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REMEDIAL LAW
Last Minute Tips
CIVIL PROCEDURE
1. Distinguish amended pleading from supplemental pleading.
(1) As to the subject matter in amended pleadings, the facts already existing on the
date of the original pleading sought to be amended but were not pleaded due to inadvertence; in
supplemental pleadings, the facts occurred since the date of the pleading sought to be
supplemented.
(2) As to the form in amended pleading, the party must file a new copy of the entire
pleading incorporating the amendments which shall be indicated by appropriate marks; in
supplemental pleadings, the party need not file a new copy of the entire pleading since the it
would be an entirely new pleading.
(3) As to effects in amended pleading, the original pleading is replaced or superceded
by the amended pleading; in supplemental pleading, the original pleading stands and the
supplemental pleading is added to and forms part of the original pleading.
2. May a non-resident alien who cannot be found in the Philippines sue and be sued in
Philippine court?
He may sue. By filing his complaint in a Philippine court, a non-resident alien submits
voluntarily to its jurisdiction, and the said court acquires such jurisdiction over him even if, as a
matter of fact, the alien has never been able to enter the Philippines. (Dilweg vs. Philipps, 12
SCRA 243)
However, he may be sued in the Philippines only if the suit involves the personal status
of the plaintiff or the properties of the defendant found in the Philippines where the court may
acquire jurisdiction over the res, but not in any other kind of action since the Philippine court
cannot acquire jurisdiction over his person. (Rule 4, sec. 3 in relation to Rule 14, sec. 15)
3. Implementing a writ of execution of a money judgment against Talo, the sheriff levied
upon a property claimed to be owned by Pedro over the vigorous objections of the latter.
Unable to prevail upon the sheriff to desist, Pedro consults you as to what remedy, if any,
is available to protect his rights in the premises. As counsel, advise Pedro accordingly. If
more than one remedy is available, indicate if the same may be availed of successively or
alternatively and in what order.
Pedros remedies, which are cumulative, are as follows: (Rule 39)
a) He can ask for a SUMMARY HEARING before the court which authorized the
execution;
b) He can also proceed against the bond filed by A;
c) He can file an independent reinvindicatory action of another court;
d) He can file a 3rd party claim before the sheriff by filing an affidavit of title or
possession to the property.

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4. Hazel was the widow of the deceased Jonathan. Ellaine, on the other hand, was the
natural child of the deceased Jonathan. After Jonathans death, Ellaine acting in
collusion with the administrator of her fathers estate, represented herself to be the only
surviving heir although she and the administrator knew that Hazel was still living. After
the administration proceedings, an order was released authorizing delivery of all
property of the estate to Ellaine. The order became final and executory.
Now, Hazel seeks your advice as to what proper actions must be taken in order to
protect her interests in the properties. What advice will you give her?
I will advise her that she should file an action to set aside the order in the administration
proceedings on the ground of collusion between Ellaine and the administrator of the estate.
There can be no question as to the right of any person adversely affected by a judgment
to maintain an action to enjoin its enforcement and to have it declared a nullity on the ground of
fraud and collusion practiced in the very matter of obtaining the judgment when such fraud is
extrinsic or collateral to the matters involved in the issues raised at the trial which resulted in
such judgment; and fraudulent collusion between an administrator and a third person resulting
in an order of judgment whereby an interested person is unjustly deprived of his rights in or to
the estate under administration, has always been recognized as a sufficient ground for the grant
of relief from the order or judgment thus fraudulently procured. (Anuran vs. Aquino and Oritz,
38 Phil. 29)
5. What is the procedure in appealing CSC decisions?
A decision of the Civil Service Commission may be appealed to the Court of Appeals
within 15 days from notice of the award, judgment, final order or resolution or from the date of its
last publication, if publication is required by law for its effectivity, or of the denial of petitioners
motion for new trial or reconsideration.
The appeal shall be taken by filing a verified petition for review in seven (7) legible
copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party
and on the Commission.
6. Suppose that the action was for a claim of money, and Bal is declared in default, what
is his remedy, if any?
Bal can file a motion under oath to set aside the order of default upon proper showing
that his failure to answer was due to fraud, accident, mistake or excusable negligence and that
he has a meritorious defense. He can file the motion at anytime after notice of his being
declared in default and before judgment is rendered by the court.
7. State the usefulness of a pre-trial order.
A pre-trial order shall bind the parties, limit the trial to matters not disposed of and control
the course of action during the trial, unless modified by the court to prevent manifest injustice.
8. What is the difference between misjoinder of parties and non-joinder of parties?
Misjoinder of parties is not a ground for dismissal (Rule 3 Section 11) while non-joinder
of parties may result to dismissal as when an indispensable party is not joined (Rule 3 Section
9).

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9. Can a counterclaim, crossclaim or 3rd-party complaint be filed by the accused in any
criminal case?
No counterclaim, cross-claim or 3rd party complaint may be filed by the accused in the
criminal case, but any cause of action which could have been the subject thereof may be
litigated in a separate civil action. (Rule III, Sec.1)
10. What are the two ways of amending a pleading?
a. Amendment as a matter of right. A party may amend his pleading ONCE as a matter
of right BEFORE a responsive pleading is served or, in case of a reply at anytime within 10 days
after it is served. (NOTE: A motion to dismiss is NOT a responsive pleading, thus, amendment
can still be made)
b. Amendments by leave of court. Any other substantial amendment may be made by
leave of court, upon motion and after notice to the adverse party. Exception: When it appears to
the court that the motion was made with intent to delay.
11. Give the effects of a motion for judgment on the pleadings.
1. If one party prays for judgment on the pleadings without offering proof as to the truth
of his own allegations and without giving the opposing party an opportunity to introduce
evidence, he is understood to admit the truth of all the material allegations of the opposing party
and to rest his motion for judgment on those allegations taken together with such of his own as
are admitted in the pleadings. (Evangelista vs dela Rosa)
2. 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. This is so because
the allegations as to amount of damages are not deemed admitted.
12. The board of Trustees of Southeast Corporation appointed Mr. Novilla as Vicepresident for Corporate Affairs for a term of 5 years. On the 3 rd year of his term, the
Board, through a resolution appointed, Mr. Almayda to the same position. Aggrieved by
the decision of the Board, Mr. Almayda filed a petition before the SEC alleging that the
Board resolution violated the Articles of Incorporation and By-laws of the company, thus
falling under the jurisdiction of the SEC under PD 902-A, Sec 5. Can SEC entertain the
petition?
Not anymore. The jurisdiction of the SEC over cases falling under PD 902-A, Sec 5 was
expressly transferred to the RTC by the Securities Regulation Code.
The SEC, having been divested of its jurisdiction over intracorporate disputes cannot
entertain the petition anymore.
The case should be filed with the proper RTC.
13. Notified of an adverse judgment in a collection case on February 25, 2000 defendant
Osang immediately filed a notice of appeal on the same day. On March 2, 2000, plaintiff
Pidol, in turn, also received notice of said judgment. Assuming he had good reasons to
move for execution pending appeal, may Pidol still do so today or hereafter? Answer
fully with reasons.
YES, Pidol may file a motion for execution pending appeal today. Section 2 of Rule 39
provides that on motion of the prevailing party with notice to the adverse party filed in the trial

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court while it has jurisdiction over the case and is in possession of either the original record or
the record on appeal, as the case may be, at the time of filing of such motion, said court may, in
its discretion, order execution of judgment or final order even before the expiration of the period
to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may
be filed in the appellate court.
14. Mr. Santos is a lessor of a commercial building in Makati. Failure to pay four months
rental, the lessor sued Mr. Prinze for collection of unpaid rent of P100,000.00 and to
vacate the premise. The action was filed in Quezon City, Municipal Trial Court, the
residence of the lessor. Is the venue properly laid?
The lessor erred in filing the case at Quezon City. The Rules of Court provide that in
cases of unlawful detainer, the action should be filed in the Municipal Trial Court of the
municipality or city wherein the real property involved is situated.
15. Is the non-joinder of necessary party when the court ordered for his inclusion
ground for the dismissal of the case due to non-compliance with court order?
NO. The Rules of Court provides that the failure to comply with the order to include a
necessary party without justifiable cause, shall be deemed a waiver of the claim against such
party.
16. Cruz filed a complaint for specific performance against the Mayor of Cavite based on
Reclamation Contract. The barangay captain Ordonez filed an answer in intervention
alleging that the contract is void for the Mayor of Cavite has no authority to enter into a
contract. During pre-trial, Cruz and Mayor of Cavite entered into a compromise
agreement where Ordonez was fully aware. The intervenor asked the court that he be
allowed to present evidence. The court declared the case closed and terminated and
prevented intervenor from presenting evidence. Was the court correct in preventing
intervenor from presenting evidence?
YES. Intervention is a proceeding in a suit or action by which a third person is permitted
by the court to make himself a party, either joining plaintiff or defendant, or claiming adversely
against both. It is merely collateral or accessory or ancillary to the principal action and not an
independent action or proceeding. In the instant case, the main action has already ceased to
exist by reason of a compromise agreement, hence, there is no pending proceeding whereon
the intervention may be based. Final dismissal of the principal action results in the dismissal of
the ancillary action.
17. Ramos was the occupant of a fishpond by virtue of a lease contract. The fishpond
was later sold to Roman who wanted to take possession of the property. Ramos
objected and filed an action for consignation of the advance rentals. Roman filed a
motion to dismiss on the ground of litis pendentia as there was a case filed by him
against Ramos for quieting of title. The court dismissed the action. Was the court
correct in granting the motion?
YES. All the requisites for litis pendentia are present. There is identity of parties and of
rights asserted and relief prayed for. While the immediate relief sought in the consignation case
is to compel the defendant to accept the advance rentals, the ultimate purpose is to compel the
new owner of the fishpond to recognize the leasehold rights of Ramos. The last requisite is also
present because whatever decision that may be rendered in quieting of title would constitute res
judicata. The rule on litis pendentia merely requires that there be another pending action, not
necessarily a prior pending action.

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18. What are the requisites of res judicata?
1.
2.
3.
4.

There is a former judgment that is final;


The judgment is valid;
The judgment is on the merits;
There is between the first and the second actions identity of parties, subject matter
and cause of action.

19. What is the effect of partial payment (not fully paid) of an appellate courts docket
fee?
In Apex Mining, Inc. vs. CA, it was said that appeal is not deemed perfected if the
appellate courts docket fee is not fully paid.
Perfection of an appeal in the manner and within the period laid down by law is not
mandatory but also jurisdictional and that the failure to perfect an appeal as required by the
rules has the effect of defeating the right to appeal of a party and precluding the appellate court
from acquiring jurisdiction over the decision of the trial court.
20. What is the basis for determining the courts jurisdiction?
Jurisdiction is determined by allegation in the complaint. An action for annulment of the
title or reconveyance filed by defendants cannot defeat the jurisdiction of the MTC in the
ejectment case. The fact that the parties respective claims of possession or evidence of
ownership make ownership the principal issue in the case or qualify the action for reconveyance
instead of ejectment does not divest the first level court of jurisdiction for as long as the
allegation in the complaint show that it is an ejectment case. (De la Cruz vs. CA)
21. Does the jurisdiction of the RTC over the question of title to properties constitute
interference or review of the order of a co-equal court of justice?
The RTC has jurisdiction over an action to rescind a sale made upon prior authority of a
probate court. This does not constitute an interference or review of the order of a co-equal court
since the probate court has no jurisdiction over the question of title to subject properties. The
reason is that, the probate court has limited jurisdiction. (Molina vs. CA)
22. How is jurisdiction over the subject matter determined?
Jurisdiction over the subject matter of the action is determined by the allegations of the
complaint, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the
claims asserted therein. Such jurisdiction cannot be made to depend upon the defenses set up
in the answer or the motion to dismiss, for otherwise, the question of jurisdiction would almost
entirely depend upon the defendant.
23. In moving for the execution of judgment of the trial court, is there still a need to wait
for the records of the case to be remanded to the court of origin?
NO. All that the law requires is that the appeal be duly perfected and finally resolved
before execution may be applied for. That motion must be with notice to the adverse party with a
hearing to enable him to file an objection thereto and bring to the attention of the court matters
which may have transpired during the pendency of the appeal and which may have a bearing on
the execution sought to enforce the judgment. (bergonia vs. Gonzales Decano)

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24. What is the effect of violation of Secs. 4 and 5 of Rule 15 and is there an exception
thereto?
In PCIB vs. CA, the prerequisites notice of hearing under Secs. 4 and 5 of Rule 15 was
absent. A litigious motion should be set for hearing on a specific date and time and the adverse
party should be given at least three (3) days prior notice of hearing. Without such hearing, the
motion is pro forma which should be treated as a mere scrap of paper and which the clerk of
court is not even authorized to accept for filing.
But in Juan vs. People, the motion also violated the Rule, but because the aggrieved
party was given the opportunity to be heard, the defect was cured. In de Borja vs. Tan, the SC
said that what the law prohibits is not the absence of previous notice, but the absolute absence
thereof of and lack opportunity to be heard.
25. Eric and Jaja, both married but separated from their spouses, cohabited with each
other. During their union real and personal properties were acquired but registered solely
in Jajas name. Due to irreconcilable differences, they separated. Jaja refused to give Eric
his share denying that they lived together as husband and wife. Jaja likewise claimed to
be the exclusive owner of the properties as they were acquired with the use of her
money. A complaint for partition was filed. Eric filed a motion for summary judgment. Is
summary judgment proper where genuine issues exists?
NO. Summary judgment is proper only when based on the pleadings, depositions and
admissions on file, and after summary hearing, it is shown that except as to the amount of
damages, there is a veritable issue regarding any material fact in action and the movant is
entitled to judgment as a matter of law. Conversely, where the pleadings tender an issue, like an
issue which requires the presentation of evidence for its resolution, as distinguished from an
issue which is sham, fictitious, contrived, set-up in bad faith, or patently substantial, summary
judgment is not proper. (Galica vs.Polo)
26. Where is an expropriation proceeding filed?
Regional Trial Court. Expropriation proceeding has a subject which is incapable of
pecuniary estimation. Reason: the issues are: (1) the right to expropriate and (2) just
compensation. (Nature of the action test.)
27. Is Barangay Conciliation proceeding jurisdictional?
NO. In Banares vs. Balising, it was once again said barangay conciliation proceeding
is not jurisdictional. It can be waived if not raised in a motion to dismiss as it is only a condition
precedent, the case can be dismissed on the ground of prematurity or lack of cause of action.
28. Can a co-owner maintain an action for ejectment without impleading his co-owners?
YES. Any co-owner may maintain an action for ejectment. The other co-owners are
merely proper and not indispensable parties. However, in an action by tenant for security of
tenure, all co-owners are indispensable parties. (Arcelona vs. CA)
29. In a suit against partnership, who must be impleaded as defendant?
It is the partnership, not its officers or agents, which should be impleaded in its name.
The reason is that it has a personality separate and distinct from its partners. (Aguila vs. CA)

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30. Is a transferee pendente lite an indispensable party?
A transferee pendente lite is a proper party, not an indispensable party. Such transferee
does not have to be impleaded in order to be bound by the judgment because the action may be
continued for or against the original party or the transferor and still be binding on the
transeferee. (State Investment House, Inc. vs. CA)
31. Voltaire Salud is indebted to Frankie Corporation in the sum of P500,000 evidenced
by a promissory note. Voltaire defaulted in the payment of the promissory note when it
became due. Subsequently, a collection suit was filed by the corporation represented by
Atty. Mata against Voltaire. The certificate of non-forum shopping was verified and
signed by Atty. Mata. Voltaire contended that noncompliance of the rule on certification
against forum shopping since it was signed neither by the president nor the general
manager of Frankie Corporation. Rule on the contention.
The contention is without merit. Generally, lack of verification is merely a formal defect
that is neither jurisdictional nor fatal. The absence does not divest the trial court of jurisdiction.
The trial court may order the correction of the pleading or act on the unverified pleading if the
attendant circumstances are such that strict compliance with the rule may be dispensed with in
order to serve the ends of justice.
32. Rhoan is indebted to Alvin in the sum of P1M evidenced by a promissory note.
Rhoan defaulted in the payment when the note became due. Subsequently, Alvin filed a
writ for collection of the promissory note in the Regional Trial Court of Pasig. Rhoan
filed an answer with counterclaim for damages and attys fees arising from the suit.
Alvin contended that the counterclaim should be dismissed for noncompliance of the
requirement of certification for non-forum shopping. Rule on the contention.
The contention of Alvin is without merit. The requirement of certification of non-forum
shopping does not apply to a compulsory counterclaim pleaded in the answer. Rhoan need not
file a certificate of non-forum shopping since his claim is not initiatory in character therefore is
not covered by the provision of Administrative Circular No. 04-94.
33. What are the modes required by the Rules in the service and filing of pleadings?
Sec. 5, Rule 13 of the 1997 Rules of Civil Procedure prescribed two (2) modes of service
of pleadings, motions, notices, orders, judgments and other papers, namely: (1) personal
service; and (2) service by mail. The first is governed by Section 6, while the second, by
Section 7 of the said Rule. If service cannot be done either personally or by mail, substituted
service may be resorted to under Section 8 thereof. Pursuant however, the Section 11 of Rule
13, Service and filing of pleadings and other papers must, whenever practicable, be done
personally, and if made through other modes, the party concerned must provide a written
explanation as to why the service or filing was not done personally.
(Solar Team
Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, G.R. No. 132007, August 5, 1998)
34. What is the effect if a Motion is filed without a 3-day notice? Are there exceptions?
Motion without a 3-day notice is considered pro forma. Exceptions are the following: (1)
where a rigid application results or in failure or miscarriage of justice, especially if a party
successfully shows that the alleged defect in the questioned final executory judgment is not
apparent on its face or from the recitals therein; (2) where the interest of substantial justice will
be served; (3) where the resolution of the motion is addressed solely on the sound and judicious
discretion of the court; and (4) where the injustice to the adverse party is not commensurate
with the degree of his thoughtlessness in not complying with the procedure prescribed. (Tan vs.
CA, G.R. No. 130314, September 11, 1998)

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35. If a partys claim of possession of a parcel of land is based on his claim of ownership
and subsequently the ownership of such parcel of land was adjudicated in favor of the
opposing party, does the judgment also include the delivery of possession of said parcel
of land?
In Baluyot vs. Guiao, 315 SCRA 396, it was said that judgment is not confined to what
appears on the face of the decision but also those necessarily included therein or necessary
thereto; and where the ownership of a parcel of land was decreed in the judgment. The
delivery of the possession of the land should be considered included in the decision, it
appearing that the defeated partys claim of possession is based on his claim of ownership.
Adjudication of ownership would include delivery of possession if the defeated party has not
shown any right to possess the land independently of his claim of ownership which was
rejected. In such a case, a writ of execution would be required if the defeated party does not
surrender possession of the property. In this case, there was no allegation or proof of the right
to possess the land independent of their claim of ownership.
36. What are the requisites of execution pending appeal and what constitutes a good
reason for such discretionary execution?
In Maceda vs. DBP, the Supreme Court said that the requisites of execution pending
appeal are the following:
1. There must be a motion by the prevailing party with notice to the adverse
party;
2. There must be a good reason for execution pending appeal; and
3. The good reason must be stated in a special order.
Discretionary execution is permissible only when good reasons exist for immediately
executing the judgment before finality or pending appeal or even before the expiration of the
period to appeal. Good reasons consist of compelling circumstances justifying the immediate
execution but judgment becomes illusory, or the prevailing party after the lapse of time be
unable to enjoy it considering the tactics of the adverse party who may apparently have no case
but delay. (Phil. Bank of Commerce vs. CA)
In Diesel Construction Co., Inc. vs. Jollibee Foods Corp., it was said that financial
distress of the prevailing party is not a good reason for execution pending appeal. Precarious
financial condition is not a good reason.
37. What is the extent of the inquiry of the sufficiency of the allegations in the
complaint?
In Dabuco, et al. Vs CA, it was said that in a motion to dismiss for failure to state a
cause of action, the inquiry is into the sufficiency of the material allegations. The test is whether
the material allegations, assuming them to be true, state ultimate facts which constitute
plaintiffs cause of action such that plaintiff is entitled to favorable judgment as a matter of law.
The inquiry is confirmed to the four corners of the complaint and no other. But the court can
take cognizance of law and jurisprudence as well as the annexes to the complaint as they form
part of the pleadings of the parties.
38. What are the requisites in order that a preliminary injunction may be issued?
In Lopez vs CA, there are two requisites if a preliminary injunction is to issue:
a) Existence of a right to be protected;
b) The facts against which the injunction is to be directed are violative of such
right.

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In particular, for a writ of preliminary injunction to issue, the existence of a right and the
violation must appear in the allegation of the complaint and a preliminary injunction is proper
only when the plaintiff appears to be entitled to the relief demanded in his complaint.
39. When does claim for civil liability survive?
In People vs. Abungan, the Supreme Court said that only civil liability arising from and
based solely on the offense committed is extinguished. The claim for civil liability predicated on
a source other than the crime such as those arising from law, contracts, quasi-contracts, and
quasi-delicts, survives. For this reason, the heirs of the victim may file a separate civil action
against the estate of the accused who died as may be warranted by law and procedural rules.
The heirs need not fear a forfeiture of the right to file this separate civil action by prescription,
because with the institution of the criminal case together with the civil liability arising from the
crime, the statute of limitation is deemed interrupted.
40. The obligation of A and B is solidary. C sued them and a solidary judgment is
rendered. A appealed but B did not. What is the effect of the release of A from the
obligation with respect to B?
When the obligation of the other solidary debtors is so dependent on that of their codebtors, the release of the one who appealed, provided it be not on grounds personal to such
appealing defendant, operates as well to the other who did not appeal. It is for this reason that
a judgment or decision in favor of the defendant who appealed can be invoked as res judicata
by the other defendants (Universal Motors Corp. vs. CA).
41. Cats filed an answer tot he petition filed by Lyn. The answer was filed in time. Could
Cats be declared in default? Is there an exception?
Generally, Cats cannot be declared in default since he filed his answer within the period
required by the rules. However, if the answer filed is unverified or is unsigned, it is as if no
answer was filed at all, hence, Cats may still be declared in default.
The same effect will be produced if the answer was vague, the court in this instance,
may require that the answer be stricken-off the record.
42. What are the judgments that are not stayed by appeal?
Unless otherwise provided by the court, the following are the judgments not stayed by
appeal:
a)
b)
c)
d)
e)

injunction
receivership
accounting
support
such other judgment to be immediately executory (Rule 39 Section 4)

43. When may a supplemental pleading be filed?


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.

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44. What are the grounds under Rule 16 which has the effect of barring the refiling of the
same action or claim when the motion to dismiss has been granted by the court?
1) that the cause of action is barred by prior judgment
2) that the cause of action is barred by statute of limitation
3) that the claim or demand set forth in the plaintiffs pleading has been paid
45. Is a motion for new trial available to the Supreme Court?
NO. The Supreme Court is not a trier of facts. However, it can try the following cases:
1. When the conclusion is a finding grounded entirely on speculation, surmises,
or conjectures.
2. When inference is manifestly mistaken, absurd, or impossible.
3. When there is grave abuse of discretion.
4. When the judgment is based on misapprehension of fact.
5. Conflicting facts.
6. When the CA went beyond the issues of the case and contrary to admission
of both appellants and appellees.
7. When judgment would justify a different conclusion.
46. Is strict compliance with the service of summons upon corporations necessary?
YES. As held in Villarosa vs. Benito, strict compliance is necessary to confer
jurisdiction of the court over a corporation. The officer upon whom service is made must be one
who is named in the statute; otherwise, the service is insufficient. The reason is to render it
reasonably certain that the corporation will prompt and proper notice and that such person will
know what to do with legal papers served on him.
Changes from former rule include, general manager instead of manager; corporate
secretary instead of secretary; in-house counsel instead of outside counsel; treasurer instead of
cashier; managing partner excluding agent and partners.
47. What are supplemental pleadings?
Supplemental pleadings are those which aver facts occurring after the filing of the
original pleadings ad which are material to the matured claims or defenses therein alleged. It
should only supply deficiencies in aid of an original complaint. Supplemental pleadings are
always made with leave of court. (Pagogo vs. CA)
SPECIAL PROCEEDINGS
48. May a writ of preliminary attachment issue even before service of summons to the
defendant? Will the subsequent service of summons cure irregularities in case the writ is
executed without it?
While a writ of preliminary attachment may issue even before summons is served upon
the defendant, however, the writ cannot bind and affect the defendant until jurisdiction over his
person is eventually obtained. Therefore, it is required that when the proper officer commences
implementation of the writ of attachment, service of the writ of attachment and service of
summons should simultaneously be made. The subsequent service of summons did not cure
the irregularities that attended the enforcement of the writ.

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49. Give the proper venue for the following special proceedings:
(a) a petition to declare as escheated a parcel of land owned by a resident of the
Philippines who died intestate and without heirs or persons entitled to the property.
(b) A petition for the appointment of an administrator over the land and building left by
an American Citizen residing in California, who had been declared an incompetent by
the American court.
(c) A petition for the adoption of minors residing in Pampanga.
(a) The venue of the escheat proceedings of a parcel of land in this case is the place where the
deceased last resided. (Sec. 1 Rule 91)
(b) The venue for the appointment of an administrator over land and building of an American
citizen residing in California, declared incompetent by the American court, is the RTC of the
place where his property or parts thereof is situated.
(c) The venue of a petition for adoption of a minor residing in Pampanga is the RTC of the place
in which the petitioner resides.
50. May a husband be compelled to live with his wife by the extraordinary writ of habeas
corpus?
NO. Marital rights including coverture and living in conjugal dwelling may not be
enforced by the extraordinary writ of habeas corpus.
To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. The illegal restraint must be actual and effective,
not mere nominal or moral (Erlinda Ilusorio vs. Erlinda Bildner G.R. No. 139709 May 12,
2000).
51. What may the sole heir do if his predecessor-in-interest left no will?
He may adjudicate to himself the entire estate by means of an affidavit filed in the Office
of the Register of Deed. (Rule 74 Sec 1)
52. In the extrajudicial settlement of the estate of the decedent who left no will or in the
self-adjudication by a sole heir, what should the heir/heirs do?
They should post a bond with the Register of Deeds in an amount equivalent to the
value of the personal property involved as certified under oath by the parties concerned and
conditioned upon payment of any just claim that may be filed. This must be done simultaneously
with the filing of the document of partition or affidavit with the Register of Deeds.
53. When is the decedent presumed to have left no debts?
If no creditors file a petition for Letters of Administration within two (2) years after the
death of the decedent.
54. Bokya filed a case for ejectment against Rex in the MTC of Malolos Bulacan. Rex
filed a motion to dismiss for lack of jurisdiction of the trial court claiming ownership over
the parcel of the land. Rex contended that the issue of ownership is beyond the
jurisdiction of the municipal trial court. Rule on the motion.
The motion to dismiss should be denied. The only issue in ejectment case is the
physical possession of the premises independent of any claim of ownership by the parties. But
the MTC can inquire into the issue of ownership when the same is intertwined with the question

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of possession but the issue of ownership will be rendered only to determine the issue of
possession. It is not res judicata with respect to the issue raised in another proceeding. (Paz v
Reyes, March 9, 2000)
55. Mr. Sebastian brought an ejectment suit against Mr. Beri before the MTC. The court
rendered judgment against Mr. Beri. How can Mr. Beri, the defendant, stay the execution
of the judgment?
In Aznar vs. CA, G.R. No. 128102, March 7, 2000, if the judgment of the MTC in an
ejectment suit is adverse to the defendant, it is immediately executory. To stay the execution,
the defendant must:
(1) perfect his appeal;
(2) file a supersedeas bond to answer for the rents, damages and costs occurring down
to the time of the judgment appealed from; and
(3) periodically deposit the rentals failing due during the pendency of the appeal.
56. An ejectment suit was filed by Mr. X against Mr. Y involving a piece of land located in
QC. Subsequently, Mr. X filed an action to recover ownership against Mr. Y involving the
same piece of land. Is the first action suspended by the second action?
In Curagan vs. Marayag, G.R. No. 138377, February 28, 2000, a pending action
involving ownership of the same property subject of the ejectment proceeding does not suspend
the latter. The reason is that, the RTC action does not involve physical or de facto possession.
Sometimes, the RTC action is merely a ploy to delay disposition of the ejectment proceedings.
57. When is the remedy of certiorari available to a party?
In Banco Filipino Savings Bank vs. CA, the action was dismissed. Instead of
appealing from the dismissal, it filed a petition for certiorari which was dismissed by the CA,
saying that it was improper as the lower court did not commit grave abuse of discretion
amounting to lack of jurisdiction.
For the extraordinary remedy of certiorari to lie by reason of grave abuse of discretion
must be so patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to
perform the duty enjoined or act in contemplation of law, or where the power is exercised in an
arbitrary or despotic manner by reason of passion and personal hostility. Even if erroneous, the
resolution of the CA can be assailed only by means of a petition for review.
58. Can the execution of judgment by the RTC affirming the decision of the MTC in an
unlawful detainer case ejecting the defendant be stopped?
NO. Once the RTC has rendered a decision in its appellate jurisdiction, such decision
shall, under Rule 70, Section 21 of the Rules of Court, be immediately executory, without
prejudice to an appeal, via a petition for review before the CA or SC. Moreover, ejectment
cases are summary in nature for they involve pertrubation of social order which must be
restored as promptly as possible.
If the RTC refuses to issue the writ of execution pending appeal, mandamus will lie to
compel the judge to issue it as the latter has neglected to perform his duty.
What can be prevented is the execution of the judgment of the MTC in an ejectment suit
if the losing party:
1) perfects an appeal;
2) files a supersedeas bond; amd
3) deposits the current rental during the pendency of the appeal, and not the
judgment of the RTC upholding the decision of the MTC.

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59. What is the period to appeal in habeas corpus cases?
Pursuant to AM No. 01-1-03-SC, Re: Amendment to Section 3, Rule 41 of the 1997
Rules of Civil Procedure, an appeal in habeas corpus cases shall be taken within 48 hours from
notice of the judgment or final order appealed from.
60. What are the requisites of extrajudicial settlement by agreement between heirs?
Requisites:
a) Decedent left no will
b) No debts
c) Heirs are all of age and if a minor, are represented by legal or judicial
representation
d) Execution of a public instrument
e) Registered with the Office of the Register of Deeds
CRIMINAL PROCEDURE
61. H and M were charged for concubinage before the MTC. (penalty for H - prision
correccional minimum and medium, for M- destierro). During the trial, H and M moved to
dismiss upon the ground that the MTC has no jurisdiction as to M because the duration
of destierro is up to 6 which pertains to the RTC. The prosecution opposed claiming that
the motion is late and that the MTC has jurisdiction.
a) Whether the motion to quash should be denied.
b) Whether the MTC has jurisdiction.
a) The motion to quash should be denied. Not only is it late - it must be filed before the
accused enters his plea not during trial.
b) The MTC has jurisdiction over the offense. Although the charge of concubinage also
imposes the penalty of destierro on the mistress, the same is not taken into consideration in
determining the jurisdiction of the court. Under BP Blg. 129, the jurisdiction of the MTC in
criminal cases includes all offenses punishable with IMPRISONMENT not exceeding 6 years
irrespective of the amount of fine. Since destierro is not a penalty of imprisonment, it is
disregarded in the determination of the jurisdiction of the court over the criminal case.
62. An information substantially recites that accused Osama, after entering the dwelling
of Bush through a window, killed Bush and, thereafter, to make the killing appear
accidental, set the house on fire. Claiming that the information charges trespass, murder
and arson, Osama moves to quash the same on the ground of duplicity. Is this correct?
Explain fully.
The motion to quash on the ground of duplicity (Rule 117, Sec. 3f) should be granted. A
single information cannot charge more than one offense except when a single punishment for
various offenses is prescribed by law. The information should have treated trespass and arson
as mere generic aggravating circumstances of the crime of murder instead of treating them as
separate crime since there is no single punishment prescribed for all of these crimes.

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63. RULE 114, SEC. 26 BAIL
A application for or admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued therefore, or from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve the matter as early
as practicable but not later than the start of the trial of the case.

64. The prosecutor conducted a preliminary investigation. After finding of probable


cause, an information was filed against Mr. Ong for frustrated murder. Few days
after Mr. Ong was arraigned, the victim died. Hence, the information was amended
from frustrated murder to murder without conducting another preliminary
investigation and retaking of plea. Mr. Ong opposed the amendment made stating
that such amendment is a substantial one which cannot be done without another
preliminary investigation.
Was the contention of Mr. Ong meritorious?
NO. There is an identity of offenses charged in both the original and the amended
information. What is involved here is not a variance in the nature of different offenses charged
but only a stage in the execution of the same from frustrated to consummated murder.
Consequent thereto, an amendment of the original information and not a substitution thereof will
suffice.
There is no need for another preliminary investigation and arraignment.
65. Distinguish between CLAIM PRECLUSION and ISSUE PRECLUSION
CLAIM PRECLUSION
-The effect of a judgment as a
bar to the prosecution of a second
action upon the same claim, demand
or cause of action
-Traditional terminology: merger or bar;
bar by prior judgment

ISSUE PRECLUSION
-Precludes the re-litigation of a
particular fact or issue in another
action between the same parties
on a different cause of action
-Traditional terminology: collateral
estoppel; conclusiveness of
judgment

66. Is the preliminary investigation a part of the trial?


NO. A preliminary investigation is not a trial or any part thereof and has no purpose
except that of determining whether or not the defendant should be held for trial before the
competent court.

67. Facing a charge of Murder, Anthony filed a petition for bail. The petition was opposed
by the prosecution but after hearing, the court granted bail to Anthony. On the first
scheduled hearing on the merits, the prosecution manifested that it was not adducing
additional evidence and that it was resting its case. Anthony filed a demurrer to evidence
without leave of court but it was denied.
a. Did the court have the discretion to deny the demurrer to evidence?
b. If the answer to the preceding question is in the affirmative, can Anthony adduce
evidence in his defense after the denial of his demurrer of evidence?

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a. YES. The court had the discretion to deny the demurrer to the evidence. Although the
evidence presented by the prosecution at the hearing for bail was not strong, without any
evidence for the defense, it could be sufficient for conviction.
b. NO, because he filed the demurrer to the evidence without leave. However, the trial
court should inquire as to why the accused filed the demurrer without leave and whether his
lawyer knew that the effect of filing it without leave is to waive the presentation of the evidence
of the accused.
68. What are the grounds for motion to quash?
Rule 117, Sec 3
a.) The facts charge do not constitute an offense;
b.) Court trying the case has no jurisdiction over the offense charge;
c.) Court trying the case has no jurisdiction over the person of the accused;
d.) Officer who filed the information had no authority to do so;
e.) It does not conform substantially to the prescribed form;
f.) That more then one offense has been charged except when a single punishment for
various offenses is prescribed by law;
g.) Criminal action or liability has been extinguished;
h.) It contains averment which, if true, would constitute a legal excuse or justification;
and
i.) That accused had been previously convicted or acquitted of the offense charged, or
the case against him was dismissed or otherwise terminated without his consent.

69. Tried for theft and acquitted for insufficiency of evidence, defendant was
subsequently booked for estafa for the same act. The trial court dismissed the second
proceedings holding that since both information have identical facts and they involved
the same person, there is double jeopardy the fiscal appealed. Decide with reason.
The accused may rightfully invoke his right to double jeopardy.
The requisites of double jeopardy are:
a.
b.
c.
d.

valid complaint or information


filed before a competent court
to which defendant had pleaded, and
defendant was previously acquitted or convicted, or the case dismissed or
otherwise terminated without his consent.

The accused, in the case at bar, having been acquitted of the original offense, may not
be charged again for the same offense.
70. Accused was prosecuted for estafa. In view of amicable settlement reached between
the parties wherein the defendant agreed to pay the amount misappropriated in
installments, the case was dismissed with the consent of the accused. When the accused
later failed to pay the balance of the amount to be paid, he was again prosecuted under a
new information. Accused pleaded double jeopardy. Decide with reason.
One of the requisites for double jeopardy is that the defendant was previously acquitted
or convicted, or the case dismissed or otherwise terminated without his express consent.
In the instant case, it was clear that the termination of the case through amicable
settlement was with the consent of the accused. Accordingly, he may not validly invoke double
jeopardy because of non-compliance with this requisite.

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71. For the provisional liberty of Pedro, Kumag deposited his own money as cash bond.
During the trial, without the knowledge or consent of Kumag, Pedro surreptitiously left
for abroad where he committed a crime, is detained and, consequently, could not be
produced in court. (a) Under the facts, is the cash bond subject to forfeiture? Reason.
YES, the cash bond is subject to forfeiture. However, the bondsman Kumag still has 30
days to produce the body of the accused from the date that he was notified to produce the
accused. If the bondsman fails to produce the accused within the said period, the cashbond
shall then be subject to confiscation. The order of confiscation shall be final and executory.
72. Petitioner was accused of estafa through falsification of two checks of the PNB. It
appeared that through his help and representations the alleged claimants were able to
obtain the release of the checks in question and the subsequent encashing of the same.
The appellate court found the petitioner guilty of the crime of estafa through falsification
by reckless imprudence. Could the petitioner appellant be legally found guilty of estafa
through falsification by reckless imprudence under an information charging with estafa
through falsification? Decide with reasons.
NO. Dolo is always a requisite of estafa and falsification. Intent and damage should
always be present. Since willful intent is required, there can be no estafa by reckless
imprudence.
73. During the cross-examination of state witness, it appeared that he had been
previously charged of illegal marriage. The defendant contends that the state could not
use said witness even though an order of discharge has been issued. Decide with
reasons.
An accused may be used as a state witness when the following requisites concur:
1.
2.
3.
4.
5.

there is absolute necessity for the testimony


no other direct evidence is available for the prosecution
the testimony can be substantially corroborated in its material points
accused is not the most guilty of the offenders
accused has never been convicted of an offense involving moral turpitude

The rules require a previous conviction of an offense involving moral turpitude. Since the
witness has been the subject of an order of discharge, he may be used as a witness by the
state.
74. What are the rights of the accused at the trial?
The accused has the following rights during trial:
a. right to counsel, preferably of his own choice, if he cannot secure one, he should be
provided with one;
b. right to be present and defend in person or by counsel;
c. right to be informed of the nature and cause of accusation against him;
d. right to confront and cross-examine witnesses against him face to face;
e. right to secure the compulsory processes to secure the attendance of witnwsses on
his behalf;
f. right to a speedy, impartial and public trial;
g. right to bail, when allowed;
h. right against self-incrimination;
i. right to be presumed innocent;
j. right to testify as witness in his own behalf;

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k. right to appeal in all cases allowed by law and in the manner prescribed by law.

75. May a judge be excused from his duty to end the preliminary investigation as soon
as possible on the basis that the accused escaped or jumped bail?
The fact that the accused escaped will not excuse the judge from his duty to end the
preliminary investigation as soon as possible. When the clarificatory hearing was only for the
purpose of reexamining the testimony of the complaints witness, the presence of the accused
was not needed to conduct the hearing. Respondent judge should have continued with the
hearing if indeed he was convinced that it was necessary or he should have terminated the
whole investigation. To conclude the preliminary investigation, it is enough that the accused
was given an opportunity to rebut the evidence of the complainant by counter affidavits (Tuliao
vs. Ramos, 284 SCRA 378).

76. In an information filed with the RTC, R and S are charged as principal and accessory,
respectively, with robbery in an inhabited house. After both were arraigned and pleaded
not guilty, the prosecutor discovered that the house was uninhabited and that R and S
are habitual delinquents who, instead of being principal and accessory, are coconspirators. Accordingly, the prosecutor moved to amend the Information to allege
conspiracy in the commission of robbery in an uninhabited house and to add the
required allegations for habitual delinquency.
As Judge, would you allow the
amendments? Reason.
NO, I would not allow the amendments to take place being the judge. Considering the
fact that R and S are already arraigned and pleaded, amendment as such would no longer be
allowed and only as to matters of form during trial will be allowed by leave of court at the
discretion of the court and should only be done if such amendments is without prejudice to the
rights of the accused.
In a case an amendment seeking to allege conspiracy in the commission of the crime
charged was ruled to be substantial and therefore, impermissible after the accused had pleaded
to the charge. The amendment would thereby widen the battlefront to allow use by prosecution
of newly discovered evidence to the prejudice and disadvantage of the defense. It would be
violation of the right of the accused to be appraised of the charges and to avoid surprises on his
part that may lead to injustice.
77. Can a child of an accused be cited for contempt for refusing to obey a subpoena
issued by a court at the instance of the prosecution for him to take the witness stand and
testify against his accused father?
NO. Under the Rules on Evidence, no person may be compelled to testify against his
parents, other direct ascendants, children or other direct descendants (Section 25, Rule 130).
Thus, the child of the accused has the right either to disregard or obey the subpoena.
But he cannot be cited for contempt in case he disobeys a subpoena as this would render
nugatory the parental and filial privilege.
78. In a prosecution for adultery, the husband attempted to present evidence, to show
the adulterous act of the wife, a birth certificate showing that the childs father is a
person other than him. Is the birth certificate admissible in evidence?
NO. Because under the Family Code, the legitimacy of the child cannot be collaterally
attacked. It can only be impugned in a direct proceeding.

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79. Married in Manila in a civil ceremony, husband H and wife W were later separated de
facto and H established residence in Baguio where he subsequently married M. In
consequence, upon complaint of W, H and M were charged with bigamy before the Manila
RTC. H and M moved to quash for lack of jurisdiction but the Fiscal opposed on the
ground that the first marriage, which is an element of the crime, was solemnized in
Manila. Resolve the motion to quash with reasons.
Motion to quash is with merit. In bigamy, the place where the first marriage was
celebrated is immaterial to the criminal act, intent and responsibility of the accused. What is
essential is that the first marriage be not legally terminated, actually or by legal presumption,
when the subsequent wedlock takes place; and it is upon the celebration of the subsequent
marriage that bigamy is committed. Hence, the information must be filed in the place where the
second marriage was contracted. (Gauchero vs. Bellosillo 28 SCRA 673)
79. Does prejudicial question conclusively resolve the guilt or innocence of the
accused?
NO. A prejudicial question does not conclusively resolve the guilt or innocence of the
accused but simply tests the sufficiency of the allegations in the information in order to sustain
the further prosecution of the criminal case. A party who raises a prejudicial question is deemed
to have hypothetically admitted that all the elements of a crime have been adequately alleged in
the information considering that the prosecution has not yet presented a single evidence on the
indictment or may not yet have rested its case.
80. What is the effect of the challenge of allegations in the information on the ground of
a prejudicial question?
A challenge of the allegations in the information on the ground of a prejudicial question is
in effect a question on the merits of the criminal charge through a non-criminal suit.

81. The accused was charged with rape cases, bargained for lesser penalty when he
entered into a plea bargaining. He was convicted and the court sentenced him only to 10
years imprisonment for each rape case. Is the conviction valid?
The conviction was not valid on the ground that his plea was not the plea contemplated
and allowed by the rules. The only instance where a plea bargaining is allowed is when an
accused pleads guilty to a lesser offense.
It is the essence of a plea of guilty that the accused admits absolutely and
unconditionally his guilt and responsibility for the offense imputed to him. Hence, an accused is
not allowed to admit his guilt on the condition that a certain penalty will be meted unto him
subject to the condition that a certain penalty will be imposed on him. It is equivalent to a plea
of not guilty and would therefore require a full blown trial.
EVIDENCE
82. Bok, before giving his testimony, was allowed by the court to refresh his memory
through a memorandum wholly prepared by him at or about the time of the happening of
the event in dispute. After his testimony was given in court, his lawyer offered in
evidence said memorandum as affirmative intrinsic proof of the event in dispute.
Is the said memorandum admissible in evidence?

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NO. The memorandum used to refresh the memory of the witness does not constitute
evidence, and may not be admitted as such, for the simple reason that the witness had just the
same to testify on the basis of refreshed memory. Such memorandum is not admissible as
corroborated by any written statement prepared wholly by him. The mere making of written
memorandum immediately after the interview does not make the memorandum affirmative
intrinsic proof of things said or transacted. (Borromeo vs. CA 70 SCRA 329)

83. What is the equiponderance of evidence rule? Give an example of its application.
When the scale shall stand upon an equipoise and there is nothing in the evidence
which shall incline it to one side or the other, the court will find for the defendant.
Under said principle, the plaintiff must rely on the strength of his evidence and not on the
weakness of defendants claim. Even if the evidence of the plaintiff may be stronger than that of
the defendant, there is no preponderance of evidence on his side if such evidence is insufficient
in itself to establish his cause of action.
Thus, in a case involving a boundary dispute between 2 municipalities, where neither
party was able to make out a case, and neither side could establish its cause of action and
prevail with the evidence it had, and they are thus no better off than before they proceeded to
litigate, the court can only leave them as they are and has no choice but to dismiss the
complaint/petition. (Municipality of Candijay, Bohol vs. CA)
Or, it can be said that even if a person has been defaulted, it does not follow that the
plaintiff would be entitled to an award if its evidence is not sufficient to prove its cause of action.,
83. What is meant by multiple admissibility of evidence?
It means that evidence is relevant and competent for two or more purposes. In People
vs. Animas, it was said that if evidence is relevant and competent for two purposes, such will
be received if it satisfies all the requirements prescribed by law in order that it may be
admissible for the purpose for which it is presented, even if it does not satisfy the other
requisites for its admissibility for other purposes.
84. Lyla sold her house and lot with right of repurchase to Zoilo the Great. Can he prove
it to be one of sale with mortgage?
YES. Even when a document appears on its face to be a sale with pacto de retro, the
owner of the property may prove that the contract is really a loan with mortgage by raising as an
issue the fact that the document does not express the true intent and agreement of the parties.
In this case, parol evidence then becomes competent and admissible to prove that the
instrument was in truth and in fact given merely as security for the payment of the loan,. And
upon proof of the truth that such allegations, the court will enforce the agreement of the parties
at the time of the execution of the contract. This principle is applicable even if the purported sale
on pacto de retro was registered in the name of the transferee and a new certificate of title was
issued in the name of the latter. (Olea vs. CA)
85. State the rules on the admissibility or inadmissibility of an offer to compromise.
To determine the admissibility or non-admissibility of an offer to compromise, the
circumstances of the case and the intent of the party making the offer should be considered.
Thus, if a party denied the existence of a debt but offers to pay the same for the purpose of
buying peace and avoiding litigation, the offer of settlement is inadmissible. If in the course
thereof, the party making the offer admits the existence of an indebtedness combined with a
proposal to settle the claim amicably, then, the admission is admissible to prove such
indebtedness. (Trans-Pacific Industrial Supplies vs. CA)

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86. Philger was approached by Eric. Philger later on shouted Aray. He was brought to
the hospital where he whispered to Boyet the name of his assailant. He died two (2)
hours later. Is his statement admissible as dying declaration? Why?
NO, because it was not made under consciousness of impending death. But while his
statement cannot be admissible as dying declaration, it can be admitted as part of the res
gestae having been made immediately after the incident. (People vs. Fayyan)
87. Darius was beaten by Rhouan to death, but before he died, he was brought by his
grandmother to the hospital, limp and bloodied. The grandmother had hysterical outburst
at the emergency room that Rhouan was the one who beat Darius. State the evidentiary
value of such outburst.
The hysterical outburst of a grandmother at the emergency room of the hospital that it as
the accused who beat to death his own son is admissible as part of res gestae.
The testimony of the witness as to the said statements of the grandmother is not
hearsay, and is admissible as an independently relevant statement. (The grandmother was
already dead at the time of the trial.) (People vs, Cloud)
88. May a party call his adversary as a witness?
YES. In Handyware Phils. Inc. vs. Macli-ing, the rule was laid down to the effect that
there is no prohibition for a party litigant to call his adversary as his witness. There is no
provision of law or the Rules of Court that would prevent a party to a litigation from calling any of
the opposing parties to be witnesses, so long as the one called is not disqualified under Section
20 and 21 of Rule 130. In fact, section 10 of Rule 132 implicitly authorizes the calling of any
adverse party-corporation, even if leading question have to be employed to overcome his
natural hostility. Such procedure would enable a party-litigant to call the officers of the adverse
party without making them their own witnesses and elicit from them, if possible, material facts
with their knowledge.
89. When is objection to evidence unnecessary?
When it becomes reasonably apparent in the course of the examination of a witness that
the question being propounded are of the same class as those which objection has been made,
whether such objection was sustained or overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse party to record his continuing objection to such class
of questions. (Rule 132, Sec. 37)
90. Give an example of a situation where evidence was admitted conditionally.
In an action by A against B for recovery of a real property, plaintiff offered a document
showing that the property belonged to X. On objection of the defendant upon the ground of
irrelevancy, plaintiff stated that he would prove later by other evidence that X, the original owner,
sold the property to Y and the latter sold it to Z from whom plaintiff acquired title by purchase.
The court may admit the evidence conditionally until the other facts mentioned by plaintiff are
proved.

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91. What is meant by Falsus in uno, falsus in omnibus?
Where a witness has willfully falsified the truth in one point, his testimony in other points
maybe disregarded unless corroborated by circumstances or other unimpeached evidence. This
principle is not necessarily adhered to by our courts.
92. Is the widow competent to testify on husbands dying declaration?
reasons.

Give your

YES. The purpose of Privileged Marital Communication Rule is to protect accused


persons against statements made in the confidence engendered by the marital relation, and to
relieve the husband or wife to whom such confidential communications might have been made
from the obligation of revealing them to the prejudice of the other spouse. Obviously, when a
person at the point of death as a result of injuries he has suffered makes a statement regarding
the manner in which he received those injuries, the communication so made is in no sense
confidential. On the contrary, such a communication is made for the express purpose that it
may be communicated after the death of the declarant to the concerned in inquiring into the
cause of his death. (US vs. Antipolo)
93. In a civil case, the plaintiffs presented the husband of one of the co-defendants as a
witness. The other co-defendants objected on his testifying on the ground that it
violated the privileged communication rule. Is the objection tenable?
NO. The right to invoke the privileged marital communication rule is personal to the
husband or wife. In this case, the only person who could object to the testimony of this witness
was the wife, not the other co-defendants. (Ortiz vs. Aramburo, 9 PHIL 98)

94. To protect a witness in a kidnapping case from reprisal by kidnap syndicate


members, his head was covered by a hood while testifying against the accused. The
accused objects on the ground that such method violates his right of confrontation; but,
the fiscal counters that such right is not violated because the accused can crossexamine the witness just the same. Resolve with reasons.
The objection of the accused is meritorious.
The right of confrontation has two purposes: First, to secure the opportunity of crossexamination; and second, to allow the judge to observe the deportment and appearance of the
witness while testifying. (People vs. Ortiz Miyake 279 SCRA 180)
By allowing the head of the witness to be covered by a hood, the judge will not be able
to observe the deportment and appearance of the witness.
95. Even as the misappropriation was established in a malversation case, the Fiscal
failed to prove the public character of the funds charge to have been misappropriated.
For that reason, the Court, over the vehement objection of the accused, dismissed the
malversation charge and ordered the Fiscal to file a new information to charge the proper
offense. Is that correct? Reasons.
NO. The filing of the new information is not correct.
Rule 120 Section 4 of the Rules of Court provides that when there is variance between
the offense charged in the complaint or information, and that proven, and the offense as
charged is included in or necessarily includes the offense proved, the accused shall be
convicted of the offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved.

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Assuming that the element of damage was proven during trial, the accused can be
convicted of estafa since estafa is necessarily included in the crime of malversation.

96. What are the qualifications of a Child Witness? Is the age essential in determining
the same?
A child may be a competent witness where he has sufficient capacity to understand the
solemnity of an oath and to comprehend the obligation it imposes, and where he has sufficient
intelligence to relate them correctly, although he is very young.
It has been the general rule that no precise minimum age can be fixed at which children
shall be excluded from testifying. The intelligence and not the age of a young child is the test of
its competency as a witness.
97. In a case of falsification of public documents, may the legal counsel of the accused
who notarized the questioned documents be a witness for the accused?
NO. As a general rule, when a lawyer is a witness for his client, he should leave the trial
of the case to the other counsel, except when the subject testimony of the lawyer is merely
formal matters, such as the attestation or custody or an instrument and the likes.

98. Is a public instrument necessary for the validity of an extrajudicial settlement?


NO the oral agreement of partition is valid among the heirs who participated in the
extrajudicial settlement.
99. When is burden of proof shifted to the defendant to prove justification in order to
relieve himself of any criminal liabilty?
In Balanay vs SB , it was said that it is a settled jurisprudence that in criminal cases the
prosecution has the onus probandi in establishing the guilt of the accused. However, once the
defendant admits the crime charged but raises a justification for its commission, the burden of
proof is shifted to him to prove justification in order to relieve himself of any criminal liability or to
mitigate its gravity. To prove justification, the defendant must rely on the strength of his own
evidence and not on the weakness of the prosecution, for even if it were weak, it could not be
disbelieved after the accused had admitted the killing.

100. In a deed of sale, a piece of land subject of the sale is denominated as totaling 9
hectares. When it was surveyed it was found that it contained 17 hectares. Can the
vendee under the deed of sale invoke the parol evidence rule in support of his
opposition to the reception of evidence to prove the claim that the intention of the
vendor was to sell only 9 hectares?
NO. Because the area of the land as surveyed is twice as much as the area actually
sold, there is a latent ambiguity in the deed of sale, which should be explained by extrinsic
evidence as this is one of the exceptions to the parol evidence rule under Section 9, Rule 130.

101. Can the results of a lie detector test be admissible in evidence?


American courts almost uniformly rejects the results of a polygraph test when offered in
evidence for the purpose of establishing the guilt of or innocence of one of the accused of a
crime for the reason that polygraph has not yet attained scientific acceptance as a reliable and

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accurate means of ascertaining truth or deception. The rule is no different in our jurisdiction
(People vs. Adoviso, June 23, 1999).

102. What is an inter-locking confession?


Where several extrajudicial confession had been made by several persons charged with
an offense and there could have been no collusion between several confessions, the facts that
the statements therein are in all material respect identical, is confirmatory of the confession of
the co-defendant and admissible against other co-defendant.
It is an exception to the general rule that the confession of an accused is incompetent
against his co-accused.

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