Bar Q & A, Remedial Law

2007 Remedial Law BAR EXAM Q&A (with A Summary of Topics covered)

Recognition of Foreign Judgments
Foreign Arbitral Award
Global Injunction
Petition for Relief from judgment
Hearsay Rule
Declaration of Nullity of Marriage
Habeas Corpus (Custody of minor child)
Demurrer to Evidence
Right to Speedy Trial
Certificate against Forum Shopping
Extrajudicial Settlement of Estate
Reversed Trial
Petition for Annulment of Judgment

(Total 10%)

(a) What are the rules on the recognition and enforcement of foreign judgments in our courts? (6%)

Judgments of foreign courts are given recognition in our courts thus:

In case of judgment upon a specific thing, the judgment is conclusive upon the title to the thing, unless otherwise repelled by evidence of lack of jurisdiction, want of due notice to the party, collusion, fraud, or clear mistake of law or fact(Rule 39, Sec. 48 [a], Rules of Court); and
In case of judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by subsequent title, unless otherwise repelled by evidence on grounds above stated (Rule 39, Sec. 48 [b], Rules of Court).

However, judgments of foreign courts may only be enforced in the Philippines through an action validly heard in a Regional Trial Court. Thus, it is actually the judgment of the Philippine court enforcing the foreign judgment that shall be executed.


(b) Can a foreign arbitral award be enforced in the Philippines under those rules?

Explain briefly. (2%)


No, a foreign arbitral award cannot be enforced in the Philippines under the rules on the recognition and enforcement of foreign judgments above-stated. A foreign arbitral award is not a foreign judgment, and pursuant to the Alternative Dispute Resolution Act of 2004 (R.A. No. 9285), in relation to 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the recognition and enforcement of the foreign arbitral awards shall be in accordance with the rules of procedure to be promulgated by the Supreme Court. At present, the Supreme Court is yet to promulgate rules of procedure on the subject matter.

How about a global injunction issued by a foreign court to prevent dissipation of funds against a defendant therein who has assets in the Philippines? Explain briefly. (2%)


Yes, a global injunction issued by a foreign court to prevent dissipation of funds against a defendant who has assets in the Philippines may be enforced in our jurisdiction, subject to our procedural laws.
As a general rule, no sovereign is bound to give effect within its dominion to a judgment or order of a tribunal of another country. However, under the rules of comity, utility and convenience, nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries (St. Aviation Services Co., Pte., Ltd. v. Grand International Airways, Inc., 505 SCRA 30/2006); Asiavest Merchant Bankers (M) Berhadv. Court of Appeals, 361 SCRA 489 [2001]).

(Total 10%)

True or False. If the answer is false, explain your answer briefly.

The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose had said to her, in a claim filed by Pedro against the estate of Jose. (3%)


False. The said rule bars only parties-plaintiff and their assignors, or persons prosecuting a claim against the estate of a deceased; it does not cover Maria who is a mere witness. Furthermore, the disqualification is in respect of any matter of fact occurring before the death of said deceased (Sec. 23, Rule 130, Rules of Court, Razon v. Intermediate Appellate Court, 207 SCRA 234 [1992]). It is Pedro who filed the claim against the estate of Jose.

(b)A defendant who has been declared in default can avail of a petition for relief from the judgment subsequently rendered in the case. (3%)


False. The remedy of petition for relief from judgment is available only when the judgment or order in question is already final and executory, i.e., no longer appealable. As an extraordinary remedy, a petition for relief from judgment may be availed only in exceptional cases where no other remedy is available.

(c) A motion is a pleading, (2%)


False. A motion is not a pleading but a mere application for relief other than by a pleading (Rule 15, Sec. 1, Rules of Court).

(d) A counterclaim is a pleading. (2%)


True. A counterclaim is a pleading by which a defending party makes a claim against an opposing party (Sec. 6, Rule 6, Rules of Court).

(Total 10%)

(a) What is the hearsay rule? (5%)


The hearsay rule is a rule of evidence to the effect that a witness can testify only to those facts which he knows of his own knowledge or derived from his own perceptions, except as otherwise provided in the Rules of Court (Rule 130, Sec. 36, Rules of Court).

(b) In relation to the hearsay rule, what do the following rules of evidence have in common? (5%)
(1)The rule on statements that are part of the res gestae;
(2) The rule on dying declarations;
(3) The rule on admissions against interest.


The rules on the evidence specified in the question asked, have in common the following:
(a) The evidence although hearsay, are allowed by the Rules as exceptions to the hearsay rule;
(b) The facts involved are admissible in evidence for reasons of necessity and trustworthiness; and
(c) The witness is testifying on facts which are not of his own knowledge or derived from his own perception.

(Total 10%)

Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City. Wife W files a petition for habeas corpus before the RTC of Pasay City, praying for custody over their minor child. H files a motion to dismiss the wife’s petition on the ground of the pendency of the other case. Rule.


The motion to dismiss the petition for habeas corpus should be granted to avoid multiplicity of suits. The question of who between the spouses should have custody of their minor child could also be determined in the petition for declaration of nullity of their marriage which is already pending in the RTC of Pasig City. In other words, the petition filed in Pasig City, praying for custody of the minor child is unnecessary and violates only the cardinal rule of procedure against multiplicity of suits. Hence, the latter suit may be abated by a motion to dismiss on the ground of litis pendentia (Yu v. Yu, 484 SCRA 485 [2006]).

(Total 10%)

(a) Distinguish the effects of the filing of a demurrer to the evidence in a criminal case and its filing in a civil case. (5%)


The following are the distinctions in effects of demurrer to the evidence in criminal cases from that in civil cases:

1. In criminal cases, demurrer to the evidence requires prior leave of court, otherwise the accused would lose his right to present defense evidence if filed and denied; in civil cases, no leave of court is required for filing such demurrer.

2. In criminal cases, when such demurrer is granted, the dismissal of the case is not appealable inasmuch as the dismissal would amount to an acquittal, unless made by a court acting without or in excess of jurisdiction; in civil cases, when such demurrer is granted, the dismissal of the case can be appealed by the plaintiff.

3. In criminal cases, the accused loses his right to present his defense-evidence in the trial court when he filed the demurrer without prior leave of court; while in civil cases, the defendant loses his right to present his defense-evidence only if the plaintiff appealed such dismissal and the case is before the appellate court already since the case would be decided only on the basis of plaintiff’s evidence on record.

(b) What is reverse trial and when may it be resorted to? Explain briefly. (5%)


A reverse trial is one where the defendant or the accused present evidence ahead of the plaintiff or prosecution and the latter is to present evidence by way of rebuttal to the former’s evidence. This kind of trial may

take place in a civil case when the defendant’s Answer pleads new matters by way of affirmative defense, to defeat or evade liability for plaintiff’s claim which is not denied but controverted.
In a criminal case, a reverse trial may take place when the accused made known to the trial court, on arraignment, that he is to adduce affirmative defense of a justifying or exempting circumstance and thus impliedly admitting the act imputed to him. The trial court may then require the accused to present evidence first, proving the requisites of the justifying or exempting circumstance he is invoking, and the prosecution to present rebuttal evidence controverting the same.

(Total 10%)

(a) On his way home, a member of the Caloocan City police force witnesses a bus robbery in Pasay City and effects the arrest of the suspect. Can he bring the suspect to Caloocan City for booking since that is where his station is? Explain briefly. (5%)


No, the arresting officer may not take the arrested suspect from Pasay City to Caloocan City. The arresting officer is required to deliver the person arrested without a warrant “to the nearest police station or jail” (Rule 112, sec. 5, 2000 Rules of Criminal Procedure). To be sure, the nearest police station or jail is in Pasay City where the arrest was made, and not in Caloocan City.
(b) In the course of serving a search warrant, the police finds an unlicensed firearm. Can the police take the firearm even if it is not covered by the search warrant? If the warrant is subsequently quashed, is the police required to return the firearm? Explain briefly. (5%)


Yes, the police may take with him the “unlicensed” firearm although not covered by the search warrant. Possession of an “unlicensed firearm” is a criminal offense and the police officer may seize an article which is the “subject of an offense.” This is especially so considering that the “unlicensed firearm” appears to be in “plain view” of the police officer when he conducted the search.
Even if the warrant was subsequently quashed, the police is not mandated to return the “unlicensed firearm.” The quashal of the search warrant did not affect the validity of the seizure of the “unlicensed firearm.” Moreover, returning the firearm to a person who is not otherwise allowed by law to possess the same would be tantamount to abetting a violation of the law.

(Total 10%)

B files a petition for cancellation of the birth certificate of her daughter R on the ground of the falsified material entries therein made by B’s husband as the informant. The RTC sets the case for hearing and directs the publication of the order once a week for three consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. R filed a petition for annulment of judgment before the Court of Appeals, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. B opposed saying that the publication of the court order was sufficient compliance with due process. Rule. (5%)


R’s petition for annulment of judgment before the Court of Appeals should be granted. Although there was publication of the court order acting the petition to cancel the birth certificate, reasonable notice still has to be served on R as she has an a interest affected by the cancellation. (Secs. 3 and 4, Rule 108, Rules of Court) She is an indispensable party (Republic v. Benemerito, 425 SCRA 488 [2004]), and notice has to be served on her, not for the purpose of vesting the court with jurisdiction, but to comply with the requirements of fair play and due process (Ceruila v.Delantar, 477 SCRA 134 [2005]).


The petition for annulment of judgment should not be granted. While R is an indispensable party, it has been held that the failure to serve notice on indispensable parties is cured by the publication made because the action is one in rem (Alba v. Court of Appeals, 465 SCRA 495 [2005]; Barco v. Court of Appeals, 420 SCRA 39 [2005]).

(b) G files a complaint for recovery of possession and damages against F. In the course of the trial, G marked his evidence but his counsel failed to file a formal offer of evidence. E then presented in evidence tax declarations in the name of his father to establish that his father is a co-owner of the property. The court ruled in favor of F, saying that G failed to prove sole ownership of the property in the face of F’s evidence. Was the court correct? Explain briefly. (5%)


No, the trial court is not correct in ruling in favor of F. Tax Declarations are not by themselves evidence of ownership; hence, they are not sufficient evidence to warrant a judgment that F’s father is a co-owner of the property.
Plaintiff’s failure to make a formal offer of his evidence may mean a failure to prove the allegations in
his complaint. However, it does not necessarily result in a judgment awarding co-ownership to the defendant.
While the court may not consider evidence which is not offered, the failure to make a formal offer of evidence is a technical lapse in procedure that may not be allowed to defeat substantive justice. In the interest of justice, the court can require G to offer his evidence and specify the purpose thereof.

(Total 10%)

(a) X files an unlawful detainer case against Y before the appropriate Metropolitan Trial Court. In his answer, Y avers as a special and affirmative defense that he is a tenant of X’s deceased father in whose name the property remains registered. What should the court do? Explain briefly. (5%)


The court should hold a preliminary conference not later than thirty (30) days after the defendant’s Answer was filed, since the case is governed by summary procedure under Rule 70, Rules of Court, where a Reply is not allowed. The court should receive evidence to determine the allegations of tenancy. If tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction.

If it would appear that Y’s occupancy of the subject property was one of agricultural tenancy, which is governed by agrarian laws, the court should dismiss the case because it has no jurisdiction over agricultural tenancy cases. Defendant’s allegation that he is a “tenant” of plaintiff’s deceased father suggests that the case is one of landlord tenant relation and therefore, not within the jurisdiction of ordinary courts.

(b) The heirs of H agree among themselves that they will honor the division of H’s estate as indicated in her Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will, can they instead execute an Extrajudicial Settlement Agreement among themselves? Explain briefly. (5%)


The heirs of H cannot validly agree to resort to extrajudicial settlement of his estate and do away with the probate of H’s last will and testament. Probate of the will is mandatory (Guevarra v. Guevarra, 74 Phil. 479 [1943]). The policy of the law is to respect the will of the testator as manifested in the other dispositions in his last will and testament, insofar as they are not contrary to law, public morals and public policy. Extrajudicial settlement of an estate of a deceased is allowed only when the deceased left no last will and testament and all debts, if any, are paid (Rule 74, Sec. 1, Rules of Court).

(Total 10%)

I was charged with illegal possession of shabu before the RTC. Although bail was allowable under his indictment, he could not afford to post bail, and so he remained in detention at the City Jail. For various reasons ranging from the promotion of the Presiding Judge, to the absence of the trial prosecutor, and to the lack of notice to the City Jail Warden, the arraignment of L was postponed nineteen times over a period of two years. Twice during that period, L’s counsel filed motions to dismiss, invoking the right of the accused to a speedy trial. Both motions were denied by the RTC. Can L file a petition for mandamus? Reason briefly.


Yes, L can file a petition for mandamus to enforce his constitutional right to a speedy trial which was capriciously denied to him.

There is absolutely no justification for postponing an arraignment of the accused nineteen (19) times and over a period of two (2) years. The numerous, unreasonable postponements of the arraignment demonstrate an abusive exercise of discretion (Lumanlaw v. Peralta, 482 SCRA 396 [2006]). Arraignment of an accused would not take thirty minutes of the precious time of the court, as against the preventive imprisonment and deprivation of liberty of the accused just because he does not have the means to post bail although the crime charged is bailable.

The right to a speedy trial is guaranteed by the Constitution to every citizen accused of a crime, more so when he is under preventive imprisonment. L, in the given case, was merely invoking his constitutional right when a motion to dismiss the case was twice filed by his counsel. The RTC is virtually enjoined by the fundamental law to respect such right; hence a duty. Having refused or neglected to discharge the duty enjoined by law whereas there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law, the remedy of mandamus may be availed of.

(Total 10%)

(a) RC filed a complaint for annulment of the foreclosure sale against Bank V. In its answer, Bank V set up a counterclaim for actual damages and litigation expenses. RC filed a motion to dismiss the counterclaim on the ground that Bank V’s Answer with Counterclaim was not accompanied by a certification against forum shopping. Rule. (5%)


A certification against forum shopping is required only in initiatory pleadings. In this case, the counterclaim pleaded in the defendant’s Answer appears to have arisen from the plaintiff’s complaint or compulsory in nature and thus, may not be regarded as an initiatory pleading. The absence thereof in the Bank’s Answer is not a fatal defect. Therefore, the motion to dismiss on the ground raised, lacks merit and should be denied (UST v. Surla, 294 SCRA 382 [1998]).

On the other hand, if the counterclaim raised by the defendant Bank’s Answer was not predicated on the plaintiff’s claim or cause of action, it is considered a u permissive counterclaim. In which case, it would partake of an initiatory pleading which requires a certification against forum shopping. Correspondingly, the motion to dismiss based on lack of the required certificate against forum shopping should be granted.

(b) A files a case against B. While awaiting decision on the case, A goes to the United States to work. Upon her return to the Philippines, seven years later, A discovers that a decision was rendered by the court in her favor a few months after she had left. Can A file a motion for execution of the judgment? Reason briefly. (5%)


On the assumption that the judgment had been final and executory for more than five (5) years as of A’s return to the Philippines seven (7) years later, a motion for execution of the judgment is no longer availing because execution of judgment by mere motion is allowed by the Rules only within five (5) years from entry of judgment; thereafter, and within ten (10) years from entry of judgment, an action to enforce the judgment is required

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