1990 BAR EXAMINATION

1. Juan Santos, who is leasing an apartment unit in Antipolo, Rizal from Maria Cruz, a resident of Quezon City under a 5 year contract expiring on October 15, 1991, is in arrears in his rent for 3 months as of August 15, 1990. Maria Cruz, through counsel, sends a demand letter to Juan Santos. Suppose that Juan Santos, upon receipt of the letter of demand to pay and vacate the apartment unit, immediately pays the rental in arrears. He claims that he was so busy with his business that he neglected to pay his rent. May Maria Cruz still file an unlawful detainer case against Juan Santos? Discuss the reasons.

2. In the same controversy, after the demand letter was sent and Juan failed to comply therewith, the lawyer of Maria filed the ejectment case with the MTC of ANtipoloi without going through the conciliation process at the barangay level as required under PD 1508. The amount due is P1,500.00, hence, summary procedure was followed. May Juan file a motion to dismiss for noncompliance with the requirements of the said decree? State your reasons.

3. While the ejectment case was pending before the MTC, Juan religiously deposits all current rentals. In due time, the judge ordered Juan to pay all rentals until he vacates the premises as well as attorneys fees in the amount of P5,000.00. Maria moves for immediate execution on the ground that Juan did not deposit the attorneys fees of P5,000.00 and that he did not put a supersedeas bond for the award. Should the court grant immediate execution? Decide with reasons.

4. Juan appeals the decision against him to the RTC which affirmed in toto the lower courts decision. Juan then filed a motion for reconsideration. Maria moves to strike out the motion for reconsideration as it is a prohibited pleading under the Rules on Summary Procedure. Is this tenable? Decide with reasons.

5. Suppose that instead of filing a motion for reconsideration with the RTC, Juan filed a notice of appeal with the RTC stating that he is appealing to the Court of Appeals on the ground that the judgment is contrary to the law and the facts of the case. As lawyer for Maria, on what procedural ground will you oppose the appeal? Explain your answer. 6. On June 18, 1989, Mario Reyes executed a promissory note for P50,000.00 payable to Norma Alajar not later than June 18, 1990. Mario Reyes defaulted in the payment of the promissory note and a collection suit was filed against him before the RTC of Quezon City. After the complaint had been filed, Norma discovers that Mario petition for the issuance of an immigrant visa approved by the US Embassy, and that Mario had been disposing of all his properties. What remedy may be availed of by Norma Alajar to protect her interest? Explain your answer.

7. In his answer to the complaint, Mario alleged that he does not owe Norma any sum of money, and that he executed the promissory note only to enable Norma to show the same to her husband to explain the disappearance of the amount from the conjugal funds as Norma lost the same in the casino. The answer is not verified. At the trial, the lawyer of Norma objected to the testimony of Mario as to his accommodation story because, as the answer is not verified, he is deemed to have admitted the genuineness and due execution of the promissory note. Decide on the objection with reasons.

8. While the trial was ongoing, the lawyer of Mario discovered that there was improper service of summons, the summons having been sent by registered mail. He filed a motion to dismiss on the ground that the court had not acquired jurisdiction over the person of Mario. Should the said motion be granted? Explain your answer.

9. A. suppose the motion to dismiss in the preceding problem is granted, what is the remedy of Norma? B. if the motion to dismiss is denied, what is the recourse of Mario? Explain your answers.

10. In the same case, the trial court rendered judgment against Marioj which was received by defendants lawyer on September 3, 1990 and by plaintiffs lawyer on September 5, 1990. Mario filed his notice of appeal on September 18, 1990. On September 19, 1990, Norma filed a motion for execution pending appeal alleging that the appeal is dilatory and that Mario has no valid defenses; besides, Norma is already destitute and needs the money very badly. Mario opposed the motion for execution pending appeal on the ground that since his appeal had been perfected on September 18, 1990, the trial court can no longer act on the said motion. Decide with reasons.

11. A money judgment against Ernesto Golem in favor of Geraldine Bolos was rendered by the RTC of Binan, Laguna. The decision was received by Atty. Jose Maco, counsel for Golem, on March 4, 1990. Atty. MAco did not inform Golem about the judgment. On March 10, 1990, Atty. MAco migrated with his entire family to California, USA. Entry of judgment was made on March 20, 1990. Golem learned of the decision only on June 17, 1990 when the court sheriff arrived at his residence to levy on his properties. You are consulted by Golem on July 31, 1990. Assuming Golem has a meritorious case, what legal remedies may you avail of in order to protect his interests? Explain your answer.

12. Sammy Magdalo, executor of the estate of the deceased Rolando Aceron, submitted an inventory which includes a ten-hectare lot occupied by Carlos Domingo. Domingo opposed inclusion in the inventory of the property claiming ownership thereof. The probate court directed the executor and Domingo to present evidence of ownership. Domingo refused to participate in the proceedings, asserting lack of jurisdiction on the part of the probate court. The probate court nonetheless proceeded with the hearing, and rendered judgment declaring the deceased to be the owner of the questioned property. The probate court directed Domingo to vacate the premises. Is the said judgment correct? Explain your answer.

13. On February 21, 1990, Enrique Magno was stabbed on the right arm by Armando Reyes a the Balara, Quezon City. A complaint for physical injuries was filed against Reyes with the office of the City Prosecutor on February 28, 1990 as the injuries required 5 days of medical attendance. The information for slight physical injuries was filed on May 12, 1990 with the Quezon METC. Reyes moved to quash the information on the ground of prescription as it was filed on the 80th day , whereas the prescriptive period for slight physical injuries is 60days.

Should the motion to quash be granted? Decide with reasons. 14. During the custodial investigation of Jose Zafra, a murder suspect, he was informed of his right to be assisted by counsel, among other constitutional rights. Zafra requested the assistance of Atty. Donato Saldi who was present when Zafra gave his confession. When the case for murder was filed against him, ZAfra objected to the admission of his confession on the ground that he had inadequate assistance of counsel as Atty. SAldi did not advice him to remain silent during the investigation. Is the said objection tenable? Explain your answer.

15. Leo Cruz, Domingo Pablo and Manuel Galino are all charged with the crime of murder for the killing of Bernardo Samis. The Prosecutor moved for the discharge of Leo Cruz so that he may be utilized as a state witness. The court denied the motion to discharge because while it found that there was compliance with the requirements under the subparagraphs a, b, c and d, Section 6 of Rule 119, the court found noncompliance with subparagraph e, it appearing that Cruz was convicted of theft 3 months earlier by the MTC of Binan, Laguna, which is an offense invoking moral turpitude. The conviction is on appeal before the RTC of Calamba, Laguna. Is the trial court correct in denying the motion to discharge on this ground? Decide with reasons.

16. In the trial of a case on July 5, 1990, plaintiff offered in evidence a receipt dated July 7, 1959 issued by defendant company which was found in a cabinet for receipts of payment. It is without any blemish or alteration. As no witness testified on the execution and authenticity of the document, defendant moved for the exclusion of this receipt notwithstanding that it is a private writing. Should the said motion be granted? Explain your answers.

17. A. Does a court martial have jurisdiction to try and convict a soldier, a policeman and a civilian for alleged conspiracy in the crime of murder? Explain your answer. B. May a member of the military, who committed certain violations of the Articles of War, be tried by a court martial even after his discharge from the military service? Discuss with reasons.

18. After an information for homicide was filed by the city prosecutor in the RTC of Quezon City, the accused asked the prosecutor for a reinvestigation, which he granted. After the reinvestigation, the prosecutor filed a motion in court to withdraw the information having found no sufficient evidence to continue with the prosecution of the case. Considering that the prosecutor has the direct control and supervision over the prosecution of the case, are the steps taken by him proper under the circumstances? Decide with reasons.

19. Charged with murder, Jorge Dumatol filed a demurrer to the evidence after the prosecution rested on the ground that there is no evidence of the corpus delicti. Several witnesses testified that the accused shot the victim and threw the body into the ocean. Notwithstanding a diligent search, the body was not found. Evidence was introduced to the effect that the waters where the body was thrown is shark-infested. Is the demurrer tenable? Explain your answer.

20. After the First Division of the Supreme Court decided a case, the losing party sought a reconsideration from the Supreme Court en banc. Is the action taken by the said losing party proper? Explain your answer.

1991 BAR EXAMINATION

1. For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of the estate of Henry Datu, decides to file an action against the former for the recovery of possession of the leased premises located in Davao and for the payment of the accrued rentals in the total amount of P25,000.00. a. Is prior referral to the Lupon under the PD1508 necessary? b. What is the court of proper jurisdiction and venue of the intended action? c. Supposing that referral is necessary, but the complaint is filed without such referral, may it be dismissed on the ground of lack of jurisdiction? d. If the case is filed with the MTC in Cities(MTCC), is it covered by the Rule on Summary procedure? e. Supposing that A filed the complaint in the MTCC and X filed an Answer wherein he interposed a counterclaim for moral damages in the amount of P50,000.00 alleging that the complaint is unfounded and malicious, would the MTCC have jurisdiction over the counterclaim? If X did not set up the counterclaim, can he file a separate action to recover the damages? Can A file a counterclaim to the counterclaim?

2. Claudio Ty was charged with murder in an information filed with the RTC in Dumaguete. Through counsel, he filed an application for bail. Without conducting a hearing on said application and without giving the prosecution an opportunity to comment thereon, the judge granted bail to Ty after examining the complaint and the affidavit attached to the bail application which, in the evaluation of the judge, tend to show that the evidence of guilt is not strong. The prosecution moved for reconsideration of the order granting bail, contending that the procedure followed by the judge was irregular. a. Was the procedure followed by the judge in granting bail correct? b. If the judge denies the prosecutions motion for reconsideration, what remedy or remedies may the prosecution pursues if it wishes to assail the order before the appellate court? c. Supposing that Ty, after trial, was found guilty of murder and was sentenced to reclusion perpetua, and he appealed to the Supreme Court, is he entitled to bail during the pendency of such appeal? d. Supposing that Ty was convicted of the lesser offense of homicide and was sentenced to a penalty, the maximum of which is within the range of reclusion temporal, and he appealed t the Court of Appeals, is he entitled to bail during the pendency of such appeal? e. In relation to (D) above, the Court of Appeals did not affirm or modify the judgment. Instead, it expressed the opinion that the crime committed is murder and that the penalty

should be reclusion perpetua and accordingly certified the case to the Supreme Court for final determination. Did it act properly?

3. On January 1991, the Mayon Corp. filed a complaint for foreclosure of real estate mortgage against one of its sales agents, A, who was discovered to have incurred a shortage in his accounts. The mortgage was executed to guarantee faithful compliance with his duties and responsibilities as a sales agent. Impleaded in the complaint as co-defendants were As comortgagors, B and C. Acting on defendants motion to dismiss, the court dismissed the complaint in an Order dated 15 February 1991, a copy of which was received by Mayon Corp. on 18 February 1991. On 15 March 1991, and definitely within a reasonable period from receipt of the dismissal order, Mayon Corp. filed with the Supreme Court a special civil action for certiorari under Rule 65 of the Rules of Court alleging therein that the trial court acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in granting the motion to dismiss. a. Should the Supreme Court give due course to the petition? b. Distinguish certiorari as a special civil action under Rule 65 from certiorari as a mode of appeal under Rule 45 of the Rules of Court. c. May a special civil action for certiorari prosper in case of a denial of a motion to dismiss or a motion to quash? If so, in what instance/s?

4. An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All the passengers and crew perished. Twenty relatives of the fatalities filed for themselves and in behalf of the relatives of all those who perished in the mishap a class suit for damages totaling P5 million against the airline. The propriety of the class suit is questioned by the defendant. Resolve the issue. 5. A complaint filed for recovery of possession of real property also prayed for moral and exemplary damages amounts of which have been left to the courts discretion, and for actual damages the amount of which shall be proven at the trial. The docket fees for the action involving the real property have been paid, but not those for the related damages, the amounts of which have not been specified. a. 1. Did the court acquire jurisdiction over the action? 2. May the action be dismissed? b. is the rule on the payment of docket fees in ordinary civil actions the same as that for the claim of damages which are impliedly instituted in criminal cases?

6. Upon failure of X to pay the promissory note for P100,000.00 which he executed in favor of Y, the latter filed a complaint for a sum of money with application for the issuance of a writ of preliminary attachment alleging therein that X is about to dispose of his properties in fraud of his creditors. a. May the court issue the writ immediately upon the filing of a complaint and before service of summons? b. If service of summons is indispensable before the writ may be issued, is hearing on the application necessary? c. If the writ was issued and X filed a motion to quash the attachment, may the motion be granted ex-parte?

7. In an action for collection of P2 million, plaintiff bank alleged that defendant Oriental Textile Mills Inc., for valuable consideration, executed in favor of the bank a promissory note for the said amount. Defendant filed an answer to the complaint denying liability and alleging that Jesus Lim had no authority to negotiate and obtain a loan in its behalf nor to sign the promissory note. The answere was not verified. During the trial, defendant sought to introduce evidence to show that Jesus Lim was not authorized to enter into the transaction and to sign the promissory note for and in behalf of the defendant corporation. Plaintiff objected to such evidence, claiming that Lims authority had been admitted by defendants failure to verify the answer. a. The judge sustained the objection. Was the ruling correct? b. Supposing that no objection was made, trial proceeded and judgment was thereafter rendered in favor of the plaintiff. The latter filed a motion for execution pending appeal and forthwith filed a bond in a sum double the amount adjudged. May the court grant the motion solely on the ground that a bond was filed? 8. The defendant in a civil action received a note of the judgment of the MTC on 10 December. a. What is the last day for appealing? b. Can he validly move for extension of the period for filing a motion for reconsideration of the decision in view of the Christmas holidays? c. In this case, when will the appeal be deemed perfected?

9. Enforcing a writ of execution issued by the Pasig RTC in a civil action, the sheriff attached several places of machinery and equipment found in defendants place of business. Antonio Sadalay

filed with the sheriff an affidavit of third-party claim stating that the attached properties belong to him, not to the defendant. a. Can Sadalay intervene in the case and ask the Pasig RTC to resolve his third-party claim? b. If SAdalay decides to file a separate action in the RTC Makati to vindicate his claim, may he validly obtain a writ of injunction from the RTC Makati to enjoin the sale in execution of the levied property?

10. A filed a complaint against Y in the RTC of Argao, Cebu, for the payment of a promissory note in the sum of P50,000.00, for liquidated damages of P5,000.00 and attorneys fees of P5,000.00. after he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In the meantime. Ys widow filed with the above court a special proceeding for the settlement of the intestate estate of Y. the widow Z was appointed the administratrix of the estate. A filed in the civil case a motion to have Y substituted by the administratrix; the latter did not object. The court granted the motion. Trial on the merits was had. In due course, the court rendered a decision in favor of A. at the time it was rendered, the period to file claims in the intestate estate of Y had already lapsed. The administratrix, X, did not appeal from the decision; and after I became final, A moved for the execution of judgment. Z opposed the motion contending that the decision is void because the claim does not survive. The case should have been dismissed jupon the death of Y since his death, the court lost jurisdiction over the case. a. Rule on the issue. b. If the opposition is without merit, can the writ of execution be validly issued? c. If it cannot be issued, what is the remedy of A?

11. After reviewing the record of the preliminary investigation of a homicide case, the Secretary of Justice reversed the resolution of the Provincial Prosecutor and directed the latter to move for the dismissal of the information which had been filed in the RTC Pasig. The Provincial Prosecutor thus filed such motion. a. May the RTC judge refuse to order the dismissal of the criminal case and insist on the arraignment and trial of the accused? b. If the judge refuses to grant the Provincial Prosecutors motion to dismiss, may a special civil action for mandamus lie to compel the judge to grant the motion?

12. A. Adter the prosecution rested its case in a criminal action for rape, the accused filed a demurrer to evidence.

a. If the court denies said motion, may the accused adduce evidence in his defense? b. Is the rule on demurrer to evidence the same in civil actions? B. Magdalena Campos, a married woman and Santiago Mendoza, a married man, were indicted for adultery in an information filed by the Prosecutor of Bataan upon a sworn complaint filed by Mrs. Cynthia Mendoza, wife of Santiago. Both accused filed a motion to quash alleging that the trial court has not acquired jurisdiction over the case because no complaint has been filed by the husband of Magdalena Campos. They cite Section 5, Rule 110 of the Revised Rules of Court which provides, among others, that the crime of adultery shall not be prosecuted except upon a complaint filed by the offended spouse. How would you resolve the motion to quash?

13. During custodial investigation a the Western Police District, Mario Margal was informed of his constitutional right to remail silent and to have competent and independent counsel. He decided to waive his right to counsel and proceeded to make a statement admitting commission of a robbery. In the same statement, he implicated Antonio Carreon, his co-conspirator in the crime. a. Is Margals statement admissible in evidence against him? b. Is it admissible against Carreon as an exception to the res inter alios acta rule?

14. Felipe Arenas, an employee of ABC Corp., appeared to be involved in irregularities in the sale of the corporations products. He was asked to account for some undeclared sales amounting to P150,000.00 and, for that purpose, he was asked to appear on a specified date at an administrative investigation, to be conducted in accordance with the corporations collective bargaining agreement with the employees union. Two days before the scheduled investigation, Arenas gave to his superiors a signed handwritten note stating that he was willing to settle the irregularities allegedly charged against him in the amount of P150,000.00 subject to conditions which the corporation may impose. On the day of the investigation, Arenas did not show up and has failed to report for work since then. The corporation charged him with estafa. At the trial, the prosecution offered in evidence the aforesaid handwritten note as Exhibit A. The defense counsel objected to the admission of the note on the ground that the same was executed without the accused having been informed of his constitutional right to remain silent and to have counsel nor was he then assisted by counsel. If you were the judge, would you admit the evidence?

15. One evening, at 9 oclock, just as he reached the gate of his house in Apas, Cebu, and as soon as he alighted from his car to open the gate, Carlos was shot by Tito, who had been waiting behind a coconut tree nearby, with a .38 caliber revolver. Carlos was hit at the sternum of the second

rib. Hearing the shot, Marilyn, Carlos wife ran out toward the gate and found Carlos lying on the ground, with blood splattered on his chest. With her son, Y, she brought Carlos to the Cebu Doctors Hospital. In the car, although he was in a semi-conscious state, Carlos told Marilyn it was Tito who shot him. Carlos was brought to the emergency room. However, after 2 hours later, he expired. Tito was then charged with murder before the RTC Cebu. Marilyn was presented as witness for the prosecution, but her testimony regarding the above statement of Carlos was objected to under the hearsay rule. The court overruled the objection on the ground that the statement may be considered as a dying declaration. a. Is the ruling correct? b. What are the requisites to admissibility of a dying declaration? 16. Two hours after Lt. Yap of the 2nd Air Division, PAF, at the MActan Air Base in Lapulapu City, was shot with a .45 caliber pistor, his Division Commander, Brig. Gen. A, visited him at the Cebu Doctors Hospital in Cebu City where he was immediately brought for treatment of the gunshot wound. Lt. Yap told A that it was Jose Comen who shot him. Forthwith, A, who is a law graduate, took the initiative of taking down in long hand the statement of Lt. Yap. The latter narrated the events surrounding the incident and categorically stated it was Jose COmen who shot him. Lt. Yap signed the statement in the presence of A and the attending nurse. Ten days later, Lt. Yap died as a consequence of the gunshot wound. An information for murder was filed against Jose Comen. At the trial, the above statement of Lt. Yap marked as Exhibit X, was presented and identified by A who did not, however, testify that Lt. Yap read it, or that it was read to him before Yap signed it. A, nevertheless, testified that, as above stated, Lt. Yap told him that it was Jose Comen who shot him. The defense objected to the testimony of A and to the admission of Exhibit X on the ground that they are hearsay. The prosecution contended that both are exceptions to the hearsay rule as they are part of the res gestae. a. Is the prosecution correct? b. If the statement cannot be admitted as part of the res gestae, may it be considered as a dying declaration? c. If the testimony of A as to the revelation of Lt. Yap is not admissible for being hearsay, may it be admitted as an independently relevant statement?

17. Distinguish formal offer of evidence from offer of proof.

1990 BAR EXAMINATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 proper cause of action motion to dismiss writ of execution motion for reconsideration notice of appeal writ of preliminary attachment verification of answer motion to dismiss certiorari under Rule 45/ motion for reconsideration motion for execution pending appeal petition for relief from judgment probate proceeding prescriptive period rights during custodial investigation discharge of defendant to become a state witness neccessity of evidence by authenticity of private document question excluded motion to withdraw information by the prosecutor demurrer to evidence motion for reconsideration from Supreme Court en banc

1991 BAR EXAMINATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 jurisdiction and venue procedure in granting of bail Rule 65 versus Rule 45 class suit jurisdiction and venue writ of preliminary attachment manner of making allegations in pleadings period of filing writ of execution execution of judgment motion to dismiss demurrer to evidence admissibility of evidence admissibility of evidence admissibility of a dying declarion hearsay rule formal offer of evidence versus offer of proof