Bar Q & A, Remedial Law

SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION QUESTIONS IN REMEDIAL LAW UP Law Complex

I.

What trial court outside Metro Manila has exclusive original jurisdiction over the following cases? Explain briefly your answers. 

(a) An action filed on November 13, 2017 to recover the possession of an apartment unit being occupied by the defendant by mere tolerance of the plaintiff, after the former ignored the last demand to vacate that was duly served upon-and received by him on July 6, 2016.(2.5%

SUGGESTED ANSWER: 

(a) It depends. The instant action is an accion publiciana considering that more than a year has lapsed from the date of last demand (Natalia Realty, Inc. v. CA, G.R. No. 126462, November 12, 2002; Penta Pacific Realty Corporation v. Ley Construction and Development Corpora tion, G.R. No. 161589, November 24, 2014). Thus, if the assessed value of the apartment unit does not exceed P20,000.00, the Municipal Trial Court has the exclusive original jurisdiction over the action (Penta Pacific Realty Corporation, supra; BP Big. 129. Sec. 1). 

On the other hand, if the assessed value of the apartment unit exceeds P20,000.00, the Regional Trial Court has the exclusive original jurisdiction over the action (Penta Pacific Realty Corporation, supra; BP Blg. 129, Sec. 19). The allegation of the assessed value of the apartment unit must be found in the complaint, otherwise the action should be dismissed for lack of jurisdiction because the trial court is not thereby afforded the means of determining from the allegations of the pleading Whether jurisdiction over the subject matter of the action pertains to it or to another court (Penta Pacific Realty Corporation, supra). 

ALTERNATIVE ANSWER:

(b) A complaint in which the principal relief sought is the enforcement of a seller’s contractual right to repurchase a lot with an assessed value of P15,000.00: (2.5%). 

SUGGESTED ANSWER 

1. (b)  The Regional Trial Court has the jurisdiction over an action in which the principal relief sought is the enforcement of a seller’s contractual right to repurchase a lot. Since said action is one for specific performance to enforce a contractual right, it is incapable of pecuniary estimation and therefore cognizable by the Regional Trial Court (Surviving Heirs of Bautista v. Lindo; G.R. No. 208232, March 10, 2014; BP Blg. 129, Sec 19). 

II.

Santa filed against Era in the RTC of Quezon City an action for specific performance praying for the delivery of a parcel of land subject of their contract of sale. Unknown to the parties, the case was inadvertently raffled to an RTC designated as a special commercial court. Later, the RTC rendered judgment adverse to Era, who, upon realizing that the trial court was not a regular RTC, approaches you and wants you to file a petition to have the judgement annulled for lack of jurisdiction.” 

What advice would you give to Era? Explain your answer. (4%)

SUGGESTED ANSWER:

I will advise Era that a petition to have the judgment annulled for lack of jurisdiction has no basis. In Gonzales v. GJH Land, Inc. (G.R. NO. 202664 November 10, 2015), the Supreme Court ruled that the fact that a particular branch which tras been designated as a Special Commercial, Court does not shed the RTC’s general jurisdiction over ordinary civil cases under the imprimatur of statutory law, L.E. Batas Pambansa Blg. 129. The designation of Special Commercial Court was merely intended as a procedural tool to expedite the resolution of commercial cases in line with the court’s exercise of jurisdiction. This designation was not made by statute but only by an internal Supreme Court rule under its authority to promulgate rules governing matters of procedure and its constitutional mandate to supervise lower courts.

ALTERNATIVE ANSWER:

I will advise Era that a petition for annulment of judgment is untenable, I will tell Era that the available post-judgment remedies could be any of the following depending upon the date of his receipt of the judgment: Motion for Reconsideration, Appeal, Petition for Relief from Judgment, or Certiorari.

The Regional Trial Court, despite its having been designated as Special Commercial Court remains possessed of authority as a court of general jurisdiction to pass upon all kinds of cases, whether civil or criminal. The Constitution vests not only in the Supreme Court, but in all Regional Trial Courts, the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law (Jesus C. Garcia v. The Hon. Kay Alan T. Drilon, GR No 179267, June 25, 2013). The designation of the court as a special commercial court is an internal arrangement for lower courts-that could be allowed by the Supreme Court, with the Office of the Court Administra tor as the implementing arm, with the purpose of giving priority to com mercial cases on top of the trial court’s regular cases. 

III.

Answer the following briefly 

(a) What elements should cončur for circumstantial evidence to be sufficient for conviction? (2%). 

SUGGESTED ANSWER:

(a) For circumstantial evidence to warrant the conviction of the accused, the following elements should concur: 

1. There is more than one circumstance;

2. The facts from which the circumstances arose are duly established in court; and 

3. The circumstances form the unbroken chain of events leading i to the conclusion of the culpability of the accused for the crime for which he is convicted (Bacolod v. People, G.R. No. 206236, July 15, 2013).

(b) When is bail a matter of judicial discretion? (2%) 

SUGGESTED ANSWERS 

(b) Under Section 5, Rule 114 of the Rules of Court bail is a matter of judicial discretion under the following circumstances: 

1. Before conviction; in cases where the offense charged is punishable by reclusion’ perpetua; and  

2. After accused’s conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment.

In People: Leviste (G.R. No: 189122, March 17, 2010), the Supreme Court ruled that the absence of the circumstances mentioned in the third paragraph of Section 5, Rulę 114 of the Rules of Court does not automatically result in the grant of bail, Such finding will simply authorize the court to use the less stringent sound discretion approach.

(c) Give at least two instances when a peace officer or a private person may make a valid warrantless arrest (2%) 

SUGGESTED ANSWER 

(c) Under Section 5, Rule 113 of the Rules of Court; a peace officer or a private person may make a valid warrantiess arrest in the fol lowing instances: 

1. When, in his presence, the person to be arrested has commit ted, is actually committing, or is attempting to commit an offense; 

2. When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and 

3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

(d) What is a tender of excluded evidence? (2%) 

SUGGESTED ANSWERS 

(d) Tender of excluded evidence is a remedy embodied under Section 40. Rule 132 of the Rules of Court, which states that “if documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.

In Cruz-Arevalo v. Querubin-Layosa (A.M. No. RT.-06-2005, July 14, 2006), the Supreme Court ruled that this procedure, also known as offer of proof, is made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence. The appellate court will better understand and appreciate the assignment of error if the evidence involved is included in the record of the case.

IV.

Give brief answers to the following: 

  1. What is the doctrine of hierarchy of courts? (2%) 

SUGGESTED ANSWER 

(a) The doctrine of hierarchy of courts, as a rule, requires that recourse must be first made to the lower-ranked courts exercising concurrent jurisdiction with a higher court (Dio v. Subic Bay Marine Exploration, Inc., G.R. No. 189532. June 11, 2014).

(b) What is the Harmless Error Rule in relation to appeals? (2%) 

SUGGESTED ANSWER:

(b) Under Rule 51, Section or of the Rules of Court the Harmless Error Rule states that no error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is a ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court to be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties. 

(c) – When does a public prosecutor conduct an inquest instead : of a preliminary investigation? (2%) 

SUGGESTED ANSWER 

(c) Under Rule: 112, Section 7 of the Rules of Court, a public prosecutor conducts aquest instead of a preliminary investigation when a person is lawfully arrested without an arrest warrant involving an offense which requires a preliminary investigation. 

V.

After working for 25 years in the Middle East, Evan returned to the Philippines to retire in Manila, the place of his birth and childhood. Ten years before his retirement, he bought for cash in his name a house and lot in Malate, Manila. Six months after his return, he learned that his house and lot were the subject of foreclosure proceedings commenced by ABC Bank on the basis of a promissory note and a deed of real estáte mortgage he had allegedly executed in favor of ABC Bank five years earlier. 

Knowing that he was not in the country at the time the promissory note and deed of mortgage were supposedly executed, Evan forthwith initiated a complaint in the RTC of Manila praying that the subject documents be declared null and void. 

ABC Bank filed a motion to dismiss Evan’s complaint on the ground of improper venue on the basis of a stipulation in both documents designating Quezon City as the exclusive venue in the event of litigation between the parties arising out of the loan and mortgage. 

Should the motion to dismiss of ABC Bank be granted? Explain your answer(5%) 

SUGGESTED ANSWER. 

No. ABC Bank’s motion to dismiss should be denied in Briones Court of Appeals (G.R. No. 204444, January 14, 2015), the Supreme Court ruled that a complaint directly assailing the validity of the written instrument itself should not be bound by the exclusive venue stipulation contained therein and should be filed in accordance with the general rules on venue. The Supreme Court ruled that it would be inherently inconsistent for a complaint of this nature to recognize the exclusive venue stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation is contained. 

In this case, Evan’s complaint directly assails the validity of the promissory note and deed of mortgage, which contains said venue stipulation; hence, said venue stipulation is not binding on him. Evan correctly filed his complaint with the Manila RTC pursuant to Rule of the Rules of Court.

VI.

Hanna, a resident of Manila, filed a complaint for the partition of a large tract of land located in Oriental Mindoro. She impleaded her two brothers John and Adrian as defendants but did not implead Leica and Agatha, her two sisters who were permanent residents of Australia.

Arguing that there could be no final determination of the case without impleading all indispensable parties, John and Adrian moved to dismiss the complaint. 

Does the trial court have a reason to deny the motion? Explain your answer (4%)

SUGGESTED ANSWER. 

Yes, the trial court has reason to deny the motion. Section 11, Rule 3 Rules of Court states that neither misjoinder nor non-joinder of: parties is a ground for the dismissal of an action. The petitioner can still amend his initiatory pleading in order to implead Leica and Agatha, for under the same rule, such amendment to implead an indispensable party may be made on motion of any party or on the trial court’s own initiative at any stage of the action and on such terms as are just (Ablaza v. Reput. lic; G.R. No. 158298, August 11, 2010).

VII.

Elise obtained a loan of P3 Million from Merchant Bank. Aside from executing a promissory note in favor of Merchant Bank, she executed a deed of real estate mortgage over her house and lot as security for her obligation. 

The loan fell due but remained unpaid; hence, Merchant Bank filed an action against Elise to foreclose the real estate mortgage. A month after, and while the foreclosure suit was pending, Merchant Bank also filed an action to recover the principal sum of P3 Million against Elise based on the same promissory note previously executed by the latter. In opposing the motion of Elise to dismiss the second action on the ground of splitting of a single cause of action, Merchant Bank argued that the ground relied upon by Elise was devoid of any legal basis considering that the two actions were based on separate contracts, namely, the contract of loan evidenced by the promissory note, and the deed of real estate mortgage. 

Is there a splitting of a single cause of action? Explain your answer. (4%) 

SUGGESTED ANSWER 

Yes, there is splitting of a cause of action. A creditor cannot file a civil action against the debtor for collection of the debt and subsequently file an action to foreclose the mortgage: This is an example of splitting of a single cause of action, a practice that is vexatious and oppressive (Dunao v. Court of Appeals, G.R. No. L-48276, June 6, 2001). 

VIII.

A.

Laura was the lessee of an apartment unit owned by Louie. When the lease expired, Laura refused to vacate the property. Her refusal prompted Louie to file an action for unlawful detainer against Laura who failed to answer the complaint within the reglementary period. 

Louie then filed a motion to declare Laura in default Should the motion be granted? Explain your answer. (3%) 

SUGGESTED ANSWER 

No, the motion should not be granted because it is a prohibited pleading Under Section 19 (h) of the Rules on Summary Procedure, a motion to declare defendant in default is among the pleadings that are prohibited in cases covered by said Rule: Considering that an action for unlawful detainer is covered by the Rules on Summary Procedure, Louie’s motion to declare Laura in default is a prohibited pleading, and thus, should not be granted.

B.

 Agatha filed a complaint against Yana in the RTC in Makati City to collect P350,000.00, än amount representing the unpaid balance on the price of the car Yana had bought from Agatha. Realizing a jurisdictional error in filing the complaint in the RTC, Agatha filed a notice of dismissal before she was served with the answer of Yana. The RTC issued an order confirming the dismissal . 

Three months later, “Agatha filed another complaint against Yana based on the same cause of action this time in the MeTC of Makati City. However, for reasons personal to her, Agatha decided to have the complaint dismissed without prejudice by filing a notice of dismissal prior to the service of the answer of Yana. Hence, the case was dismissed by the MeTC.

A month later, Agatha refiled the complaint against Yana in the same MeTC. 

May Yana successfully invoke the Two-Dismissal Rule to bar Ag atha’s third complaint? Explain your answer (3%) 

SUGGESTED ANSWER 

No, Yana cannot successfully invoke the Two-Dismissal Rule: In order for the Two-Dismissal Rule to apply, Rule 17, Section 1 of the Rules of Court requires that both dismissals through plaintiff’s notices were made by a competent court. Moreover, in Ching v. Cheng (G.R. No. 175507, October 8, 2014), the Supreme Court ruled that the following requisites should concur for the Two-Dismissal Rule to apply: 

 (a) There was a previous case that was dismissed by a competent court

(b) Both cases were based on or include the same claim; 

(c) Both notices for dismissal were filed by the plaintiff; and. 

(d) When the motion to dismiss filed by the plaintiff was consented to by the defendant on the ground that the latter paid and satisfied all the claims of the former. 

In this case, the Makati City RTC had no jurisdiction over the first complaint which was dismissed through Agatha’s notice, because it is below its jurisdictional amount of at least P 400,000.00. Therefore, the Two-Dismissal Rule can not be successfully invoked in this case. 

IX

Abraham filed a complaint for damages in the amount of P750,000.00 against Salvador in the RTC in Quezon City for the laiter’s alleged breach of their contract of services. Salvador promptly filed his answer, and included a counterclaim for P250,000.00 arising from the allegedly baseless and malicious claims of Abraham that compelled him to litigate and to engage the services of counsel, and thus caused him to suffer mental anguish.

Noting that the amount of the counterclaim was below the exclusive original jurisdiction of the RTC, Abraham filed a motion to dismiss vis-a-vis the counterclaim on that ground. 

Should the counterclaim of Salvador be dismissed? Explain your answer: (4%) 

SUGGESTED ANSWER 

No, Salvador’s counterclaim is compulsory in nature, and thus should not be dismissed. Section 7, Rule of the Rules of Court defines a compulsory counterclaim as any claim for money or any relief, which a defending party may have against an opposing party, which at the time of suit arises out of, or is necessarily connected with, the same transaction or occurrence that is the subject matter of the plaintiff’s complaint (Bung cayao v: Fort Ilocandia, G.R. No: 170483, April 19, 2010). A counterclaim is compulsory where: 

1. It arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim;

2. It does not require the presence of third parties of whom the court cannot acquire jurisdiction, and; 

3. The trial court has jurisdiction to entertain the claim (Spouses Arenas v CA G.R. No 126640, November 23, 2000) 

Regarding the trial court’s jurisdiction, Section 7, Rute 6 of the Rules of Court explicitly states that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. In relation thereto, the Supreme Court held in Alday v. FGU Insurance Corp. (GR No. 138822, January 23, 2001), that claims for damages, allegedly suffered as a result of plaintiff’s filing of a complaints are compulsory. In this case, the court’s jurisdiction over Salvador’s counterclaim, despite being below the jurisdictional amount is evident from the following: Salvador’s claims for litigation expenses arise out of Abraham’s complaint for damages; Salvador’s claims do not require the presence of third parties, and being compulsory in nature, the trial court may exercise jurisdiction over said claim.

X.

 On the basis of an alleged promissory note executed by Harold in fa vor of Ramon; the latter filed a complaint for P950,000.00 against the former in the RTC of Davao City, In an unverified answer, Harold specifically denied the genuineness of the promissory note. During the trial, Harold sought to of. fer the testimonies of the following: (1) the testimony of an NBI handwriting expert to prove the forgery of his signature; and (2) the testimony of a credible witness to prove that if ever Harold had executed the note in favor of Ramon, the same: was not supported by a consideration.

May Ramon validly object to the proposed testimonies? Give a brief explanation of your answer. (5%) 

SUGGESTED ANSWER. 

Ramon may validly object to the proposed testimony of the NBI handwriting expert The alleged promissory note attached to Ramon’s complaint is an actionable document since it is a written instrument upon which an action or defense is grounded (Asian Construction and Development Corporation 1. Mendoza, G.R. No: 176949, June 27, 2012). Accordingly, Harold’s failure to specifically deny under oath the genuineness of said actionable document amounts to an implied admission of its genuineness and due execution under Rule 8, Section 8 of the Rules of Court. Harold cannot thus raise the defense of forgery by presenting the testimony of a handwriting expert. Well-settled is the rule that the trial court may reject evidence that a party adduces to contradict a judicial admission he previously made since such admission is conclusive as to him (Equitable Card Network Inc., Capistrano; G.R. No. 180157 February 8, 2012). 

However, Ramon may not validly object to the testimony of a credible witness to prove that the promissory note was not supported by a consideration. The admission of the genuineness and due execution of a document does not bar the defense of want of a consideration (Hibberd v. Rohde and McMillani GR No. L-8414, December 9, 1915). 

XI

Teddy filed against Buboy an action for rescission of a contract for the sale of a commercial lot, After having been told by the wife of Buboy that her husband was out of town and would not be back until after a couple of days the sheriff requested the wife to just receive the summons in behalf of her husband. The wife acceded to the request; received the summons and a copy of the complaint, and signed for the same. 

(a) Was there a valid service of summons upon Buboy? Explain – your answer briefly. (3%) 

SUGGESTED ANSWER 

(a) No, there was no valid service of summons in this case; since the summons was not personally received by Buboy, For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period.Several attempts: means at least three tries, preferably on at least two different dates” (Manotoc v Court of Appeals, GR No. 130974, August 16, 2006). 

b) If Buboy files a motion to dismiss the complaint based on the twin grounds of lack of jurisdiction over his person and prescription of the cause of action, may he be deemed to have voluntarily submitted himself to the jurisdiction of the court? Explain your answer briefly (3%). 

SUGGESTED ANSWERS 

(b) No, the filing of the motion to dismiss, assailing the jurisdiction of the court over his person, together with other grounds raised therein, is not a voluntary submission to the court’s jurisdiction (Garcia v. Sandiganbayan, G.R. No. 170122, October 12, 2009). Under Section 20. Rule 14 of the Rules of Court, the defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss on other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. 

The filing of a motion is deemed voluntary submission to the court’s jurisdiction only when it constitutes an unqualified voluntary appearance before the court, such that the defendant failed to object to the court’s jurisdiction over his person (PVIB . Spouses Dy, G.R. No. 171137, June 5 2009). 

B. 

What is the mode of appeal applicable to the following cases, and what issues may be raised before the reviewing court tribunal? 

(a) The decision or final order of the National Labor Relations Commission (145%) 

SUGGESTED ANSWERS 

(a) Strictly, there is no appeal from an NLRC decision: However, NLRC decisions or final orders are reviewable on petition for certiorari under Rule 65 of the Rules of Court; filed before the Court of Appeals (S4 Martin Funeral Homes . NLRC, G.R. No. 130866, September 16, 1998). Petitioner may raise the issue on whether the NLRC acted with grave abuse of discretion amounting to lack or excess jurisdiction (Pfizer Inc, v. Galan, G.R. No. 158460. August 24, 2007).

(b) The judgment or final order of the RTC in the exercise of its appellate jurisdiction: (1.5%) 

SUGGESTED ANSWER 

(b) The mode of appeal is petition for review under Rule 42 of the Rules of Court Petitioner may raise errors of fact, law, or both Under Section 2 of Rule 42.

XII.

Judgment was rendered against defendant Jaypee in an action for unlawful detainer. The judgment ordered Jaypee to vacate and to pay attorney’s fees in favor of Bart, the plaintiff. To prevent the immediate execution of the judgment would you ad vise the posting of a supersedeas bond as counsel for Jaypee? Explain your  answer briefly (2%). 

SUGGESTED ANSWER 

I would advise Jaypee to post a supersedeas bond, but I would also advise him that the posting of a supersedeas bond alone does not prevent the immediate execution of the judgment. To stay the immediate execution of the judgment in an ejectment case, the defendant: 

1. Must perfect an appeal, 

2. File a supersedeas bond; and 

3. Periodically deposit the rentals becoming due during the pendency of the appeal;

otherwise, the writ of execution will issue upon motion of the plaintiff (Achang v. Hon. Luczon, G.R. No: 164246, January 15, 2014; Rule 70. Sec tion 19 of the Rules of Court). 

ALTERNATIVE ANSWER: 

As counsel for Jaypee, I would not advise the posting of a supersedeas bond. The supersedeas bond shall be equivalent to the unpaid rentals, damages and costs which accrued down to the time of the judgment (Section 19, Rule 70, Rules of Court; Chua v. Court of Appeals, G.R. No. 113886, February 24, 1998). In other words, the supersedeas bond covers the monetary judgment of the lower court; thus, if the judgment does not make any pronouncement as to the pecuniary liability of the defendant, the posting of the supersedeas bond should not be required. Attorney’s fees are not covered by a supersedeas bonds (Once v. Gonzales,  GR No. L-44806, March 31, 1977) 

B.

A temporary restraining order (TRO) was issued on September 20, 2017 by the RTC against defendant Jeff enjoining him from entering the land of Regan, the plaintiff. 

On October 9, 2017, upon application of Regan, the trial court, allegedly in the interest of justice, extended the TRO for another 20 days based on the same ground for which the TRO was issued. 

On October 15, 2017, Jeff entered the land subject of the TRO. May Jeff be liable for contempt of court? Why? (4%) 

SUGGESTED ANSWER 

No, Jeff may not be held liable for contempt. Under Rute 58. Sec tion 5 of the Rules of Court, a Temporary Restraining Order is valid for 20 days. Its effectivity is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the same ground for which it was issued, thus, Jeff cannot be held liable for contempt.

XIII

Police officers arrested Mr. Druggie in a buy-bust operation and confiscated from him 10 sachets of shabu and several marked genuine peso bills worth P5,000.00 used as the buy-bust money during the buy-bust operation. 

At the trial of Mr Druggie for violation of RA. No.9165 (Comprehensive Dangerous Drug Act of 2002), the Prosecution offered in evidence; among others, photocopies of the confiscated marked genuine peso bills. The photocopies were offered to prove that Mr. Druggie had engaged at the time. of his arrest in the illegal selling of dangerous drugs. 

Invoking the Best Evidence Rule, Atty. Maya Bang, the defense counsel; objected to the admissibility of the photocopies of the confiscated marked genuine peso bills. 

Should the trial judge sustain the objection of the defense counsel? · 

Briefly explain your answer (5%) 

SUGGESTED ANSWERS 

No, the trial judge should not sustain the defense counsel’s objection. In People v. Tandop (GR No. 80505, December 4, 1990) the Supreme Court held that the best evidence rule applies only when the contents of the document are the subject of inquiry Where the issue is only as to whether or not such document was actually executed, or exists; or the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. 

Here, the marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents. Other substitutionary evidence, like a photocopy thereof, is therefore admissible without the need of presenting the original. Hence, the best evidence rule does not apply in this case. The trial judge, therefore, should not sustain the defense counsel’s objection. 

Atty. Maya Bang, however, may object to the photocopies of the confiscated marked genuine peso bills for being hearsay evidence. Since it does not appear that the prosecution was able to establish that its sub mission of photocopied documents is justified under Rute 130, Sections 3 (a), (b), and (d) of the Rules of Court, said photocopied documents do not have any probative weight and should be disregarded whether objected to or not (Republic u. Mupas, G.R. No. 181892, April 19, 2016). 

ALTERNATIVE ANSWER: 

The photocopies of the confiscated marked money should be excluded as evidence under the Best Evidence Rule: To be admissible as secondary evidence the prosecution should have shown that the original marked money has been lost or destroyed, or cannot be produced in court, or that it is in the custody of the adverse party (People v Pamarito, GR No. 108453, July 11, 1994) 

XIV.

Immediately before he died of gunshot wounds to his chest, Venancio told the attending physician; in a very feeble voice, that it was Arnulfo, his co-worker, who had shot him Venancio added that it was also Arnulfo who had shot Vicente, the man whose cadaver was lying on the bed beside him. 

In the prosecution of Arnulfo for the criminal killing of Venancio and Vicente, are all the statements of Venancio admissible as dying declarations? Explain your answer. (5%) 

SUGGESTED ANSWER 

No, not all statements of Venancio are admissible as dying declarations. A dying declaration is a statement made under the consciousness of an impending death (Rules of Court, Rule 130, Section 37). It may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. In.. this case, presuming there is evidence that Venancio was conscious of his impending death when he made his statement that it was Arnulfo who ; shot him, said statement may be considered as a dying declaration which is admissible in evidence as an exception to the hearsay rule. The degree and seriousness of the gunshot wounds sustained by Venancio and the fact that death supervened thereafter may constitute substantial evidence of his consciousness of his impending death (People v. Tanaman, G.R. No. 71768, July 28, 1987). White Venancio’s statement about the death of Vicente may not be considered as a dying declaration, it may still be admitted in evidence as part of res gestae, which is also an exception to the hearsay rule (Rules of Court, Rule 130, Section 42). Venancio’s statement about the killing of Vicente may be considered to have been made after the occurrence of a startling occurrence. Thus, it may be admitted in evidence.

 XV. 

In an attempt to discredit and impeach: a Prosecution witness in a .. 

homicide case; the defense counsel called to the stand a person who had been the boyhood friend and next-door neighbor of the Prosecution witness for 30 years. One question that the defense counsel asked of the impeaching witness was: “Can you tell this: Honorable Court about the general reputation of the prosecution witness in your community for aggressiveness and violent tendencies?” 

Would you, as the trial prosecutor interpose your objection to the question of the defense counsel? Explain your answer: (4%) 

SUGGESTED ANSWER

Yes Under Rule 132, Section 11 of the Roles of Court, a witness may be impeached only by contradictory evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony. A witness may not be in peached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness; or the record of the judgment; that he has been convicted of an offense (Rules. of Court Rule 132, Section 11). Accordingly, the defense counsel may not ‘impeach the prosecution witness through testimonial evidence showing his general reputation for aggressiveness and violent tendencies. 

ALTERNATIVE ANSWER 

As trial prosecutor, I would not interpose an objection to tire question of the defense counsel, because it may be admissible as an exception to the hearsay rule, being a common reputation.

Under the Rules, common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation (Section 41, Rule 130, Rules of Court). Hence, the general reputation in the community of the prosecution witness for aggressiveness and violent tendencies may be admissible in evidence as a common reputation. 

XVI.

Engr. Magna Nakaw, the District Engineer of the DPWH in the Province of Walang Progreso, and Mr. Pork Chop, a private contractor, were both charged in the Office of the Ombudsman for violation of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) under a conspiracy theory. 

While the charges were undergoing investigation in the Office of the Ombudsman, Engr. Magna Nakaw passed away. Mr. Pork Chop immediately filed a motion to terminate the investigation and to dismiss the charges against Him, arguing that because he was charged in conspiracy with the deceased there was no longer a conspiracy to speak of and, consequently, any legal ground to hold hün for trial had been extinguished. 

Rule on the motion to terminate filed by Mr. Pork Chop, with brief reasons (5%).

SUGGESTED ANSWER 

The motion to terminate should be denied. In People v. Go (G.R. No. 168539, March 24, 2014), the Supreme Court ruled that the avowed policy of the State and the legislative intent to repress acts of public officers and private persons alike, which constitute graft or corrupt. practices would be frustrated if the death of a public officer would bar the prosecution of a private person who conspired with such public officer in violating R.A. No. 3019. Since the absence or presence of conspiracy is factual in nature and involves evidentiary matters, the allegation of conspiracy against Mr. Pork Chop is better ventilated before the trial court during the trial, where he can adduce evidence to prove or disprove its presence. 

XVII

Juancho entered a plea of guilty when he was arraigned under an information for homicide: To determine the penalty to be imposed, the trial court allowed Juancho to present evidence proving any mitigating circumstance in his favor. Juancho was able to establish complete self-defense. Convinced by the evidence adduced by Juancho, the trial court rendered a verdict of acquittal.May the Prosecution assail the acquittal without infringing the constitutional guarantee against double jeopardy in favor of Juancho? Explain your answer: (5%) 

SUGGESTED ANSWER:

Yes, the prosecution may assait Juancho’s acquittal without violating his right against double jeopardy. In the similar case of People v. Balisacan (GR No. L-26376, August 31, 1966), the Supreme Court held that if an accused who first entered a plea of guilty was later on allowed to prove any mitigating circumstance, his prior plea is deemed vacated. 

The court should require him to plead anew on the charge, or at least direct that a new plea of not guilty be entered for him. Thus in this case, since Juancho was allowed to present evidence to prove mitigating circumstances in his favor, there can be no double jeopardy with respect to the prosecution’s appeal. 

Furthermore, the Supreme Court ruled in the Balisacan case that a plea of guilty is an unconditional admission of guilt with respect to the offense charged. It forecloses the right to defend oneself from said charge and leaves the court with no alternative but to impose the penalty fixed by daw under the circumstances. Since Juancho was only allowed to testify in order to establish mitigating circumstances for the purposes of fixing the penalty, his testimony, thus, could not be taken as a trial on the merits to determine his guilt or innocence. Juancho’s acquittal: is therefore void considering that the prosecution was not afforded an opportunity to present its evidence or even to rebut the testimony of the defendants 

XVIII.

Tomas was criminally charged with serious physical injuries allegedly committed against Darvin During the pendency of the criminal case, Darvin filed a separate civil action for damages based on the injuries he had sustained.

Tomás filed a motion to dismiss the separate civil action on the ground of litis pendentia; pointing out that when the criminal action was filed against him the civil action to recover the civil liability from the offense charged was also deemed instituted. He insisted that the basis of the separate civil action was the very same act that gave rise to the criminal action. 

Rule on Tomas’ motiön to dismiss with brief reasons. (5%) 

SUGGESTED ANSWERS 

The motion to dismiss should be denied. Darvin’s civil action is based on physical injuries, and is therefore an independent civil action which may proceed independently of the criminal case (Article 33, Civil Code)However, Darvin cannot recover damages twice for the same act or omission charged in the criminal action (Rule 111, Section 2, Rules of Court). 

As the Supreme Court ruled in People v. Lipata (G.R. No. 200302, April 20, 2016); “the independent civil actions in Articles 32, 33, 34, and 2176, as well as claims from sources of obligations other than delict, are not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation” 

XIX.

Boy Maton, a neighborhood tough guy, was arrested by a police officer on suspicion that he was keeping prohibited drugs in his clutch bag. When Boy Maton was searched immediately after the arrest, the officer found and recovered 10 sachets of shabu neatly tucked in the inner linings of the clutch i bag. At the time of his arrest; Boy Maton was watching a basketball game being played in the town plaza, and he was cheering for his favorite team. He was subsequently charged with illegal possession of dangerous drugs, and he entered a plea of not guilty when he was arraigned. 

During the trial, Boy Mäton moved for the dismissal of the information on the ground that the facts revealed that he had been illegally arrested. 

He further moved for the suppression of the evidence confiscated from him as being the consequence of the illegal arrest, hence; the fruit of the poisonous tree. 

The trial court, in denying the motions of Boy Maton, explained that at the time the motions were filed Boy Maton had already waived the right to raise the issue of the legality of the arrest. The trial court observed that; pursuant to the Rules of Court Boy Maton, as the accused, should have assailed the validity of the arrest before entering his plea to the information. Hence, thie trial court opined that any adverse consequence of the alleged illegal arrest had also been equally waived. 

SUGGESTED ANSWER 

The trial court is correct insofar as Boy Matou is considered to have waived his objections to the illegality of his arrest In Villanueva v.. People: (GR No.199042, November 17, 2014), the Supreme Court held that objections to the irregularity of arrest must be made before his arraignment. In this case, Boy Maton made no objection to the irregularity of his arrest before his arraignment. Hence the trial court is correct when it ruled that Boy Maton had already waived his right to question the illegality of his arrest. Any irregularity attending the arrest of an accused should be timely raised in a motion to quash the information at any time before arraignment; failing (in) which, he is deemed to have waived” his right to question the regularity of his arrest (People y Cunanan, G.R. No. 198924, March 16, 2015). 

However, the trial court erred when it ruled that Boy Maton likewise waived his right to assail the illegal search. In the Villanueva case; (supra), the Supreme Court ruled that a waiver of an illegal arrest is not a waiver of an illegal search. It further held that “while the accused has already waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search.” Therefore, Boy Maton may still move for the suppression of the evidence confiscated from him being the consequences of the illegal arrest.

2 thoughts on “SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION QUESTIONS IN REMEDIAL LAW UP Law Complex

  1. VILLANUEVA vs. PEOPLE
    G.R. No. 199042 November 17, 2014

    A waiver of an illegal arrest, however, is not a waiver of an illegal search.
    [W]e reiterate that “[c]onsent to a search is not to be lightly inferred, but shown by clear and convincing evidence.”

    Consent must also be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion.

    People v. Bacla-an
    445 Phil. 729, 746 (2003)

    A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.

    Caballes v. Court of Appeals
    424 Phil. 263 (2002)

    Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence.

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