2007 bar questions and suggested answers (REMEDIAL LAW)

Remedial Law

- I -
10%

a. What are the rules on the recognition and enforcement of foreign judgments in our courts? (6%)

The rules on the recognition and enforcement of foreign judgments in our courts are as follows:
1. In the case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing. (Rule 39, Section 48[a], Rules of Court)

2. In case of a judgment or final order against a person, the judgment or final order is presumptive evidence against of a right as between the parties and their successors in interest by a subsequent title. (Rule 39, Section 48[b], Rules of Court)

3. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, or fraud, or clear mistake of law or fact. (Rule 39, Section 48, last paragraph, Rules of Court)

b. Can a foreign arbitral award be enforced in the Philippines under those rules? Explain briefly. (2%)

No. Foreign arbitral awards are not enforced like foreign court judgments under Rule 39 of the Rules of Court, but they can be enforced under Section 44 (RA 9285, Alternative Dispute Resolution Act of 2004) A foreign arbitral award, when confirmed by the RTC, shall be enforced in the same manner as final and executory decisions of courts of the Philippines. Said law provides that the case shall be filed with the Regional Trial Court as a special proceeding, and if the 1958 New York Convention on the Recognition and Enforcement of Foreign Judgments is not applicable, the court may, on grounds of comity and reciprocity, recognize a non-convention award as a convention award.

c. How about a global injunction issued by a foreign court to prevent dissipation of funds against a defendant therein who has assets in the Philippines? Explain briefly. (2%)

Yes, a global injunction also known as the Mareva injunction, should be considered as an order of a foreign court. Therefore, the rule on recognition and enforcement of foreign judgments under Rule 39 must apply. (Asiavest Merchant Bankers v. CA, G.R. No. 110263, July 20, 2001) However, to prevent dissipation of funds, the action to enforce must be accompanied with an application for preliminary injuction.

- II -
10%

True or False. If the answer is false, explain your answer briefly.

a. The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose had said to her, in a claim filed by Pedro against the estate of Jose (3%)
FALSE. For the survivor disqualification rule of the Dead Man Statute to apply, one of the requisites is that the witness being offered is either a party plaintiff, or his assignor or a person in whose behalf a case is prosecuted. (Rule 130, Section 23, Rules of Court). Hence, Maria, being a mere witness who does not fall within the prohibition, is not barred from testifying. (Section 23, Rule 130, Rules of Court; Razon v. Intermediate Appellate Court, G.R. Nos. 74306 and 74315, March 16, 1992).

b. A defendant who has been declared in default can avail of a petition for relief from the judgment subsequently rendered in the case. (3%)
FALSE. A petition for relief is an equitable remedy that can be availed of only if the assailed judgment has been entered for being final and executory. (Sections 1 and 3, Rule 38, Rules of Court; Aboitiz International Forwarders, Inc., v. Court of Appeals, G.R. No. 142272, May 2, 2006 and other cases)

c. A motion is pleading. (2%)
FALSE. A motion is not a pleading. A motion is an application for relief other than by a pleading (Section 1, Rule 15, 1997 Rules of Civil Procedure), except that in summary procedure when a prohibited motion to dismiss is filed, the court may treat the same as a pleading. Pleadings are the written statements of the respective claims and defenses on the parties submitted to the court for appropriate judgment. (Section 1, Rule 6, 1997 Rules of Civil Procedure)

d. A counterclaim is pleading. (2%)
TRUE. A counterclaim is a pleading because it is claim submitted to the court for appropriate judgment. (Section 1, Rule 6, 1997 Rules of Civil Procedure). It is any claim which a defending party may have against an opposing party. (Section 6, Rule 6, 1997 Rules of Civil Procedure).

- III -
10%

1. What is the hearsay rule? (5%)

The hearsay rule is that a witness can testify only to those facts which he knows of his personal knowledge; that is, those which are derived from his own perception, except as otherwise provided in the rules. (Section 36, Rule 130, Rules of Court). Moreover, hearsay evidence also includes all assertions though derived from personal knowledge, where the adverse party is not given an opportunity to cross-examine. (Section 36, Rule 130, Rules of Court)

2. In relation to the hearsay rule, what do the following rules of evidence have in common? (5%)

1. The rule on statements that are part of the res gestae;
2. The rule on dying declarations;
3. The rule on admissions against interest.

Statements that are part of the res gestae (Section 42, Rule 130, Rules of Court), dying declarations (Section 37, Rule 130, Rules of Court) and admissions against interest (Section 38, Rule 130, Rules of Court) are all exceptions to the hearsay rule.

- IV -
10%

Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City. Wife W files a petition for habeas corpus before the RTC of Pasay City, praying for custody over their minor child. H files a motion to dismiss the wife's petition on the ground of the pendency of the other case. Rule.

The husband’s motion to dismiss his wife’s petition for habeas corpus, should be granted because the case for nullity of marriage constitutes litis pendentia. The custody of the minor child and the action for nullity of the marriage are not separate causes of action. Judgment on the issue of custody in the nullity of marriage case before the Pasig RTC, regardless of which party would prevail, would constitute res judicata on the habeas corpus case before the Pasay RTC since the former has jurisdiction over the parties and the subject matter. (Yu v. Yu, G.R. No. 164915, March 10, 2006; Section 1[e], Rule 16, 1997 Rules of Civil Procedure; Section 2, Rule 102, Rules of Court). The evidence to support the petition for nullity necessarily involves evidence of fitness to take custody of the child as the court in the nullity proceedings has a duty under the Family Code to protect the bets interest of the child.

- V -
10%

a. Distinguish the effects of the filling of a demurrer to the evidence in a criminal case and its filing in a civil case. (5%)

The effects of filing of a demurrer to the evidence in a criminal case. (Section 23, Rule 119, 2000 Rules of Criminal Procedure) are different from the effects of the filing of a demurrer in a civil case (Rule 33, 1997 Rules of Civil Procedure), as follows:

1. In a civil case, after the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that based on the facts and the law, the plaintiff has shown no right to relief. If the demurrer is denied, the movant shall have the right to present evidence. If the demurrer is granted but on appeal the order of dismissal is reversed, the movant shall be deemed to have waived the right to present evidence. (Section 1, Rule 33, 1997 Rules of Civil Procedure).

2. In criminal cases, after the prosecution has rested its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution an opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days from its receipt.

If the leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or certiorari before the judgment. (Section 23, Rule 119, 2000 Rules of Criminal Procedure)

b. What is reverse trial and when may it be resorted to? Explain briefly. (5%)

A reverse trial is a trial where the accused presents his evidence first before the prosecution submits its evidence. It may be resorted to when the accused admits the act or omission charged in the complaint or information but interposes a lawful or affirmative defense. (Section 11[e], Rule 119, 2000 Rules of Criminal Procedure; People v. Palabarica, G.R. No. 129285, May 7, 2001; Section 7, Speedy Trial Act)

In civil cases, the reverse trial may be resorted to by agreement of the parties or when the defendant sets up an affirmative defense.

- VI -
10%

(a) On his way home, a member of the Caloocan City police force witnesses a bus robbery in Pasay City and effects the arrest of the suspect. Can he bring the suspect to Caloocan City for booking since that is where his station is? Explain briefly. (5%)

No. Under the Rules on Criminal Procedure, it is the duty of officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay. This rule equally applies to situations of warrantless arrest. (Section 3, Rule 113, Rules of Court)

(b) In the course of serving a search warrant, the police finds an unlicensed firearm. Can the police take the firearm even if it is not covered by the search warrant? If the warrant is subsequently quashed, is the police required to return the firearm? Explain briefly. (5%)

Yes. The police can take the unlicensed firearm even if it was not covered by the search warrant following the judicial precedent that prohibited articles may be seized for as long as the search warrant is valid. (People v. Cruz, G.R. No. 76728, August 30, 1988; People v. Mendi, G.R. Nos. 112978-81, February 19, 2001). If the warrant is subsequently quashed, the police are not required to return the firearm because it is unlicensed. It can, in fact, be ordered forfeited by the court. The search warrant does not refer to the unlicensed firearm.

- VII -
10%

a. B files a petition for cancellation of the birth certificate of her daughter R on the ground of falsified material entries there in made by B's husband as the informant. The RTC sets the case for hearing and directs the publications of the order once a week for three consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. R filed a petition for annulment of judgment before the Court of Appeals, saying that she was not notified of the petition 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 due process. Rule. (5%)

Alternative Answer:
Jurisdiction of the court over a petition for the cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the order once a week for three consecutive weeks in a newspaper of general circulation. (Section 4, Rule 108 Ceruila v. Delantar, G.R. No. 140305, December 9, 2005). In this case, publication of the order is insufficient because R, a directly concerned party, was not given reasonable notice, hence, denied due process. The lower court, therefore, did not acquire jurisdiction. Accordingly, the petition for annulment of judgment before the Court of Appeals should be granted.

Alternative Answer:
In the cases of Republic v. Kho, G.R. No. 170340, 29 June 2007; Alba v. Court of Appeals, G.R. No. 164041, July 29, 2005; and Barco v. Court of Appeals, G.R. No. 120587, January 20, 2004, the court held that publication of the order of hearing under Section4 of Rule 108 cured the failure to implead an indispensable party. The court said that a petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it.

b. G files a complaint for recovery of possession and damage against F. in the course of the trial, G marked his evidence but his counsel failed to file a formal offer of evidence. F then presented in evidence tax declarations in the name of his father to establish that his father is a co-owner of the property. The court ruled in favor of F, saying that G failed to prove sole ownership of the property in the face of F's evidence. Was the court correct? Explain briefly. (5%)

The court shall consider no evidence which has not been formally offered. The trial court rendered judgment considering only the evidence offered by F. The offer is necessary because it is the duty of the judge to rest his findings of fact and his judgment only and strictly upon the evidence offered by the parties at the trial (People v. Pecardal, G.R. No. 71381, November 24, 1986) and because the purpose for which the evidence is offered must be specified. (Section 34, Rule 1, Rules of Court.) However, there have been exceptional instances when the Court allowed exhibited documents which were not offered by duly identified by testimony and incorporated in the records of the case. (People v. Mate, L-34754, March 21, 1981).

- VIII -
10%

a. X files an unlawful detainer case against Y before the appropriate Metropolitan Trial Court. In his answer, Y avers as a special and affirmative defense that he is a tenant of X's deceased father in whose name the property remains registered. What should the court do? Explain briefly. (5%)

The court should proceed to hear the case under the Rules of Summary Procedure. Unlawful detainer refers to actual physical possession, not ownership. Defendant Y, who is in actual possession, is the real party in interest. (Lao v. Lao, G.R. No. 149599, May 11, 2005) It does not matter if her is a tenant of the deceased father of the plaintiff, X, or that X’s father is the registered owner of the property. His term expired. He merely continues to occupy the property by mere tolerance and he can be evicted upon mere demand. (People v. Court of Appeals, G.R. No. 14364, June 3, 2004).

b. The heirs of H agree among themselves that they will honor the division of H's estate as indicated in her Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will, can they instead execute an Extrajudicial Settlement Agreement among themselves? Explain briefly. (5%)

No. The law states that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. (Article 838, Civil Code; Lopez v. Gonzaga, G.R. No. L-18788, January 30, 1964). This probate of the will is mandatory. (Guevarra v. Guevarra, G.R. No.L-48840, December 29, 1943.)

- IX -
10%

L was charged with illegal possession of shabu before the RTC. Although bail was allowable under his indictment, he could not afford to post bail, and so he remained in detention at the City Jail. For various reasons ranging from the promotion of the Presiding Judge, to the absence of the trial prosecutor, and to the lack of the notice to the City Jail Warden, the arraignment of L was postponed nineteen times over a period of two years. Twice during that period, L's counsel filed motions to dismiss, invoking the right of the accused to a speedy trial. Both motions were denied by the RTC. Can L file a petition for mandamus? Reason briefly.

Yes, L can file a petition for mandamus, invoking the right to a speedy trial. (Section 3, Rule 65, 1997 Rules of Civil Procedure) The numerous and unreasonable postponements displayed an abusive exercise of discretion. (Lumanlaw v. Peralta, G.R. No. 164953, February 13, 2006)

- X -
10%

a. RC filed a complaint for annulment of the foreclosure sale against Bank V. in its answer, Bank V set up a counter claim for actual damages and litigation expenses. RC filed a motion to dismiss the counterclaim on the ground the Bank V's Answer with Counterclaim was not accompanied by a certification against forum shopping. Rule. (5%)

The motion to dismiss the counterclaim should be denied. A certification against forum shopping should not be required in a compulsory counterclaim because it is not an initiatory pleading. (Section 5, Rule 7, 1991 Rules of Civil Procedure; Carpio v. Rural Bank of Sto. Tomas [Batangas], Inc., G.R. No. 153171, May 4, 2006)

b. A files a case against B. While awaiting decision on the case, A goes to the United States to work. Upon her return to the Philippines, seven years later, A discovers that a decision was rendered by the court in her favor a few months after she had left. Can a file a motion for execution of the judgment? Explain briefly. (5%)

No. A cannot file a motion for execution of the judgment seven years after the entry of the judgment. She can only do that within five (5) years from entry of judgment. However, she can file a case for revival of the judgment, which can be done before it is barred by the statute of limitations. (Section 6, Rule 39, 1997 Rules of Civil Procedure) which is within ten (10) years from the date of finality of the judgment. (Macias v. Lim, G.R. No. 139284, June 4, 2004)

NOTHING FOLLOWS.