Professional Documents
Culture Documents
in
Remedial Law I
by:
Prof. Arturo M. de Castro
(Pre-Bar Reviewer, Global Best Practice, UP Law
Center, PCU; Professor of Law, Ateneo, UP)
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and no other matter may be considered, and the court may not
inquire into the truth of the allegations, and find them to be false
before a hearing is had on the merits of the case; and it is improper
to inject in the allegations of the complaint facts not alleged or
proved, and use these as basis for said motion. (Nemesio
Evangelista, et. al. vs. Carmelino Santiago, G.R. No. 157447,
April 29, 2005)
6. May a party who has availed himself of a motion for new trial file a Petition
for relief?
Ans: No. A party who has filed a timely motion for new trial cannot file a
petition for relief after his motion has been denied. These two
remedies are exclusive of each other. It is only in appropriate
cases where a party aggrieved by a judgment has not been able to
file a motion for new trial that a petition for relief can be filed. (Dalia
Francisco, et. al. vs. Hon. Benigno M. Puno, G.R. No. 55694,
October 23, 1981)
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(ii)
(iii)
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Where the judgment has been novated by the parties (Fua Can
Lu v. Yap Fauco, 74 Phil. 287 [1943]; Zapanta v. De
Rotaeche, 21 Phil. 154 [1912]; Salvante v. Cruz, 88 Phil. 236
[1951]);
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V
1. a) What is the rationale of Litis Pendentia?
b) What are its requisites?
Ans:
a Like res judicata as a doctrine, litis pendentia is a sanction of
public policy against multiplicity of suits (Investors Finance
Corporation v. Ebarle, No. L-70640, June 29, 1988, 163 SCRA
60). The principle upon which a plea of another action pending
is sustained is that the latter action is deemed unnecessary and
vexatious (Victronics Computers, Inc. v. Logarta, G.R. No.
104019, January 25, 1993, 217 SCRA 517; Arceo v. Oliveros,
No. L-38257, January 31, 1985, 134 SCRA 308; Andresons
Groups, Inc. v. Court of Appeals, G.R. No. 114928, January
21, 1997, 266 SCRA 423).
b The following:
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V
1. What are the exceptions to hypothetical admission of facts alleged in the
Complaint where lack of cause of action is invoked in a motion to dismiss?
Ans: The following:
a allegations of which the court will take judicial notice are not
true; no allegations of conclusions nor allegations of fact the
falsity of which the court may take judicial notice are deemed
admitted (Mathay v. Consolidated Bank and Trust Company,
No. L-23136, August 26, 1974, 58 SCRA 560; U. Baez
Electric Light Company v. Abra Electric Cooperative, Inc.,
No. L-59480, December 8, 1982, 119 SCRA 90; Dalandan v.
Julio, No. L-19101, February 29, 1964, 10 SCRA 400;
Marcopper Mining Corporation v. Garcia, No. L-55935, July
30, 1986, 143 SCRA 178);
b legally impossible facts;
c
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d prescription
3. Distinguish between Permissive and Compulsory counterclaim.
Ans: In a permissive counterclaim, the docket and other lawful fees
should be paid and the same should be accompanied by a
certificate against forum shopping and certificate to file action
issued by the proper Lupon Tagapamayapa. It should also be
answered by the claiming party. It is not barred even if not set up in
the action.
In a compulsory counterclaim, no docket fee is paid and the
certificates mentioned above are not required (Santo Tomas
University v. Surla, G.R. No. 129718, August 17, 1998, 294 SCRA
382). If it is not raised in the answer, it shall be barred (Rules of
Court, Rule 9, Sec. 2).
A compulsory counterclaim that merely reiterates special defenses
which are deemed controverted even without a reply, or raises
issues which are deemed automatically joined by the allegations of
the complaint need not be answered (Lama v. Apacible, 79 Phil.
68 [1947]; Navarro v. Bello, 102 Phil. 1019 [1958]; Gojo v.
Goyala, G.R. No. 26768, October 30, 1970, 35 SCRA 557).
However, a compulsory counterclaim which raises issues not
covered by the complaint should be answered (Feria, Annotated
1997 Rules of Court, 41).
4. Is a partial judgment appealable? Does it become final after the lapse of
period to appeal?
Ans: No, to both questions. It is interlocutory and may be appealed only
together with the judgment on the case.
5.
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It is not sufficient that the court or trial judge take into account the
facts brought out in an action the circumstances of each question
raised, and the nature and conditions of the proofs furnished by the
parties. He must also set out in his decision the facts alleged by the
contending parties which he finds to have been proven, the
conclusions deduced therefrom and the opinion he has formed on
the issues raised. Only then can he intelligently set forth the legal
grounds and considerations proper in his opinion for the due
determination of the case. (People v. Escober, No. L-69564,
January 29, 1988, 157 SCRA 541)
6. a) What is the effect of perfection of the appeal on the jurisdiction of the
lower court over the case?
b) What matters may the lower Court still act on despite perfection of the
appeal?
Ans: The trial Court loses jurisdiction over the case, but may act on the
following:
1 issue an order for the protection and preservation of the rights of
the parties which do not involve any matter litigated by the
appeal;
2 approve compromise of the parties prior to the transmittal of the
record on appeal to the appellate court;
3 permit the prosecution of indigent appeals;
4 order execution pending appeal in accordance with Section 2,
Rule 39; and
5 approve withdrawal of appeal.
V
1. What are the purposes of attachment?
Ans: The purposes of preliminary attachment are:
a to seize the property of the debtor in advanced of final judgment
and to hold it for purposes of satisfying the said judgment; or
b to enable the court to acquire jurisdiction over the action by the
actual or constructive seizure of the property in those instances
where personal service of summons on the creditor cannot be
effected. (Mabanag v. Gallemore, supra, note 293; Quasha v.
Juan, No. L-49140, November 19, 1982, 118 SCRA 505)
2. What is the purpose of Injunction or TRO?
Ans: To prevent future injury and maintain status quo the last actual,
peaceable, uncontested status which preceded the pending
controversy. (Rivera v. Florendo, No. L-57586, October 8, 1986,
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V
1. What are the requisites for Declaratory Relief and Similar Remedies?
Ans: The following:
a There must be a justiciable controversy (Obiles v. Republic, 92
Phil. 864 [1953]);
b The controversy must be between persons whose interest is
adverse;
c
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Ans: No. An action for ejectment is not abated by the death of the
defendan (Vda. de Salazar v. Court of Appeals, G.R. No. 121510,
November 23, 1995, 250 SCRA 305). The heirs become the
substitute defendants (Caiza v. Court of Appeals, G.R. No.
110427, February 24, 1997, 268 SCRA 640).
b How about the death of the plaintiff?
Ans: The action is in personam by the plaintiff against the defendants.
The action does not survive the death of the plaintiff (2005
Decision).
c
The lessee cannot deny the lessors title (Rule 131, Sec. 3[b]; Reyes
v. Villaflor, No. L-15755, May 30, 1961, 2 SCRA 247).
DIRECT CONTEMPT
INDIRECT CONTEMPT
a.
Fine
not
exceeding a.
Fine
not
exceeding
Php200.00 in the Municipal, Php5,000.00 in the Municipal,
Metropolitan and Municipal Metropolitan and Municipal
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b.
Imprisonment
not
exceeding one (1) day in the
Municipal, Metropolitan and
Municipal Circuit Trial Courts
and not exceeding ten (10)
days in the Regional Trial
Court, Court of Appeals and
Supreme Court.
c.
Both
imprisonment.
fine
and
V
1. May a lost will and testament be probated?
Ans: Yes, if it may be established by secondary evidence. An ordinary
will may be established by the instrumental witnesses as to the due
execution and its contents after the fact of loss is proven.
If the holographic will has been lost or destroyed and not other copy
is available, the will cannot be probated because the best and
only evidence is the handwriting of the testator in said will.
However, a photostatic or Xerox copy of the lost or destroyed
holographic will may be admitted. (Rodelas vs. Aranza, G.R. No.
L-58509, December 7, 1982)
2. Is the best evidence rule applicable to photocopy of the marked money?
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Ans: The best evidence rule applies only when the contents of the
document is the subject of inquiry not when the issue relates only to
its execution. Held not applicable to photocopy of marked money.
(Herrera vs. Albag, G.R. No. 148220, June 15, 2005)
3. State the priorities in the appointment of Administrators.
Ans: Administration may be granted:
a) To the surviving spouse, or next of kin, or both, or to such
person as such surviving spouse or next of kin, requests to be
appointed, if competent and willing to serve.
b) To one or more of the principal creditors, if competent and
willing to serve, in default of the foregoing or if the surviving
spouse or next of kin, neglects for thirty (30) days after the
death of the deceased to file a petition for administration or the
request that administration be granted to some other person.
c) To such other person as the court may select, in default of the
foregoing.
Note: The court may disregard the preference above enumerated in
its sound discretion and its decision will not be interfered with on
appeal unless it appears that it is in error. (Silverio, Sr. v. Court of
Appeals, G.R. No. 109979, March 11, 1999, 304 SCRA 541)
4. When should a special administrator be appointed?
Ans: A special administration may be appointed (w)hen there is delay in
granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will.
(Rules of Court, Rule 80, Sec. 1) The special administrator shall
take possession and charge of the estate of the deceased until
questions causing the delay are decided and executors or
administrators appointed.
5. Does a probate court have jurisdiction to resolve questions of title?
Ans: No. A probate court can resolve questions of title only provisionally.
All that the court can do is to determine whether the properties
should or should not be included in the inventory or list of properties
to be administered by the administrator. If there is no dispute, well
and good, but if there is, then the parties, the administrator and the
opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate
court cannot do so. (Sanchez v. Court of Appeals, G.R. No.
108947, September 29, 1997, 279 SCRA 647)
6. May legitimate minor children be allowed to adopt
a) the surname of their mothers second husband?
b) their mothers maiden name?
Ans:
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X
1. Does Entrapment operation need Warrant of Arrest and Search Warrant?
Ans: No warrant was needed considering that the mission was not a
search but an entrapment. An arrest made after an entrapment
does not require a warrant inasmuch as it is considered a valid
warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules
of Court. Any search resulting from a lawful warrantless arrest is
valid because the accused committed a crime in flagrante delicto,
that is, the person arrested committed a crime in the presence of
the arresting officers. (Teodosio vs. CA, G.R. No. 124346. June
8, 2004)
2. When should the objection to the legality of the arrest be made?
Ans: Any objection against an arrest or the procedure in the acquisition
by the court of jurisdiction over the person of an accused should be
made at or before the arraignment; otherwise the objection is
deemed waived. (People vs. Lozada, G.R. No. 141121. July 17,
2003; People vs. Cachola, G.R. Nos. 148712-15. January 21,
2004)
3. What is the effect of posting a bail and plea of not guilty on the illegality of
the arrest?
Ans: While appellant was taken into police custody without a valid
warrant of arrest, such illegality was, however, deemed cured when
appellant applied for bail, entered a plea of "not guilty" during his
arraignment, and actively participated in the trial of his case. By so
doing, appellant submitted himself to the jurisdiction of the trial
court. (People vs. Hipol, G.R. No. 140549. July 22, 2003)
4. Which Court has authority to grant bail?
Ans: Section 17 (a), Rule 114 of the Rules of Court anticipates 2
situations. First, the accused is arrested in the same province, city
or municipality where his case is pending. Second, the accused is
arrested in the province, city or municipality other than where his
case is pending. In the first situation, the accused may file bail in
the court where his case is pending or, in the absence or
unavailability of the judge thereof, with another branch of the same
court within the province or city. In the second situation, the
accused has 2 options. First, he may file bail in the court where his
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case is pending or, second, he may file bail with any regional trial
court in the province, city or municipality where he was arrested.
When no regional trial court judge is available, he may file bail with
any metropolitan trial judge, municipal trial judge or municipal circuit
trial judge therein. (De Los Santos vs. Mangino, A.M. No. MTJ03-1496. July 10, 2003)
5. Explain the concept of double jeopardy.
Ans: The proscription against double jeopardy presupposes that an
accused has been previously charged with an offense, and the
case against him is terminated either by his acquittal or conviction,
or dismissed in any other manner without his consent. As a general
rule, the following requisites must be present for double jeopardy to
attach: (1) a valid indictment, (2) before a court of competent
jurisdiction, (3) the arraignment of the accused, (4) a valid plea
entered by him, and (5) the acquittal or conviction of the accused,
or the dismissal or termination of the case against him without his
express consent. However, there are two exceptions to the
foregoing rule, and double jeopardy may attach even if the
dismissal of the case was with the consent of the accused: first,
when there is insufficiency of evidence to support the charge
against him; and second, where there has been an unreasonable
delay in the proceedings, in violation of the accuseds right to
speedy trial. (Condrada Vs. People, February 28, 2003; People
vs. Billaber, G.R. Nos. 114967-68, January 26, 2004)
6. May the defense of double jeopardy be invoked even when the accused
moved for the dismissal on the ground of violation his constitutional right
to speedy trial and the dismissal by the court is provisional?
Ans: Yes. Even if the petitioners, after invoking their right to a speedy
trial, moved for the dismissal of the case and, therefore, consented
to it, the dismissal would still place them in jeopardy. The use of the
word provisional would not change the legal effect of the dismissal
(Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero,
88 Phil. 299).
If the defendant wants to exercise his constitutional right to a
speedy trial, he should ask, not for the dismissal, but for the trial of
the case. After the prosecutions motion for postponement of the
trial is denied and upon order of the court the fiscal does not or
cannot produce his evidence and, consequently, fails to prove the
defendants guilt, the court upon defendants motion shall dismiss
the case, such dismissal amounting to an acquittal of the
defendant (4 Morans Comments on the Rules of Court, 1980 Ed.,
p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People
vs Diaz, 94 Phil. 714, 717)
The dismissal of a criminal case upon motion of the accused
because the prosecution was not prepared for trial since the
complainant and his witnesses did not appear at the trial is a
dismissal equivalent to an acquittal that would bar further
prosecution of the defendant for the same offense (Salcedo vs.
Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilla
vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs.
Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016.
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10. Can the judge rely solely on the certification of the Prosecutor on the
existence of a probable cause?
Ans: No. He has to make his own independent determination of the
existence of probable cause taking into account the supporting
documents (such as the complaint, affidavits, counter-affidavits,
sworn statements of witnesses or transcripts of stenographic notes,
if any) upon which to make his independent judgment or, at the very
least, upon which to verify the findings of the prosecutor as to the
existence of probable cause. The point is: he cannot rely solely
and entirely on the prosecutors recommendation. (Okabe vs.
Gutierrez, G.R. No. 150185. May 27, 2004)
11. What is the purpose of pre-trial in a criminal case?
Ans: The purpose of pre-trial is to consider the following: (a) plea
bargaining; (b) stipulation of facts; (c) marking for identification of
evidence of the parties; (d) waiver of objections to admissibility of
evidence; (e) modification of the order of trial if the accused admits
the charge but interposes lawful defenses; and (f) such matters as
will promote a fair and expeditious trial of the criminal and civil
aspects of the case. Facts stipulated and evidence admitted during
pre-trial bind the parties. (People Vs. Perez, February 5, 2003)
12. Does the constitutional right to bail apply to extradition proceedings?
Ans: The constitutional provision on Bail as well as Sec. 4 of Rule 114
applies only when a person has been arrested and detained for
violation of Philippine Criminal laws. It does not apply to extradition
proceedings because extradition courts do not render judgments of
conviction or acquittal. An extradition proceeding is sui generis. It
is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights. To begin
with, the process of extradition does not involve the determination
of the guilt or innocence of an accused. His guilt or innocence will
be adjudged in the court of the state where he will be extradited.
Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked
by an extraditee. (Govt. of US vs. Judge Purganan, G.R. No.
148571, September 24, 2002)
However, in Rodriguez vs. RTC Mla., Branch 17, G.R. No.
157977, February 27, 2006, the Supreme Court reversed the above
ruling and held that bail may granted to a possible extraditee upon
clear and convincing showing : (1) that he will not a flight risk or a
danger to the community, and (2) that there exist special,
humanitarian and compelling circumstances.
X
1. State the collateral facts doctrine. Is the best evidence rule applicable thereto?
Ans:
No. Closely related to the best evidence rule is the rule that a document
or writing which is merely collateral to the issue involved in the case on
trial need not be produced. This is the collateral facts rule. Thus, where
the purpose of presenting a document is not to prove its contents, but
merely to give coherence to, or to make intelligible, the testimony of a
witness regarding a fact contemporaneous to the writing, the original of
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the document need not be presented. In this case, the contents of the
document are not sought to be proven, but are simply incidental to the
fact being testified to. Thus, the best evidence rule cannot apply. (Air
France v. Carrascoso, G.R. No. 21438, September 28, 1966, 18 SCRA
155)
2. Is a stranger to a contract bound by the Parol Evidence rule?
Ans:
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X
1. What action will the Court of Appeals take if in the review of capital
offenses
a) The Court of Appeals affirms the judgment of conviction?
b) The Court of Appeals reverses the judgment of conviction?
Ans: a) The Court of Appeals will render judgment but shall not enter it
and instead shall forward the records to the Supreme Court for its
final disposition.
b) The Court of Appeals shall acquit the Accused/dismiss the case.
2. As a general rule, the filing of a motion for reconsideration is mandatory
before a Petition for Certiorari under Rule 65 may be filed. What are the
exceptions?
Ans: Indeed, it is settled that the filing of a motion for reconsideration is a
prerequisite to the filing of a special civil action for certiorari. This is
to give the lower court the opportunity to correct itself. It is also the
rule that since an order denying a motion to dismiss is only
interlocutory, which is neither appealable until final judgment nor
could it generally be assailed on certiorari, the remedy of the
aggrieved party is to file an answer and interpose as defenses the
objections raised in his motion to dismiss.
However, the following have been recognized as exceptions to the
general rule:
a where the order is a patent nullity, as where the court a quo has
no jurisdiction;
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motion
for
g where the proceedings in the lower court are a nullity for lack of
due process;
h where the proceeding was ex parte or in which the petitioner
had no opportunity to object; and
i
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In the same case, the Court likewise rejected the contention that
under the Rules of Court only actions can be consolidated. The
Court held that the technical difference between an action and a
proceeding, which involve the same parties and subject matter,
becomes insignificant and consolidation becomes a logical
conclusion in order to avoid confusion and unnecessary expenses
with the multiplicity of suits.
In the instant case, the consolidation of Civil Case No. 53967 with
LRC Case No. R-3951 is more in consonance with the rationale
behind the consolidation of cases which is to promote a more
expeditious and less expensive resolution of the controversy than if
they were heard independently by separate branches of the trial
court. Hence, the technical difference between Civil Case No.
53967 and LRC Case No. R-3951 must be disregarded in order to
promote the ends of justice. (PSB vs. Sps. Maalac, Jr., G.R. No.
145441, April 26, 2005; Ynares-Santiago)
4. Explain the inherent power of the Court to amend and control its
processes and orders and cause modification of final and executory
decision to harmonize it with the facts.
Ans: The general rule is that it is the ministerial duty of the court to order
the execution of its final judgment. However, Rule 135, Section 5(g)
of the Rules of Court provides that the trial court may amend and
control its process and orders so as to make them conformable to
law and justice. It has the inherent power to control, in furtherance
of justice, the conduct of its ministerial offices, and of all other
persons in any manner connected with a case before it, in every
manner appertaining thereto. The inherent power of the court
carries with it the right to determine every question of fact and law
which may be involved in the execution. The court may stay or
suspend the execution of its judgment if warranted by the higher
interest of justice. It has the authority to cause a modification of the
decision when it becomes imperative in the higher interest of justice
or when supervening events warrant it. The court is also vested
with inherent power to stay the enforcement of its decision based
on antecedent facts which show fraud in its rendition or want of
jurisdiction of the trial court apparent on the record. In another
case, the Court held that an execution will ordinarily be stayed
pending the termination of the proceedings connected with the
principal case.
In this case, the RTC ruled that it did not amend its decision but
merely harmonized it with the December 27, 1996 Order of the
DAR Secretary and suspended its enforcement until after the said
order shall have been implemented.(Mejia vs. Gabayan, et. al.,
G.R. No. 149765, April 12, 2005; Callejo)
5. What is the basis for determining jurisdiction of the Court over action
involving title or possession of levels?
Ans: The assessed value, not the market value. MTC if the assessed
value is Php20,000.00 or less; RTC if the assessed value exceeds
Php20,000.00
6. May supplemental pleading introduce new and different causes of action?
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Ans: No. The parties may file supplemental pleadings only to supply
deficiencies in aid of an original pleading, but not to introduce new
and independent causes of action. In Leobrera v. Court of
Appeals, the Court ruled that when the cause of action stated in
the supplemental complaint is different from the causes of action
mentioned in the original complaint, the court should not admit the
supplemental complaint. However, a broad definition of causes of
action should be applied. (Planters Development Bank vs. LZK
Holdings and Development Corporation, G.R. No. 153777, April
15, 2005, Callejo)
X
1. Where may annulment of judgment of the Regional Trial Court be filed?
Ans: Court of Appeals. What are the grounds and when may it be filed
(requisites), see pages 290-291 of 1 st (green) Study Guide and
page 267 of 2nd (blue) Study Guide for the Bar.
2. When is certiorari available despite the existence of an appeal that
lapsed? (See pp. 291-292, 1st (green) Study Guide for 2003-2004
numerous decisions)
3. Explain the doctrine of judicial hierarchy of courts and its rationale. (See
pp. 238 et seq., 1st (green) Study Guide, May 6, 2006 Rex Edition)
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