remedial law updates

7/29/2019 remedial law updates

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REMEDIAL LAW UPDATES

by:

Prof. Arturo M. de Castro

1. (a) Is a motion to dismiss permitted in a complaint for expropriation?

Ans: No. Significantly, the above Rule allowing a defendant in anexpropriation case to file a motion to dismiss in lieu of an answerwas amended by the 1997 Rules of Civil Procedure, which tookeffect on July 1, 1997. Section 3, Rule 67 now expressly mandatesthat any objection or defense to the taking of the property of a

defendant must be set forth in an answer. (MASIKIP vs. CITY OFPASIG, G.R. No. 136349. January 23, 2006)

(b) May the new rule be given retroactive effect to the prejudice of thePetitioner?

Ans: No. The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on October 31, after the 1997 Rules of CivilProcedure took effect, is of no moment. It is only fair that the Ruleat the time petitioner filed her motion to dismiss should govern. Thenew provision cannot be applied retroactively to her prejudice.

(Ibid)

2. What are the requirements of forum shopping certificate for a corporation?

Ans: Thus, only individuals vested with authority by a valid boardresolution may sign the certificate of non-forum shopping in behalfof a corporation. In addition, the Court has required that proof ofsaid authority must be attached. Failure to provide a certificate ofnon-forum shopping is sufficient ground to dismiss the petition.Likewise, the petition is subject to dismissal if a certification wassubmitted unaccompanied by proof of the signatory's authority.(PHILIPPINE AIRLINES, INC. vs. FLIGHT ATTENDANTS ANDSTEWARDS ASSOCIATION OF THE PHILIPPINES (FASAP),G.R. No. 143088. January 24, 2006)

3. Is expert testimony conclusive upon the Court?

Ans: No. The Court is not bound by expert evidence but is free to weighit like any other testimony.

Expert testimony no doubt constitutes evidence worthy ofmeriting consideration, although not exclusive on questionsof professional character. The courts of justice, however, arenot bound to submit their findings necessarily to suchtestimony; they are free to weigh them, and they can give orrefuse to give them any value as proof, or they can evencounterbalance such evidence with other elements ofconviction which may have been adduced during the trial.


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Suffice it to state, expert opinion evidence is to be considered orweighed by the court like any other testimony, in the light of theirown general knowledge and experience upon the subject of inquiry.The probative force of the testimony of an expert does not lie in amere statement of the theory or opinion of the expert, but rather in

the aid that he can render to the courts in showing the facts whichserve as a basis for his criterion and the reasons upon which thelogic of his conclusion is founded. (PEOPLE vs. MALEJANA, G.R.No. 145002. January 24, 2006)

Criminal Procedure

4. (a) Define probable cause.

Ans: Probable cause is the existence of such facts and circumstances as

would excite the belief in a reasonable mind that a crime has beencommitted and the respondent is probably guilty of the crime. (DEOCAMPO vs. SECRETARY OF JUSTICE, G.R. No. 147932.January 25, 2006)

(b) What is the nature and purpose of preliminary investigation?

Ans: Preliminary investigation is merely inquisitorial. It is not a trial of thecase on the merits. Its sole purpose is to determine whether acrime has been committed and whether the respondent is probablyguilty of the crime. It is not the occasion for the full and exhaustive

display of the parties' evidence. Hence, if the investigatingprosecutor is already satisfied that he can reasonably determinethe existence of probable cause based on the parties' evidencethus presented, he may terminate the proceedings and resolve thecase. (Ibid)`

(c) Is clarificatory hearing mandatory during preliminary investigation?

Ans: No. A clarificatory hearing is not indispensable during preliminaryinvestigation. Rather than being mandatory, a clarificatory hearingis optional on the part of the investigating officer as evidenced by

the use of the term "may" in Section 3(e) of Rule 112. Thisprovision states:

(e) If the investigating officer believes that there arematters to be clarified, he may set a hearing to propoundclarificatory questions to the parties or their witnesses,during which the parties shall be afforded an opportunity tobe present but without the right to examine or cross-examine. . . .

The use of the word "may" in a statute commonly denotes that it

is directory in nature. The term "may" is generally permissive onlyand operates to confer discretion. Under Section 3(e) of Rule 112, itis within the discretion of the investigation officer whether to set thecase for further hearings to clarify some matters. (Ibid)

Prof. Arturo M. de Castro 2 2/3/2013Remedial law updates


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Evidence

5. (a) Define the following:

(1) Burden of proof

Burden of proof is the duty of any party to present evidence toestablish his claim or defense by the amount of evidence requiredby law, which is preponderance of evidence in civil cases. Theparty, whether plaintiff or defendant, who asserts the affirmative ofthe issue has the burden of proof to obtain a favorable judgment.For the plaintiff, the burden of proof never parts. For the defendant,an affirmative defense is one which is not a denial of an essentialingredient in the plaintiff's cause of action, but one which, if

established, will be a good defense i.e. an "avoidance" of theclaim. (DBP POOL OF ACCREDITED INSURANCE CO. vs.RADIO MINDANAO NETWORK, INC., G.R. No. 147039. January27, 2006)

(2) Res gestae

Res gestae, as an exception to the hearsay rule, refers to thoseexclamations and statements made by either the participants,victims, or spectators to a crime immediately before, during, or afterthe commission of the crime, when the circumstances are such that

the statements were made as a spontaneous reaction or utteranceinspired by the excitement of the occasion and there was noopportunity for the declarant to deliberate and to fabricate a falsestatement. The rule in res gestae applies when the declaranthimself did not testify and provided that the testimony of the witnesswho heard the declarant complies with the following requisites: (1)that the principal act, the res gestae, be a startling occurrence; (2)the statements were made before the declarant had the time tocontrive or devise a falsehood; and (3) that the statements mustconcern the occurrence in question and its immediate attendingcircumstances. (Ibid)

(b) Distinguish between admissibility and weight of evidence.

Ans: Admissibility of evidence should not be equated with its weight andsufficiency. Admissibility of evidence depends on its relevance andcompetence, while the weight of evidence pertains to evidencealready admitted and its tendency to convince and persuade. Evenassuming that the declaration of the bystanders that it was themembers of the CPP/NPA who caused the fire may be admitted asevidence, it does not follow that such declarations are sufficientproof. These declarations should be calibrated vis--vis the other

evidence on record. And the trial court aptly noted that there is aneed for additional convincing proof, viz.:

The Court finds the foregoing to be insufficient toestablish that the cause of the fire was the intentionalburning of the radio facilities by the rebels or an act ofinsurrection, rebellion or usurped power. Evidence that



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persons who burned the radio facilities shouted "Mabuhayang NPA" does not furnish logical conclusion that they aremember [sic] of the NPA or that their act was an act ofrebellion or insurrection. Additional convincing proof need besubmitted. Defendants failed to discharge their responsibility

to present adequate proof that the loss was due to a riskexcluded.

While the documentary evidence presented by petitioner, i.e.,(1) the police blotter; (2) the certification from the Bacolod PoliceStation; and (3) the Fire Investigation Report may be consideredexceptions to the hearsay rule, being entries in official records,nevertheless, as noted by the CA, none of these documentscategorically stated that the perpetrators were members of theCPP/NPA. Rather, it was stated in the police blotter that: "a groupof persons accompanied by one (1) woman all believed to be

CPP/NPA . . . more or less 20 persons suspected to be CPP/NPA,"while the certification from the Bacolod Police station stated that ". .. some 20 or more armed men believed to be members of the NewPeople's Army NPA," and the fire investigation report concludedthat "(I)t is therefore believed by this Investigating Team that thecause of the fire is intentional, and the armed men suspected to bemembers of the CPP/NPA where (sic) the ones responsible . . . " Allthese documents show that indeed, the "suspected" executor of thefire were believed to be members of the CPP/NPA. But suspicionalone is not sufficient, preponderance of evidence being thequantum of proof. (Ibid)

6. (a) How may recognition or acknowledgment of filiation be made?

Ans: Under the new law, recognition may be compulsory or voluntary.

Recognition is compulsory in any of the following cases:

(1) in cases of rape, abduction or seduction, when theperiod of the offense coincides more or less with that of theconception;

(2) when the child is in continuous possession of statusof a child of the alleged father (or mother) 61 by the directacts of the latter or of his family;

(3) when the child was conceived during the time whenthe mother cohabited with the supposed father;

(4) when the child has in his favor any evidence or proofthat the defendant is his father.

On the other hand, voluntary recognition may be made in therecord of birth, a will, a statement before a court of record or in anyauthentic writing. (IN THE MATTER OF THE INTESTATEESTATES OF THE DECEASED JOSEFA DELGADO &GUILLERMO RUSTIA, et al. vs. HEIRS OF MARCIANA RUSTIAVDA. DE DAMIAN, G.R. No. 155733. January 27, 2006)

(b) What is the prescriptive period for compulsory recognition?



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Ans: Any (judicial) action for compulsory acknowledgment has a duallimitation: the lifetime of the child and the lifetime of the putativeparent. On the death of either, the action for compulsory recognitioncan no longer be filed. (Ibid)

(c) Define authentic writing.

Ans: An authentic writing, for purposes of voluntary recognition, isunderstood as a genuine or indubitable writing of the parent (in thiscase, Guillermo Rustia). This includes a public instrument or aprivate writing admitted by the father to be his. (Ibid)

(d) Does the report card or published obituary qualify as authentic writing?

Ans: No. Did intervenor's report card from the University of Santo Tomasand Josefa Delgado's obituary prepared by Guillermo Rustia qualify

as authentic writings under the new Civil Code? Unfortunately not.The report card of intervenor Guillerma did not bear the signature ofGuillermo Rustia. The fact that his name appears there asintervenor's parent/guardian holds no weight since he had noparticipation in its preparation. Similarly, while witnesses testifiedthat it was Guillermo Rustia himself who drafted the notice of deathof Josefa Delgado which was published in the SUNDAY TIMES onSeptember 10, 1972, that published obituary was not the authenticwriting contemplated by the law. What could have been admitted asan authentic writing was the original manuscript of the notice, in thehandwriting of Guillermo Rustia himself and signed by him, not the

newspaper clipping of the obituary. The failure to present theoriginal signed manuscript was fatal to intervenor's claim. (Ibid)

7. (a) What is the order of preference in the appointment of anAdministrator?

Ans: An administrator is a person appointed by the court to administerthe intestate estate of the decedent. Rule 78, Section 6 of theRules of Court prescribes an order of preference in theappointment of an administrator:

Sec. 6. When and to whom letters of administrationgranted. If no executor is named in the will, or theexecutor or executors are incompetent, refuse the trust, orfail to give a bond, or a person dies intestate, administrationshall be granted:

(a) To the surviving husband or wife, as the case may be,or next of kin, or both, in the discretion of the court, or tosuch person as such surviving husband or wife, or next ofkin, requests to have appointed, if competent and willing toserve;

(b) If such surviving husband or wife, as the case maybe, or next of kin, or the person selected by them, beincompetent or unwilling, or if the husband or widow or nextof kin, neglects for thirty (30) days after the death of theperson to apply for administration or to request that theadministration be granted to some other person, it may be



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granted to one or more of the principal creditors, ifcompetent and willing to serve;

(c) If there is no such creditor competent and willing toserve, it may be granted to such other person as the court

may select. (Ibid)

(b) What is the principal consideration in the appointment ofAdministrator? May joint Administrators be appointed?

Ans: In the appointment of an administrator, the principal considerationis the interest in the estate of the one to be appointed. The order ofpreference does not rule out the appointment of co-administrators,specially in cases where justice and equity demand that opposingparties or factions be represented in the management of theestates, a situation which obtains here.

It is in this light that we see fit to appoint joint administrators, inthe persons of Carlota Delgado vda. de de la Rosa and a nomineeof the nephews and nieces of Guillermo Rustia. They are the nextof kin of the deceased spouses Josefa Delgado and GuillermoRustia, respectively. (Ibid)

Evidence

8. (a) What determines the nature and jurisdiction over the action for

ejectment?

Ans: Well-settled is the rule that what determines the nature of the actionas well as the court which has jurisdiction over the case are theallegations in the complaint. In actions for forcible entry, the lawtells us that two allegations are mandatory for the municipal court toacquire jurisdiction: First, the plaintiff must allege prior physicalpossession of the property. Second, he must also allege that hewas deprived of his possession by any of the means provided for inSection 1, Rule 70 of the Rules of Court. To effect the ejectment ofan occupant or deforciant on the land, the complaint should

embody such a statement of facts as to bring the party clearlywithin the class of cases for which the statutes provide a remedy,as these proceedings are summary in nature. The complaint mustshow enough on its face to give the court jurisdiction without resortto parol evidence. (DOMALSIN vs. SPS. VALENCIANO, G.R. No.158687. January 25, 2006)

What determine the nature of the action as well as the courtwhich has jurisdiction over the case are the allegations in thecomplaint. In Hilario v. Court of Appeals (329 Phil. 202 [1996]),we ruled:

The settled rule is that a complaint for unlawful detaineris sufficient if it contains the allegation that the withholding ofpossession or the refusal to vacate is unlawful, withoutnecessarily employing the terminology of the law. Thecomplaint must aver facts showing that the inferior court has

jurisdiction to try the case, such as how defendant's



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possession started or continued. Thus, the allegation in acomplaint that the "plaintiff verbally asked the defendants toremove their houses on the lot of the former but the latterrefused and still refuse to do so without just and lawfulgrounds" was held to be more than sufficient compliance

with the jurisdictional requirements. (BALLESTEROS vs.ABION, G.R. No. 143361. February 9, 2006)

(b) Who may be a defendant in forcible entry and unlawful detainer cases?

Ans: An action of forcible entry and detainer may be maintained onlyagainst one in possession at the commencement of the action, andnot against one who does not in fact hold the land. Under Section1, Rule 70 of the Rules of Court, the action may be filed againstpersons unlawfully withholding or depriving possession or anyperson claiming under them. Considering that respondents are the

ones in present actual possession and are depriving petitioner ofthe possession of the land in question, it is proper that they be theones to be named defendants in the case. The fact that GloriaBanuca was supposedly the one who first committed forcible entrywhen she allegedly demolished the house of petitioner does notmake her the proper party to be sued because she is no longer inpossession or control of the land in controversy. (DOMALSIN vs.SPS. VALENCIANO, G.R. No. 158687. January 25, 2006)

(c) From when is the one year prescriptive period for forcible entrycounted?

Ans: As regards the timeliness of the filing of the case for forcible entry,we find that same was filed within the one-year prescriptive period.We have ruled that where forcible entry was made clandestinely,the one-year prescriptive period should be counted from the timethe person deprived of possession demanded that the deforciantdesist from such dispossession when the former learned thereof.

As alleged by petitioner in the Amended Complaint, he wasdeprived of his possession over the land by force, strategy andstealth. Considering that one of the means employed was stealthbecause the intrusion was done by respondents without hisknowledge and consent, the one-year period should be countedfrom the time he made the demand to respondents to vacate theland upon learning of such dispossession. The record shows thatupon being informed that respondents were constructing a buildingin the subject land sometime in the first week of August 1998,petitioner immediately protested and advised the former to stop; butto no avail. (Ibid)

While possession by tolerance is lawful, such possessionbecomes illegal from the moment a demand to vacate is made bythe owner and the possessor refuses to comply with such demand.

A person who occupies the land of another with the latter'stolerance or permission, without any contract between them, isnecessarily bound by an implied promise that he will vacate upondemand, failing which a summary action for ejectment is the properremedy against him. (BALLESTEROS vs. ABION, G.R. No.143361. February 9, 2006)



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Civil Procedure

9. (a) What is grave abuse of discretion as an equitable ground for thespecial civil action for certiorari?

Ans: We have previously ruled that grave abuse of discretion may arisewhen a lower court or tribunal violates or contravenes theConstitution, the law or existing jurisprudence. By grave abuse ofdiscretion is meant, such capricious and whimsical exercise of

judgment as is equivalent to lack of jurisdiction. The abuse ofdiscretion must be grave as where the power is exercised in anarbitrary or despotic manner by reason of passion or personalhostility and must be so patent and gross as to amount to anevasion of positive duty or to a virtual refusal to perform the dutyenjoined by or to act at all in contemplation of law. The word"capricious," usually used in tandem with the term "arbitrary,"

conveys the notion of willful and unreasoning action. Thus, whenseeking the corrective hand of certiorari, a clear showing of capriceand arbitrariness in the exercise of discretion is imperative.(PEREZ vs. COURT OF APPEALS, G.R. No. 162580. January27, 2006)

Grave abuse of discretion is capricious or whimsical exercise ofjudgment that is patent and gross as to amount to an evasion ofpositive duty or a virtual refusal to perform a duty enjoined by law.(RODRIGUEZ vs. PRESIDING JUDGE OF THE RTC OFMANILA-BRANCH 17, G.R. No. 157977. February 27, 2006)

(b) What are the requirements for Intervention?

Ans: The requirements for intervention are: [a] legal interest in the matterin litigation; and [b] consideration must be given as to whether theadjudication of the original parties may be delayed or prejudiced, orwhether the intervenor's rights may be protected in a separateproceeding or not.

Legal interest, which entitles a person to intervene, must be inthe matter in litigation and of such direct and immediate character

that the intervenor will either gain or lose by direct legal operationand effect of the judgment. Such interest must be actual, direct andmaterial, and not simply contingent and expectant. (PEREZ vs.COURT OF APPEALS, G.R. No. 162580. January 27, 2006)

10.State the rationale and justification for liberal construction of proceduralrules.

Ans: To begin with, the Court is fully aware that procedural rules are notto be belittled or simply disregarded for these prescribedprocedures insure an orderly and speedy administration of justice.

However, it is equally true that litigation is not merely a game oftechnicalities. The law and jurisprudence grant to courts theprerogative to relax compliance with procedural rules of even themost mandatory character, mindful of the duty to reconcile both theneed to put an end to litigation speedily and the parties' right to anopportunity to be heard.



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The Court has often stressed that rules of procedure are merelytools designed to facilitate the attainment of justice. They wereconceived and promulgated to effectively aid the court in thedispensation of justice. Courts are not slaves to or robots oftechnical rules, shorn of judicial discretion. In rendering justice,

courts have always been, as they ought to be, conscientiouslyguided by the norm that on the balance, technicalities take abackseat against substantive rights, and not the other way around.Thus, if the application of the Rules would tend to frustrate ratherthan promote justice, it is always within our power to suspend therules or except a particular case from its operation.

In numerous cases, the Court has allowed liberal construction of

the Rules of Court with respect to the rules on the manner andperiods for perfecting appeals, when to do so would serve thedemands of substantial justice and in the exercise of equity

jurisdiction of the Supreme Court. Indeed, laws and rules should beinterpreted and applied not in a vacuum or in isolated abstractionbut in light of surrounding circumstances and attendant facts inorder to afford justice to all. Thus, where a decision may be madeto rest on informed judgment rather than rigid rules, the equities ofthe case must be accorded their due weight because labordeterminations should not only be secundum rationem but alsosecundum caritatem. (GRAND PLACEMENT and GENERALSERVICES CORP. vs. COURT OF APPEALS, G.R. No. 142358.January 31, 2006)

11.What is the prescriptive period for reconveyance based on:

(a) Fraud: 4 years from discovery of the fraud if the purpose is to annula voidable contract.

(b) Implied on constructive trust: 10 years from registration of the title.Generally, an action for reconveyance of real property based onfraud prescribes in four years from the discovery of fraud; suchdiscovery is deemed to have taken place upon the issuance of thecertificate of title over the property. Registration of real property is aconstructive notice to all persons and, thus, the four-year periodshall be counted therefrom.

In the case at bar, respondents action which is forReconveyance and Cancellation of Title is based on an impliedtrust under Art. 1456 of the Civil Code since he averred in hiscomplaint that through fraud petitioners were able to obtain aCertificate of Title over the property. he does not seek theannulment of a viodable contract whereby Articles 1390 and 1391of the Civil Code would find application such that the cause ofaction would prescribe in four years.

An action for reconveyance based on implied or constructivetrust prescribes in ten years from the alleged fraudulent registrationor date of issuance of the certificate of title over the property.

The four-year prescriptive period relied upon by the petitionersapply only if the complaint seeks to annul a voidable contract under

Article 1390 of the Civil code. In such case, the four-yearprescriptive period under Article 1391 begins to run from the time of



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discovery of the mistake, violence, intimidation, undue influence orfraud. (Crisostomo v. Garcia, Jr., G.R. No. 164787, January 31,2006)

12. (a) What issues may be raised in a petition for review on certiorari?

Ans: Only legal issues.

(b) What are the exceptions?

Ans: The rule is that before this Court, only legal issues may be raised ina petition for review on certiorari. The reason is that this Court isnot a trier of facts, and is not to review and calibrate the evidenceon record. Moreover, the findings of facts of the trial court, asaffirmed on appeal by the Court of Appeals, are conclusive on thisCourt unless the case falls under any of the following exceptions:

(1) when the conclusion is a finding grounded entirely onspeculations, surmises and conjectures; (2) when the inferencemade is manifestly mistaken, absurd or impossible; (3) where thereis a grave abuse of discretion; (4) when the judgment is based on amisapprehension of facts; (5) when the findings of fact areconflicting; (6) when the Court of Appeals, in making its findingswent beyond the issues of the case and the same is contrary to theadmissions of both appellant and appellee; (7) when the findingsare contrary to those of the trial court; (8) when the findings of factare conclusions without citation of specific evidence on which they

are based; (9) when the facts set forth in the petition as well as inthe petitioners' main and reply briefs are not disputed by therespondents; and (10) when the findings of fact of the Court of

Appeals are premised on the supposed absence of evidence andcontradicted by the evidence on record. (BANK OF COMMERCEvs. MANALO, G.R. No. 158149. February 9, 2006)

Evidence

13.What may evidence of similar acts prove?

Ans: Habit, usage, pattern of conduct or intent of the parties.

Under Section 34, Rule 130 of the Revised Rules of Court,evidence that one did a certain thing at one time is not admissibleto prove that he did the same or similar thing at another time,although such evidence may be received to prove habit, usage,pattern of conduct or the intent of the parties.

Habit, custom, usage or pattern of conduct must be proved likeany other facts. Courts must contend with the caveat that, before

they admit evidence of usage, of habit or pattern of conduct, theoffering party must establish the degree of specificity and frequencyof uniform response that ensures more than a mere tendency to actin a given manner but rather, conduct that is semi-automatic innature. The offering party must allege and prove specific, repetitiveconduct that might constitute evidence of habit. The examplesoffered in evidence to prove habit, or pattern of evidence must be



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numerous enough to base on inference of systematic conduct.Mere similarity of contracts does not present the kind of sufficientlysimilar circumstances to outweigh the danger of prejudice andconfusion.

In determining whether the examples are numerous enough,and sufficiently regular, the key criteria are adequacy of samplingand uniformity of response. After all, habit means a course ofbehavior of a person regularly represented in like circumstances. Itis only when examples offered to establish pattern of conduct orhabit are numerous enough to lose an inference of systematicconduct that examples are admissible. The key criteria areadequacy of sampling and uniformity of response or ratio ofreaction to situations. (BANK OF COMMERCE vs. MANALO, G.R.No. 158149. February 9, 2006)

14.(a) When is duplicity of charges a ground to quash a criminal Information?

Ans: When the Information charges more than one offense.

Duplicity of charges simply means a single complaint orinformation charges more than one offense, as Section 13 of Rule110 of the 1985 Rules of Criminal Procedure clearly states:

Duplicity of offense. A complaint or information mustcharge but one offense, except only in those cases in whichexisting laws prescribe a single punishment for various

offenses.

In short, there is duplicity (or multiplicity) of charges when asingle Information charges more than one offense.

Under Section 3(e), Rule 117 of the 1985 Rules of CriminalProcedure, duplicity of offenses in a single information is a groundto quash the Information. The Rules prohibit the filing of suchInformation to avoid confusing the accused in preparing hisdefense. (LONEY vs. PEOPLE, G.R. No. 152644. February 10,2006)

(b) When is there double jeopardy?

Ans: When the act giving rise to the charges is punishable by anordinance and a national statute, not when a single act givesrise to 2 or more offenses, not the same offense.

As early as the start of the last century, this Court had ruled thata single act or incident might offend against two or more entirelydistinct and unrelated provisions of law thus justifying theprosecution of the accused for more than one offense. The onlylimit to this rule is the Constitutional prohibition that no person shallbe twice put in jeopardy of punishment for "the same offense." InPeople v. Doriquez (133 Phil. 295 [1968]), we held that two (ormore) offenses arising from the same act are not "the same"

. . . if one provision [of law] requires proof of an additionalfact or element which the other does not, . . . . Phrasedelsewise, where two different laws (or articles of the same



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code) define two crimes, prior jeopardy as to one of them isno obstacle to a prosecution of the other, although bothoffenses arise from the same facts, if each crime involvessome important act which is not an essential element of theother.

The right against double jeopardy applies when the act givingrise to the charges was punished by an ordinance and a nationalstatute, thus falling within the proscription against multipleprosecutions for the same act under the second sentence inSection 22, Article IV of the 1973 Constitution, now Section 21,

Article III of the 1987 Constitution. (Ibid)

15. What are the requisites for issuance of a Writ of Preliminary Injunction?

Ans: The requisites for preliminary injunctive relief are: (a) the invasion

of right sought to be protected is material and substantial; (b) theright of the complainant is clear and unmistakable; and (c) there isan urgent and paramount necessity for the writ to prevent seriousdamage.

As such, a writ of preliminary injunction may be issued onlyupon clear showing of an actual existing right to be protected duringthe pendency of the principal action. The twin requirements of avalid injunction are the existence of a right and its actual orthreatened violations. Thus, to be entitled to an injunctive writ, theright to be protected and the violation against that right must be

shown.(SPS. LIM vs. COURT OF APPEALS, G.R. No. 134617.

February 13, 2006)

16. When may a writ of mandamus be issued? Is it available to compeldismissal of a criminal case?

Ans: It is established that a writ of mandamus may be issued to controlthe exercise of discretion when, in the performance of duty, there isundue delay that can be characterized as a grave abuse ofdiscretion resulting in manifest injustice.

Mandamus is a proper recourse for citizens who seek to enforcea public right and to compel the performance of a public duty, mostespecially when the public right involved is mandated by theConstitution. Besides, it has long been established in this

jurisdiction that the writ of mandamus is available to the accused tocompel a dismissal of the case. (LUMANLAW vs. HON. PERALTAJR., G.R. No. 164953. February 13, 2006)

17. A ground raised in a motion to dismiss may not be the subject ofpreliminary hearing as special and affirmative defense in the answer,except when there are several defendants but only one filed a motionto dismiss.

Section 6, Rule 16 of the Rules of Court is explicit in stating that thedefendant may reiterate any of the grounds for dismissal provided underRule 16 of the Rules of Court as affirmative defenses but that apreliminary hearing may no longer be had thereon if a motion to dismisshad already been filed. The section, however, does not contemplate asituation, such as the one obtaining in this case, where there are several



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defendants but only one filed a motion to dismiss. (SPS. ABRAJANO vs.HEIRS OF SALAS, JR., G.R. No. 158895. February 16, 2006)

Extradition

18. (a) Is the prospective extraditee entitled to notice and hearing before theissuance of a Warrant of Arrest?

Ans: No, to avoid his flight from justice.

(b) May bail be granted to a possible extraditee?

Ans: Yes. We emphasize that bail may be granted to a possibleextraditee only upon a clear and convincing showing (1) that he willnot be a flight risk or a danger to the community, and (2) that there

exist special, humanitarian and compelling circumstances.(RODRIGUEZ vs. PRESIDING JUDGE OF THE RTC OFMANILA-BRANCH 17, G.R. No. 157977. February 27, 2006)

19.What is the doctrine of conclusiveness of judgment or preclusion of issuesor collateral estoppel?

Ans: Under this doctrine, which is also known as "preclusion of issues"or "collateral estoppel," issues actually and directly resolved in aformer suit cannot again be raised in any future case between thesame parties involving a different cause of action. (BORLONGAN

vs. BUENAVENTURA, G.R. No. 167234. February 27, 2006)

20.When may the Supreme Court resolve factual issues?

Ans: It is a settled rule that in the exercise of the Supreme Court's powerof review, the Court is not a trier of facts and does not normallyundertake the re-examination of the evidence presented by thecontending parties during the trial of the case considering that thefindings of facts of the CA are conclusive and binding on the Court.Jurisprudence has recognized several exceptions in which factualissues may be resolved by this Court, such as: (1) when the

findings are grounded entirely on speculation, surmises orconjectures; (2) when the inference made is manifestly mistaken,absurd or impossible; (3) when there is grave abuse of discretion;(4) when the judgment is based on a misapprehension of facts; (5)when the findings of facts are conflicting; (6) when in making itsfindings the Court of Appeals went beyond the issues of the case,or its findings are contrary to the admissions of both the appellantand the appellee; (7) when the findings are contrary to the trialcourt; (8) when the findings are conclusions without citation ofspecific evidence on which they are based; (9) when the facts setforth in the petition as well as in the petitioner's main and reply

briefs are not disputed by the respondent; (10) when the findings offact are premised on the supposed absence of evidence andcontradicted by the evidence on record; or (11) when the Court of

Appeals manifestly overlooked certain relevant facts not disputedby the parties, which, if properly considered, would justify a differentconclusion. None of these exceptions find application in the presentcase. (BPI vs. SARMIENTO, G.R. No. 146021. March 10, 2006)



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21.Is there identity of causes of action for declaration of nullity of marriage onthe ground of psychological incapacity under Art. 36 of the Family Codeand for custody of common children?

Ans: Yes. By petitioner's filing of the case for declaration of nullity ofmarriage before the Pasig RTC he automatically submitted theissue of the custody of Bianca as an incident thereof. After theappellate court subsequently dismissed the habeas corpus case,there was no need for petitioner to replead his prayer for custodyfor, as above-quoted provisions of the Family Code provide, thecustody issue in a declaration of nullity case is deemed pleaded.That is so gains light from Section 21 of the "Rule on Declaration Of

Absolute Nullity Of Void Marriages and Annulment of VoidableMarriages" which provides:

Sec. 21. Liquidation, partition and distribution,custody, support of common children and delivery of theirpresumptive legitimes. Upon entry of the judgmentgranting the petition, or, in case of appeal, upon receipt ofthe entry of judgment of the appellate court granting thepetition, the Family Court, on motion of either party, shallproceed with the liquidation, partition and distribution of theproperties of the spouses, including custody, support ofcommon children and delivery of their presumptive legitimespursuant to Articles 50 and 51 of the Family Code unlesssuch matters had been adjudicated in previous judicial

proceedings.

Since this immediately-quoted provision directs the court takingjurisdiction over a petition for declaration of nullity of marriage toresolve the custody of common children, by mere motion of eitherparty, it could only mean that the filing of a new action is notnecessary for the court to consider the issue of custody of a minor.

There is identity in the causes of action in Pasig and Pasaybecause there is identity in the facts and evidence essential to theresolution of the identical issue raised in both actions whether itwould serve the best interest of Bianca to be in the custody ofpetitioner rather than respondent or vice versa.

Since the ground invoked in the petition for declaration of nullityof marriage before the Pasig RTC is respondent's allegedpsychological incapacity to perform her essential marital obligationsas provided in Article 36 of the Family Code, the evidence tosupport this cause of action necessarily involves evidence ofrespondent's fitness to take custody of Bianca. Thus, the elementsof litis pendentia, to wit: a) identity of parties, or at least such asrepresenting the same interest in both actions; b) identity of rightsasserted and reliefs prayed for, the relief being founded on thesame facts; and c) the identity in the two cases should be such thatthe judgment that may be rendered in the pending case would,regardless of which party is successful, amount to res judicata inthe other, are present. (YU vs. YU, G.R. No. 164915. March 10,2006)



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22. What is litis pendencia? Is it present between a Petition for Writ ofPossession and action for annulment of foreclosure?

Ans: Litis pendentia refers to that situation wherein another action ispending between the same parties for the same cause of actions

and that the second action becomes unnecessary and vexatious.For litis pendentia to be invoked, the concurrence of the followingrequisites is necessary: (a) identity of parties or at least such asrepresent the same interest in both actions; (b) identity of rightsasserted and reliefs prayed for, the reliefs being founded on thesame facts; and, (c) the identity in the two cases should be suchthat the judgment that may be rendered in one would, regardless ofwhich party is successful, amount to res judicata in the other.

Applying the foregoing criteria in the instant case, litispendentia does not obtain in this case because of the absence of

the second and third requisites. The issuance of the writ ofpossession being a ministerial function, and summary in nature, itcannot be said to be a judgment on the merits, but simply anincident in the transfer of title. Hence, a separate case forannulment of mortgage and foreclosure sale cannot be barred bylitis pendentia orres judicata. Thus, insofar as Spec. Proc. No. 99-00988-D and Civil Case No. 99-03169-D pending before differentbranches of RTC Dagupan City are concerned, there is no litis

pendentia. (SPS. YU vs. PCIB, G.R. No. 147902. March 17, 2006)

23.May infra-structure project of the Government be restrained or enjoined?

Ans: Yes, when there are questions of law or possible violation of theConstitution.

In sum, what Presidential Decree No. 1818 aims to avert is theuntimely frustration of government infrastructure projects,particularly by provisional remedies, to the detriment of the greatergood by disrupting the pursuit of essential government projects orfrustrate the economic development effort of the nation.Presidential Decree No. 1818, however, was not meant to be ablanket prohibition so as to disregard the fundamental right tohealth, safety and well-being of a community guaranteed by thefundamental law of the land.

Presidential Decree No. 1818 was issued on 16 January 1981,prohibiting judges from issuing restraining orders againstgovernment infrastructure projects. In part, the decree says, "Nocourt in the Philippines shall have jurisdiction to issue anyrestraining order, preliminary injunction or preliminary order,preliminary mandatory injunction in any case, dispute orcontroversy involving an infrastructure project." Realizing theimportance of this decree, this Tribunal had issued differentcirculars to implement this particular law.

Presidential Decree No. 1818 prohibits courts from issuinginjunctions against government infrastructure projects. In Garcia v.Burgos (353 Phil. 740, 743 [1998]) , Presidential Decree No. 1818was held to prohibit courts from issuing an injunction against anyinfrastructure project in order not to disrupt or hamper the pursuit of



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essential government projects or frustrate the economicdevelopment effort of the nation.

While its sole provision would appear to encompass all casesinvolving the implementation of projects and contracts on

infrastructure, natural resource development and public utilities, thisrule, however, is not absolute as there are actually instances whenPresidential Decree No. 1818 should not find application. In a spateof cases, this Court declared that although Presidential Decree No.1818 prohibits any court from issuing injunctions in cases involvinginfrastructure projects, the prohibition extends only to the issuanceof injunctions or restraining orders against administrative acts incontroversies involving facts or the exercise of discretion intechnical cases. On issues clearly outside this dimension andinvolving questions of law, this Court declared that courts could notbe prevented from exercising their power to restrain or prohibit

administrative acts.

In the case at bar, petitioners sought the issuance of apreliminary injunction on the ground that the NAPOCOR Projectimpinged on their right to health as enshrined in Article II, Section15 of the 1987 Constitution, which provides:

Sec. 15. The State shall protect and promote theright to health of the people and instill consciousness amongthem.

To boot, petitioners, moreover, harp on respondent's failure toconduct prior consultation with them, as the community affected bythe project, in stark violation of Section 27 of the Local GovernmentCode which provides: "no project or program shall be implementedby government authorities unless the consultations mentioned arecomplied with, and prior approval of the Sanggunian concerned isobserved."

From the foregoing, whether there is a violation of petitioners'constitutionally protected right to health and whether respondentNAPOCOR had indeed violated the Local Government Codeprovision on prior consultation with the affected communities areveritable questions of law that invested the trial court with

jurisdiction to issue a TRO and subsequently, a preliminaryinjunction. As such, these questions of law divest the case from theprotective mantle of Presidential Decree No. 1818.

Moreover, the issuance by the trial court of a preliminaryinjunction finds legal support in Section 3 of Rule 58 of the Rules ofCourt which provides:

Sec. 3. Grounds for issuance of preliminaryinjunction. A preliminary injunction may be granted whenit is established:

(a) That the applicant is entitled to the relief demanded,and the whole or part of such relief consists in restraining thecommission or continuance of the act or acts complained of,or in requiring the performance of an act or acts, either for alimited period or perpetually;



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(b) That the commission, continuance or non-performance of the act or acts complained of during thelitigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing,threatening, or is attempting to do, or is procuring orsuffering to be done, some act or acts probably in violation ofthe rights of the applicant respecting the subject of the actionor proceeding, and tending to render the judgmentineffectual.

The rule on preliminary injunction merely requires that unlessrestrained, the act complained of will probably violate his rights andtend to render the judgment ineffectual.

Here, there is adequate evidence on record to justify theconclusion that the project of NAPOCOR probably imperils thehealth and safety of the petitioners so as to justify the issuance bythe trial court of a writ of preliminary injunction.

Petitioners adduced in evidence copies of studies linking theincidence of illnesses such as cancer and leukemia to exposure toelectromagnetic fields. The records bear out, to boot, a copy of abrochure of NAPOCOR regarding its Quezon Power Project fromwhich will be supplying NAPOCOR with the power which will passthrough the towers subject of the controversy. The NAPOCOR

brochure provides that because of the danger concomitant withhigh voltage power, Philippine laws mandate that the power linesshould be located within safe distances from residences. And theQuezon Power Project mandates an easement of 20 meters to theright and 20 meters to the left which falls short of the 12-metereasement that NAPOCOR was proposing to petitioners.

Likewise on record, are copies of letters of NAPOCORPresident Federico Puno to Rep. Arnulfo Fuentebella, Chairman ofthe House Committee on Energy, stating updates on thenegotiations being undertaken by the NAPOCOR and theDasmarias Village and Forbes Park residents. Also on file is thePrivilege Speech dated 10 May 1999 of Representative FrancisJoseph G. Escudero, who denounced the cavalier manner withwhich NAPOCOR ignored safety and consultation requirements inthe questioned project.

With a member of Congress denouncing the subject project ofNAPOCOR because of the very same health and safety ills thatpetitioners now hew to in this petition, and with documents onrecord to show that NAPOCOR made representations to petitionersthat they are looking into the possibility of relocating the project,added to the fact that there had been series of negotiations andmeetings between petitioners and NAPOCOR as well as relatedagencies, there is ample indicia to suggest to the mind of the courtthat the health concerns of the petitioners are, at the very least, farfrom imaginary.

Indeed, if there is no cause for concern, NAPOCOR would nothave been stirred to come up with options to address the woes of



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petitioners, nor would Congressman Escudero have fired awaythose strong words of censure, assailing what to CongressmanEscudero smacks of a "cavalier manner by which the NAPOCORhas responded to earnest pleas for a review of its practice ofinstalling massive pylons supporting high tension cables in densely

populated areas."

True, the issue of whether or not the transmission lines are safeis essentially evidentiary in nature, and pertains to the very meritsof the action below. In fact, petitioners recognize that theconclusiveness of their life, health and safety concerns still needsto be proved in the main case below and they are prepared to do soespecially in the light of some studies cited by respondent that yieldcontrary results in a disputed subject. Despite the parties'conflicting results of studies made on the issue, the possibility thatthe exposure to electromagnetic radiation causes cancer and other

disorders is still, indeed, within the realm of scientific scale ofprobability.

Equally important, we take judicial notice that the area alludedto as location of the NAPOCOR project is a fragile zone beingproximate to local earthquake faults, particularly the Marikina fault,among other zones. This is not to mention the risks of fallingstructures caused by killer tornadoes and super typhoons, thePhilippines, especially Central Luzon, being situated along thetyphoon belt.

Moreover, the Local Government Code, requires conferencewith the affected communities of a government project. NAPOCOR,palpably, made a shortcut to this requirement. In fact, thereappears a lack of exhaustive feasibility studies on NAPOCOR's partbefore making a go with the project on hand; otherwise, it shouldhave anticipated the legal labyrinth it is now caught in.

These are facts, which the trial court could not ignore, and formas sufficient basis to engender the cloud of doubt that theNAPOCOR project could, indeed, endanger the lives of thepetitioners. A preliminary injunction is likewise justified prior to afinal determination of the issues of whether or not NAPOCORignored safety and consultation requirements in the questionedproject. Indeed, the court could, nay should, grant the writ ofpreliminary injunction if the purpose of the other party is to shield awrongdoing. A ruling to the contrary would amount to an erosion of

judicial discretion.

After all, for a writ of preliminary injunction to be issued, theRules do not require that the act complained of be in violation of therights of the applicant. Indeed, what the Rules require is that the actcomplained of be probably in violation of the rights of the applicant.Under the Rules of Court, probability is enough basis for injunctionto issue as a provisional remedy, which is different from injunctionas a main action where one needs to establish absolute certaintyas basis for a final and permanent injunction.

Pending the final determination of the trial court on the maincase for damages, of whether or not the NAPOCOR Projectinfringes on petitioners' substantive right to health and pending



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determination of the question of whether there was non-observanceof the prior-consultation proviso under the Local Government Code,it is prudent to preserve the status quo. . (HERNANDEZ vs. NPC,G.R. No. 145328. March 23, 2006)

24.Is an action based on quasi-delict capable of pecuniary estimation?

Ans: Yes.Actions for damages based on quasi-delicts are primarily andeffectively actions for the recovery of a sum of money for thedamages suffered because of the defendant's alleged tortious acts.The damages claimed in such actions represent the monetaryequivalent of the injury caused to the plaintiff by the defendant,which are thus sought to be recovered by the plaintiff. This moneyclaim is the principal relief sought, and is not merely incidentalthereto or a consequence thereof. It bears to point out that thecomplaint filed by private respondent before the RTC actually bears

the caption "for DAMAGES."

In sum, actions for damages based on quasi-delicts are actionsthat are capable of pecuniary estimation. As such, they fall withinthe jurisdiction of either the RTC or the municipal courts, dependingon the amount of damages claimed. In this case, the amount ofdamages claimed is within the jurisdiction of the RTC, since it is theclaim for all kinds of damages that is the basis of determining the

jurisdiction of courts, whether the claims for damages arise from thesame or from different causes of action. (INIEGO vs. PURGANAN,G.R. No. 166876. March 24, 2006)

25.(a) Define Intervention.

Ans: Intervention is "a proceeding in a suit or action by which a thirdperson is permitted by the court to make himself a party, either

joining plaintiff in claiming what is sought by the complaint, oruniting with defendant in resisting the claims of plaintiff, ordemanding something adversely to both of them; the act orproceeding by which a third person becomes a party in a suitpending between others; the admission, by leave of court, of aperson not an original party to pending legal proceedings, by whichsuch person becomes a party thereto for the protection of someright of interest alleged by him to be affected by such proceedings."(ALFELOR vs. HALASAN, G.R. No. 165987. March 31, 2006)

(b) What are its requisites?

Ans: Under this Rule, intervention shall be allowed when a person has(1) a legal interest in the matter in litigation; (2) or in the success ofany of the parties; (3) or an interest against the parties; (4) or whenhe is so situated as to be adversely affected by a distribution ordisposition of property in the custody of the court or an officerthereof. (Ibid)

(c) May intervention in intestate proceedings be permitted even afterapproval of the compromise agreement and issuance of a writ ofexecution by the intestate court?

Ans: Yes. In Uy v. Court of Appeals (232 SCRA 579 [1994]), the Courtallowed petitioners (who claimed to be the surviving legal spouse



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and the legitimate child of the decedent) to intervene in theintestate proceedings even after the parties had already submitteda compromise agreement involving the properties of the decedent,upon which the intestate court had issued a writ of execution. Insetting aside the compromise agreement, the Court held that

petitioners were indispensable parties and that "in the interest ofadjudicating the whole controversy, petitioners' inclusion in theaction for partition, given the circumstances, not only is preferablebut rightly essential in the proper disposition of the case." (Ibid)

26.(a) Distinguish custody of the law from jurisdiction over the person?

Ans: Custody of the law is accomplished either by arrest or voluntarysurrender; while jurisdiction over the person of the accused isacquired upon his arrest or voluntary appearance. One can beunder the custody of the law but not yet subject to the jurisdiction of

the court over his person, such as when a person arrested by virtueof a warrant files a motion before arraignment to quash the warrant.On the other hand, one can be subject to the jurisdiction of thecourt over his person, and yet not be in the custody of the law, suchas when an accused escapes custody after his trial hascommenced.

Moreover, jurisdiction, once acquired, is not lost at the instanceof parties, as when an accused escapes from the custody of thelaw, but continues until the case is terminated. (ALVA vs. COURTOF APPEALS, G.R. No. 157331. April 12, 2006)

(b) Bail may not be granted before the arrest of the Accused.

Basic is the principle that that the right to bail can only be availed ofby a person who is in custody of the law or otherwise deprived of hisliberty and it would be premature, x x x, to file a petition for bail forsomeone whose freedom has yet to be curtailed. (Ibid)

27.(a) Declaration against interest.

Section 38 of Rule 130 of the Rules of Court provides: The declarationmade by a person deceased, or unable to testify, against the interest ofthe declarant, if the fact asserted in the declaration was at the time it wasmade so far contrary to the declarant's own interest, that a reasonableman in his position would not have made the declaration unless hebelieved it to be true, may be received in evidence against himself or hissuccessors-in-interest and against third persons. (PAREL vs.PRUDENCIO, G.R. No. 146556. April 19, 2006)

(b) Offer of Evidence.

Section 34 of Rule 132 of the Rules of Court provides: The court shallconsider no evidence which has not been formally offered. The purposefor which the evidence is offered must be specified.

A formal offer is necessary because it is the duty of a judge to rest hisfindings of facts and his judgment only and strictly upon the evidenceoffered by the parties to the suit. 21 It is a settled rule that the mere factthat a particular document is identified and marked as an exhibit does not



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mean that it has thereby already been offered as part of the evidence of aparty. (Ibid)

28.(a) What is the venue for personal actions such as a Complaint forpersonal damages?

Ans: A complaint for damages is a personal action. As such, it isgoverned by Section 2, Rule 4 of the Rules of Courts which reads:

All other actions may be commenced and tried where the plaintiff orany of the principal plaintiffs resides, or where the defendant or anyof the principal defendants resides, or in the case of a non-residentdefendant where he may be found, at the election of the plaintiff.

The choice of venue for personal actions cognizable by the RTCis given to plaintiff but not to plaintiff's caprice because the matter isregulated by the Rules of Court. The rule on venue, like other

procedural rules, is designed to insure a just and orderlyadministration of justice, or the impartial and evenhandeddetermination of every action and proceeding. The option of plaintiffin personal actions cognizable by the RTC is either the place wheredefendant resides or may be found, or the place where plaintiffresides. If plaintiff opts for the latter, he is limited to that place.(SALUDO, JR. vs. AMERICAN EXPRESS INTERNATIONAL,INC., G.R. No. 159507. April 19, 2006)

(b) What is residence for purposes of venue?

Ans:For purposes of venue, the less technical definition of residence isadopted. Thus, it is understood to mean as "the personal, actual orphysical habitation of a person, actual residence or place of abode.It signifies physical presence in a place and actual stay thereat. Inthis popular sense, the term means merely residence, that is,personal residence, not legal residence or domicile. Residencesimply requires bodily presence as an inhabitant in a given place,while domicile requires bodily presence in that place and also anintention to make it one's domicile. (Ibid)

(c) Define residence for purposes of election law?

Ans: The definition of "residence" for purposes of election law is morestringent in that it is equated with the term "domicile." Hence, forthe said purpose, the term "residence" imports "not only anintention to reside in a fixed place but also personal presence inthat place, coupled with conduct indicative of such intention." Whenparsed, therefore, the term "residence" requires two elements: (1)intention to reside in the particular place; and (2) personal orphysical presence in that place, coupled with conduct indicative ofsuch intention. As the Court elucidated, "the place where a partyactually or constructively has a permanent home, where he, nomatter where he may be found at any given time, eventually intendsto return and remain, i.e., his domicile, is that to which theConstitution refers when it speaks of residence for the purposes ofelection law." (Ibid)

29.(a) What are the requisites for summary judgment?



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Ans: For a summary judgment to be proper, the movant must establishtwo requisites: (a) there must be no genuine issue as to anymaterial fact, except for the amount of damages; and (b) the partypresenting the motion for summary judgment must be entitled to a

judgment as a matter of law. Where, on the basis of the pleadings

of a moving party, including documents appended thereto, nogenuine issue as to a material fact exists, the burden to produce agenuine issue shifts to the opposing party. If the opposing partyfails, the moving party is entitled to a summary judgment.

Where there are no disputed material facts, the determination ofwhether a party breached a contract is a question of law and isappropriate for summary judgment. When interpreting anambiguous contract with extrinsic evidence, summary judgment isproper so long as the extrinsic evidence presented to the courtsupports only one of the conflicting interpretations. Where

reasonable men could differ as to the contentions shown from theevidence, summary judgment might be denied. (RIVERA vs.SOLIDBANK CORPORATION, G.R. No. 163269. April 19, 2006;

ASIAN CONSTRUCTION AND DEVT. CORP. vs. PHILIPPINECOMMERCIAL INTERNATIONAL BANK, G.R. No. 153827. April25, 2006)

(b) What is a genuine issue?

Ans: A genuine issue is an issue of fact which requires the presentationof evidence as distinguished from an issue which is a sham,

fictitious, contrived or a false claim. The trial court can determine agenuine issue on the basis of the pleadings, admissions,documents, affidavits or counter-affidavits submitted by the parties.When the facts as pleaded appear uncontested or undisputed, thenthere is no real or genuine issue or question as to any fact andsummary judgment called for. On the other hand, where the factspleaded by the parties are disputed or contested, proceedings for asummary judgment cannot take the place of a trial. The evidenceon record must be viewed in light most favorable to the partyopposing the motion who must be given the benefit of all favorableinferences as can reasonably be drawn from the evidence.(RIVERA vs. SOLIDBANK CORPORATION, G.R. No. 163269.

April 19, 2006)

30. Concept ofHabeas Corpus.

Under Section 1, Rule 102 of the Rules of Court, the writ of habeascorpus extends to "all case of illegal confinement or detention by whichany person is deprived of his liberty, or by which the rightful custody of anyperson is withheld from the person entitled thereto." The remedy ofhabeas corpus has one objective: to inquire into the cause of detention ofa person, and if found illegal, the court orders the release of the detainee.If, however, the detention is proven lawful, then the habeas corpusproceedings terminate. (IN THE MATTER OF THE PETITION FORHABEAS CORPUS OF ENGR. ASHRAF KUNTING, G.R. No. 167193.

April 19, 2006)

31.(a) What are the kinds of action to recover possession of real property?



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Ans: Under existing law and jurisprudence, there are three kinds ofactions available to recover possession of real property: (a) accioninterdictal; (b) accion publiciana; and (c) accion reivindicatoria.

Accion interdictal comprises two distinct causes of action,

namely, forcible entry (detentacion) and unlawful detainer(desahuico). In forcible entry, one is deprived of physicalpossession of real property by means of force, intimidation,strategy, threats, or stealth whereas in unlawful detainer, oneillegally withholds possession after the expiration or termination ofhis right to hold possession under any contract, express or implied.The two are distinguished from each other in that in forcible entry,the possession of the defendant is illegal from the beginning, andthat the issue is which party has prior de facto possession while inunlawful detainer, possession of the defendant is originally legal butbecame illegal due to the expiration or termination of the right to

possess.

The jurisdiction of these two actions, which are summary innature, lies in the proper municipal trial court or metropolitan trialcourt. Both actions must be brought within one year from the dateof actual entry on the land, in case of forcible entry, and from thedate of last demand, in case of unlawful detainer. The issue in saidcases is the right to physical possession.

Accion publiciana is the plenary action to recover the right ofpossession which should be brought in the proper regional trial

court when dispossession has lasted for more than one year. It isan ordinary civil proceeding to determine the better right ofpossession of realty independently of title. In other words, if at thetime of the filing of the complaint more than one year had elapsedsince defendant had turned plaintiff out of possession ordefendant's possession had become illegal, the action will be, notone of the forcible entry or illegal detainer, but an accion publiciana.On the other hand, accion reivindicatoria is an action to recoverownership also brought in the proper regional trial court in anordinary civil proceeding. (SPS. VALDEZ, JR. vs. COURT OF

APPEALS, G.R. No. 132424. May 4, 2006)

(b) What determines jurisdiction in unlawful Detainer?

Ans: Indeed, to vest the court jurisdiction to effect the ejectment of anoccupant, it is necessary that the complaint should embody such astatement of facts as brings the party clearly within the class ofcases for which the statutes provide a remedy, as theseproceedings are summary in nature. The complaint must showenough on its face the court jurisdiction without resort to paroltestimony.

The jurisdictional facts must appear on the face of thecomplaint. When the complaint fails to aver facts constitutive offorcible entry or unlawful detainer, as where it does not state howentry was affected or how and when dispossession started, theremedy should either be an accion publiciana or an accionreivindicatoria in the proper regional trial court. (Ibid)

32.When may late appeals be entertained by the Court?



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Ans: There have been exceptions, however, in which the Courtdispensed with technical infirmities and gave due course to tardyappeals. In some of those instances, the presence of any justifyingcircumstance recognized by law such as fraud, accident,

mistake or excusable negligence properly vested the judge withdiscretion to approve or admit an appeal filed out of time. In otherinstances, lapsed appeals were allowed in order to servesubstantial justice, upon consideration of a) matters of life, liberty,honor or property; b) the existence of special or compellingcircumstances; c) the merits of the case; d) causes not entirelyattributable to the fault or negligence of the party that would befavored by the suspension of the rules; e) the failure to show thatthe review being sought was merely frivolous and dilatory; and f)the fact that the other party would not be unjustly prejudiced. (GOvs. YAMANE, G.R. No. 160762. May 3, 2006)

33.Has an association legal personality to represent its members for theinjury to its members?

Ans: Yes. On the first issue, the rule is that all actions must beprosecuted and defended by the real parties-in-interest and in thename of the real party-in-interest. The party whose legal right hasbeen invaded or infringed or who sustained an injury is the only onewho can maintain the action; or the party who stands to bebenefited or injured by the judgment in the suit. He must appear tobe the present owner of the right sought to be enforced. An

association has the legal personality to represent its members andthe outcome of the case will affect their vital interests. Thus, inExecutive Secretary v. Court of Appeals (429 SCRA 81, 96[2004]), the Court ruled that the modern view is that an associationhas standing to complain an injury to its members. This viewfocuses the legal identity of an association with that of its members.

An association has standing to file suit for its members despite itslack of direct interest if its members are affected by the action;similarly, an organization has standing to assert the concern of itsconstituents. (PUROK BAGONG SILANG ASSO., INC. vs.YUIPCO, G.R. No. 135092. May 4, 2006)

34.Must a counterclaim be accompanies by non-forum certification?

Ans: Yes, if the counterclaim is permissive and No, if it is compulsory. Acounterclaim is permissive if it may be set up separately from thecase (Suria vs. UST Hospital). However, in the recent case ofCarpio vs. Rural Bank of Santo Tomas, Inc, G.R. No. 153171,May 4, 2006handled by the author as counsel for the Petitioners,the Supreme Court did not make a distinction between permissiveand compulsory counterclaim in holding that:

Petitioners contend that the trial court and the Court ofAppeals gravely abused their discretion in not dismissingrespondent bank's counterclaim for lack of a certificationagainst forum shopping.

Petitioners' contention is utterly baseless. It bears stressingthat the Rule distinctly provides that the required certificationagainst forum shopping is intended to cover an "initiatory



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pleading," meaning an "incipient application of a partyasserting a claim for relief." Certainly, respondent bank's

Answer with Counterclaim is a responsive pleading, filedmerely to counter petitioners' complaint that initiates the civilaction. In other words, the rule requiring such certification

does not contemplate a defendant's/respondent's claim forrelief that is derived only from, or is necessarily connectedwith, the main action or complaint. In fact, upon failure by theplaintiff to comply with such requirement, Section 5, quotedabove, directs the "dismissal of the case without prejudice,"not the dismissal of respondent's counterclaim. (SPS.CARPIO vs. RURAL BANK OF STO. TOMAS (BATANGAS),INC., G.R. No. 153171. May 4, 2006)

35.What is the objective of the Katarungang Pambarangay rule?

Ans: The primordial objective of the Katarungang Pambarangay Rules,is to reduce the number of court litigations and prevent thedeterioration of the quality of justice which has been brought aboutby the indiscriminate filing of cases in the courts. To attain thisobjective, Section 412(a) of Republic Act No. 7160 requires theparties to undergo a conciliation process before the LuponChairman or the Pangkat as a precondition to filing a complaint incourt, thus:

SECTION 412. Conciliation. (a) Pre-condition toFiling of Complaint in Court. No complaint, petition,

action, or proceeding involving any matter within theauthority of the lupon shall be filed or instituted directly incourt or any other government office for adjudication, unlessthere has been a confrontation between the parties beforethe lupon chairman or the pangkat, and that no conciliationor settlement has been reached as certified by the luponsecretary or pangkat secretary as attested to by the lupon orpangkat chairman. (LUMBUAN vs. RONQUILLO, G.R. No.155713. May 5, 2006)

36.Decisions of the voluntary arbitrator under the Labor Code is appealableto:

(a) The NLRC(b) The Court of Appeals under Rule 43(c) The Court of Appeals under Rule 65(d) The Supreme Court

Ans: (b)

We find that the Court of Appeals did not err in holding thatpetitioner used a wrong remedy when it filed a special civil actionon certiorari under Rule 65 instead of an appeal under Rule 43 ofthe 1997 Rules of Civil Procedure. The Court held in LuzonDevelopment Bank v. Association of Luzon Development BankEmployees (249 SCRA 162 [1995]) that decisions of the voluntaryarbitrator under the Labor Code are appealable to the Court of

Appeals. In that case, the Court observed that the Labor Code wassilent as regards the appeals from the decisions of the voluntaryarbitrator, unlike those of the Labor Arbiter which may be appealed



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to the National Labor Relations Commission. The Court noted,however, that the voluntary arbitrator is a governmentinstrumentality within the contemplation of Section 9 of BatasPambansa Blg. (BP) 129 which provides for the appellate

jurisdiction of the Court of Appeals. The decisions of the voluntary

arbitrator are akin to those of the Regional Trial Court, and,therefore, should first be appealed to the Court of Appeals beforebeing elevated to this Court. (CENTRO ESCOLAR UNIVERSITYFACULTY AND ALLIED WORKERS UNION vs. COURT OF

APPEALS, G.R. No. 165486. May 31, 2006)

37.What are the grounds for annulment of a judgment or final order orresolution of the Regional Trial Court before the Court of Appeals?

Ans: The following:

(a) Extrinsic fraud or the judgment has been obtained by fraud;(b) Lack of jurisdiction of the judgment is void for lack of dueprocess.

38. Give instances ofextrinsic fraud.

(a) Among the instances of extrinsic or collateral fraud are: keeping theunsuccessful party away from court by a false promise of compromise,or purposely keeping him in ignorance of the suit; or where anattorney fraudulently pretends to represent a party, and connives at hisdefeat, or being regularly employed, corruptly sells out his clients

interest. (Aranda vs. Fortune Savings Bank & Loans Association,

490 SCRA 87,102 [June 8, 2006])

(b) There is extrinsic fraud within the meaning of Sec. 9, par. (2), of B.P.Blg. 129, where it is one the effect of which prevents a party fromhearing a trial, or real contest, or from presenting all of his case to thecourt, or where it operates upon matters, not pertaining to the

judgment itself, but to the manner in which it was procured so thatthere is not a fair submission of the controversy. In other words,extrinsic fraud refers to any fraudulent act of the prevailing party in thelitigation which is committed outside of the trial of the case, wherebythe defeated party has been prevented from exhibiting fully his side ofthe case by fraud or deception practiced on him by his opponent.Fraud is extrinsic where the unsuccessful party has been preventedfrom exhibiting fully his case, by fraud or deception practiced on him byhis opponent, as by keeping him away from court, a false promise of acompromise; or where the defendant never had any knowledge of thesuit, being kept in ignorance by the acts of the plaintiff; or where anattorney fraudulently or without authority connives at his defeat; theseand similar cases which show that there has never been a real contestin the trial or hearing of the case are reasons for which a new suit maybe sustained to set aside and annul the former judgment and open thecase for a new and fair hearing. (Ancheta vs. Guersey- Dalaygon,490 SCRA 140 [June 8, 2006])

39. What does Ex Abudanti Cautela mean? Is an Answerex abudanti Cautelaa valid Answer?

Ans: Ex abudanti cautelameans out of abundant caution or to be onthe safe side. An answerex abudanti cautela does not make their



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answer less of an answer. A cursory look at the answers filed bypetitioners shows that they contain their respective defenses. Ananswer is a pleading in which a defending party sets forth hisdefenses and the failure to file one within the time allowed,therefore, may cause a defending party to be declared in default.

Thus, petitioners, knowing fully well the effect of the non-filing of ananswer, filed their answers despite the pendency of their appealwith the Court of Appeals on the denial of their motion to dismiss.(Rosete vs. Lim, 490 SCRA 125 138-139 [June 8, 2006]).

40. (a) Who has the right against self-incrimination?

Ans: Any person who gives evidence whether voluntarily or undercompulsion of subpoena, in any civil, criminal or administrativeproceeding.

(b) When may the right be invoked?

Ans: Only when the specific question, incriminatory in character, isactually put to the witness.

(c) Is the right against self-incrimination the same as the right not to becompelled to be a witness against himself?

Ans: No. The right against self-incrimination secures to a witness,whether a party or not, the right to refuse to answer any particularincriminatory question, ie, on the answer to which has a tendency

to incriminate him for some crime.

Only the Accused may refuse to be a witness against himself inthe criminal case. He may refuse to take the witness stand in civilor administrative cases that partake of the nature of a criminalproceeding. As long as the suit is criminal in nature, the partythereto can altogether decline to take the witness stand. It is not thecharacter of the suit involved but the nature of the proceedings thatcontrols. (Rosete vs. Lim, June 8, 2006)

41. (a) What are the exceptions to the general rule that a motion forreconsideration is needed before a petition for certiorari under Rule 65 canbe resorted to?

Ans: These exceptions are:

1. Where the order is a patent nullity, as where the Court a quohas no jurisdiction;

2. Where the questions raised in the certiorari proceeding havebeen duly raised and passed upon in the lower court, or are thesame as those raised and passed upon in the lower court;

3. Where there is an urgent necessity for the resolution of thequestion and any further delay would prejudice the interests ofthe Government or of the petitioner or the subject matter of theaction is perishable;

4. Where, under the circumstances, a motion for reconsideration would be useless. (p. 164 Vol. 490 SCRA)



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(b) What question may be entertained in a special civil action of certiorariunder Rule 65?

Ans: Only question of lack or excess of jurisdiction or grave abuse

of discretion, not errors of law or judgment.

The Supreme Court is not a trier of facts, more so in theconsideration of the extraordinary writ of certiorari where neitherquestions of fact nor of law are entertained, but only questions offact nor of law are entertained, but only questions of lack or excessof jurisdiction or grave abuse of discretion. The sole object of thewrit is to correct errors of jurisdiction or grave abuse of discretion.The phrase grave abuse of discretion has a precise meaning inlaw, denoting abuse of discretion too patent and gross as toamount to an evasion of a positive duty, or a virtual refusal to

perform the duty enjoined or act in contemplation of law, or wherethe power is exercised in an arbitrary and despotic manner byreason of passion and personal hostility. It does not encompass anerror of law. Nor does it include a mistake in the appreciation of thecontending parties respective evidence or the evaluation of theirrelative weight. (Romys Freight Service vs. Castro, 490 SCRA165-166 [June 8, 2006])

42.Distinguish a discretionary act from a ministerial act.

Ans: A purely ministerial act or duty is one which an officer or tribunal

performs in a given state of facts, in a prescribed manner, inobedience to the mandate of a legal authority, without regard to orthe exercise of his own judgment upon the propriety or improprietyof the act done. If the law imposes a duty upon a public officer andgives him the right to decide how or when the duty shall beperformed, such duty is discretionary and not ministerial. The dutyis ministerial only when the discharge of the same requires neitherthe exercise of official discretion or judgment. (Espiridion vs.Court of Appeals, 490 SCRA 277 [June 8, 2006])

43.Where the period of the lease has expired and several demands weresent to the lessee to vacate, when should the one year period to fileunlawful detainer be reckoned with? From the date of the original demandor from the date of the last demand?

Ans: From the date of the original demand if the subsequentdemands are merely in the nature of remainders or reiterationsof the original demand.

Respondent, nevertheless, insists, for the first time, that theone-year period must be reckoned from the date of the seconddemand letter to vacate, that is, on May 27, 1997. Considering thatpetitioners Complaint was filed within days from this date,respondent contends that the RTC had no jurisdiction to hear thecase. Adopting in toto the position of the CA, respondent arguesthat petitioners should have filed an action for unlawful detainerinstead with the metropolitan or municipal trial courts.

The records of the case, however, do not support this view.Demand or notice to vacate is not a jurisdictional requirement when



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the action is based on the expiration of the lease. Any notice givenwould only negate any inference that the lessor has agreed toextend the period of the lease. The law requires notice to be servedonly when the action is due to the lessees failure to pay or thefailure to comply with the conditions of the lease. The one-year

period is thus counted from the date of first dispossession. Toreiterate, the allegation that the lease was on a month-to-monthbasis is tantamount to saying that the lease expired every month.Since the lease already expired mid-year in 1995, ascommunicated in petitioners letter dated July 1, 1995, it was at thattime that respondents occupancy became unlawful.

Even assuming, for the sake of argument, that a demand ornotice to vacate was necessary, a reading of the second lettershows that petitioners were merely reiterating their original demandfor respondent to vacate on the basis of the expiration of the verbal

lease contract mentioned in the first letter.

The Court has, in the past, ruled that subsequent demandswhich are merely in the nature of reminders or reiterations of theoriginal demand do not operate to renew the one-year period withinwhich to commence the ejectment suit considering that the periodwill still be reckoned from the date of the original demand. (Racazavs. Gozum, 490 SCRA 313 [June 8, 2006]), Azcuna, Ponente)

44. (a) Certiorari under Rule 65 is an extra-ordinary remedy that cannot andshould not be a substitute for lost appeal.

(b) On appeal from that MTC to RTC, failure to file on Memorandum within15 days from notice from the Clerk of Court the RTC that the records havebeen received by the RTC is a ground for dismissed of the appeal. (Angvs. Grageda, 490 SCRA 424 [June 8, 2006])

45. Jurisdiction lies with the RTC in an action of a lot buyer for damagesagainst a developer after the rescission of the contract to sell forfraudulent encashment of the check after such rescission. This is not aclaim for refund or specific performance. (Ridgewood Estate Inc vs.Belaos, 490 SCRA 451[June 8, 2006])

46.When may a motion be reconsideration be dispensed with before filing apetition for certiorari under Rule 65?

Ans: In the following instances:

(1) when the issue raised is one purely of law;(2) where public interest is involved;(3) in cases of urgency; and(4) where special circumstances warrant immediate or direct action.

On the other hand, among the accepted exceptions to the ruleon exhaustion of administrative remedies are: (1) where thequestion in dispute is purely a legal one; and, (2) where thecontroverted act is patently illegal or was performed without

jurisdiction or in excess of jurisdiction. (PLDT vs. Imperial, 490SCRA 688 [June 15, 2006])Azcuna Ponente)

47.What is the meaning of grave abuse of discretion?



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Ans: By grave abuse of discretion is meant such capricious andwhimsical exercise of judgment which is equivalent to an excess orlack of jurisdiction. The abuse of discretion must be so patent andgross as to amount to an evasion of a positive duty or a virtual

refusal to perform a duty enjoined by law or to act at all incontemplation of law, as where the power is exercised in anarbitrary and despotic manner by reason of passion or hostility.(First womens Credit Corp. vs. Perez, 490 SCRA 777 [June 15,2006])

48. (a) Distinguish between right of action from cause of action.

Ans: Right of action is the remedial right to commence and maintain anaction while a cause of action is a formal statement of theoperational facts that give rise to such remedial right. The former is

a matter of right and defends on the substantive law while the latteris a matter of statute and is governed by the law of procedure. Theright of action springs from the cause of action but does not accrueuntil all the facts which constitute the cause of action haveoccurred.

(b) What are the elements of a cause of action?

Ans: A cause of action must always consist of two elements: (1) theplaintiffs primary right and the defendants corresponding primaryduty, whatever may be the subject to which they relate person,

character, property or contract; and (2) the delict or wrongful act oromission of the defendant, by which the primary right and duty havebeen violated.

(c) Compare the concept of a cause of action in a Petition for DeclaratoryRelief with that in an ordinary civil action. What are the requisites forDeclaratory Relief?

Ans: (a) The concept and meaning of the term cause of action inproceedings for declaratory relief, vis--vis an ordinary civil action,is broadened. It is not, as in ordinary civil action, the wrong ordelictby which the plaintiffs rights are violated, but it is extended to amere denial, refusal or challenge raising at least an uncertainty orinsecurity which is injurious to plaintiffs rights. For a petition fordeclaratory relief to prosper, the following conditions sine qua nonmust concur; (1) there must be a justiciable controversy; (2) thecontroversy must be between persons whose interests are adverse;(3) the party seeking declaratory relief must have a legal interest inthe controversy; and (4) the issue involved must be ripe for judicialdetermination.

(d) Explain the concept of prescription as a statute of repose. What is itsobject?

Ans: (b) Prescription is rightly regarded as a statute of repose whoseobject is to suppress fraudulent and stale claims from springing upat great distances of time and surprising the parties or theirrepresentatives when the facts have become obscure from thelapse of time or the defective memory or death or removal ofwitnesses. The essence of the statute of limitations is to prevent



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fraudulent claims arising from unwarranted length of time and not todefeat actions asserted on the honest belief that they weresufficiently submitted for judicial determination. Our laws do notfavor property rights hanging in the air, uncertain

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