2014 bar exam Q&A_remedial&labor.pdf

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2014 REMEDIAL BAR EXAM QUESTIONS

I.

Ludong , Balatong , and Labong were charged with murder. After trial, the courtannounced that the case was considered submitted for decision. Subsequently, the

Clerk of Court issued the notices of promulgation of judgment which were duly received.On promulgation day, Ludong and his lawyer appeared. The lawyersof Balatong and Labong appeared but without their clients and failed to satisfactorilyexplain their absence when queried by the court. Thus, the judge ordered the Clerk ofCourt to proceed with the reading of the judgment convicting all the accused. Withrespect to Balatong and Labong , the judge ordered that the judgment be entered in thecriminal docket and copies be furnished their lawyers. The lawyers of Ludong , Balatong ,and Labong filed within the reglementary period a Joint Motion for Reconsideration. Thecourt favorably granted the motion of Ludong downgrading his conviction from murderto homicide but denied the motion as regards Balatong and Labong . (4%)

(A) Was the court correct in taking cognizance of the Joint Motion forReconsideration?

(B) Can Balatong and Labong appeal their conviction in case Ludong accepts hisconviction for homicide?

ANSWERS:(A)

No, the court was not correct in taking cognizance of the Joint Motion forReconsideration insofar as Balatong and Labong were concerned.

Under Section 6 Rule 120, if the judgment was for conviction and the failure ofthe accused to appear was without justifiable cause, he shall lose the remediesavailable under the Rules of Court and the court shall order his arrest. The accused

may regain the remedies only if he surrenders and files a motion for leave to avail of theremedies under the Rules of Court.

Here the failure of Balatong and Labong to appear was without justifiable causeas even their lawyers were not aware of the reason for their absence. Hence they losttheir remedies under the Rules. Since Balatong and Labong did not surrender and file amotion for leave to avail of remedies, it was incorrect for the trial court to takecognizance of the joint motion for reconsideration insofar as Balatong and Labong wereconcerned. The trial court should instead have ordered their arrest. (People v. DeGrano, 5 June 2009, Peralta, J.).

On the other hand, it was correct for the trial court to take cognizance of the joint motion for reconsideration insofar as Ludong was concerned since he and his

lawyer were present during the promulgation.

(B)

No, Balatong and Labong cannot appeal their conviction in case Ludong acceptshis conviction for homicide.



Since Balatong and Labong failed to appear during the promulgation of theconviction without justifiable cause, they lost the remedies under the Rules of Courtincluding the remedy of an appeal.

II.

McJolly is a trouble-maker of sorts, always getting into brushes with the law. Inone incident, he drove his Humvee recklessly, hitting a pedicab which sentitsdriver and passengers in different directions. The pedicab driver died, while two (2) ofthe passengers suffered slight physical injuries. Two (2) Informations were then filedagainst McJolly . One, for Reckless Imprudence Resulting in Homicide and Damage toProperty , and two, for Reckless Imprudence Resulting in Slight Physical Injuries . Thelatter case was scheduled for arraignment earlier, on whichoccasion McJolly immediately pleaded guilty. He was meted out the penalty of publiccensure. A month later, the case for reckless imprudence resulting in homicide was alsoset for arraignment. Instead of pleading, McJolly interposed the defense of double

jeopardy. Resolve. (4%)

ANSWER:

The defense of double jeopardy is meritorious and the second information forreckless imprudence resulting in homicide should be quashed on the ground of double

jeopardy.

The Supreme Court has held that reckless imprudence is a single crime andthat its consequences on persons and property are material only to determine thepenalty.

Here there was only one act and crime of reckless imprudence. The death, thephysical injuries, and the damage to the tricycle are only consequences of the samereckless act of McJolly. Hence there was double jeopardy when a second informationarising from the same reckless act was brought against the accused. (Ivler v. Modesto-

San Pedro, 17 November 2010).

III.

While passing by a dark uninhabited part of their barangay , PO2 Asintado observed shadows and heard screams from a distance. PO2 Asintado hidhimself behind the bushes and saw a man beating a woman whom he recognized as hisneighbor, Kulasa . When Kulasa was already in agony, the man stabbed her and she fellon the ground. The man hurriedly left thereafter.

PO2 Asintado immediately went to Kulasa ’s rescue. Kulasa , who was then in astate of hysteria, kept mentioning to PO2 Asintado “Si Rene, gusto akong patayin!

Sinaksak niya ako! ” When PO2 Asintado was about to carry her, Kulasa refused andsaid “Kaya ko. Mababaw lang to. Habulin mo si Rene.”

The following day, Rene learned of Kulasa ’s death and, bothered by hisconscience, surrendered to the authorities with his counsel. As his surrender was

broadcasted all over media, Rene opted to release his statement to the press whichgoes:

“I believe that I am entitled to the presumption of innocence until my guilt isproven beyond reasonable doubt. Although I admit that I performed acts that may take



one’s life away, I hope and pray that justice will be served the right way. God bless usall. (Sgd.) Rene”

The trial court convicted Rene of homicide on the basis of PO2 Asintado ’stestimony, Kulasa’s statements, and Rene ’s statement to the press. On appeal,Rene raises the following errors:

1. The trial court erred in giving weight to PO2 Asintado’s testimony, as thelatter did not have any personal knowledge of the facts in issue, and violated Rene ’sright to due process when it considered Kulasa ’s statements despite lack of opportunityfor her cross-examination.

2. The trial court erred in holding that Rene ’s statement to the press was aconfession which, standing alone, would be sufficient to warrant conviction.Resolve. (4%)

ANSWER:

Rene’ s appeal is denied for lack of merit.

1.

The contention that the trial court erred in giving weight to PO2 Asintado ’stestimony since he did not have personal knowledge of the facts in issue is withoutmerit. The contention in effect challenges Kulasa’s statement for being hearsay.

Under the Rules of Evidence, a statement made immediately subsequent toa startling occurrence is excepted from the hearsay rule as part of the res gestae .

Here Kulasa’s statement was made immediately subsequent to a starlingoccurrence, that is, her stabbing by Rene, and was made in a state of hysteria, showingthat she was under the influence of the startling occurrence. Hence testimony

regarding the statement is excepted from the hearsay rule.

Since Kulasa’s statement is an exception to the hearsay rule, Rene cannotcomplain that his right to due process was violated when the trial court consideredKulasa’s statement despite lack of opportunity to cross-examine her.

There should be no serious question about the admissibility against an accusedof hearsay where this hearsay falls under an exception to the hearsay rule, especiallyhere where the declarant is dead and thus unavailable to testify. (ANTONIO R.BAUTISTA, BASIC EVIDENCE 214-215 [2004 ed.]). In U.S. v. Gil , 13 Phil. 530 (1909),the Supreme Court upheld dying declarations as an exception to the confrontationclause since “such declarations have always been regarded as an exception to thegeneral rule regarding hearsay evidence.”

2.

The argument that the trial court erred in holding that Rene ’s statement to thepress was a confession which, standing alone, would be sufficient to warrant convictionis meritorious.

Firstly, Rene’s statement is not a confession but an admission. A confession isone wherein a person acknowledges his guilt of a crime, which Rene did not do.Secondly, even assuming it is a confession, standing alone it would not be sufficient to



warrant conviction since it is an extrajudicial confession which is not sufficient groundfor conviction unless corroborated by evidence of corpus delicti. (S3 R133).

Nonetheless this was a harmless error since the admission of Rene wascorroborated by the testimony of PO2 Asintado on Kulasa’s statement.

IV.

An order of the court requiring a retroactive re-dating of an order, judgment ordocument filing be entered or recorded in a judgment is: (1%)

(A) pro hac vice (B) non pro tunc (C) confession relicta verificatione (D) nolle prosequi

ANSWER: B (Note: Should be “nunc pro tunc.”).

V.

Landlord , a resident of Quezon City, entered into a lease contract with Tenant , aresident of Marikina City, over a residential house in Las Piñas City. The lease contractprovided, among others, for a monthly rental of P25,000.00, plus ten percent (10%)interest rate in case of non-payment on its due date. Subsequently, Landlord migratedto the United States of America (USA ) but granted in favor of his sister Maria , a specialpower of attorney to manage the property and file and defend suits over the propertyrented out to Tenant . Tenant failed to pay the rentals due for five (5) months. Maria asks

your legal advice on how she can expeditiously collect from Tenant the unpaid rentalsplus interests due. (6%)

(A) What judicial remedy would you recommend to Maria ?(B) Where is the proper venue of the judicial remedy which you recommended?(C) If Maria insists on filing an ejectment suit against Tenant, when do youreckon the one (1)-year period within which to file the action?

ANSWERS:

(A)

The judicial remedy that I would recommend to Maria is to file a collection suitfor the P125,000 rentals in arrears and the P12,500 interest due. The remedy would beexpeditious since it would be governed by the Rules on Summary Procedure as theamount of the demand, excluding interest, does not exceed P200,000.

(B)

The proper venue of the collection suit would be in Marikina City, where Tenantresides.

Under the Rules of Civil Procedure, venue in personal actions is with theresidence of either the plaintiff or the defendant, at the plaintiff’s election.



Since the Plaintiff does not reside in the Philippines, venue may be laid only inMarikina City where the defendant Tenant resides.

(C)

If Maria insists on filing an ejectment suit against Tenant, the one-year period

within which to file the action shall be reckoned from the expiration of 5-days fromnotice of the last demand to pay and vacate. (Cruz v. Atencio, 28 February 1959; SyOh v. Garcia, 30 June 1969).

VI.

As a rule, courts may not grant an application for provisional remedy withoutcomplying with the requirements of notice and hearing. These requirements, however,may be dispensed with in an application for: (1%)

(A) writ of preliminary injunction(B) writ for preliminary attachment(C) an order granting support pendente lite

(D) a writ of replevin

ANSWER: B

VII.

Co Batong , a Taipan, filed a civil action for damages with the Regional TrialCourt (RTC ) of Parañaque City against Jose Penduko , a news reporter of the Philippine

Times, a newspaper of general circulation printed and published in Parañaque City. Thecomplaint alleged, among others, that Jose Penduko wrote malicious and defamatoryimputations against Co Batong ; that Co Batong ’s business address is in Makati City;and that the libelous article was first printed and published in Parañaque City. The

complaint prayed that Jose Penduko be held liable to pay P200,000.00, as moraldamages; P150,000.00, as exemplary damages; and P50,000.00, as attorney’s fees.

Jose Penduko filed a Motion to Dismiss on the following grounds:

1. The RTC is without jurisdiction because under the Totality Rule, the claim fordamages in the amount of P350,000.00 fall within the exclusive original jurisdiction ofthe Metropolitan Trial Court (MeTC ) of Parañaque City.

2. The venue is improperly laid because what the complaint alleged is CoBatong ’s business address and not his residence address.

Are the grounds invoked in the Motion to Dismiss proper? (4%)

ANSWER:

No, the grounds invoked in the motion to dismiss improper.

1. The invocation of the Totality Rule is misplaced. Under Art. 360 of the Revised

Penal Code, jurisdiction over a civil action for damages in case of libel is with the Courtof First Instance, now the Regional Trial Court. (Nocum v. Tan, 23 September 2005).



The said provision does not mention any jurisdictional amount over such action; hencethe Totality Rule is inapplicable.

2. The ground that the complaint mentioned the complainant’s office address

rather than his residence is of no moment since the complaint also stated that the

libelous article was printed and first published in Paranaque City. Under Article 360 ofthe Revised Penal Code, venue in a civil action for libel also lies in the place where thelibelous article was printed and first published.

VIII.

Johnny , a naturalized citizen of the United States of America (USA ) but formerlya Filipino citizen, executed a notarial will in accordance with the laws of the State ofCalifornia, USA. Johnny , at the time of his death, was survived by his niece Anastacia ,an American citizen residing at the condominium unit of Johnny located at FortBonifacio, Taguig City; a younger brother, Bartolome , who manages Johnny’s fish pondin Lingayen, Pangasinan; and a younger sister,Christina , who manages Johnny’s rentalcondominium units in Makati City. Johnny’s entire estate which he inherited from his

parents is valued at P200 million. Johnny appointed Anastacia as executrix of his will. (4%)

(A) Can Johnny ’s notarial will be probated before the proper court in thePhilippines?

(B) Is Anastacia qualified to be the executrix of Johnny ’s notarial will?

ANSWERS:(A)

Yes, the formal validity of a will is governed also by the national law of the

decedent. (Article 817, Civil Code).

A will proved and allowed in a foreign country, according to the laws of suchcountry, may be allowed, filed, and recorded by the proper Regional Trial Court in thePhilippines. (S1 R77).

(B)

Yes, assuming that Anastacia is of legal age, she is qualified to be an executoralthough an alien because she is a resident of the Philippines. (S1 R78).

IX.

Bayani , an overseas worker based in Dubai, issued in favor of Agente , a specialpower of attorney to sell his house and lot. Agente was able to sell the property butfailed to remit the proceeds to Bayani , as agreed upon. On his return to thePhilippines, Bayani , by way of a demand letter duly received by Agente , sought torecover the amount due him. Agente failed to return the amount as he had used it forthe construction of his own house.

Thus, Bayani filed an action against Agente for sum of money withdamages. Bayani subsequently filed an ex-parte motion for the issuance of a writ ofpreliminary attachment duly supported by an affidavit. The court granted the ex-



parte motion and issued a writ of preliminary attachment upon Bayani ’s posting of therequired bond. Bayani prayed that the court’s sheriff be deputized to serve andimplement the writ of attachment. On November 19, 2013, the Sheriff servedupon Agente the writ of attachment and levied on the latter’s house and lot. OnNovember 20, 2013, the Sheriff served on Agente summons and a copy of thecomplaint. On November 22, 2013, Agente filed an Answer with Motion to Discharge the

Writ of Attachment alleging that at the time the writ of preliminary attachment wasissued, he has not been served with summons and, therefore, it was improperlyissued. (4%)

(A) Is Agente correct?

(B) Was the writ of preliminary attachment properly executed?

ANSWERS:(A)

No, Agente is not correct.

Under the Rules of Civil Procedure, a writ of attachment may issue even beforeservice of summons upon the defendant. (S2 R57).

(B)

No, the writ of preliminary attachment not properly executed.

Under S5 R57, no levy on preliminary attachment shall be enforced unless thereis prior or simultaneous service of the summons and the accompanying papers. (S5R57) The Supreme Court has held that subsequent service of summons will not curethe irregularity that attended the enforcement of the writ (Onate v. Abrogar, 23February 1995).

Here the sheriff levied upon the house and lot prior to the service of thesummons and the complaint upon Agente. Hence the writ of preliminary attachment

was not properly executed. The subsequent service of summons and the complaint didnot cure the irregularity in the enforcement of the writ.

X.

Prince Chong entered into a lease contract with King Kong over a commercial building where the former conducted his hardware business. The lease contractstipulated, among others, a monthly rental of P50,000.00 for a four (4)-year periodcommencing on January 1, 2010. On January 1, 2013, Prince Chong died.Kin Il

Chong was appointed administrator of the estate of Prince Chong , but the former failedto pay the rentals for the months of January to June 2013 despiteKing Kong’s writtendemands.

Thus, on July 1, 2013, King Kong filed with the Regional Trial Court (RTC ) anaction for rescission of contract with damages and payment of accrued rentals as of

June 30, 2013. (4%)

(A) Can Kin Il Chong move to dismiss the complaint on the ground that the RTCis without jurisdiction since the amount claimed is only P300,000.00?



(B) If the rentals accrued during the lifetime of Prince Chong, and King Kong also

filed the complaint for sum of money during that time, will the action be dismissibleupon Prince Chong ’s death during the pendency of the case?

ANSWERS:

(A)

No, Kin II Chong cannot move to dismiss the complaint on the ground that theRTC is without jurisdiction since the amount claimed is only P300,000.

Under B.P. Blg. 129, the RTC has original and exclusive jurisdiction over actionsincapable of pecuniary estimation.

Here the action is for rescission which is incapable of pecuniary estimation. TheP300,000 accrued rentals is only incidental to the main purpose of the action which isto rescind the lease contract.

(B)

No, the action will not be dismissible upon Prince Chong’s death during thependency of the case.

Under S20 R3, when the action is on a contractual money claim and thedefendant dies before entry of final judgment, the action shall not be dismissed butshall instead be allowed to continue until entry of final judgment.

Here the action is on a contractual money claim, that is, a claim for rentals based on a lease contract. Hence it shall be allowed to continue until final judgment.(S20 R3, S5 R86).

XI.

A search warrant was issued for the purpose of looking for unlicensed firearmsin the house of Ass-asin , a notorious gun for hire. When the police served the warrant,they also sought the assistance of barangay tanods who were assigned to look at otherportions of the premises around the house. In a nipa hut thirty (30) meters away fromthe house of Ass-asin , a barangay tanod came upon a kilo of marijuana that was

wrapped in newsprint. He took it and this was later used by the authorities tocharge Ass-asin with illegal possession of marijuana. Ass-asin objected to theintroduction of such evidence claiming that it was illegally seized. Is the objectionof Assasin valid? (4%)

ANSWER:

Yes, the objection of Ass-asin is valid.

Under the Constitution, the right of the people against unlawful search isinviolable except in cases where a valid search warrant was issued or in exceptionalcases where the law provides for a warrantless search. (Sec. 2, Art. III, Constitution).Under the fruit of the poisonous tree doctrine, items seized by virtue of an unlawfulsearch are inadmissible in evidence. (Sec. 3[2], Art. III, Constitution).



Here the the seizure of the marijuana was illegal since it was not pursuant to asearch warrant. The search warrant was for the search and seizure of unlicensedfirearms not marijuana. Nor would the exception regarding items seized under plain

view apply. The marijuana was wrapped in newsprint and clearly not in plain sight.Hence the marijuana may not be introduced in evidence over Ass-asin’s objection.

XII.

Mary Jane met Shiela May at the recruitment agency where they both applied foroverseas employment. They exchanged pleasantries, including details of their personalcircumstances. Fortunately, Mary Jane was deployed to work as front desk receptionistat a hotel in Abu Dhabi where she met Sultan Ahmed who proposed marriage, to whichshe readily accepted. Unfortunately for Shiela May , she was not deployed to workabroad, and this made her envious of Mary Jane .

Mary Jane returned to the Philippines to prepare for her wedding. She securedfrom the National Statistics Office (NSO ) a Certificate of No Marriage. It turned out fromthe NSO records that Mary Jane had previously contracted marriage with John Starr , aBritish citizen, which she never did. The purported marriage between Mary

Jane and John Starr contained all the required pertinent details on Mary Jane . Mary Jane later on learned that Shiela May is the best friend of John Starr .

As a lawyer, Mary Jane seeks your advice on her predicament. What legalremedy will you avail to enable Mary Jane to contract marriage with Sultan Ahmed ?(4%)

ANSWER:

The legal remedy I would avail to enable Mary Jane to contract marriage withSultan Ahmed is to file a petition under Rule 108 to cancel entries in the marriagecontract between John Starr and Mary Jane, particularly the portion and entriesthereon relating to the wife.

Rule 108 may be availed of to cancel erroneous or invalid entries in the CivilRegistry. Here the entry of Mary Jane as the wife of John Starr is clearly erroneous andinvalid as she never contracted marriage with anybody, much less John Starr. There isno need to file a petition for declaration of nullity of marriage since there was nomarriage to speak of in the first place, the marriage contract being a sham contract.(Republic v. Olaybar, 10 February 2014, Peralta, J.).

XIII.

A foreign dog trained to sniff dangerous drugs from packages, was hired by FDPCorporation , a door to door forwarder company, to sniff packages in their depot at theinternational airport. In one of the routinary inspections of packages waiting to be sent

to the United States of America (USA ), the dog sat beside one of the packages, a signalthat the package contained dangerous drugs. Thereafter, the guards opened thepackage and found two (2) kilograms of cocaine. Theowner of the package was arrestedand charges were filed against him. During the trial, the prosecution, through thetrainer who was present during the incident and an expert in this kind of field, testifiedthat the dog was highly trained to sniff packages to determine if the contents weredangerous drugs and the sniffing technique of these highly trained dogs was accepted

worldwide and had been successful in dangerous drugs operations. The prosecutionmoved to admit this evidence to justify the opening of the package. The accusedobjected on the grounds that: (i) the guards had no personal knowledge of the contents



of the package before it was opened; (ii) the testimony of the trainer of the dog ishearsay; and (iii) the accused could not cross-examine the dog . Decide. (4%) ANSWER:

The accused’s objections are overruled.

The objection that the guards had no personal knowledge of the contents of thepackage before it was opened is misplaced. The one testifying is the trainer not theguards and he had personal knowledge of the circumstances since he was presentduring the incident. Besides there is no rule of evidence that one cannot testify aboutthe contents of a package if he did not have prior personal knowledge of its contents

before opening it.

The objection that the testimony of the trainer of the dog is hearsay is not valid.Hearsay is an out-of-court declaration made by a person which is offered for the truthof the matter asserted.

Here what is involved is a dog who is not a person who can make an out-of-court declaration. (Lempert & Saltzburg, A MODERN APPROACH TO EVIDENCE 370-

371 [1982]). A dog is not treated as a declarant or witness who can be cross-examined. (People v. Centolella, 305 N.Y.S.2d 279). Hence testimony that the dog sat beside the package is not testimony about an out-of-court declaration and thus nothearsay.

The objection that the accused could not cross-examine the dog is withoutmerit. Under the Constitution, the accused’s right of confrontation refers to witnesses.

As previously discussed, a dog is not a witness who can be cross-examined.

Note: It is urged that utmost liberality be exercised in grading this number. The answer is not found in Philippine law and jurisprudence and even in commentaries by writers on evidence.

XIV.

When a Municipal Trial Court (MTC ), pursuant to its delegated jurisdiction,renders an adverse judgment in an application for land registration, the aggrievedparty’s remedy is: (1%)

(A) ordinary appeal to the Regional Trial Court(B) petition for review on certiorari to the Supreme Court(C) ordinary appeal to the Court of Appeals(D) petition for review to the Court of Appeals

ANSWER: C (See Sec. 34, B.P. Blg. 129)

XV.

The Ombudsman, after conducting the requisite preliminary investigation, foundprobable cause to charge Gov. Matigas in conspiracy with Carpintero , a privateindividual, for violating Section 3(e) of Republic Act (RA ) No. 3019 ( Anti-Graft andCorrupt Practices Act , as amended).



Before the information could be filed with the Sandiganbayan, Gov. Matigas waskilled in an ambush. This, notwithstanding, an information was filed against Gov.Matigas and Carpintero .

At the Sandiganbayan, Carpintero through counsel, filed a Motion to Quash theInformation, on the ground of lack of jurisdiction of the Sandiganbayan, arguing that

with the death of Gov. Matigas , there is no public officer charged in the information.

Is the motion to quash legally tenable? (4%)

ANSWER: No, the motion to quash is not legally tenable.

In a case involving similar facts, the Supreme Court held that the death of thepublic officer did not mean that the allegation of conspiracy between the public officerand the private person can no longer be proved or that their alleged conspiracy isalready expunged. The only thing extinguished by the death of the public officer was hiscriminal liability. His death did not extinguish the crime nor did it remove the basis ofthe charge of conspiracy between him and the private person. Hence theSandiganbayan had jurisdiction over the offense charged. (People v. Go, 25 March2014, Peralta, J.)

XVI.

Plaintiff filed a complaint denominated as accion publiciana , against defendant .In his answer, defendant alleged that he had no interest over the land in question,except as lessee of Z . Plaintiff subsequently filed an affidavit of Z , the lessorof defendant , stating that Z had sold to plaintiff all his rights and interests in theproperty as shown by a deed of transfer attached to the affidavit. Thus, plaintiff may askthe court to render: (1%)

(A) summary judgment(B) judgment on the pleadings

(C) partial judgment(D) judgment by default

ANSWER: A (S1 & 3, R35)

XVII.

A was charged before the Sandiganbayan with a crime of plunder, a non-bailableoffense, where the court had already issued a warrant for his arrest. Without A beingarrested, his lawyer filed a Motion to Quash Arrest Warrant and to Fix Bail , arguing thatthe allegations in the information did not charge the crime of plunder but a crime ofmalversation, a bailable offense. The court denied the motion on the ground that it had

not yet acquired jurisdiction over the person of the accused and that the accusedshould be under the custody of the court since the crime charged was nonbailable.

The accused’s lawyer counter-argued that the court can rule on the motion evenif the accused was at-large because it had jurisdiction over the subject matter of thecase. According to said lawyer, there was no need for the accused to be under thecustody of the court because what was filed was a Motion to Quash Arrest and to FixBail , not a Petition for Bail .

(A) If you are the Sandiganbayan, how will you rule on the motion? (3%)



(B) If the Sandiganbayan denies the motion, what judicial remedy should the

accused undertake? (2%) ANSWERS:

(A)

If I were the Sandiganbayan, I would deny the Motion to Quash Arrest Warrantand to Fix Bail.

The motion to quash warrant of arrest may be considered since only jurisdictionover the person not custody of the law is required. Jurisdiction over the person of A

was obtained by his voluntary appearance made through the filing of the motionseeking affirmative relief. (See Miranda v. Tuliao, 31 March 2006).

Nonetheless I would still deny the motion to quash arrest warrant. The groundthat the offense charged is malversation not plunder is not a valid ground to quash thearrest warrant. A should simply file an application for bail and contend that he isentitled thereto as a matter of right.

The motion to fix amount of bail, which is in effect an application for bail cannot be granted unless the accused is in custody of the law. (Miranda v. Tuliao, 31 March2006). Here A was not in custody of the law but still at large. Hence the motion to fixthe amount of bail should be denied.

(B)

If the Sandiganbayan denies the motion, the judicial remedy that the accusedshould undertake is to file a petition for certiorari under Rule 65 with the SupremeCourt. Certiorari is available to challenge interlocutory orders rendered with graveabuse of discretion since appeal is unavailable.

Here the order denying the Motion to Quash Arrest Warrant and to Fix Bail isinterlocutory since it does not completely dispose of the case. Hence certiorari isavailable. A should aver that the Sandiganbayan acted with grave abuse of discretionamounting to lack of or excess of jurisdiction in denying his motion.

XVIII.

A was charged with murder in the lower court. His Petition for Bail was deniedafter a summary hearing on the ground that the prosecution had established a strongevidence of guilt. No Motion for Reconsideration was filed from the denial of the Petition for Bail . During the reception of the evidence of the accused, the accused reiterated hispetition for bail on the ground that the witnesses so far presented by the accused had

shown that no qualifying aggravating circumstance attended the killing. The courtdenied the petition on the grounds that it had already ruled that: (i) the evidence of guiltis strong; (ii) the resolution for thePetition for Bail is solely based on the evidencepresented by the prosecution; and (iii) no Motion for Reconsideration was filed from thedenial of the Petition for Bail . (6%)

(A) If you are the Judge, how will you resolve the incident?

(B) Suppose the accused is convicted of the crime of homicide and the accusedfiled a Notice of Appeal, is he entitled to bail?



ANSWERS:

(A)

If I were the judge, I will grant the Petition for Bail if the evidence does not showany qualifying aggravating circumstance. In such a case the offense would be only

homicide which is bailable.

(i) The ground that the court had already ruled that the evidence of guilt isstrong is improper. An order denying an application for bail is interlocutory andremains at the control of the court until final judgment. Hence the court is not bound

by its earlier ruling and may reconsider the same if the evidence or law warrants thesame.

(ii) The ground that the resolution for the Petition for Bail is solely based on theevidence presented by the prosecution is improper. While S8 R114 provides that theprosecution has the burden of proof to show that the evidence of guilt is strong, itshould not be taken to mean that the resolution of the bail application is based solelyon the prosecution evidence. At the hearing for the bail application, both the

prosecution and the accused must be given reasonable opportunity to prove or todisprove, respectively, that the evidence of guilt is strong. (Santos v. Ofilada, 245 SCRA56).

(iii) The ground that no motion for reconsideration was filed from the orderdenying the petition for bail is improper. As previously discussed, an order denying bailis merely interlocutory. Hence the failure to move for reconsideration thereof during thetrial will not render the order final and conclusive.

(B)

No, after conviction by the RTC of an offense not punishable by death, reclusion perpetua , or life imprisonment, admission to bail is discretionary. (S5 R114).

XIX.

A vicarious admission is considered an exception to the hearsay rule. It,however, does not cover: (1%)

(A) admission by a conspirator(B) admission by a privy(C) judicial admission(D) adoptive admission

ANSWER: C Note: a vicarious admission is an extrajudicial admission. Hence C is not

covered by the rule regarding vicarious admissions.

XX.

Tom Wallis filed with the Regional Trial Court (RTC ) a Petition for Declaration ofNullity of his marriage with Debi Wallis on the ground of psychological incapacity of thelatter. Before filing the petition, Tom Wallis had told Debi Wallis that he wanted theannulment of their marriage because he was already fed up with her irrational andeccentric behaviour. However, in the petition for declaration of nullity of marriage, thecorrect residential address of Debi Wallis was deliberately not alleged and instead, the



residential address of their married son was stated. Summons was served bysubstituted service at the address stated in the petition. For failure to file ananswer, Debi Wallis was declared in default and Tom Wallis presented evidence ex-parte .

The RTC rendered judgment declaring the marriage null and void on the ground ofpsychological incapacity of Debi Wallis . Three (3) years after the RTC judgment wasrendered, Debi Wallis got hold of a copy thereof and wanted to have the RTC judgment

reversed and set aside.

If you are the lawyer of Debi Wallis , what judicial remedy or remedies will youtake? Discuss and specify the ground or grounds for said remedy or remedies.(5%)

ANSWER:

If I were the lawyer of Debi Wallis, the judicial remedy I would take is to file withthe Court of Appeals an action for annulment of the RTC judgment under Rule 47. Anaction for annulment of judgment may be resorted to since the remedies of appeal andpetition for relief are no longer available through no fault of Debi Wallis. (S1 R47).

The ground for annulment of judgment would be lack of jurisdiction. Lack of

jurisdiction also covers lack of jurisdiction over the person of the defendant since the judgment would be void. (1 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM558 [7th rev. ed., 3rd printing]).

Here the court did not acquire jurisdiction over the person of Debi since there was no valid substituted service of summons. Substituted service of summons shouldhave been made at Debi’s residence. (S7 R14). Hence the judgment of the RTC was

void. Since the judgment is void, the petition for annulment thereof is imprescriptible.(S3 R47).

Furthermore, default judgments are not allowed in declaration of nullity ofmarriage. (S3[e] R9). Hence the trial court’s rendition of a default judgment was made

with grave abuse of discretion amounting to lack of jurisdiction.

XXI.

Goodfeather Corporation , through its President, Al Pakino , filed with the Regional Trial Court (RTC ) a complaint for specific performance against Robert White . Instead offiling an answer to the complaint, Robert White filed a motion to dismiss the complainton the ground of lack of the appropriate board resolution from the Board of Directorsof Goodfeather Corporation to show the authority of Al Pakino to represent thecorporation and file the complaint in its behalf. The RTC granted the motion to dismissand, accordingly, it ordered the dismissal of the complaint. Al Pakino filed a motion forreconsideration which the RTC denied. As nothing more could be done by AlPakino before the RTC, he filed an appeal before the Court of Appeals (CA ).RobertWhite moved for dismissal of the appeal on the ground that the same involved purely a

question of law and should have been filed with the Supreme Court (SC ). However, AlPakino claimed that the appeal involved mixed questions of fact and law because theremust be a factual determination if, indeed, Al Pakino was duly authorized

by Goodfeather Corporation to file the complaint. Whose position is correct?Explain. (4%)

ANSWER:

Robert White’s position is correct. In a case involving similar facts, theSupreme Court held that the issue of whether or not the trial court erred in dismissing



the complaint on the ground that the person who filed the complaint in behalf of theplaintiff corporation was not authorized to do so is a legal issue, reviewable only by theSupreme Court in a petition for review on certiorari under Rule 45. (Tamondong v.Court of Appeals, 26 November 2004).

(Note: An alternative answer would be that the appeal raises a factual question

of whether or not Al Pakino was indeed authorized to file the complaint in behalf ofGoodfeather Corporation. A reading of Tamondong would show that the appellant onlyraised a legal question of whether it was proper to dismiss the complaint for failure tostate a cause of action but did not raise a factual issue as to whether the filer was infact authorized by the corporation.).

XXII.

Which of the following decisions may be appealed directly to the Supreme Court(SC )? (Assume that the issues to be raised on appeal involve purely questions oflaw) (1%)

(A) Decision of the Regional Trial Court (RTC ) rendered in the exercise of its

appellate jurisdiction.(B) Decision of the RTC rendered in the exercise of its original jurisdiction.(C) Decision of the Civil Service Commission.(D) Decision of the Office of the President.

ANSWER: B Note: In an appeal from RTC judgment in the exercise of its appellate jurisdiction, the appeal should be to the CA even if the questions are only legal. Hence Ashould be excluded. (S2[c] R42).

XXIII.

Mr. Humpty filed with the Regional Trial Court (RTC ) a complaint against Ms.Dumpty for damages. The RTC, after due proceedings, rendered a decision granting the

complaint and ordering Ms. Dumpty to pay damages to Mr. Humpty . Ms. Dumpty timelyfiled an appeal before the Court of Appeals (CA ), questioning the RTC decision.Meanwhile, the RTC granted Mr. Humpty’s motion for execution pending appeal. Uponreceipt of the RTC’s order granting execution pending appeal, Ms. Dumpty filed with theCA another case, this time a special civil action for certiorari assailing said RTC order. Isthere a violation of the rule against forum shopping considering that two (2) actionsemanating from the same case with the RTC were filed by Ms. Dumpty with the CA?Explain. (4%)

ANSWER:

No, there is no violation of the rule against forum shopping.

Forum shopping applies where two or more initiatory pleadings were filed by thesame party. This is discernible from the use of the phrase “commenced any action orfiled any claim” in S5 R7.

Here the first case involves the filing by Ms. Dumpty of a notice of appeal whichis not an initiatory pleading. Hence there is no forum shopping.



XXIV.

Solomon and Faith got married in 2005. In 2010, Solomon contracted a secondmarriage with Hope . When Faith found out about the second marriageof Solomon and Hope , she filed a criminal case for bigamy before the Regional Trial Court(RTC ) of Manila sometime in 2011.

Meanwhile, Solomon filed a petition for declaration of nullity of his first marriage with Faith in 2012, while the case for bigamy before the RTC of Manila is ongoing.Subsequently, Solomon filed a motion to suspend the proceedings in the bigamy case onthe ground of prejudicial question. He asserts that the proceedings in the criminal caseshould be suspended because if his first marriage with Faith will be declared null and

void, it will have the effect of exculpating him from the crime of bigamy. Decide. (4%)

ANSWER:

Motion to suspend proceedings denied.

Under the Rules of Criminal Procedure, a prejudicial question arises if there has

been a previously filed civil action. Here the civil action was filed after the criminalaction. Hence no prejudicial question will arise.

Moreover the Supreme Court has held that a pending case for declaration ofnullity of marriage does not raise a prejudicial question to a charge of bigamy since aperson who contracts a second marriage without first awaiting a judicial declaration ofnullity of his first marriage has already committed bigamy. (People v. Odtuhan, 17 July2013, Peralta, J.).

XXV.

Mr. Boaz filed an action for ejectment against Mr. Jachin before the Metropolitan

Trial Court (MeTC ). Mr. Jachin actively participated in every stage of the proceedingsknowing fully well that the MeTC had no jurisdiction over the action. In his mind, Mr. Jachin was thinking that if the MeTC rendered judgment against him, he could alwaysraise the issue on the jurisdiction of the MeTC. After trial, the MeTC rendered judgmentagainst Mr. Jachin . What is the remedy of Mr. Jachin ? (1%)

(A) File an appeal(B) File an action for nullification of judgment(C) File a motion for reconsideration(D) File a petition for certiorari under Rule 65

ANSWER: A See S8 R40. R47 is not available since appeal is still available. Not C sincea prohibited pleading.

XXVI.

Parole evidence is an: (1%)

(A) agreement not included in the document(B) oral agreement not included in the document(C) agreement included in the document(D) oral agreement included in the document



ANSWER: A Note: It is suggested that either A or B be considered as correct. Strictlyspeaking parol evidence does not have to be an agreement; it is simply any evidence,

whether written or oral, which is not contained in a written agreement subject of a caseand which seeks to modify, alter, or explain the terms of the written agreement.

XXVII.

Mr. Avenger filed with the Regional Trial Court (RTC ) a complaint against Ms.Bright for annulment of deed of sale and other documents. Ms. Bright filed a motion todismiss the complaint on the ground of lack of cause of action. Mr. Avenger filed anopposition to the motion to dismiss. State and discuss the appropriateremedy/remedies under each of the following situations: (6%)

(A) If the RTC grants Ms. Bright ’s motion to dismiss and dismisses the complainton the ground of lack of cause of action, what will be the remedy/remedies of Mr. Avenger ?

(B) If the RTC denies Ms. Bright ’s motion to dismiss, what will be herremedy/remedies?

(C) If the RTC denies Ms. Bright ’s motion to dismiss and, further proceedings,including trial on the merits, are conducted until the RTC renders a decision in favorof Mr. Avenger , what will be the remedy/remedies of Ms. Bright ?

ANSWERS:(A)

If the RTC grants Ms. Brights’s motion to dismiss, the remedies of Mr. Avengerare:

(a) File a motion for reconsideration under Rule 37.

(b) Re-file the complaint. The dismissal does not bar the re-filing of the case (S5R16).

(c) Appeal from the order of dismissal. The dismissal order is a final order as itcompletely disposes of the case; hence it is appealable.

(d) File an amended complaint as a matter of right curing the defect of lack ofcause of action before the dismissal order becomes final. This is because a motion todismiss is not a responsive pleading; hence Mr. Avenger can amend the complaint as amatter of right. (S2 R10).

(B)

If the RTC denies Ms. Bright’s motion to dismiss, her remedies are:

(a) File a motion for reconsideration.

(b) Proceed to trial and if she loses, appeal and assign the failure to dismiss as areversible error.

(c) File a special civil action for certiorari and/or mandamus if the denial of theorder to dismiss is made with grave abuse of discretion amounting to lack of or excessof jurisdiction.



(C)

If the RTC renders a decision in favor of Mr. Avenger, Ms. Bright’s remedies are:

(a) File a motion for reconsideration or new trial under Rule 37.

(b) File an appeal to the Court of Appeals under Rule 41.

(c) File an appeal to the Supreme Court under Rule 45 if the appeal will raiseonly questions of law.

(d) File a petition for relief from judgment under Rule 38.

(e) File an action for annulment of judgment under Rule 47 on the ground ofextrinsic fraud or lack of jurisdiction.

XXVIII.

A was adopted by B and C when A was only a toddler. Later on in life, A filed

with the Regional Trial Court (RTC ) a petition for change of name under Rule 103 of theRules of Court, as he wanted to reassume the surname of his natural parents becausethe surname of his adoptive parents sounded offensive and was seriously affecting his

business and social life.

The adoptive parents gave their consent to the petition for change of name.May A file a petition for change of name? If the RTC grants the petition for change ofname, what, if any, will be the effect on the respective relations of A with his adoptiveparents and with his natural parents? Discuss. (4%)

ANSWER:

Yes, A may file a petition for change of name. Changing name on the ground

that it is offensive and seriously affects the petitioner’s business and social life is a validground especially where the adoptive parents had given their consent.

The grant of the petition will not change A’s relations with his adoptive andnatural parents. The Supreme Court has held that change of name under Rule 103affects only the name and not the status of the petitioner. (Republic v. CA, 21 May1992).

XXIX.

Estrella was the registered owner of a huge parcel of land located in a remotepart of their barrio in Benguet . However, when she visited the property after she took along vacation abroad, she was surprised to see that her childhood friend, John , had

established a vacation house on her property.

Both Estrella and John were residents of the same barangay . To recoverpossession, Estrella filed a complaint for ejectment with the Municipal Trial Court(MTC ), alleging that she is the true owner of the land as evidenced by her certificate oftitle and tax declaration which showed the assessed value of the property asP21,000.00. On the other hand, John refuted Estrella’s claim of ownership andsubmitted in evidence a Deed of Absolute Sale between him andEstrella . After the filingof John ’s answer, the MTC observed that the real issue was one of ownership and not ofpossession. Hence, the MTC dismissed the complaint for lack of jurisdiction.



On appeal by Estrella to the Regional Trial Court (RTC ), a full-blown trial wasconducted as if the case was originally filed with it. The RTC reasoned that based on theassessed value of the property, it was the court of proper jurisdiction. Eventually, theRTC rendered a judgment declaring John as the owner of the land and, hence, entitledto the possession thereof. (4%)

(A) Was the MTC correct in dismissing the complaint for lack of jurisdiction? Why or why not?

(B) Was the RTC correct in ruling that based on the assessed value of theproperty, the case was within its original jurisdiction and, hence, it may conduct a full-

blown trial of the appealed case as if it was originally filed with it? Why or why not?

ANSWERS:(A)

No, the MTC was not correct in dismissing the case for lack of jurisdiction. TheSupreme Court has held that an allegation of ownership as a defense in the answer willnot oust the MTC of jurisdiction in an ejectment case. (Subano v. Vallecer, 24 March

1959). What determines subject-matter jurisdiction is the allegations in the complaintand not those in the answer. Furthermore, the MTC is empowered under S16 R70 toresolve the issue of ownership, albeit for the purpose only of resolving the issue ofpossession.

(B)

No the RTC was not correct in ruling that the case was within its original jurisdiction and that hence it may conduct a full-blown trial of the appealed case as if it were originally filed with it.

Under S8 R40, if an appeal is taken from an MTC order dismissing a case forlack of jurisdiction without a trial on the merits, the RTC on appeal may affirm the

dismissal order and if it has jurisdiction thereover , try the case on the merits as if thecase was originally filed with it.

Here the RTC did not have jurisdiction over the case since it is an ejectment suitcognizable exclusively by the MTC. The assessed value of the land is irrelevant for thepurpose of determining jurisdiction in ejectment suits and would not oust the MTC of

jurisdiction in the same manner as allegations of ownership would not oust the MTC of jurisdiction.

The RTC should have reversed the dismissal order and remanded the case tothe MTC for further proceedings. (S8 R40).

Note: Utmost liberality should be given to the examinee on this question as it

does not appear to be within the coverage of the remedial law examination per the barexamination syllabus given by the Supreme Court.

2014 bar exam Q&A_remedial&labor.pdf

Documents

Transcript of 2014 bar exam Q&A_remedial&labor.pdf