Bar Q & A, Remedial Law

2015 Bar Exam Suggested Answers in Remedial Law by the UP Law Complex

I.

Lender extended to Borrower a P100,000.00 loan covered by a promissory note. Later, Borrower obtained another P100,000.00 loan again covered by a promissory note. Still later, Borrower obtained a P300,000.00 loan secured by a real estate mortgage on his land valued at P500,000.00 Borrower defaulted on his payments when the loans matured. Despite demand to pay the P500,000.00 loan, Borrower refused to pay, Lender, applying the totality rule, filed against Borrower with the Regional Trial Court (RTC) of Manila, a collection suit for P500,000.00.

(A) Did Lender correctly apply the totality rule and the rule on joinder of causes of action? (2%)

At the trial, Borrower’s lawyer, while cross-examining Lender, successfully elicited an admission from the latter that the two promissory notes have been paid. Thereafter, Borrower’s lawyer filed a motion to dismiss the case on the ground that as proven only P300,000.00 was the amount due to Lender and which claim is within the exclusive original jurisdiction of the Metropolitan Trial Court. He further argued that lack of jurisdiction over the subject matter can be raised at any stage of the proceedings.

(B) Should the court dismiss the case?(3%)

SUGGESTED ANSWER

(A) Yes. The Lender correctly applied the totality rule and the rule on joinder of causes of action because where the claims in all the causes of action are principally for recovery of money, the aggregate amount of the claim shall be the test of jurisdiction (Section 5 (d), Rule 2, Rules of Court). Here, the total amount of the claim is P500,000.00. Hence, the Regional Trial Court (RTC) of Manila has jurisdiction over the suit. At any rate, it is immaterial that one of the loans is secured by a real estate mortgage because the Lender opted to file a collection of sum of money instead of foreclosure of the said mortgage.

(B) No. The court should not dismiss the case. What determines the jurisdiction of the court 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 (Navida v. Hon. Teodoro A. Dizon, Jr., G.R. No. 125078, May 30, 2011).

Accordingly, even if the defendant is able to prove in the course of the trial that a lesser amount is due, the court does not lose jurisdiction and a dismissal of the case is not in order (Paadlan v. Dinglasan, G.R. No. 180321, March 20, 2013).

 

II.

 

Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against siblings Scylla and Charybdis, co-owners of the property and cosignatories to the mortgage deed. The siblings permanently reside in Athens, Greece. Circe tipped oft Sherilt Pluto that Scylla is on a balikbayan and is billeted at the Century Plaza Hotel in Pasay City, Sheriff Pluto went to the hotel and personally served Scylla the summons, but the latter refused to receive summons for Charybdis as she was not authorized to do so. Sheriff Pluto requested Scylla for the email address and has number of Charybdis which the latter readily zave. Sheriff Pluto, in his return of the summons, stated that “Summons for Scylla was served personally as shown by her signature on the receiving copy of the summons, Summons on Charybdis was served pursuant to the amendment of Rule 14, by facsimile transmittal of the surmons and complaint on defendant’s far number as evidenced by transmission verification report automatically generated by the fax machine indicating that it was received by the fax number to which it was sent on the date and time indicated therein.” Circe, sixty (60) days after her receipt of Sheriff Pluto’s return, filed a Motion to Declare Charybdis in default as Charybdis did not file any responsive pleading.

  1. A) Should the court declare Charybdis in default? (2%)

Scylla seasonably filed her answer setting forth therein as a defense that Charybdis had paid the mortgage debt.

(B) On the premise that Charybdis was properly declared in default, what  is the effect of Scylla’s answer to the complaint? (2%)

SUGGESTED ANSWER

(A) No, the Court should not declare Charybdis in default because there was no proper service of summons. Section 12, Rule 14 of the Rules of Court applies only to a foreign private juridical entity that is not registered in the Philippines and has no resident agent in the country, and not to individuals (A.M. No. 11-3-6-SC, March 15, 2011). The service of summons by facsimile under said rule is, therefore, defective. A foreclosure of real estate mortgage is a quasi in rem action, thus, the court can render a judgment as long as it has jurisdiction over the res and any of the modes of extra-territorial service of summons under Sec. 15 of Rule 14 is complied with prior leave of court. There is, unfortunately, no showing in the problem that a prior leave of court was obtained before resorting to extra-territorial service of summons; hence, the service of summons is defective.

(B) Assuming that Charybdis was properly declared in default, the court  shall try the case against all the defendants upon the Answer filed by: Scylla, and render judgment upon the evidence presented (Section 3 (c), Rule 9, Rules of Court).

III.

Juliet, invoking the provisions of the Rule on Violence Against Women and their Children filed with the RTC designated as a Family Court a petition for the Issuance of a Temporary Protection Order (TPO) against her husband Romeo.

The Family Court issued a 30-day TPO against Romeo. A day before the expiration of the TPO, Juliet filed a motion for extension. Romeo in his opposition raised, among others, the constitutionality of R.A. No. 1992 (The VAWC LAW) arguing that the law authorizing the issuance of the TPO violates the equal protection and due process clauses of the 1987 Constitution. The Family Court judge, in granting the motion for extension of the TPO, declined to rule on the constitutionality of R.A. No. 9262. The Family Court judge reasoned that Family Courts are without jurisdiction to pass upon constitutional issues, being a special court of limited jurisdiction and R.A. No. 8369, the law creating the Family Courts, does not provide for such jurisdiction. Is the Family Court judge correct when he declined to resolve the constitutionality of R.A. No. 9262? (3%)

SUGGESTED ANSWER

No, the Family Court Judge is not correct when it declined to resolve the constitutionality of R.A. No. 9262. In Garcia v. Hon. Ray Allan Drilon (G.R. No. 179267, June 25, 2013), the Supreme Court held that the “Family Courts have authority and jurisdiction to resolve the constitutionality of a statute. Inspite of its designation as a family court, the RTC remains possessed of authority as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land registration, guardianship, naturalization, admiralty any or insolvency. This authority is embraced in the general definition of the judicial power to determine the valid and binding laws in conformity with the fundamental law.”

 

IV

Strauss filed a complaint against Wagner for cancellation of title. Wagner moved to dismiss the complaint because Grieg, to whom he mortgaged the property as duly annotated in the TCT, was not impleaded as defendant.

(A) Should the complaint be dismissed? (3%)

(B) If the case should proceed to trial without Grieg being impleaded as a party to the case, what is his remedy to protect his interest? (2%)

SUGGESTED ANSWER

(A) No. The complaint should not be dismissed because the mere  non-joiner of an indispensable party is not a ground for the dismissal of the action (Section 11, Rule 3, Rules of Court; Republic v. Hon. Mangotara, G.R. No. 170375, July 7, 2010, 624 SCRA 360, 431).

(B) If the case should proceed to trial without Grieg being impleaded as a party, he may intervene in the action (Section 1, Rule 19, Rules of Court). He may also file a petition for annulment of judgment under Rule 47 of the Rules of Court. In Metrobank v. Hon. Floro Alejo (G.R. No. 141970, September 10, 2001), the Supreme Court held that in a suit to nullify an existing Torrens Certificate of Title (TCT) in which a real estate mortgage is annotate the mortgagee is an indispensable party. In such suit, a decision canceling the TCT and the mortgage annotation is subject to a per for annulment of judgment, because the non-joinder of the mor 80% deprived the court of jurisdiction to pass upon the controversy. “

 

V.

 

Ernie filed a petition for guardianship over the person and properties of his father, Ernesto. Upon receipt of the notice of hearing, Ernesto filed an opposition to the petition. Ernie, before the hearing of the petition, filed a motion to order Ernesto to submit himself for mental and physical examination which the court granted. After Ernie’s lawyer completed the presentation of evidence in support of the petition and the court’s ruling on the formal offer of evidence, Ernesto’s lawyer filed a demurrer to evidence. Ernie’s lawyer objected on the ground that a demurrer to evidence is not proper in a special proceeding.

(A) Was Ernie’s counsel’s objection correct?

(B) If Ernesto defies the court’s order directing him to submit to physical and mental examinations, can the court order his arrest? (2%)

SUGGESTED ANSWER

(A) No. The Rule on demurrer to evidence is applicable to Special

proceedings (Matute v. CA, G.R. No. L-26751, January 31, 1969, 26 SCRA 768). Moreover, under Section 2, Rule 72 of the Rules of Court, in the absence of special rules, the rules provided for in ordinary actions shall be applicable, as far as practicable, to special proceedings.”

(B) If the order for the conduct of physical and mental examination is issued as a mode of discovery and Ernesto defies the said order, the court cannot validly order his arrest (Section 3 (d), Rule 29 of the Rules of Court).

 

VI.

 

A law was passed declaring Mt. Karbungko as a protected area since it was a major watershed. The protected area covered a portion located in Municipality of the Province I and a portion located in the City of Z of Province II. Maingat is the leader of Samahang Tagapag-ingat ng Karbungko (STK), a people’s organization. He learned that a portion of the mountain located in the City of Z of Province Il was extremely damaged when it was bulldozed and leveled to the ground, and several trees and plants were cut down and burned by workers of World Pleasure Resorts, Inc. (WPRI) for the construction of a hotel and golf course. Upon inquiry with the project site engineer if they had a permit for the project, Maingat was shown a copy of the Environmental Compliance Certificate (ECC) issued by the DENR-EMB, Regional Director (RD-DENR-EMB). Immediately, Maingat and STK filed a petition for the issuance of a writ of continuing mandamus against RD-DENR-EMB and WPRI with the RTC of Province I, a designated environmental court, as the RD-DENR-EMB negligently issued the ECC to WPRI. On scrutiny of the Petition, the Court determined that the area where the alleged actionable or omission subject of the petition took place in the City of Z of Province II, and therefore cognizable by the RTC of Province II. Thus, the court dismissed outright the petition for lack of jurisdiction.

(A) Was the court correct in motu proprio dismissing the petition? (3%)

Assuming that the court did not dismiss the petition, the RD-DENREMB in his Comment moved to dismiss the petition on the ground that petitioners failed to appeal the issuance of the ECC and to exhaust administrative remedies provided in the DENR Rules and Regulations.

(B) Should the court dismiss the petition? (3%)

 

SUGGESTED ANSWER

  1. A) No. The court was not correct in motu propio dismissing the petition.

While it appears that the alleged actionable neglect or omission took place in the City of Z of Province II and, therefore cognizable by the RTC of Province II, nonetheless, venue is not jurisdictional, and it can be waived in a special civil action for continuing mandamus (Dolot v. Paje, G.R. No. 199199, August 27, 2013). Besides, under Section 1, Rule 9 of the Rules of Court, defenses and objections not pleaded in the answer or in the motion to dismiss are deemed waived. Hence, the Court cannot motu proprio dismiss the case on the ground of improper venue.

(B) Yes, the Court should dismiss the petition because the proper procedure to question a defect in an ECC is to follow the DENR administrative appeal process in accordance with the doctrine of exhaustion of administrative remedies (Dolot v. Hon. Paje, G.R. No. 199199, August 27, 2013; Paje v. Casiño, G.R. No, 207257, February 3, 2015).

ALTERNATIVE ANSWER

(B) No, the Court should not dismiss the petition because the doctrine of exhaustion of administrative remedies finds no application when the matter is of extreme urgency that may cause great and irreparable damage to the environment involving strong public interest. After all, the Court may suspend the rules of procedure in order to achieve substantial justice, and to address urgent and paramount State inter ests vital to the life of our nation (Boracay Foundation, Inc. v. Province of Aklan, G.R. No. 196870, June 26, 2012; Paje v. Casiño, G.R. No, 207257, February 3, 2015).

 

VII.

 

Plaintiff sued defendant for collection of P1 million based on the la promissory note. The complaint alleges, among others:

1) Defendant borrowed P1 million from plaintiff as evidenced by a  duly executed promissory note;

 

2) The promissory note reads:

 

“Makati, Philippines Dec. 30, 2014

For value received from plaintiff, defendant ‘promises to pay plaintiff P1 million, Twelve (12) months from the above indicated date without necessity of demand.

Signed defendant

A copy of the promissory note is attached as Annex “A.”

 

Defendant, in his verified answer, alleged among others:

1) Defendant specifically denies the allegation in paragraphs 1 and 2 of the complaint, the truth being defendant did not execute any promissory note in favor of plaintiff, or 2) Defendant has paid 1 million claimed in the promissory note (Annex

“A” of the Complaint) as evidenced by an “Acknowledgment Receipt” duly executed by plaintiff on January 30, 2015 in Manila with his spouse signing as witness.

 

A copy of the “Acknowledgment Receipt” is attached as Annex “1” hereof

Plaintiff filed a motion for judgment on the pleadings on the ground that defendant’s answer failed to tender an issue as the allegations therein on his defenses are sham for being inconsistent; hence, no defense at all, Defendant filed an opposition claiming his answer tendered an issue.

(A) Is judgment on the pleadings proper? (3%)

Defendant filed a motion for summary judgment on the ground that there are no longer any triable genuine issues of facts.

(B) Should the court grant defendant’s motion for summary judgment?(3%)

SUGGESTED ANSWER

(A) No, the judgment on the pleadings is not proper. Judgment on the pleadings is proper only when the answer fails to tender an issue, or otherwise admits the material allegation of the adverse party’s pleading (Section 1, Rule 34, Rules of Court). When it appears, however, that not all the material allegations of the complaint were admitted in the answer, because some of them were either denied or disputed, and the defendant has set up certain special defenses which, it proven, would have the effect of nullifying plaintiff’s main cause of action, judgment on the pleadings cannot be rendered (Philippine National Bank v. Aznar, G.R. No.171805, May 30. 2011).

Clearly, since the defendant’s verified Answer specifically denied the execution of the promissory note, or raised the affirmative of payment, judgment on the pleadings is not proper.

(B) No, the court should not grant the motion for summary judgment because the defense of payment is a genuine issue as to a material fact that must be resolved by the court upon presentation of evidence. For a summary judgment to be proper, the movant must establish two requisites: (a) there must be no genuine issue as to any material fact, except for the amount of damages, and (b) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from an issue which is a sham, fictitious, contrived or a false claim. Relative thereto, when the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of a trial. The evidence on record must be viewed in light most favorable to the party opposing the motion who must be given the benefit of all favorable inferences as can reasonably be drawn from the evidence (Smart Communications v. Aldecoa, G.R. No. 166330, September 11, 2013).

 

VIII

Aldrin entered into a contract to sell with Neil over a parcel of land. The contract stipulated a P500,000.00 down payment upon signing and the balance payable in twelve (12) monthly installments of P100,000.00. Aldrin paid the down payment and had paid three (3) monthly installments when he found out that Neil had sold the same property to Yuri for P1.5 million paid in cash. Aldrin sued Neil for specific performance with damages with the RTC. Yuri, with leave of court, filed an answer-in-intervention as he had already obtained a TCT in his name. After trial, the court rendered judgment ordering Aldrin to pay all the installments due, the cancellation of Yuri’s title, and Neil to execute a deed of sale in favor of Aldrin. When the judgment became final and executory, Aldrin paid Neil all the installments but the latter refused to execute the deed of sale in favor of the former. Aldrin filed a “Petition for the Issuance of a Writ of Execution with proper notice of hearing. The petition alleged, among others, that the decision had become final and executory and he is entitled to the issuance of the writ of execution as a matter of right. Neil filed a motion to dismiss the petition on the ground that it lacked the required affidavit against forum shopping.

(A) Should the court grant Neil’s Motion to Dismiss? (3%)

Despite the issuance of the writ of execution directing Neil to execute the deed of sale in favor of Aldrin, the former obstinately refused to execute the deed.

(B) What is Aldrin’s remedy? (2%)

 

SUGGESTED ANSWER

(A) No. The motion to dismiss should be denied because certification against forum shopping is only required in a complaint or other initiatory pleading (Section 5, Rule 7, Rules of Court; Arquiza v. CA, G.R. NO 160479, June 8, 2005). Since a petition for the issuance of a writ of execution is not an initiatory pleading, it does not require a certification against forum shopping.

[Note: The Committee respectfully recommends a liberal approach in checking the answer to Question VIII, should the examinees consider the “Petition for the Issuance of a Writ of Execution” an initiatory pleading or question the correct ness of the Trial Court’s decision. The contract with Aldrin is a contract to sell with the purchase price not fully paid, while that of Yuri is a perfected contract of sale, plus delivery of the public document and issuance of TCT, making Yuri the owner of the land].

(B) Aldrin may move for the issuance of a court order directing the execution of the Deed of Sale by some other person appointed by it. Under Section 10, Rule 39 of the Rules of Court, if a judgment directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated v:ithin the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law.

The phrase “some other person appointed by the court” may refer to the Branch Clerk of Court, Sheriff or even the Register of Deeds, and their acts when done under such authority shall have the effect of having been done by Neil himself.

ALTERNATIVE ANSWER

(B) Aldrin may also move that Neil be cited for contempt because of his obstinate refusal to comply with the judgment of the court to execute a Deed of Sale.

 

IX

Hades, an American citizen, through a dating website, got acquainted with Persephone, a Filipina. Hades came to the Philippines and proceeded to Baguio City where Persephone resides. Hades and Persephone contracted marriage, solemnized by the Metropolitan Trial Court judge of Makati City, After the wedding, Hades flew back to California, United States of America, to wind up his business affairs. On his return to the Philippines, Hades discovered that Persephone had an illicit affair with Phanes. Immediately, Hades returned to the United States and was able to obtain a valid divorce decree from the Superior Court of the County of San Mateo, California, a court of competent jurisdiction against Persephone. Hades desires to marry Hestia, also a Filipina, whom he met at Baccus Grill in Pasay City.

(A) As Hades’ lawyer, what petition should you file in order that your client can avoid prosecution for bigamy if he desires to marry Hestia? (%)

(B) In what court should you file the petition? (1%)

(C) What is the essential requisite that you must comply with for the purpose of establishing jurisdictional facts before the court can hear the petition? (3%)

SUGGESTED ANSWER

(A) As Hades’ lawyer, I would file a petition for recognition of a foreign divorce decree, or at least file a special proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the Rules of Court and include therein a prayer for recognition of the aforementioned divorce decree,  CruZ v. Sto. Tomas (G.R. No. 186571, August 11, 2010), the High declared that “[t]he recognition of the foreign divorce decree made in a Rule 108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely establish the status or right of a party or a particular fact”(Fujiki v. Marinay, G.R. No. 196049, June 26, 2013).

(B)

  1. Petition for recognition of foreign divorce decree should be filed in the Regional Trial Court of the place of residence of any of the parties, at the option of the petitioner; or
  2. Petition for cancellation or correction of entries under Rule 108 should be filed in the Regional Trial Court of Makati City, where the corresponding Local Civil Registry is located.

(c)

  1. In a petition for recognition of foreign judgment, the petitioner only needs to prove the foreign judgment as a fact under the Rules of Court. To be more specific, a copy of the foreign judgment may be admitted in evidence and proven as a fact under Sections 24 and 25 of Rule 132 in relation to Section 48(b), Rule 39 of the  Rules of Court (Fujiki v. Marinay G.R. No. 196049, June 26, 2013).
  2. Before the court can hear the petition under Rule 108 of the Rules of Court, Hades must satisfy the following procedural requirements;(a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the order once a week for three consecutive weeks in a newspaper of general circulation (Rule 108, Rules of Court; Co v. Civil Register of Manila, G.R. No. 138496, February 23, 2004, 423 SCRA 420; Corpuz v. Tirol, G.R. No. 186571, August 11, 2010).

ALTERNATIVE ANSWER

(A) As Hades’ counsel, I will not file any petition because my client is an American citizen, and only Filipino citizens are required to file a petition for recognition of a foreign judgment. I will advise Hades, nonetheless, to secure a certificate of legal capacity to marry in the Philippines if he desires to marry Hestia, in order to avoid prosecution for bigamy.

 

X.

An information for murder was filed against Rapido. The RTC judge, after personally evaluating the prosecutor’s resolution, documents and parties’ affidavits submitted by the prosecutor, found probable cause and issued a warrant of arrest. Rapido’s lawyer examined the rollo of the case and found that it only contained the copy of the information, the submissions of the prosecutor and a copy of the warrant of arrest. Immediately, Rapido’s counsel filed a motion to quash the arrest warrant for being void, citing as grounds:

a). The judge before issuing the warrant did not personally conduct a  searching examination of the prosecution witnesses in violation of his client’s constitutionally-mandated rights;

  1. b) There was no prior order finding probable cause before the judge  issued the arrest warrant.

May the warrant of arrest be quashed on the grounds cited by Rapido’s counsel? State your reason for each ground. (4%)

SUGGESTED ANSWER

No, the warrant of arrest may not be quashed based on the grounds cited by Rapido’s counsel. In the issuance of a warrant of arrest, the mandate of the constitution is for the judge to personally determine the existence of probable cause. The words “personal determination,” was interpreted by the Supreme Court in Soliven v. Makasiar, (G.R. No. 82585, November 14, 1988, 167 SCRA 393, 406), as the exclusive and personal responsibility of the issuing judge to satisfy himself, as to the existence of probable cause. What the law requires as personal determination on the part of a judge is that he should not rely solely on the report of the investigating prosecutor. Thus, personal examination of the complainant and his witnesses is, thus, not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest (People v. Joseph “Jojo” Grey, G.R. No. 10109, July 26, 2010). At any rate, there is no law or rule that requires the Judge to issue a prior Order finding probable cause before the issuance of a warrant of arrest.

 

XI.

The Ombudsman found probable cause to charge with plunder d probable cause to charge with plunder the provincial governor, vice governor, treasurer, budget officer, and accountant. An Information for plunder was filed with the Sandiganbayan against the provincial officials except for the treasurer who was granted immunity when he agreed to cooperate with the Ombudsman in the prosecution of the case. Immediately, the governor filed with the Sandiganbayan a petition for certiorari against the Ombudsman claiming there was grave abuse of discretion in excluding the treasurer from the Information.

(A) Was the remedy taken by the governor correct? (2%)

(B) Will the writ of mandamus lie to compel the Ombudsman to include the treasurer in the Information? (3%)

(C) Can the Special Prosecutor move for the discharge of the budget officer to corroborate the testimony of the treasurer in the course of presenting its evidence. (2%)

SUGGESTED ANSWER

(A) No, the remedy taken by the Governor is not correct. The petition for certiorari is a remedy that is only available when there is no plain, speedy and adequate remedy under the ordinary course of law; hence, the Governor should have filed a Motion for Reconsideration. Besides, there is no showing that the Ombudsman committed grave abuse of discretion in granting immunity to the treasurer who agreed to cooperate in the prosecution of the case.

(B) No. Mandamus will not lie to compel the Ombudsman to include the treasurer in the Information. In matters involving the exercise of judgment and discretion, mandamus may only be resorted to in order to compel respondent tribunal, corporation, board, officer or person to take action, but it cannot be used to direct the manner or the particular way discretion is to be exercised, or to compel the retraction or reversal of an action already taken in the exercise of judgment or discretion (Ampatuan, Jr. v. Secretary De Lima, G.R. No. 197291, April 3, 2013).

Evidently, the Ombudsman’s act of granting the treasurer immunity from prosecution under such terms and conditions as it may deter mine (Section 17, R.A. 6770) is a discretionary duty that may not be compelled by the extraordinary writ of mandamus.

(C) No. The special Prosecutor cannot move for the discharge of the budget officer to become a State witness since his testimony is only corroborative to the testimony of the treasurer. Under Section 17, Rule 119, the Court upon motion of the prosecution before resting its case, may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the State, provided the following requisites are satisfied: (a) there is absolute necessity for the testimony of the accused whose discharge is requested; (b) there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) the testimony of said accused can be substantially corroborated in its material points; (d) said accused does not appear to be the most guilty; and (e) said accused has not at any time been convicted of any offense involving moral turpitude. Absolute necessity exists for the testimony of an accused sought to be discharged when he or she alone has knowledge of the crime. In more concrete terms, necessity is not present when the testimony would simply corroborate or otherwise strengthen the prosecution’s evidence. The requirement of absolute necessity for the testimony of a state witness depends on the circumstances of each case regardless of the number of the participating conspirators (Manuel J. Jimenez, Jr., v. People of the Philippines, G.R. No. 209195, September 17, 2014).

ALTERNATIVE ANSWER

(A) The remedy taken by the Governor is correct. A petition for Certiorari under Rule 65 is the appropriate remedy if the Ombudsman committed grave abuse of discretion in granting immunity to the treasurer who agreed to cooperate in the prosecution of the case.

(C) No, the special Prosecutor cannot move for the discharge of the budget officer to become a State witness. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control, and upon authority of the Ombudsman (Uy v. Sandiganbayan, G.R. No 105965 70, March 20, 2001). Accordingly, in the absence of any express delegation and authority from the Ombudsman, the Special Prosecutor does not have the power to move for the discharge of the budget officer to corroborate the testimony of the treasurer in the course of presenting its evidence (Section 11 (3), R.A. 6770).

 

 

XII

Paz was awakened by a commotion coming from a condo unit next to hers. Alarmed, she called up the nearby police station. PO1 Remus and PO2 Romulus proceeded to the condo unit identified by Paz. PO1 Remus knocked at the door and when a man opened the door, PO1 Remus and his companions introduced themselves as police officers. The man readily identified himself as Oasis Jung and gestured to them to come in. Inside, the police officers saw a young lady with her nose bleeding and face swollen. Asked by PO2 Romulus what happened, the lady responded that she was beaten up by Oasis Jung. The police officers arrested Oasis Jung and brought him and the young lady back to the police station. PO1 Remus took the young lady’s statement who identified herself as AA. She narrated that she is a sixteen-year-old high school student; that previous to the incident, she had sexual intercourse with Oasis Jung at least five times on different occasions and she was paid P5,000.00 each time and it was the first time that Oasis Jung physically hurt her. PO2 Romulus detained Oasis Jung at the station’s jail. After the inquest proceeding, the public prosecutor filed an information for Violation of R.A. No. 9262 (The VAWC Law) for physical violence and five separate informations for violation of R.A. No. 7610 (The Child Abuse Law). Oasis Jung’s lawyer filed a motion to be admitted to bail but the court issued an order that approval of his bail bond shall be made only after his arraignment.

(A) Did the court properly impose that bail condition? (3%)

Before arraignment, Oasis Jung’s lawyer moved to quash the other four separate informations for violation of the child abuse law invoking the single larceny rule.

(B) Should the motion to quash be granted? (2%) (C) After his release from detention on bail, can Oasis Jung still question the validity of his arrest? (2%)

SUGGESTED ANSWER

(A) No. The court Revised Rules of Court court did not properly impose that bail condition. The Rules of Criminal Procedure do not require the arraignment he accused as a prerequisite to the conduct of hearings in the bail on. A person is allowed to file a petition for bail as soon as he is inrived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing the bail petition (Serapio v. Sandiganbayan, G.R. No. 149116, January 28, 2003).

Moreover, the condition that the approval of bail bonds shall be made only after arraignment would place the accused in a position where he has to choose between: (1) filing a motion to quash (the Information) and thus delay his released on bail because until his motion to quash can be resolved, his arraignment cannot be held; and (2) foregoing the filing of a motion to quash (the Information) so that he can be arraigned at once and thereafter be released on bail (Lavides v. Court of Appeals, G.R. No. 129670, February 1, 2000).

(B) No. The Court should not grant the motion to quash, because the “single larceny rule” does not find application where the charges involve violations of R.A. 9262 (The VAWC Law) and R.A. No. 7610 (The Child Abuse Law), considering that each criminal act is based on a different criminal impulse and intent.

In Santiago v. Garchitorena (G.R. No. 109266 December 2, 1993), the Supreme Court explained that the “Single Larceny doctrine” applies only to crimes committed delito continuado, which exists if there should be a plurality of acts performed during a period of time; unity of penal provision violated; and unity of criminal intent or purpose, which means that two or more violations of the same penal provisions are united in one and same instant or resolution leading to the perpetration of the same criminal purpose or aim. The said rule applies in theft cases, where the taking of several things, whether belonging to the same or different owners, at the same time and place constitutes but one larceny (Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993).

[Note: The Committee respectfully recommends that the examinees be given full credit to any answer provided to the question because the single larceny rule is not included in the 2015 BAR Examination Syllabus in Remedial Law).

(C) Yes. Oasis Jung can still question the validity of his arrest even after his release from detention on bail. Under Section 26, Rule 114 of the Rules of Court, an 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 therefor, 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.

 

 

XIII.

Jaime was convicted for murder by the Regional Trial Court of Davao City. In a decision promulgated on September 30, 2015. On October 5, 2015, Jaime filed a Motion for New Trial on the ground that errors of law and irregularities prejudicial to his rights were committed during his trial. On October 7, 2015, the private prosecutor, with the conformity of the public prosecutor, filed an Opposition to Jaime’s motion. On October 9, 2015, the court granted Jaime’s motion. On October 12, 2015, the public prosecutor filed a motion for reconsideration. The court issued an Order dated October 16, 2015 denying the public prosecutor’s motion for reconsideration. The public prosecutor received his copy of the order of denial on October 20, 2015, while the private prosecutor received his copy on October 26, 2015.

(A) What is the remedy available to the prosecution from the court’s order granting Jaime’s motion for new trial? (3%)

(B) In what court and within what period should a remedy be availed of? (1%) (C) Who should pursue the remedy? (2%)

SUGGESTED ANSWER

The remedy of the prosecution is to file a petition for certiorari under Rule 65 of the Rules of Court, because the denial of a motion for reconsideration is merely an interlocutory order and there is no plain, speedy and adequate remedy under the course of law. Be that as it may, it may be argued that appeal is the appropriate remedy from an order denying a motion for reconsideration of an order granting a motion for new trial because an order denying a motion for reconsideration was already removed in the enumeration of matters that cannot be a subject of an appeal under Section 1, Rule 41 of the Rules of Court.

(B) Following the principle of judicial hierarchy, the petition for certiorari should be filed before the Court of Appeals within sixty (60) days from receipt of the copy of the order of denial of the public prosecutor’s motion for reconsideration, or on October 20, 2015.

(C) The office of the Solicitor General should pursue the remedy. In criminal proceedings on appeal in the Court of Appeals or in the Supreme Court, the authority to represent the people is vested solely in the Solicitor General. Under Presidential Decree No. 478, among the specific powers and functions of the OSG is to “represent the government in the Supreme Court and the Court of Appeals in all criminal proceedings.” This provision has been carried over to the Revised Administrative Code particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the appellate counsel of the People of the Philippines in all criminal cases (Cariño v. de Castro, G.R. No. 176084, April 30, 2008).

 

XIV.

Pedro was charged with theft for stealing Juan’s cellphone worth 0000.00. Prosecutor Marilag at the pre-trial submitted the judicial affidavit of Juan attaching the receipt for the purchase of the cellphone to prove civil liability. She also submitted the judicial affidavit of Mario, an eyewitness who narrated therein how Pedro stole Juan’s cellphone. At the trial, Pedro’s lawyer objected to the prosecution’s use of judicial affidavits of her witnesses considering the imposable penalty on the offense with which his client was charged.

(A) Is Pedro’s lawyer correct in objecting to the judicial affidavit of Mario? (2%)

(B) Is Pedro’s lawyer correct in objecting to the judicial affidavit of Juan? (2%)

At the conclusion of the prosecution’s presentation of evidence, Prosecutor Marilag orally offered the receipt attached to Juan’s judicial affidavit, which the court admitted over the objection of Pedro’s lawyer. After Pedro’s presentation of his evidence, the court rendered judg. ment finding him guilty as charged and holding him civilly liable for P20,000.00 Pedro’s lawyer seasonably filed a motion for reconsideration of the decision asserting that the court erred in awarding the civil liability on the basis of Juan’s judicial affidavit, a documentary evidence which Prosecutor Marilag failed to orally offer.

(C)  is the motion for reconsideration meritorious? (2%)

SUGGESTED ANSWER

(A) Yes, Pedro’s lawyer is correct in objecting to the judicial affidavit of Mario. The Judicial Affidavit Rules shall apply only to criminal actions where the maximum of the imposable penalty does not exceed six years (Section 9 (a) (1) of A.M. No. 12-8-8-SC or the Judicial Affidavit Rule). Here, the maximum impossible penalty for the crime of theft of a cell phone worth P20,000.00 is prision mayor in its minimum to medium periods, or six years and one day to eight years and one day. Thus, Pedro’s lawyer is correct in objecting to the judicial affidavit of Mario.

[Note: The Committee respectfully recommends that the examinees be given full credit to any answer given to the question, because the specific imposable penalties for crimes or offenses charged are not included in the 2015 BAR Examination Syllabus in Remedial Law).

(B) No, Pedro’s lawyer is not correct in objecting to the judicial affidavit of

Juan because the Judicial Affidavit Rules apply with respect to the civil aspect of the actions, regardless of the penalties involved (Section 9 of A.M. No. 12-8-8-SC or the Judicial Affidavit Rule). Here, the judicial affidavit of Juan was offered to prove the civil liability of Pedro. Thus, the objection of Pedro’s lawyer to the judicial affidavit of Juan is not correct.

(C) No. The motion for reconsideration is not meritorious. The judicial

affidavit is not required to be orally offered as separate documentary evidence, because it is filed in lieu of the direct testimony of the witness. It is offered, at the time the witness is called to testify, and any objection to it should have been made at the time the witness was presented (Sections 6 and 8, A.M. No. 12-8-8-SC or the Judicial Affidavit Rule). Since the receipt attached to the judicial affidavit was orally offered, there was enough basis for the court to award civil liability.

 

ALTERNATIVE ANSWER (C) Yes the motion for reconsideration is meritorious The Judicial Affidavit Rules require an oral offer of evidence upon the termination of the testimony of the last witness (Section 8, AMNO, 12-8-8-SCO the Judicial Affidavit Rule).

 

XV.

Water Builders, a construction company based in Makati City, entered into a construction agreement with Super Powers, Inc., an enero company based in Manila, for the construction of a mini hydro electric plant. Water Builders failed to complete the project within the stipulated duration. Super Powers cancelled the contract. Water Builders filed a request for arbitration with the Construction Industry Arbitration Commission (CIAC). After due proceedings, CIAC rendered judgment in favor of Super Powers, Inc. ordering Water Builders to pay the former P10 million, the full amount of the down payment paid, and P2 million by way of liquidated damages. Dissatisfied with the CIAC’s judgment, Water Builders, pursuant to the Special Rules of Court on Alternative Dispute Resolution (ADR Rules) filed with the RTC of Pasay City a petition to vacate the arbitral award. Super Powers, Inc., in its opposition, moved to dismiss the petition, invoking the ADR Rules, on the ground of improper venue as neither of the parties were doing business in Pasay City.

Should Water Builders’ petition be dismissed? (3%)

SUGGESTED ANSWER

Yes, the petition should be dismissed on the ground of improper venue. Under the Special Rules of Court on Alternative Dispute Resolution (ADR), the petition shall be filed with the Regional Trial Court having jurisdiction over the place where one of the parties is doing business, where any of the parties reside or where the arbitration proceedings were conducted (Rule 11.3 – A.M. No. 07-11-08-SC); hence, the venue of the petition to vacate the arbitral award of Water Builders is improperly laid.

ANOTHER SUGGESTED ANSWER

Ves, the petition should be dismissed because venue is not included among the valid grounds to vacate an arbitral award. The grounds to vacate an arbitral award are: a) The arbitrai award was procured through corruption, fraud or other undue means; b) There was evident partiality or corruption in the arbitral tribunal or any of its members; c) The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy; d) One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification; or

  1. e) The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final and definite award upon the subject matter submitted to them was not made.

The award may also be vacated on any or all of the following grounds: a) The arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or b) A party to arbitration is a minor or a person judicially declared to be incompetent.

ALTERNATIVE ANSWER

Yes, the petition should be dismissed. Water Builders should have filed a petition for review under Rule 43 of the Rules of Court before the Court of Appeals because R.A. 9285, or the Alternative Dispute Resolution Act of 2004, did not divest the Court of Appeals of jurisdiction to review the decisions or award of the CIAC ( Plus Asia Development Corporation v. Utility Assurance Corporation, G.R. No. 199650, June 26, 2013).

 

 

XVI

AA, a twelve-year old girl, while walking alone met BB, a teenage boy who befriended her. Later, BB brought AA to a nearby shanty where he raped her. The Information for rape filed against BB states:

“On or about October 30, 2015, in the City of S.P. and within the jurisdiction of this Honorable Court, the accused, a minor, fifteen (15) years old with lewd design and by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously had sexual intercourse with AA, A minor, twelve (12) years old, against the latter’s will and consent.”

At the trial, the prosecutor called to the witness stand AA as his first witness and manifested that he be allowed to ask leading questions in conducting his direct examination pursuant to the Rule on the Examination of a Child Witness. BB’s counsel objected on the ground that the prosecutor has not conducted a competency examination on the witness, a requirement before the rule cited can be applied in the case.

(A) Is BB’s counsel correct? (3%)

In order to obviate the counsel’s argument on the competency of AA as prosecution witness, the judge motu proprio conducted his voir dire examination on AA.

(B) Was the action taken by the judge proper? (2%)

After the prosecution has rested its case, BB’s counsel filed with leave a demurrer to evidence, seeking the dismissal of the case on the ground that the prosecutor failed to present any evidence on BB’s minority as alleged in the Information.

(C) Should the court grant the demurrer? (3%)

SUGGESTED ANSWER

(A) No. BB’s counsel is not correct. Every child is presumed qualified to be a witness (Sec. 6, Rule on Examination of Child Witness [RECW]). To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence (Sec. 6 of A.M. No. 005-07-SC or the Rules on Examination of Child Witness). Here, AA, a 12-year old child witness who is presumed to be competent, may be asked leading questions by the prosecutor in conducting his direct examination pursuant to the RECW and the Revised Rules on Criminal Procedure (People v. Santos, G.R. No. 171452, October 17, 2008).

(B) Yes, the judge may motu proprio conduct his voir dire examination on AA. Under the Rules on Examination of Child Witness, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court (Sec. 6 of A.M. No. 005-07-SC or the Rules on Examination of Child Witness).

[Note: The Committee respectfully recommends that the examiner be more liberal in checking the answers to the question because the term voir dire examination is not normally used under the rules on evidence in the Philippines).

(C) No, the court should not grant the demurrer. While it was alleged in the information that BB was a minor at the time of the commission of the offense, the failure of the prosecutor to present evidence to prove his minority is not a basis for the granting of the demurrer, because minority of the accused is not an element of the crime of rape. Be that as it may, the Court should not consider minority in rendering the decision. After all, the failure of the prosecutor to prove the minority of AA may only affect the imposable penalty but may not absolve him from criminal liability.

 

 

XVII

Hercules was walking near a police station when a police officer signaled him to approach. As soon as Hercules came near, the police officer frisked him but the latter found no contraband. The police officer told Hercules to get inside the police station. Inside the police station, Hercules asked the police officer, “Sir, may problema po ba?” Instead of replying, the police officer locked up Hercules inside the police station jail.

(A) What is the remedy available to Hercules to secure his immediate release from detention? (2%)

(B) If Hercules filed with the Ombudsman a complaint for warrantless search, as counsel for the police officer, what defense will you raise for the dismissal of the complaint? (3%)

(C) If Hercules opts to file a civil action against the police officer, will he have a cause of action? (3%)

SUGGESTED ANSWER

(A) The remedy available to Hercules is to file a petition for habeas corpus questioning the illegality of his warrantless arrest. The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty (Section 1, Rule 102, Rules of Court).

(B) As counsel of the policemen, I will raise the defense of presumption of  regularity in the performance of duty. I can also raise the defense that the police officer has the duty to search Hercules under the “Stop and Frisk” rule. A stop-and-frisk situation must precede a warrantless arrest, be limited to the person’s outer clothing, and should be grounded upon a genuine reason, in the light of the police office and surrounding conditions, to warrant the belief that detained has weapons concealed about him. (Valdez v. People, G.R. No. 170180, November 23, 2007).

The “stop and frisk” search should be used “[wJhen dealing rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure a search warrant. “Stop and frisk” searches (sometimes referred to as Terry searches) necessary for law enforcement, that is, law enforcers should be given the legal arsenal to prevent the commission of offenses. This should be balanced, however, with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution (People of the Philippines v. Victor Cogaed, G.R. No. 200334, July 30, 2014). In addition, I may also assert the defense that the complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act, for it is not penalized under the Revised Penal Code or any other special laws.

(C) Yes. Hercules has a cause of action to file a civil action against the police officer under Article 32 (4) in relation to Article 2219 (6) and (10) of the New Civil Code, which provides that a public officer may be liable for damages when the right to be secure in one’s person, house, papers and effects against unreasonable searches and seizures is impaired. The indemnity includes moral damages. Exemplary damages may also be adjudicated (Galvante v. Casimiro, G.R. No. 162808, April 22, 2008).

ALTERNATIVE ANSWER

(A) Hercules may also apply for bail. Under Section 17 (c), Rule 114 of the Rules of Court, any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held.

(B) As counsel for the police officer, I will argue that the Ombudsman has no jurisdiction over the complaint filed by Hercules. While the Ombudsman has disciplinary authority over officials and members of the PNP concurrently with NAPOLCOM and PNP, the Memorandum of Agreement executed by and among the Ombudsman, PNP and NAPOLCOM on September 12, 2012 specifies the administrative cases that are within the primary jurisdiction of the Ombudsman. Since the complaint filed against my client is not among those administrative cases under the primary jurisdiction of the Ombudsman, the complaint should necessarily be dismissed.

 

XVIII

The residents of Mt. Ahohoy, headed by Masigasig, formed a non-governmental organization – Alyansa Laban sa Minahansa Ahohoy (AMLA) to protest the mining operations of Oro Negro Mining in the mountain. ALMA members picketed daily at the entrance of the mining site blocking the ingress and egress of trucks and equipment of Oro Negro her its operations.

Masigasig had an altercation with Mapusok arising from the complaints the mining engineer of Oro Negro that one of their trucks was destroyed by ALMA members. Mapusok is the leader of the Association of Peace Keepers of Ahohoy (APKA), a civilian volunteer organization serving as auxiliary force of the local police to maintain peace and order in the area. Subsequently, Masigasig disappeared. Mayumi, the wife of Masigasig, and the members of ALMA searched for Masigasig, but all their efforts proved futile. Mapagmatyag, a member of ALMA, learned from Maingay, a member of APKA, during their binge drinking that Masigasig was abducted by other members of APKA, on order of Mapusok. Mayumi and ALMA sought the assistance of the local police to search for Masigasig, but they refused to extend their cooperation.

Immediately, Mayumi filed with the RTC, a petition for the issuance of the writ of amparo against Mapusok and APKA.ALMA also filed a petition for the issuance of the writ of amparo with the Court of Appeals against Mapusok and APKA. Respondents Mapusok and APKA, in their Return filed with the RTC, raised among their defenses that they are not agents of the State; hence, cannot be impleaded as respondents in an amparo petition.

(A) Is their defense tenable? (3%)

Respondents Mapusok and APKA, in their Return filed with the Court of Appeals, raised as their defense that the petition should be dismissed on the ground that ALMA cannot file the petition because of the earlier petition filed by Mayumi with the RTC.

 

  1. B) Are respondents correct in raising their defense? (3%)

 

(c) Mayumi later filed separate criminal and civil actions against

Mapusok. How will the cases affect the amparo petition she earlier filed? (1%)

SUGGESTED ANSWER

(A) No. The defense is not tenable. The writ of amparo is a remedy avail

able to any person whose right to life, liberty and security has been violated or is threatened with violation by an unlawful act or omission of a public officer or employee or of a private individual or entity. The writ covers extralegal killing and enforced disappearances or threats thereof (Section 1, Rules on the Writ of Amparo). Moreover, the rules do not require that the respondents should be agents of the State in order to be impleaded as respondents in an amparo petition (Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008).

(B) Yes. The respondents are correct in raising the defense. Under Section 2(c) of the Rules on the Writ of Amparo, the filing of a petition by Mayumi who is an immediate member of the family of the aggrieved party already suspends the right of all other authorized parties to file similar petitions. Hence, ALMA cannot file the petition because of the earlier petition filed by Mayumi with the RTC.

(C) When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under the Rules shall continue to apply to the disposition of the reliefs in the petition (Sec. 23, Rule on the Writ of Amparo).

 

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