SAN BEDA COLLEGE OF LAW – MANILA PART I SUGGESTED ANSWERS TO BAR EXAM QUESTIONS

LAW STUDENT GOVERNMENT (AY 2017-2018) YEARS 1997-2006

SPECIAL CIVIL ACTIONS AND SPECIAL TOPIC: SPECIAL PROCEEDINGS
PROCEEDINGS – BAR Q&As 1997-2016
Cancellation or Correction; Entries Civil Registry (2005)
Academics Committee Head: Vice President for Academics: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married
Pojas, Kristofer Abe B. Alfaro, Rennette Joy G. to another woman living in China. Her birth certificate indicates that Helen is
(3rd Year Batch Representative) the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen
wants her birth certificate corrected by changing her filiation from
This work is made possible through joint efforts of the members and "legitimate" to "illegitimate" and her citizenship from "Chinese" to "Filipino"
volunteers of the Law Student Government Academics Committee 2017- because her parents were not married. What petition should Helen file and
2018. This is not an original work by the persons named herein but is only a what procedural
compilation of answers to bar examination questions by the UP Law requirements must be observed? Explain. (5%)
Complex, Philippine Association of Law Schools, and local law students and
lawyers. This work is not intended for sale nor commerce but may be freely SUGGESTED ANSWER:
distributed and mass produced by those who seek a better understanding of A petition to change the record of birth by changing the filiation from
the concepts in Special Civil Actions and Special Proceedings. "legitimate" to "illegitimate" and petitioner's citizenship from "Chinese" to
"Filipino" because her parents were not married, does not involve a simple
Due credit and appreciation are extended to those who actually own the summary correction, which could otherwise be
intellectual property rights over the content of this material as well as to the done under the authority of R.A. No. 9048. A petition has to be filed in a
contributors and volunteers. The latter intends to do no copyright proceeding under Rule 108 of the Rules of Court, which has now been
infringement nor do they accept any liability for the content and interpreted to be adversarial in nature. (Republic v. Valencia, G.R. No. L-
consequences of any act performed by the user, except for typographical, 32181, March 5, 1986).
grammatical, or related errors.
Procedural requirements include:
For contributions, suggestions, participations, you may approach the Law (a) filing a verified petition;
Student Government or contact the same through any of the following (b) naming as parties all persons who have or claim any interest which
media: Facebook: LSG San Beda Manila (@[Link]); would be affected;
Contact Number: 09951693210; E-mail address: [Link]@[Link] (c) issuance of an order fixing the time and place of hearing;
(d) giving reasonable notice to the parties named in the petition; and (e)
UIOGD. publication of the order once a week for three consecutive seeks in a
newspaper of general circulation (Rule 108, Rules of Court).

Escheat Proceedings (2002)

Suppose the property of D was declared escheated on July 1, 1990 in escheat
proceedings brought by the Solicitor General. Now, X, who claims to be an
heir of D, filed an action to recover the escheated property. Is the action
viable? Why? (2%)

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SUGGESTED ANSWER: ALTERNATIVE ANSWER:
No, the action is not viable. The action to recover escheated property must Yes, because there is no prohibition in the law against a superior court
be filed within five years from July 1, 1990 or be forever barred. (Rule 91, referring a case to a lower court having concurrent jurisdiction. The Supreme
Sec. 4). Court has referred to the CA or the RTC cases falling within their concurrent
jurisdiction.
Extra-judicial Settlement of Estate (2005)
Nestor died intestate in 2003, leaving no debts. How may his estate be Habeas Corpus (1998)
settled by his heirs who are of legal age and have legal capacity? Explain. A was arrested on the strength of a warrant of arrest issued by the RTC in
(2%) connection with an Information for Homicide. W, the live-in partner of A filed
a petition for habeas corpus against A's jailer and police investigators with
SUGGESTED ANSWER: the Court of Appeals.
If the decedent left no will and no debts, and the heirs are all of age, the
parties may, without securing letters of administration, divide the estate 1. Does W have the personality to file the petition for habeas corpus? (2%)
among themselves by means of a public instrument or by stipulation in a 2. Is the petition tenable? (3%)
pending action for partition and shall file a bond with the register of deeds in
an amount equivalent to the value of the personal property involved as SUGGESTED ANSWER:
certified to under oath by the parties concerned. The fact of extra-judicial 1. Yes. W, the live-in partner of A, has the personality to file the petition for
settlement shall be published in a newspaper of general circulation once a habeas corpus because it may be filed by "some person in his behalf."
week for three consecutive weeks in the province. (Sec. 1, Rule 74, Rules of (Sec. 3. Rule 102. Rules of Court).
Court). 2. No. The petition is not tenable because the warrant of arrest was issued
by a court which had Jurisdiction to issue it (Sec. 4, Rule 102 Rules of
Habeas Corpus (1993) Court).
Roxanne, a widow, filed a petition for habeas corpus with the Court of
Appeals against Major Amor who is allegedly detaining her 18-year old son Habeas Corpus (2003)
Bong without authority of the law. After Major Amor had a filed a return Widow A and her two children, both girls, aged 8 and 12 years old, reside in
alleging the cause of detention of Bong, the Court of Appeals promulgated a Angeles City, Pampanga. A leaves her two daughters in their house at night
resolution remanding the case to the RTC for a full-blown trial due to the because she works in a brothel as a prostitute. Realizing the danger to the
conflicting facts presented by the parties in their pleadings. In directing the morals of these two girls, B, the father of the deceased husband of A, files a
remand, the court of Appeals relied on Sec.9(1), in relation to Sec. 21 of BP petition for habeas corpus against A for the custody of the girls in the Family
129 conferring upon said Court the authority to try and decide habeas corpus Court in Angeles City. In said petition, B alleges that he is entitled to the
cases concurrently with the RTCs. Did the Court of Appeals act correctly in custody of the two girls because their mother is living a disgraceful life. The
remanding the petition to the RTC? Why? court issues the writ of habeas corpus. When A learns of the petition and the
writ, she brings her two children to Cebu City. At the expense of B the sheriff
SUGGESTED ANSWER: of the said Family Court goes to Cebu City and serves the writ on A. A files
No, because while the CA has original jurisdiction over habeas corpus her comment on the petition raising the following defenses:
concurrent with the RTCs, it has no authority for remanding to the latter a) The enforcement of the writ of habeas corpus in Cebu City is illegal; and
original actions filed with the former. On the contrary, the CA is specifically b) B has no personality to institute the petition.
given the power to receive evidence and perform any and all acts necessary Resolve the petition in the light of the above defenses of A. (6%)
to resolve factual issues raised in cases falling within its original jurisdiction.

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SUGGESTED ANSWER: by the administrator of C’s estate. How should the RTC Manila resolve the
(a) The writ of habeas corpus issued by the Family Court in Angeles City may motion of D’s administrator? Explain. (3%)
not be legally enforced in Cebu City, because the writ is enforceable only
within the judicial region to which the Family Court belongs, unlike the SUGGESTED ANSWER:
writ granted by the Supreme Court or Court of Appeals which is The motion of D’s administrator should be granted. The assignment of the
enforceable anywhere in the Philippines. (Sec. 20 of Rule on Custody of two lots to C was premature because the debts of the estate had not been
Minors and Writ of Habeas Corpus in Relation to Custody of Minors) fully paid. (Rule 90, Sec. 1; Reyes v. Barreto-Datu, 19 SCRA 85 (1967)).
(A.M. No. 03-04-04-SC; see also Sec. 4 of Rule 102, Rules of Court).
Judicial Settlement of Estate (2005)
(b) B, the father of the deceased husband of A, has the personality to State the rule on venue in judicial settlement of estate of deceased persons.
institute the petition for habeas corpus of the two minor girls, because (2%)
the grandparent has the right of custody as against the mother A, who is
a prostitute. (Sections 2 and 13, Id.) SUGGESTED ANSWER:
If the decedent is an inhabitant of the Philippines at the time of' his death,
Intestate Proceedings (2002) whether a citizen or an alien, the venue shall be in the RTC in the province in
X filed a claim in the intestate proceedings of D. D’s administrator denied which he resides at the time of his death, not in the place where he used to
liability and filed a counterclaim against X. X’s claim was disallowed. live. (Jao v. Court of Appeals, G.R. No. 128314, May 29, 2002).
(1) Does the probate court still have jurisdiction to allow the claim of D’s
administrator by way of offset? Why? (2%) If he is an inhabitant, of a foreign country, the RTC of any province or city in
(2) Suppose D’s administrator did not allege any claim against X by way of which he had estate shall be the venue. The court first taking cognizance of
offset, can D’s administrator prosecute the claim in an independent the case shall exercise jurisdiction to the exclusion of all other courts. When
proceeding? Why? (3%) the marriage is dissolved by the death of the husband or wife, the community
property shall be inventoried, administered and liquidated, and the debts
SUGGESTED ANSWER: thereof paid, in the testate or intestate proceedings of the deceased spouse.
(1) No, because since the claim of X was disallowed, there is no amount If both spouses have died, the conjugal partnership shall be liquidated in the
against which to offset the claim of D’s administrator. testate or intestate proceedings of either. (Secs. 1 and 2, Rule 3, Rules of
(2) Yes, D’s administrator can prosecute the claim in an independent Court).
proceeding since the claim of X was disallowed. If X had a valid claim
and D’s administrator did not allege any claim against X by way of offset, Probate of Lost Wills (1999)
his failure to do so would bar his claim forever. (Rule 86, Sec.10). What are the requisites in order that a lost or destroyed Will may be allowed?
(2%)
Intestate Proceedings; Debts of the Estate (2002)
A, B and C, the only heirs in D’s intestate proceedings, submitted a project of A's Will was allowed by the Court. No appeal was taken from its allowance.
partition to the partition, two lots were assigned to C, who immediately Thereafter, Y, who was interested in the estate of A, discovered that the Will
entered into the possession of the lots. Thereafter, C died and proceedings was not genuine because A's signature was forged by X. A criminal action for
for the settlement of his estate were filed in the RTC-Quezon City. D’s forgery was instituted against X. May the due execution of the Will be validly
administrator then filed a motion in the probate court (RTC-Manila), praying questioned in such criminal action? (2%)
that one of the lots assigned to C in the project of partition be turned over to
him to satisfy debts corresponding to C’s portion. The motion was opposed

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SUGGESTED ANSWER: SUGGESTED ANSWER:
a. In order that a lost or destroyed will may be allowed, the following must No. No will shall pass either real or personal estate unless it is proved and
be complied with: allowed in the proper court. (Sec. 1, Rule 75, Rules of Court).
1. The execution and validity of the same should be
established; Probate of Will (2006)
2. The will must have been in existence at the time of the death of Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang
the testator, or shown to have been fraudulently or accidentally Village, Muntinlupa City, of sound and disposing mind, executed a last will
destroyed in the lifetime of the testator without his knowledge; and testament in English, a language spoken and written by him proficiently.
and He disposed of his estate consisting of a parcel of land in Makati City and
3. Its provisions are clearly and distinctly proved by at least two cash deposit at the City Bank in the sum of P 300 Million. He bequeathed P
credible witnesses. (Sec. 6, Rule 76 of the Rules of Court) 50 Million each to his 3 sons and P 150 Million to his wife. He devised a piece
of land worth P100 Million to Susan, his favorite daughter-in-law. He named
SUGGESTED ANSWER: his best friend, Cancio Vidal, as executor of the will without bond. Is Cancio
b. No. The allowance of the will from which no appeal was taken is Vidal, after learning of Sergio's death, obliged to file with the proper court a
conclusive as to its due execution. (Sec. 1 of Rule 75). Due execution petition of probate of the latter's last will and testament? (2%)
includes a finding that the will is genuine and not a forgery. Accordingly,
the due execution of the will cannot again be questioned in a subsequent SUGGESTED ANSWER:
proceeding, not even in a criminal action for forgery of the will. Cancio Vidal is obliged to file a petition for probate and for accepting or
refusing the trust within the statutory period of 20 days under Sec. 3, Rule
Probate of Will (2003) 75, Rules of Court.
A, a resident of Malolos, Bulacan, died leaving an estate located in Manila,
worth P200,000.00. In what court, taking into consideration the nature of Supposing the original copy of the last will and testament was lost, can
jurisdiction and of venue, should the probate proceeding on the estate of A Cancio compel Susan to produce a copy in her possession to be submitted to
be instituted? (4%) the probate court. (2%)

SUGGESTED ANSWER: SUGGESTED ANSWER:

The probate proceeding on the estate of A should be instituted in the Yes, Cancio can compel Susan to produce the copy in her possession. A
Municipal Trial Court of Malolos, Bulacan which has jurisdiction, because the person having custody of the will is bound to deliver the same to the court of
estate is valued at P200,000.00, and is the court of proper venue because A competent jurisdiction or to the executor, as provided in Sec. 2, Rule 75,
was a resident of Malolos at the time of his death. (Sec. 33 of BP 129 as Rules of Court.
amended by RA 7691; Sec. 1 of Rule 73).
Can the probate court appoint the widow as executor of the will? (2%)
Probate of Will (2005)
After Lulu's death, her heirs brought her last will to a lawyer to obtain their SUGGESTED ANSWER:
respective shares in the estate. The lawyer prepared a deed of partition Yes, the probate court can appoint the widow as executor of the will if the
distributing Lulu's estate in accordance with the terms of her will. Is the act of executor does not qualify, as when he is incompetent, refuses the trust, or
the lawyer correct? Why? (2%) fails to give bond (Sec. 6, Rule 78, Rules of Court).

Can the widow and her children settle extra-judicially among themselves the
estate of the deceased? (2%)
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SUGGESTED ANSWER: If there is only one heir, he may adjudicate to himself the entire estate by
No, the widow and her children cannot settle the estate extra-judicially means of an affidavit filed in the office of the register of deeds. The
because of the existence of the Will. No will shall pass either real or personal parties or the sole heir shall file simultaneously abound with the register
estate unless it is proved and allowed in the proper court (Sec. 1, Rule 75, of deeds, in an amount equivalent to the value of the personal property
Rules of Court). as certified to under oath by the parties and conditioned upon the
payment of any just claim that may be filed later. The fact of the
Can the widow and her children initiate a separate petition for partition of extrajudicial settlement or administration shall be published in a
the estate pending the probate of the last will and testament by the court? newspaper of general circulation in the province once a week for three
(2%) consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)

SUGGESTED ANSWER: (b) Whenever the gross value of the estate of a deceased person, whether he
No, the widow and her children cannot file a separate petition for partition died testate or intestate, does not exceed ten thousand pesos, and that
pending the probate of the will. Partition is a mode of settlement of the fact is made to appear to the RTC having jurisdiction or the estate by the
estate (Sec. 1, Rule 75, Rules of Court). petition of an interested person and upon hearing, which shall be held
not less than one (1) month nor more than three (3) months from the
Probate of Will; Mandatory Nature (2002) date of the last publication of a notice which shall be published once a
What should the court do if, in the course of intestate proceedings, a will is week for three consecutive weeks in a newspaper of general circulation in
found and it is submitted for probate? Explain. (2%) the province, and after such other notice to interested persons as the
court may direct, the court may proceed summarily, without the
SUGGESTED ANSWER:
appointment of an executor or administrator, to settle the estate. (Sec. 2
If a will is found in the course of intestate proceedings and it is submitted for of Rule 74, Rules of Court).
probate, the intestate proceedings will be suspended until the will is
probated. Upon the probate of the will, the intestate proceedings will be Settlement of Estate; Administrator (1998)
terminated. (Rule 82, Sec. 1). A, claiming to be an illegitimate child of the deceased D, instituted an
Intestate proceeding to settle the estate of the latter. He also prayed that he
Settlement of Estate (2001) be appointed administrator of said estate. S, the surviving spouse, opposed
The rules on special proceedings ordinarily require that the estate of the the petition and A's application to be appointed the administrator on the
deceased should be judicially administered thru an administrator or executor. ground that he was not the child of her deceased husband D. The court,
What are the two exceptions to said requirements? (5%) however, appointed A as the administrator of said estate. Subsequently, S,
claiming to be the sole heir of D, executed an Affidavit of Adjudication,
SUGGESTED ANSWER:
adjudicating unto herself the entire estate of her deceased husband D. S then
The two exceptions to the requirement are:
sold the entire estate to X.
(a) Where the decedent left no will and no debts and the heirs are all of age,
1. Was the appointment of A as administrator proper? (2%)
or the minors are represented by their judicial or legal representatives
2. Was the action of S in adjudicating the entire estate of her late husband
duly authorized for the purpose, the parties may without securing letters
to herself legal? (3%)
of administration, divide the estate among themselves by means of
public instrument filed in the office of the register of deeds, or should
they disagree, they may do so in an ordinary action of partition.

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SUGGESTED ANSWER: PART II SUGGESTED ANSWERS TO BAR EXAM QUESTIONS
1. Yes, unless it is shown that the court gravely-abused its discretion in YEARS 2007-2013
appointing the illegitimate child as administrator, instead of the spouse.
While the spouse enjoys preference, it appears that the spouse has TOPIC: SPECIAL CIVIL ACTIONS
neglected to apply for letters of administration within thirty (30) days
from the death of the decedent. (Sec. 6, Rule 78, Rules of Court; Certiorari; Petition for Certiorari, Rule 65 (2012)
Gaspay, Jr. vs. Court of Appeals. 238 SCRA 163) After an information for rape was filed in the RTC, the DOJ Secretary, acting
on the accused's petition for review, reversed the investigating prosecutor's
ALTERNATIVE ANSWER: finding of probable cause. Upon order of the DOJ Secretary, the trial
S, the surviving spouse, should have been appointed administratrix of the prosecutor filed a Motion to Withdraw Information which the judge granted.
estate, in as much as she enjoys first preference in such appointment under The order of the judge stated only the following: "Based on the review by the
the rules. (Sec. 6(a) of Rule 78, Rules of Court.) DOJ Secretary of the findings of the investigating prosecutor during the
preliminary investigation, the Court agrees that there is no sufficient evidence
SUGGESTED ANSWER:
against the accused to sustain the allegation in the information. The motion
2. No. An affidavit of self-adjudication is allowed only if the affiant is the
to withdraw Information is, therefore, granted." If you were the private
sole heir of the. deceased. (Sec. 1, Rule 74, Rules of Court). In this
prosecutor, what should you do? Explain. (5%)
case, A also claims to be an heir. Moreover, it is not legal because there
is already a pending juridical proceeding for the settlement of the SUGGESTED ANSWER:
estate. If I were the private prosecutor, I would file a petition for certiorari under Rule
65 with the Court of Appeals (Cerezo vs. People, G.R. No.185230, June 1,
Venue; Special Proceedings (1997) 2011). It is well-settled that when the trial court is confronted with a motion
Give the proper venue for the following special proceedings: to withdraw and Information (on the ground of lack of probable cause to
a) A petition to declare as escheated a parcel of land owned by a resident hold the accused for trial based on resolution of the DOJ Secretary), the trial
of the Philippines who died intestate and without heirs or persons court has the duty to make an independent assessment of the merits of the
entitled to the property. motion. It may either agree or disagree with the recommendation of the
b) A petition for the appointment of an administrator over the land and Secretary. Reliance alone on the resolution of the Secretary would be an
building left by an American citizen residing in California, who had been abdication of the trial court’s duty and jurisdiction to determine a prima facie
declared an incompetent by an American court. case. The court must itself be convinced that there is indeed no sufficient
c) A petition for the adoption of a minor residing in Pampanga. evidence against the accused. Otherwise, the judge acted with grave abuse of
discretion if he grants the Motion to Withdraw Information by the trial
SUGGESTED ANSWER:
prosecutor. (Harold Tamargo vs. Romulo Awingan et. al. G.R. No. 177727,
a) The venue of the escheat proceedings of a parcel of land in this case is
January 19, 2010).
the place where the deceased last resided. (Sec. 1. Rule 91, Rules of
Court).
ALTERNATIVE ANSWER:
b) The venue for the appointment of an administrator over land and
If I were the private prosecutor, I would file a Motion for Reconsideration of
building of an American citizen residing in California, declared
the Order of the trial court. If the same has been denied, I would file a
Incompetent by an American Court, is the RTC of the place where his
petition for review on certiorari under Rule 45 on pure question of law, which
property or part thereof is situated. (Sec. 1. Rule 92).
actually encompasses both the criminal and civil aspects thereof. The filing of
c) The venue of a petition for the adoption of a minor residing in Pampanga
the petition is merely a continuation of the appellate process.
is the RTC of the place in which the petitioner resides. (Sec. 1. Rule 99)
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 SUGGESTED ANSWER:
Certiorari; Petition for Certiorari; Contempt (2012) No. The present Rule of Procedure governing expropriation (Rule 67), as
Mr. Sheriff attempts to enforce a Writ of Execution against X, a tenant in a amended by the 1997 Rules of Civil Procedure, requires the defendant to file
condominium unit, who lost in an ejectment case. X does not want to budge an Answer, which must be filed on or before the time stated in the summons.
and refuses to leave. Y, the winning party, moves that X be declared in Defendant’s objections and defenses should be pleaded in his Answer not in
contempt and after hearing, the court held X guilty of indirect contempt. If a motion.
you were X's lawyer, what would you do? Why? (5%)
(b) As judge, will you grant the writ of possession prayed for by DPWH?
SUGGESTED ANSWER: Explain
If I were X’s Lawyer, I would file a petition for certiorari under Rule 65. The
judge should not have acted on Y’s motion to declare X in contempt. The SUGGESTED ANSWER:
charge of indirect contempt is initiated through a verified petition. (Rule 71, NO. the expropriation here is governed by Rep. Act No. 8974 which requires
Sec. 4, Rules of Court). 100% payment of the zonal value of the property as determined by the BIR,
to be the amount deposited. Before such deposit is made, the national
The writ was not directed to X but to the sheriff who was directed to deliver government thru the DPWH has no right to take the possession of the
the property to Y. As the writ did not command the judgment debtor to do property under expropriation.
anything, he cannot be guilty of the facts described in Rule 71 which is
“disobedience of or resistance to a lawful writ, process, order, judgment, or Forcible Entry; Remedies (2013)
command any court.” the proper procedure is for the sheriff to oust X The spouses Juan reside in Quezon City. With their lottery winnings, they
availing of the assistance of peace officers pursuant to Section 10 (c) of Rule purchased a parcel of land in Tagaytay City for P100,000.00. In a recent trip to
39 (Lipa vs. Tutaan, L-16643, 29 September 1983; Medina vs. Garces, L-25923, their Tagaytay property, they were surprised to see hastily assembled shelters
July 15, 1980; Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1; Patagan et. of light materials occupied by several families of informal settlers who were
al. Vs. Panis, G.R. No. 55630, April 8, 1988). not there when they last visited the property three (3) months ago. To rid the
spouses’ Tagaytay property of these informal settlers, briefly discuss the legal
Expropriation; Motion to Dismiss (2009) remedy you, as their counsel, would use; the steps you would take; the court
The Republic of the Philippines, through the department of Public Works and where you would file your remedy if the need arises; and the reason/s for
Highways (DPWH) filed with the RTC a complaint for the expropriation of the your actions. (7%)
parcel of land owned by Jovito. The land is to be used as an extension of the
national highway. Attached to the complaint is a bank certificate showing SUGGESTED ANSWER:
that there is, on deposit with the Land Bank of the Philippines, an amount As counsel for spouses Juan, I will file a special civil action for Forcible Entry.
equivalent to the assessed value of the property. Then DPWH filed a motion The Rules of Court provide that a person deprived of the possession of any
for the issuance of a writ of possession. Jovito filed a motion to dismiss the land or building by force, intimidation, threat, strategy, or stealth may at
complaint on the ground that there are other properties which would better anytime within 1 year after such withholding of possession bring an action in
serve the purpose. the proper Municipal Trial Court where the property is located. This action
(a) Will Jovito’s motion to dismiss prosper? Explain . which is summary in nature seeks to recover the possession of the property
from the defendant which was illegally withheld by the latter (Section 1,
Rule 70, Rules of Court).

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An ejectment case is designed to restore , through summary proceedings, the SUGGESTED ANSWER:
physical possession of any land or building to one who has been illegally A certification against forum shopping is required only in initiatory pleadings.
deprived of such possession, without prejudice to the settlement of parties‟ In this case, the counterclaim pleaded in the defendant’s Answer appears to
opposing claims of juridical possession in an appropriate proceedings (Heirs have arisen from the plaintiff’s complaint or compulsory in nature and thus,
of Agapatio T. Olarte and Angela A. Olarte et. al. vs. Office of the President of may not be regarded as an initiatory pleading. The absence thereof in the
the Philippines et al., G.R. No. 177995, June 15, 2011, Villarama, Jr., J.). Bank’s Answer is not a fatal defect. Therefore, the motion to dismiss on the
ground raised lacks merit and should be denied (UST v. Suria, 294 SCRA 382
In Abad vs. Farrales, G.R. No. 178635, April 11, 2011, the Supreme Court held [1998]).
that two allegations are indispensable in actions for forcible entry to enable
first level courts to acquire jurisdiction over them: first, that the plaintiff had On the other hand, if the counterclaim raised by the defendant Bank’s
prior physical possession of the property; and, second, that the defendant Answer was not predicated on the plaintiff’s claim or cause of action, it is
deprived him of such possession by means of force, intimidation, threats, considered a permissive counterclaim. In which case, it would partake an
strategy, or stealth. initiatory pleading which requires a certification against forum shopping.
Correspondingly, the motion to dismiss based on lack of the required
However, before instituting the said action, I will first endeavour to amicably certificate against forum shopping should be granted.
settle the controversy with the informal settlers before the appropriate Lupon
or Barangay Chairman. If there is no agreement reached after mediation and Jurisdiction; Unlawful Detainer (2010)
conciliation under the Katarungang Pambarangay Law, I will secure a Anabel filed a complaint against B for unlawful detainer before the Municipal
certificate to file action and file the complaint for ejectment before the MTC Trial Court (MTC) of Candaba, Pampanga. After the issues had been joined,
of Tagaytay City where the property is located since ejectment suit is a real the MTC dismissed the complaint for lack of jurisdiction after noting that the
action regardless of the value of the property to be recovered or claim for action was one for accion publiciana. Anabel appealed the dismissal to the
unpaid rentals (BP 129 and Rule 4, Section 1 of the Revised Rules on Civil RTC which affirmed it and accordingly dismissed her appeal. She elevates the
Procedure). case to the Court of Appeals, which remands the case to the RTC. Is the
appellate court correct? Explain. (3%)
In the aforementioned complaint, I will allege that Spouses Juan had prior
physical possession and that the dispossession was due to force, intimidation SUGGESTED ANSWER:
and stealth. The complaint will likewise show that the action was commenced Yes, the Court of Appeals is correct in remanding the case to the RTC for the
within a period of one (1) year from unlawful deprivation of possession, and latter to try the same on the merits. The RTC, having jurisdiction over the
that the Spouses Juan is entitled to restitution of possession together with subject matter of the case appealed from MTC should try the case on the
damage costs. merits as if the case was originally filed with it, and not just to affirm the
dismissal of the case. R.A. No. 7691, however, vested jurisdiction over
Foreclosure; Certification against Non Forum Shopping (2007) specified accion publiciana with courts of the first level (Metropolitan Trial
RC filed a complaint for annulment of the foreclosure sale against Bank V. In Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts) in cases
its answer, Bank V set up a counterclaim for actual damages and litigation where the assessed value of the real property involved does not exceed
expenses. RC filed a motion to dismiss the counterclaim on the ground that P20,000.00 outside Metro Manila, or in Metro Manila, where such value does
Bank V’s Answer with Counterclaim was not accompanied by a certification not exceed P50,000.00.
against forum shopping. Rule. (5%)

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Jurisdiction; Unlawful Detainer (2008) Partition; Non-joinder (2009)
Filomeno brought an action in the Metropolitan Trial Court (METC) of Pasay Florencio sued Guillermo for partition of a property they owned in common.
City against Marcelino pleading two causes of action. The first was a demand Guillermo filed a motion to dismiss the complaint because Florencio failed to
for the recovery of physical possession of a parcel of land situated in Pasay implead Herando and Inocencio, the other co-owners of the property. As
City with an assessed value of 40,000; the second was a claim for damages of Judge, will you grant the motion to dismiss? Explain. (3%)
500,000 for Marcelino’s unlawful retention of the property. Marcelino filed a
motion to dismiss on the ground that the total amount involved, which is SUGGESTED ANSWER:
540,000, is beyond the jurisdiction of the MeTC. Is Marcelino correct? No, because the non-joinder of parties is not a ground for dismissal of action
(Rule 3, Sec. 11). The motion to dismiss should be denied.
SUGGESTED ANSWER: Unlawful Detainer; Preliminary Conference (2007)
No, Metropolitan or Municipal trial Courts have exclusive jurisdiction over a X files an unlawful detainer case against Y before the appropriate
complaint for forcible entry and unlawful detainer regardless of the amount Metropolitan Trial Court. In his answer, Y avers as a special and affirmative
of the claim for damages (Sec. 33 [2], B.P. 129). Also, Sec. 3, Rule 70 gives defense that he is a tenant of X’s deceased father in whose name the
jurisdiction to the said courts irrespective of the amount of damages. This is property remains registered. What should the court do? Explain briefly. (5%)
the same provision in the Revised Rules of Summary Procedure that governs
all ejectment cases (Sec. 1[A][1], Revised Rule on Summary Procedure). SUGGESTED ANSWER:
The Rule, however, refers to the recovery of a reasonable amount of The court should hold a preliminary conference not later than thirty (30) days
damages. In this case, the property is worth only P40,000, but the claim for after the defendant’s Answer was filed, since the case is governed by
damages is P500,000. summary procedure under Rule 70, Rules of Court, where a Reply is not
allowed. The court should receive evidence to determine the allegations of
Mandamus (2012) tenancy. If tenancy had in fact been shown to be the real issue, the court
A filed a Complaint against 8 for recovery of title and possession of land should dismiss the case for lack of jurisdiction. If it would appear that Y‟s
situated in Makati with the RTC of Pasig. B files a Motion to Dismiss for occupancy of the subject property was one of agricultural tenancy, which is
improper venue. The RTC Pasig Judge denies B's Motion to Dismiss, which governed by agrarian laws, the court should dismiss the case because it has
obviously was incorrect. Alleging that the RTC Judge "unlawfully neglected no jurisdiction over agricultural tenancy cases. Defendant’s allegation that he
the performance of an act which the law specifically enjoins as a duty is a “tenant” of plaintiff’s deceased father suggests that the case is one of
resulting from an office", B files a Petition for Mandamus against the judge. landlord-tenant relation and therefore, not within the jurisdiction of ordinary
Will Mandamus lie? Reasons. (3%) courts.

SUGGESTED ANSWER: Unlawful; Detainer; Prior Possession (2008)

No, mandamus will not lie. The proper remedy is a petition for prohibition Ben sold a parcel of land to Del with right to repurchase within one (1) year.
(Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008). The dismissal Ben remained in possession of the property. When Ben failed to repurchase
of the case based on improper venue is not a ministerial duty. Mandamus the same, title was consolidated in favor of Del. Despite demand, Ben refused
does not lie to comple the performance of a discretionary duty (Nilo Paloma to vacate the land, constraining Del to file a complaint for unlawful detainer.
vs. Danilo Mora, G.R. No. 157783, September 23, 2005). In his defense, Ben averred that the case should be dismissed because Del
had never been in possession of the property. Is Ben correct?

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SUGGESTED ANSWER: ALTERNATIVE ANSWER:
No, for unlawful detainer, the defendant need not have been in prior A petition for declaration of presumptive death may be considered a special
possession of the property. This is upon the theory that the vendee steps into proceeding, because it is so classified in the Rules of Court (Rule 107, Rules
the shoes of the vendor and succeeds to his rights and interests. In of Court), as differentiated from an ordinary action which is adversarial. It is a
contemplation of law, the vendee’s possession is that of the vendor’s mere application or proceeding to establish the status of a party or a
(Maninang vs. C.A., G.R. No. 121719, 16 September 1999; Dy Sun vs. particular fact, to viz: that a person has been unheard of for a long time and
Brillantes, 93 Phil. 175 [1953]); (Pharma Industries, Inc., vs. Pajarillaga, G.R. No. under such circumstance that he may be presumed dead.
L-53788, 17 October 1980).
(c) As the RTC judge who granted Gina’s petition, will you give due course to
TOPIC: SPECIAL PROCEEDINGS the OSG’s notice of appeal?

Absentee; Declaration of Absence vs. Declaration of Presumptive Death SUGGESTED ANSWER:

(2009) No. Appeal is not a proper remedy since the decision is immediately final and
Frank and Gina were married on June 12, 1987 in Manila. Barely a year after executor upon notice to the parties under Art. 247 of the Family Code
the wedding, Frank exhibited a violent temperament, forcing Gina, for (Republic vs Bermudez-Lorino, 449 SCRA 57 [2005]).
reasons of personal safety, to live with her parents. A year thereafter, Gina
found employment as a domestic helper in Singapore, where she worked for The OSG may assail RTC‟s grant of the petition only on the premise of grave
ten consecutive years. All the time she was abroad, Gina had absolutely no abuse of discretion amounting to lack or excess of jurisdiction. The remedy
communications with Frank, nor did she hear any news about him. While in should be by certiorari under Rule 65 of the Rules of Court.
Singapore, Gina met and fell in love with Willie. On July 4, 2007, Gina filed a
petition with the RTC of manila to declare Frank presumptively dead, so that Cancellation or Correction; Notice (2007)
she could marry Willie. The RTC granted Gina’s petition. The office of the B files a petition for cancellation of the birth certificate of her daughter R on
Solicitor General (OSG) filed a notice of Appeal with the RTC, stating that it the ground of the falsified material entries therein made by B’s husband as
was appealing the decision of the Court of Appeals on questions of fact and the informant. The RTC sets the case for hearing and directs the publication
law. of the order for hearing and directs the publication of the order once a week
a. Is a petition for declaration of Presumptive Death a special proceeding? for three consecutive weeks in a newspaper of general circulation. Summons
was service on the Civil Registrar but there was no appearance during the
SUGGESTED ANSWER: hearing.
No. the petition for Declaration of Presumptive Death provided in Art. 41 of
the “Family Code” is not the special proceeding governing absentees under The RTC granted the petition. R filed a petition for annulment of judgment
Rule 107 of the Rules of Court whose rules of procedure will not be before the Court of Appeals, saying that she was not notified of the petition
followed (Republic vs. C.A., 458 SCRA [2005]). and hence, the decision was issued in violation of due process. B opposed
saying that the publication of the court order was sufficient compliance with
Said petition for Declaration of Presumptive Death under Article 41 of the due process. Rule. (5%)
Family Code is a summary proceeding, authorized for purposes only of
remarriage of the present spouse, to avoid incurring the crime of bigamy.
Nonetheless, it is in the nature of a special proceeding, being an application
to establish a status or a particular fact in court.

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SUGGESTED ANSWER: Habeas Corpus; Bail (2008)
R’s petition for annulment of judgment before the Court of Appeals should After Alma had started serving her sentence for violation of BP 22, she filed a
be granted. Although there was publication of the court order acting the petition for a writ of habeas corpus, citing Vaca vs CA where the sentence of
petition to cancel the birth certificate, reasonable notice still has to be served imprisonment of a party found guilty of violation of BP 22 was reduced to a
on R as she has an interest affected by the cancellation (Sec. 3 and 4, Rule fine equal to double the amount of the check involved. She prayed that her
108, Rules of Court). sentence be similarly modified and that she be immediately released from
detention. In the alternative, she prayed that pending determination on
She is an indispensable party (Republic v. Benemerito, 425 SCRA 488 [2004]), whether the Vaca ruling applies to her, she be allowed to post bail pursuant
and notice has to be served on her, not for the purpose of vesting the court to Rule 102, Sec. 14, which provides that if a person is lawfully imprisoned or
with jurisdiction, but to comply with the requirements of fair play and due restrained on a charge of having committed an offense not punishable by
process (Ceruila v. Delantar, 477 SCRA 134 [2005]). death, he may be admitted to bail in the discretion of the court. Accordingly,
the trial court allowed Alma to post bail and then ordered her release. In your
ALTERNATIVE ANSWER: opinion, is the order of the trial court correct –
The petition for annulment of judgment should not be granted. While R is an
indispensable party, it has been held that the failure to service notice on (a) Under Rule 102?
indispensable parties is cured by the publication made because the action is
one in rem (Alba v. Court of Appeals, 465 SCRA 495 [2005]; Barco v. Court of SUGGESTED ANSWER:
Appeals, 420 SCRA 39 [2005]). No, Alma, who is already convicted by final judgment, cannot be entitled to
bail under Sec. 14, Rule 102. The provision presupposes that she had not
Habeas Corpus (2007) been convicted as yet. It provides that if she is lawfully imprisoned or
Husband H files a petition for declaration of nullity of marriage before the restrained for an offense not punishable by death, she may be recommitted
RTC of Pasig City. Wife W files a petition for habeas corpus before the RTC of to imprisonment or admitted to bail in the discretion of the court or judge
Pasay City, praying for custody over their minor child. H files a motion to (Sec. 14, Rule 102; Celeste vs. People, 31 SCRA 391; Vicente vs. Judge
dismiss the wife’s petition on the ground of the pendency of the other case. Majaducon, A.M. No. RTJ-02-1698, 23 June 2005; San Pedro vs. Peo, G.R. No.
Rule. 133297, 15 August 2002).

SUGGESTED ANSWER: (b) Under the Rules of criminal procedure?

The motion to dismiss the petition for habeas corpus should be granted to
avoid multiplicity of suits. The question of who between the spouses should SUGGESTED ANSWER:
have custody of their minor child could also be determined in the petition for Under the Rules of Criminal Procedure, Rule 114, Sec. 24 clearly prohibits the
declaration of nullity of their marriage which is already pending in the RTC of grant of bail after conviction by final judgment and after the convict has
Pasig City. In other words, the petition filed in Pasig City, praying for custody started to serve sentence. In the present case, Alma had already started
of the minor child is unnecessary and violates only the cardinal rules of serving her sentence. She cannot, therefore, apply for bail (Peo. vs. Fitzgerald,
procedure against multiplicity of suits. Hence, the latter suit may be abated G.R. No. 149723, 27 October 2006).
by a motion to dismiss on the ground of litis pendentia (Yu v. Yu, 484 SCRA
485 [2006]). Habeas Corpus; Jurisdiction; Sandiganbayan (2009)
In the exercise of its original jurisdiction, the Sandiganbayan may grant
petitions for the issuance of a writ of habeas corpus.

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 Besides, the authority of the probate court is generally limited only to a
SUGGESTED ANSWER: determination of the extrinsic validity of the will. In this case, Marco
FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in aid questioned the intrinsic validity of the will.
of its appellate jurisdiction (R.A. 7975, as amended by R.A 8249), not in the
exercise of “original” jurisdiction. Probate of Will (2007)
The heirs of H agree among themselves that they will honor the division of
Letters of Administration; Interested Person (2008) H’s estate as indicated in her Last Will and Testament. To avoid the expense
Domencio and Gen lived without benefit of marriage for 20 years, during of going to court in a Petition for Probate of the Will, can they instead
which time they purchased properties together. After Domencio died without execute an Extrajudicial Settlement Agreement among themselves? Explain
a will, Gen filed a petition for letters of administration. Domencio’s siblings briefly. (5%)
opposed the same on the ground that Gen has no legal personality. Decide.
SUGGESTED ANSWER:
SUGGESTED ANSWER: The heirs of H cannot validly agree to resort to extrajudicial settlement of his
A petition for letters of administration may be filed by any “interested estate and do away with the probate of H‟s last will and testament. Probate
person” (Sec. 2, Rule 79, Rules of Court). Gen would be considered an of the will is mandatory (Guevarra v. Guevarra, 74 Phil. 479 [1943]). The policy
interested person if she was not married to Domenico, because she can claim of the law is to respect the will of the testator as manifested in the other
co-ownership of the properties left by him under their property regime of a dispositions in his last will and testament, insofar as they are not contrary to
union without marriage under conditions provided in the Family Code (Arts. law, public morals and public policy. Extrajudicial settlement of an estate of a
147-148, Family Code; San Luis vs. San Luis, G.R. No. 133743, February 6, deceased is allowed only when the deceased left no last will and testament
2007). and all debts, if any, are paid (Rule 74, Sec. 1, Rules of Court).

Probate of Will (2010)

Czarina died single. She left all her properties by will to her friend Duqueza. Probate of Will; Jurisdictional Facts (2012)
In the will, Czarina stated that she did not recognize Marco as an adopted What are the jurisdictional facts that must be alleged in a petition for probate
son because of his disrespectful conduct towards her. of a will? How do you bring before the court these jurisdictional facts? (3%)

Duqueza soon instituted an action for probate of Czarina’s will. Marco, on the SUGGESTED ANSWER:
other hand, instituted intestate proceedings. Both actions were consolidated The jurisdictional facts in a petition for probate are:
before the RTC of Pasig. On motion of Marco, Duqueza’s petition was (1) that a person died leaving a will;
ordered dismissed on the ground that the will is void for depriving him of his (2) in case of a resident, that he resided within the territorial jurisdiction of
legitime. Argue for Duqueza. (5%) the court; and
(3) in the case of a non-resident, that he left an estate within such territorial
SUGGESTED ANSWER: jurisdiction. The jurisdictional facts shall be contained in a petition for
The petition for probate of Czarina‟s will, as filed by Duquesa should not be allowance of will.
dismissed on mere motion of Marco who instituted intestate proceedings.
The law favors testacy over intestacy, hence, the probate of the will cannot be
dispensed with (See Sec. 5, Rule 75). Thus, unless the will – which shows the
obvious intent to disinherit Marco – is probated, the right of a person to
dispose of his property may be rendered nugatory (See Seanio vs. Reyes, G.R.
Nos. 140371-72, Nov. 27, 2006).
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Probate of Will; Application of Modes of Discovery (2008) Settlement of Estate (2010)
An heir/oppositor in a probate proceeding filed a motion to remove the Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his
administrator on the grounds of neglect of duties as administrator and wife Dayanara and their five children. Dayanara filed a petition for the
absence from the country. On his part the heir/oppositor served written issuance of letters of administration. Charlene, one of the children, filed an
interrogatories to the administrator preparatory to presenting the latter as a opposition to the petition, alleging that there was neither an allegation nor
witness. The administrator objected, insisting that the modes of discovery genuine effort to settle the estate amicably before the filing of the petition.
apply only to ordinary civil actions, not special proceedings. Rule on the Rule on the opposition. (5%)
matter.
SUGGESTED ANSWER:
SUGGESTED ANSWER: The opposition should be overruled for lack of merit. The allegation that
No, the administrator is not correct. Modes of discovery apply also to special there was a genuine effort to settle the estate amicably before the filing of
proceedings. Sec. 2, Rule 72 states that in the absence of special provisions, the petition is not required by the Rules. Besides, a petition for issuance of
the rules provided for in ordinary actions shall be, as far as practicable, letters of administration may be contested on either of two grounds:
applicable in special proceedings. b. the incompetency of the person for whom letters are prayed therein; and
c. the contestant’s own right to the administration. (Sec. 4, Rule 9).
Probate of Will: Will Outside of the Philippines (2010)
Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of Settlement of Estate (2009)
his death, bequeathed to Winston a sum of money to purchase an annuity. Pinoy died without a will. His wife, Rosie and three children executed a deed
Upon Pedrillo’s demise, his will was duly probated in Los Angeles and the of extrajudicial settlement of his estate. The deed was properly published and
specified sum in the will was in fact used to purchase an annuity with XYZ of registered with the Office of the Register of Deeds. Three years thereafter,
Hong Kong so that Winston would receive the equivalent of US$1,000 per Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to
month for the next 15 years. Wanting to receive the principal amount of the annul the settlement alleging that she was deprived of her rightful share in
annuity, Winston files for the probate of Pedrillo’s will in the Makati RTC. As the estate. Rosie and the Three Children contended that (1) the publication of
prayed for, the court names Winston as administrator of the estate. Winston the deed constituted constructive notice to the whole world, and should
now files in the Makati RTC a motion to compel XYZ to account for all sums therefore bind Suzy; and (2) Suzy’s action had already prescribed. Are Rosie
in its possession forming part of Pedrillo’s estate. Rule on the motion. (5%) and the Three Children Correct? Explain.

SUGGESTED ANSWER: SUGGESTED ANSWER:

The motion should be denied. Makati RTC has no jurisdiction over XYZ of No, the contention is not correct. Suzy can file a complaint to annul the
Hong Kong. The letters of administration granted to Winston only covers all extrajudicial settlement and she can recover what is due her as such heir if
Pedrillo’s estate in the Philippines (Rule 77, Sec. 4). This cannot cover the her status as an illegitimate child of the deceased has been established. The
annuities in Hongkong. At the outset, Makati RTC should not have taken publication of the settlement does not constitute constructive notice to the
cognizance of the petition filed by Winston, because the will does not cover heirs who had no knowledge or did not take part in it because the same was
any property of Pedrillo located here in the Philippines. notice after the fact of execution. The requirement of publication is intended
for the protection of creditors and was never intended to deprive heirs of
their lawful participation in the decedent’s estate. She can file the action
therefor within four (4) years after the settlement was registered.

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PART III SUGGESTED ANSWERS TO BAR EXAM QUESTIONS Since Ms. Dumpty merely filed a special civil action for certiorari, the same
YEAR 2014 will not constitute a violation of the rules on forum shopping because the
resolution or a favorable judgment thereon will not amount to res judicata in
TOPIC: SPECIAL CIVIL ACTIONS the subsequent proceedings between the same parties (Roberto S. Benedicto
v. Manuel Lacson, G.R. No. 141508, [May 5, 2010]).
Certiorari; Forum Shopping
Mr. Humpty filed with the Regional Trial Court (RTC) a complaint against Ms. TOPIC: SPECIAL PROCEEDINGS
Dumpty for damages. The RTC, after due proceedings, rendered a decision
granting the complaint and ordering Ms. Dumpty to pay damages to Mr. Probate of a Will
Dumpty. Ms. Dumpty timely filed an appeal before the Court of Appeals (CA), Johnny, a naturalized citizen of the United States of America (USA) but
questioning the RTC decision. Meanwhile, the RTC granted Mr. Humpty’s formerly a Filipino citizen, executed a notarial will in accordance with the laws
motion for execution pending appeal. Upon receipt of the RTC’s order of the State of California, USA. Johnny, at the time of his death, was survived
granting execution pending appeal, Ms. Dumpty filed with the CA another by his niece Anastacia, an American citizen residing at the condominium
case, this time a special civil action for certiorari assailing said RTC order. Is unity of Johnny located at Fort Bonifacio, Taguig City; a younger brother,
there a violation of the rule against forum shopping considering that two (2) Bartolome, who manages Johnny’s fish pond in Lingayen, Pangasinan; and a
actions emanating from the same case with the RTC were filed by Ms. younger sister, Christina, who manages Johnny’s rental condominium units in
Dumpty with the CA? Explain. Makati City. Johnny’s entire estate which he inherited from his parents is
valued at P200 million. Johnny appointed Anastacia as executrix of his will.
SUGGESTED ANSWER:
No. There is no violation of the rule against forum shopping. (A) Can Johnny’s notarial will be probated before the proper court in the
Philippines?
The essence of forum shopping is the filing by a party against whom an
adverse judgment has been rendered in one forum, seeking another and SUGGESTED ANSWER:
possibly favorable opinion in another suit other than by appeal or special civil Yes. Johnny’s notarial will can be probated before the proper court in the
action for certiorari; the act of filing of multiple suits involving the same Philippines. A foreign will can be given legal effects in our jurisdiction. Article
parties for the same cause of action, either simultaneously or successively for 816 of the Civil Code states that the will of an alien who is abroad produces
the purpose of obtaining a favorable judgment. Forum shopping exists where effect in the Philippines if made in accordance with the formalities prescribed
the elements of litis pendentia are present or where a final judgment in one by the law of the place where he resides, or according to the formalities
case will amount to res judicata in the action under consideration (Roberto S. observed in his country (Palaganas v. Palagabas, G.R. No. 169144 [January 26,
Benedicto v. Manuel Lacson, G.R. No. 141508, [May 5, 2010]). 2011]).

In Philippines Nails and Wires Corporation v. Malayan Insurance Company,

Inc. G.R. No. 143933, [February 14, 2003], the Supreme Court held that one
party may validly question a decision in a regular appeal and at the same
time assail the exertion pending appeal via certiorari without violating the
rule against forum shopping. This is because the merits of the case will not
be addressed in the petition dealing with the execution and vice versa.

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(B) Is Anastacia qualified to be the executrix of Johnny’s notarial will? SUGGESTED ANSWER:
I will file a Petition for Correction or Cancellation of Entry under Rule 108 of
SUGGESTED ANSWER: the Rules of Court.
Yes. Anastacia is qualified. Under the rules, the following persons are
incompetent to serve as executor or administrator: A Petition for Correction or Cancellation of Entry under Rule 108 may be filed
(a) A minor; by Mary Jane because what she sought to be corrected is only the record of
(b) Not a resident of the Philippines; and such marriage in the Civil Registry Office in order to reflect the truth as set
(c) Is in the opinion of the court unfit to execute the duties of the trust forth by the evidence, and not the nullification of marriage as there was no
by reason of drunkenness, improvidence, or want of understanding marriage on the first place (Republic of the Philippines vs. Merlinda L.
or integrity, or by reason of conviction of an offense involving moral Olaybar, G.R. No. 189538, [February 10, 2014]).
turpitude (Section 1, Rule 78, Rules of Court).
ALTERNATIVE ANSWER:
While Anastacia is an American citizen, she is nonetheless a resident of the I will file a Petition for Declaration of Nullity of Marriage.
Philippines. Accordingly, Anastacia is not disqualified because there is no
prohibition against an alien residing in the Philippines to serve as an executor A petition for correction or cancellation of an entry in the civil registry cannot
of an estate. substitute an action to invalidate a marriage. A direct action for declaration of
nullity or annulment of marriage is necessary to prevent the circumvention of
Cancellation or Correction of Entries in the Civil Registry the jurisdiction of the Family Courts (RA 8469), and the substantive and
Mary Jane met Shiela May at the recruitment agency where they both applied procedural safeguards of marriage under the Family Code, A.M. No. 02-11-
for overseas employment. They exchanged pleasantries, including details of 10-SC and other related laws.
their personal circumstances. Fortunately, Mary Jane was deployed to work as
front desk receptionist at a hotel in Abu Dhabi where she met Sultan Ahmed Accordingly, a trial court has no jurisdiction to nullify marriages in a special
who proposed marriage, to which she readily accepted. Unfortunately for proceeding for cancellation or correction of entry under Rule 108 of the Rules
Shiela May, she was not deployed to work abroad, and this made her envious of Court. The validity of marriage can only be questioned in a direct action to
of Mary Jane. nullify the same (Minoru Fujiki vs. Maria Paz Galela Marinay, G.R. No. 196049,
[June 26, 2013]).
Mary Jane returned to the Philippines to prepare for her wedding. She
secured from the National Statistics Office (NSO) a Certificate of No Petition for Change of Name
Marriage. It turned out from the NSO records that Mary Jane had previously A was adopted by B and C when A was only a toddler. Later on in life, A filed
contracted marriage with John Starr, a British citizen, which she never did. with the Regional Trial Court (RTC) a petition for change of name under Rule
The purported marriage between Mary Jane and John Starr contained all the 103 of the Rules of Court, as he wanted to reassume the surname of his
required pertinent details on Mary Jane. Mary Jane later on learned that natural parents because the surname of his adoptive parents sounded
Shiela May is the best friend of John Starr. offensive and was seriously affecting his business and social life. The adoptive
parents gave their consent to the petition for change of name. May A file a
As a lawyer, Mary Jane seeks your advice on her predicament. petition for change of name? If the RTC grants the petition for change of
name, what, if any, will be the effect on the respective relations of A with his
What legal remedy will you avail to enable Mary Jane to contract marriage adoptive parents and with his natural parents? Discuss.
with Sultan Ahmed?

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SUGGESTED ANSWER: Moreover, the touchstone for the grant of a change of name is that there be
1. A should be allowed to change his surname because the reasons he “proper and reasonable cause” for which the change is sought. To justify a
invoked are proper and reasonable under the circumstances. Besides, his request for change of name, petitioner must show not only some proper
adoptive parents have agreed on the change of his surname. compelling reason therefore but also that he will be prejudiced by the use of
his true and official name (Republic v. Court of Appeals, G.R. No. 97906, [May
In a case with similar facts, Republic vs. Wong, G.R. No. 97906, [May 21, 21, 1992]).
1992], the Supreme Court allowed Maximo Wong to change his name to
Maximo Alcala, Jr. Maximo was the natural child of Spouses Maximo Alcala, Besides, the State has an interest in the name of a person and that names
Sr. and Segundina Y. Alcala. When he was adopted by Spouses Hoong Wong cannot be changed to suit merely the convenience of the bearers (In the
and Conception Ty, his name was changed to Maximo Wong. Upon reaching Matter of Adoption of Stephanie Nathy Astorgra Garcia G.R. No. 148311,
the age of 22, he filed a petition to change his name to Maximo Alcala, Jr. It [March 31, 2005]; In Re: Petition for Change of Name and/or
was averred that his use of the surname Wong embarrassed and isolated him Correction/Cancellation of Entry in Civil Registry of Julian Carulasan Wang,
from his relatives and friends, as the same suggests a Chinese ancestry when G.R. No. 159966, [March 30, 2005]).
in truth and in fact he is a Muslim Filipino residing in a Muslim community,
and he wants to erase any implication whatsoever of alien nationality; that he In the case at bar, the only reason advanced by A for the change of his
is being ridiculed for carrying a Chinese surname, thus hampering business surname is that it is offensive and it seriously affects his business and social
and social life; and that his adoptive mother does not oppose his desire to life.
revert to his former surname.
Accordingly, A’s reasons are not considered proper and compelling that
Undoubtedly, A should be allowed to file a petition for change of his would justify the filing of his petition for change of name.
surname.
2. Assuming that the court allows A to reassume the sue of the surname of
ALTERNATIVE ANSWER: his biological parents, there will be no effect on the respective relations
1. No. A cannot file a petition for change of name because the reasons he of A with his adoptive parents and his natural parents.
invoked do not fall among the grounds that would justify the filing of a
petition for change of name, to wit: Until and unless the adoption is rescinded by the court, the paternity and
a) When the name is ridiculous, dishonorable or extremely difficult to filiation which exists by reason of adoption subsists.
write or pronounce;
b) When the change results as a legal consequence, as in legitimation; Ergo,the grant of A’s petition for change of name will have no effect on
c) When the change will avoid confusion; the respective relations of A with his adoptive and natural parents. After
d) When one has continuously used and been known since childhood all, the change of name does not define or effect change in one’s existing
by a Filipino name, and was unaware of alien parentage; family relations or in the rights and duties flowing therefrom. It does not
e) A sincere desire to adopt a Filipino name to erase signs of former alter one’s legal capacity, civil status or citizenship; what is altered is only
alienage, all in good faith and without prejudicing anybody; and the name (Republic v. Court of Appeals, G.R. No. 97906, [May 21, 1992]).
f) When the surname causes embarassment and there is no showing
that the desired change of name was for a fraudulent purpose or that
the change of name would prejudice public interest (Republic v.
Court of Appeals, G.R. No. 97906, [ May 21, 1992]).

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PART IV SUGGESTED ANSWERS TO BAR EXAM QUESTIONS SUGGESTED ANSWER:
YEAR 2015 No. The court was not correct in motu proprio dismissing the petition.
While it appears that the alleged actionable neglect or omission took
TOPIC: Special Civil Actions place in the City of Z of Province II and, therefore cognizable by the
RTC of Province II, nonetheless, venue is not jurisdictional, and it can
Environmental Case; Continuing Mandamus; Venue be waived in a special civil action for continuing mandamus ( Dolot vs.
A law was passed declaring Mt. Karbungko as protected area since it Paje G.R. No. 199199, August 27, 2013).
was a major watershed. The protected area covered a portion located
in Municipality of Province I and a portion located in the City of Z of Assuming that the court did not dismiss the petition, the RD-DENR-
Province II. Maingat is the leader of Samahang Tagapag-ingat ng EMB in his Comment moved to dismiss the petition on the ground
Karbunko (STK), a people’s organization. He learned that a portion of that petitioners failed to appeal the issuance of the ECC, and to
the mountain located in the City of Z of Province II was extremely exhaust administrative remedies provided in the DENR Rules and
damaged when it was bulldozed and leveled to the ground, and Regulations.
several trees and plants were cut down and burned by workers of
World Pleasure Resorts, Inc. (WPRI) for the construction of a hotel and b) Should the court dismiss the petition?
golf course. Upon inquiry with the project site engineer if they had a
permit for the project, Maingat was shown a copy of the SUGGESTED ANSWER:
Environmental Compliance Certificate (ECC) issued by the DENR-EMB Yes, the Court should dismiss the petition because the proper
Regional Director (RD-DENR-EMB). procedure to question a defect in an ECC is to follow the DENR
administrative appeal process in accordance with the doctrine of
Immediately, Maingat and STK filed a petition for the issuance of a exhaustion of administrative remedies ( Dolot vs. Hon. Paje, G.R. No.
writ of continuing mandamus against RD-DENR-EMB and WPRI with 199199, August 27, 2013; Paje vs. Casiño, G.R. No. 207257, February 3,
the RTC of Province I, a designated environmental court, as the RD- 2015).
DENR-EMB negligently issued the ECC to WPRI.
ALTERNATIVE ANSWER:
On scrutiny of the petition, the Court determined that the area where No, the Court should not dismiss the petition because the doctrine of
the alleged actionable or omission subject of the petition took place exhaustion of administrative remedies finds no application when the
in the City of Z of Province II, and therefore cognizable by the RTC of matter is of extreme urgency that may cause great and irreparable
Province II. Thus, the court dismissed outright the petition for lack of damage to the environment involving strong public interest. After all,
jurisdiction. the Court may suspend the rules of procedure in order to achieve
substantial justice, and to address urgent and paramount State
a) Was the court correct in motu proprio dismissing the petition? interests vital to the life of our nation ( Boracay Foundation, Inc. vs.
Province of Aklan, G.R. No. 196870, June 26, 2012; Paje vs. Casiño, G.R.
No. 207257, February 3, 2015).

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Petition for certiorari; Motion for reconsideration; Writ of SUGGESTED ANSWER:
mandamus No. Mandamus will not lie to compel the Ombudsman to include the
The Ombudsman found probable cause to charge with plunder the treasurer in the Information. In matters involving the exercise of
provincial governor, vice governor, treasurer, budget officer, and judgment and discretion, mandamus may only be resorted to in order
accountant. An Information for plunder was filed with the to compel respondent tribunal, corporation, board, officer or person
Sandiganbayan against the provincial officials except for the treasurer to take action, but it cannot be used to direct the manner of the
who was granted immunity when he agreed to cooperate with the particular way discretion is to be exercised, or to compel the retraction
Ombudsman in the prosecution of the case. Immediately, the or reversal of an action already taken in the exercise of judgment or
governor filed with the Sandiganbayan a petition for certiorari against discretion (Ampatuan, Jr. vs. Secretary De Lima, G.R. No. 197291, April
the Ombudsman claiming there was grave abuse of discretion in 3, 2013).
excluding the treasurer from the Information.
Evidently, the Ombudsman’s act of granting the treasurer immunity
a) Was the remedy taken by the governor correct? from prosecution under such terms and conditions as it may
determine (Section 17, RA 6770) is a discretionary duty that may not
SUGGESTED ANSWER: be compelled by the extraordinary writ of mandamus.
No, the remedy taken by the Governor is not correct. The petition for
certiorari is a remedy that is available only when there is no plain, c) Can the Special Prosecutor move for the discharge of the budget
speedy, and adequate remedy under the ordinary course of law; hence, officer to corroborate the testimony of the treasurer in the course
the Governor should have filed a Motion for Reconsideration. of presenting its evidence.

Besides, there is no showing that the Ombudsman committed grave SUGGESTED ANSWER:
abuse of discretion in granting immunity to the treasurer who agreed No. The Special Prosecutor cannot move for the discharge of the
to cooperate in the prosecution of the case. budget officer to become a State witness since his testimony is only
corroborative to the testimony of the treasurer.
ALTERNATIVE ANSWER:
The remedy taken by the Governor is correct. A petition for certiorari Under Section 17, Rule 119, the Court upon motion of the
under Rule 65 is the appropriate remedy if the Ombudsman prosecution before resting its case, may direct one or more of the
committed grave abuse of discretion in granting immunity to the accused to be discharged with their consent so that they may be
treasurer who agreed to cooperate in the prosecution of the case. witnesses for the State, provided the following requisites are satisfied:
a) There is absolute necessity for the testimony of the accused
b) Will the writ of mandamus lie to compel the Ombudsman to whose discharge is requested;
include the treasurer in the Information? b) There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of
said accused;
c) The testimony of said accused can be substantially
corroborated in its material points;
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 d) Said accused does not appear to be the most guilty; and reconsideration. The court issued an Order dated October 16, 2015
e) Said accused has not at any time been convicted of any denying the public prosecutor’s motion for reconsideration. The public
offense involving moral turpitude. prosecutor received his copy of the order of denial on October 20,
2015 while the private prosecutor received his copy on October 26,
Absolute necessity exists for the testimony of an accused sought 2015.
to be discharged when he or she alone has knowledge of the
crime. In more concrete terms, necessity is not present when the a) What is the remedy available to the prosecution from the court’s
testimony would simply corroborate or otherwise strengthen the order granting Jaime’s motion for new trial?
prosecution’s evidence. The requirement of absolute necessity for
the testimony of a state witness depends on the circumstances of SUGGESTED ANSWER:
each case regardless of the number of the participating The remedy of the prosecution is to file a petition for certiorari under
conspirators (Manuel J. Jimenez, Jr. vs. People of the Philippines, Rule 65 of the Rules of Court, because the denial of a motion for
G.R. No. 209195, September 17, 2014). reconsideration is merely an interlocutory order and there is no plain,
speedy, and adequate remedy under the course of law.
ALTERNATIVE ANSWER:
No, the Special Prosecutor cannot move for the discharge of the Be that as it may, it may be argued that appeal is the appropriate
budget officer to become a State witness. The Office of the Special remedy from an order denying a motion for reconsideration of an
Prosecutor is merely a component of the Office of the Ombudsman order granting a motion for new trial because an order denying a
and may only act under the supervision and control and upon motion for reconsideration was already removed in the enumeration
authority of the Ombudsman (Uy vs. Sandiganbayan, G.R. No. 105965- of matters that cannot be subject of an appeal under Section 1, Rule
70, March 20, 2001). 41 of the Rules of Court.

Accordingly, in the absence of any express delegation and authority b) In what court and within what period should a remedy be availed
from the Ombudsman, the Special Prosecutor does not have the of?
power to move for the discharge of the budget officer to corroborate
the testimony of the treasurer in the course of presenting its evidence SUGGESTED ANSWER:
(Section 11 (3), RA 6770). Following the principle of judicial hierarchy, the petition for certiorari
should be filed before the Court of Appeals within sixty (60) days from
Petition for certiorari receipt of the copy of the order of denial of the public prosecutor’s
Jaime was convicted for murder by the Regional Trial Court of Davao motion for reconsideration, or on October 20, 2015.
City in a decision promulgated on September 30, 2015. On October 5,
2015, Jaime filed a Motion for New Trial on the ground that errors of c) Who should pursue the remedy?
law and irregularities prejudicial to his rights were committed during
his trial. On October 7, 2015, the private prosecutor, with the SUGGESTED ANSWER:
conformity of the public prosecutor, filed an opposition to Jaime’s The office of the Solicitor General should pursue the remedy,
motion. On October 9, 2015, the public prosecutor filed a motion for
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In criminal proceedings on appeal in the Court of Appeals or in the not agents of the State; hence cannot be impeladed as respondents in
Supreme Court, the authority to represent the people is vested solely the amparo petition.
in the Solicitor General. Under Presidential Decree No. 478, among
the specific powers and functions of the OSG is to “represent the a) Is their defense tenable?
government in the Supreme Court and the Court of Appeals in all
criminal proceedings.” This provision has been carried over to the SUGGESTED ANSWER:
Revised Administrative Code particularly Book IV, Title III, No. The defense is no tenable. The writ of amparo is a remedy
Chapter 12 thereof. Without doubt, the OSG is the appellate counsel available to any person whose right to life, liberty, and security has
of the People of the Philippines in all criminal cases (Cariño vs. De been violated or is threatened with violation by an unlawful act or
Castro, G.R. No. 176084, April 30, 2008). omission of a public officer or employee or of a private individual or
entity. The writ covers extralegal killing and enforced disappearances
Writ of Amparo or threats thereof (Section 1, Rules on Writ of Amparo).
The residents of Mt. Ahohoy, headed by Masigasig, formed a non-
governmental organization—Alyansa Laban sa Minahan sa Ahohoy Moreover, the rules do not require that the respondents should be
(ALMA) to protest the mining operations of Oro Negro Mining in the agents of the State in order to be impleaded as respondents in an
mountain. ALMA members picketed daily at the entrance of the amparo petition (Secretary of National Defense vs. Manalo, G.R. No.
mining site blocking the ingress and egress of trucks and equipment 180906, October 7, 2008).
of Oro Negro, hampering its operations. Masigasig had an altercation
with Mapusok arising from the complain of the mining engineer of Respondents Mapusok and APKA, in their Return filed with the Court
Oro negro that one of their trucks was destroyed by ALMA members. of Appeals, raised as their defense that the petition should be
Mapusok is the leader of the Association of Peace Keepers of Ahohoy dismissed on the ground that ALMA cannot filed the petition because
(APKA), a civilian volunteer organization serving as auxiliary force of of the earlier petition filed by Mayumi with the RTC.
the local police to maintain peace and order in the area. Subsequently,
Masigasig disappeared. b) Are respondents correct in raising their defense?

Mayumi, the wife of Masigasig , and the members of ALMA, learned SUGGESTED ANSWER:
from Maingay, a member of APKA, during their binge drinking that Yes. The respondents are correct in raising the defense. Under Section
Masigasig was abducted by other members of APKA, on order of 2 (c) of the Rules on the Writ of Amparo, the filing of a petition by
Mapusok. Mayumi and ALMA sought the assistance of the local police Mayumi who is an immediate member of the family of the aggrieved
to search for Masigasig, but they refused to extend their cooperation. party already suspends the right of all other authorized parties to file
similar petitions. Hence, ALMA cannot filed the petition because of the
Immediately, Mayumi filed with the RTC petition for the issuance of earlier petition filed by Mayumi with the RTC.
the writ of amparo against mapusok and APKA. ALMA also filed a
petition for the issuance of writ of amparo with the Court of Appeals c) Mayumi later field separate criminal and civil actions against
against Mapusok and APKA. Respondents Mapusok and APKA, in their Mapusok. How will the cases affect the amparo petition she earlier
Return filed with the RTC, raised among their defenses that they are filed?
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SUGGESTED ANSWER: SUGGESTED ANSWER:
When a criminal action and a separate civil action are filed subsequent If the order for the conduct of physical and mental examination is
to a petition for writ of amparo, the latter shall be consolidated with issued as a mode of discovery and Ernesto defies the said order, the
the criminal action. After consolidation, the procedure under the Rules court cannot validly order his arrest (Section 3 (d), Rule 29 of the
shall continue to apply to the disposition of the reliefs in the petition Rules of Court).
(Section 23, Rule on the Writ of Amparo).
Petition for correction of entries in civil registry
TOPIC: Special Proceedings Hades, an American citizen, through a dating website, got acquainted
with Persephone, a Filipina. Hades came to the Philippines and
Petition for guardianship; Demurrer proceeded to Baguio City where Persephone resides. Hades and
Ernie filed a petition for guardianship over the person and properties Persephone contracted marriage, solemnized by the Metropolitan
of his father, Ernesto. Upon receipt of the notice of hearing, Ernesto Trial Court judge of Makati City. After the wedding, Hades flew back to
filed an opposition to the petition. Ernie, before the hearing of the California, United States of America, to wind up his business affairs.
petition, filed a motion to order Ernesto to submit himself for mental On his return to the Philippines, Hades discovered that Persephone
and physical examination which the court granted. had an illicit affair with Phanes. Immediately, Hades returned to the
United States and was able to obtain a valid divorce decree from the
After Ernie’s lawyer completed the presentation of evidence in support Superior Court of the Country of San Mateo, California, a court of
of the petition and the court’s ruling on the formal offer of evidence, competent jurisdiction against Persephone. Hades desires to marry
Ernesto’s lawyer filed a demurrer to evidence. Hestia, also a Filipina, whom he met at Baccus Grill in Pasay City.

Ernie’s lawyer objected on the ground that a demurrer to evidence is a) As Hades’ lawyer, what petition should you filed in order that your
not proper in a special proceeding. client can avoid prosecution for bigamy if he desires to marry
Hestia?
a) Was Ernie’s counsel’s objection correct?
SUGGESTED ANSWER:
SUGGESTED ANSWER As Hades’ lawyer, I would file a petition for recognition of a foreign
No. The rule on demurrer to evidence is applicable to special divorce decree, or at least file a special proceeding for cancellation or
proceedings (Matute vs. CA 26 scra 768 [1969]). correction of entries in civil registry under Rule 108 of the Rules of
Court and include therein a prayer for recognition of the
Moreover, under Section 2, Rule 72 of the Rules of Court, in the aforementioned divorce decree.
absence of special rules, the rules provided for in ordinary actions
shall be applicable, as far as practicable to special proceedings. In Corpuz vs. Santo Tomas (G.R. No. 186571, August 11, 2010), the
High Court declared that “the recognition of the foreign divorce
b) If Ernesto defies the court’s order directing him to submit to decree may be made in a Rule 108 proceeding itself, as the object of
physical and mental examinations, can court order his arrest? special proceedings (such as that in Rule 108 of the Rules of Court) is
Page 21 of 26 Special Civil Actions and Special Proceedings Bar Q&As 1997-2016
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precisely to establish the status or right of a part or a particular fact” 2. Before the court can hear the petition under Rule 108 of the Rules
(Fujiki vs. Marinay G.R. No. 196049, June 26, 2013). of Court, Hades must satisfy the following procedural
requirements:
ALTERNATIVE ANSWER: a. Filing a verified petition
As Hades’ counsel, I will not file any petition because my client is an b. Naming as parties all persons who have or claim any
American citizen, and only Filipino citizens are required to file a interest which would be affected;
petition for recognition of a foreign judgment. I will advise Hades, c. Issuance of an order fixing the time and place of
nonetheless, to secure a certificate of legal capacity to marry in the hearing;
Philippines if he desires to marry Hestia, in order to avoid prosecution d. Giving reasonable notice to the parties named in the
for bigamy. petition; and
e. Publication of the order once a week for three
b) In what court should you filed the petition? consecutive weeks in a newspaper of general
circulation (Rule 108, Rules of Court; Co vs. Civil
SUGGESTED ANSWER: Registrar of Manila, 423 SCRA 420 [2004]; Corpuz vs.
1. Petition for recognition of foreign divorce decree should be filed Tirol, G.R. No. 186571, August 11, 2010).
in the Regional Trial Court of the place of residence of any of the
parties, at the option of the petitioner; or Habeas Corpus
2. Petition for cancellation or correction of entries under Rule 108 Hercules was walking near a police station when a police officer
should be filed in the Regional Trial Court of Makati City, where signaled for him to approach. As soon as Hercules came near, the
the corresponding Local Civil Registry is located. police officer frisked him but the latter found no contraband. The
police officer told Hercules to get inside the police station. Inside the
c) What is the essential requisite that you must comply with for the police station, Hercules asked the police officer, “Sir may problema po
purpose of establishing jurisdictional facts before the court can ba?” Instead of replying, the police officer locked up Hercules inside
hear the petition? the police station jail.

SUGGESTED ANSWER: a) What is the remedy available to Hercules to secure his immediate
1. In a petition for recognition of foreign judgment, the petitioner release from detention?
only needs to prove the foreign judgment as a fact under the
Rules of Court. To be more specific, a copy of the foreign SUGGESTED ANSWER:
judgment may be admitted in evidence and proven as a fact under The remedy available to Hercules is to file a petition for habeas corpus
Sections 24 and 25 of Rule 132 in relation to Section 45(b) questioning the illegality of his warrantless arrest. The writ of habeas
Rule 39 of the Rules of Court (Fujiki vs. Marinay, G.R. No. 196049, corpus shall extend to all cases of illegal confinement or detention by
June 26, 2013). which any person is deprived of his liberty (Section 1, Rule 102,
Rules of Court).

ALTERNATIVE ANSWER:
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Hercules may also apply for bail. Under Section 17(c), Rule 114 of warrantless search is not a criminal act, for it is not penalized under
the Rules of Court, any person in custody who is not yet charged in the Revised Penal Code or any other special laws.
court may apply for bail with any court in the province, city, or
municipality where he is held. ALTERNATIVE ANSWER:
As counsel for the police officer, I will argue that the Ombudsman has
b) If Hercules filed with the Ombudsman a complaint for warrantless no jurisdiction over the complaint filed by Hercules.
search, as counsel for the police officer, what defense will you raise
for the dismissal of the complaint? While Ombudsman has disciplinary authority over officials and
members of the PNP concurrently with NAPOLCOM and PNP, the
SUGGESTED ANSWER: Memorandum of Agreement executed by and among the
As counsel of the policemen, I will raise the defense of presumption of Ombudsman, PNP, and NAPOLCOM on September 12, 2012 specifies
regularity in the performance of duty. the administrative cases that are within the primary jurisdiction of the
Ombudsman.
I can also raise the defense that the police officer has the duty to
search Hercules under the “Stop and Frisk” rule. Since the complaint filed against my client is not among those
administrative cases under the primary jurisdiction of the
A stop-and-frisk situation must precede a warrantless arrest, be Ombudsman, the complaint should necessarily be dismissed.
limited to the person’s outer clothing, and should be grounded upon
a genuine reason, in the life of the police officer’s experience and c) If Hercules opts to file a civil action against the police officer, will
surrounding conditions, to warrant the belief that the person detained he have a cause of action?
has weapons concealed about him (Valdez vs. People, G.R. No.
170180, November 23, 2007). SUGGESTED ANSWER:
Yes. Hercules has a cause of action to file a civil action against the
The “stop and frisk” search should be used “when dealing with a police officer under Article 32(4) in relation to Article 2219 (6) and
rapidly unfolding and potentially criminal situation in the city streets (10) of the New Civil Code, which provides that a public of officer
where unarguably there is not time to secure a search warrant.” “Stop may be liable for damages when the right to be secure in one’s
and frisk” searches (sometimes referred to as Terry searches) are person, house, papers, and effects against unreasonable searches and
necessary for law enforcement, that is, law enforcers should be given seizures is impaired. The indemnity includes moral damages.
the legal arsenal to prevent the commission of offenses. This should Exemplary damages may also be adjudicated ( Galvante vs. Casimiro,
be balanced, however, with the need to protect the privacy of citizens G.R. No. 162808, April 22, 2008).
in accordance with Article III, Section 2 of the Constitution ( People of
the Philippines vs. Victor Cogaed, G.R. No. 200334, July 30, 2014) .

In addition, I may also assert the defense that the complaint for
warrantless search charges no criminal offense. The conduct of a

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PART V SUGGESTED ANSWERS TO BAR EXAM QUESTIONS Accordingly, the RTC may issue a writ of continuing mandamus directing any
YEARS 2016 agency or instrumentality of the government or officer thereof to perform an
act or series of acts decreed by final judgment which shall remain effective
TOPIC: Special Civil Actions until the judgment is fully satisfied (Metropolitan Manila Development
Authority v. Concerned Residents of Manila Bay, G.R. Nos. 171947-47,
Writ of Mandamus/Continuing Mandamus December 18, 2008).
Hannibal, Donna, Florence and Joel, concerned residents of Laguna de Bay,
filed a complaint of mandamus against the Laguna Lake Development (b) What is the writ of continuing mandamus? (2.5%)
Authority, the Department of Environment and Natural Resources, The
Department of Public Works and Highways, Department of Interior and Local SUGGESTED ANSWER:
Government, Department of Agriculture, Department of Budget, and A writ of continuing mandamus is a writ issued when any agency or
Philippine National Police before the RTC of Laguna alleging that the instrumentality of the government or officer thereof unlawfully neglects the
continued neglect of defendants in performing their duties has resulted in performance of an act which the law specifically enjoins as a duty resulting
serious deterioration of water quality of the lake and the degradation of the from an office, trust or station in connection with the enforcement or
marine life in the lake. The plaintiffs prayed that said government agencies be violation of an environmental law, rule or regulation or a right therein, or
ordered to clean up Laguna de Bay and restore its water quality to Class C unlawfully excludes another from the use or enjoyment of such right and
waters as prescribed by Presidential Decree 1152, otherwise known as the there is no other plain, speedy and adequate remedy in the ordinary course
Philippine Environment Code. of law, the person aggrieved thereby my file a verified petition in the proper
court, alleging the facts with certainty, attaching thereto supporting evidence,
Defendants raise the defense that the cleanup of the lake is not a ministerial specifying that the petition concerns an environmental law, rule or regulation,
function and they cannot be compelled by mandamus to perform the same. and praying that judgment be rendered commanding the respondent to do
The RTC of Laguna rendered a decision declaring that it is the duty of the an act or series of acts until the judgment is fully satisfied, and to pay
agency to clean up Laguna de Bay and issued a permanent writ of mandamus damages sustained by the petitioner by reason of the malicious neglect to
ordering said agencies to perform their duties prescribed by law relating to perform the duties of the respondent under the law, rule or regulation. The
the cleanup of Laguna de Bay. petition shall also contain a sworn certification of non-forum shopping (A.M.
(a) Is the RTC correct in issuing the writ of mandamus? Explain. (2.5%) No. 09-6-8-SC also known as Rules of Procedure for Environmental
Cases).
SUGGESTED ANSWER:
Yes, the RTC is correct in issuing the writ of mandamus. Generally, the writ of A Writ of Continuing Mandamus is a writ issued by a court in an
mandamus lies to require the execution of a ministerial duty. While the environmental case direction any agency or instrumentality of the
implementation of the Government agencies mandated tasks may entail a government or officer thereof to perform an act or series of acts decreed by
decision-making process, the enforcement of the law or the very act of doing final judgment which shall remain effective until judgment is fully satisfied
what the law exacts to be done is ministerial in nature and may be compelled (Section 7, Rule 8, A.M. No. 09-6-8-SC also known as Rules of Procedure
for Environmental Cases).
by mandamus.

Here, the duty to clean up Laguna lake and restore its water quality to Class C Writ of Kalikasan (2016)
The officers of “Ang Kapaligiran ay Alagaan, Inc.” engaged your services to
is required not only by Presidential Decree No. 1152, otherwise known as the
file an action Against ABC Mining Corporation which is engaged in mining
Philippine Environment Code, but also in its charter. It is, thus, ministerial in
operations in Sta. Cruz, Marinduque. ABC used highly toxic chemicals in
nature and can be compelled by mandamus.
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extracting gold. ABC’s toxic mine tailings were accidentally released from its restoration of the environment, except the award of damages to
storage dams and were discharged into the rivers of said town. The mine individual petitioners (Sec. 15, Rule 7, Ibid).
tailings found their way to Calancan Bay allegedly to the waters of nearby
Romblon and Quezon. The damage to the crops and loss of earnings were The rules also provide interim reliefs in favor of the petitioner upon filing a
estimated at P1 Billion. Damage to the environment is estimated at P1 Billion. verified motion, namely: (i) Ocular Inspection; or (ii) Production or inspection
As a lawyer for the organization, you are requested to explain the advantages of documents or thing (Sec. 12, Rule 7, A.M. No. 09-6-8-SC also known as
derived from a petition for writ of kalikasan before the Supreme Court over a Rules of Procedure for Environmental Cases).
complaint for damages before the RTC of Marinduque or vice-versa. What
action will you recommend? Explain. (5%) Additionally, the petition for Writ of Kalikasan is more advantageous
compared to a complaint for damages before the RTC because it may be
SUGGESTED ANSWER: filed directly with the Supreme Court or with any of the stations of the Court
As a lawyer for the organization, I would recommend the filing of a petition of Appeals. Unlike a complaint for damages before the RTC which can only
for issuance of a Writ of Kalikasan. be filed by a real-party-in-interest as defined in Rule 3(2) of the Rules of
Court, the rule on locus standing is relaxed in petitions for Writ of Kalikasan
The Writ of Kalikasan is a remedy available to a natural or juridical person, which allows the petition to be filed by parties as citizen suit.
entity authorized by law, people’s organization, non-governmental
organization, or any public interest group accredited by or registered with In addition, any of the following may file a petition for writ of kalikasan:
any government agency, on behalf of persons whose constitutional right to a (a) natural or juridical person;
balanced and healthful ecology is violated, or threatened with violation by an (b) entity authorized by law;
unlawful act or omission of a public official or employee, or private individual (c) POs, NGOs, or any public interest group accredited by or registered with
or entity, involving environmental damage of such magnitude as to prejudice any government agency, on behalf of persons whose constitutional right to a
the life, health or property of inhabitants in two or more cities or provinces balanced and healthful ecology is violated (Sec. 1, Rule 7, A.M. No. 09-6-8-
(Section 1 of Rule 7, A.M. No. 09-6-8-SC also known as Rules of SC 7).
Procedure for Environmental Cases).
From the foregoing, it is clear that filing a petition for Writ of Kalikasan would
The following reliefs may be included under the writ of kalikasan: be the best remedy to address all the environmental problems caused by the
(a) Directing respondent to permanently cease and desist from committing release of the toxic waste to the waters of Romblon and Quezon without the
acts or neglecting the performance of a duty in violation of burden of paying docket fees. After all, the filing of a petition for the issuance
environmental laws resulting in environmental destruction or damage; of the Writ of Kalikasan shall not preclude the filing of separate civil, criminal
(b) Directing the respondent public official, government agency, private or administrative actions; thus, the organization can later file a complaint for
person or entity to protect, preserve, rehabilitate or restore the damages with the Regional Trial Court, should they desire to do so.
environment; (c) Directing the respondent public official, government
agency, private person or entity to monitor strict compliance with the At any rate, the rules provide that judgment must be rendered within sixty
decision and orders of the court; (60) days from the time the petition is submitted for decision which expedites
(c) Directing the respondent public official, government agency, or private the proceedings significantly considering the urgency of situation in the
person or entity to make periodic reports on the execution of the final instant case.
judgment; and
(d) Such other reliefs which relate to the right of the people to a balanced As lawyer for the organization, I would recommend, therefore, the filing of a
and healthful ecology or to the protection, preservation, rehabilitation or petition for a Writ of Kalikasan with the Supreme Court.

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TOPIC: Special Proceedings an absolute right of the purchaser as confirmed owner. Upon proper
application and proof of title, the issuance of the writ of possession becomes
Writ of Possession a ministerial duty of the court (LZK Holdings and Development Corporation v.
(a) Is the buyer in the auction sale arising from an extra-judicial foreclosure Planters development Bank, G.R. No. 167998, April 27, 2007; Spouses Nicasio
entitled to a writ of possession even before the expiration of the redemption C. Marquez and Anita J. Marquez v. Spouses Carlito Alindog and Carmen
period? If so, what is the action to be taken? (1%) Alindog, G.R. No. 184045, January 22, 2014; Spouses Jose Gatuslao and Ermila
Gatuslao v. Leo Ray Yanson, G.R. No. 191540, January 21, 2015).
SUGGESTED ANSWER:
(a) Yes, the buyer in the auction sale is entitled to a writ of possession even (c) Suppose that after the title to the lot has been consolidated in the name
before the expiration of the redemption period upon the filing of the ex parte of the action buyer, said buyer sold the lot to a third party without first
petition for issuance of a writ of possession and posting of the appropriate getting a writ of possession. Can the transferee exercise the right of the
bond. Under Section 7 of Act No. 3135, as amended, the writ of possession auction buyer and claim that it is a ministerial duty of the court to issue a writ
may be issued to the purchaser in a foreclosure sale either within the one- of possession in his favor? Briefly explain. (2%)
year redemption period upon the filing of a bond, or after the lapse of the
redemption period, without need of a bound (LZK Holdings and SUGGESTED ANSWER:
Development Corporation v. Planters Development bank, G.R. No. 167998, (c) Yes. The transferee can exercise the right of the auction buyer. A
April 27, 2007). Stated otherwise, Section 7 of Act No.3135, as amended, transferee or successor-in-interest of the auction buyer by virtue of the
also refers to a situation wherein the purchaser seeks possession of the contract of sale between them, is considered to have stepped into the shoes
foreclosed property during the 12-month period for redemption. Hence, of the auction buyer. As such, the transferee is necessarily entitled to avail of
upon the purchaser’s filing of the ex parte petition and posting of the the provisions of Section 7 of Act 3135, as amended, as if he is the auction
appropriate bond, the RTC shall, as a matter of course, order the issuance of buyer (Spouses Jose Gatuslao and Ermila Gatuslao v. Leo Ray Yanson, G.R.
the writ of possession in favor of the purchaser (Spouses Nicasio C. Marquez No. 191540, January 21, 2015).
and Anita J. Marquez v. Spouses Carlito Alindog and Carmen Alindog, G.R.
No. 184045, January 22, 2014; Spouses Jose Gatuslao and Ermila Gatuslao v. When the lot purchased at a foreclosure sale is in turn sold or transferred, the
Leo Ray Yanson, G.R. No. 191540, January 21, 2015). right to the possession thereof, along with all other rights of ownership,
transfers to its now owner (Spouses Gallent v. Velasquez, G.R. No. 203949, 6
(b) After the period of redemption has lapsed and the title to the lot is April 2016); ergo, it is a ministerial duty of the court to issue a writ of
consolidated in the name of the auction buyer, is he entitled to the writ of possession in favor of the transferee of the auction buyer.
possession as a matter of right? If so, what is the action to be taken? (2%)
###
SUGGESTED ANSWER:
Yes, the auction buyer is entitled to a writ of possession as a matter of right.
It is settled that the buyer in a foreclosure sale becomes the absolute owner
of the property purchased if it is not redeemed within a period of one year
after the registration of the certificate of sale. He is, therefore, entitled to the
possession of the property and can demand it at any time following the
consolidation of ownership in his name and the issuance to him of a new
transfer certificate of title. In such a case, the bond required in Section 7 of
Act No. 3135 is no longer necessary. Possession of the land then becomes

Page 26 of 26 Special Civil Actions and Special Proceedings Bar Q&As 1997-2016
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