SUGGESTED ANSWERS TO

2017 BAR EXAMINATIONS

REMEDIAL LAW

November 26, 2017 8:00 A.M. - 12:00 N.N.

INSTRUCTIONS

1. This Questionnaire contains ten (10) pages. Check and make sure that your Questionnaire
has the correct number of pages. You may write on your Questionnaire as you answer the
questions.

Read each question very carefully and write your answers in your Bar Examination Notebook
in the same order of the questions. Answer the essay questions legibly, clearly, and
concisely. Write your answers only on the front. of every page of your Notebook. If the front
pages are not sufficient, continue at the back of the first page and so on. Start every number
on a separate page, but an answer to a sub-question under the same number may be written
continuously on the same page and on the immediately succeeding pages until the answer is
complete. Follow the numbering sequence of the Questionnaire in your answers.

2. Your answers should demonstrate your ability to analyze the facts, apply the pertinent laws
and jurisprudence, and arrive at sound and logical conclusions. Answers must fully explain
even if the questions do not expressly require explanations. A "Yes" or "No"
answer sans explanation or discussion will not be given full credit.

3. Marking of your Notebook with your name or other identifying signs or symbols extraneous
to the subject matter of the questions may be considered as cheating and may disqualify you.

Good luck!

YOU CAN BRING HOME THE QUESTIONNAIRE.

JUSTICE LUCAS P. BERSAMIN

Chairman
2017 Bar Examinations

I.

What trial court outside Metro Manila has exclusive original jurisdiction over the following
cases? Explain briefly your answers.

(a) An action filed on November 13, 2017 to recover the possession of an apartment unit
being occupied by the defendant by mere tolerance of the plaintiff, after the former
ignored the last demand to vacate that was duly served upon and received by him on
July 6, 2016. (2.5%)

Suggested answer: The instant case could not anymore be categorized as an

unlawful detainer case wherein the issue involves mere material or physical

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 possession. This is because the date of last demand to vacate has spanned more
than a year to the time when the action was filed on November 13, 2017. This means
that the dispossession has lasted for more than a year. Under Article 555 (4) of the
Civil Code, material possession is lost after a year but the real right to possession is
not lost until after ten years. Instead, the recovery of action should be filed as an
accion publiciana suit. The trial court which has exclusive original jurisdiction over an
accion publiciana suit could either be the Municipal Trial Court if the assessed value
of the apartment unit does not exceed P20,000.00 or, it could be the Regional Trial
Court if more than P20,000.00.

(b) A complaint in which the principal relief sought is the enforcement of a seller's
contractual right to repurchase a lot with an assessed value of ₱15,000.00. (2.5%)

Suggested answer No. 1: Applying the ultimate relief test, given that ultimately,
should the seller’s contractual right be upheld by the court, he would then be allowed to
repurchase a real property, then the action qualifies as “an action involving title to, or
possession over, real property, which must fall within the MTC given that the assessed value
of the land is only P15,000.00.

Suggested answer No. 2. The cause of action to enforce a seller’s contractual right to
repurchase is incapable of pecuniary estimation given that the issue is not the title over real
property, but rather, whether such right to repurchase may be exercised or not.

II.

Santa filed against Era in the RTC of Quezon City an action for specific performance praying
for the delivery of a parcel of land subject of their contract of sale. Unknown to the parties, the
case was inadvertently raffled to an RTC designated as a special commercial court. Later, the
RTC rendered judgment adverse to Era, who, upon realizing that the trial court was not
a regular RTC, approaches you and wants you to file a petition to have the judgment annulled
for lack of jurisdiction.

What advice would you give to Era? Explain your answer. (4%)

Suggested answer: I would advise Era that the RTC that was designated as a special
commercial court had jurisdiction notwithstanding its designation as such. This is because all
RTCs pursuant to BP 129, are imbued with jurisdiction over “actions which are incapable of
pecuniary estimation”. If ever, the RTC which was designated as a special commercial court,
should answer administratively for acting on the case even if it was designated as a
commercial court.

III.

Answer the following briefly:

(a) What elements should concur for circumstantial evidence to be sufficient for
conviction? (2%)-

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 Suggested answer: See Sec 4, Rule 133

(b) When is bail a matter of judicial discretion? (2%)

Suggested answer: See Sec. 5, rule 114

(c) Give at least two instances when a peace officer or a private person may make a
valid warrantless arrest. (2%)

Suggested answer: Suggested answer: See Sec 5, Rule 113

(d) What is a tender of excluded evidence? (2%)

Suggested answer: See Sec. 40, Rule 132

IV.

Give brief answers to the following:

(a) What is the doctrine of hierarchy of courts? (2%)

(b) What is the Harmless Error Rule in relation to appeals? (2%)

Suggested answer: An error by a trial court which is not serious to warrant a reversal
on appeal.

(c) When does a public prosecutor conduct an inquest instead of a preliminary

investigation? (2%)

Suggested answer: When accused is arrested without a warrant and the period of
detention might lapse unless the Information is filed with the court immediately after
the inquest proceedings. Otherwise, to require a preliminary investigation whereby a
ten-day period to file counter-affidavit and other counter-vailing evidence would be
afforded the respondent, the proceedings could well go beyond the legal detention
period.

V.

After working for 25 years in the Middle East, Evan returned to the Philippines to retire in
Manila, the place of his birth and childhood. Ten years before his retirement, he bought for
cash in his name a house and lot in Malate, Manila. Six months after his return, he learned
that his house and lot were the subject of foreclosure proceedings commenced by ABC Bank
on the basis of a promissory note and a deed of real estate mortgage he had allegedly
executed in favor of ABC Bank five years earlier.

Knowing that he was not in the country at the time the promissory note and deed of mortgage
were supposedly executed, Evan forthwith initiated a complaint in the RTC of Manila praying

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that the subject documents be declared null and void.

ABC Bank filed a motion to dismiss Evan's complaint on the ground of improper venue on the
basis of a stipulation in both documents designating Quezon City as the exclusive venue in
the event of litigation between the parties arising out of the loan and mortgage.

Should the motion to dismiss of ABC Bank be granted? Explain your answer. (5%)

Suggested answer: No, the motion to dismiss should not be granted. First, it is
clear that Evan was not here in the Philippines when the purported documents were
executed. This negates the presumption of validity of notarized documents because to be
sure, the loan documents were prepared without the participation of Evan. As such, as to him,
there is no contract or stipulation which circumscribes the venue to be only in Quezon City.
Second, even granting that the loan documents are genuine, still, the stipulation that
“exclusive venue shall be in quezon City” is not very categorical as to exclude all other
venues. Jurisprudence holds that for an exclusivity as to venue to be strictly applied, the
stipulation must state, in addition, that such exclusivity is “to the exclusion of all other courts”.

VI.

Hanna, a resident of Manila, filed a complaint for the partition of a large tract of land located
in Oriental Mindoro. She impleaded her two brothers John and Adrian as defendants but did
not implead Leica and Agatha, her two sisters who were permanent residents of Australia.

Arguing that there could be no final determination of the case without impleading all
indispensable parties, John and Adrian moved to dismiss the complaint.

Does the trial court have a reason to deny the motion? Explain your answer. (4%)

Suggested answer: Yes, the trial court must deny the motion to dismiss. Under the Rules on
Civil Procedure, the failure to implead a party is not a ground for dismissal. Instead, the Court
should just order the party concerned to implead the other indispensable parties.However,
once this order of inclusion had been issued, and the inclusion is not accomplished, this time,
the case could now be dismissible on the ground of failure to comply with the Order of the
Court in line with Rule 17 of the Rules.

VII.

Elise obtained a loan of ₱3 Million from Merchant Bank. Aside from executing a promissory
note in favor of Merchant Bank, she executed a deed of real estate mortgage over her house
and lot as security for her obligation. The loan fell due but remained unpaid; hence, Merchant
Bank filed an action against Elise to foreclose the real estate mortgage. A month after, and
while the foreclosure suit was pending, Merchant Bank also filed an action to recover the
principal sum of ₱3 Million against Elise based on the same promissory note previously
executed by the latter.

In opposing the motion of Elise to dismiss the second action on the ground of splitting of a
single cause of action, Merchant Bank argued that the ground relied upon by Elise was
devoid of any legal basis considering that the two actions were based on separate contracts,
namely, the contract of loan evidenced by the promissory note, and the deed of real estate

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mortgage.

Is there a splitting of a single cause of action? Explain your answer. (4%)

Suggested answer: Yes, this is a classic case of splitting a single cause of action because
there is only one breach of one loan obligation and for Merchant Bank to file two (2) separate
actions over one and same cause of action, results in a splitting.

VIII.

A.

Laura was the lessee of an apartment unit owned by Louie. When the lease expired, Laura
refused to vacate the property. Her refusal prompted Louie to file an action for unlawful
detainer against Laura who failed to answer the complaint within the reglementary period.

Louie then filed a motion to declare Laura in default. Should the motion be granted? Explain
your answer. (3%)

Suggested answer: No, the motion should not be granted. The unlawful detainer case which
filed by Louie is governed by the Rule 70 of the Rules of Court which is in tandem with the
Rules on Summary Procedure. Under these twin Rules, a motion to declare in default is a
prohibited pleading. Instead, the failure on Laura’s part to answer the complaint within the
reglementary period will warrant the filing of a motion for judgment on the basis of the
complaint and other available records.

B.

Agatha filed a complaint against Yana in the RTC in Makati City to collect ₱350,000.00, an
amount representing the unpaid balance on the price of the car Yana had bought from
Agatha. Realizing a jurisdictional error in filing the complaint in the RTC, Agatha filed a notice
of dismissal before she was served with the answer of Yana. The RTC issued an order
confirming the dismissal.

Three months later, Agatha filed another complaint against Yana based on the same cause of
action this time in the MeTC of Makati City. However, for reasons personal to her, Agatha
decided to have the complaint dismissed without prejudice by filing a notice of dismissal prior
to the service of the answer of Yana. Hence, the case was dismissed by the MeTC.

A month later, Agatha refiled the complaint against Yana in the same MeTC.

May Yana successfully invoke the Two-Dismissal Rule to bar Agatha's third complaint?
Explain your answer. (3%)

Suggested answer: No, Yana may not successfully invoke the Two-Notice Rule bar against
Agatha’s third complaint because the first complaint was filed with the RTC Makati City, which
had no jurisdiction over the claim of P350,000.00 , thus it was not a competent court in so far
as such claim is concerned. For the two-Notice rule bar to apply, the court must be a

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competent court.

IX.

Abraham filed a complaint for damages in the amount of ₱750,000.00 against Salvador in the
RTC in Quezon City for the latter's alleged breach of their contract of services. Salvador
promptly filed his answer, and included a counterclaim for ₱250,000.00 arising from the
allegedly baseless and malicious claims of Abraham that compelled him to litigate and to
engage the services of counsel, and thus caused him to suffer mental anguish.

Noting that the amount of the counterclaim was below the exclusive original jurisdiction of the
RTC, Abraham filed a motion to dismiss vis-8-vis the counterclaim on that ground.

Should the counterclaim of Salvador be dismissed? Explain your answer. (4%)

Suggested answer: See Sec. 7, rule 6 last paragraph. “In an original action before the RTC,
the counterclaim may be considered compulsory regardless of the amount”.

X.

On the basis of an alleged promissory note executed by Harold in favor of Ramon, the latter
filed a complaint for ₱950,000.00 against the former in the RTC of Davao City. In an
unverified answer, Harold specifically denied the genuineness of the promissory note. During
the trial, Harold sought to offer the testimonies of the following: (1) the testimony of an NBI
handwriting expert to prove the forgery of his signature; and (2) the testimony of a credible
witness to prove that if ever Harold had executed the note in favor of Ramon, the same was
not supported by a consideration.

May Ramon validly object to the proposed testimonies? Give a brief explanation of your
answer. (5%)

Suggested answer: (1) No. Because when Harold filed his answer, he failed to deny under
oath the genuineness and due execution of the promissory note which means that it is not a
forgery. Thus, it is deemed admitted as to its genuineness and due execution and an offer of
testimony that the signature is a forgery would violate this rule.

(2) The failure to deny the genuineness and due execution of the promissory note however,
only results to the admission of the genuineness and due execution thereof. The issue of
whether the note was issued for a valid consideration goes to the validity of the note which is
not yet admitted. Ramon may validly object to the testimony of the credible witness for being
violative of the Parol Evidence Rule given that the terms of the agreement have been
reduced in writing in the Promissory Note itself hence no other testimony is admissible other
than the promissory note itself.

XI.

A.

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Teddy filed against Buboy an action for rescission of a contract for the sale of a commercial
lot. After having been told by the wife of Buboy that her husband was out of town and would
not be back until after a couple of days, the sheriff requested the wife to just receive the
summons in behalf of her husband. The wife acceded to the request, received the summons
and a copy of the complaint, and signed for the same.

(a) Was there a valid service of summons upon Buboy? Explain your answer briefly.
(3%)

Suggested Answer: This is an instance of service of summons by substituted

service. Pursuant to Section 8, Rule 14, before substituted service of summons
can be availed of, “reasonable time” must be afforded the plaintiff or the sheriff to
serve the summons on the defendant “in person”. In the recent case of Carson
Realty v. Red Robin Security Agency (GR No. 225035, February 8, 2017), the
Supreme Court interpreted “reasonable time” to mean “several attempts” which in
turn, means “at least three (3) tries, preferably on at least two different dates. In
addition, the sheriff must cite why such efforts were unsuccessful”. Here, when
the Sheriff immediately served the summons on the wife of Buboy simply because
he was out of town, without any additional effort on the part of the sheriff to make
a second and third attempt at personal service, then this makes the substituted
service invalid.

(b) If Buboy files a motion to dismiss the complaint based on the twin grounds of lack
of jurisdiction over his person and prescription of the cause of action, may he be
deemed to have voluntarily submitted himself to the jurisdiction of the court?
Explain your answer briefly (3%).

Suggested Answer: No. Under the 1997 Rules of Civil Procedure and in line with
the doctrine in La Naval Drug, the inclusion in a motion to dismiss of affirmative
defenses (as distinguished from affirmative relief) other than lack of jurisdiction
over the person of the defendant, shall not be deemed as a voluntary
appearance. (Section 20, Rule 14 of the 1997 Rules of Civil Procedure).

B.

What is the mode of appeal applicable to the following cases, and what issues may be raised
before the reviewing court/tribunal?

(a) The decision or final order of the National Labor Relations Commission. (1.5%)

Suggested Answer: Special Civil Action pursuant to Rule 65 within 60 days from
receipt of the Decision appealed from or Order denying motion to dismiss if an
MR was filed.

(b) The judgment or final order of the RTC in the exercise of its appellate jurisdiction.
(1.5%)

Suggested Answer: Petition for Review pursuant to Rule 42 of the Rules of Court
within 15 days from receipt of the Decision appealed from or Order denying

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 motion to dismiss if an MR was filed.

XII.

A.

Judgment was rendered against defendant Jaypee in an action for unlawful detainer. The
judgment ordered Jaypee to vacate and to pay attorney's fees in favor of Bart, the plaintiff.

To prevent the immediate execution of the judgment, would you advise the posting of
a supersedeas bond as counsel for Jaypee? Explain your answer briefly? (2%).

Suggested Answer: No, I would not advise Jaypee to post a supersedeas bond
because there was no award for “rents, damages and costs” but only attorney’s
fees. Section 19, Rule 70 requires the posting of a supersedeas bond to stay
immediate execution only when there is an award for “rents, damages and costs”.

B.

A temporary restraining order (TRO) was issued on September 20, 2017 by the RTC against
defendant Jeff enjoining him from entering the land of Regan, the plaintiff.

On October 9, 2017, upon application of Regan, the trial court, allegedly in the interest of
justice, extended the TRO for another 20 days based on the same ground for which the TRO
was issued.

On October 15, 2017, Jeff entered the land subject of the TRO.

May Jeff be liable for contempt of court? Why? (4%)

Suggested Answer: No, Jeff cannot be held liable for contempt of court. The extension of
the TRO for another 20 days is a patently null and void order because the 20-day TRO under
the Rules is non-extendible. Jurisprudence is consistent that a void order has no binding
effect and it may be “slain at sight”.

XIII.

Police officers arrested Mr. Druggie in a buy-bust operation and confiscated from him 10
sachets of shabu and several marked genuine peso bills worth ₱5,000.00 used as the buy-

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bust money during the buy-bust operation.

At the trial of Mr. Druggie for violation of R.A. No. 9165 (Comprehensive Dangerous Drug Act
of 2002), the Prosecution offered in evidence, among others, photocopies of the confiscated
marked genuine peso bills. The photocopies were offered to prove that Mr. Druggie had
engaged at the time of his arrest in the illegal selling of dangerous drugs.

Invoking the Best Evidence Rule, Atty. Maya Bang, the defense counsel, objected to the
admissibility of the photocopies of the confiscated marked genuine peso bills.

Should the trial judge sustain the objection of the defense counsel? Briefly explain your
answer (5%)

Suggested answer: No, the Best Evidence Rule does not apply. The said rule applies only
when the “contents of the document are the subject of inquiry”. Here, the contents of the
marked money are not the subject of inquiry but rather the existence of the marked money.

XIV.

Immediately before he died of gunshot wounds to his chest, Venancio told the attending
physician, In a very feeble voice, that it was Arnulfo, his co-worker, who had shot him.
Venancio added that it was also Arnulfo who had shot Vicente, the man whose cadaver was
lying on the bed beside him.

In the prosecution of Arnulfo for the criminal killing of Venancio and Vicente, are all the
statements of Venancio admissible as dying declarations? Explain your answer. (5%)

Suggested answer: Yes, as to the circumstances leading to the death of Venancio, as it

appears that his gun shot wounds were serious hence he is presumed to have been in the
consciousness of his death when he made the dying declaration. No as to the circumstances
surrounding the death of Vicente because a dying declaration’s rationale and trustworthiness
is the consciousness of impending death by the victim that exempts such statement from the
hearsay rule. Thus it does not apply to the circumstances of death of another person.

XV.

In an attempt to discredit and impeach a Prosecution witness in a homicide case, the defense
counsel called to the stand a person who had been the boyhood friend and next-door
neighbor of the Prosecution witness for 30 years. One question that the defense counsel
asked of the impeaching witness was: "Can you tell this Honorable Court about the general
reputation of the prosecution witness in your community for aggressiveness and

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violent tendencies?"

Would you, as the trial prosecutor, interpose your objection to the question of the defense
counsel? Explain your answer. (4%)

Suggested answer: The question is not objectionable. What is objectionable under Section
14, Rule 132 is that “evidence of the good character of a witness is not admissible until such
character has been impeached”. Here, that is precisely what the defense counsel is trying to
do: to impeach the good character of the witness which is presumed.

XVI.

Engr. Magna Nakaw, the District Engineer of the DPWH in the Province of Walang Progreso,
and Mr. Pork Chop, a private contractor, were both charged in the Office of the Ombudsman
for violation of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) under a conspiracy
theory.

While the charges were undergoing investigation in the Office of the Ombudsman, Engr.
Magna Nakaw passed away. Mr. Pork Chop immediately filed a motion to terminate the
investigation and to dismiss the charges against him, arguing that because he was charged in
conspiracy with the deceased, there was no longer a conspiracy to speak of and,
consequently, any legal ground to hold him for trial had been extinguished.

Rule on the motion to terminate filed by Mr. Pork Chop, with brief reasons. (5%).

Suggested answer: The motion to terminate must be denied. In a conspiracy the act of one
is the act of all. Mr. Pork Chop is therefore liable not only for his acts but also for the acts of
Engr. Magna Nakaw. Furthermore, criminal liability is personal and not vicarious. Thus, the
death of one accused extinguishes only his own criminal liability but not those of his co-
accused.

XVII.

Juancho entered a plea of guilty when he was arraigned under an information for homicide.
To determine the penalty to be imposed, the trial court allowed Juancho to present evidence
proving any mitigating circumstance in his favor. Juancho was able to establish complete self-
defense.

Convinced by the evidence adduced by Juancho, the trial court rendered a verdict of
acquittal.

May the Prosecution assail the acquittal without infringing the constitutional guarantee
against double jeopardy in favor of Juancho? Explain your answer. (5%)

Suggested answer: Yes, double jeopardy had set in. The initial plea of guilt must be treated
as a mere improvident plea of guilt and must be withdrawn. (Sec. 1 [d], Rule 116, 2000 Rules
on Criminal Procedure).

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 XVIII.

Tomas was criminally charged with serious physical injuries allegedly committed against
Darvin. During the pendency of the criminal case, Darvin filed a separate civil action for
damages based on the injuries he had sustained.

Tomas filed a motion to dismiss the separate civil action on the ground of litis
pendentia, pointing out that when the criminal action was filed against him, the civil action to
recover the civil liability from the offense charged was also deemed instituted. He insisted that
the basis of the separate civil action was the very same act that gave rise to the criminal
action.

Rule on Tomas' motion to dismiss, with brief reasons. (5%)

Suggested answer: Independent Civil action may be filed at any time.

XIX.

Boy Maton, a neighborhood tough guy, was arrested by a police officer on suspicion that he
was keeping prohibited drugs in his clutch bag. When Boy Maton was searched immediately
after the arrest, the officer found and recovered 10 sachets of shabu neatly tucked in the
inner linings of the clutch bag. At the time of his arrest, Boy Maton was watching a basketball
game being played in the town plaza, and he was cheering for his favorite team. He was
subsequently charged with illegal possession of dangerous drugs, and he entered a plea
of not guilty when he was arraigned.

During the trial, Boy Maton moved for the dismissal of the information on the ground that the
facts revealed that he had been illegally arrested. He further moved for the suppression of the
evidence confiscated from him as being the consequence of the illegal arrest, hence, the fruit
of the poisonous tree.

The trial court, in denying the motions of Boy Maton, explained that at the time the motions
were filed Boy Maton had already waived the right to raise the issue of the legality of the
arrest. The trial court observed that, pursuant to the Rules of Court, Boy Maton, as the
accused, should have assailed the validity of the arrest before entering his plea to the
information. Hence, the trial court opined that any adverse consequence of the alleged illegal
arrest had also been equally waived.

Comment on the ruling of the trial court. (5%)

Suggested answer: Jurisprudence holds that “validity of arrest, or warrant of arrest itself or
irregularity, or absence of preliminary investigation must be raised before entering a plea.
(Torralba v. Sandiganbayan, 230 SCRA 33). However, as to the admissibility of the evidence
obtained from accused arising out of the illegal arrest, such may still be questioned by
interposing an objection to its admissibility as evidence at the time of offer or by filing a
motion to suppress such evidence being the “fruit of the poisonous tree”.

-NOTHING FOLLOWS-

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