ATTY. SALVADOR N. MOYA II, LL.M.

Managing Partner, Moya Ablola Ebarle Law Firm

Lifetime Member, IBP, Bulacan Chapter
Board of Director, Phil. Trial Lawyers, Inc. & Vanguard of the Phil. Constitution Inc.
Advance, Pre-Bar, Pre-week Reviewer and Mock Bar Examiner in
Remedial Law, UP Law Center
Mock Bar Examiner in Remedial Law, UP College of Law
Pre-Bar Reviewer in Remedial Law and in Chair’s Cases (Criminal Law), Legal EDGE
Review Center
Bar Reviewer in Remedial Law and Criminal Law, Villasis Law Center
Bar Reviewer in Remedial Law, Powerhaus Review Center
Bar Reviewer in Criminal Law, Recoletos Law Center (2018)
Bar Lecturer, Forecasts in Remedial Law, Magnificus Juris Reviews and Seminars Inc.
Bar Reviewer in Remedial Law, University of Cebu
Special Bar Lecturer in Remedial Law, Review Center & Development Services, Manila
Member, Expert Committee in Criminal and Remedial Law, UP Law Center
MCLE Lecturer on Trial Advocacy
Author, The 2000 Rules of Criminal Procedure, Notes and Cases (2017); Bar Notes and
Cases in Criminal Law (2018); The Revised Guidelines on Continuous Trial in Criminal Cases
in Relation to The 2000 Rules of Criminal Procedure (2018); Bar Notes and Cases in
Remedial Law (2018); Pre-Week Bar Notes and Cases in Remedial Law (2018); Notes and
Cases in Remedial Law, Volume I (Civil Procedure), 2019 Ed.; Notes and Cases in Remedial
Law, Volume II (Special Proceedings), 2019 Ed.; Notes and Cases in Remedial Law, Volume
III (Criminal Procedure), 2019 Ed.; Cross-Examination as a Science and Not an Art
(The Contrarian System)
Professor, Tarlac State University School of Law, in Remedial Law Review, Evidence,
Criminal Procedure, Election Law
Professor, New Era University, College of Law, in Civil Procedure, Criminal Procedure,
Evidence and Remedial Law Review
Professor, San Sebastian College-Recoletos, Institute of Law, in Criminal Law Review,
Remedial Law Review and Civil Procedure
Professor, University of the East, College of Law, in Remedial Law Review
Professor, Bulacan State University, College of Law, in Remedial Law Review,
Evidence and Criminal Procedure
2018 BAR QUESTION I
I

Danielle, a Filipino citizen and permanent

resident of Milan, Italy, filed with the Regional
Trial Court (RTC) of Davao City, where she owns
a rest house, a complaint for ejectment against
Dan, a resident of Barangay Daliao, Davao City.
Danielle's property, which is located in Digos City,
Davao del Sur, has an assessed value of PhP
25,000. Appended to the complaint was
Danielle's certification on non-forum shopping
executed in Davao City duly notarized by Atty.
Dane Danoza, a notary public. 3
x-x-x

(b) Was the action properly instituted

before the RTC of Davao City?
(2.5%)

4
BAR NOTES AND CASES IN REMEDIAL LAW
(p. 359 & pp. 19-20) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: No.

SECTION 3. Summary procedure.—

Except in cases covered by the agricultural
tenancy laws or when the law otherwise
expressly provides, all actions for forcible
entry and unlawful detainer, irrespective of
the amount of damages or unpaid rentals
sought to be recovered, shall be governed
by the summary procedure hereunder
provided. (n) [Section 3, Rule 70, Rules of Court]. 5
Q. What is the jurisdiction of the Regional
Trial Court (RTC) in civil cases? What is
the jurisdiction of the Metropolitan Trial
Court (MeTC), Municipal Trial Court
(MTC), Municipal Circuit Trial Court
(MCTC) in civil cases?

A. Pursuant to Section 19 of BP 129 as

amended by RA 7691, the RTCs shall, in
civil cases, exercise exclusive original
jurisdiction:
6
x-x-x
(2) In all civil actions which involve the title to, or
possession of, real property, or any interest
therein, where the assessed value of the
property involved exceeds twenty thousand
pesos (₱20,000.00) or for civil actions in Metro
Manila, where such value exceeds fifty
thousand pesos (₱50,000.00) except actions
for forcible entry into and unlawful detainer
of lands or buildings, original jurisdiction over
which is conferred upon the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts; (Cabrera vs. Francisco, 704
SCRA 103, 28 August 2013.) 7
x-x-x

(c) Should the complaint be verified or

is the certification sufficient? (2.5%)

8
BAR NOTES AND CASES IN REMEDIAL LAW
(p. 627 & 76) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: Sec. 3(b), Rules on Summary

Procedure
II.
Civil Cases

Sec. 3. Pleadings.—
x-x-x
B. Verifications. — All pleadings shall be
verified. 9
Q. Is the non-verification of a pleading
jurisdictional in character?

A. No. The verification of a pleading is a

formal and not a jurisdictional
requirement. It is intended to assure that
the allegations in a pleading are true and
correct. As such, the court may order the
correction of unverified pleadings, or it
may act on them and waive strict
compliance with the rules. (Bacolor vs. VL
Makabali Memorial Hospital, Inc., supra.) 10
2018 BAR QUESTION II

II

Dendenees Inc. and David, both

stockholders owning collectively 25% of
Darwinkle Inc., filed an action before the RTC
of Makati to compel its Board of Directors
(BOD) to hold the annual stockholders‘
meeting (ASM) on June 21, 2017, as required
by Darwinkle Inc's By-Laws, with prayer for
preliminary mandatory injunction to use as
record date April 30, 2017. 11
 The complaint alleged, among others, that the
refusal to call the ASM on June 21, 2017 was rooted
in the plan of the BOD to allow Databank Inc. (which
would have owned 50% of Darwinkle Inc. after July
15, 2017) to participate in the ASM to effectively
dilute the complainants' shareholdings and ease
them out of the BOD. Dendenees Inc. and David
paid the amount of PhP 7,565 as filing fees based on
the assessment of the Clerk of Court. The BOD filed
a motion to dismiss on the ground of lack of
jurisdiction. They averred that the filing fees should
have been based on the actual value of the shares of
Dendenees Inc. and David, which were collectively
worth PhP 450 million. 12
 If you were the Judge, will you grant the
motion to dismiss? (5%)

13
BAR NOTES AND CASES IN REMEDIAL LAW
(p. 24 & 258) BY ATTY. S. N. MOYA II, LL.M.

ANSWER:
Q. How is an action ascertained as one
capable or not of pecuniary estimation?
Which court has the jurisdiction to try the
case?

A. The Supreme Court, in ascertaining if an

action is capable or not of pecuniary
estimation, restated in Ungria vs. Court of
Appeals the criterion laid down in Singson
vs. Isabela Sawmill, viz: 14
In determining whether an action is one the
subject matter of which is not capable of
pecuniary estimation, the Supreme Court has
adopted the criterion of first ascertaining the
nature of the principal action or remedy sought. If
it is primarily for the recovery of a sum of money,
the claim is considered capable of pecuniary
estimation, and whether jurisdiction is in the
Municipal Courts or in the Courts of First Instance
(now Regional Trial Court) would depend on the
amount of the claim.
15
However, where the basic issue is something
other than the right to recover a sum of money,
where the money claim is purely incidental to, or a
consequence of, the principal relief sought, the
Supreme Court has considered such actions as
cases where the subject of the litigation may not
be estimated in terms of money, and are
cognizable exclusively by Courts of First Instance
(now Regional Trial Courts). (Cabrera vs.
Francisco supra.)
16
Q. Distinguish prohibitory from mandatory
injunction?

A. Prohibitory injunction requires a party to

refrain from doing a particular act, whereas,
mandatory injunction, which commands a
party to perform a positive act to correct a
wrong in the past.
A writ of preliminary mandatory injunction,
however, is more cautiously regarded because
it commands the performance of an act. (Sy
vs. Autobus Transport Systems, Inc., 686
SCRA 707, 3 December 2012.) 17
2018 BAR QUESTION V
V.
Dorton Inc. (Dorton) sued Debra
Commodities Inc. (Debra), Daniel, and Debbie in
the RTC of Manila for recovery of sum of money.
The complaint alleged that, on October 14, 2017,
Debra obtained a loan from Dorton in the amount
of PhP 10 million with interest of 9% per annum.
The loan was evidenced by a promissory note
(PN) payable on demand signed by Daniel and
Debbie, the principal stockholders of Debra, who
also executed a surety agreement binding
themselves as sureties. 18
 Copies of both the PN and the surety
agreement were attached to the complaint.
Dorton further alleged that it made a final
demand on March 1, 2018 for Debra and the
sureties to pay, but the demand was not heeded.

Debra, Daniel, and Debbie filed their

answer, and raised the affirmative defense that,
while the PN and the surety agreement
appeared to exist, Daniel and Debbie were
uncertain whether the signatures on the
documents were theirs. 19
 The PN and the surety agreement were
pre-marked during pre-trial, identified but not
authenticated during trial, and formally offered.

Can the RTC of Manila consider the PN

and the surety agreement in rendering its
decision? (5%)

20
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 546) BY ATTY. S. N. MOYA II, LL.M.

ANSWER:

Q. What is the consequence if the evidence is

not formally offered?

A. In Heirs of Pedro Pasag vs. Parocha the

Supreme Court held that failure to make a
formal offer within a considerable period of
time shall be deemed a waiver to submit it.
Consequently, any evidence that has not been
offered shall be excluded and rejected. (People
vs. Villanueva, 629 SCRA 720, 1 September 2010.) 21
2018 BAR QUESTION VI

VI

Daribell Inc. (Daribell) filed a complaint for

sum of money and damages against spouses
Dake and Donna Demapilis for unpaid
purchases of construction materials in the sum
of PhP 250,000. In their answer, spouses
Demapilis admitted the purchases from
Daribell, but alleged that they could not
remember the exact amount since no copies of
the documents were attached to the complaint.
22
They nevertheless claimed that they made
previous payments in the amounts of PhP
110,000 and PhP 20,000 and that they were
willing to pay the balance of their indebtedness
after account verification. In a written
manifestation, spouses Demapilis stated that,
in order to buy peace, they were willing to pay
the sum of PhP 250,000, but without interests
and costs. Subsequently, Daribell filed a
motion for partial summary judgment.
23
Thereafter, Daribell filed an amended
complaint, alleging that the total purchases of
construction materials were PhP 280,000 and
only PhP 20,000 had been paid. Daribell also
served upon the spouses Demapilis a request
for admission asking them to admit to the
genuineness of the statement of accounts,
delivery receipts and invoices, as well as to the
value of the principal obligation and the
amount paid as stated in the amended
complaint.
24
 Daribell thereafter amended the complaint
anew. The amendment modified the period
covered and confirmed the partial payment of
PhP 110,000 but alleged that this payment was
applied to the spouses‘ other existing
obligations. Daribell however reiterated that the
principal amount remained unchanged.

25
x-x-x

(b) Can the amendment of the

complaint be allowed if it
substantially alters the cause of
action? (2.5%)

26
 BAR NOTES AND CASES IN REMEDIAL LAW
(pp. 97-98) BY ATTY. S. N. MOYA II, LL.M.

ANSWER:

No. because it is considered as a

supplemental pleading under Section 6, Rule 10,
ROC and not an amendment under Sections 1
and 2 of the same Rule. Thus:

27
 A supplemental pleading states the
transactions, occurrences or events which took
place since the time the pleading sought to be
supplemented was filed. A supplemental
pleading is meant to supply deficiencies in aid
of the original pleading and not to dispense
with or substitute the latter. It does not
supersede the original, but assumes that the
original pleading is to stand. (Loy, Jr. vs. San
Miguel Corporation Employees Union-Philippine
Transport and General Workers Organization
(SMCEU-PTGWO), 605 SCRA 212, 24 November 2009.)
28
(c) Can the facts subject of an
unanswered request for admission
be the basis of a summary
judgment? (2.5%)

29
 BAR NOTES AND CASES IN REMEDIAL LAW
(pp. 138-139) BY ATTY. S. N. MOYA II, LL.M.

ANSWER:

Q. When can there be a summary judgment?

A. The Rules of Court allows the rendition of a

summary judgment if the pleadings, supporting
affidavits, depositions and admissions on file,
show that, except as to the amount of
damages, there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law. 30
There can be no summary judgment where
questions of fact are in issue or where material
allegations of the pleadings are in dispute.
(Loy, Jr. vs. San Miguel Corporation
Employees Union-Philippine Transport and
General Workers Organization [SMCEU-
PTGWO], 605 SCRA 212, 24 November
2009.)

31
 When the pleadings on file show that there
are no genuine issues of facts to be tried, the
Rules of Court allows a party to obtain
immediate relief by way of summary judgment.
That is, when the facts are not in dispute, the
court is allowed to decide the case summarily by
applying the law to the material facts.
Conversely, where the pleadings tender a
genuine issue, summary judgment is not proper.
(Ferrer vs. Diaz, 619 SCRA 226, 23 April
2010.)
32
2018 BAR QUESTION VII
VII

Dory Enterprises Inc. (Dory) leased to

Digna Corporation (Digna) a parcel of land
located in Diliman, Quezon City. During the term
of the lease, Digna was informed by DBS
Banking Corporation (DBS) that it had acquired
the leased property from the former owner Dory,
and required Digna to pay the rentals directly to
it. Digna promptly informed Dory of DBS‘ claim
of ownership. In response, Dory insisted on its
right to collect rent on the leased property. 33
 Due to conflicting claims of Dory and DBS
over the rental payments, Digna filed a complaint
for interpleader in the RTC of Manila. Digna
prayed that it be allowed to consign in court the
succeeding monthly rentals, and that Dory and
DBS be required to litigate their conflicting claims.
It later appeared that an action for nullification of a
dacion en pago was filed by Dory against DBS in
the RTC of Quezon City. In said case, Dory raised
the issue as to which of the two (2) corporations
had a better right to the rental payments. Dory
argued that, to avoid conflicting decisions, the
interpleader case must be dismissed. 34
 Does the action for nullification of the
dacion en pago bar the filing of the
interpleader case? (2.5%)

35
BAR NOTES AND CASES IN REMEDIAL LAW
(p. 77) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: Yes.

Q. What are the elements of forum

shopping?

A. To constitute forum shopping, the following

elements must be present:

(1) identity of the parties or, at least, of

the parties who represent the same
interest in both actions; 36
(2) identity of the rights asserted and
relief prayed for, as the latter is
founded on the same set of facts; and

(3) identity of the two preceding

particulars, such that any judgment
rendered in the other action will amount
to res judicata in the action under
consideration or will constitute litis
pendentia. (Commissioner of Customs vs.
Pilipinas Shell Petroleum Corporation (PSPC),
791 SCRA 82, 20 April 2016; Asia United Bank
vs. Goodland Company, Inc., 645 SCRA 205, 9
March 2011.) 37
2018 BAR QUESTION VIII

VIII

Spouses Dondon and Donna Dumdum

owned a residential lot in Dapitan City. Doy
Dogan bought said lot and took possession
thereof with the promise to pay the purchase
price of PhP 2 million within a period of six (6)
months. After receiving only PhP 500,000,
spouses Dumdum executed the deed of
absolute sale and transferred the title to Doy
Dogan. The balance was not paid at all.
38
Spouses Dumdum, through counsel, sent a
demand letter to Doy Dogan for him to pay the
balance of PhP 1.5 million plus interest of
PhP150,000. Doy Dogan responded in a letter
by saying that "while the remaining balance is
admitted, the interest charged is excessive."
There being no payment, spouses Dumdum
filed with the RTC of Dapitan City a complaint
for reconveyance with damages against Doy
Dogan.
39
 In his answer, Doy Dogan raised, by way of
affirmative defense, that the purchase price had
been fully paid and for this reason the complaint
should have been dismissed. Spouses Dumdum
then filed a motion for judgment on the pleadings
which was granted by the RTC of Dapitan City.
The Court awarded PhP1.5 million actual
damages representing the balance of the
purchase price, PhP 200,000 as moral damages,
PhP 200,000 as exemplary damages, PhP
90,000 as interest, PhP 50,000 as attorney's
fees, and PhP 5,000 as cost of suit. 40
 Was it proper for the RTC of Dapitan
City to grant the motion for judgment on
the pleadings? (2.5%)

41
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 140) BY ATTY. S. N. MOYA II, LL.M.
ANSWER:
In a proper case for judgment on the pleadings,
there is no ostensible issue at all because of the
failure of the defending party’s answer to raise an
issue. Thus, if an answer does in fact specifically
deny the material averments of the complaint and/or
asserts affirmative defenses (allegations of new
matter which, while admitting the material allegations
of the complaint expressly or impliedly, would
nevertheless prevent or bar recovery by the plaintiff),
a judgment on the pleadings would naturally be
improper. (Adolfo vs. Adolfo, 753 SCRA 580, 18 March 2015).
42
2018 BAR QUESTION X
X
In a buy-bust operation, 30 kilos of shabu
were seized from Dave and Daryll. They were
arrested and placed on inquest before
Prosecutor Danilo Doon who ordered their
continued detention. Thereafter, the information
for the sale and distribution of shabu was filed
in court. When arraigned, Dave and Daryll
pleaded not guilty to the charge. During pre-
trial, counsel for both of the accused raised, for
the first time, the illegality of the arrest. The
case proceeded to trial. 43
 After trial, the court scheduled the
promulgation of judgment with notice to both
the accused and their counsel, Atty. Dimayuga.
During the promulgation, only Dave and Atty.
Dimayuga were present. Both the accused
were convicted of the crime charged.

(a) Was the challenge to the validity of

the arrest timely raised? (2.5%)
44
(a) Was the challenge to the validity of
the arrest timely raised? (2.5%)

45
BAR NOTES AND CASES IN REMEDIAL LAW
(p. 458) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: NO.

Jurisprudence is settled that “any

irregularity attending the arrest of an accused
should be timely raised in a motion to quash the
Information at any time before arraignment,
failing in which, he is deemed to have
waived his right to question the regularity of
his arrest. (People vs. Cunanan, 753 SCRA
275, 16 March 2015.)
46
(b) What is the remedy available to
Daryll, if any, to be able to file an
appeal? (2.5%)

47
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 470) BY ATTY. S. N. MOYA II, LL.M.
ANSWER: [Section 6, Rule 120, Rules of Court]
x-x-x
If the judgment is for conviction and the failure of
the accused to appear was without justifiable cause, he
shall lose the remedies available in these rules against
the judgment and the court shall order his arrest.
Within fifteen (15) days from promulgation of judgment,
however, the accused may surrender and file a motion
for leave of court to avail of these remedies. He shall
state the reasons for his absence at the scheduled
promulgation and if he proves that his absence was for
a justifiable cause, he shall be allowed to avail of said
remedies within fifteen (15) days from notice. (6a) 48
2018 BAR QUESTION XI
XI
In 2007, Court of Appeals Justice (CA Justice)
Dread Dong (J. Dong) was appointed to the Supreme
Court (Court) as Associate Justice. Immediately after
the appointment was announced, several groups
questioned his qualification to the position on the
ground that he was not a natural born Filipino citizen. In
the same year, the Court issued an Order enjoining him
from accepting the appointment or assuming the
position and discharging the functions of his office until
he is able to successfully complete all the necessary
steps to show that he is a natural born citizen of the
Philippines. However, he continued to exercise his
functions as CA Justice. 49
 Since the qualification of a natural born
citizen applies as well to CA Justices, Atty.
Dacio, a practicing lawyer, asked the Office of
the Solicitor General (OSG), through a verified
request, to initiate a quo warranto proceeding
against J. Dong in the latter'scapacity as
incumbent CA Justice. The OSG refused to
initiate the action on the ground that the issue
of J. Dong'scitizenship was still being litigated
in another case.
50
 When the OSG refused to initiate a quo
warranto proceeding, Atty. Dacio filed a petition
for certiorari against the OSG and certiorari
and prohibition against J. Dong. The petition
for certiorari against the OSG alleged that the
OSG committed grave abuse of discretion
when it deferred the filing of a quo warranto
proceeding against J. Dong, while the petition
for certiorari and prohibition against J, J. Dong
asked the Court to order him to cease and
desist from further exercising his powers,
duties and responsibilities as CA Justice. 51
In both instances, Atty. Dacio relied on the fact
that, at the lime of J. Dong'sappointment as CA
Justice, his birth certificate indicated that he
was a Chinese citizen and his bar records
showed that he was a naturalized Filipino
citizen.

52
(a) May the OSG be compelled, in an
action for certiorari, to initiate a
quo warranto proceeding against
J. Dong? (2.5%)

53
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 286) BY ATTY. S. N. MOYA II, LL.M.
ANSWER:
It is to be stressed that in every special civil
action under Rule 65, a party seeking the writ
whether for certiorari, prohibition or mandamus,
must be able to show that his or her resort to such
extraordinary remedy is justified by the absence of
an appeal or any plain, speedy and adequate
remedy in the ordinary course of law. He must allege
in his petition and establish facts to show that any
other existing remedy is not speedy or adequate
xxx. (Candelaria vs. Regional Trial Court, Branch 42, City of
San Fernando, Pampanga, 730 SCRA 1, 14 July 2014). 54
2018 BAR QUESTION XIII
XIII
Denny is on trial for homicide. The
prosecution calls Danilo, a police officer, who
interviewed the victim, Drew, shortly after the
shooting. Danilo's testimony is being offered by
the prosecution for purposes of proving that (i)
Drew is now dead; (ii) while in the emergency
room, Drew was posting his medical condition
on Facebook and was "liking" the posts of his
Facebook friends; (iii) Drew asked the nurse for
water but was refused because he was
bleeding, which subsequently angered Drew; 55
and (iv) that before dying, Drew signed a
statement in which he identified Denny as
the shooter.

Is the proposed testimony of Danilo

admissible? (2.5%)
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 535) BY ATTY. S. N. MOYA II, LL.M.
ANSWER:

Q. What is the exception to the non-

application of the hearsay rule? Explain.

A. While the testimony of a witness regarding a

statement made by another person given for
the purpose of establishing the truth of the
fact asserted in the statement is clearly
hearsay evidence, it is otherwise if the
purpose of placing the statement on the
record is merely to establish the fact that57
the statement, or the tenor of such
statement, was made. Regardless of the
truth or falsity of a statement, when what is
relevant is the fact that such statement has
been made, the hearsay rule does not apply
and the statement may be shown. (Espineli
vs. People, 725 SCRA 365, 9 June 2014.)

58
2018 BAR QUESTION XV
XV

Atty. Dalmacio, the Director of the National

Bureau of Investigation, applied for a search
warrant before the Executive Judge of RTC
Manila. He alleged in his application that a certain
alias Django was keeping about 10 kilos of shabu
in a wooden cabinet located at Dillian'sStore in
Paseo de Sta. Rosa, Laguna. The Executive
Judge of Manila personally examined Atty.
Dalmacio and his witnesses and thereafter issued
the search warrant particularly describing the
place to be searched and the items to be seized. 59
(a) Can the search warrant issued by
the Executive Judge of Manila be
enforced in Laguna? (2.5%)

60
 BAR NOTES AND CASES IN REMEDIAL LAW
(pp. 490-491) BY ATTY. S. N. MOYA II, LL.M.
ANSWER:
Yes. Generally, the search warrant application
must be filed with the court which has territorial
jurisdiction over the place where the offense was
alleged to be committed. This, however, is not an
iron-clad rule. For compelling reasons, which must
be expressly stated in the application, a search
warrant application may be filed in a court other
than the one having jurisdiction over the place
where the purported offense was committed and
where the search warrant shall be enforced. (Petron
Gasul LPG Dealers Association vs. Lao, 797 SCRA 65, 18
July 2016.) 61
(b) Can the legal concept of "venue is
jurisdictional" be validly raised in
applications for search warrants?
(2.5%)

62
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 491) BY ATTY. S. N. MOYA II, LL.M.
ANSWER:
In Malaloan vs. Court of Appeals (232 SCRA
249, 6 May 1994). the Court held that the requisites,
procedure and purpose for the issuance of a search
warrant are totally different from those of a criminal
action. It stressed that the application for and
issuance of a search warrant is not a criminal
action but a judicial process, more particularly, a
special criminal process designed to respond to
an incident in the main case, if one has been
instituted, or in anticipation thereof. (Petron Gasul
LPG Dealers Association vs. Lao, supra.) 63
2018 BAR QUESTION XVI
XVI

Danjo, a stay-in gardener at the Dy family

home in Quezon City, applied for overseas
employment in Riyadh as a flower arranger. After
he left for abroad, Dino Dy, head of the family,
discovered that all his wristwatches were
missing. Dino followed Danjo's lnstagram
account and in one instance saw Danjo wearing
his Rolex watch. He filed a complaint for qualified
theft against Danjo with the Office of the
Prosecutor (OP), Quezon City.
64
The subpoena with the affidavit-complaint was
served on Denden, Danjo'swife, at their house.
No counter-affidavit was filed by Danjo who
continued to work in Riyadh. After conducting a
preliminary investigation, the OP found
probable cause against Danjo and
subsequently filed the information for qualified
theft before the RTC of Quezon City. The court
likewise found probable cause and issued in
2016 a warrant for Danjo's arrest.
65
 Danjo was repatriated to the Philippines in
2018. While Danjo was lurking outside the Dys‘
house, which was only about 100 meters away
from the police station, SP01 Dody recognized
Danjo. Realizing that the police station had a
copy of Danjo's warrant of arrest, SP01 Dody
immediately pursued and arrested Danjo.

66
(a) Was the warrant of arrest issued against
Danjo who was not in the Philippines
valid? (2.5%)

(b) Can the warrant of arrest be served on

Danjo upon his return? (2.5%)

67
BAR NOTES AND CASES IN REMEDIAL LAW
(p. 419, 420) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: Yes. Section 3(d)(f), Rule 112,

Rules of Court

x-x-x

(d) If the respondent cannot be

subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10)
day period, the investigating officer shall
resolve the complaint based on the evidence
presented by the complainant.
68
 x-x-x

(f) Within ten (10) days after the

investigation, the investigating officer shall
determine whether or not there is sufficient
ground to hold the respondent for trial. (3a)

69
2018 BAR QUESTION XVII
XVII

Don Deles, a contractor, was sued together

with Mayor Dante Dungo and Congressman Dal
Dilim for malversation of public funds before the
Office of the Ombudsman. Danny Din, a material
witness of the complainant Diego Domingo, was
hired as an engineer by a construction company
in Qatar, and had to depart in two (2) months. To
perpetuate Danny Din's testimony, Diego
Domingo applied for his conditional examination
before the Sandiganbayan.
70
 Should the application for conditional
examination of Danny Din be granted?
(2.5%)

71
 BAR NOTES AND CASES IN REMEDIAL LAW
(pp. 130-131) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: Section 1, Rule 23, Rules of Court

SECTION 1. Depositions pending action, when
may be taken.— By leave of court after jurisdiction has
been obtained over any defendant or over property
which is the subject of the action, without such leave
after an answer has been served, the testimony of any
person, whether a party or not, may be taken, at the
instance of any party, by deposition upon oral
examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena
as provided in Rule 21. Depositions shall be taken only
in accordance with these Rules. The deposition of a
person confined in prison may be taken only by leave of
court on such terms as the court prescribes. (1a, R24) 72
Q. What are the instances when defendant
can take depositions?

A. The two instances are as follows:

(1) After the court has acquired jurisdiction

over the defendant or the property
subject of the action; and

(2) After an answer has been served.

Both instances presuppose that the court has

already acquired jurisdiction over the defendant.
(Disini vs. Sandiganbayan, 623 SCRA 354, 5 July 2010.) 73
THE 2000 RULES OF CRIMINAL PROCEDURE
NOTES AND CASES (p. 119) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: [Section 15, Rule 119, Rules of Court]

In Vda. De Manguerra vs. Risos, the

Supreme Court reiterated the basic rule that all
witnesses shall give their testimonies at the trial of
the case in the presence of the judge. This is
especially true in criminal cases in order that the
accused may be afforded the opportunity to cross-
examine the witnesses pursuant to his constitutional
right under Section 14(2), Article III of the
Constitution to confront the witnesses face to face.
74
It also gives the parties and their counsel the chance
to propound such questions as they deem material
and necessary to support their position or to test the
credibility of said witnesses. Lastly, this rule enables
the judge to observe the witnesses’ demeanor.

This rule, however, is not absolute. As exceptions,

Rules 23 to 28 of the Rules of Court provide for
the different modes of discovery that may be
resorted to by a party to an action. These rules are
adopted either to perpetuate the testimonies of
witnesses or as modes of discovery. 75
However, Rule 23 allows the taking of
depositions in civil cases, either upon oral
examination or written interrogatories, before
any judge, notary public or person authorized to
administer oaths at any time or place within the
Philippines; or before any Philippine consular
official, commissioned officer or person
authorized to administer oaths in a foreign state
or country, with no additional requirement except
reasonable notice in writing to the other party.
76
But for purposes of taking the deposition in criminal
cases, more particularly of a prosecution witness
who would forseeably be unavailable for trial, the
testimonial examination should be made before the
court, or at least before the judge, where the case
is pending as required by the clear mandate of
Section 15, Rule 119 of the Revised Rules of
Criminal Procedure.

77
2018 BAR QUESTION XVIII
XVIII

The Republic of the Philippines (Republic)

filed a complaint with the Sandiganbayan in
connection with the sequestered assets and
properties of Demo Companies Inc. (Demo) and
impleaded its officers and directors. Since the
complaint did not include Demo as defendant, the
Sandiganbayan issued a Resolution where it
ordered Demo to be impleaded. Thereafter, the
Republic filed an amended complaint naming
Demo as additional defendant, which amendment
was later admitted. 78
 Demo filed a motion for bill of particulars
for the Republic to clarify certain matters in its
amended complaint. The Sandiganbayan
immediately granted the motion. Upon
submission of the bill of particulars by the
Republic, Demo filed a motion to dismiss
arguing that the answers in the bill of
particulars were indefinite and deficient
responses to the question of what the alleged
illegally acquired funds or properties of Demo
were. The Sandiganbayan dismissed the case.
79
(a) Was the Sandiganbayan correct in
dismissing the case? (2.5%)

(b) What can the defendant, in a civil

case, do in the event that his motion
for bill of particulars is denied? (2.5%)

80
THE 2000 RULES OF CRIMINAL PROCEDURE
NOTES AND CASES (pp. 464-465) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: [Section 9, Rule 116, Rules of Court]

In Virata vs. Sandiganbayan, the Supreme

Court expounded on the purpose of a bill of
particulars. According to the Court, it is the office or
function, as well as the object or purpose, of a bill of
particulars to amplify or limit a pleading, specify
more minutely and particularly a claim or defense
set up and pleaded in general terms, give
information, not contained in the pleading, to the
opposite party and the court as to the precise
nature, character, scope, and extent of the cause of 81
action or defense relied on by the pleader, and
apprise the opposite party of the case which he has to
meet, to the end that the proof at the trial may be
limited to the matters specified, and in order that
surprise at, and needless preparation for, the trial may
be avoided, and that the opposite party may be aided
in framing his answering pleading and preparing for
trial. It has also been stated that it is the function or
purpose of a bill of particulars to define, clarify,
particularize, and limit or circumscribe the issues in
the case, to expedite the trial, and assist the court.
82
A general function or purpose of a bill of
particulars is to prevent injustice or do justice in
the case when that cannot be accomplished
without the aid of such a bill.
Thus, its purpose is to enable an accused:
(1) to know the theory of the government’s case;
to prepare his defense and to avoid surprise at
the trial; (2) to plead his acquittal or conviction in
bar of another prosecution for the same offense;
and (3) to compel the prosecution to observe
certain limitations in offering evidence. 83
 In criminal proceedings, the rule on bill of
particulars requires the information to describe the
offense with sufficient particularity to apprise the
accused of the crime charged with and to enable the
court to pronounce judgment. The particularity must be
such that persons of ordinary intelligence may
immediately know what the Information means.
It is not the function of the bill to furnish the
accused with the evidence of the prosecution. Thus, the
prosecutor shall not be required to include in the bill of
particulars matters of evidence relating to how the
people intend to prove the elements of the offense
charged or how the people intend to prove any item of
factual information included in the bill of particulars.84
2018 BAR QUESTION XIX
XIX

Drylvik, a German national, married Dara, a

Filipina, in Dusseldorf, Germany. When the marriage
collapsed, Dara filed a petition for declaration of
nullity of marriage before the RTC of Manila. Drylvik,
on the other hand, was able to obtain a divorce
decree from the German Family Court. The decree,
in essence, states:
The marriage of the Parties contracted on xxx
before the Civil Registrar of Dusseldorf is hereby
dissolved. The parental custody of the children Diktor
and Daus is granted to the father. 85
 Drylvik filed a motion to dismiss in the RTC
of Manila on the ground that the court no longer
had jurisdiction over the matter as a decree of
divorce had already been promulgated
dissolving his marriage to Dara. Dara objected,
saying that while she was not challenging the
divorce decree, the case in the RTC still had to
proceed for the purpose of determining the
issue of the children's custody. Drylvik counters
that the issue had been disposed of in the
divorce decree, thus constituting res judicata.
86
(a) Should Drylvik's motion to
dismiss be granted? (2.5%)

87
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 567, 570) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: [Sections 6 & 14, A.M. No. 03-04-04-SC,

otherwise known as Rule on Custody
of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors]

Section 6. Motion to Dismiss.─ A motion to

dismiss the petition is not allowed except on the
ground of lack of jurisdiction over the subject matter
or over the parties. Any other ground that might
warrant the dismissal of the petition may be raised
as an affirmative defense in the answer. 88
 Section 14. Factors to consider in
determining custody.─ In awarding custody,
the court shall consider the best interests of the
minor and shall give paramount consideration to
his material and moral welfare. The best interests
of the minor refer to the totality of the
circumstances and conditions as are most
congenial to the survival, protection, and feelings
of security of the minor encouraging to his
physical, psychological and emotional
development. It also means the least detrimental
available alternative for safeguarding the growth
and development of the minor. 89
The court shall also consider the following:

(a) Any extrajudicial agreement which the

parties may have bound themselves to
comply with respecting the rights of the
minor to maintain direct contact with the
noncustodial parent on a regular basis,
except when there is an existing threat
or danger of physical, mental, sexual or
emotional violence which endangers the
safety and best interests of the minor;
90
(b) The desire and ability of one parent to
foster an open and loving relationship
between the minor and the other parent;
(c) The health, safety and welfare of the
minor;
(d) Any history of child or spousal abuse by
the person seeking custody or who has
had any filial relationship with the minor,
including anyone courting the parent;

(e) The nature and frequency of contact with

both parents; 91
(f) Habitual use of alcohol, dangerous drugs
or regulated substances;

(g) Marital misconduct;

(h) The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development
and growth of the minor; and

(i) The preference of the minor over seven

years of age and of sufficient
discernment, unless the parent chosen is
unfit. 92
2018 BAR QUESTION XXI
XXI
The municipality of Danae, Cebu was a
quiet and peaceful town until a group of miners
from Denmark visited the area and discovered
that it was rich in nickel. In partnership with the
municipal mayor, the Danish miners had to
flatten 10 hectares of forest land by cutting all
the trees before starting their mining operations.
The local DENR, together with the Samahan
Laban sa Sumisira sa Kalikasan, filed a petition
for writ of kalikasan against the municipal mayor
and the Danish miners in the RTC of Cebu. 93
(a) Is the petition within the jurisdiction
of the RTC of Cebu? (2.5%)

94
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 667) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: [Section 2, Rule 8, A.M. No. 09-6-8-

SC, otherwise known as Rules of
Procedure for Environmental Cases]

Section 2. Where to file the petition.─

The petition shall be filed with the Regional Trial
Court exercising jurisdiction over the territory
where the actionable neglect or omission
occurred or with the Court of Appeals or the
Supreme Court.
95
(b) What is the Precautionary Principle?
(2.5%)

96
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 384) BY ATTY. S. N. MOYA II, LL.M.
ANSWER: [Section 1, Rule 20 (Precautionary
Principle), A.M. No. 09-6-8-SC, otherwise
known as Rules of Procedure for
Environmental Cases]

Section 1. Applicability.─ When there is a lack

of full scientific certainty in establishing a causal link
between human activity and environmental effect, the
court shall apply the precautionary principle in
resolving the case before it.
The constitutional right of the people to a
balanced and healthful ecology shall be given the
benefit of the doubt. 97
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 690) BY ATTY. S. N. MOYA II, LL.M.

ANSWER: [Section 4(f), Rule 1, Annotation to the

Rules of Procedure for Environmental
Cases]
x-x-x
(f) Precautionary principle states that when
human activities may lead to threats of
serious and irreversible damage to the
environment that is scientifically plausible
but uncertain, actions shall be taken to
avoid or diminish that threat.
x-x-x 98
 BAR NOTES AND CASES IN REMEDIAL LAW
(p. 384) BY ATTY. S. N. MOYA II, LL.M.
ANSWER: [Rules on Writ of Kalikasan]
As a special civil action and thus, conceptualized
as an extraordinary remedy, it aims to provide judicial
relief from threatened or actual violation/s of the
constitutional right to a balanced and healthful
ecology of a magnitude or degree of damage that
transcends political and territorial boundaries. It is
intended “to provide a stronger defense for environmental
rights through judicial efforts where institutional
arrangements of enforcement, implementation and
legislation have fallen short” and seeks to address the
potentially exponential nature of large-scale ecological
threats. (Paje vs. Casiño, 749 SCRA 39, 3 February 2015.) 99
 THANK YOU FOR
LISTENING.

HOPEFULLY YOU
LEARNED
SOMETHING....

ATTY. SALVADOR N. MOYA II, LL.M.

100