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1987 BAR EXAMINATIONS

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I. "A" leased his commercial land and building in Malate, Manila, to "B" a resident of Malolos Bulacan. The contract of
Lease provided that in the event "A" violates the Contract, "B" may file suit in Manila. "A"s residence and if "B" violates
the Contract, "A" may sue "B" in Malolos.

"B" violated the Contract, entitling "A" to sue the ejectment.

If you were the lawyer of "A" where and which court can you lawfully file the action for ejectment? Explain.

Answer:

I can lawfully file the action for ejectment either in Metropolitan Trial Court of Manila or in the Municipal Trial
Court of Malolos. Metropolitan and Municipal Trial Courts have exclusive original jurisdiction over the cases of
forcible entry and unlawful detainer or ejectment cases.

The stipulation in the contract of lease the if "B" violates contract "A" may sue "B" in Malolos is valid, because
the location of the real property in such cases determines the venue of the action and not jurisdiction over the
subject matter. However, since the agreement as to venue is merely permissive, as shown by the use of the word
"may" the action may also be filed in Manila where the real property is located. (Villanueva vs. Masqueda, 155
SCRA 904.)

II. After joinder of issues, the plaintiff moved for partial summary judgment, specifically on two of the five causes of
action asserted in the complaint. Despite opposition by the defendant who contended that the remedy of summary of
judgment was not available because there were genuine issues of fact which could not justifiably be resolved by affidavits
and counter-affidavits, the court rendered moved for reconsideration ten days after notice of the decision, but the motion
was denied. In the same order of denial, the court set for pre-trial conference the three other causes of action and the
defendant's counterclaim.

Can the defendant appeal the partial summary judgment without awaiting the judgment in the three remaining
causes of action? If he can, when? If he cannot, what is his remedy? Explain fully.

Answer:

The partial summary of judgment is final and appealable without awaiting the judgment in the three remaining
causes of action, if the following requisites are present:

1. The two causes of action are separate and independent cause of action and the defendant's counterclaim does not
arise out of the transaction or occurence which is the subject matter of said causes of action. In such case,
judgment may be rendered pursuant to the rule of judgment at various stages. (SEc. 5 of Rule 36)

2. The affidavits, depositions, and admissions submitted by the plaintiff show that, except as to the amount of
damages, thre is no genuine issue as to any material fact and plaintiff is entitled to a judgment as a matter of law.
(Sec. 3 of Rule 34)

The defendant may appeal within the remaining period or six days from notice of the decision. since nine days had
elapsed when he moved for reconsideration ten tdays after notice thereof.

Another alternative answer:

The partial summary judgment is interlocutory and hence, not immediately appeable, if the three other causes of
action are related to the two cases of action subject of the partial summary judgment and the defendant's
counterclaim arises out of the transaction of occurence which is the subject matter of said two causes of action. In
such case, the partial summary judgement does not fully adjudicate the case may be genuine issue of fact that
remain to be tried. (Guevarra vs. Court of Appeals. 124 SCRA 297)
The defendant may wait for the final judgment to be rendered on all the causes of action and the counterclaim and
appeal therefrom within fifteen days from notice thereof. In the event the court orders execution of its partial
summary judgment, the defendant may file a petion for certiorari to set aside said order.

III. A obtained a judgment for money against B. The sheriff enforcing the corresponding writ went to C who, is the
pledgee of a ring B had given as security for a loan insisted on taking possession of the right for the purpose of eventually
selling it at the execution sale to satisfy the judgment debt of B to A.

Has C the obligation to surrender the ring to the sheriff? Explain.

Answer:

No, C has no obligation to surrender the ring to the sheriff because C has the right to retain the ring in his
possession until the loan is paid. (Art. 2098 Civil Code) If the sheriff should take possession of the ring, C may file a
third party claim.

IV. A filed before the Regional Trial Court in Makati, Metro Manila, an action for damages against B for a tort allegedly
committed by B while B was on a vacation in the Philippines when he temporarily lived at the residence of his brother in
Makati. The summons was served on B's brother.

B's lawyer filed a motion to dismiss on behalf of B and asserted that B was not a resident of and could not be found in the
Philippines so that the court cannot acquire jurisdiction over the person. The motion also alleged that anyway the action
has prescribed the further asserted a claim for litigation expenses. Assume that B's lawyer had been authorized by B to
represent him.

If you were the judge, will you dismiss the case on the ground of the court's lact of jurisdiction over the person of
B? Explain.

Answer:

No. Although substituted service of summons on B's brother was not valid inasmuch as B was not a resident of the
Philippines, the motion to dismiss filed by B's lawyer constituted a valuntary appearance, inasmuch as if not only
questioned the jurisdiction of the court over his person, but also alleged prescription and a claim for litigation
expenses. (Note: The claim for litigation expenses may properly be made in a counterclaim.)

V. A and B, brothers and both residents of Marikina, Metro Manila, had opposing and exclusive claims of ownership over
a parcel of land located in Morong, Rizal. They consulted with their uncle and requested him to try to amicably settle their
dispute. The uncle failed, despite earnest efforts of all concerned to arrive at a compromise. A thereupon filed suit for title
or ownership without, however, bringing the dispute to the Lupong Tagapayapa, for settlement and without alleging in the
complaint that previous earnest efforts towards a compromise had been exerted by him but had failed.

B moved to dismiss on the ground of failure of the complaint to state a cause of action in that a) it did not aver that A had
previously taken earnest but futile efforts towards a compromise and (b) it did not allege that proceedings for settlement
had been filed by the plaintiff before the Lupon but no settlement reached, both of which, according to B, are conditions
precedent to a cause of action in favor of A.

If you were the counsel of A, what steps you would take and what arguments will you advance to meet the motion
to dismiss based on the asserted.

a) Failure to exert efforts at a compromise, and

b) Failure to observe the Katarungan Pambarangay Law?

Explain.

Answer:

As counsel of A, I would file an opposition to B's motion to dismiss by submitting an affidavit of their uncle, or
presenting him as a witness, to show that earnest efforts were made by all concerned to arrive at a compromise,
but without success. I would also argue that prior recourse to barangay conciliation would have been futile in view
of the failure of the uncle to amicable settle the dispute.
It is not necessary for me to amend the complaint to allege earnest but futile efforts towards a compromise and
prior recourse to barangay conciliation, because if the defendant does not raise these grounds in a motion to
dismiss or answer, they are deemed waived. (SEc. 2 of Rule 9; Ebel vs. Amin, 135 SCRA 438)

However, B's motion to dismiss is well founded because A and B are both residents of Marikina and prior recourse
top barangay conciliation is a pre condition to the filing of A's complaint. (Tavora vs. Veloso, 117 SCRA 613.)

Another Alternative Answer:

I would amend my complaint to allege that earnest efforts towards a compromise have been made but without
success, inasmuch as this is a condition precedent to the existence of a cause of action. (Mendoza vs. Court of
Appeals, 19 SCRA 756.)

VI. An appellant in a civil case pending in the Court of Appeals filed a motion for the reception of specified evidence for
the purpose of clarifying facts already in the record in order that the Court would be better able to resolve relevant factual
issues raised in the appeal.

Will the motion prosper? Why?

Answer:

No. (Under SEc. 9 of BP 129 as amended by Executive Order No. 33) The Court of Appeals may receive-evidence
in appealed cases only when a motion for new trial on the ground of newly discovered evidence is granted by it.

VII. In a criminal case, the prosecution presented a witness. Midway towards the cross-examination by the defense
counsel, the defense moved for a continuance upon the ground that it was essential that some inquiry be made by the
defense from outside sources before the cross-examination could intelligently continue on the remaining factual matters in
the direct testimony. The motion was granted and the trial was reset to another date. But the witness died so that he could
not be presented for the continuation of the cross-examination. The defense moved to strike the entire testimony of the
deceased witness upon the ground that otherwise the accused would be denied full enjoyment of his rights to
confrontation and cross-examination.

a) If you were the fiscal, what arguments will you offer to oppose the motion?

b) If you were the judge, how would you rule on the motion? Why?

Answer:

a) As the Fiscal, I would agree that the defense had waived its right to cross-examine the witness by not continuing
the cross-examination and moving for continuance at the middle thereof; and that even assuming there was no
waiver, the entire testimony of the deceased witness should not be stricken off the record because that portion of
the testimony on which the defense had been able to cross-examine the witness is admissible in evidence.

b) As a judge, I would rule that there was no waiver of the right of cross-examination on the part of the defense
inasmuch as the court granted its motion for continuance without objection on the part of the prosecution.
However, I would deny the motion to strike out the entire testimony of the deceased witness and admit in evidence
that portion of the testimony on which the defense had been able to cross-examine the witness. (People vs. Seneres,
99 SCRA 92)

VIII. Two days before the victim of a stabbing incident died, he made a statement to the police identifying the person who
had stabbed him. When asked by the police, the victim added that he did not know if he was going to survive because the
many stab wounds he sustained were very painful.

Is the identification by the deceased of his assailant admissible in evidence as an ante-mortem statement as an
exception to the hearsay rule?

Answer:

Yes. The statement of the victim identifying the person who had stabbed him is admissible as a dying declaration.
The statement was made with consciousness of impending death, since the victim said that he did not know if he
was going to survive because the many stab wounds he sustained were very painful and in fact he died two days
later> (People vs. SArabia, 127 SCRA 100)

Another Alternative Answer:

No. The statement of the victim identifying the person who had stabbed him is not admissible as a dying
declaration, because it was not made with consciousness of impending death. When he said that he did not know if
he was going to survive, he was in doubt whether he would die or not. However, the statement is admissible as part
of the res gestae if it was made immediately or shortly after the stabbing when the deceased had no sufficient time
to concoct a charge against the accused. (People vs. Domionguez, 36 SCRA 59; People VS. Laguimon, 135 SCRA
91)

IX. A filed suit against B and C for the recovery of personal property which, according to the complaint, had been sold to
him by the defendants father during the latter's lifetime under a document entitled Bill of Sale. The substance of the bill
was pleaded in the complaint and a copy thereof was attached to the complaint as an exhibit. B and C filed an answer
which disclaimed knowledge or information thereon allegedly belonging to their father appears to be a forgery. At the trial
of the case, B and C commenced through counsel and by means of expert witness, to adduce evidence to prove that the
seller's signature was a forgery. A objected, saying that the genuineness and due execution of the Bill of Sale was deemed
admitted because the answer was unverified, as a matter of law, inasmuch as the verification was made only on the
express basis of best information and belief.

Resolve the objection with reasons.

Answer:

Objection overruled. B and C do not have to deny specifically under oath the genuineness and due execution of the
Bill of Sale since they do not appear to be a party thereto, the same having been allegedly executed by their
deceased father. (Sec. 8 of Rule 8) Their answer disclaiming knowledge or information about the bill since they do
not appear to be a party thereto, the same having been allegedly executed by their deceased father. (SEc. 8 of rule
8) Their answer disclaiming knowledge or information about the Bill of Sale and averring that the signature
thereon appears to be a forgery is sufficient to put in issue the genuineness and due execution of the said document.

X. The accused filed a motion to quash the information on two grounds, to wit, the facts do not constitute an offense and
there are averments in the formation which, if true, would constitute a legal justification. The motion was denied.
Eventually, the accused was convicted. He appealed to the Court of Appeals.

The new defense counsel discovered that the information was filed on Monday and that the last day for the filing of the
information actually fell on the preceding Sunday.

Had the offense prescribed? If it had, could the defense invoke for the first time on appeal as error, the trial court's
non dismissal of the information on the ground of prescription?

Answer:

Yes. The offense had prescribed. Where the last day for the filing of an information falls on a Sunday or legal
holiday, the period of prescription cannot be extended up the next working day as prescription automatically sets
in. (Yapdiangco vs. Buencamino, 122 SCRA 713.)

Yes. The defense may invoke for the first time on appeal the non-dismissal of the information on the ground on
prescription, inasmuch as under the 1985 Rules on Criminal Procedure extinction of criminal action or liability,
which includes prescription, is not deemed waived by failure to move to quash on that ground. (Sec. 8 Rule 117)

XI. The accused pleaded not guilty to the charge of less serious physical injuries. Before judgment, the fiscal moved that
he be allowed to file a new information against the accused for the graver crime of frustrated murder it appearing that the
injuries were inflicted with intent to kill. The defense objected upon the ground that the charge for less serious physical
injuries in included in the offense of frustrated murder and since he had already pleaded to the lesser charge, the filing of
a new information would constitute second jeopardy. the prosecution replied that there would be no double jeopardy as
the complaint will be dismissed upon the filing of the information for frustrated murder, pursuant to Sec. 11, Rule 119 of
he 1985 Rules of Criminal Procedure relevant to situations when mistake has been made in charging the proper offense.
The fiscal argued that the fact of the accused's intent to kill was discovered by the prosecution and the complainant only
during the trial of the case.

a) Resolve the motion. Reasons.

b) Suppose the intent to kill is indicated in the affidavits of the witness for the complainant which was the basis
for the filing of the complaint, would your resolution be different and if is, why?
Answer:

a) Motion denied. The charge of less serious physical injuries is necessarily included in the offense of frustrated
murder and under Sec. 11 of Rule 119 of the 1985 Rules on Criminal Procedure, the dismissal of the original case
upon the filing of the new one can only be done if the accused cannot be convicted of the offense charged. In this
case the accused can be convicted to less serious physical injuries. Moreover, the dismissal of the original complaint
upon the filing of a new one charging the proper offense can only be done provided the accused would be placed in
double jeopardy. In this case would be placed in double jeopardy. (Sec. 14 of Rule 110, People vs. Mogul, 131
SCRA 296)

b) Motion denied. With more reason should the motion be denied if the interest to kill is indicated in the affidavits
which were the basis for the filing of the complaint, because not only is the intent to kill not a new supervening fact,
but it is not even a subsequently discovered fact. (Sec,. 7 of Rule 117)

Another Alternative Answer:

a) Motion granted. While intent to kill is not a new supervening fact which constitutes an exception to the rule of
identify of offenses in double jeopardy (people vs. BEsa, 74 Phil. 57) an additional exception has been added in the
1985 Rules on Criminal Procedure, namely, when the facts constituting the graver charge became known or were
discovered only after the filing of the former complaint may be filed for frustrated murderwithout placing the
accused in double jeoardy. (SEc. 7 (b) Rule 117)

b) Motion denied. The resolution would be different because in such case the intent to kill would not fall under the
the additional exception of subsequently discovered fact.

XII. A the surviving husband of B, executed in favor of C a deed intitled "Contract of Sale Retro" over a certain parcel of
land registered under the Torrens System in which the owner is registered under the Torrens System in which the owner is
described as A married to B. Subsequently, A sued C for reformation of the contract, alleging that what was agreed upon
was really a mortgage and not a sale of retro. A's complaint was dismissed for failure to prosecute, however, and the
dismissal became final.

A year later, the children of A and B sued C for the annulment of the Contract of Sale a Retro, alleging that the subject
piece of land was acquired by their parents during the marriage, hence their father had no right to include in the sale the
children's interest in the property as heirs of their mother, such children not having consented to the sale.

C moved to dismiss the complaint on the ground of bar by former judgment.

Resolve the motion to dismiss. Explain.

Answer:

Motion to dismiss denied. There is no bar for former judgment because there is no identity of causes of action. The
causes of action of the children of A and B are different from the cause of action of A. A had no right to sell the
parcel of land inasmuch as the same was the conjugal property of A and B. A could legally sell only his conjugal
property of A and B. A could legally sell only his conjugal share of his property and could not legally sell the
conjugal share of his deceased wife which was inherited by their children without their consent.

XIII. A obtained a judgment against B for the payment of money. For failure to appeal, the judgment became final on
July 5, 1975. Writs of execution were returned unsatisfied, for the sheriff was unable to find property of B subject to
execution. Un June 30, 1984, A located some property of B. Whereupon A immediately filed in July 1984 a motion for
the issuance of an alias writ of execution.

If you were the judge, will you grant the writ? Why?

Answer:

NO, because a motion for the issuance of an alias writ of execution may be granted only within five years from the
entry of the judgment on July 5, 1975. It will be necessary for A to file an action to enforce or revive the judgment
before the lapse of ten years. (Sec. 6 of Rule 39)
XIV. A and B entered into a compromise to settle a dispute between them pending in a regional trial court. Upon their
joint motion, the compromise settlement was approved in an order which also required the parties to comply faithfully
with the terms thereof. Ten (10) days after notice of the order approving the compromise settlement. A moved for
amendment of the agreement and for the corresponding order amending the previous approval on the ground that
stipulation in the compromise settlement did not reflect the true agreement between him and B. B opposed the motion on
the argument that the order approving the compromise agreement was immediately final and executory because appeal
therefrom was not available inasmuch as the approval of the settlement was by joint motion and the order did not in any
way vary the terms thereof.

a) If you were the trial judge, would you approve the amendment? Explain.

b) Suppose the judge were to grant the amendment despite your opposition, what remedy as counsel for B would
you invoke and in what forum?

Answer:

a) No. If A can prove at the hearing of his motion to amend the compromise agreement that the questioned
stipulation therein did not reflect the true agreement between him and B, and substantially affected the
compromise agreement, I would set it aside, I would not approve the amendment without the consent of B.

b) I will appeal from said order granting the amendment despite my opposition of the Court of Appeals on both
questions of fact and law or to the Supreme Court on question of law only. While the judgment on compromise is
not appealable, an order denying a motion to set aside the compromise on the ground of fraud, mistake or duress is
appealable. (Reyes vs. Ugarte, 75 Phil. 505) In this case, the judge approved an amendment to the compromise
agreement despite my opposition, and hence the amendment to the judgment on compromise is appealable.

Another Alternative Answer:

a) No, because the judgment is already final and executory and beyond amendment.

XV. In a claim for money filed in a proceeding for the settlement of the estate of a deceased, the claimant has a
promissory note purporting to have been signed by the deceased as debtor and with the claimant as creditor. The claimant
also has a check for the same amount as in the promissory note and issued on the same date as the promissory note. The
check drawn by the claimant and issued in the name of the deceased as payee, bears on its back a signature purportedly
belonging to the deceased and other writings indicating that the check had been deposited in a bank and credited to the
account of the payee.

Can this money claim against the estate be proved? If so, how? Explain.

Yes. The claimant should attach a copy of the promissory note executed by the deceased in his favor to his claim
and serve a copy thereof on the executor or administrator. If the executor or administrator admits or does not
deny the claim in his answer, the court may approve the same.

If the executor or administrator or heir opposes the claim, the same may be proved by the testimony of a witness
who can authenticate the promissory note. A witness other than the claimant from the bank may also testify that
the check of the claimant for the same amount as the promissory note was endorsed by the deceased and deposited
to his account in the bank.

Another Alternative answer:

The claimant himself may authenticate the promissory note since this is not covered by the rule on surviving
parties or the dead man's statute. Authentication is not a matter of fact on which the claimant's lips are sealed.

(Note: The laws or rules and cases are cited merely for reference purposes.)