro Santo], both in the
State of California and in Porac, Pampanga, in the Probate of Saints will in San Diego,
California. Steel came to the Philippines and sold the properties of
Saint in Porac, Pampanga. Is the sale valid and proper? Why or why not. [5 points ]

No it was not. This is because as a domiciliary administrator, he cannot have such powers in the
Philippines. The will must be probated under Philippine Courts and an anciliary administrator be
appointed.

Briefly Explain your answers on the following:

1. When may appeal be made in special proceedings?

An interested person may appeal in special proceedings from an order or
judgment rendered by a RTC, or Family Court, or even an MTC, where such
order or judgment
a. allows or disallows a will;
b. determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
c. allows or disallows, in whole or in part, any claim against the estate in
offset to a claim against it;
d. settle the account of an executor, administrator, trustee, or guardian;
e. constitutes, in proceedings, relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing,
except that no appeal shall be allowed from the appointment of a special
administration; and,
f. if the final order or judgment rendered in the case, and affects granting
or denying a motion for a new trial or for reconsideration.

2. Is Advance distribution in special proceedings allowable?

Yes. Notwithstanding a pending controversy or appeal in proceedings to
settle the estate of a decedent, the court may, in its discretion and upon
such terms as it may deem proper and just, permit that such part of the
estate as may not be affected by the controversy or appeal be distributed
among the heirs or legatees, upon compliance with such conditions set in
Rule 90 of the Rules of Court.

3. When may the Civil Registrar General impugn the decision of

the civil registrar / consul general?
The civil registrar general shall, within 10 working days from receipt of
decision granting the petition, impugn such decision by way of objection
based on the following grounds:
a. the error is not clerical or typographical;
b. the correction of an entry or entries in the civil registrar is substantial or
controversial as it affects civil status of a person; or,
c. the basis used in changing first name or nickname of a person does not
fall under the law. Petitioner may seek reconsideration of the adverse
decision of the CRG or file appropriate petition in court.

4. When may administrative petition for change of first or

nickname be allowed?
 42

These are:
a. When the name is ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;
b. When the change will avoid confusion.
c. When the new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known by
the first name of nickname in the community;

5. What errors may be corrected under the civil register?

Only clerical or typographical errors are allowed but any change or
correction in the entry in a civil register shall be with judicial order, unless
it is a typographical error/s or change of first name or nickname which can
be corrected by the city / municipal civil registrar or consul general under
RA 9048. Thus, every civil register shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person suffering
damage thereby. However, the civil registrar may exempt himself from such
liability if he proves he has taken every reasonable precaution to prevent the
unlawful alteration.

6. What are the two ways of correcting entries in the civil

register?
These are (1) the judicial method under Rule 108; and (2) the administrative
correction of some clerical or typographical errors by the civil register under
R.A. 9048, March 22, 2001 as implemented by A.O. No. 1, S. 2001 (July 24,
2001]

7. What is meant by (a) absence as status? (b) absentee?

ABSENCE AS A LEGAL STATUS refers to a person who has absented
himself from his domicile and whose whereabouts and fate are unknown, it
not being known with certainty whether he is still living or not.
AN ABSENTEE is a person who disappears from his domicile and whose
whereabouts is unknown and without having left an agent to administer his
property, or if he left such an agent, the power conferred upon the latter had
expired.

8. Under what circumstances the administration of the property

of the absentee shall cease?
The administration shall cease or terminated in any of the following cases:
a. When the absentee appears personally or by means of an agent;
b. Where the death of the absentee is proved and his estate or intestate heir
appears;
c. When third persons appear, showing proper document that he has
acquired absentees property by purchase or other titles.

9. What are the governing substantive and procedural laws on

names and surnames of children and spouses?
The civil code of the Philippines governs the substantive law on the use of
names and surnames of children, spouses, and adoptees (Arts. 364, 365,
368, 369, 371) and the procedural law is Rule 103 of the Revised Rules of
Court. Rule 103 (Change of Name) falls within the legitimate exercise of
police power of the state primarily to prevent fraud and confusion. Therefore
the nature of change of name is a matter of privilege, not a right because the
state takes interest in the names borne by individuals and entities for the
purpose of identification.
 43

10. What are some of the valid, justifying and sufficient grounds
for change of name?

The grounds are:

d. When the name is ridiculous, dishonorable or extremely difficult to write
or pronounce;
e. When the change is a legal consequence of legitimation or adoption;
f. When the change will avoid confusion.
g. When one has continuously used and be known since childhood by a
Filipino name and was unaware of alien parentage;
h. When the change is based on a sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith and without prejudice to
anybody; and,
i. When the surname causes embarrassment and there is no knowing that
the desired change of name was for a fraudulent purpose, or that the
change of name would prejudice public interest.

11. Canthere be a joinder or petition for adoption and petition for

change of name in a single proceeding?
Formerly, no, since each is governed by different proceedings and so they
should be separated, not joined. However, the recent Rule on Adoption [AM
02-6-02-SC] may allow joinder.

12. When is the provision on Inter-Country Adoption applicable?

It applies to inter-country adoption of Filipino children by foreign nationals
and Filipino citizens permanently residing abroad.

13. Who may be adopted under the Inter-Country Adoption Law?

Only a child legally available for domestic adoption. [ A child legally available
for adoption refers to one who has been voluntarily or involuntarily committed to the
DSWD or to a duly licensed and accredited child-placing or child caring agency, freed
of parental authority of his biological parents, or in case of rescission of adoption, his
guardian or adopter.

14. Withinwhat time period shall a petition for revocation of

adoption be filed?
The prescriptive period for filing is five (5) years. For the adopted (adoptee),
within 5 years following attainment of his majority or if incompetent, within
5 years following his recovery from such incompetency.

15. State the grounds for the rescission of an adoption.

The adoption may be rescinded based on any of the following grounds
committed by the adopter
a. repeated physical and verbal maltreatment by the adopter despite having
undergone counseling;

b. attempt on the life of the adoptee

c. sexual assault or violence; or,
d. abandonment or failure to comply with parental obligations.

16. Can an adopter rescind and revoke the adoption?

No. Adoption, being in the best interest of the child, shall not be subject to
rescission by the adopter. However, the adopter may disinherit the adoptee
for causes provided in Art. 919 of the Civil Code.
 44

17. State the effects of the rescission / revocation of adoption.

The effects are:
(1) Restoration of parental authority if rescission is granted then
parental authority of the adoptees biological parents if known or
the legal custody of the DSWD shall be restored if adoptee is still a
minor or incapacitated.
(2) Extinguishment of all reciprocal rights and obligations between
the adopter and the adopted.
(3) The surname pf the adopter could no longer be used;
(4) Successional rights shall be reverted to its status prior to the
adoption; however, vested rights acquired shall be respected.

18. What is the effect of A.M. No. 02-6-02 SC approved last July
31, 2002 which took effect on August 22, 2002?

This supersedes Rule 99 on adoption and Rule 100 of the Rules of Court.

19. In what situation may a trustee be appointed?

A trustee may be appointed in the following situations:
a] When the testator omitted in his will to appoint a trustee if such appointment is
necessary to carry into effect the provisions of the will the court, with proper
notice to parties, may appoint a trustee who shall have the same rights, powers
and duties, as if he had been appointed by the testator.
b]. when the trustee appointed in the will or written instrument or appointed by the
court declines, resigns, dies or is removed before accomplishment of the object
of trust.
c]. where the trustee appointed abroad fails to apply for appointment or refuse to
comply with the order of the court, new trustee may be appointed by the court
upon proper petition and notice to parties.

20. When may a guardian file a verified petition to the court (with
leave of court) seeking authority to sell or encumber properties
of the ward?
When (1) the income of the estate is not sufficient to maintain the ward and
his family; (2) it is needed to educate the ward when a minor; (3) when it is
for the benefit of the ward or when it is invested in some productive
security.

21. What is the effect if the outlined procedure in guardianship is

not being followed?
The procedure is mandatory and jurisdictional; hence, in case of any
material departure / deviation of the procedure especially in the notice, it
results in loss of jurisdiction.

22. Distinguish Guardian from Guardianship

A GUARDIAN is a person in whom the law has entrusted the custody and
control of the person or estate or both of an infant, insane or other person
incapable of managing his own affair.

GUARDIANSHIP means the relationship between the guardian and the

ward.

*Parents exercising parental authority are natural guardians, thus, judicial

guardianship is not necessary, except when exercising guardianship over
the properties in excess of PhP50,000.00 [ Art. 225, Family Code; See however Rule
93, Sec. 7 where the value of property is still pegged at more than PhP2,000.00. ]
 45

23. After
a property has been escheated, can a claim be still filed?
When and by whom?

Yes, if a devisee, legatee, heir, widow, widower or other persons entitled to

the property of the deceased files a claim with the court having jurisdiction
within 5 years from date of the judgment, such person shall have
possession of land title of the escheated property, or if sold, the municipality
or city shall be accountable to him for the proceeds, after deducting the
reasonable charges. A claim not made within said period of 5 years shall
forever be barred.

24. Dennise Elizabeth Sanggano, physically and by her name is

female. In her birth certificate, however, neither male nor
female was marked x which means that her sex was not
recorded at all. She now comes to you for the correction of
entry in her Certificate of Live Birth. As and by way of
payment, she is offering either PhP95,000.00 as package deal
fee, or, 24 hours of her life. State your proper course of action
on this case.

This error is not clerical within the meaning of R.A. No. 9048, and
therefore, no petition to correct it is necessary. The error of omission can
be corrected by means of supplemental report of birth.

-=o0o=-

95. JUDGMENTS
CIVIL CASES
A judgment is the final
consideration and determination
by a court of the rights of the
parties as those rights which
presently exist, upon matters
submitted in an action or
proceedings [Gotamco v. Chan
Seng, 46 Phil. 542]. The actual
judgment of the court is found in
the dispositive or decretal
portion thereof, and this is the
subject of the execution of the
judgment. The other portions
however may be resorted to in
order to determine the ratio
decidendi of the judgment or
resolution.
A judgment therefore
must be written, prepared by
the judge personally and
directly, clearly and distinctly
stating the facts and the law on
which it was based, signed by
him and filed with the Clerk of
Court. It is the latter act, the
filing with the Clerk of Court,
that constitutes the rendition or
promulgation of judgment, not
the signing by the judge or the
reading of the decision in open
court.
For a judgment to be
valid, the following requisites
must be present:
a. the court must
have had jurisdiction
over the subject
matter;
b. the court must
have had jurisdiction
over the person of the
defendant, or of the
res;
c. the court must
have had jurisdiction
over the issues;
d. the court must
render the judgment
after the hearing
46
[except when not
required by the Rules]
CRIMINAL CASES
It is the adjudication by the court
that the accused is guilty or not guilty of
the offense charged, and the imposition
of the proper penalty and civil liability
provided for by law on the accused. It
must also be in writing, in the official
language, personally and directly
prepared and signed by the judge,
containing a clear statement of the facts
proved or admitted by the accused, and
the law upon which the judgment is
based.
If it convicts the accused, it must
contain the following:
(a) the legal qualification of the
offense constituted by the acts
committed by the accused, and the
aggravating or mitigating
circumstances attending to the
commission thereof, it there are
any;
(b) the participation of the accused in
the commission of the offense,
whether as principal, accomplice,
or accessory after the fact;
(c) The penalty imposed upon the
accused; and,
(d) The civil liability or damages
caused by the wrongful act to be
recovered from the accused by the
offended party, if there be any,
 47

unless the enforcement of the civil For Judgment upon

liability by a separate action has
been reserved or waived.
Confession or Compromise to be
valid, these must be entered
into with the assistance of
counsel, or, if it is the latter
which entered into such
agreement, then it must be with
the knowledge and special
authority of the client, unless
otherwise provided in the
judgment, as may be prayed for
or agreed upon by the parties.

Generally, a judgment on
Compromise is immediately
executory, is not appealable,
and has the effect of res
judicata from the moment it is
rendered. The exception is when
it is sought to be set aside
based on FAME. If this motion is
denied, then the Order denying
the same may be appealed,
Under the rules, there are
further praying that the
several forms of judgments,
compromise itself be set aside
among which are the following:
or annulled.
1. Judgment by Default
[Sec. 3, Rule 9]

2. Judgment on the
pleadings [Rule 34]

3. Summary Judgment
[Rule 35]

4. Several judgment
[Sec. 4, Rule 36]

5. Separate Judgment
[Sec. 5, rule 36]

6. Special Judgment [Sec.

11, Rule 39]

7. Judgment for Specific If the accused is acquitted, unless there

Acts [Sec. 10, Rule 39] is a clear showing that the act from
which the civil liability might arise did
8. Judgment upon not exist, the judgment shall make a
confession finding on the civil liability of the
accused in favor of the offended party.
9. Judgment upon
compromise, or on Under these precepts, an oral
consent or agreement order of dismissal does not bind the
judge.
10. Clarificatory
judgment It is not necessary that the judge
who prepared and the signed the
11. Judgment nunc pro decision is the same one who heard the
tunc case, so long as the trial was terminated
and the records of the case are complete.
 48

A judgment rendered by a judge is one placing in proper form on

after the disapproval of his appointment the record the judgment that
by the Commission on Appointments, or has been previously rendered,
when he had already retired, is null and to make it speak the truth and
void. But if such judgment was rendered thereby show what the judicial
before the appointment is disapproved, action really was. It can not be
or his retirement is final [within his used to correct judicial errors,
terminal leave of absence before the such as to render a judgment
effectivity of his retirement], the which the court ought to have
judgment is valid. If it be mailed, the rendered in place of the one it
date of promulgation is the time it was did erroneously render or to
received by the Clerk of Court, not the supply non-action by the court
date of mailing thereof. however erroneous the
judgment may have been.
A judgment of acquittal can not
at the same time, impose a reprimand on These judgments, except
the accused, as this is in effect a public as those provided, may be the
censure. What the judge can do is merely subject of the proper mode of
to state its disapproval of the acts of the appeal or review of judgments.
accused. These judgments gain finality if
and when:
If the accused is a government
employee, and he is acquitted, the court a. the appeal was
may order his reinstatement, but not for resolved and no further
the payment of the emoluments withheld appeal was interposed
during his suspension. This is within the by the interested party;
authority of the proper civil or
administrative forum, which is entirely b. the aggrieved party did
separate and distinct from the criminal not interpose any
case. appeal or no appeal
was perfected within
the period to perfect an
appeal; or motion for
reconsideration or new
trial within the
reglamentary period
provided by the rules;

c. the appellate court

[Supreme Court] ruled
with finality on the
appeal;

d. the losing party

A judgment nunc pro tunc
on the other hand, is rendered
to enter or record such
judgment as had been formerly
rendered but has not been
entered as thus rendered. Its
only function is to record some
act of the court which was done
at a former time, but which was
not then recorded, in order to
make the record speak the
truth, without any changes in
substance or in any material
respect. It is not therefore a
rendition of a new judgment and
the ascertainment and
determination of new rights, but
complied, partially or
wholly, complied with
the judgment of the
court.
In these instances, the court
original or appellate - must
make the entry of judgment in
its books. This is required, as it
is from this entry that the five
(5) year period for the execution
of the decision is reckoned from,
or the action to revive the
judgment.
 49

Where several accused are tried NOTE:

under a single information, only
one judgment must be rendered
but there should be separate
findings of fact and law for each
of the accused.
In Criminal cases, the judgment is
deemed final under the following
circumstances:
a. after the lapse of the period for
perfecting an appeal and no appeal
was perfected;
Nolle Prosequi is an order of
dismissal. If a case is dismissed on a
nolle prosequi, BEFORE
ARRAIGMENT, the same may be
refilled in a Court other than where the
original case was filed without violating
the rule that the court first acquiring the
jurisdiction will retain the case until
terminated because the jurisdiction of
the court in the original case terminated
upon the nolle prosequi. [Honorato Galvez
v. CA, 237 SCRA 685]

b. when the appeal has been denied

with finality by the proper
appellate court;

c. when the sentence had been

partially or totally satisfied or
served;

d. the accused has expressly waived

in writing his right to appeal;

e. the accused had applied for

probation;

The judgment is promulgated in

the following manner:

1. by reading the same in the

presence of the accused and by any
judge of the court in which it was
rendered;

2. If the conviction is for a light

offense, it shall be pronounced in the
presence of the counsel of
representative, not necessarily of the
accused;

3. In sentencing in absentia, the

decision may be promulgated in his
absence as long as there was due
notice to him, to his counsel, or to
his bondsman; the promulgation
shall consist of the
 50

4. recording of the judgment in

the criminal docket and a copy
furnished to the accused or counsel;
If it is for conviction, the court must
also order the arrest of the accused,
who has the right to appeal the
conviction within 15-days from
notice to him or to his counsel;

5. If the judge is absent on the

date set for promulgation, it may be
promulgated by the Clerk of Court;
If the accused is confined or detained
in another province or city, the
judgment may be promulgated by the
Executive Judge of the Regional
Trial Court having jurisdiction of the
court that rendered the decision. The
court promulgating the judgment
shall have the authority to accept the
notice of appeal and to approve the
bail bond pending appeal.
 51

96. Abe L. Ardo is a businessman dealing with chicken manure which he hauls from La
Trinidad, Benguet, to the fishponds of Bani, Pangasinan. As he deems it a waste to pay for
a driver to do the hauling, he does the delivery himself. He makes four to five trips daily, at
all hours of the day.

During one of his trips on 13 August 2000, a Friday, at about 1:30 AM, his truck plowed into a
group of men drinking by the side of the road and into the house of Lash E. Ngo, a fishpond
caretaker along Bonuan Blue Beach, Dagupan City. Among the men drinking, Ino M.
Antayo, Soc K. Ona, and Ayo K. Ona suffered fractured bones on different parts of their
bodies. The house of Lash, which is about one and a half meter from the side of the road,
was a total wreck. The damage was estimated at P947.18. Abe of course was not spared of
injuries, as his clavicle was fractured in multiple places by the steering wheel, and his
spleen ruptured, not to mention numerous cuts on his face and neck caused by glass shards.

Questions that need to be answered

What is the plate number of the truck, and why? [ he He . ..

joke lang]

1. Should you be asked to file a separate civil case, what

should it be?
A case of torts, for the negligence of Abe, and of course, the damages suffered by
those who suffered physical injuries, and the properties damaged.

2. How is/are this/these initiated? Briefly enumerate the

initiatory procedures.
Before the arraignment, the complainants, thru their counsel, must reserve the
civil aspect of the case. Thereafter, they must file a Civil Complaint with the Court of
Proper jurisdiction, stating all the jurisdictional facts. It must be verified, and of course,
contain the certificate of non-forum shopping.

3. What must be alleged by the private offended party/ies in

their initiatory pleading/s?
The circumstances that led to the damages suffered, the actual, moral, exemplary
damages suffered with preponderance of evidence attached.

continuing facts:

When the case was already filed in the proper court and
after the service of the summons, but before the
presentation of evidence for the complainants, Abe L. Ardo
suffered a complication on his injured spleen. He decided
to die without the courtesy of waking up at the Benguet
General Hospital.

State the rule/s on this circumstance. Or, what is the next step on the
part of the complainants?

Since this is a death of the defendant, then his counsel should manifest this in
court and inform the plaintiffs thereof. Then, he must also submit the list of the heirs,
the administrator, or executor of Abe in Court. The complainants should therefore pray
that the defendant be substituted by any or all of the above, pursuant to Rule 3.
 52

2. (a) What are the instances when a judgment gains

finality? [ 6 pts ]

A Judgment gains finality when:

1. the aggrieved party did not interpose any appeal, or no appeal was
perfected within the period to perfect an appeal; or he did not interpose a
motion for reconsideration or new trial within the reglamentary period
provided by the rules;
2. the appeal was resolved and no further appeal was interposed by the
interested party.
3. the appellate court [Supreme Court] ruled with finality on the appeal.
4. The losing party complied, partially or wholly, with the judgment of the
court.

(b) Despite having attained the state of being

executory, what are the instances when a judgment can
still be amended? [ 5 pts ]

a. By ordinary appeal;
b. By Petition for Certiorari under Rule 45;
c. By Petition for Review to the Court of Appeals

7.What do you call that privilege established by the

positive laws which prescribe the cases wherein it may be
taken, the procedure to be followed, and the courts a quo
and those by which it shall be proceeded with and
decided? [ 5 pts ]

This is the privilege to appeal any order or judgment.

8. Enumerate the modes of reviewing a final and unappealable

judgment. [ 6 pts ]

Judgments which had become final and unappealable, can be impeached, annulled
or otherwise set aside through:
a. Direct action, through Certiorari under Rule 65;
b. Collateral attack, if the decision or order should be void on its face or its
nullity should appear from its own recitals;
c. Petition for Relief from Judgment under Rule 38, on the ground of FAME;
d. Independent Civil Action to Annul Judgment, where the defect is not
apparent on its face or from the recitals contained in the judgment, to be
filed in the next higher court.

9. Briefly explain the following concepts:

a. Discretionary Execution of Judgment [ 5 pts ]- are the kind

of execution which may be stayed by the filing of a sufficient supersedeas bond
filed by the party against whom it is directed, conditioned upon the performance
of the judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part.
b. Double Revival of Judgment [ 5 pts ]- a judgment may be
enforced by motion within a period of five years from entry, and by another
within the next five years thereafter.

-=O0O=-
 53

1. Define Auxillary Remedies.

These are writs and processes available during the pendency of an action which
may be resorted to by a litigant to preserve and protect certain rights and interests
therein pending rendition, and for purposes of the ultimate effects, of a final
judgment in a case. These are provisional because they constitute temporary
measures availed of during the pendency of the action, and are ancillary because
they are mere incidents in and are dependent upon the result of the main actionl

1.a. What are these remedies, and state the function of

each.

d. Preliminary attachment a writ issued upon order of the court where an

order is pending to be levied upon the property or properties of the
defendant therein, the same to be held thereafter by the sheriff as security
for the satisfaction of whatever judgment might be secured in said action
by the attaching creditor against the defendant.
e. Preliminary Injunction an order granted at any stage of an action prior
to the final judgment or final order, requiring a person, or a court, or
agency to refrain from a particular act [Preliminary Prohibitory
Injunction] or to require the performance of a particular act [Preliminary
Mandatory Injunction].
f. Receivership when the court appoints a person after the initiation of the
action, during the pendency of the action, during appeal and even after the
finality of the judgment, to take into custody the property subject of the
litigation to prevent its possible destruction or dissipation.
g. Replevin a proceeding by which the owner, or one who has a general or
special interest in the thing taken or detained, seeks to recover possession
thereof, the recovery of damages being only incidental.
h. Support Pendente Lite is the allowance made to the wife or family for
her or their maintenance during the pendency of an action.

3. What is the common name given to the actions covered by

Rules 62 to 71? [ 5 pts ]

These are called special civil actions.

2.a. What action should be filed by a person who has no
claim over a property in his custody or possession, but
the ownership thereof is being claimed by at least two
other persons? State also where such an action should
be filed. [5 pts]

An action for interpleader, to be filed in the court of proper jurisdiction,

depending on the subject matter of the case.

2.b. If a person is apprehensive that his rights under

an existing contract might be affected by a newly
enacted law, what remedy is given to him by the Rules?
Where can he file such a Petition? [5 pts]

A Petition for Declaratory Relief.

2.c. What petition is to be filed when a party litigant

would want a judgment to be annulled or modified but
there is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law? State also the
valid grounds for this Petition to prosper. [5 pts]
 54

Petition for Certiorari under Rule 65, when the board, officer or tribunal
exercising judicial or quasi-judicial function had acted without or in excess of its
jurisdiction, or with grave abuse of discretion.

2.d. What petition should be filed if a person wishes that

another be ordered to cease and desist from further
proceedings in another action and there is no appeal or
any plain, speedy and adequate remedy in the
ordinary course of law? State also the valid grounds
for this Petition to prosper. [ 5 pts ]

A Petition for Prohibition under Rule 65, when any corporation, officer, or person
tribunal or board exercising judicial or quasi-judicial or ministerial function had
proceeded without or in excess of its jurisdiction, or, with grave abuse of
discretion.

2.e. What petition should be filed if a person wishes that

the respondent be ordered to do an act which is
required to be done to protect his rights, and there is
no appeal or any plain, speedy and adequate remedy in
the ordinary course of law? State also the valid
grounds for this Petition to prosper. [ 5 pts ]

Petition for Mandamus under Rule 65, when any corporation, officer or person or
tribunal or board, exercising judicial, quasi-judicial or ministerial function
unlawfully neglects to perform an act which the law specifically enjoins as a duty
resulting from office, trust or station, OR, Unlawfully excludes another from the
use and enjoyment of a right or office to which such other is entitled.

3. While the Labor Arbiter was conducting a mandatory

conference between the parties, the representative of the
respondent took offense on the accusations of the
complainant. The representative therefore began to angrily
utter offensive words against the complainant. When he was
cautioned by the Arbiter about this, he too cursed the
Arbiter right then and there then walked out of the
courtroom.

State the proper charge that can be filed, where

should it be filed, and by whom. [ 5 pts ]

The proper case to be filed is DIRECT CONTEMPT, before the same tribunal,
by the labor arbiter.

4. Distinguish Summary Judgment from Judgment on the

Pleadings. [ 5 pts ]

1. There is an issue tendered in the answer, but it is not
genuine or real issue as may be shown by affidavits and
depositions that there is no real issue and that the party is
entitled to judgment as a matter of right.
2. The opposing party is given 10 days
notice of hearing
3. should a judgment be rendered, it may
terminate only a portion of the case.
4. The plaintiff or the defendant may file it.
Defendants answer does not tender an
issue
The movant must give a 3-day notice of
hearing
The entire case may be terminated based
thereon.
Only the plaintiff or the defendant as far as the
counterclaim, cross-claim, or 3 rd party claim is concerned,
may file this.
 55

5. Distinguish DEMURRER TO EVIDENCE as contemplated under

Criminal Procedure from that in Civil Procedure as to
appeal only. [ 3 pts ]

The grant of a demurrer to evidence in Criminal Procedure is not appealable; that

in a civil case, should the grant be reversed on appeal, the defendant shall no
longer be allowed to present its evidence.

6. (a) What are the instances when a judgment gains

finality? [ 6 pts ]

A Judgment gains finality when:

5. the aggrieved party did not interpose any appeal, or no appeal was
perfected within the period to perfect an appeal; or he did not interpose a
motion for reconsideration or new trial within the reglamentary period
provided by the rules;
6. the appeal was resolved and no further appeal was interposed by the
interested party.
7. the appellate court [Supreme Court] ruled with finality on the appeal.
8. The losing party complied, partially or wholly, with the judgment of the
court.

(b) Despite having attained the state of being

executory, what are the instances when a judgment can
still be amended? [ 5 pts ]
a. By ordinary appeal;
b. By Petition for Certiorari under Rule 45;
c. By Petition for Review to the Court of Appeals

7.What do you call that privilege established by the

positive laws which prescribe the cases wherein it may be
taken, the procedure to be followed, and the courts a quo
and those by which it shall be proceeded with and
decided? [ 5 pts ]

This is the privilege to appeal any order or judgment.

8. Enumerate the modes of reviewing a final and unappealable

judgment. [ 6 pts ]

Judgments which had become final and unappealable, can be impeached, annulled
or otherwise set aside through:
e. Direct action, through Certiorari under Rule 65;
f. Collateral attack, if the decision or order should be void on its face or its
nullity should appear from its own recitals;
g. Petition for Relief from Judgment under Rule 38, on the ground of FAME;
h. Independent Civil Action to Annul Judgment, where the defect is not
apparent on its face or from the recitals contained in the judgment, to be
filed in the next higher court.
9. Briefly explain the following concepts:

c. Discretionary Execution of Judgment [ 5 pts ]- are the kind

of execution which may be stayed by the filing of a sufficient supersedeas bond
filed by the party against whom it is directed, conditioned upon the performance
of the judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part.
 56

d. Double Revival of Judgment [ 5 pts ]- a judgment may be

enforced by motion within a period of five years from entry, and by another
within the next five years thereafter.
-=o0o=-

1. What is a counterclaim?
A counterclaim is any claim which a defending party may have against an opposing party.
It is in itself a claim or a cause of action interposed or pleaded in an answer.

1.a. Classify & state the nature of each counterclaim.

i. Compulsory counterclaim is one which, being recognized by the regular
courts of justice, arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing partys claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
Such counterclaim must be within the jurisdiction of the court both as to the amount and
the nature thereof, except that in an original action before Regional Trial Court, the
counterclaim may be considered compulsory regardless of the amount.

ii. Permissive Counterclaim is one when it does not arise out of nor is it
necessarily connected with the subject matter of the opposing partys claim. It is not
barred even if not set-up or pleaded in the answer.

1.b. Distinguish Permissive Counterclaim from Compulsory Counterclaim.

Permissive compulsory
Requires the filing and /or docket fees No filing or docket fees required
May be filed separately When not pleaded or set-up, barred forever
Requires a Certificate of Non-Forum Shopping no Certificate of Non-forum Shopping required

1.c. Can the MTC recognize a counterclaim beyond its jurisdiction?

Since the amount is beyond the MTCs jurisdiction, it need not be set up, if set up it I
done only by way of defense. The counterclaim must be within the jurisdiction of the
Court both as to amount and as to nature. If the court entertains such counterclaim only to
the extent of its jurisdictional amount, the rest shall be considered merely as an
affirmative defense.

1.d. Can a counterclaim below the jurisdiction of the RTC be entertained?

The RTC may entertain the counterclaim beyond its jurisdiction provided the same arises
out of the same transaction.

2. What is intervention?
Intervention is a legal remedy whereby a person is permitted to become a party in
a case by (1) joining the plaintiff; or (2) the defendant; or (3) by asserting his right against
both plaintiff and defendant, considering that he has a legal interest in the subject matter
of the action, or that (4) he is going to be adversely affected by the disposition of the
property in custody of the court.

2.a. What are the requisites for intervention by a non-party in action pending
in court?
The requisites are:
1. legal interest in the matter in controversy
2. legal interest in the success of either of the parties;
3. legal interest against both;
 57

4. so situated as to be adversely affected by a distribution or other disposition

of property in the custody of the court or of an office thereof;
5. intervention will not unduly delay or prejudice the adjudication of rights
of the original parties; and,
6. intervenors right may not be fully protected in a separate proceeding.

2.b. What is meant by an interest in the subject?

It means a direct interest in the cause of action pleaded and which would put the
intervenor in legal position to litigate a fact alleged in the complaint, without the
establishment of which plaintiff could not recover.

2.c. At what stage of the proceeding may intervention be permitted?

The motion to intervene may be filed any time before rendition of judgment by the trial
court. It can be done even after trial if it is necessary to protect some interest which
cannot be protected in separate proceeding or to preserve intervenors right. But
intervention can no longer be allowed in a case already terminated by final judgment.

3. What is the meaning of demurrer to evidence?

Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff
had rested his case on the ground of insufficiency of evidence.

3.a. What is the purpose and objective of demurrer to evidence?

It is an aid or instrument for the expeditious termination of an action similar to a

motion to dismiss, which the court or tribunal may either grant or deny.

3.b. In case of demurrer to evidence, is the trial court obligated to make

findings of facts in his order or resolution?

If it give due course to the motion or the demurrer, the trial court must have a finding
of facts because the dismissal is final and in the nature of adjudication on the merits.
If the motion is denied, there is no necessity of finding of fact because the order is
merely interlocutory.

4. What is the effect if a motion for judgment on the pleadings is being

filed?

The plaintiff, by moving for judgment on the pleadings, is not deemed to have
admitted irrelevant allegations in the defendants answer.

The movant for judgment on the pleadings must be considered to have waived or
renounced his claim for damages and to have consented to such judgment as is
warranted by the material allegations of his complaint that are admitted by the
defendant.

4.a. Gloria brought an action against her husband Mike for annulment of
their marriage on the ground of sexual infidelity. Mike filed his answer to
the complaint admitting all the allegations therein contained. May Gloria
move for a judgment on the pleadings? Explain.

Actions for declaration of nullity or annulment of marriage or for legal separation are
not subject of judgment on the pleadings because the material facts alleged in the
complaint must always be proven.
 58

5. What are the constitutional requirements relative to rendition of

decision?

The Constitution provides that, no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based. No
petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without stating the legal basis thereof.

5.a. What are the essential requisites of a valid judgment?

The requisites are:

e. The court must have jurisdiction over the subject matter;
f. The court must have jurisdiction over the person of the defendant or of the res;
g. The court must have jurisdiction over the issues; and,
h. The court must render the judgment after the hearing.

5.b. Distinguish Res Judicata from Stare Decisis

Res judicata State decisis

Prohibits and bars re-litigation of 2 cases of Provides for the uniformity of judicial decisions,
identical action, relief and parties past and present involving identical issues, facts,
or questions of law, but not necessarily the same
parties involved.

6. What action should be filed by a person who has no claim over a property in
his custody or possession, but the ownership thereof is being claimed by at least
two other persons? State also where such an action should be filed.

An action for interpleader, to be filed in the court of proper jurisdiction, depending on the
subject matter of the case.

7. If a person is apprehensive that his rights under an existing contract might be

affected by a newly enacted law, what remedy is given to him by the Rules?
A Petition for Declaratory Relief.

8. What petition is to be filed when a party litigant would want a judgment to be

annulled or modified but there is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law? State also the valid grounds for this
Petition to prosper.

Petition for Certiorari under Rule 65, when the board, officer or tribunal exercising
judicial or quasi-judicial function had acted without or in excess of its jurisdiction, or
with grave abuse of discretion.

9. What petition should be filed if a person wishes that another be ordered to cease
and desist from further proceedings in another action and there is no appeal or
any plain, speedy and adequate remedy in the ordinary course of law? State also
the valid grounds for this Petition to prosper.

A Petition for Prohibition under Rule 65, when any corporation, officer, or person
tribunal or board exercising judicial or quasi-judicial or ministerial function had
proceeded without or in excess of its jurisdiction, or, with grave abuse of discretion.

10. What petition should be filed if a person wishes that the respondent be ordered
to do an act which is required to be done to protect his rights, and there is no
appeal or any plain, speedy and adequate remedy in the ordinary course of law?
State also the valid grounds for this Petition to prosper.
 59

Petition for Mandamus under Rule 65, when any corporation, officer or person or tribunal
or board, exercising judicial, quasi-judicial or ministerial function unlawfully neglects to
perform an act which the law specifically enjoins as a duty resulting from office, trust or
station, OR, Unlawfully excludes another from the use and enjoyment of a right or office
to which such other is entitled.

11. While the Labor Arbiter was conducting a mandatory conference between the
parties, the representative of the respondent took offense on the accusations of
the complainant. The representative therefore began to angrily utter offensive
words against the complainant. When he was cautioned by the Arbiter about
this, he too cursed the Arbiter right then and there then walked out of the
courtroom.
State the proper charge that can be filed, where should it be filed, and by whom.

The proper case to be filed is DIRECT CONTEMPT, before the same tribunal, by the labor
arbiter.

12. What is an Affidavit of Merit?

An affidavit of merit is one which states: (1) the nature or character of the fraud, accident,
mistake, or excusable negligence on which the motion for new trial is based, and, (2) the
facts constituting the movants good and substantial defenses or valid causes of action;
and the evidence which he intends to present if his motion is granted.

13. What is meant by double revival of judgment?

Judgment prescribes in 10 years time, however, under Sec. 5, Rule 39, judgment can be
extended to 15 years because the revived judgment can again be revived, if the revival
action is done within 10 years from finality of the revived judgment.

14. Are violations, disobedience and refusal to obey orders and resolutions
of the court contemptuous?

Yes, if valid and must be clearly contrary or prohibited by the order of the Court.
However, the court has no authority to punish for disobedience of an order issued without
authority. There can no be contempt for disobedience of an order issued without authority
or which is void for want of jurisdiction.

15. Distinguish criminal contempt from civil contempt.

Criminal
Purpose Primarily for punishment
Governing Laws Criminal Procedure Rules
Instituting Parties Generally, it is the State
Civil
Primarily compensatory or
remedial
Rules on Civil Procedure apply
The aggrieved party, his
successors, or someone who has
pecuniary interest in the rights
to be protected.

16. What is the purpose of the supersedeas bond?

The purpose of the supersedeas bond is to answer for the rents, damages and costs
accruing down to the judgment of the inferior court appealed from, the amount of which
is to be determined before the judgment of the said court. The requirement of the
supersedeas bond is mandatory.
 60

17. In ejectment cases, what should be done if the defendant raises the issue
of ownership?

If and when the defense of ownership is raised as a defense, and the issue of possession
cannot be resolved without deciding the issue of ownership, the same shall be resolved
only to determine the issue of possession.

18. Distinguish eminent domain from taxation.

Eminent Domain Taxation

Operates on an individual as owner of property
Just compensation is immediately given
Court action is necessary to enforce it
Property taken is for public purpose
Operates against a community or class of
individuals
Payor of taxes does not immediately derive
benefits other than living in a civilized society
Enforcement may be summary
Burdens or charges are imposed for public
purpose

19. May a writ of attachment be issued ex parte?

Yes. It is a settled rule that a writ of attachment may be ordered or issued even ex parte
provided that there is compliance with Sec. 3, Rule 57 relative to affidavit of the
applicant. The rationale of this is that the non-notification may prevent the debtor to his
hide his properties to defraud his creditors. The summons, complaint and writ of
preliminary attachment issued ex parte must be served contemporaneously, in order that
the court may acquire jurisdiction over the defendant. EXCEPTED from this requirement
of contemporaneous service are as follows:

1. when summons could not be served personally despite diligent effort;

2. defendant is a resident of the Philippines temporarily absent; or,
3. when the action is one in rem or quasi in rem.

I. READ THROUGH THE FOLLOWING. STATE ANY AND ALL THAT IS

EVIDENTIALLY WRONG WITH IT. SHOULD YOU FIND SOMETHING
WRONG, STATE THE MOST PROBABLE CORRECTION THEREON THAT YOU
KNOW OF. [10 points each]

1. During the Cross-Examination of the Complainant in a Robbery case, aggravated

with nocturnity, he stated that he recognized the accused due to the fact that when the
accused ran out of his house, he followed then looked out of the window of the first
floor of his house. He then saw the accused passing under a street light which is
directly in front of his house, about six meters away, across the road. He described the
street light post as about ten feet tall, with the big and very bright bulb about two feet
from the top of the pole.

The Counsel for the accused then manifested that when he

went to see the site, he is definite that the said street
light is about 20 meters away from the house of the
complainant, the pole is about 16 feet high, and the bulb
thereon is only about 100 watts strong. To prove his
point, he produced a photograph of the area, showing the
victims house with the street light on the background.
The judge, motu propio, stated that he is taking judicial
notice of that fact as he passes through the same street
whenever he goes to church every Sunday.
 61

ANSWERS:
[a] Real evidence has been changed to "object evidence" in Sec. 2, Rule 130. This is an entirely
new section. Objects as evidence are those addressed directly to the senses of the Court, without the
intervention of a witness, not only to sight but also to sense of hearing, taste, smell or touch. These are also
referred to as AUTOPTIC PROFERENCE.

The motion for the production of real evidence is addressed to the discretion of the trial judge. It is
therefore required that the object to be offered in evidence must have such a relation to the fact in
dispute as to afford reasonable grounds of belief respecting it, i.e., the relevancy of the object to the
fact in issue. These may consist of the following:

a. Ocular inspection where both parties must be present, together with the court in the
conduct of the same;
[b] The photograph should have been testified to by the one who
took it;
[c] Manifestation at that stage is improper. He should have
presented his witnesses on these matters.
[d] The judicial notice is improper, as this is not among those that
are mandatory or discretionary.

2. The plaintiff testified that the defendants monetary obligation is specifically stated in
the contract he had executed. He presented the notarized contract and testified thereto.
When it was offered after he rested his case, the defendant objected to the admission
thereof on the ground that it does not have the requisite documentary stamp as per
mandatory requirement of the Notarial Law and the law on contracts. The judge
upheld the objection and denied admission of said document. A motion for
reconsideration was promptly denied. This was followed by a Motion for the
Inhibition of the presiding judge on the ground of unreasonable bias in favor of the
defendant. This was also denied and the case was deemed submitted for resolution. In
the subsequent Decision, the contract was considered as null and void, but the
contract between the plaintiff and the defendant was upheld as a valid verbal contract
considering that there was partial fulfillment of the terms and conditions stipulated
therein.

The monetary award covered only the principal amount

involved, less partial payments, but without the
penalties, surcharges, interests, damages, attorneys
fees and acceleration clause that were embodied in the
written contract.

ANSWERS:
(a) The requirement of a documentary stamp is not a requirement for
the validity of the contract. The stamp can be attached at any time,
as there is no period stated in the Notarial law therefor.
(b)The contract is valid and enforceable, thus all the stipulations and
terms thereof should have been applied.
(c) What should have be filed is a Tender of Excluded Evidence, with
Defendants Formal Offer of Evidence, or on appeal.
(d)The appeal may also be under Rule 65, considering that there is
obvious grave abuse of discretion and ignorance of the law on the
part of the judge.

3. When the case for breach of contract of carriage was pending against Abe L. Ardo, he
was killed in a motor vehicle accident. His counsel therefore filed a manifestation with
the court stating such fact, notifying the court and the plaintiff that he shall forthwith no
longer be the lawyer on record, and furnishing them with the list of the heirs of the
deceased defendant. The court issued notice to the heirs, advising them to make their
appearance and to secure the services of a new counsel. The heirs, represented by the
surviving spouse, filed a Motion to suspend proceedings as she had just filed a Probate
Proceeding, and the allowance thereof as well as the issuance of letters testamentary to
 62

the named administrator therein shall still be litigated and acted upon by the probate
court. Until such time that the administrator shall be properly appointed, qualified and
shall give bond, no representative party can be substituted for the defendant in the breach
of contract case. The judge agreed, which prompted the plaintiff to file an appeal on
certiorari, alleging grave abuse of discretion and gross ignorance of the rules.
ANSWER: (a) Assuming that the case was filed under the new rules on
civil procedure, the case should have continued until the rendition of
judgment;
(b) It was under the old rules, while there is a provision on the
substitution of parties, the court should not have waited until the
termination of the probate proceedings.

4. In a prosecution for rape, the defense presented a health worker of the POPCOM who testified
that about two days prior to the alleged rape, her younger sister referred a classmate to her. This
classmate of her sister was asking for the safest device to prevent conception. She identified the
victim as the one who was referred to her. The prosecution objected on the ground that it is a
privileged communication. The judge overruled the objection, and ordered that the testimony
should remain. The defense then presented the classmate of the accused, who testified that on the
day following the alleged rape, she noticed that the he was unusually excited, enthusiastic and
seemingly in euphoria. After insistent prodding, the accused finally relented and stated that he and
his girlfriend had carnal knowledge of each other the night before. Again the prosecution objected
on the ground that it is self serving. The judge this time sustained the objection. The accused was
subsequently convicted of seduction, considering that the complainant was 14 years old.

ANSWERS: (a) The witness was not a doctor, thus the rule on privileged
communication does not apply;
(b) The testimony of the 2nd witness is hearsay;

5 [a]. A barangay captain was charged of libel. He filed a Motion to Quash the
Information on the ground that the allegedly libelous statement is covered by the
qualified privileged under Article 354 of the Revised Penal Code [private communication
made by any person to another in the performance of any legal, moral or social duty].
The Motion was denied.

ANSWER: The RPC Provision is not a ground for the quashal of an

information. It is only a matter of defense.[Marites Vitug v. CA,
232SCRA 460]

5 [b]. After the prosecution had rested, he died. The counsel for the accused filed a
manifestation to such an effect and furnished the complainant as well as the court the list
of the heirs of the accused in accordance with Sec. 17, Rule 3 of the Rules in relation to
Sec. 1, Rule 87 of the same Rules. The court therefore dismissed the criminal and civil
actions without prejudice to the right of the offended party to institute a separate action
against the executor or administrator of the deceased.

ANSWER: Where the accused charged of libel dies, after the

prosecution rested its case, the Court should dismiss the criminal and
civil actions without prejudice to the right of the offended party to
institute a separate action against the executor or administrator of the
deceased. However, the Court may proceed with the civil action
for damages provided that the appropriate substitution under
Rule 3, Sec. 17 of the Rules in relation to Sec. 1, Rule 87 of the
Rules is followed. [Lydia Villegas v. CA, 271 SCRA 148]

6. Procupio was convicted of the crime of rape of a girl of 10 years old under the Heinous Crime
Law and was sentenced to death by lethal injection. The judge justified this sentence on the
following: Procupio was entrusted with the care and the rearing of the child by the latters parents
who had to travel to Mindanao on family concerns; the length of absence of the parents can not be
definitely ascertained; the child lived with the accused for a period of four months; it was during this
 63

period that he committed the crime three times. He was therefore a guardian of the child,
analogous to being a parent to the child during that time.

ANSWER: The word guardian in Article 335, RPC, as amended by RA

7659, refers to a legal or judicial guardian since it is consanguineous
relation or the solemnity of judicial pronouncement which impresses
upon the guardian the lofty purpose of his office and normally deters
him from violating its objectives. Hence, if the Accused is merely the
caretaker of the victim, the death penalty should not be imposed on
the accused. [People v. David Garcia, G.R. no. 120093, 06 November
1997] Reference is however made to R.A.8353 Articles 266-A [when
the offended party is under 12 years of age x x x even though none of
the circumstances mentioned above be present] and Art. 266-B [Rape
under paragrpah 1 of the next preceding article shall be punished by
reclusion perpetua.]

7. The Bookkeeper of a rural bank was dismissed for alleged fraudulent transactions involving P1.3
M. The appropriate criminal cases were filed against her in the Regional Trial Court in the province.
Meanwhile, the bookkeeper filed a case of Illegal Dismissal against the bank. In her Position Paper
as well as in the evidence she submitted in the labor case, she stated that she and her husband
obtained a loan of P53,689.33 from the bank, through five persons who are their relatives and
compadres, who borrowed an average of P10,000.00 each, with the husband as the co-maker to
all. These loans were partially paid through her salary deduction at the bank, and the period of
payment had long lapsed.

In the criminal case, the bank presented the TSN of the

labor case containing the above-stated admissions,
testified to by the bank president. The counsel for the
accused also marked other portions of the same TSN as
exhibit for the accused which he believed would exculpate
the accused from the charges. When the accused was
presented the prosecution did not deal with these TSN
during its cross examination. The prosecution however
objected to these exhibits when formally offered on the
ground that these are prosecution exhibits, and that the
accused should present its own evidence or witness to
authenticate the same. The accused was convicted of the
crime charged, based primarily on the contents of these
TSN. On the other hand, the labor case was decided in
favor of the complainant, finding illegal dismissal.

ANSWER: (a) The Transcript of Stenographic Notes should have been used
to impeach the accused therein, during her cross-examination, following
the proper procedure of impeachment of the accused.

(b) ADMISSIBILITY OF WHOLE DOCUMENT

Sec. 17, Rule 132. When a part of an act, declaration,

conversation, writing or record, is given in evidence by one
party, the whole of the same subject may be inquired into by
the other, and when a detached act, declaration, conversation,
writing or record is given in evidence, any other act,
declaration, conversation, writing or record necessary to its
understanding may also be given in evidence.

Should the counsel for the adverse party wish to make the same or a
portion thereof only as their exhibit, he must first present the same as their
exhibit, and move that the same be considered as their exhibit also. This is a
mandatory requirement. Otherwise, he can not make use of the same
document or any portion thereof as their evidence.
 64

8. May Katie K. Asse is working her way through college

as a waitress in a restaurant. Due to the meager salary
she gets, she was unable to fully pay her rents for some
months, totalling P8,690.00. When the landlady thus was
insistent that she pay the whole arrearage in rentals or
leave the premises, she begged for reconsideration. The
landlady therefore asked her to clean the house, the yard
and to wash the laundry of the whole family three times a
week for a period of six months, to work off the debt.
This was formally reduced into writing in the Barangay
Conciliation conducted by the Punong Barangay. After the
second month, they further agreed that whenever May can
not pay her rent, she is to continue such work in
exchange for her use of the room she is staying in.
During the Semestral break, May went to her home
province purposely to get rice and other supplies from
her parents. When she arrived four days later, she found
all her belongings outside her room which was already
occupied by another boarder who had paid in advance for
the whole semester. In the succeeding complaint filed by
May for her eviction and the loss and damages to her
belongings, she gave testimony as to the subsequent
agreement. This was objected to as an inadmissible parole
evidence. It was sustained.

ANSWER: One of the exceptions to the Parole Evidence Rule is when the
contract or agreement is one with an illegal subject. The agreement forged in
the Barangay Level is actually that of involuntary servitude. It is also contrary
to the provision of the Constitution and our laws whereby no one should be
deprived of liberty due to debt. The testimony on the subsequent
arrangement should therefore be taken into consideration, considering that
the agreement in the barangay level is null and void ab initio.

This rule admits of some exceptions and is not applicable in the following cases where ORAL
EVIDENCE IS ADMISSIBLE:

a] when what appears in the document is not a valid and binding agreement either because of:

i] want of consideration;
ii] want of valid consent due to lack of capacity, fraud, or duress;
iii] illegality of subject matter; and,
iv] illegality of the consideration.

9. A Muslim, Mama Taitau, is prosecuted for the violation

of a city ordinance prohibiting peddling on the city
streets without permit. He was assigned a counsel de
oficio who submitted his counter-affidavit stating that
he was only watching over the goods of a fellow Muslim
who went to answer the call of nature at the time of his
arrest, and the affidavit of the said Muslim friend who
supported the counter-affidavit of Mama. When the
Decision was rendered convicting him of the offense based
on the affidavits of the barangay tanod and the policeman
who arrested him, he appealed the decision on the ground
that these affidavits were never testified to nor even
formally marked and offered in evidence by the
prosecution. He opined that since these evidence were
never offered, these should not be given any
consideration as evidence at all.

ANSWER: It had also been held that a Formal Offer of Evidence is not
 65

requisite when the case did not undergo a full blown trial, or any trial
proper, for that matter. Thus, cases submitted for resolution
(a) based on the pleadings,
(b) upon motion for a summary judgment,
in cases falling under the Rules on Summary Procedure, and
(d) in most quasi-judicial and administrative bodies, do not generally require the
submission of a formal offer of evidence.

10. Ober S. Teying failed to pay his rentals for 8 months, as of January 6, 1998.
Whenever the owner, Hoper T. Unista, demands for the rents, he always was able to
persuade the latter that his salary as a band member was not paid by the club where he
plays. Finally, on February 2, 1998, he was nowhere to be found, with all his things gone
from the room he was renting. The next time that he was heard of was on 18 March 1999,
when it was announced over the radio that he was found stabbed to death along Marcos
Highway. His former landlord therefore went to the funeral parlor where he met the
parents of Ober. When he informed them about the unpaid rentals, they too begged off
and even challenged him to file a case. The landlord filed his claim for the unpaid rentals
in a settlement of estate proceeding which he initiated. He had the personal properties of
Ober consisting of a 350 cc. motorcycle, a Sony component, a 21 Sony color TV, a Sony
VHS, and his Washburn Electric guitar with a Marshall amplifier. The court upheld the
landlords claims and adjudicated these personal belongings to him.

ANSWER:
The cause of action of the landlord, which could have been
Unlawful Detainer, should have been filed within one-year from the
time Ober has surreptitiously left the premises. As it is, this cause of
action, with the claim for unpaid rentals, had already lapsed under the
stature of limitations. Therefore, the same can no longer be claimed
under the statute of non-claims.

[If you feel like answering, do so.] BONUS QUESTION [2 pts. only ]

In the prosecution of a bailable offense, the presentation of evidence for the

prosecution was continually re-scheduled in the period of 18 months due to the non-
appearance of the public prosecutor or its witnesses. The accused therefore filed a
Petition for the Issuance of a Writ of Habeas Corpus, as he now wants to be released from
detention. Would you grant the motion? Why or Why not.

ANSWER: In the old case of People v. Conde, 47 Phil., this was upheld
as proper. In the 1987 Constitution, this right was also provided for.
Then, in the latest law, the Speedy Trial Act, this was also provided for.
Although in the latter case, it can be attained through a motion to such
an effect.

-=o0o=-

The law has nothing to do with justice. It is merely a

method of dispute resolution
Michael Crichton, Disclosure