Bar Q & A, Remedial Law

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION in REMEDIAL LAW

U.P. Law Complex

I.

Danielle, a Filipino citizen and permanent resident of Milan, Italy, filed with the Regional Trial Court (RTC) of Davao City, where she owns a rest house, a complaint for ejectment against Dan, a resident of Barangay Daliao, Davao City. Danielle’s property, which is located in Digos City, Davao del Sur, has an assessed value of PhP 25,000. Appended to the complaint was Danielle’s certification on non-forum shopping executed in Davao City duly notarized by Atty. Dane Danoza, a notary public. 

(a) Was there a need to refer the case to the Lupong Tagapamayapa for prior barangay conciliation before the court can take cognizance of the case? (2.5%) 

SUGGESTED ANSWERS: 

(a) No. Since Danielle is not an actual resident of Barangay Daliao, or a barangay adjacent thereto, this case is not subject to the Katarungang Pambarangay Law; hence, prior referral to the Lupong Tagamay apa is not a pre-condition to the filing of this case in court (Pascual v. Pascual, G.R. No. 157830, 17 November 2005). 

(b) Was the action properly instituted before the RTC of Davao City? (2.5%) 

SUGGESTED ANSWERS: 

(b) No. Batas Pambansa Blg. 129 vests the Municipal Trial Court with the exclusive jurisdiction over unlawful detainer cases, regardless of the assessed value of the property; hence, the action was wrongfully instituted with the RTC. 

(c) Should the complaint be verified or is the certification sufficient? (2.5%) 

SUGGESTED ANSWERS:

(c) Yes. Considering that the action is for unlawful detainer, the Rules on Summary Procedure will apply. Rule II, Section 3(B) of the Rules on Summary Procedure requires that all pleadings submitted to the court be verified; hence, a mere certification on non-forum shopping, the complaint being an initiatory pleading is insufficient. 

II.

Dendenees Inc. and David, both stockholders owning collectively 25% of Darwinkle Inc., filed an action before the RTC of Makati to compel its Board of Directors (BOD) to hold the annual stockholders’ meeting (ASM) on June 21, 2017, as required by Darwinkle Inc.’s By-Laws, with prayer for preliminary mandatory injunction to use, as record date, April 30, 2017. The complaint alleged, among others, that the refusal to call the ASM on June 21, 2017 was rooted in the plan of the BOD to allow Databank, Inc. (which would have owned 50% of Darwinkle Inc. after July 15, 2017) to participate in the ASM to effectively dilute the complainants’ shareholdings and ease them out of the BOD. Dendenees Inc. and David paid the amount of PhP 7,565 as filing fees based on the assessment of the Clerk of Court. The Board of Directors filed a motion to dismiss on the ground of lack of jurisdiction. They averred that the filing fees should have been based on the actual value of the shares of Dendences Inc. and David, which were collectively worth PhP 450 million. 

If you were the Judge, will you grant the motion to dismiss? (5%)

SUGGESTED ANSWERS: 

No. While the payment of the prescribed docket fee is a jurisdictional requirement, even its non-payment at the time of filing does not automatically cause the dismissal of the case. The court may allow payment of the fee within a reasonable time, but in no case beyond the applicable prescriptive or reglementary period. Here, Dendenees Inc. and David merely relied on the assessment made by the clerk of court. If incorrect, the clerk of court has the responsibility of reassessing how much they must pay within the prescriptive period (Proton Pilipinas v. Banque Nationale de Paris, G.R. No. 151242, June 15, 2005). 

ALTERNATIVE ANSWER: 

No. Since the case is an intra-corporate suit, BOD’s motion to dismiss on the ground of deficient filing fees must be denied for being a prohibited pleading. Under Rule 1, Section 8 of the Interim Rules on Intra Corporate Controversies (A.M. No. 01-2-04-SC), a motion to dismiss is a prohibited pleading. 

III 

On February 3, 2018, Danny Delucio, Sheriff of the RTC of Makati, served the Order granting the ex-parte application for preliminary attachment of Dinggoy against Dodong. The Order, together with the writ, was duly received by Dodong. On March 1, 2018, the Sheriff served upon Dodong the complaint and summons in connection with the same case. The counsel of Dodong filed a motion to dissolve the writ. 

(a) Can the preliminary attachment issued by the Court in favor of Dinggoy be dissolved? What ground/s can Dodong’s counsel invoke? (2.5%) 

SUGGESTED ANSWER:

(a) Yes, the preliminary attachment issued by the court in favor of Dinggoy can be dissolved, because the enforcement thereof was improper. 

In Torres, et al. v. Satsatin, (G.R. No. 166759, November 25, 2009), the Supreme Court ruled that once the implementation of a writ of preliminary attachment commences, the court must have acquired jurisdiction over the defendant, for without such jurisdiction, the court has no power and authority to act in any manner against the defendant, consequently, any order issuing from the Court will not bind the defendant. It is, thus, indispensable not only for the acquisition of jurisdiction over the person of the defendant, but also upon consideration of fairness, to apprise the defendant of the complaint against him and the issuance of a writ of preliminary attachment and the grounds therefore that prior or contemporaneous to the serving of the writ of attachment, service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order must be served upon him. 

In this case, since copies of the complaint and summons were served after the writ of preliminary attachment was served upon Dodong, the writ therefore, was improvidently issued; the writ of preliminary attachment may be dissolved. 

ALTERNATIVE ANSWER: 

(a) Yes, the party whose property has been ordered attached may file a motion to quash the order by filing a motion in court in which the action is pending before or after the levy (Rule 57, Sec. 13). 

Other grounds: 

1. Writ was improvidently issued 

2. A counter-bond had been posted by the defendant 

3. The attachment bond was insufficient

(b) If Dodong posts a counter-bond, is he deemed to have waived any of his claims for damages arising from the issuance of the Order and writ of attachment? (2.5%) 

SUGGESTED ANSWER:

(b) No, the posting of a counter-bond does not amount to a waiver of his claim for damages arising from the issuance of the Order and the writ of attachment. The counter-bond and a claim for damages pertain to two (2) different aspects in the issuance and implementation of a writ of preliminary attachment. 

A counter-bond posted by the person against whom the writ of preliminary attachment was issued, does not answer for damages on account of the lifting of the attachment, but for the payment of the amount due under the judgment that may be recovered by an attaching creditor. The counter-bond stands “in place of the properties so released” (Dizon v. Val des, G.R. No. L-23920, April 25, 1968). 

On the other hand, a claim for damages by the person against whom the writ of preliminary attachment was issued is governed by Rule 57, Section 20 of the Rules of Court, which states that “an application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case”. 

Considering that the Rules of Court provided different purposes for the filing of a counter-bond and the filing of claim for damages, Dodong’s posting of a counter-bond cannot be deemed a waiver of his claim for damages. 

IV 

Dick Dixson had sons with different women — (i) Dexter with longtime partner Delia and (ii) Dongdong and Dingdong with his housemaid Divina. When Dick fell ill in 2014, he entrusted all his property titles and shares of stock in various companies to Delia who, in turn, handed them to Dexter for safekeeping. After the death of Dick, Dexter induced Dongdong and Ding dong to sign an agreement and waiver of their right to Dick’s estate in consideration of PhP45 million. As Dexter reneged on his promise to pay, Dongdong and Dingdong filed with the RTC of Manila a complaint for annulment of the agreement and waiver. The summons and complaint were received by Dalia, the housemaid of Dexter, on the day it was first served. Hence, Dexter filed a motion to dismiss on the ground of lack of jurisdiction over his person. RTC Manila granted the motion to dismiss. 

Dongdong and Dingdong thereafter filed a new complaint against Dexter for annulment of the agreement and waiver. Before Dexter could file his answer, Dongdong and Dingdong filed a motion to withdraw their complaint praying that it be dismissed without prejudice. An Order was issued granting the motion to withdraw without prejudice on the basis that the summons had not yet been served on Dexter. Dexter filed a motion for reconsideration of the order of dismissal. He argued that the dismissal should have been with prejudice under the “two-dismissal rule” of Rule 17, Section 1 of the Rules of Court, in view of the previous dismissal of the first case. 

Will the two-dismissal rule apply making the second dismissal with prejudice? (5%) 

SUGGESTED ANSWER: 

No, the two-dismissal rule will not apply, because the first dismissal was at the instance of the defendant. 

The requirements for the application of the two-dismissal rule under Rule 17, Section 1 of the Rules of Court are: 

(a) [t]here was a previous case that was dismissed by a competent court; 

(b) [b]oth cases were based on or included the same claim; 

(c) [b]oth notices for dismissal were filed by the plaintiff; and

(d) [w]hen 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 (Ching, et al. v. Cheng, et al., G.R. No. 175507, October 8, 2014). 

In this case, the third requisite is absent because the first dismissal was upon the motion to dismiss filed by Dexter; hence, the two-dismissal rule will not apply. 

V.

Dorton Inc. (Dorton) sued Debra Commodities Inc. (Debra), Daniel, and Debbie in the RTC of Manila for recovery of a sum of money. The complaint alleged that, on October 14, 2017, Debra obtained a loan from Dorton in the amount of PhP 10 million with interest of 9% per annum. The loan was evidenced by a promissory note (PN) payable on demand signed by Daniel and Debbie, the principal stockholders of Debra, who also executed a Surety Agreement binding themselves as sureties. Copies of both the PN and the Surety Agreement were attached to the complaint. Dorton further alleged that it made a final demand on March 1, 2018 for Debra and the sureties to pay, but the demand was not heeded. 

Debra, Daniel, and Debbie filed their answer, and raised the affirmative defense that, while the PN and the Surety Agreement appeared to exist, Daniel and Debbie were uncertain whether the signatures on the documents were theirs. The PN and the Surety Agreement were pre-marked during pre-trial, identified but not authenticated during trial, and formally offered. 

Can the RTC of Manila consider the PN and the Surety Agreement in rendering its decision? (5%) 

SUGGESTED ANSWER: 

Yes, the RTC of Manila may consider the PN and the surety agreement in rendering its decision. 

The PN and the surety agreement are actionable documents, defined under Rule 8, Section 7 of the Rules of Court as a written instrument upon which an action is founded. Rule 8, Section 8, moreover, provides that when an action is founded upon a written instrument, copied in or attached to the corresponding pleading, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the facts. 

In this case, Debra, Daniel, and Debbie are parties to the PN and the surety agreement. Since the PN and surety agreement are attached to the complaint, Debra, Daniel, and Debbie are deemed to have admitted the genuineness and due execution thereof for their failure to: 

(a) deny the genuineness and due execution of these documents under oath; and 

(b) to set for what they claim to be facts. 

The court, therefore, may consider the PN and the surety agreement in rendering its decision. 

VI.

Daribell Inc. (Daribell) filed a complaint for a sum of money and damages against spouses Dake and Donna Demapilis for unpaid purchases of construction materials in the sum of PhP250,000. In their answer, spouses Demapilis admitted the purchases from Daribell, but alleged that they could not remember the exact amount since no copies of the documents were attached to the complaint. They nevertheless claimed that they made previous payments in the amounts of PhP110,000 and PhP20,000 and that they were willing to pay the balance of their indebtedness after account verification. In a written manifestation, spouses Demapilis stated that, in order to buy peace, they were willing to pay the sum of PhP250,000, but without interests and costs. Subsequently, Daribell filed a Motion for partial summary judgment. Thereafter, Daribell filed an amended complaint, alleging that the total purchases of construction materials were PhP280,000 and only PhP20,000 had been paid. Daribell also served upon the spouses Demapilis a request for admission asking them to admit the genuineness of the statement of accounts, delivery receipts, and invoices, as well as the value of the principal obligation and the amount paid as stated in the -amended complaint. 

Daribell thereafter amended the complaint anew. The amendment modified the period covered and confirmed the partial payment of PhP110,000 but alleged that this payment was applied to the spouses’ other existing obligations. Daribell however reiterated that the principal amount remained unchanged. 

(a) Is the request for admission deemed abandoned or withdrawn by the filing of the second amended complaint? (2.5%) 

SUGGESTED ANSWERS: 

(a) No. The second amended complaint merely supersedes the first amended complaint and nothing more, pursuant to Rule 10, Section 8 of the Rules of Court; thus, the Request for Admission is not deemed abandoned or withdrawn by the filing of the Second Amended Complaint (Spouses Villuga v. Kelly Hardware and Construction Supply, Inc., G.R. No. 176570, July 18, 2012). 

(b) Can the amendment of the complaint be allowed if it substantially alters the cause of action? (2.5%) 

SUGGESTED ANSWERS: 

(b) Such amendment could still be allowed when it is sought to serve the higher interest of substantial justice, prevent delay, and secure a just, speedy and inexpensive disposition of actions and proceedings (Spouses Valenzuela v. Court of Appeals, G.R. No. 131175, August 28, 2001). The amended complaint may be allowed if it will not prejudice the rights of the parties. 

(c) Can the facts subject of an unanswered request for admission be the basis of a summary judgment? (2.5%)

SUGGESTED ANSWER: 

(c) Yes. Summary judgment is a procedural device resorted to in order to avoid long drawn-out litigations, and useless delays. Such judg ment is generally based on the facts proven summarily by affidavits, de positions, pleadings, or admissions of the parties (Spouses Villuga v. Kelly Hardware and Construction Supply, Inc., G.R. No. 176570, July 18, 2012). 

In this case, the facts subject of an unanswered request for admission are deemed admissions by the adverse party (Rule 26, Section 2, Rules of Court). Applying the Supreme Court’s ruling in Spouses Villuga v. Kelly Hardware and Construction Supply, Inc. (G.R. No. 176570, 18 July 2012), these facts may be the basis of a summary judgment. 

VII 

Dory Enterprises Inc. (Dory) leased to Digna Corporation (Digna) a parcel of land located in Diliman, Quezon City. During the term of the lease, Digna was informed by DBS Banking Corporation (DBS) that it had acquired the leased property from the former owner Dory and required Digna to pay the rentals directly to it. Digna promptly informed Dory of DBS’ claim of ownership. In response, Dory insisted on its right to collect rent on the leased property. 

Due to conflicting claims of Dory and DBS over the rental payments, Digna filed a complaint for interpleader in the RTC of Manila. Digna also prayed that it be allowed to consign in court the succeeding monthly rentals, and that Dory and DBS be required to litigate their conflicting claims. It later appeared that an action for nullification of a dacion en pago was filed by Dory against DBS in the RTC of Quezon City. In said case, Dory raised the issue on which of the two corporations had better right to the rental payments. Dory argued that, to avoid conflicting decisions, the interpleader case must be dismissed. 

SUGGESTED ANSWERS: 

Does the action for nullification of the dacion en pago bar the filing of the interpleader case? (2.5%) 

SUGGESTED ANSWER: 

Yes. The interpleader case should be dismissed in view of the action for nullification of the dacion en pago. 

Under Rule 2, Section 4 of the Rules of Court, if two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for dismissal of the others. In the situation above, the interpleader case filed by Digna seeks to resolve who between Dory and DBS has the right to receive the rental payments. Similarly, Dory’s action for nullification of the dacion en pago will determine who between Dory and DBS has the right to collect rental payments from Digna. Considering that the two cases involve the same cause of action, the interpleader case should be dismissed. 

ALTERNATIVE ANSWER: 

Yes, the interpleader case must be dismissed. Interpleader, in this case, should have been raised as a compulsory counterclaim. Failure to raise the same amounts to a waiver of the counterclaim (Wack Wack Golf & Country Club, Inc. v. Won and Tan, G.R. L-23851, March 26, 1976). 

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION QUESTIONS IN REMEDIAL LAW 

U.P. Law Complex

VIII 

Spouses Dondon and Donna Dumdum owned a residential lot in Dapitan City. Doy Dogan bought said lot and took possession thereof with the promise to pay the purchase price of PhP 2 million within a period of six (6) months. After receiving only PhP500,000, spouses Dumdum executed the Deed of Absolute Sale and transferred the title to Doy Dogan. The balance was not paid at all. Spouses Dumdum, through counsel, sent a demand let ter to Doy Dogan for him to pay the balance of PhP1.5 million plus interest of PhP150,000. Doy Dogan responded in a letter by saying that “while the remaining balance is admitted, the interest charged is excessive”. There be ing no payment, Spouses Dumdum filed a complaint for reconveyance with damages against Doy Dogan in the RTC of Dapitan City. 

In his Answer, Doy Dogan raised, by way of affirmative defense, that the purchase price had been fully paid and for this reason the complaint should have been dismissed. 

Spouses Dumdum then filed a motion for judgment on the plead ings which was granted by the RTC of Dapitan City. The Court awarded PhP1.5 million actual damages representing the balance of the purchase price, PhP200,000 as moral damages, PhP200,000 as exemplary damages, PhP90,000 as interest, PhP50,000 as attorney’s fees, and PhP5,000 as cost of suit. 

Was it proper for the RTC of Dapitan City to grant the motion for judgment on the pleadings? (2.5%)

SUGGESTED ANSWER: 

No. It was improper for the RTC of Dapitan City to grant the motion for judgment of the pleadings. 

Rule 34 of the Rules of Court states that a judgment on the pleadings is proper where an answer failed to tender an issue or otherwise admits the material allegations of the adverse party’s pleading. In this case, Doy Dogan alleged that he paid the purchase price in full, contrary to Spouses Dumdum’s allegation that Doy Dogan did not pay the balance of Php1.5 Million. He tendered an issue in his answer as to whether or not he had an outstanding unpaid balance with Spouses Dumdum. The answer claimed that the purchase price had been fully paid; hence, a judgment on the pleadings was improper. 

IX 

In 2015, Dempsey purchased from Daria a parcel of land located in Dumaguete, Negros Oriental. The latter executed a Deed of Absolute Sale and handed to Dempsey the owner’s duplicate copy of TCT No. 777 cover ing the property. Since he was working in Manila and still had to raise funds to cover taxes, registration, and transfer costs, Dempsey kept the TCT in his possession without having transferred it to his name. A few years thereafter, when he already had the funds to pay for the transfer costs, Dempsey went to the Register of Deeds of Dumaguete and discovered that, after the sale, Daria had filed a petition for reconstitution of the owner’s duplicate copy of TCT No. 777 which the RTC granted. Thus, unknown to Dempsey, Daria was able to secure a new TCT in her name. 

What is Dempsey’s remedy to have the reconstituted title in the name of Daria nullified? (5%)

SUGGESTED ANSWER: 

Dempsey may file a Petition for Annulment of Judgment under Rule 47 of the Rules of Court. 

The Supreme Court has consistently held that when the owner’s duplicate certificate of title has not been lost, but is in fact in the possession of another person, then the reconstituted certificate is void, because the court that rendered the decision had no jurisdiction. As a rule, reconstitution can validly be made only in case of loss of the original certificate. In this regard, the remedy to nullify an order granting reconstitution is a petition for an nulment under Rule 47 of the Rules of Court (Eastworld Motor Industries Corporation v. Skunac Corporation, G.R. No. 163994, December 16, 2005). 

In this case, RTC Dumaguete had no jurisdiction to order the re constitution of the owner’s duplicate copy of TCT No. 777, considering that the owner’s duplicate copy thereof had not been lost, but was merely in Dempsey’s possession. The order granting Daria’s petition for recon stitution is therefore void; accordingly, Dempsey may file a Petition for Annulment of Judgment under Rule 47 to nullify the reconstituted title in Daria’s name. 

X.

In a buy-bust operation, 30 kilos of shabu were seized from Dave and Daryll. They were arrested and placed on inquest before Prosecutor Danilo Doon who ordered their continued detention. Thereafter, the information for the sale and distribution of shabu was filed in court. When arraigned, Dave and Daryll pleaded not guilty to the charge. During pre-trial, counsel for both of the accused raised, for the first time, the illegality of the arrest. The case proceeded to trial. After trial, the court scheduled the promulgation of judg ment with notice to both the accused and their counsel, Atty. Dimayuga. Dur ing the promulgation, only Dave and Atty. Dimayuga were present. Both the accused were convicted of the crime charged. 

(a) Was the challenge to the validity of the arrest timely raised? (2.5%) 

SUGGESTED ANSWERS: 

(a) No, the challenge to the validity of the arrest was not timely raised. As a rule, an accused may question the validity of his arrest through a mo tion to quash before he enters his or her plea; otherwise, the objection is deemed waived, and an accused is estopped from questioning the legality of his or her arrest (Veridiano v. People of the Philippines, G.R. No. 200370, June 7, 2017). 

(b) What is the remedy available to Daryll, if any, to be able to file an appeal? (2.5%) 

SUGGESTED ANSWERS: 

(b) In this case, Dave and Daryll questioned the legality of their ar rest only during pre-trial, after they were arraigned; hence, the challenge to the validity of the arrest was not timely raised. 

To be able to file an appeal, Daryll should: (a) surrender, and (b) file a motion for leave of court to file an appeal, stating therein the reasons for his absence during the promulgation, within 15 days from the date of promulgation of judgment. 

As a rule, the accused who fails to appear at the promulgation of the judgment of conviction shall lose the remedies available under the Rules of Court against the judgment, such as the filing of: (a) a motion for new trial or reconsideration; or (b) an appeal from the judgment of conviction. The Rules of Court, however, allow the accused to regain his standing in court to avail of these remedies by: (a) his surrender; and (b) his filing of a motion for leave of court to avail of these remedies, stating therein the reasons for his absence within 15 days from the date of promulgation of judgment. (Villena v. People, G.R. No. 184091, January 31, 2011)

XI.

In 2007, Court of Appeals Justice (CA Justice) Dread Dong (J. Dong) was appointed to the Supreme Court (Court) as Associate Justice. Immediately after the appointment was announced, several groups questioned his qualification to the position on the ground that he was not a natural born Filipino citizen. In the same year, the Court issued an Order enjoining him from accepting the appointment or assuming the position and discharging the functions of his office until he is able to successfully complete all the necessary steps to show that he is a natural born citizen of the Philippines. He, however, continued to exercise his functions as CA Justice. 

Since the qualification of a natural born citizen applies as well to CA Justices, Atty. Dacio, a practicing lawyer, asked the Office of the Solicitor General (OSG), through a verified request, to initiate a quo warranto proceeding against J. Dong in the latter’s capacity as incumbent CA Justice. The OSG refused to initiate the action on the ground that the issue of J. Dong’s citizen ship was still being litigated in another case. 

When the OSG refused to initiate a quo warranto proceeding, Atty. Dacio filed a petition for certiorari against the OSG, and certiorari and prohibition against J. Dong. The petition for certiorari against the OSG al leged that the OSG committed grave abuse of discretion when it deferred the filing of a quo warranto proceeding against J. Dong, while the petition for certiorari and prohibition against J. Dong asked the Court to order him to cease and desist from further exercising his powers, duties and responsibili ties as CA Justice. In both instances, Atty. Dacio relied on the fact that at the time of J. Dong’s appointment as CA Justice, J. Dong’s birth certificate indicated that he was a Chinese citizen and his bar records showed that he was a naturalized Filipino citizen. 

(a) May the OSG be compelled, in an action for certiorari, to initiate a quo warranto proceeding against J. Dong? (2.5%) 

SUGGESTED ANSWERS: 

(a) No. The OSG has the discretion in determining the presence of the requisites for a quo warranto proceeding. Besides, there is already a pending case for the purpose of determining citizenship.

For a quo warranto proceeding to be successful the private person suing must show a clear right to the contested office (Ferdinand Topacio v. Associate Justice of the Sandiganbayan Gregory Ong and the OSG, G.R. No. 179895, December 18, 2008). 

(b) Does Atty. Dacio have the legal personality to initiate the action for certiorari and prohibition against J. Dong? (2.5%) 

SUGGESTED ANSWERS: 

(b) No. He is not clothed with legal interest. Rule 65, Sections 1 and 2 of the Rules of Court state that only an aggrieved party may file petitions for certiorari and prohibition in the appropriate court. 

An “aggrieved party” is one who was a party to the original pro ceedings that gave rise to the original action for certiorari under Rule 65 (Siguion Reyna Montecillo and Ongsiako Law Offices v. Chionlo-Sia, G.R. No. 181186, February 3, 2016). 

In this case, since there is no “original proceeding” before J. Dong where Atty. Dacio is a party, he cannot be considered an “aggrieved party” for purposes of Rule 65, Sections 1 and 2 of the Rules of Court. Atty. Dacio therefore, has no legal personality to file the same. 

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION QUESTIONS IN REMEDIAL LAW   U.P. Law Complex

XII 

Dodo was knocked unconscious in a fist fight with Dindo. He was rushed to the emergency room of the Medical City where he was examined and treated by Dr. Datu. As he was being examined, a plastic sachet appearing to contain shabu fell from Dodo’s jacket which was on a chair beside him. Dodo was thus arrested by the same policemen who assisted him to the hospital. At Dodo’s trial, the public prosecutor called Dr. Datu to the witness stand. When the public prosecutor asked Dr. Datu as to what he saw in the emergency room, Dodo’s counsel objected, claiming doctor-patient privilege rule. 

How would you rule on the objection? (2.5%) 

SUGGESTED ANSWER: 

The objection should be overruled. The doctor-patient privilege under Rule 130, Section 24 of the Rules of Court is limited to “any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient” (Lim v. Court of Appeals, G.R. No. 91114, September 25, 1992). 

In this case, Dr. Datu is being called to testify on what he saw in the emergency room, which does not pertain to any information he acquired in attending to Dodo in a professional capacity. Dr. Datu was simply be ing asked to testify as an ordinary witness, and not as Dodo’s physician; hence, doctor-patient privilege under Rule 130, Section 24 of the Rules of Court does not apply.

XIII.

Denny is on trial for homicide. The prosecution calls Danilo, a police officer, who interviewed the victim, Drew, shortly after the shooting. Danilo’s testimony is being offered by the prosecution for purposes of proving that (i) Drew is now dead; (ii) while in the emergency room, Drew was posting his medical condition on Facebook and was “liking” the posts of his Facebook friends; (iii) Drew asked the nurse for water but was refused because he was bleeding, which subsequently angered Drew; and (iv) before dying, Drew signed a statement in which he identified Denny as the shooter. 

Is the proposed testimony of Danilo admissible? (2.5%) 

SUGGESTED ANSWER: 

Yes. The subject matter of Danilo’s statements could be admitted as independently relevant statement. They are intended to merely establish either the truth or falsity of Drew’s statements. 

ALTERNATIVE ANSWER: 

(i) Danilo’s testimony as to the fact of Drew’s death is admissible, because he has personal knowledge of Drew’s death. Rule 130, Section 36 of the Rules of Court states: 

“Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise pro vided in these rules”. 

In this case, Danilo has personal knowledge of Drew’s death, be cause he was present when the latter died in the emergency room; thus, Danilo’s testimony which pertains to Drew’s death is admissible. 

(ii) Danilo’s testimony as to the fact that Drew was using his Facebook at the time he was in the emergency room is inadmissible because it is irrelevant. Rule 128, Section 3 of the Rules of Court states: 

“Sec. 3. Admissibility of evidence. — Evidence is admis sible when it is relevant to the issue and is not excluded by the law of these rules”. 

In this case, the fact that Danilo saw Drew using his Facebook is irrelevant in proving the issue of Denny’s purported commission of the crime of homicide. 

(iii) Danilo’s testimony as to the fact that Drew was mad after the nurse refused to give him water in the emergency room is inadmissible, because it is irrelevant and immaterial under Rule 128, Section 3 of the Rules of Court. In this case, Drew’s reaction upon being refused water by the nurse is irrelevant to prove Denny’s purported commission of the crime of homicide. 

(iv) Danilo’s testimony is admissible to prove the fact that Drew signed a document which identified Denny as the shooter because he had personal knowledge of the same. 

Rule 130, Section 36 states: 

“Sec. 36. Testimony generally confined to personal knowl edge; hearsay excluded. – A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise pro vided in these rules”. 

Danilo personally saw Drew sign the document which purportedly identified Denny as the shooter; thus, his testimony regarding the fact that Drew signed said document is admissible. 

XIV

Dave is on trial for sexual assault of Delly, a law student who sidelines as a call center agent. Dave offers the testimony of Danny, who says that Dave is known in the community as a decent and discerning person. The prosecu tion presents a rebuttal witness, Dovie, who testifies that, if Dave was reputed to be a good person, that reputation was a misperception because Dave had been previously convicted of homicide. Is Dovie’s testimony admissible as to the character of Dave? (2.5%) 

SUGGESTED ANSWER: 

No, Dovie’s testimony on Dave’s previous conviction for homicide as evidence of his bad character does not refer to a moral trait involved in the offense charged which is sexual assault (Section 51 (a)(2), Rule 130 of the Rules of Court). 

XV.

Atty. Dalmacio, the Director of the National Bureau of Investigation, applied for a search warrant before the Executive Judge of RTC Manila. He alleged in his application that a certain alias Django was keeping about 10 kilos of shabu in a wooden cabinet located at Dillian’s Store in Paseo de Sta. Rosa, Laguna. The Executive Judge of Manila personally examined Atty. Dalmacio and his witnesses and thereafter issued the search warrant particularly describing the place to be searched and the items to be seized. 

(a) Can the search warrant issued by the Executive Judge of Manila be enforced in Laguna? (2.5%) 

SUGGESTED ANSWERS: 

(a) Yes, the search warrant issued by the Executive Judge of Manila may be enforced in Laguna. 

Administrative Order No. 99-20-09 of the Supreme Court states all applications for search warrant personally endorsed by the head of the Philippine National Police (PNP), the National Bureau of Investigation (NBI), The Presidential Anti-Organized Crime Task Force (PAOC-TF) and the Reaction Against Crime Task Force (REACT-TF) with the Executive Judge and Vice Executive Judges of Regional Trial Courts, Manila, and Quezon City, may be served in places outside the territorial jurisdiction of said courts. 

In the case at bar, the application for the issuance of search warrant was filed by the Director of the National Bureau of the National Bureau of Investigation (NBI) before the Executive Judge of Manila; hence, the search warrant may be enforced outside the territorial juris diction of Manila. 

(b) Can the legal concept of “venue is jurisdictional” be validly raised in applications for search warrants? (2.5%) 

SUGGESTED ANSWERS: 

(b) No, the legal concept of venue being jurisdictional is not applicable. 

The Supreme Court in Malaloan v. Court of Appeals, (G.R. No. 104879, May 6, 1994), states that an application for a search warrant is a special criminal process, rather than a criminal action; hence, the legal concept of venue being jurisdictional is not applicable in the case at bar. 

XVI

Danjo, a stay-in gardener at the Dy home in Quezon City, applied for overseas employment in Riyadh as a flower arranger. After he left for abroad, Dino Dy, head of the family, discovered that all his wrist watches were missing. Dino followed Danjo’s Instagram account and in one instance saw Danjo wearing his Rolex watch. He filed a complaint for qualified theft against Dan jo with the Office of the Prosecutor (OP), Quezon City. The subpoena with the affidavit-complaint was served on Denden, Danjo’s wife, at their house. No counter-affidavit was filed by Danjo who continued to work in Riyadh. After conducting a preliminary investigation, the OP found probable cause against Danjo and subsequently filed the information for qualified theft before the RTC of Quezon City. The court likewise found probable cause and issued in 2016 a warrant for Danjo’s arrest. 

Danjo was repatriated to the Philippines in 2018. While Danjo was lurking outside the Dys’ house, which was only about 100 meters away from the police station, SPO1 Dody recognized Danjo. Realizing that the police station had a copy of Danjo’s warrant of arrest, SPO1 Dody immediately pursued and arrested Danjo. 

(a) Was the warrant of arrest issued against Danjo who was not in the Philippines valid? (2.5%) 

SUGGESTED ANSWERS: 

(a) Yes, the warrant of arrest issued against Danjo was valid. 

Section 6, Rule 112 of the Revised Rules of Criminal Procedure states: 

“Section 6: When warrant of arrest may issue. – (a) By the Regional Trial Court – Within ten (10) days from the fil ing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecu tor to present additional evidence within five (5) days from no tice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information”.

Likewise, in Ocampo v. Abando, (G.R. No. 176830, 11 February 2014), the Supreme Court held that, 

“[I]t is enough that the judge personally evaluates the Prosecutor’s report and supporting documents showing the ex istence of probable cause for the indictment and, on the basis thereof, issue a warrant of arrest; or on the basis of his evalu ation he finds no probable cause, to disregard the Prosecutor’s resolution and require the submission of additional affidavits of witnesses to aid him in determining its existence”. 

It is provided that the Judge, may at his discretion, issue a warrant of arrest for Danjo if the prosecution sufficiently established the existence of a probable cause as required by the Revised Rules of Criminal Procedure.

It is clear, therefore, that the warrant of arrest issued against Danjo is valid. 

(b) Can the warrant of arrest be served on Danjo upon his return? (2.5%) 

SUGGESTED ANSWERS: 

(b) Yes, the warrant of arrest may be served on Danjo upon his return to the Philippines. 

The Supreme Court in Manangan v. Court of First Instance of Nueva Vizcaya (G.R. No. 82760, August 30, 1990) ruled that unlike a search warrant, which is valid for only ten (10) days from date (Rule 126, Sec. 10), a Warrant of Arrest remains valid until arrest is effected or the Warrant lifted. 

In the case at bar, absent any indication that the warrant of arrest was lifted by the Court , the warrant of arrest issued for the arrest of Danjo is still valid. 

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION QUESTIONS IN REMEDIAL LAW U.P. Law Complex

XVII.

Don Deles, a contractor, was sued together with Mayor Dante Dungo and Congressman Dal Dilim for malversation of public funds before the Office of the Ombudsman. Danny Din, a material witness of the complainant Diego Domingo, was hired as an engineer by a construction company in Qatar and had to depart in two (2) months. To perpetuate Danny Din’s testimony, Diego Domingo applied for his conditional examination before the Sandiganbayan. 

Should the application for conditional examination of Danny Din be granted? (2.5%) 

SUGGESTED ANSWER: 

The application for conditional examination of Danny Din should not be granted. 

The case is still under investigation before the Office of the Ombudsman. There is no trial of the case before the Sandiganbayan, yet. Rule 119, Section 15 of the Rules of Court on the conditional examination of the witness for the Prosecution is made before the court where the case is pending. 

Rule 119, Section 12 of the Rules of Court states that a conditional examination of witnesses for the prosecution may be applied for when a person has been held to answer for an offense. In addition to this require ment, the applicant must show that: (a) the witness is too sick or infirm to appear at the trial as directed by the order of the court; (b) or has to leave the Philippines with no definite date of returning thereto, he may forthwith be conditionally examined before the judge or the court where the case in pending. 

XVIII 

The Republic of the Philippines (Republic) filed a complaint with the Sandiganbayan in connection with the sequestered assets and properties of Demo Companies Inc. (Demo) and impleaded its officers and directors. Since the complaint did not include Demo as defendant, the Sandiganbayan issued a resolution where it ordered Demo to be impleaded. Thereafter, the Repub lic filed an amended complaint naming Demo as additional defendant, which amendment was later admitted. 

Demo filed a motion for bill of particulars for the Republic to clarify certain matters in its amended complaint. The Sandiganbayan immediately granted the motion. Upon submission of the bill of particulars by the Republic, Demo filed a motion to dismiss arguing that the answers in the bill of particulars were indefinite and deficient responses to the question of what the alleged illegally acquired funds or properties of Demo were. The Sandigan bayan dismissed the case. 

(a) Was the Sandiganbayan correct in dismissing the case? (2.5%) 

SUGGESTED ANSWERS: 

(a) No, the Sandiganbayan was incorrect in dismissing the case. An action cannot be dismissed on the ground of vagueness or indefiniteness (Galeon v. Galeon, G.R. L-30380, February 28, 1973)

ALTERNATIVE ANSWER: 

(a) Yes, the Sandiganbayan was correct in dismissing the case. 

Under Rule 12, Section 4 of the Rules of Court, the consequence of insufficient compliance with the court’s order for a bill of particulars or a more definite pleading is that the court may order the striking out of said pleading or the portions thereof. 

In this case, the Sandiganbayan dismissed the case upon non-com pliance with its order for a definite pleading. The dismissal of the case was made by the striking out of the pleading, which in this case was the complaint by the Republic. In striking out said pleading, no complaint existed; thus, the Sandiganbayan effectively dismissed the case. 

The Sandiganbayan, therefore, correctly dismissed the case, as the bill of particulars was deemed insufficient leading to the striking out of the complaint.  

(b) What can the defendant, in a civil case, do in the event that his motion for bill of particulars is denied? (2.5%) 

SUGGESTED ANSWER: 

(b) Under Rule 12, Section 5 of the Rules of Court, after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. If tainted with grave abuse of discretion, the moving party may question the denial through a Rule 65 certiorari. 

XIX 

Drylvik, a German national, married Dara, a Filipina, in Dusseldorf, Germany. When the marriage collapsed, Dara filed a petition for declaration of nullity of marriage before the RTC of Manila. Drylvik, on the other hand, was able to obtain a divorce decree from the German Family Court. The decree, in essence, states: 

The marriage of the Parties contracted on xxx before the Civil Registrar of Dusseldorf is hereby dissolved. The parental custody of the children Diktor and Daus is granted to the father. 

Drylvik filed a motion to dismiss in the RTC of Manila on the ground that the court no longer had jurisdiction over the matter as a decree of divorce had already been promulgated dissolving his marriage to Dara. Dara objected, saying that while she was not challenging the divorce decree, the case in the RTC still had to proceed for the purpose of determining the issue of the children’s custody. Drylvik counters that the issue had been disposed of in the divorce decree, thus constituting res judicata. 

(a) Should Drylvik’s motion to dismiss be granted? (2.5%) 

SUGGESTED ANSWER: 

(a) No, the motion to dismiss cannot be granted. 

In Roehr v. Rodriguez (G.R. No. 142820, June 20, 2003), the Supreme Court ruled that divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care, and support of the children, must still be determined by our courts. Before our courts can give the effect of res judicata to a foreign judgment, such as the award of custody of the children, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court. 

Rule 39, Section 50 states that “lijn case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judg ment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.” Thus, in actions in personam, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary

In this case, the divorce decree issued by the German Family Court merely constitutes prima facie evidence and it must be proven that Dara was given the opportunity to challenge the judgment of the German court so that there is basis for declaring that judgment as res judicata with regard to the rights of petitioner to have parental custody of their two children. 

(b) Is a foreign divorce decree between a foreign spouse and a Filipino spouse, uncontested by both parties, sufficient by itself to cancel the entry in the civil registry pertaining to the spouses’ marriage? (2.5%) 

SUGGESTED ANSWER: 

(b) No, a foreign divorce decree between a foreign spouse and a Fili pino spouse, uncontested by both parties is insufficient by itself to cancel the entry in the civil registry. Before a foreign divorce decree can be rec ognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it (Republic v. Manalo, G.R. No. 221029, April 24, 2018). 

XX 

Dominic was appointed special administrator of the Estate of Dakota Dragon. Delton, husband of Dakota, together with their five (5) children, opposed the appointment of Dominic claiming that he (Dominic) was just a step brother of Dakota. After giving Dominic the chance to comment, the court issued an Order affirming the appointment of Dominic. 

(a) What is the remedy available to the oppositors? (2.5%) 

SUGGESTED ANSWERS: 

(a) The remedy available to the oppositors of the appointment of Dominic as special administrator is to file a petition for certiorari under Rule 65 of the Rules of Court. The appointment of special administrators, being discretionary, is thus interlocutory and may be assailed through a petition for certiorari under Rule 65 of the Rules of Court (Ocampo v. Ocampo, G.R. No. 187879, July 5, 2010). 

(b) If there are no qualified heirs, can the government initiate escheat proceedings over the assets of the deceased? To whom, in particular, shall the estate of the deceased go and for whose benefit? (2.5%) 

SUGGESTED ANSWER: 

(b) If there are no qualified heirs, Rule 91, Section 1 of the Rules of Court provides that the Solicitor General or his representatives in behalf of the Republic of the Philippines, may file a petition with the Regional Trial Court where the deceased last resided or in which he had estate, if he resided outside the Philippines, setting forth the facts and praying that the estate of the deceased be declared escheated. 

Rule 91, Section 3 of the Rules of Court provides that once a judgment has been rendered in escheat proceedings, the properties of the deceased shall be assigned as follows: (a) personal estate to the municipality or city where he last resided in the Philippines; (b) real estate to the municipalities or cities in which the same is located; and (c) if the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. 

XXI.

The municipality of Danao, Cebu was a quiet and peaceful town until a group of miners from Denmark visited the area and discovered that it was rich in nickel. In partnership with the municipal mayor, the Danish miners had to flatten 10 hectares of forest land by cutting all the trees before starting their mining operations. The local DENR, together with the Samahan Laban sa Sumisira sa Kalikasan, filed a petition for writ of kalikasan against the municipal mayor and the Danish miners in the RTC of Cebu. 

(a) Is the petition within the jurisdiction of the RTC of Cebu? (2.5%) 

SUGGESTED ANSWER: 

(a) No, the petition for a writ of kalikasan is not within the jurisdiction of the RTC of Cebu. Rule 7, Section 3 of the Rules of Procedure for Environmental Cases provides that a petition for a writ of kalikasan is filed with the Supreme Court or any of the stations with the Court of Appeals. 

(b) What is the Precautionary Principle? (2.5%) 

SUGGESTED ANSWERS: 

(b) The Precautionary Principle states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat (Rule 1, Section 4(1) of the Rules of Procedure for Environmental Cases). 

XXII

Danica obtained a personal loan of Php180,000 from Dinggoy, payable in 18 equal monthly installments of PhP10,000 until fully paid. In order to complete her payment at an earlier date, Danica instead paid PhP20,000 monthly, and continued doing so until the 18th month, all of which payments Dinggoy accepted. Later on, she realized that she had overpaid Dinggoy by 100% as she should have already completed payment in nine (9) months. She demanded the return of the excess payment, but Dinggoy completely ignored her. Thus, Danica availed of the Rules of Procedure for Small Claims Cases by filing before the Municipal Trial Court (MTC) a Statement of Claim, together with the required documents.

Should the MTC proceed with the case under the: (i) Revised Rules on Summary Procedure; (ii) the Rules of Procedure for Small Claims; or (iii) the regular procedure for civil cases? (5%) 

SUGGESTED ANSWERS: 

The Municipal Trial Court (MTC) should try the case under the Revised Rules of Procedure for Small Claims (the “Revised Rules”). As per the latest amendment of said rules (En Banc Resolution dated July 10, 2018 in A.M. No. 08-8-7-SC), the MTC shall apply the Revised Rules in all actions which are purely civil in nature where the claim or relief prayed for is solely for payment or reimbursement of sum of money not exceeding Php300,000.00* exclusive of interest and costs. 

Having overpaid by one hundred percent (100%) of the amount of the loan, Danica’s claim for reimbursement amounts to One Hundred Eighty-Thousand Pesos (Php180,000.00), which is within the threshold of the Revised Rules. Thus, the MTC should proceed to hear the case under the Revised Rules. 

*The 2016 amendment increased the amount covered from Php100,000.00 to Php 200,000.00. 

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