ASSIGNMENT IN REMEDIAL LAW

1. What are the contents of a judicial affidavit?

(2016 Bar Examination- Remedial law).

Section 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or Filipino, accompanied by a translation in English or
Filipino, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the witness;

(b) The name and address of the lawyer who conducts or supervises the examination of the
witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully conscious that he
does so under oath, and that he may face criminal liability for false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:

(1) Show the circumstances under which the witness acquired the facts upon which he testifies;

(2) Elicit from him those facts which are relevant to the issues that the case presents; and

(3) Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an officer who is
authorized by law to administer the same.

2015 BAR EXAM QUESTIONS REMEDIAL LAW

2. Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against
siblings Scylla and Charybdis, co-owners of the property and cosignatories to the
mortgage deed. The siblings permanently reside in Athens, Greece. Circe tipped off Sheriff
Pluto that Scylla is on a balikbayan trip and is bil leted at the Century Plaza Hotel in
Pasay City. Sheriff Pluto went to the hotel and personally served Scylla the summons, but
the latter refused to receive summons for Charybdis as she was not authorized to do so.
Sheriff Pluto requested Scylla for the email address and fax number of Charybdis which
the latter readily gave. Sheriff Pluto, in his return of the summons, stated that "Summons
for Scylla was served personally as shown by her signature on the receiving copy of the
summons. Summons on Charybdis was served pursuant to the amendment of Rule 14 by
facsimile transmittal of the summons and complaint on defendant's fax number as
evidenced by transmission verification report automatically generated by the fax machine
indicating that it was received by the fax number to which it was sent on the date and
time indicated therein. "Circe, sixty (60) days after her receipt of Sheriff Pluto's return,
 filed a Motion to Declare Charybdis in default as Charybdis did not file any responsive
pleading.

a.) Should the court declare Charybdis in default? (2%) Scylla seasonably filed her answer
setting forth therein as a defense that Charybdis had paid the mortgage debt.

b.) On the premise that Charybdis was properly declared in default, what is the effect of
Scylla's answer to the complaint? (2%)

ANSWERS:

a) No, the court should not declare Charybdis in default. Under the Rules of Court, the amendment
of Rule 14 allowing service of summons by facsimile transmittal refers only to service of summons
upon a foreign private juridical entity under Section 12 of Rule 14, not to a non-resident defendant
under Section 15 of Rule 14. Service of summons by facsimile cannot be effected under Section
15 unless leave of court was obtained specifically permitting service by facsimile transmittal.
Here the defendant is not a foreign private juridical entity but a non-resident defendant and no
leave of court was obtained to serve summons by facsimile. Hence there was no valid service of
summons and thus the court could not declare Charybdis in default.

b) The effect of Scyllas answer to the complaint is that the court shall try the case against both
Scylla and Charybdis upon the answer filed by Scylla. Under Section 3(c) of Rule 9, when a
pleading asserting a claim states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall try the case against all upon
the answers thus filed and render judgment upon the evidence presented. Here there was a
common cause of action against Scylla and Charybdis since both were co-signatories to the
mortgage deed.

Hence the court should not render judgment by default against Charybdis but should proceed to
try the case upon the answer filed and the evidence presented by Scylla.

3. An information for murder was filed against Rapido. The RTC judge, after personally
evaluating the prosecutor's resolution, documents and parties' affidavits submitted by the
prosecutor, found probable cause and issued a warrant of arrest. Rapido's lawyer
examined the rollo of the case and found that it only contained the copy of the information,
the submissions of the prosecutor and a copy of the warrant of arrest. Immediately,
Rapido's counsel filed a motion to quash the arrest warrant for being void, citing as
grounds:

a.) The judge before issuing the warrant did not personally conduct a searching examination of
the prosecution witnesses in violation of his client's constitutionally-mandated rights;

b.) There was no prior order finding probable cause before the judge issued the arrest warrant.
May the warrant of arrest be quashed on the grounds cited by Rapido' s
counsel? State your reason for each ground. (4%)
ANSWER:

No, the warrant of arrest may not be quashed on the grounds cited by Rapidos counsel.

a) The Supreme Court has held in Soliven v. Makasiar, 167 SCRA 393 (1988) that Section 2 of
Art. III of the Constitution does not mandatorily require the judge to personally examine the
complainant and his witnesses. The judge may opt to personally evaluate the report and
supporting documents submitted by the regarding the existence of probable cause and on the
basis thereof issue a warrant of arrest.

b) There is no requirement of a prior order by the judge finding probable cause. The SC has
held that the judge may rely upon the resolution of the investigating prosecutor provided that he
personally evaluates the same and the affidavits and supporting documents, which he did.
(People v. Grey, 26 July 2010).

2014 BAR EXAMINATION REMEDIAL LAW

4. The Ombudsman, after conducting the requisite preliminary investigation, found probable
cause to charge Gov. Matigas in conspiracy with Carpintero, a private individual, for
violating Section 3(e) of Republic Act (RA) No. 3019 (Anti-Graft and Corrupt Practices Act,
as amended).

Before the information could be filed with the Sandiganbayan, Gov. Matigas was killed in
an ambush. This, notwithstanding, an information was filed against Gov. Matigas and
Carpintero.

At the Sandiganbayan, Carpintero through counsel, filed a Motion to Quash the

Information, on the ground of lack of jurisdiction of the Sandiganbayan, arguing that with
the death of Gov. Matigas, there is no public officer charged in the information.

Is the motion to quash legally tenable? (4%)

ANSWER:

No, the motion to quash is not legally tenable.

In a case involving similar facts, the Supreme Court held that the death of the public officer did
not mean that the allegation of conspiracy between the public officer and the private person can
no longer be proved or that their alleged conspiracy is already expunged. The only thing
extinguished by the death of the public officer was his criminal liability. His death did not
extinguish the crime nor did it remove the basis of the charge of conspiracy between him and the
private person. Hence the Sandiganbayan had jurisdiction over the offense charged. (People v.
Go, 25 March 2014, Peralta, J.)

5. Goodfeather Corporation, through its President, Al Pakino, filed with the Regional Trial
Court (RTC) a complaint for specific performance against Robert White. Instead of filing
an answer to the complaint, Robert White filed a motion to dismiss the complaint on the
ground of lack of the appropriate board resolution from the Board of Directors of
 Goodfeather Corporation to show the authority of Al Pakino to represent the corporation
and file the complaint in its behalf. The RTC granted the motion to dismiss and,
accordingly, it ordered the dismissal of the complaint. Al Pakino filed a motion for
reconsideration which the RTC denied. As nothing more could be done by Al Pakino before
the RTC, he filed an appeal before the Court of Appeals (CA). Robert White moved for
dismissal of the appeal on the ground that the same involved purely a question of law and
should have been filed with the Supreme Court (SC). However, Al Pakino claimed that the
appeal involved mixed questions of fact and law because there must be a factual
determination if, indeed, Al Pakino was duly authorized by Goodfeather Corporation to file
the complaint. Whose position is correct? Explain. (4%)

ANSWER:

Robert Whites position is correct. In a case involving similar facts, the Supreme Court
held that the issue of whether or not the trial court erred in dismissing the complaint on the
ground that the person who filed the complaint in behalf of the plaintiff corporation was not
authorized to do so is a legal issue, reviewable only by the Supreme Court in a petition for review
on certiorari under Rule 45. (Tamondong v. Court of Appeals, 26 November 2004).

(Note: An alternative answer would be that the appeal raises a factual question of
whether or not Al Pakino was indeed authorized to file the complaint in behalf of Goodfeather
Corporation. A reading of Tamondong would show that the appellant only raised a legal question
of whether it was proper to dismiss the complaint for failure to state a cause of action but did not
raise a factual issue as to whether the filer was in fact authorized by the corporation.).