Bar Questions 2002

Remedial Law – Jurisdiction; MTC

P sued A and B in one complaint in the RTC-Manila, the cause of action against A being on an overdue promissory note
for P300,000.00 and that against B being on an alleged balance of P300,000.00 on the purchase price of goods sold on
credit. Does the RTC-Manila have jurisdiction over the case? Explain. (3%)

Suggested Answer:

No, the RTC-Manila has no jurisdiction over the case. A and B could not be joined as defendants in one complaint
because the right to relief against both defendants do not arise out of the same transaction or series of transactions and
there is no common question of law or fact common to both. (Rule 3, sec. 6). Hence, separate complaints will have to be
filed and they would fall under the jurisdiction of the Metropolitan Trial Court. [Flores v. Mallare-Philipps, 144 SCRA
377 (1986)].

Remedial Law – Jurisdiction, RTC

P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on an overdue promissory note, (2)
P80,000.00 on the purchase price of a computer, (3) P150,000.00 for damages to his car and (4) P100,000.00 for
attorney’s fees and litigation expenses. Can A move to dismiss the case on the ground that the court has no jurisdiction
over the subject matter? Explain. (2%)

Suggested Answer:

No, because the RTC-Manila has jurisdiction over the subject matter. P may sue A in one complaint asserting as many
causes of action as he may have and since all the claims are principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. [Rule 2, sec.5(d)]. The aggregate amount claimed is P 450,000.00, exclusive of
the amount of P100,000.00 for attorney’s fees and expenses of litigation. Hence, the RTC-Manila has jurisdiction.

Civil Procedure – Actions: Cause of Actions; Motion to Dismiss; bar by prior judgment

Rolando filed a petition for declaration of nullity of his marriage to Carmela because of the alleged psychological
incapacity of the latter.

After trial, the court rendered judgment dismissing the petition on the ground that Rolando failed to prove the
psychological incapacity of his wife. The judgment having become final, Rolando filed another petition, this time on the
ground that his marriage to Carmela had been celebrated without a license. Is the second action barred by the judgment in
the first? Why? (2%)

Suggested Answer:

No, the second action is not barred by the judgment in the first because they are different causes of action. The first is for
annulment of marriage on the ground of psychological incapacity under Article 36 of the Family Code, while the second
is for declaration of nullity of the marriage in view of the absence of a basic requirement, which is a marriage license.
[Articles 9 and 35(3), Family Code] They are different causes of action because the evidence required to prove them are
not the same. [Pagsisihan v. Court of Appeals, 95 SCRA 540 (1980) and other cases].

Civil Procedure – Actions; Counterclaim

The plaintiff sued the defendant in the RTC for damages allegedly caused by the latter’s encroachment on the plaintiff’s
lot. In his answer, the defendant denied the plaintiff’s claim and alleged that it was the plaintiff who in fact had
encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed against the plaintiff for damages
resulting from the alleged encroachment on his lot. The plaintiff filed an ex parte motion for extension of time to answer
the defendant’s counterclaim, but the court denied the motion on the ground that it should have been set for hearing. On
the defendant’s motion, therefore, the court declared the plaintiff in default on the counterclaim. Was the plaintiff validly
declared in default? Why? (5%)

Suggested Answer:

No, the plaintiff was not validly declared in default. A motion for extension of time to file an answer may be filed ex parte
and need not be set for hearing. [Amante vs. Sunga, 64 SCRA 192 (1975)].

Alternative Answer:

The general rule is that a counterclaim must be answered within ten (10) days from service. (Rule 11, sec. 4). However, a
counterclaim that raises issues which are deemed automatically joined by the allegations of the Complaint need not be
answered. [Gojo vs. Goyala, 35 SCRA 557 (1970)].

In this case, the defendant’s counterclaim is a compulsory counterclaim which arises out or is connected with the
transaction and occurrence constituting the subject matter of the plaintiff’s claim. It raises the same issue of who
encroached on whose land. Hence, there was no need to answer the counterclaim.

Judgment; Execution pending Appeal

The trial court rendered judgment ordering the defendant to pay the plaintiff moral and exemplary damages. The judgment
was served on the plaintiff on October 1, 2001 and on the defendant on October 5, 2001. On October 8, 2001, the
defendant filed a notice of appeal from the judgment, but the following day, October 9, 2001, the plaintiff moved for the
execution of the judgment pending appeal. The trial court granted the motion upon the posting by the plaintiff of a bond to
indemnify the defendant for damages it may suffer as a result of the execution. The court gave as a special reason for its
order the imminent insolvency of the defendant. Is the order of execution pending appeal correct? Why? (5%)

Suggested Answer:

No, because awards for moral and exemplary damages cannot be the subject of execution pending appeal. The execution
of any award for moral and exemplary damages is dependent on the outcome of the main case. Liabilities for moral and
exemplary damages, as well as the exact amounts remain uncertain and indefinite pending resolution by the Court of
Appeals or Supreme Court. [RCPI v. Lantin, 134 SCRA 395 (1985); International School, Inc. v. Court of Appeals, 309
SCRA 474 (1999)].

Alternative Answer:

Yes, because only moral and exemplary damages are awarded in the judgment and they are not dependent on other types
of damages.

Moreover, the motion for execution was filed while the court had jurisdiction over the case and was in possession of the
original record.

It is based on good reason which is the imminent insolvency of the defendant. (Rule 39, sec. 2)

Judgment; Soundness; Attachment

The plaintiff obtained a writ of preliminary attachment upon a bond of P1 million. The writ was levied on the defendant’s
property, but it was discharged upon by the posting by the defendant of a counterbond in the same amount of P1 million.
After trial, the court rendered judgment finding that the plaintiff had no cause of action against the defendant and that he
has sued out the writ of attachment maliciously. Accordingly, the court dismissed the complaint and ordered the plaintiff
and its surety to pay jointly to the defendant P1.5 million as actual damages, P0.5 million as moral damages and P0.5
million as exemplary damages. Evaluate the soundness of the judgment from the point of view of procedure. (5%)
Suggested Answer:

The judgment against the surety is not sound if due notice was not given to him of the applicant for damages. (Rule 57,
sec 20) Moreover, the judgment against the surety cannot exceed the amount of its counterbond of P1 million.

Judgments; Enforcement; Examination of Defendant

The plaintiff, a Manila resident, sued the defendant, a resident of Malolos, Bulacan, in the RTC-Manila for a sum of
money. When the sheriff tried to serve the summons with a copy of the complaint on the defendant at his Bulacan
residence, the sheriff was told that the defendant had gone to Manila for business and would not be back until the evening
of that day. So, the sheriff served the summons, together with a copy of the complaint, on the defendant’s 18-year-old
daughter, who was a college student. For the defendant’s failure to answer the complaint within the reglementary period,
the trial court, on motion of the plaintiff, declared the defendant in default. A month later, the trial court rendered
judgment holding the defendant liable for the entire amount prayed for in the complaint.

After the judgment had become final, a writ of execution was issued by the court. As the writ was returned unsatisfied, the
plaintiff filed a motion for an order requiring the defendant to appear before it and to be examined regarding his property
and income. How should the court resolve the motion? (2%)

Suggested Answer:

Petition for Relief and Action for Annulment

May an order denying the probate of a will still be overturned after the period to appeal therefrom has lapsed? Why? (3%)

Suggested Answer:

Yes, an order denying the probate of a will may be overturned after the period to appeal therefrom has lapsed. A
PETITION FOR RELIEF may be filed on the grounds of fraud, accident, mistake or excusable negligence within a period
of sixty (60) days after the petitioner learns of the judgment or final order and not more than six (6) months after such
judgment or final order was entered. [Rule 38, secs. 1&3; Soriano v. Asi, 100 Phil. 785 (1957)].

An ACTION FOR ANNULMENT may also be filed on the ground of extrinsic fraud within four (4) years from its
discovery, and if based on lack of jurisdiction, before it is barred by laches or estoppel. (Rule 47, secs. 2 and 3)

Petition for Relief; Injunction

A default judgment was rendered by the RTC ordering D to pay P a sum of money. The judgment became final, but D
filed a petition for relief and obtained a writ of preliminary injunction staying the enforcement of the judgment. After
hearing, the RTC dismissed D’s petition, whereupon P immediately moved for the execution of the judgment in his favor.
Should P’s motion be granted? Why? (3%)

Suggested Answer:

P’s immediate motion for execution of the judgment in his favor should be granted because the dismissal of D’s petition
for relief also dissolves the writ of preliminary injunction staying the enforcement of the judgment, even if the dismissal is
not yet final. [Golez v. Leonidas, 107 SCRA 187(1981)].

Remedies; Appeal to SC; Appeals to CA

a) What are the modes of appeal to the Supreme Court? (2%)

b) Comment on a proposal to amend Rule 122, Section 2(b), in relation to Section 3(c), of the Revised Rules of
Criminal Procedure to provide for appeal to the Court of Appeals from the decisions of the RTC in criminal cases,
 where the penalty imposed is reclusion perpetua or life imprisonment, subject to the right of the accused to appeal
to the Supreme Court. (3%)

Suggested Answer:

A. The modes of appeal to the Supreme Court are: (a) APPEAL BY CERTIORARI on pure questions of law under
Rule 45 through a petition for review on certiorari; and (b) ORDINARY APPEAL in criminal cases through a
notice of appeal from convictions imposing reclusion perpetua or life imprisonment or where a lesser penalty is
involved but for offenses committed on the same occasion or which arose out of the same occurrence that gave
rise to the more serious offense. (Rule 122, sec. 3) Convictions imposing the death penalty are elevated through
automatic review.
B. There is no constitutional objection to providing in the Rules of Court for an appeal to the Court of Appeals from
the decisions of the RTC in criminal cases where the penalty imposed is reclusion perpetua or life imprisonment
subject to the right of the accused to appeal to the Supreme Court, because it does not deprive the Supreme Court
of the right to exercise ultimate review of the judgments in such cases.

Special Civil Action; Petition for Certiorari

The defendant was declared in default in the RTC for his failure to file an answer to a complaint for a sum of money.
On the basis of the plaintiff’s ex parte presentation of evidence, judgment by default was rendered against the
defendant. The default judgment was served on the defendant on October 1, 2001. On October 10, 2001, he files a
verified motion to lift the order of default and to set aside the judgment. In his motion, the defendant alleged that,
immediately upon receipt of the summon, he saw the plaintiff and confronted him with his receipt evidencing his
payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The trial court
denied the defendant’s motion because it was not accompanied by an affidavit of merit. The defendant filed a special
civil action for certiorari under Rule 65 challenging the denial order.

A. Is certiorari under Rule 65 the proper remedy? Why? (2%)

B. Did the trial court abuse its discretion or act without or in excess of its jurisdiction in denying the defendant’s
motion to lift the order of default judgment? Why? (3%)

Suggested Answer:

A. The petition for certiorari under Rule 65 filed by the defendant is the proper remedy because appeal is not a plain,
speedy and adequate remedy in the ordinary course of law. In appeal, the defendant in default can only question
the decision in light of the evidence of the plaintiff. The defendant cannot invoke the receipt to prove payment of
his obligation to the plaintiff.

Alternative Answer:

A. Under ordinary circumstances, the proper remedy of a party wrongly declared in default is either to appeal from
the judgment by default or file a petition for relief from judgment. [Jao, Inc. v. CA, 251 SCRA 391 (1995)]

Suggested Answer:

B. Yes, the trial court gravely abused its discretion or acted without or in excess of jurisdiction in denying the
defendant’s motion because it was not accompanied by a separate affidavit of merit. In his verified motion to lift
the order of default and to set aside the judgment, the defendant alleged that immediately upon the receipt of the
summons, he saw the plaintiff and confronted him with his receipt showing payment and that the plaintiff assured
him that he would instruct his lawyer to withdraw the complaint. Since the good defense of the defendant was
already incorporated in the verified motion, there was no need for a separate affidavit of merit. [Capuz v. CA, 233
SCRA 471 (1994); Mago v. CA, 303 SCRA 600 (1999)].
Criminal Procedure – Acquittal; Effect

Delia sued Victor for personal injuries which she allegedly sustained when she was struck by a car driven by Victor.
May the court receive in evidence, over proper and timely objection by Delia, a certified true copy of a judgment of
acquittal in a criminal prosecution charging Victor with hit-and-run driving in connection with Delia’s injuries? Why?
(3%)

Suggested Answer:

If the judgment of acquittal in the criminal case finds that the act or omission from which the civil liability may arise
does not exist, the court may receive it in evidence over the objection by Delia. [Rule 111, sec. 2, last paragraph].

Alternative Answer:

If the judgment of acquittal is based on reasonable doubt, the court may receive it in evidence because in such case,
the civil action for damages which may be instituted requires only a preponderance if the evidence. (Art. 29, Civil
Code).

Criminal Procedure – Bail; Appeal

D was charged with murder, a capital offense. After arraignment, he applied for bail. The trial court ordered the
prosecution to present its evidence in full on the ground that only on the basis of such presentation could it determine
whether the evidence of D’s guilt was strong for purposes of bail. Is the ruling correct? Why? (3%)

Suggested Answer:

No, the prosecution is only required to present as much evidence as is necessary to determine whether the evidence of
D’s guilt is strong for purposes of bail. (Rule 114, sec. 8).

Criminal Procedure – Bail; Application; Venue

If an information was filed in the RTC-Manila charging D with homicide and he was arrested in Quezon City, in what
court or courts may he apply for bail? Explain. (3%)

Suggested Answer:

D may apply for bail in RTC-Manila where the information was filed or in the RTC-Quezon City where he was
arrested, or if no judge, thereof is available, with any metropolitan trial judge, municipal trial judge or municipal
circuit trial judge therein. (Rule 114, sec. 17).

Criminal Procedure – Double Jeopardy

D was charged with slight physical injuries in the MTC. He pleaded not guilty and went to trial. After the prosecution
had presented its evidence, the trial court set the continuation of the hearing on another date. On the date scheduled
for hearing, the prosecutor failed to appear, whereupon the court, on motion of D, dismissed the case. A few minutes
later, the prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order and directed D to
present his evidence. Before the next date of trial came, however, D moved that the last order be set aside on the
ground that the reinstatement of the case had placed him twice in jeopardy. Acceding to this motion, the court again
dismissed the case. The prosecutor then filed information in the RTC, charging D with direct assault based on the
same facts alleged in the information for slight physical injuries but with the added allegation that D inflicted the
injuries out of resentment for what the complainant had done in the performance of his duties as chairman of the
 board of election inspectors. D moved to quash the second information on the ground that its filing had placed him in
double jeopardy. How should D’s motion to quash be resolved? (4%)

Suggested Answer:

D’s motion to quash should be granted on the ground of double jeopardy because the first offense charged is
necessarily included in the second offense charged. [Draculan v. Donato, 140 SCRA 425 (1985)].

Alternative Answer:

D’s motion to quash should be denied because the two dismissals of the case against him were on his motion (hence
with his express consent) and his right to a speedy trial was not violated.

Criminal Procedure – Information; Amendment; Double Jeopardy; Bail

A. D and E were charged with homicide in one information. Before they could be arraigned, the prosecution moved
to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why? (2%)
B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to withdraw the
information altogether and its motion was granted. Can the prosecution re-file the information although this time
for murder? Explain (3%).

Suggested Answer:

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same. (Rule
110, sec. 14).
B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide because
no double jeopardy has as yet attached. [Galvez v. CA. 237 SCRA 685 (1994)].

Plea of Guilty to a Lesser Offense

D was charged with theft of an article worth P15,000.00. Upon being arraigned, he pleaded not guilty to the offense
charged. Therefore, before trial commenced, he asked the court to allow him to change his plea of not guilty to a plea of
guilt but only to estafa involving P5,000.00. Can the court allow D to change his plea? Why? (2%)

Suggested Answer:

No, because a plea of guilty to a lesser offense may be allowed if the lesser offense is necessarily included in the offense
charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not necessarily included in theft of an article worth P15,000.00

Provisional Dismissal

In a prosecution for robbery against D, page 48