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1992 BAR EXAMINATIONS

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I. In a suit to recover a sum of money, plaintiff filed his complaint with the Regional Trial Court instead of with the
Municipal Trial Court which has jurisdiction over the case because of the amount involved. The defendant did not file a
motion to dismiss.

Neither did the regional Trial Court dismiss the case on its own initiative. At the pre-trial hearing, defendant tried to have
the case settled. With the effective held of the presiding judge, he was able to forge with effective help of the presiding
judge, he was able to forget with the plaintiff a compromise agreement which stipulated that he would pay in twelve (12)
equal monthly installments starting the first day of the following month, each to become due without need of any demand.
Failure to pay any installment when due will render the entire amount enforceable by writ of execution. Judgment was
rendered on the basis of the compromise agreement and was then served on the parties.

Defendant failed to pay the first installment as it fell due. Plaintiff thereupon sought execution which was granted, and the
corresponding writ of execution was issued. Defendant filed in due from a motion to set aside the writ of execution upon
the contention that the court had no power to order the issuance of the writ of execution because it has no jurisdiction over
the nature of the action, an issue that can be raised at any stage of the case. The court granted the defendant's motion and
accordingly set aside the writ of execution.

Did the court act correctly? Why?

Suggested Answer:

Yes, the court acted correctly, because jurisdiction over the subject matter or nature of an action cannot be
conferred by agreement of the parties. Whenever it appears that the court has no jurisdiction over the subject
matter, it shall dismiss the action. (Sec. 2 Rule 9)

Another Acceptable Answer:

Inasmuch as the defendant did not file a motion to dismiss and the parties submitted a compromise agreement on
the basis of which judgment was rendered, the defendant is estoppel to raise the question of jurisdiction. (Tijam vs.
Sibonghanoy, 23 SCRA 29 and other cases.)

II. Alejo was stabbed in the abdomen. He immediately called for help and a policeman promptly approached him. he told
the policeman that he felt he would die from the serious wound inflicted on him by Danilo who has a grudge against him.
He was brought to a hospital for treatment where, on the same day, he was shot and killed by someone whose identity
could not be established by an eye-witness. Eventually, Danilo was charges in court for the death of Alejo. The
prosecution had to build its case on circumstantial evidence. At the ensuing trial, the policeman was presented to testify on
the declaration made to him by Alejo. The defense objected. Meeting the objection, the prosecution argued for the
admissibility of the evidence as a dying declaration (ante mortem statement) or a part of the res gestae, either of which,
when deemed competent evidence as an exception to the hearsay rule, would demonstrably be relevant to the ultimate fact
in use, the guild of Danilo for the death of Alejo. The defense countered by arguing that no facts relating to the stabbing
can be relevant to the shooting.

Is the contention of the prosecution with respect to relevancy and competency of evidence correct? Discuss fully.

Suggested answer:

No, the contention of the prosecution is not correct.

The statement of Alejo that it was Danilo who stabbed him is not admissible as a dying declaration, because it did
not concern the cause and surrounding circumstances of his death. Alejo did not die from the serious wound
inflicted on him. The cause of his death was the shot fired by an unknown person. Neither is the statement
admissible as part of the res gestae, because Danilo was charged with the death of Alejo and the cause of the death
was not the stabbing by Danilo. (Secs. 37 and 42 of Rule 130.)

III. Is a "motion to dismiss with counterclaim" sanctioned by the Rules of Court?

a) If your answer is Yes, state your reasons.

b) If your answer is No, give your reasons and state what the defendant should file in court to preserve his counterclaim
while maintaining the ground asserted in his motion to dismiss as an issue that should be the subject of a preliminary
hearing.

Suggested Answer:

No, because a counterclaim is contained in an answer and not in a motion to dismiss.

What the defendant should do is to plead the ground of his motion to dismiss (except improper venue) as an
affirmative defense in his answer, together with his counterclaim, and ask for a preliminary hearing on his
affirmative defense as if a motion to dismiss had been filed. (Sec. 5 of Rule 16)

IV. After termination of trial on the merits, and as the trial judge was about to finish his decision dismissing plaintiff's suit
for payment of a purported P369,000.00 loan, the defendant died. His counsel accordingly filed with the court a notice of
defendant's death.

Simultaneously, he moved that plaintiff's suit be dismissed, to be thereafter pursued as a money claim in the proceeding
for the settlement of defendant's estate. The judge denied the motion to dismiss on the ground that there is no need for any
further proceeding since he is going to dismiss the case anyway in a forthcoming decision. Three (3) days later, the
decision dismissing the case was promulgated.

Did the judge act correctly? Explain your answer.

Suggested answer:

No, because in an action for the recovery of money, if the defendant dies before a final judgment is rendered by the
Regional Trial Court, th action shall be dismissed and prosecuted as a money claim. (Sec. 21 of Rule 3) The fact
that the judge was ready to render a decision dismissing the case does not prevent the application of the rule.

Another Acceptable Answer:

Yes, the judge acted correctly in deciding the case, because the defendant died after termination of the trial on the
merits. To dismiss the case and require the parties to present their evidence all over again before the probate court
would cause unnecessary expense and delay.

The plaintiff may appeal from the decision and if the judgment is reversed, the judgment entered would then be
filed as proven money claim with the probate court.

V. a) plaintiff sued to recover an unpaid loan and was awarded P333,000.00 by the Regional Trial Court of Manila.
Defendant did not appeal within the period allowed by law. He died six days after the lapse of the period to appeal.
Forthwith, a petition for the settlement of his estate was properly filed with the Regional Trial Court of Pampanga where
an inventory of all his assets was filed and correspondingly approved. Thereafter, plaintiff filed a motion for execution
with the Manila court, contending therein that the motion was legally justified because the defendant died after the
judgment in the Manila court had become final. Resolve the motion and state your reasons.

Suggested Answer:

a) Motion for execution denied.

Although the defendant died after the judgment had become final and executory, it cannot be enforced by a writ of
execution against the estate of the deceased which is in custodia legis. The judgment should be filed as a proven
money claim with the Regional Trial Court of Pampanga. (Paredes v. Moya, 61 SCRA 527)

b) Under the same set of facts as (a) a writ of execution was issued by the Manila Court upon proper motion three
days after the lapse of the period to appeal. The corresponding levy on execution was duly effected on defendant's
parcel of land worth P666,000.00 a day before the defendant died. Would it be proper, on motion, to lift the levy on
defendant's property? State the reason for you answer:

Suggested Answer:
b) No, since the levy on execution was duly effected on defendant's parcel of land a day before the defendant died,
it was valid. The land may be sold for the satisfaction of he judgment and the surplus shall be accounted for by the
sheriff to the corresponding executor or administrator. (Sec. 7-C of Rule 39)

VI. At a pre-trial hearing in the Regional Trial Court of Which the plaintiff and the defendant, as well as their respective
attorneys of record were duly notified, only plaintiff's attorney appeared but without the requisite power of attorney
authorizing him to fully and effectively represent plaintiff at the pre-trial hearing. Because of the absence of the defendant
and his counsel, plaintiff's attorney moved in open court to have the defendant declared as in default.

Under the circumstances, what should the court do? Discuss fully?

Suggested Answer:

The court should deny the motion to have the defendant declared as in default and dismiss the action on the
ground that only the plaintiff's attorney appeared but without the requisite power of attorney to fully and
effectively represent plaintiff at the pre-trial hearing. (Home Insurance Company vs. U.S. Lines Co. 21 SCRA
865.)

Another Acceptable Answer: considering the fact that plaintiff's attorney appeared, the court should make the
dismissal without prejudice, or reset the pre-trial hearing with notice to the parties.

VII. An information was filed the proper court against Arturo charging him with theft of 300 blocks of industrial
aluminum worth P999,000.00 allegedly committed "on or about the period from January 1986 to December 23, 1991,"
Arturo filed a motion to quash the information on the ground that it was grossly insufficient and fatally defective since
there is such a great gap in the inclusive period of the alleged commission of the offense. Hi is, in effect, being deprived
of a reasonable opportunity to defend himself.

In resolving the motion to quash, what basic and ancillary rulings should the court make so that it can extend to
the accused optimum and adequate relief. Discuss fully.

Suggested Answer:

The court may grant the motion to quash on the ground that the allegation of the time of commission of the offense
is defective because the period from January 1986 to December 23, 1991, or almost six years, is too indefinite to
give the accused an opportunity to prepare his defense; or the court may order the amendment of the information
or the submission of a bill of particulars so as to allege the actual date or at least as near to it as a possible in order
not to surprise and substantially prejudice the accused.

VIII. a) If the accused is meted the penalty of reclusion perpetua by the Regional Trial Court, what should he do to have
his case reviewed by the proper appellate court?

Suggested Answer:

a) If the accused is meted the penalty of reclusion perpetua by the Regional Trial Court, he should file a notice of
appeal to the Supreme Court which has exclusive appellate jurisdiction, (Sec. 5 Art VIII, Constitution; Sec c(c) of
Rule 122.)

b) If the penalty of reclusion temporal is increased on appeal by the Court of Appeals to reclusion perpetua, what
should the accused do to have his case reviewed by the Supreme Court?

Suggested Answer:

b) The accused need not do anything because the Court of Appeals should render judgment imposing the penalty
of reclusion perpetua, refrain from entering judgment and certify the case to the Supreme Court for review. (Sec.
13 of Rule 124; People vs. Daniel, 86 SCRA 511). If the Court of Appeals does not certify the case to the Supreme
Court for review, the accused should invite the attention of the Court of Appeals to its duty to do so.

IX. The last will and testament of the deceased was presented in the proceeding to settle his estate, and in due course,
hearing was set for the probate of the will. Before evidence, thereon could be presented, the legal heirs of the deceased,
his widow and two surviving daughters, filed a manifestation that the probate of the will would no longer be necessary
since they had already agreed to divide the net estate differently in a accordance with a project of partition attached to
their manifestation. Consequently, they moved that the project of partition be approved and forthwith implemented
without probate of the decedent's will.
 Should the court grant the heirs motion and accordingly approve their project of partition without probate of the
will? Explain.

Suggested answer:

No, the court may not approve the project of partition without probate of the will, because no will shall pass either
real of personal estate unless it is proved and allowed in the proper court. (Sec. 1 of Rule 75) The law and public
policy require the probate of the will because otherwise, the right of a person to dispose of his property by will may
be rendered nugatory. (Ralla vs. Untalan, 172 SCRA 858.)

X. Pernito, also known in the community as Peregrino, filed a petition for change of name to Pedro. the name Peregrino
appeared in the body of the petition but not in the caption and the body of the petition were merely lifted verbatim, so that
as publish, the petition's caption still did not contain Peregrino as the petitioner's alias. The government lawyer filed a
motion to dismiss on the ground that, notwithstanding publication for the requisite number of times, the court did not
acquire jurisdiction over the petition because petitioner's alias (Peregrino) did not appear in the published caption. The
court denied the motion to dismiss with the ruling that there was substantial compliance with the law and the omission of
the alias in the caption may be deemed de minimis because the alias was clearly set forth in the petition itself.

Was the court correct in denying the motion to dismiss? Explain.

Suggested Answer:

No, the failure of the petitioner to include his alias (Peregrino) in the caption is jurisdictional defect and the
inclusion of the alias in the body of the petition does not cure said defect. The reason for the rule is that the
ordinary reader only glances fleetingly at the caption in a special proceeding and only if the caption strikes him
does he proceed to read the body of the petition, hence, he will probably not notice the other names or aliases of the
petitioner. (Gil co vs. Republic, 77 SCRA 65)

XI. By sheer coincidence, Atty. Lopez was on the same day, June 30, 1991, served with adverse decisions of the Court of
Appeals and the Regional Trial Court. In each case, he filed a motion for reconsideration simultaneously on July 10, 1991.
He received notices of the denial of his two motion for reconsideration on August 15, 1991.

If Atty. Lopez decides to appeal in each of the two cases.

(a) What mode of appeal should he pursue in each case?

Suggested answer:

1) From the Court of Appeals to Supreme Court. - appeal by certiorari under Rule 45.

2) From the Regional Trial Court to Court of Appeals- ordinary appeal on questions of fact and law.

3) From the Regional Trial Court to Supreme Court. appeal by certiorari on question of facts and law.

(b) How would he perfect each appeal?

Suggested Answer:

1) From the Court of Appeals to Supreme Court, by filing a petition for review on certiorari with the Supreme
Court and serving a copy on the Court of Appeals and the adverse party.

2) From the Regional Trial Court to Court of Appeals, by filing notice of appeal with Regional Trial Court and
serving a copy on the adverse party.

3) From Regional Trial Court to Supreme Court by filing a petition for review on certiorari with Supreme Court
and serving a copy on the lower court and the adverse party.

(c) Within what time should each appeal be perfected?

Suggested Answer:

1) From Court of Appeals to Supreme Court, on or before August 30, 1991, or fifteen days from notice of the
denial of the motion for reconsideration. (Sec. 1 of Rule 45)
2) From Regional Trial Court to Court of Appeals, on of before August 21, 1991, or the remaining period of 6 days
counted from notice of denial, since from June 30 to July 10, nine days had elapsed. (Delas Alas vs. Court of
Appeals, 83 SCRA 200.)

3) From Regional Trial Court to Supreme Court, on or before August 30, 1991, as in appeal from Court of Appeals
to Supreme Court. (RA 5440)

XII. A complaint was filed by the counsel for Superior Sales (an entity without a distinct juridical personality) against Mr.
Garcia on a money claim for goods delivered. Mr Garcia did not file a motion to dismiss. Eventually, trial was held and
his liability was established through several invoices, each of which uniformly showed on its face that mr. Tan is the
proprietor of Superior Sales. After Superior Sales had rested its case, Mr. Garcia filed a motion to dismiss on the ground
that, since there is actually no person property suing as plaintiff, no relief can be granted by the court. On the other hand,
the counsel for Superios Sales filed a motion to amend the complaint to make it conform to the evidence. that the real
party plaintiff is Mr. Tan. The court denied said motion on the ground that it was filed too late and instead, dismissed the
case.

Did the court act correctly? Explain.

Suggested Answer:

No, the court erred in denying the motion to amend the complaint and dismissing the case. The mistake in the
name of the plaintiff (which should have been Mr. Tan instead of Superios Sales which had no juridical
personality) was cured by the presentation of evidence (without objection) that Mr. Tan is the proprietor of
Superior Sales. Hence the amendment of the complaint to conform to the evidence was proper, and even if no
amendment was made, it would not affect the result of the trial on the issue of the real party in interest. (Sec. 5 of
Rule 10)

XIII. Ajax Power Corporation, a utility company, sued in the Regional Trial Court to enforce a supposed right of way over
a property owned by Simplicio. At the ensuing trial, Ajax presented its retired field auditor who testified that he know for
a fact that a certain sum of money was periodically paid to Simplicio for some time as consideration for a right of way
pursuant to a written contract. The original contract was not presented. Instead a purported copy, identified by the retired
filed auditor as such, was formally offered as part of his testimony, Rejected by the trial court, it was finally made the
subject of an offer of proof by Ajax.

Can Ajax validly claim that it had sufficiently met its burden of proving the existence of the contract establishing
its right of way? Explain.

Suggested Answer:

No, Ajax had not sufficiently met its burden or proving the existence of the written contract because, it had not laid
the basis for the admission of purported copy thereof as secondary evidence. Ajax should have first proven the
execution of the original document and its loss or destruction. (Sec. 5 of Rule 130.)

XIV. While Alfredo was abroad, a parcel of land belonging to him was intruded into and occupied by Rodrigo on January
1, 1991, when Alfredo returned on February 1, 1991, he immediately demanded that Rodrigo vacate the property. When
the demand went undeeded, Alfredo prepared a complaint alleging: that he is the owner of the property which Rodrigo has
intruded into and is occupying that the intrusion, done with strategy and stealth, has caused him actual damages of
P30,000.00 and he is praying the court to restore him to the possession of the property to award him damages, and to
further grant him such other reliefs as may be proper in the premises. The complaint was filed on March 1, 1991 with the
Regional Trial Court which eventually rendered a decision declaring Alfredo to the owner of the land, awarding him
damages of P5,000.00 and ordering that possession of the property be restored to him. Rodrigo appealed to the Court of
Appeals where he questioned the jurisdiction of the Regional Trial Court, pertinently contending that it was the Municipal
Trial Court which had original and exclusive jurisdiction over the case because (1) it was a forcible entry case, having
been filed within one year from the alleged intrusion. (2) the intrusion was allegedly done through strategy and stealth
which are hallmarks of a forcible entry case; and (3) the declaration of ownership was uncalled for since Alfredo did not
ask for it.

As counsel for Alfredo, what points will you raise and advance to rebut the arguments of Rodrigo and to justify
the jurisdiction, as well as the decision of the Regional Trial Court?

Suggested Answer:
As counsel for Alfredo, I would raise the point that the action was not one of forcible entry, but an accion
publiciana or a plenary action for recovery of possession de jure which is within the jurisdiction of the Regional
Trial Court. Moreover, the claim of actual damages in the amount of P30,000.00 is not within the jurisdiction of
the Municipal Trial Court.

If it were an action of forcible entry, the damages that could be claimed would be the reasonable compensation for
the use and occupation of the land and the amount thereof could exceed Twenty Thousand Pesos. But damages
other than the reasonable compensation for the use and occupation of the premises are not recoverable in an action
of forcible entry. (Reyes, vs. Court of Appeals, 38 SCRA 138.)

With respect to the declaration of ownership, I would argue that it was correct inasmuch as Rodrigo did not
question the ownership of Alfredo.

XV. In a civil case, plaintiff filed on April 19, 1991, an ex parte motion for execution of judgment. Upon receiving it, the
presiding judge examined the record and issued on the same day an order granting the motion since, as stated in his order,
"the judgment is now final and executory because the sheriff's return shows that the decision was properly served upon the
defendant on April 3, 1991, and no appeal was perfected on time. "The defendant then filed a motion to set aside the order
of execution, contending that the order is void on two grounds; (1) it violates the rule on three-day notice for motions; and
(2) the date of service, April 3, 1991, entered in the sheriff's return is a typographical error because service was actually
made on April 8, `1991, so that when the court ordered execution on April 19, 1991; the decision was not yet final and
executory.

At the hearing of the motion, the defendant cited several cases on the need to notify the adverse party before a contentious
motion can be resolved. He further argued that the sheriff's return, being hearsay, has to be confirmed by the sheriff on the
witness stand when an entry therein is assailed, because in that situation the proponent of the return has the burden of
proving its correctness. This cannot be done unless the sheriff's testifies in court and is correspondingly subjected to cross-
examination. The sheriff was not presented in court as witness.

Decide the motion to set aside the order of execution, with reasons.

Suggested Answer:

Motion to set aside order of execution denied.

A motion for execution of a final and executory judgment is not a contentious motion that requires a three-day
notice before resolution. Such a motion may be granted ex parte. (Far Eastern Surety and Insurance Co. vs.
Hernandez, 67 SCRA 256.

The sheriff's return is a public document made in the performance of a duty by a public officer and is prima facie
evidence of the facts stated therein. (Sec. 23 of Rule 132) Hence, there was no need for the sheriff to testify unless
defendant had presented had presented evidence contradicting the sheriff's return.