Bar Q & A, Remedial Law

SUGGESTED ANSWERS TO THE 2014 BAR EXAMINATION QUESTIONS IN REMEDIAL LAW UP Law Complex

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? 

SUGGESTED ANSWER: 

The Court is not correct in taking cognizance of the Joint Motion for Reconsideration. 

Section 6, Rule 120 of the Rules of Court provides that if the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available against the judgment and the court shall order his arrest. 

Henceforth, the Court erred when it entertained the Joint Motion for Reconsideration with respect to accused Balatong and Labong who were not present during the promulgation of the judgment. The Court should have merely considered the joint motion as a motion for reconsideration that was solely filed by Ludong (People v. De Grano, G.R. No. 167710, June 5, 2009). 

ALTERNATIVE ANSWER: 

The Court is correct in taking cognizance of the Joint Motion for Reconsideration with respect to Ludong who was present during the promulgation of judgment. 

However, as regards accused Balatong and Labong, the Court erred because they lost their remedies against the judgment when they failed to appear during the promulgation thereof. 

(B) Can Balatong and Labong appeal their conviction in 

 case Ludong accepts his conviction for homicide? 

SUGGESTED ANSWER: 

No, Balatong and Ludong cannot appeal their conviction because they lost their right to appeal from the judg ment when they failed to appear during the promulgation of judgment. 

Be that as it may, if they surrendered and filed a Motion for Leave to avail of their post judgment remedies within fifteen (15) days from promulgation of judgment, and they have proven that their absence at the sched uled promulgation was for a justifiable cause, they may be allowed to avail of said remedies within fifteen (15) days from notice thereof (People v. De Grano, G.R. No. 167710, June 5, 2009). 

II. 

McJolly is a trouble-maker of sorts, always getting into brushes with the law. In one incident, he do Humvee recklessly, hitting a pedicab which sent its driver 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 Impru dence 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%) 

SUGGESTED ANSWER: 

McJolly correctly interposed the defense of double jeopardy. 

Reckless Imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes, such that conviction or acquittal of such quasi-offense already bars subsequent prosecu tion for the same quasi-offense, regardless of its various resulting acts (Ivler v. Hon. Modesto-San Pedro, G.R. No. 172716, November 17, 2010). 

Hence, the conviction of McJolly for Reckless Imprudence resulting to Slight Physical Injuries bars his subsequent prosecution for Reckless Imprudence resulting to Homicide and Damage to Property. 

III. 

While passing by a dark uninhabited part of their barangay, PO2 Asintado observed shadows and heard ms from a distance. PO2 Asintado hid himself behind e bushes and saw a man beating a woman whom he recognised as his neighbor, Kulasa. When Kulasa was already in agony, the man stabbed her and she fell on the ground. The ago 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 niva 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, 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%) 

SUGGESTED ANSWER: 

The trial court did not err in giving weight to PO2 Asintado’s testimony. 

While a witness can only testify as to those facts which he has personal knowledge, the Rules provide that a statement made under the influence of a startling event witnessed by the person who made the declaration before he had time to think and make up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances, is an exception being part of res gestae (Belbis, Jr., v. People, G.R. No. 181052, November 14, 2012). 

In the case, the statements made by PO2 Asin tado constitutes part of res gestae since the same were made without any opportunity to fabricate and while a startling occurrence was actually taking place. 

In addition, the statement of PO2 Asintado may fall within the purview of the doctrine of independent relevant statement, where only the fact that such statements were made is relevant, and the truth and falsity thereof is immaterial (People v. Malibiran, G.R. No. 178301, April 24, 2009). 

On the other hand, Kulasa’s statements are also admissible as part of res gestae since the same were made under the influence of a startling event and without any opportunity to concoct or devise a falsehood. 

(2) The trial court did not err in holding that Rene’s statement to the press is a confession. Rene’s confessions to the media were properly admitted because statements spontaneously made by a suspect news reporters on a televised interview are deemed voluntary and are admissible in evidence (People v. Hipona, G.R. No. 185709, February 18, 2010). 

ALTERNATIVE ANSWER: 

The trial court erred in considering Rene’s statement as a confession. 

Confession contemplates a categorical acknowledgement of guilt made by an accused in a criminal case in any exculpatory statement or explanation (People v. Aquino, L-3240, April 21, 1952, 91 Phil. 910, unpublished). 

A second look of Rene’s Statement to the press would readily show that there was no categorical admission of the commission of the offense. Hence, it is not considered a confession that will warrant his conviction. 

After all, it is well settled that an extra-judicial confession made by an accused shall not be a sufficient ground for conviction, unless corroborated by evidence of corpus delicti (Section 3, Rule 133, Rules of Court). 

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 

SUGGESTED ANSWER: 

(B) non pro tunc 

The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been (Filipinas Faroil Processing v. Dejapa, G.R. No. 167332, February 7, 2011). 

V. 

Landlord, a resident of Quezon City, entered into 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 expedi tiously collect from Tenant the unpaid rentals plus interests due. (6%) 

SUGGESTED ANSWERS: 

(A) What judicial remedy would you recommend to 

Maria? 

I will advise Maria to immediately send a letter to the tenant demanding the immediate payment of the unpaid rentals plus interests due. If the tenant refuses, Maria can avail any of the following remedies: 

(1) A complaint under A.M. No. 08-8-7-SC or the Rules of Procedure for Small Claims cases. Maria should nonetheless waive the amount in excess of P100,000 in order for her to avail of the remedy under the said Rules. (2) A complaint for collection of sum of money under the Rules on Summary Procedure, since Maria is only claiming the unpaid rentals and interest due from tenant. (3) If the tenant refuses or is unable to pay the rentals within one year from receipt of the last demand to vacate and pay, I would advise Maria to file an action for Unlawful Detainer. 

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

1. If Maria decides to file a complaint for collection of sum of money under the Rules of Summary Procedure or Small Claims, the venue is the residence of the plaintiff or defendant, at the election of the plaintiff (Section 2, Rule 4, Rules of Court). Hence, it may be in Quezon City or Marikina City, at the option of Maria. 

2. If Maria files an action for Unlawful detainer, the same shall be commenced and tried in the Municipal Trial Court of the municipality or city wherein the real property involved, or a portion thereof, is situated (Section 1, Rule 4 of the Rules of Court). Therefore, the venue is Las Piñas 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? The reckoning point for determining the one-year period within which to file the action is the receipt of the last demand to vacate and pay (Section 2, Rule 70 Ol the Rule of Court). 

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 

SUGGESTED ANSWERS: 

(B) writ for preliminary attachment 

Under Section 2, Rule 57 of the Rules of Court, preliminary attachment may be issued ex parte or upon motion with notice and hearing. 

(D) a writ of replevin 

Under Section 3, Rule 60, the Court shall issue an order and the corresponding writ of replevin, upon the filing of such affidavit and approval of the bond. There are no requirements of prior notice and hearing.

VII. 

Co Batong, a Taipan, filed a civil action for damages with the Regional Trial Court (RTC) of Parañaque City 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 praved 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: 

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

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%) 

(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. 

FIRST SUGGESTED ANSWER: 

No. The ground invoked in the Motion to Dismiss not proper. 

Under Article 360 of the Revised Penal Code, the civil action for damages in cases of written defamation may be filed separately in the Regional Trial Court libelous article was printed and first published, less of the amount of damages being claimed. 

SECOND SUGGESTED ANSWER: 

Yes. The ground invoked in the Motion to Dismiss is proper. 

In case the claim for damages is the main cause of action, the entire amount of such claim shall be considered in determining the jurisdiction of the court (Administrative Circular No. 09-94). 

Hence, the full amount of damages including the attorney’s fees being claimed shall determine which Court has jurisdiction (Sante v. Hon. Claravall, G.R. No. 173915, February 22, 2010). 

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

FIRST SUGGESTED ANSWER: 

The venue is properly laid. 

Under the law, the venue for the civil action involving written defamation shall be the place where the defamatory article was printed and first published (Article 360, Revised Penal Code). 

Since the defamatory article was printed and first published in Parañaque City, the venue of the action is properly laid. 

Hence, the dismissal of the Complaint will only be proper if the Complaint failed to allege the residence of the complainant or the place where the libelous article was printed and first published (Nocum v. Tan, G.R. No. 145022, September 23, 2005). 

SECOND SUGGESTED ANSWER: 

Under the Rules, personal actions may be commenced and tried where the plaintiff resides or any of the principal plaintiffs reside, or where the defendant or any of the defendants reside, at the option of the plaintiff. 

Since Co Batong filed the case in a place which is neither his nor Jose Penduko’s residence, the venue of the action is improperly laid. At any rate, instead of dismissing the Complaint, the Court may order Co Batong to simply amend the same in order to allege his place of residence. 

VIII.

Johnny, a naturalized citizen of the United war America (USA) but formerly a Filipino citizen, executed a notarial will in accordance with the laws of the State of Cali fornia, 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 condo minium 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? 

SUGGESTED ANSWER: 

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

A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by law of the place where he resides, or according to the formalities observed in his country (Palaganas v. Palaganas, G.R. No. 169144, January 26, 2011). 

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

SUGGESTED ANSWER: 

Yes. Anastacia is qualified. 

Under the rules, the following persons are incompe tent to serve as executor or administrator: (a) a minor: (b) not a resident of the Philippines; and (c) is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude (Section 1, Rule 78, Rules of Court). 

While Anastacia is an American citizen, she is none theless a resident of the Philippines. 

Accordingly, Anastacia is not disqualified because there is no prohibition against an alien residing in the Philippines to serve as an executor of an estate. 

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? 

SUGGESTED ANSWER: 

No, Agente is not correct. 

Section 2. Rule 57 provides that a writ of attachment may be issued ex parte or upon motion with notice and hearing by the Court in which the action is pending. 

Under the Rules, the applicant of the writ is only required to (i) submit an affidavit; and (ii) post a bond before the court can validly issue the writ of attachment. The Rules do not require prior service of summons for the proper issuance of a writ of attachment (Sofia Torres v. Nicanor Satsatin, G.R. No. 166759, November 25, 2009). 

Accordingly, the issuance of the writ of attachment is valid notwithstanding the absence of a prior service of summons to Agente. 

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

SUGGESTED ANSWER: 

No. The writ of preliminary attachment was not properly executed. 

Although a writ of attachment may issue even before summons is served upon the defendant, the same, however, may not bind and affect the defendant until jurisdiction over his person is obtained (Davao Light and Power Co., Inc. v. Court of Appeals, G.R. No. 93262, December 29, 1991, 204 SCRA 343). 

Thus, the writ of preliminary attachment must only be served simultaneously or at least after the service of summons to the defendant (Sofia Torres v. Nicanor Satsatin, G.R. No. 166759, November 25, 2009). 

ALTERNATIVE ANSWER: 

No. The Writ of attachment was not properly executed. Under Section 2 of Rule 57, the Court may only require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution. 

In the case, the sheriff attached the house and Agente which is exempted from attachment and execution (Section 13, Rule 39 of the Rules of Court.

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 II 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 demnands. 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 II Chong move to dismiss the complaint on the ground that the RTC is without jurisdiction since the amount claimed is only P300,000.00? 

SUGGESTED ANSWER: 

No, Kin II Chong cannot move to dismiss the Complaint. 

An action for rescission of contract with damages and payment of accrued rentals is considered incapable of pecuniary estimation and therefore cognizable by the Regional Trial Court (Ceferina De Ungria v. Honorable Court of Appeals, G.R. No. 165777, July 25, 2011). 

(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? 

SUGGESTED ANSWER: 

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

When the action is for recovery of money arising from contract, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff shall be enforced under Rule 86 (Section 20, Rule 3 of the Rules of Court). 

Relative thereto, since the complaint for sum of money filed by King Kong survives the death of Prince Chong, the case shall not be dismissed and the Court shall merely order the substitution of the deceased defendant (Atty. Rogelio E Sarsaba v. Fe Vda. De Te, G.R. No. 175910, July 30, 2009). 

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 Ass-asin valid? (4%) 

SUGGESTED ANSWER: 

The objection is valid. The search warrant specifically designates or describes the house of the accused as the place to be searched. Incidentally, the marijuana was seized by Barangay Tanods thirty (30) meters away from the house of the accused. 

Since the confiscated items were found in a place other than the one described in the search warrant, it can be considered as fruits of an invalid warrantless search, the presentation of which as an evidence is a violation of petitioner’s constitutional guaranty against unreasonable searches and seizure (Ruben Del Castillo v. People of the Philippines, G.R. No. 185128, January 30, 2012). 

Besides, the search is also illegal because the mari juana confiscated in the nipa hut was wrapped in a newsprint. Therefore, the same cannot be considered validly seized in plain view (Abraham Miclat v. People of the Philippines, G.R. No. 176077, August 31, 2011). 

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%) 

SUGGESTED ANSWER: 

I will file a petition for correction or cancellation of entry under Rule 108 of the Rules of Court. 

A petition for correction or cancellation of entry under Rule 108 may be filed by Mary Jane because what she sought to be corrected is only the record of such marriage in the Civil Registry Office in order to reflect the truth as set forth by the evidence, and not the nullification of marriage as there was no marriage in the first place (Republic of the Philippines v. Merlinda L. Olaybar, G.R. No. 189538, February 10, 2014). 

ALTERNATIVE ANSWER: 

I will file a petition for declaration of nullity of marriage. 

A petition for correction or cancellation of an entry in the civil registry cannot substitute an action to invalidate a marriage. A direct action for declaration of nullity or annulment of marriage is necessary to prevent the circumvention of the jurisdiction of the Family Courts (R.A. 8369), and the substantive and procedural safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other related laws.  

Accordingly, a trial court has no jurisdiction to nullify marriages in a special proceeding for cancellation or correction of entry under  Rule 108 of the Rules of Court.  

The validity of marriage can only be questioned in a direct action to nullify the same. (Minoru Fujiki v. Maria Paz Galela Marinay, G.R. No. 196049, June 26, 2013). 

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%) 

FIRST SUGGESTED ANSWER: 

The objections of the accused should be overruled. An evidence is admissible when it is relevant to the issue and is not excluded by the law or the rules (Section 3, Rule 128 Rules of Court). 

Under Section 36, Rule 130 of the Rules of Court, a witness can testify only to those which he knows of his personal knowledge and derived from his own perception. The contention that the guards had no personal knowledge of the contents of the package before it was opened is without merit. The guards can testify as to the facts surrounding the opening of the package since they have personal knowledge of the circumstances thereof, being physically present at the time of its discovery. 

On the other hand, the testimony of the trainer of the dog is not hearsay based on the following grounds. 

a) he has personal knowledge of the facts in issue, having personally witnessed the same; 

b) bearsay merely contemplates an out-of court declaration of a person which is being offered to prove the truthfulness and veracity of the facts asserted therein;

c) he is an expert witness, hence, his testimony may constitute an exception to the hearsay rule; 

d) the accused has the opportunity to cross-examine him; and testimony of a witness as to statements made by nonhuman declarants does not violate the rule against hearsay. The law permits the so-called “non-human evidence” on the ground that machines and animals, unlike humans, lack a conscious motivation to tell falsehoods, and because the workings of machines can be explained by human witnesses who are then subject to cross-examination by opposing counsel (City of Webster Groves v. Quick, 323 S.W. 20 386 (Mo. 1959); Buck v. State, 138 P. 2d 115 (Okla. 1943); Remedial Law Volume V, 1999 Edition, Herrera, page 581). 

Conversely, the accused may not argue that he cannot cross-examine the dog as the constitutional right to confrontation refers only to witnesses. 

As alluded, the human witnesses who have explained the workings of the non-human evidence is the one that should be cross-examined. Hence, the contention of the accused that he could not cross-examine the dog is misplaced. 

Ergo, there is no doubt that the evidence of the prosecution is admissible for being relevant and competent. 

SECOND SUGGESTED ANSWER: 

The evidence for the prosecution is admissible. 

In People of the Philippines v. Hedishi Suzuki (G.R. No. 120670, October 23, 2003), the Supreme Court held that search conducted by the airport authorities as reasonable and, therefore, not violative of any consti tutional rights. “Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures.” 

Moreover, in the absence of governmental inter ference, the liberties guaranteed by the Constitution cannot be invoked, since the Constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. 

Undoubtedly, the package which contains two (2) kilograms of cocaine is considered validly seized even in the absence of a search warrant (People of the Philippines v. Andre Marti, G.R. No. 81561, January 18, 1991). 

NOTE: The Committee respectfully suggests that the examinees be given utmost consideration and liberality 

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 

SUGGESTED ANSWER: 

(C) ordinary appeal to the Court of Appeals 

Under Section 34, Batas Pambansa Blg. 129, the judgment of the MTC in the exercise of its delegated jurisdiction in land registration cases shall be appealable in the same manner as decisions of the RTC. Thus. an ordinary appeal to the Court of Appeals is the appropriate remedy. 

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 (R.A.) 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%) 

SUGGESTED ANSWER: 

No. The motion to quash is not legally tenable. While it is true that by reason of the death of Gov. Matigas, there is no longer any public officer with whom he can be charged for violation of R.A. 3019, it does not mean, however, that the allegation of conspiracy between them can no longer be proved or that their alleged conspiracy is already expunged. 

The only thing extinguished by the death of Gov. Matigas is his criminal liability. His death did not extin guish the crime nor did it remove the basis of the charge of conspiracy between him and Carpintero. 

The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019, among others, is that such private person must be alleged to have acted in conspiracy with a public officer. The law however, does not require that such person must, instances, be indicted together with the public Indeed, it is not necessary to join all alleged co-conspirators in an indictment for conspiracy (People v. T. GO, G.R. No. 168539, March 25, 2014). 

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 

SUGGESTED ANSWER: 

(B) judgment on the pleadings 

When the answer fails to tender an issue, that is, if it does not deny the material allegations in the complaint or admits said material allegations of the adverse party’s pleadings by admitting the truthfulness thereof and/or omitting to deal with them at all, a judgment on the pleadings is appropriate (Eugenio Basbas v. Beata Sayson, G.R. No. 172660, August 24, 2011).

ALTERNATIVE ANSWER: 

(A) summary judgment 

A summary judgment is proper provided that the issue raised is not genuine. A “genuine issue” means an issue of fact which calls for the presentation of evidence, as distinguished from an issue which is fictitious or contrived or which does not constitute a genuine issue for trial (Eugenio Basbas v. Beata Sayson, G.R. No. 172660, August 24, 2011). 

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 non-bailable. 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%) 

SUGGESTED ANSWER: 

I will grant the Motion to quash the warrant of arrest but I will deny the Motion to fix bail. 

A motion to fix bail is essentially an application for bail (People v. Bucalon, G.R. No. 176933, October 2, 2009). 

Relative thereto, bail is the security for the release of the person in the custody of the law (Section, 1 Rule 114 of the Rules of Court). 

The Rules use the word “custody” to signify that bail is only available for someone who is under the custody of the law (Peter Paul Dimatulac v. Hon. Sesinando Villon, G.R. No. 127107, October 12, 1998). 

Hence, A cannot seek any judicial relief if he does no submit his person to the jurisdiction of the Sandiganbayan. 

On the other hand, the Sandiganbayan may grant motion to quash the warrant of arrest. 

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 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? 

SUGGESTED ANSWER: 

If I were the Judge, I would grant the second Petition for Bail. 

Under Section 7, Rule 114, Rules of Court, no person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. 

In this case, the evidence of guilt for the crime of murder is not strong, as shown by the prosecution’s failure to prove the circumstances that will qualify the crime to, and consequently convict the accused of, murder. 

Accordingly, the accused should be allowed to post bail because the evidence of his guilt is not strong (Section 13, Article 3, 1987 Constitution). 

Besides, it is settled that an Order granting bail is merely interlocutory which cannot attain finality (Pobre v. People, G.R. No. 141805, July 8, 2005). 

ALTERNATIVE ANSWER: 

If I were the Judge, I would deny the second Petition for Ball. 

Since the accused was already given the opportunity to present evidence in the summary hearing of his appli cation for bail, and the Court has already ruled that the evidence of the prosecution is strong, his failure to file a motion for reconsideration of the denial of his petition for bail will render the aforesaid Order final and execu tory, which can no longer be altered therefore during the hearing on the merits. 

Be that as it may, the Court’s ruling that the resolu tion for the Petition for Bail should be based solely on the evidence presented by the Prosecution is misplaced. 

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

SUGGESTED ANSWER: 

Yes. The accused is entitled to bail subject to the discretion of the Court. 

Under Section 5, Rule 114, Rules of Court, the appellate Court may allow him to post bail because the Trial Court in convicting him, changed the nature of the offense from non-bailable to bailable. 

Be that as it may, the denial of bail pending appeal is a matter of wise discretion since after conviction by the trial court, the presumption of innocence termi nates and, accordingly, the constitutional right to bail ends (Jose Antonio Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010). 

ALTERNATIVE ANSWER: 

No. An accused originally charged with murder, though eventually convicted by the trial court for homi cide only, is not entitled to ball during the pendency of the appeal, for the reason that, during the review of his appeal, the appellate court may still find him guilty of the more serious charge of murder (Obosa v. Court of Appeals, G.R. No. 114350, January 16, 1997). 

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 

SUGGESTED ANSWER: 

(C) judicial admission 

Judicial Admission is not covered by the Rule on vicarious admission which are considered exceptions to the Res Inter Alios Acta Rule. . Under the Res Inter Alios Acta Rule, the rights of a party cannot be prejudiced by the act, declaration or omission of another (Section 38, Rule 130, Rules of Court). 

It is not only rightly inconvenient, but also mani festly unjust, that a man should be bound by the acts of mere unauthorized strangers, and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him (5 Moran, p. 237 1980. ed.). 

The exceptions are admission by co-partner or agent (Section 29); admission by conspirator (Section 30); admission by privies; (Section 31); which are collectively classified by Senator Salonga as “vicarious admissions.” (Vide Gilbert, Sec. 332; Remedial Law V, Herrera, page 398) 

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 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 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%) 

SUGGESTED ANSWER: 

Debi Wallis may file a Petition for Annulment of Judgment under Rule 47 of the Rules of Court, on the grounds of lack of jurisdiction, extrinsic fraud and denial of the right to due process (Leticia Diona v. Romeo Balange, G.R. No. 173589, January 7, 2013). 

An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available through no fault of the appellant and is based on the grounds of extrinsic fraud, and lack of jurisdiction (Alaban v. Court of Appeals, G.R. No. 156021, September 23, 2005). 

Relative thereto, the act of Tom Wallis in deliberately keeping Debi Wallis away from the Court, by intentionally alleging a wrong address in the complaint constitutes extrinsic fraud. 

Moreover, the failure of the Court to acquire jurisdiction over the person of the respondent, being an indispensable party, necessitates the annulment of judgment of the Regional Trial Court. 

Likewise, there is denial of the right to due process when Debi Wallis was not given an opportunity to be heard in the case. Hence, the judgment rendered by the RTC may be annulled by the Court of Appeals under Rule 47 of the Rules of Court. 

Moreover, it is evident that the ordinary remedies of new trial, petition for relief or other appropriate remedies are no longer available through no fault of Debi Wallis because she was able to obtain a copy of the Decision only three (3) years after the same was rendered by the Trial Court. 

At any rate, the Court erred in declaring the defendant in default because there is no default in a Petition for declaration of nullity of marriage (Section 3, Rule 9, Rules of Court). Thus, a Petition for Certiorari under Rule 65 of the Rules of Court could have been an appropriate remedy within the reglementary period allowed by the Rules. 

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 is, indeed, Al Pakino was duly authorized by Goodfeather Corporation to file the complaint. 

Whose position is correct? Explain. (4%) 

SUGGESTED ANSWER: 

Al Pakino is correct in claiming that the appeal involved mixed questions of fact and law. 

There is a question of law when the doubt or difference arises as to what the law is on a certain state of facts. On the other hand, there is a question of fact, when the doubt or difference arises as to the truth or falsehood of alleged facts (Mirant Philippines Corporation v. Sario, G.R. No. 197598, November 21, 2012). 

Since the complaint was dismissed due to the alleged lack of appropriate board resolution from the Board of Directors of Goodfeather Corporation, the appeal will nessarily involve a factual determination of the authority to file the Complaint for the said Corporation. Hence, the appeal before the Court of Appeals is correct. 

ALTERNATIVE ANSWER: 

Al Pakino and Robert White are incorrect. 

An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the Rules to be appealable. 

It is well-settled that an order dismissing an action without prejudice cannot be a subject of appeal (Section 1, Rule 41, Rules of Court). 

Since a dismissal based on alleged lack of appropriate board resolution is considered without prejudice which cannot be a subject of an appeal, the appropriate remedy is a special civil action under Rule 65 of the Rules of Court. 

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 

SUGGESTED ANSWER: 

(B) decision of the RTC rendered in the exercise of its original jurisdiction. 

Section 2, Rule 41 of the Rules of Court provides the three (3) modes of appeal, which are as follows: 

Section 2. Modes of appeal. 

(a) Ordinary appeal. – The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. 

(b) Petition for review. – The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42/

(c) Appeal by certiorari. – In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition 10 certiorari in accordance with Rule 45. 

 The first mode of appeal, the ordinary appeal under Rule 41 of the Rules of Court, is brought to the CA from the RTC, in the exercise of its original jurisdiction, and resolves questions of fact or mixed questions of fact and law. The second mode of appeal, the petition for review under Rule 42 of the Rules of Court, is brought to the CA from the RTC, acting in the exercise of its appellate jurisdiction, and resolves questions of fact or mixed questions of fact and law. The third mode of appeal, the appeal by certiorari under Rule 45 of the Rules of Court, is brought to the Supreme Court and resolves only questions of law (The Heirs of Nicolas S. Cabigas v. Melba L. Limbaco, G.R. No. 175291, July 27, 2011). 

Clearly, the decision of the Regional Trial Court in the exercise of its original jurisdiction is appealable to the Supreme Court under Rule 45 on pure questions of law. 

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. Mean while, 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%) 

SUGGESTED ANSWER: 

No. There is no violence of the rule against forum shopping. 

The essence of forum shopping is the filing by a party against whom an adverse judgment has been rendered in one forum, seeking another and possibly favorable opinion in another suit other than by appeal or special civil action for certiorari; the act of filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively for the purpose of obtaining a favorable judgment. Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the action under consideration (Roberto S. Benedicto v. Manuel Lacson, G.R. No. 141508, May 5, 2010). 

In Philippines Nails and Wires Corporation v. Malayan Insurance Company, Inc. (G.R. No. 143933, February 14, 2003), the Supreme Court held that one party may validly question a decision in a regular appeal and at the same time assail the execution pending appeal via certiorari without violating the rule against forum shopping. This is because the merits of the case will not be addressed in the petition dealing with the execution and vice versa. 

Since Ms. Dumpty merely filed a special civil action for certiorari, the same will not constitute a violation of the rules on forum shopping because the resolution or a favorable judgment thereon will not amount to res judicata in the subsequent proceedings between the same parties (Roberto S. Benedicto v. Manuel Lacson, G.R. No. 141508, May 5, 2010). 

XXIV. 

Solomon and Faith got married in 2005. In 2010, chlomon contracted a second marriage with Hope. When 

nith found out about the second marriage of Solomon and Hope, she filed a criminal case for bigamy before the Darinnal 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 prejudi cial question. He asserts that the proceedings in the crim inal 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%) 

SUGGESTED ANSWER: 

The motion filed by Solomon should be denied. 

The elements of prejudicial question are: (1) the previ ously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (2) the resolution of such issue deter mines whether or not the criminal action may proceed. 

In order for a prejudicial question to exist, the civil action must precede the filing of the criminal action (Dreamwork Construction, Inc. v. Janiola, G.R. No. 184861, June 30, 2009). 

Since the criminal case for bigamy was filed ahead of the civil action for declaration of nullity of marriage, there is no prejudicial question. 

At any rate, the outcome of the civil case for annul ment has no bearing upon the determination of the guilt or innocence of the accused in the criminal case for bigamy because the accused has already committed the crime of bigamy when he contracted the second marriage without the first marriage having being declared null and void. 

Otherwise stated, he who contracts marriage during the subsistence of a previously contracted marriage runs the risk of being prosecuted 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 

SUGGESTED ANSWER: 

(A) file an appeal 

An appeal from a judgment or final order of a Municipal Trial Court may be taken to the Regional Trial Court (Section 1, Rule 40, Rules of Court). 

Moreover, under Rule 41 of the Rules of Court, decisions of the Metropolitan Trial Court in the exercise of its original jurisdiction can be appealed to the Regional Trial Court. 

Besides, a Motion for Reconsideration is prohibited under the Rules on Summary Procedure. 

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 

SUGGESTED ANSWER: 

(B) oral agreement not included in the document 

Under Section 9 of Rule 130 of the Rules of Court, when the terms of an agreement are reduced in writing, it is deemed to contain all the terms agreed upon and no evidence of such terms can be admitted other than the contents of the said written agreement (Financial Building Corporation v. Rudlin International Corporation, G.R. No. 164186, October 4, 2010). 

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? 

SUGGESTED ANSWERS: 

Mr. Avenger can choose any of the following remedies: 

(1) Mr. Avenger may file a motion for reconsideration. 

If denied, he could file an appeal to the Court of Appeals under Rule 41 since a dismissal based on lack of cause of action (under Rule 33) is appealable. 

(2) Mr. Avenger may file a motion for reconsideration. 

If the same is denied, he could file a Petition for Certiorari under Rule 65 because a dismissal based on failure to state a cause of action is considered without prejudice and therefore an interlocutory order which cannot be a subject of an appeal under 

Rule 41 of the Rules of Court. 

(3) Mr. Avenger may file a motion for reconsideration. 

If the same is denied, he can simply re-file the complaint because an Order granting a Motion to Dismiss based on failure to state a cause of action is without prejudice to the filing of another Complaint (Section 5, Rule 16, Rules of Court). 

(4) Mr. Avenger may amend his Complaint, as a matter of right, since a Motion to Dismiss is not a responsive pleading (Irene Marcos Araneta v. Court of Appeals, G.R. No. 154096, August 22, 2008). 

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

SUGGESTED ANSWERS: 

(1) Ms. Bright may file a motion for reconsideration. 

If the same is denied, she could file a special civil action for certiorari under Rule 65 of the Rules of Court. 

An Order denying a motion to dismiss is interlocutory because it does not finally dispose of the case, and, in effect, directs the case to proceed until final adjudication by the court. Hence, a special civil action on certiorari is the appropriate remedy (Section 1, Rule 41, Rules of Court; Marmo v. Anacay, G.R. No.182585, November 27, 2009). 

(2) Ms. Bright may file an Answer within the balance of 

the period from the filing of his Motion to Dismiss but not less than five (5) days, and raise affirmative defenses therein (Sections 4 and 6, Rule 16, Rules of Court). 

(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? 

SUGGESTED ANSWERS: 

Ms. Bright may avail of the following remedies before the finality of the decision: 

1. a motion for reconsideration (Section 1 Rule 37) 

2. a motion for new trial (Section 1 Rule 37) 

3. appeal (Rules 40, 41, 42, 43 and 45). 

After the finality of the Decision, Ms. Bright can avail of the following: 

1. petition for relief (Rule 38) 

2. annulment of Judgment (Rule 47) 

3. petition for Certiorari (Rule 65) 

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%) 

SUGGESTED ANSWER: 

1. A should be allowed to change his surname because the reasons he invoked are proper and reasonable under the circumstances. Besides, his adoptive parents have agreed on the change of his surname. 

In a case with similar facts, Republic v. Wong ( G.R. No. 97906, May 21, 1992), the Supreme Court allowed Maximo Wong to change his name to Maximo Alcala, Jr. Maximo was the natural child of Spouses Maximo Alcala, Sr. and Segundina Y. Alcala. When he was adopted by Spouses Hoong Wong and Concep cion Ty, his name was changed to Maximo Wong. Upon reaching the age of 22, he filed a petition to change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname. 

Undoubtedly, A should be allowed to file a peti tion for change of his surname. 

ALTERNATIVE ANSWER: 

1. No. A cannot file a petition for change of name because the reasons he invoked do not fall among the grounds that would justify the filing of a peti tion for change of name, to wit: 

(a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; 

(b) when the change results as a legal consequence, as in legitimation; 

(c) when the change will avoid confusion; 

(d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; 

(e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest (Republic v. Court of Appeals, G.R. No. 97906, May 21, 1992). 

Moreover, the touchstone for the grant of a change of name is that there be “proper and reasonable cause” for which the change is sought. To justify a request for change of name, petitioner must show not only some proper or compelling reason there fore but also that he will be prejudiced by the use of his true and official name (Republic v. Court of Appeals, G.R. No. 97906, May 21, 1992). 

Besides, the State has an interest in the name of a person and that names cannot be changed to suit merely the convenience of the bearers (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005; In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005). 

In the case at bar, the only reason advanced by A for the change of his surname is that it is offensive and it seriously affects his business and social life. 

Accordingly, A’s reasons are not considered proper and compelling that would justify the filing of his petition for change of name.

(2) Assuming that the court allows A to reassume the use of the surname of his biological parents, there will be no effect on the respective relations of A with his adoptive parents and his natural parents. 

Until and unless the adoption is rescinded by the court, the paternity and filiation which exist by reason of adoption subsists. 

Ergo, the grant of A’s Petition for change of name will have no effect on the respective relations of A with his adoptive and natural parents. 

After all, the change of name does not define or effect change in one’s existing family relations or in the rights and duties flowing therefrom. It does not alter one’s legal capacity, civil status or citizen ship; what is altered is only the name (Republic v. Court of Appeals, G.R. No. 97906, May 21, 1992). 

ΧΧΙΧ. 

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 

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 i 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? 

SUGGESTED ANSWER: 

No. The Metropolitan Trial Court was not correct in dismissing the complaint for lack of jurisdiction. 

It is well settled that jurisdiction is determined by the allegations contained in the complaint. The conten tion of defendant in his motion to dismiss has nothing to do in the determination of jurisdiction. Otherwise, jurisdiction would become dependent almost entirely upon the whims of the defendant (Medical Plaza Makati Condominium v. Cullen, G.R. No. 181416, November 11, 2013). 

Relative thereto, the Municipal Trial Courts have exclusive original jurisdiction over cases of forcible entry and unlawful detainer (Section 33 of Batas Pambansa Blg. 129). Hence, the Metropolitan Trial Court is not correct in dismissing the complaint for lack of jurisdiction. 

Besides, the rules allow provisional determination of ownership in ejectment cases when the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership (Section 16, Rule 70. Rules of Court). 

Accordingly, the inferior courts have jurisdiction to resolve questions of ownership only whenever it is necessary to decide the question of possession in an ejectment case (Serrano v. Spouses Gutierrez, G.R. No, 162366, November 10, 2006). 

(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? 

SUGGESTED ANSWER: 

No. The Regional Trial Court was not correct. 

It is settled that forcible entry and unlawful detainer cases are within the exclusive original jurisdiction of the MTC. 

Moreover, all cases decided by the Metropolitan Trial Court are generally appealable to the Regional Trial Court irrespective of the amounts involved (Section 22, . B.P. 129). 

ALTERNATIVE ANSWER: 

Assuming that Estrella’s action was really for ownership and not for physical possession, the Regional Trial Court is correct in ruling that it was the Court of proper jurisdiction. 

If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction there over, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings (Section 8, Rule 40, Rules of Court). 

Since the RTC affirmed the dismissal by the MTC of Estrella’s complaint on the ground of lack of jurisdiction over the subject matter, without conducting a trial on the merits, the RTC may conduct a full-blown trial of the appealed case from the MTC as if the same was originally filed with it. 

Leave a Reply

Your email address will not be published.