REMEDIAL LAW
Last Minute Tips
CIVIL PROCEDURE
1. Distinguish amended pleading from supplemental pleading.
(1) As to the subject matter in amended pleadings, the facts already existing on the
date of the original pleading sought to be amended but were not pleaded due to inadvertence; in
supplemental pleadings, the facts occurred since the date of the pleading sought to be
supplemented.
(2) As to the form in amended pleading, the party must file a new copy of the entire
pleading incorporating the amendments which shall be indicated by appropriate marks; in
supplemental pleadings, the party need not file a new copy of the entire pleading since the it
would be an entirely new pleading.
(3) As to effects in amended pleading, the original pleading is replaced or superceded
by the amended pleading; in supplemental pleading, the original pleading stands and the
supplemental pleading is added to and forms part of the original pleading.
2. May a non-resident alien who cannot be found in the Philippines sue and be sued in
Philippine court?
He may sue. By filing his complaint in a Philippine court, a non-resident alien submits
voluntarily to its jurisdiction, and the said court acquires such jurisdiction over him even if, as a
matter of fact, the alien has never been able to enter the Philippines. (Dilweg vs. Philipps, 12
SCRA 243)
However, he may be sued in the Philippines only if the suit involves the personal status
of the plaintiff or the properties of the defendant found in the Philippines where the court may
acquire jurisdiction over the res, but not in any other kind of action since the Philippine court
cannot acquire jurisdiction over his person. (Rule 4, sec. 3 in relation to Rule 14, sec. 15)
3. Implementing a writ of execution of a money judgment against Talo, the sheriff levied
upon a property claimed to be owned by Pedro over the vigorous objections of the latter.
Unable to prevail upon the sheriff to desist, Pedro consults you as to what remedy, if any,
is available to protect his rights in the premises. As counsel, advise Pedro accordingly. If
more than one remedy is available, indicate if the same may be availed of successively or
alternatively and in what order.
Pedros remedies, which are cumulative, are as follows: (Rule 39)
a) He can ask for a SUMMARY HEARING before the court which authorized the
execution;
b) He can also proceed against the bond filed by A;
c) He can file an independent reinvindicatory action of another court;
d) He can file a 3rd party claim before the sheriff by filing an affidavit of title or
possession to the property.
19. What is the effect of partial payment (not fully paid) of an appellate courts docket
fee?
In Apex Mining, Inc. vs. CA, it was said that appeal is not deemed perfected if the
appellate courts docket fee is not fully paid.
Perfection of an appeal in the manner and within the period laid down by law is not
mandatory but also jurisdictional and that the failure to perfect an appeal as required by the
rules has the effect of defeating the right to appeal of a party and precluding the appellate court
from acquiring jurisdiction over the decision of the trial court.
20. What is the basis for determining the courts jurisdiction?
Jurisdiction is determined by allegation in the complaint. An action for annulment of the
title or reconveyance filed by defendants cannot defeat the jurisdiction of the MTC in the
ejectment case. The fact that the parties respective claims of possession or evidence of
ownership make ownership the principal issue in the case or qualify the action for reconveyance
instead of ejectment does not divest the first level court of jurisdiction for as long as the
allegation in the complaint show that it is an ejectment case. (De la Cruz vs. CA)
21. Does the jurisdiction of the RTC over the question of title to properties constitute
interference or review of the order of a co-equal court of justice?
The RTC has jurisdiction over an action to rescind a sale made upon prior authority of a
probate court. This does not constitute an interference or review of the order of a co-equal court
since the probate court has no jurisdiction over the question of title to subject properties. The
reason is that, the probate court has limited jurisdiction. (Molina vs. CA)
22. How is jurisdiction over the subject matter determined?
Jurisdiction over the subject matter of the action is determined by the allegations of the
complaint, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the
claims asserted therein. Such jurisdiction cannot be made to depend upon the defenses set up
in the answer or the motion to dismiss, for otherwise, the question of jurisdiction would almost
entirely depend upon the defendant.
23. In moving for the execution of judgment of the trial court, is there still a need to wait
for the records of the case to be remanded to the court of origin?
NO. All that the law requires is that the appeal be duly perfected and finally resolved
before execution may be applied for. That motion must be with notice to the adverse party with a
hearing to enable him to file an objection thereto and bring to the attention of the court matters
which may have transpired during the pendency of the appeal and which may have a bearing on
the execution sought to enforce the judgment. (bergonia vs. Gonzales Decano)
injunction
receivership
accounting
support
such other judgment to be immediately executory (Rule 39 Section 4)
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ISSUE PRECLUSION
-Precludes the re-litigation of a
particular fact or issue in another
action between the same parties
on a different cause of action
-Traditional terminology: collateral
estoppel; conclusiveness of
judgment
67. Facing a charge of Murder, Anthony filed a petition for bail. The petition was opposed
by the prosecution but after hearing, the court granted bail to Anthony. On the first
scheduled hearing on the merits, the prosecution manifested that it was not adducing
additional evidence and that it was resting its case. Anthony filed a demurrer to evidence
without leave of court but it was denied.
a. Did the court have the discretion to deny the demurrer to evidence?
b. If the answer to the preceding question is in the affirmative, can Anthony adduce
evidence in his defense after the denial of his demurrer of evidence?
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69. Tried for theft and acquitted for insufficiency of evidence, defendant was
subsequently booked for estafa for the same act. The trial court dismissed the second
proceedings holding that since both information have identical facts and they involved
the same person, there is double jeopardy the fiscal appealed. Decide with reason.
The accused may rightfully invoke his right to double jeopardy.
The requisites of double jeopardy are:
a.
b.
c.
d.
The accused, in the case at bar, having been acquitted of the original offense, may not
be charged again for the same offense.
70. Accused was prosecuted for estafa. In view of amicable settlement reached between
the parties wherein the defendant agreed to pay the amount misappropriated in
installments, the case was dismissed with the consent of the accused. When the accused
later failed to pay the balance of the amount to be paid, he was again prosecuted under a
new information. Accused pleaded double jeopardy. Decide with reason.
One of the requisites for double jeopardy is that the defendant was previously acquitted
or convicted, or the case dismissed or otherwise terminated without his express consent.
In the instant case, it was clear that the termination of the case through amicable
settlement was with the consent of the accused. Accordingly, he may not validly invoke double
jeopardy because of non-compliance with this requisite.
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71. For the provisional liberty of Pedro, Kumag deposited his own money as cash bond.
During the trial, without the knowledge or consent of Kumag, Pedro surreptitiously left
for abroad where he committed a crime, is detained and, consequently, could not be
produced in court. (a) Under the facts, is the cash bond subject to forfeiture? Reason.
YES, the cash bond is subject to forfeiture. However, the bondsman Kumag still has 30
days to produce the body of the accused from the date that he was notified to produce the
accused. If the bondsman fails to produce the accused within the said period, the cashbond
shall then be subject to confiscation. The order of confiscation shall be final and executory.
72. Petitioner was accused of estafa through falsification of two checks of the PNB. It
appeared that through his help and representations the alleged claimants were able to
obtain the release of the checks in question and the subsequent encashing of the same.
The appellate court found the petitioner guilty of the crime of estafa through falsification
by reckless imprudence. Could the petitioner appellant be legally found guilty of estafa
through falsification by reckless imprudence under an information charging with estafa
through falsification? Decide with reasons.
NO. Dolo is always a requisite of estafa and falsification. Intent and damage should
always be present. Since willful intent is required, there can be no estafa by reckless
imprudence.
73. During the cross-examination of state witness, it appeared that he had been
previously charged of illegal marriage. The defendant contends that the state could not
use said witness even though an order of discharge has been issued. Decide with
reasons.
An accused may be used as a state witness when the following requisites concur:
1.
2.
3.
4.
5.
The rules require a previous conviction of an offense involving moral turpitude. Since the
witness has been the subject of an order of discharge, he may be used as a witness by the
state.
74. What are the rights of the accused at the trial?
The accused has the following rights during trial:
a. right to counsel, preferably of his own choice, if he cannot secure one, he should be
provided with one;
b. right to be present and defend in person or by counsel;
c. right to be informed of the nature and cause of accusation against him;
d. right to confront and cross-examine witnesses against him face to face;
e. right to secure the compulsory processes to secure the attendance of witnwsses on
his behalf;
f. right to a speedy, impartial and public trial;
g. right to bail, when allowed;
h. right against self-incrimination;
i. right to be presumed innocent;
j. right to testify as witness in his own behalf;
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75. May a judge be excused from his duty to end the preliminary investigation as soon
as possible on the basis that the accused escaped or jumped bail?
The fact that the accused escaped will not excuse the judge from his duty to end the
preliminary investigation as soon as possible. When the clarificatory hearing was only for the
purpose of reexamining the testimony of the complaints witness, the presence of the accused
was not needed to conduct the hearing. Respondent judge should have continued with the
hearing if indeed he was convinced that it was necessary or he should have terminated the
whole investigation. To conclude the preliminary investigation, it is enough that the accused
was given an opportunity to rebut the evidence of the complainant by counter affidavits (Tuliao
vs. Ramos, 284 SCRA 378).
76. In an information filed with the RTC, R and S are charged as principal and accessory,
respectively, with robbery in an inhabited house. After both were arraigned and pleaded
not guilty, the prosecutor discovered that the house was uninhabited and that R and S
are habitual delinquents who, instead of being principal and accessory, are coconspirators. Accordingly, the prosecutor moved to amend the Information to allege
conspiracy in the commission of robbery in an uninhabited house and to add the
required allegations for habitual delinquency.
As Judge, would you allow the
amendments? Reason.
NO, I would not allow the amendments to take place being the judge. Considering the
fact that R and S are already arraigned and pleaded, amendment as such would no longer be
allowed and only as to matters of form during trial will be allowed by leave of court at the
discretion of the court and should only be done if such amendments is without prejudice to the
rights of the accused.
In a case an amendment seeking to allege conspiracy in the commission of the crime
charged was ruled to be substantial and therefore, impermissible after the accused had pleaded
to the charge. The amendment would thereby widen the battlefront to allow use by prosecution
of newly discovered evidence to the prejudice and disadvantage of the defense. It would be
violation of the right of the accused to be appraised of the charges and to avoid surprises on his
part that may lead to injustice.
77. Can a child of an accused be cited for contempt for refusing to obey a subpoena
issued by a court at the instance of the prosecution for him to take the witness stand and
testify against his accused father?
NO. Under the Rules on Evidence, no person may be compelled to testify against his
parents, other direct ascendants, children or other direct descendants (Section 25, Rule 130).
Thus, the child of the accused has the right either to disregard or obey the subpoena.
But he cannot be cited for contempt in case he disobeys a subpoena as this would render
nugatory the parental and filial privilege.
78. In a prosecution for adultery, the husband attempted to present evidence, to show
the adulterous act of the wife, a birth certificate showing that the childs father is a
person other than him. Is the birth certificate admissible in evidence?
NO. Because under the Family Code, the legitimacy of the child cannot be collaterally
attacked. It can only be impugned in a direct proceeding.
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81. The accused was charged with rape cases, bargained for lesser penalty when he
entered into a plea bargaining. He was convicted and the court sentenced him only to 10
years imprisonment for each rape case. Is the conviction valid?
The conviction was not valid on the ground that his plea was not the plea contemplated
and allowed by the rules. The only instance where a plea bargaining is allowed is when an
accused pleads guilty to a lesser offense.
It is the essence of a plea of guilty that the accused admits absolutely and
unconditionally his guilt and responsibility for the offense imputed to him. Hence, an accused is
not allowed to admit his guilt on the condition that a certain penalty will be meted unto him
subject to the condition that a certain penalty will be imposed on him. It is equivalent to a plea
of not guilty and would therefore require a full blown trial.
EVIDENCE
82. Bok, before giving his testimony, was allowed by the court to refresh his memory
through a memorandum wholly prepared by him at or about the time of the happening of
the event in dispute. After his testimony was given in court, his lawyer offered in
evidence said memorandum as affirmative intrinsic proof of the event in dispute.
Is the said memorandum admissible in evidence?
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83. What is the equiponderance of evidence rule? Give an example of its application.
When the scale shall stand upon an equipoise and there is nothing in the evidence
which shall incline it to one side or the other, the court will find for the defendant.
Under said principle, the plaintiff must rely on the strength of his evidence and not on the
weakness of defendants claim. Even if the evidence of the plaintiff may be stronger than that of
the defendant, there is no preponderance of evidence on his side if such evidence is insufficient
in itself to establish his cause of action.
Thus, in a case involving a boundary dispute between 2 municipalities, where neither
party was able to make out a case, and neither side could establish its cause of action and
prevail with the evidence it had, and they are thus no better off than before they proceeded to
litigate, the court can only leave them as they are and has no choice but to dismiss the
complaint/petition. (Municipality of Candijay, Bohol vs. CA)
Or, it can be said that even if a person has been defaulted, it does not follow that the
plaintiff would be entitled to an award if its evidence is not sufficient to prove its cause of action.,
83. What is meant by multiple admissibility of evidence?
It means that evidence is relevant and competent for two or more purposes. In People
vs. Animas, it was said that if evidence is relevant and competent for two purposes, such will
be received if it satisfies all the requirements prescribed by law in order that it may be
admissible for the purpose for which it is presented, even if it does not satisfy the other
requisites for its admissibility for other purposes.
84. Lyla sold her house and lot with right of repurchase to Zoilo the Great. Can he prove
it to be one of sale with mortgage?
YES. Even when a document appears on its face to be a sale with pacto de retro, the
owner of the property may prove that the contract is really a loan with mortgage by raising as an
issue the fact that the document does not express the true intent and agreement of the parties.
In this case, parol evidence then becomes competent and admissible to prove that the
instrument was in truth and in fact given merely as security for the payment of the loan,. And
upon proof of the truth that such allegations, the court will enforce the agreement of the parties
at the time of the execution of the contract. This principle is applicable even if the purported sale
on pacto de retro was registered in the name of the transferee and a new certificate of title was
issued in the name of the latter. (Olea vs. CA)
85. State the rules on the admissibility or inadmissibility of an offer to compromise.
To determine the admissibility or non-admissibility of an offer to compromise, the
circumstances of the case and the intent of the party making the offer should be considered.
Thus, if a party denied the existence of a debt but offers to pay the same for the purpose of
buying peace and avoiding litigation, the offer of settlement is inadmissible. If in the course
thereof, the party making the offer admits the existence of an indebtedness combined with a
proposal to settle the claim amicably, then, the admission is admissible to prove such
indebtedness. (Trans-Pacific Industrial Supplies vs. CA)
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Give your
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96. What are the qualifications of a Child Witness? Is the age essential in determining
the same?
A child may be a competent witness where he has sufficient capacity to understand the
solemnity of an oath and to comprehend the obligation it imposes, and where he has sufficient
intelligence to relate them correctly, although he is very young.
It has been the general rule that no precise minimum age can be fixed at which children
shall be excluded from testifying. The intelligence and not the age of a young child is the test of
its competency as a witness.
97. In a case of falsification of public documents, may the legal counsel of the accused
who notarized the questioned documents be a witness for the accused?
NO. As a general rule, when a lawyer is a witness for his client, he should leave the trial
of the case to the other counsel, except when the subject testimony of the lawyer is merely
formal matters, such as the attestation or custody or an instrument and the likes.
100. In a deed of sale, a piece of land subject of the sale is denominated as totaling 9
hectares. When it was surveyed it was found that it contained 17 hectares. Can the
vendee under the deed of sale invoke the parol evidence rule in support of his
opposition to the reception of evidence to prove the claim that the intention of the
vendor was to sell only 9 hectares?
NO. Because the area of the land as surveyed is twice as much as the area actually
sold, there is a latent ambiguity in the deed of sale, which should be explained by extrinsic
evidence as this is one of the exceptions to the parol evidence rule under Section 9, Rule 130.
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