Posted by: Elmer Brabante | October 28, 2014

2014 BAR EXAMS: Questions and Alternative Answers in Remedial Law


2014 BAR EXAMS QUESTIONS AND ALTERNATIVE ANSWERS IN REMEDIAL LAW

 I.

 Ludong, Balatong, and Labong were charged with murder. After trial, the court announced 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 lawyers of Balatong and Labong appeared but without their clients and failed to satisfactorily explain their absence when queried by the court. Thus, the judge ordered the Clerk of Court to proceed with the reading of the judgment convicting all the accused. With respect to Balatong and Labong, the judge ordered that the judgment be entered in the criminal docket and copies be furnished their lawyers. The lawyers of Ludong, Balatong, and Labong filed within the reglementary period a Joint Motion for Reconsideration. The court favorably granted the motion of Ludong downgrading his conviction from murder to homicide but denied the motion as regards Balatong and Labong. (4%)

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

                No, the court was not correct in taking cognizance of the Joint Motion for Reconsideration.

                Under the Rules of Criminal Procedure, if the judgment is for conviction and the failure of the accused to appear was without justifiable cause, the accused shall lose the available remedies. However, the accused may surrender within 15 days from promulgation of the judgment and file a motion for leave of court to avail of the remedies.

                Here, Balatong and Labong neither appeared during the promulgation of their judgment, presented a justifiable cause nor surrender within the 15-day period, losing all the available remedies provided in the Rules. Hence, the court has exceeded its jurisdiction when it allowed the Joint Motion for Reconsideration.

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

                 No, Balatong and Labong cannot appeal their conviction in case Ludong accepts his conviction.

                Under the Rules of Criminal Procedure, when an accused fails to appear during the promulgation of the judgment of conviction without justifiable cause, he loses all available remedies in the Rules including the remedy of appeal.

                Hence, Balatong and Labong are not allowed by the Rules to appeal their conviction.

 

II.

 McJolly is a trouble-maker of sorts, always getting into brushes with the law. In one incident, he drove his Humvee recklessly, hitting a pedicab which sent its river and passengers in different directions. The pedicab driver died, while two (2) of the passengers suffered slight physical injuries. Two (2) Informations were then filed against McJolly. One, for Reckless Imprudence Resulting in Homicide and Damage to Property, and two, for Reckless Imprudence Resulting in Slight Physical Injuries. The latter case was scheduled for arraignment earlier, on which occasion McJolly immediately pleaded guilty. He was meted out the penalty of public censure. A month later, the case for reckless imprudence resulting in homicide was also set for arraignment. Instead of pleading, McJolly interposed the defense of double jeopardy. Resolve. (4%)

                 McJolly may not quash the information on the ground of double jeopardy.

            Settled is the doctrine that prior conviction or acquittal of reckless imprudence bars the subsequent prosecution for the same quasi-offense regardless of its various resulting acts; otherwise, prosecution of the second quasi-offense would place the accused in double jeopardy. In such a case, the accused may move to quash the information for the second quasi-offense.

                Hence, McJolly may move to quash the information for Reckless Imprudence Resulting in Homicide on the ground of double jeopardy.

 

III.

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

 PO2 Asintado immediately went to Kulasa’s rescue. Kulasa, who was then in a state 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 and said “Kaya ko. Mababaw lang to. Habulin mo si Rene.”

 The following day, Rene learned of Kulasa’s death and, bothered by his  conscience, surrendered to the authorities with his counsel. As his surrender was broadcasted all over media, Rene opted to release his statement to the press which goes:

 “I believe that I am entitled to the presumption of innocence until my guilt is proven  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 us all. (Sgd.) Rene”

 The trial court convicted Rene of homicide on the basis of PO2 Asintado’s testimony, 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 the latter did not have any personal knowledge of the facts in issue, and violated Rene’s right to due process when it considered Kulasa’s statements despite lack of opportunity for her cross-examination.

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

                 Rene’s contentions have no legs to stand on.

               Under the Rules of Evidence, testimonies based on personal knowledge and part of res gestae are given probative value to convict the accused. Personal knowledge pertains to a witness’ testimony derived from is own perception of the criminal acts, while part of res gestae whish is an exception to the hearsay rule pertains to a statement made by a victim before, during or immediately after the commission of a crime by the accused. On the other hand, confessions to be taken as mitigating circumstance must be made with the acknowledgment of the confessant’s guilt.

                Here, PO2 Asintado’s testimonies were based on personal knowledge as well as a part of res gestae, hence sufficient to convict Rene. On the other hand, the press release cannot be considered as a confession absent Rene’s acknowledgment of guilt. Hence, Rene’s contentions should be denied.

 

IV.

 An order of the court requiring a retroactive re-dating of an order, judgment or document 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

 B

V.

 Landlord, a resident of Quezon City, entered into a lease contract with Tenant, a resident of Marikina City, over a residential house in Las Piñas City. The lease contract provided, 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 migrated to the United States of America (USA) but granted in favor of his sister Maria, a special power of attorney to manage the property and file and defend suits over the property rented 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 rentals plus interests due. (6%)

 (A) What judicial remedy would you recommend to Maria?

                 Pursuant to the Rules on Civil Procedure, I would recommend to Maria to send the Tenant a demand for the payment of the rentals plus interests, then file for an Unlawful Detainer five days from the Tenant’s receipt of the demand and failure to make a payment.

(B) Where is the proper venue of the judicial remedy which you recommended?

                 Applying the Rules of Ejectment to this case, the complaint for Unlawful Detainer shall be filed before the Municipal Trail Court (MTC) where the real property involved is situated, hence in Las Pinas City.

 (C) If Maria insists on filing an ejectment suit against Tenant, when do you reckon the one (1)-year period within which to file the action?

                 Under Rule 70 of the Rules of Civil Procedure, the one-year period is reckoned from the date of demand and failure to make a payment.

 

VI.

 As a rule, courts may not grant an application for provisional remedy without complying 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

 D

 VII.

 Co Batong, a Taipan, filed a civil action for damages with the Regional Trial Court (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. The complaint alleged, among others, that Jose Penduko wrote malicious and defamatory imputations 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 moral damages; 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 for damages in the amount of P350,000.00 fall within the exclusive original jurisdiction of the Metropolitan Trial Court (MeTC) of Parañaque City.

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

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

                 No, the grounds of lack of jurisdiction and improper venue invoked in the Motion to Dismiss are not proper.

                Settled is the rule that in cases where the claim for damages is the main action, the claim comprises all kinds of damages, including attorney’s fees. On the other hand, the venue for the complaint for damages arising from Libel is the RTC of the province where the libelous material was published.

                Here, the total jurisdictional amount of claim for damages including attorney’s fees falls within the jurisdiction of the RTC, and the libelous material was published in Paranaque City. Hence, the case was properly filed in the RTC of Paranaque City.

 

VIII.

 Johnny, a naturalized citizen of the United States of America (USA) but formerly a Filipino citizen, executed a notarial will in accordance with the laws of the State of California, 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 Fort Bonifacio, Taguig City; a younger brother, Bartolome, who manages Johnny’s fish pond in Lingayen, Pangasinan; and a younger sister, Christina, who manages Johnny’s rental condominium 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 the Philippines?

                 Yes, Johnny’s notarial will can be probated before the proper court in the Philippines.

                Under the Ruled of Special Proceedings, a will of a non-resident alien who left an estate in the Philippines may be probated before the RTC of the province or city where the estate is located.

                Here, the testator Johnny was a non-resident alien who left some estates in the Taguig City, Makati City, and Pangasinan. Hence, his will can be probated before the RTC of any of these cities and province in the Philippines.

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

                 Yes, Anastacia is qualified to be the executrix of Johnny’s notarial will.

                Under the Rules of Special Proceedings, any executor named in a will and who is not incompetent—minor, non-resident, or unfit to execute the trust—is qualified to serve as executor or executrix.

                Here, Anastaciais the person named in the will; she is not incompetent to serve. Hence, Anastacia is qualifieid to be the executrix of Johnny’s will.

 IX.

 Bayani, an overseas worker based in Dubai, issued in favor of Agente, a special power of attorney to sell his house and lot. Agente was able to sell the property but failed to remit the proceeds to Bayani, as agreed upon. On his return to the Philippines, Bayani, by way of a demand letter duly received by Agente, sought to recover the amount due him. Agente failed to return the amount as he had used it for the construction of his own house. Thus, Bayani filed an action against Agente for sum of money with damages.  Bayani subsequently filed an ex-parte motion for the issuance of a writ of preliminary 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 the required bond. Bayani prayed that the court’s sheriff

be deputized to serve and implement the writ of attachment. On November 19, 2013, the Sheriff served upon Agente the writ of attachment and levied on the latter’s house and lot. On November 20, 2013, the Sheriff served on Agente summons and a copy of the complaint. 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 was issued, he has not been served with summons and, therefore, it was improperly issued. (4%)

 (A) Is Agente correct?

                 Yes, Agente is correct in moving for the discharge of the writ of attachment.

               Under the Rules of Criminal Procedure, the party whose property has been ordered attached may file a motion to discharge the attachment on the ground that the writ was improperly enforced, such as when the rule on prior or contemporaneous service of summons was not observed.

        Here, the writ of attachment was enforced prior to instead of subsequent or contemporaneous with the service of summons upon the defendant Agente. Hence, the writ of attachment should be discharged on the ground of improper enforcement of the writ of attachment.

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

                 No, the writ of preliminary attachment was not properly executed.

              Pursuant to the Rules on Civil Procedure, no levy on attachment shall be enforced unless it is preceded or contemporaneous ly accompanied by service of summons together with a copy of the complaint.

                Here, the writ of preliminary attachment was served and levied prior to the service of summons with a copy of the complaint. Hence, the writ was improperly executed.

 

X.

 Prince Chong entered into a lease contract with King Kong over a commercial building where the former conducted his hardware business. The lease contract stipulated, among others, a monthly rental of P50,000.00 for a four (4)-year period commencing 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 failed to pay the rentals for the months of January to June 2013 despite King Kong’s written demands. Thus, on July 1, 2013, King Kong filed with the Regional Trial Court (RTC) an action 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 RTC is without jurisdiction since the amount claimed is only P300,000.00?

                No, Kin Il Chong cannot move to dismiss the complaint on the ground of lack of jurisdiction.

                Settled is the rule in Civil Procedure that an action for specific performance and damages is incapable of pecuniary estimation that falls under the jurisdiction of the RTC.

                Here, the action is for specific performance and damages which is incapable of pecuniary estimation. Thus, the complaint falls squarely within the jurisdiction of the RTC, rendering the motion to dismiss without merit.

(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 dismissible upon Prince Chong’s death during the pendency of the case?

                Yes, the complaint will be dismissible if it is for sum of money only in the amount of P300,000.

               The Supreme Court has held several times that the totality of the amount claimed is determinative of what court has jurisdiction; where the total amount of the claim is only P300,000, the jurisdiction is with the MTC.

                Hence, the motion to dismiss on the ground of lack of jurisdiction will be untenable insofar as the total amount of the claim is P300,000.

XI.

 A search warrant was issued for the purpose of looking for unlicensed firearms in 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 other portions of the premises around the house. In a nipa hut thirty (30) meters away from the 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 to charge Ass-asin with illegal possession of marijuana. Ass-asin objected to the introduction of such evidence claiming that it was illegally seized. Is the objection of Assasin valid? (4%)

                 Yes, the objection of Ass-asin is valid.

                 It is basic hornbook doctrine in Criminal Procedure that articles that are seized illegally are inadmissible in evidence, based on the constitutional guideline that articles to be seized should be particularly described in the search warrant.

                 Here, the kilo of marijuana seized was not particularly described in the search warrant. Therefore, the seized kilo of marijuana is inadmissible in evidence, and the objection is valid.

 

XII.

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

 Mary Jane returned to the Philippines to prepare for her wedding. She secured from the National Statistics Office (NSO) a Certificate of No Marriage. It turned out from the NSO records that Mary Jane had previously contracted marriage with John Starr, a British 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 legal remedy will you avail to enable Mary Jane to contract marriage with Sultan Ahmed? (4%)

                       I will advise Mary Jane to avail of Rule 108 to cancel the fake certificate of marriage.

                   Under the Rules of Special Proceedings, any interested party may file for the cancellation of entry of marriage before the RTC in the province where the corresponding civil registry is located.  The Supreme Court has held that there is no need to file a petition for declaration of nullity of marriage since there was no marriage to speak of in the first place.

               Hence, Mary Jane should file a petition for the cancellation of entry of marriage before the RTC of the province where the local civil registry is located.

 

 XIII.

 A foreign dog trained to sniff dangerous drugs from packages, was hired by FDP Corporation, a door to door forwarder company, to sniff packages in their depot at the international 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 signal that the package contained dangerous drugs. Thereafter, the guards opened the package and found two (2) kilograms of cocaine. The owner of the package was arrested and charges were filed against him. During the trial, the prosecution, through the trainer who was present during the incident and an expert in this kind of field, testified that the dog was highly trained to sniff packages to determine if the contents were dangerous drugs and the sniffing technique of these highly trained dogs was accepted worldwide and had been successful in dangerous drugs operations. The prosecution moved to admit this evidence to justify the opening of the package. The accused objected 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 is hearsay; and (iii) the accused could not cross-examine the dog. Decide. (4%)

                 The seized dangerous drugs are admissible in evidence against the owner of the package.

                Well-entrenched is the doctrine that articles seized during an airport search is an exception to the rule on illegal searches and therefore admissible in evidence.

                Here, the dangerous drugs were seized in an airport search setting. Ergo, such articles are admissible in evidence against the owner of the package where the articles were seized.

 

XIV.

 When a Municipal Trial Court (MTC), pursuant to its delegated jurisdiction, renders an adverse judgment in an application for land registration, the aggrieved party’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

               C

 XV.

 The Ombudsman, after conducting the requisite preliminary investigation, found probable cause to charge Gov. Matigas in conspiracy with Carpintero, a private individual, for violating Section 3(e) of Republic Act (RA) No. 3019 (Anti-Graft and Corrupt Practices Act, as amended). Before the information could be filed with the Sandiganbayan, Gov. Matigas was killed 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 the Information, 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%)

                 No, the motion to quash is not legally tenable.

                Under the Rules of Criminal Procedure, the Sandiganbayan has jurisdiction over a private individual who conspired with a public official in committing any of the prohibited acts under RA 3019.

                Hence, the Sandiganbayan can prosecute Carpintero for the criminal acts he committed under RA 3019 notwithstanding the death of his co-conspirator public official, rendering the motion to quash without merit.

 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 lessor of defendant, stating that Z had sold to plaintiff all his rights and interests in the property as shown by a deed of transfer attached to the affidavit. Thus, plaintiff may ask the court to render: (1%)

 (A) summary judgment

(B) judgment on the pleadings

(C) partial judgment

(D) judgment by default

               A

  XVII.

 A was charged before the Sandiganbayan with a crime of plunder, a non-bailable offense, where the court had already issued a warrant for his arrest. Without A being arrested, his lawyer filed a Motion to Quash Arrest Warrant and to Fix Bail, arguing that the allegations in the information did not charge the crime of plunder but a crime of malversation, 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 accused should 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 even if the accused was at-large because it had jurisdiction over the subject matter of the case. According to said lawyer, there was no need for the accused to be under the custody of the court because what was filed was a Motion to Quash Arrest and to Fix Bail, not a Petition for Bail.

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

                 I will deny the motion to quash and fix bail.

                The Rules of Criminal Procedure is clear that a motion to quash can be availed of only when a ground or grounds set therein are available as when the facts charged do not constitute an offense. Moreover, an application for bail sets in only when the accused has already acquired custody of the accused.

                Here, the information charges an offense which is the nonbailable crime of plunder.  Besides, the warrant of arrest has yet to be filed, meaning that A is not yet under the custody of the court. Therefore, the motion to quash and fix bail has no basis hence should be denied. 

(B) If the Sandiganbayan denies the motion, what judicial remedy should the accused undertake? (2%)

                 If the Sandiganbayan denies the motion, the accused should proceed to trial.

                Under the Rules of Criminal Procedure, an order denying a motion to quash is an interlocutory order which is neither appealable nor subject to a petition for certiorari.

               Therefore, the remedy of the accused is to proceed to trial, await its judgment, then appeal an unfavorable judgment.

 

XVIII.

 A was charged with murder in the lower court. His Petition for Bail was denied after a summary hearing on the ground that the prosecution had established a strong evidence 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 his petition 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 court denied the petition on the grounds that it had already ruled that: (i) the evidence of guilt is strong; (ii) the resolution for the Petition for Bail is solely based on the evidence presented by the prosecution; and (iii) no Motion for Reconsideration was filed from the denial of the Petition for Bail. (6%)

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

                 I will deny the petition for bail.

                Basic is the hornbook doctrine that bail is not a matter of right nor discretion when the offense charged is punishable by reclusion perpetua and the evidence of guilt is strong.

              Here, the offense charged is non-bailable, and the prosecution has established a strong evidence of A’s guilt. Thus, A is not entitled to bail.

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

                   No, A is not entitled to bail even pending appeal.

             The standing rule is that if the penalty imposed by the trial court is imprisonment exceeding six years, the application for bail pending appeal shall be denied.

             Here, the imposable penalty for homicide to which A has been convicted is imprisonment exceeding six years, and hence not entitled to bail pending appeal.

 

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

           C

 XX.

 Tom Wallis filed with the Regional Trial Court (RTC) a Petition for Declaration of Nullity of his marriage with Debi Wallis on the ground of psychological incapacity of the latter. Before filing the petition, Tom Wallis had told Debi Wallis that he wanted the annulment of their marriage because he was already fed up with her irrational and eccentric behaviour. However, in the petition for declaration of nullity of marriage, the correct residential address of Debi Wallis was deliberately not alleged and instead, the residential address of their married son was stated. Summons was served by substituted service at the address stated in the petition. For failure to file an answer, 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 of psychological incapacity of Debi Wallis. Three (3) years after the RTC judgment was rendered, 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 you take? Discuss and specify the ground or grounds for said remedy or remedies. (5%)

                I will file for annulment of judgment on the ground of extrinsic fraud.

                Under Rule 47 of the Rules of Civil Procedure, a petition for annulment of judgment on the ground of extrinsic fraud may be filed with the Court of Appeals within four years from the discovery of the extrinsic fraud, when the other remedies are no longer available available.

                Here, the other remedies are no longer available insofar as three years had lapsed since the promulgation of the judgment, leaving Debi with annulment of judgment as the remaining available remedy. Hence, the filing of a petition for annulment of judgment on the ground of extrinsic fraud shall be properly taken.

 

XXI.

 Goodfeather Corporation, through its President, Al Pakino, filed with the Regional Trial Court (RTC) a complaint for specific performance against Robert White. Instead of filing an answer to the complaint, Robert White filed a motion to dismiss the complaint on the ground of lack of the appropriate board resolution from the Board of Directors of Goodfeather Corporation to show the authority of Al Pakino to represent the corporation and file the complaint in its behalf. The RTC granted the motion to dismiss and, accordingly, it ordered the dismissal of the complaint. Al Pakino filed a motion for reconsideration which the RTC denied. As nothing more could be done by Al Pakino before the RTC, he filed an appeal before the Court of Appeals (CA). Robert White 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, Al Pakino claimed that the appeal involved mixed questions of fact and law because there must be a factual determination if, indeed, Al Pakino was duly authorized by Goodfeather Corporation to file the complaint. Whose position is correct? Explain. (4%)

                 Al Parkino’s position is correct.

                Pursuant to the Rules of Civil Procedure, appeals involving questions of law and of fact shall be filed with the Court of Appeals.

                The appeal in this case involves determination of the authority of Al Parkino to file a complaint which is a question of fact. Hence, the appeal should properly be with the Court of Appeals.

 

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 of law) (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

 B

 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 timely filed an appeal before the Court of Appeals (CA), questioning the RTC decision. Meanwhile, the RTC granted Mr. Humpty’s motion for execution pending appeal. Upon receipt of the RTC’s order granting execution pending appeal, Ms. Dumpty filed with the CA another case, this time a special civil action for certiorari assailing said RTC order. Is there a violation of the rule against forum shopping considering that two (2) actions emanating from the same case with the RTC were filed by Ms. Dumpty with the CA? Explain. (4%)

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

                The settled rule in Civil Procedure is that forum shopping applies only when what is filed are complaints or initiatory pleadings.

                Here, the appeal and petition for certiorari are neither complaints nor initiatory pleadings. Thus, the proscription against forum shopping does not apply.

 

XXIV.

 Solomon and Faith got married in 2005. In 2010, Solomon contracted a second marriage with Hope. When Faith found out about the second marriage of 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 on the ground of prejudicial question. He asserts that the proceedings in the criminal case should 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%)

                 The motion to suspend the proceeding in the case for bigamy should be denied.

                The established rule in Criminal Procedure is that prejudicial question exists when a civil action has been filed prior to a criminal action, and the resolution of the civil action is determinative of whether the criminal action should proceed. Moreover, the crime of bigamy is committed by the mere contracting of a second marriage during the subsistence of a first marriage with a different spouse notwithstanding the voidness of the previous of subsequent marriage.

                Here, the civil action for the declaration of nullity of marriage was filed not prior but subsequent to the criminal case for bigamy. Importantly, Solomon had contracted a second marriage during the subsistence of his first marriage with another spouse. Hence, there exists no prejudicial question that merits the suspension of the criminal prosecution for bigamy.

 

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 proceedings knowing 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 always raise the issue on the jurisdiction of the MeTC. After trial, the MeTC rendered judgment against 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

        B

 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

            A

 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 to dismiss the complaint on the ground of lack of cause of action. Mr. Avenger filed an opposition to the motion to dismiss.  State and discuss the appropriate remedy/remedies under each of the following situations: (6%)

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

        Mr. Avenger can re-file the case pursuant to Rule 16 of the Rules of Civil Procedure.

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

                 Applying Rule 16, Ms. Bright can file an answer within the balance of the period but not less than 5 days, or file a petition for certiorari under Rule 65 predicated on a grave abuse of discretion amounting to lack or in excess of jurisdiction.

 (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 favor of Mr. Avenger, what will be the remedy/remedies of Ms. Bright?

                 Ms. Bright can file for a motion for reconsideration and in case of the denial thereof to file an appeal from te judgment or final order, likewise pursuant to Rule 16.

 

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 the Rules of Court, as he wanted to reassume the surname of his natural parents because the 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 of name, what, if any, will be the effect on the respective relations of A with his adoptive parents and with his natural parents? Discuss. (4%)

                     Yes, A may file a petition for change of name.

                Under the Rules of Summary Proceedings, a petition for change of name (surname) may be filed with the RTC on the grounds that the name is ridiculous, dishonorable or extremely difficult to write or pronounce, and the change is a legal consequence of adoption.

                Hence, A may file a petition for change of name insofar as the grounds are available to him.

 XXIX.

 Estrella was the registered owner of a huge parcel of land located in a remote part of their barrio in Benguet. However, when she visited the property after she took a long 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 recover possession, 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 of title and tax declaration which showed the assessed value of the property as P21,000.00. On the other hand, John refuted Estrella’s claim of ownership and submitted in evidence a Deed of Absolute Sale between him and Estrella. After the filing of John’s answer, the MTC observed that the real issue was one of ownership and not of possession. Hence, the MTC dismissed the complaint for lack of jurisdiction.

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

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

                    No, the MTC was not correct in dismissing the complaint for lack of jurisdiction.

                Under the Rules on Ejectment, the action for ejectment is within the exclusive and original jurisdiction of the MTC irrespective of total amount of the claims.

                Hence, it was erroneous for the MTC to dismiss the complaint for ejectment as it falls properly within its jurisdiction.

(B) Was the RTC correct in ruling that based on the assessed value of the property, 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?

                  No, the RTC ruling based on the assessed value is not correct.

                  The Supreme Court in applying the Rules has held that what determines jurisdiction of the court as conferred by law is the nature of the action pleaded as appearing from the allegations in the complaint. The averments therein and the character of the relief sought are the ones to be consulted.

               Here, the jurisdiction over ejectment cases is conferred by law exclusively and originally upon the MTC. Necessarily, the nature of the action is alleged by the facts in the complaint herein. Hence, the RTC should have remanded the case to the MTC since it is the latter that has jurisdiction over the case.

 —ooo0ooo—

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