ARELLANO UNIVERSITY SCHOOL OF LAW

CENTER FOR LEGAL EDUCATION AND RESEARCH

2016 B A R O P E R A T I O N S C O M M I S S I O N

LAST MINUTE TIPS

REMEDIAL LAW

GENERAL PRINCIPLES

1. Describe the nature of judicial power.

The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Section 1, Article VIII, 1987 Philippine Constitution)

2. What is the Doctrine of Judicial Stability or Non-Interference?

No court has the authority to interfere by injunction with the judgment or decrees of
another court with concurrent or coordinate jurisdiction possessing equal power to grant
injunctive relief or to pass upon or scrutinize and much less declare as unjust a judgment
of another court. This principle holds that courts of equal and coordinate jurisdiction
cannot interfere with each other’s orders (Lapulapu Development and Housing Corp. v.
Group Management Corp., G.R. No. 141407, September 9, 2002)

3. A company filed a complaint for sum of money against spouses H and W. W, in her
answer, alleged that H is already dead hence she filed a motion to dismiss on the
ground that the complaint failed to implead an indispensable party or a real party in
interest hence the said pleading asserting the claim states no cause of action. Is her
contention tenable?
No. the defense of lack of jurisdiction over the person of a party to a case is not one of
those defenses which are not deemed waived under Section 1 of Rule 9, such defense
must be invoked when an answer or a motion to dismiss is filed in order to prevent a
waiver of the defense. As the question of jurisdiction involved here is that over the
person of the defendant H, the same is deemed waived if not raised in the answer or a
motion to dismiss. (Boston Equity vs. Court of Appeals, G.R. No. 173946, June 19, 2013)

4. Distinguish Residual Jurisdiction from Residual Prerogative.

RESIDUAL JURISDICTION RESIDUAL PREROGATIVE
Section 9 of Rule 41 Section 1 of Rule 9:
i.e.: protective orders, approve comprises, permit (1) lack of jurisdiction over the subject
appeals of indigent litigants, order execution matter, (2) litis pendentia, (3) res judicata,
pending appeal, and allow the withdrawal of the (4) prescription
appeal
Available at a stage in which the court is normally Available on Appeal
deemed to have lost jurisdiction over the case or the
subject matter involved in the appeal. This stage is
reached upon the perfection of the appeals by the
parties or upon the approval of the records on
appeal, but prior to the transmittal of the original
records or the records on appeal.
For the protection & preservation of rights of the To dismiss an action motu propio upon the
parties, pending disposition of the case on appeal grounds (Katon vs. Palanca, G.R. No. 151149,
September 7, 2004)
 2016 REMEDIAL LAW
pre-week notes

5. Can a motion for interpleader be made an alternative defense in an answer? Can there
be an interpleader in a counterclaim or cross-claim or third party/fourth party
complaint?
Yes. While the rules in special civil action and ordinary civil action do not expressly
authorize the filing of a complaint-in-interpleader as part of the answer, this does not
mean, however, that the counter-complaint/cross-claim for interpleader runs counter to
general procedures. (Bank of Commerce vs. Planters Development Bank and Bangko
Sentral ng Pilipinas, G.R. Nos. 154470-71 September 24, 2012)

6. The husband died intestate. His daughter in the first marriage and his second wife is
now in dispute as to the issue of which properties should be included in the estate. The
RTC ruled that the disputed property should be included in the estate. The second wife
filed petition for certiorari against the RTC. The Court of Appeals ruled in favor of the
second wife. What is the nature of the RTC’s decision ordering that inclusion of the
property in the estate?
It is an interlocutory order. This is because the inclusion of the properties in the
inventory was not yet a final determination of their ownership. An interlocutory order
does not completely dispose of the case but leaves something else to be decided upon. It
deals with preliminary matters and the trial on the merits is yet to be held and the
judgment rendered.

Can the decision of the RTC, which is an interlocutory order, be subject of an appeal?
Yes, an interlocutory order may be the subject of an appeal, but only after a judgment
has been rendered, with the ground for appealing the order being included in the appeal
of the judgment itself. (ARANAS vs. Mercado, G.R. No. 156407, January 15, 2014)

7. May a party raise the issue of fraud in his motion to lift the preliminary attachment if
such fraud is also the cause of action in the main case?
No, he is not allowed to file a motion to dissolve the attachment the reason being that
the hearing on such a motion for dissolution of the writ would be tantamount to a trial of
the merits of the action. In other words, the merits of the action would be ventilated at a
mere hearing of a motion, instead of at the regular trial. (Chuidian vs. Sandiganbayan,
G.R. No. 139941. January 19, 2001)

8. Can a foreign national be compelled to support his minor child under Philippine law?
Yes. While it is the law of his country which should govern in the matter, the said foreign
law should not be applied when its application would work undeniable injustice to the
citizens or residents of the forum such as if it would be of great injustice to the child to
be denied of financial support by his/her foreigner parent. (Del Socorro vs. Van Wilsem,
G.R. No. 193707, December 10, 2014)

9. The battered wife filed a petition for issuance of protection order against her husband
who is a retired enlisted personnel of the Philippine Army. The RTC granted the said
petition and directed the latter to provide financial support to the former. Can Republic
of the Philippines (the husband's employer) be ordered to automatically deduct a
percentage of the retirement benefits constituting the spousal support?

Yes. R.A. 9262 or the "Anti-Violence Against Women and Their Children Act of 2004"
declares that the court shall order the withholding of a percentage of the income or
salary of the respondent by the employer, which shall be automatically remitted directly
to the woman notwithstanding other laws to the contrary. This is considered an

2
 ARELLANO UNIVERSITY SCHOOL OF LAW bar operations commission

exemption to the general rule that retirement benefits are exempt from execution.
(Republic vs. Yahon, G.R. No. 201043 June 16, 2014)

10. Juan and Michelle were married and had two children. They separated because of
disharmonious relationship. Juan filed a Petition for the Custody of the Minors of their
children before the RTC of Makati. While the custody case was pending, Michelle filed
a Petition for Temporary and Permanent Protection Order before the RTC in
Muntinlupa. Is Michelle guilty of forum shopping?

Yes. A circumstance of forum shopping occurs when, as a result or in anticipation of an

adverse decision in one forum, a party seeks a favorable opinion in another forum
through means other than appeal or certiorari by raising identical causes of action,
subject matter and issues. A grant by the Muntinlupa RTC of Michelle’s prayer for a
permanent protection order would presuppose at the minimum that it would be to the
children’s best interest if Juan Ignacio is directed to keep away from them, necessary
implying that he is unfit even to visit his minor children. On the other hand, if Juan
Ignacio’s Petition for Custody were denied, then it would mean that the Makati RTC gave
weight and credence to Michelle’s allegations of abuse and found them to be in the best
interest of the children to bar Juan Ignacio from visiting them. (Brown-Araneta vs.
Brown, G.R. No. 190814, October 9, 2013)

11. Is the non-joinder of indispensable parties a ground for dismissal of an action?

No, the non-joinder of indispensable parties is not a ground for dismissal of action.
Section 11, Rule 3 of the Rules of Court prohibits the dismissal of a suit on the ground of
non-joinder or misjoinder of parties and allows amendment of the complaint at any
stage of the proceedings, through motion or order of the court on its own initiative. Only
if plaintiff refuses to implead an indispensable party, despite the order of the court, may
it dismiss the action (Valdez-Tallorin vs. Heirs of Juanito Tarona, G.R. No. 177429, Nov.
24, 2009).

12. If a defendant files a motion to dismiss, does this automatically constitute voluntary
appearance that would place him under the jurisdiction of the court?
No. When one is asking for the dismissal of the case, he/she is not submitting
himself/herself to the court. The submission must be categorical and unequivocal for
voluntary appearance to be considered as placement of oneself to the jurisdiction of the
court.

Estoppel by jurisdiction must be unequivocal and intentional. It would be absurd to hold

that petitioner unequivocally and intentionally submitted itself to the jurisdiction of the
court by seeking other reliefs to which it might be entitled when the only relief that it
can properly ask from the trial court is the dismissal of the complaint against it.
(Millenium Industrial Commercial Corporation vs. Jackson Tan G.R. No. 131724. February
28, 2000).

13. What are the two aspects of Res Judicata?

BAR BY PRIOR JUDGMENT CONCLUSIVENESS OF JUDGMENT
(Sec. 47 [b] of Rule 39) (Sec. 47 [c] of Rule 39)
There is identity of parties, subject matter, and There is identity of parties and issues in the first
causes of action between the first case where the and second cases, but no identity of cause of
judgment was rendered and the second case that is action.
sought to be barred.
The judgment in the first case constitutes an The first judgment is conclusive only as to those
absolute bar to the second action. matters actually and directly controverted and
determined and not as to matters merely involved
therein.

3
arellano c|l|e|a|r
 2016 REMEDIAL LAW
pre-week notes

BAR BY PRIOR JUDGMENT CONCLUSIVENESS OF JUDGMENT

(Sec. 47 [b] of Rule 39) (Sec. 47 [c] of Rule 39)

Any right, fact, or matter in issue directly

adjudicated or necessarily involved in the
determination of an action before a competent
court in which judgment is rendered on the merits
is conclusively settled by the judgment therein and
cannot again be litigated between the parties and
their privies whether or not the claim, demand,
purpose, or subject matter of the two actions is
the same.

14. Distinguish Criminal Contempt from Civil Contempt.

In Yasay vs. Recto; G.R. No. 129521 September 7, 1999:
CRIMINAL CONTEMPT CIVIL CONTEMPT
Any conduct directed against the authority or dignity Failure to do something ordered by a court to be
of the court done for the benefit of a party
Proceedings are to be conducted in accordance with Generally held to be remedial and civil in their
the principles and rules applicable to criminal cases. nature; that is, they are proceedings for the
The State is the real prosecutor. enforcement of some duty, and essentially a
remedy for coercing a person to do the thing
required
Initiated by the court or tribunal exercising the Should be instituted by an aggrieved party, or his
power to punish a given contempt successor, or someone who has a pecuniary
interest in the right to be protected.
Purpose is primarily punishment Purpose is primarily compensatory or remedial
Exoneration amounts to an acquittal which is not Appealable
appealable

15. Lao, the father of the deceased victim, granted a TV network’s request for a press
conference. He stated that the case was still pending before the court and relayed the
circumstances during the killing incident. The accused filed a petition before the court
to cite Lao in contempt positing that the said conference was organized for the sole
purpose of influencing the decision of the Court. Rule on the petition.
The petition should be denied for lack of merit. For a comment to be considered as
contempt of court, "it must really appear" that such does impede, interfere with and
embarrass the administration of justice which is lacking in the given incident. (P/Supt.
Hansel M. Marantan vs. Diokno, G.R. No. 205956 dated February 12, 2014)

What is a sub judice rule? Is it punishable?

The sub judice rule restricts comments and disclosures pertaining to the judicial
proceedings in order to avoid prejudging the issue, influencing the court, or obstructing
the administration of justice. Yes, a violation of this rule may render one liable for
indirect contempt, (P/Supt. Hansel M. Marantan vs. Diokno, G.R. No. 205956 dated
February 12, 2014)

16. Distinguish Certiorari as a Mode of Appeal (Rule 45) from Certiorari as a Special Civil
Action (Rule 65).
APPEAL BY CERTIORARI SPECIAL CIVIL ACTION OF CERTIORARI
(RULE 45) (RULE 65)
Petition is based on questions of law Petition raises the issues as to whether the lower
court acted without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack
or excess of jurisdiction.
Involves the review of the judgment, award or final May be directed against an interlocutory order of
order on the merits. the court prior to appeal from the judgment or
where there is no appeal or any other plain,

4
 ARELLANO UNIVERSITY SCHOOL OF LAW bar operations commission

APPEAL BY CERTIORARI SPECIAL CIVIL ACTION OF CERTIORARI

(RULE 45) (RULE 65)
speedy or adequate remedy
Must be made within 15 days from notice of May be filed not later than 60 days from notice of
judgment judgment, order or resolution sought to be
assailed
Stays the judgment, award or order appealed from Does not stay the challenged proceeding unless a
writ or preliminary injunction or a temporary
restraining order shall have been issued
Prior filing of a motion for reconsideration is not Generally, motion for reconsideration is a
required condition precedent
The appellate court is in the exercise of its appellate The higher court exercises original jurisdiction
jurisdiction and power of review under its power of control and supervision over
the proceedings of lower courts. (San Miguel
Corp., et al. vs. Layos, Jr., et al., G. R. No. 149640,
Oct. 19, 2007)

17. If there is a pending unlawful detainer case and the same property subject of the
unlawful detainer case is expropriated by the Government, what is the effect of that
expropriation proceeding to the unlawful case?
Accordingly, the unlawful detainer case is suspended for a period of 1 year. But the
unlawful or informal settlers will have to pay the rental to the owner of the property also
within that 1 year period. (Abad vs. Fil-Homes Realty Development Corporation, G.R. No.
189239, November 24, 2010)

18. Zacarias owned a parcel of land in Cavite. One day, she discovered that Anacay entered
her property and occupied the same hence she demanded the latter to leave the
premises. Anacay requested for time (until end of the year) to leave and Zacarias
acceded to said request. However, the said timeline has lapsed and yet Anacay still
refused to vacate the disputed lot. Hence, Zacarias filed an action for unlawful
detainer, is she correct?
No. To justify an action for unlawful detainer, it is essential that the plaintiff’s supposed
acts of tolerance must have been present right from the start of the possession which is
later sought to be recovered. If the entry is illegal, then the action which may be filed
against the intruder is forcible entry. If, however, the entry is legal but the possession
thereafter becomes illegal, the case is unlawful detainer. Admittedly, no express contract
existed between the parties. (ZACARIAS vs. ANACAY, G.R. No. 202354, September 24,
2014)

19. Distinguish Demurrer to Evidence in Civil Cases from Demurrer to Evidence in Criminal
Cases.

NATURE DEMURRER in CIVIL CASES DEMURRER in CRIMINAL CASES

Demurrer is a kind of a Motion to Dismiss. It is NOT a prohibited pleading under the Rules
on Summary Proceedings because (1) it similarly expedites the proceedings and (2) it is not
among those mentioned under prohibited pleadings
Similarities The ground is the same, that is, INSUFFICIENCY OF EVIDENCE
Only available AFTER the presentation of the evidence of the plaintiff or prosecution, as the
case may be
Court may either grant or deny the Demurrer
Distinctions More difficult to file because the plaintiff Easier to file because the prosecution is
is only required to present his case by required to prove the guilt of accused beyond
preponderance of evidence reasonable doubt
If DENIED - plaintiff presents evidence if DENIED - distinguish whether there had been
prior leave of court, thus: (1) if with leave,
accused may proceed with presentation of his
evidence; (2) if without leave, accused can no
longer present his evidence

5
arellano c|l|e|a|r
 2016 REMEDIAL LAW
pre-week notes

NATURE DEMURRER in CIVIL CASES DEMURRER in CRIMINAL CASES

if GRANTED - accused is acquitted; order of
if GRANTED - the case is dismissed; order
acquittal is NOT appealable; otherwise, it will
of dismissal is a FINAL order, hence
be a violation of his right against double
appealable
jeopardy
if plaintiff appeals and the appellate
court REVERSES - defendant is no longer
allowed to present evidence. (Rule 33  
and Section 23, Rule 119 of the Rules of
Court)

20. What are the six (6) requisites of a petition for declaratory relief?
a. The subject matter of the controversy must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or ordinance;
b. The terms of said documents and the validity thereof are doubtful and require
judicial construction
c. There must have been no breach of the documents in question;
d. There must be an actual justiciable controversy or the "ripening seeds" of one
between persons whose interests are adverse;
e. The issue must be ripe for judicial determination; and
f. Adequate relief is not available through other means or other forms of action or
proceeding. (Almeda vs. Bathala Marketing, G.R. No. 150806, January 28, 2008)

21. Does dismissal upon notice by plaintiff (right of the plaintiff to dismiss the complaint)
applies squarely in expropriation cases?
No. In expropriation cases, there is no such thing as the plaintiff's matter of right to
dismiss the complaint precisely because the landowner may have already suffered
damages at the start of the taking. The plaintiff's right in expropriation cases to dismiss
the complaint has always been subject to court approval and to certain conditions. Also,
the rules did not require the filing of an answer or summary judgment in eminent
domain cases, what was required is a motion to dismiss. (National Power Corporation vs.
the Court of Appeals, G.R. Nos. 103442-45 May 21, 1993)

22. Is resort to a special civil action of certiorari under Rule 65 prohibited in small claims
cases?
No. Considering the final nature of a small claims case decision, the remedy of appeal is
not allowed, and the prevailing party may, thus, immediately move for its execution.
Nevertheless, the proscription on appeals in small claims cases, similar to other
proceedings where appeal is not an available remedy, does not preclude the aggrieved
party from filing a petition for certiorari under Rule 65 of the Rules of Court. (A.L. Ang
Network vs. Mondejar, G.R. No. 200804, January 22, 2014)

23. Is the final judgment in a petition for quo warranto decided against a public office
binding upon the latter’s successor in office?
No. Ordinarily, a judgment against a public officer in regard to a public right binds his
successor in office. This rule, however, is not applicable in quo warranto cases. A
judgment in quo warranto does not bind the respondent's successor in office, even
though such successor may trace his title to the same source. This follows from the
nature of the writ of quo warranto itself. It is never directed to an officer as such, but
always against the person — to determine whether he is constitutionally and legally
authorized to perform any act in, or exercise any function of the office to which he lays
claim. (Mendoza vs. Allas, G.R. No. 131977, February 4, 1999)

6
 ARELLANO UNIVERSITY SCHOOL OF LAW bar operations commission

24. Distinguish Forcible Entry from Unlawful Detainer.

Forcible Entry Unlawful Detainer
Possession of the land by the defendant is unlawful Possession is initially lawful but it becomes illegal
from the beginning as he acquires possession by by reason of the termination of his right to the
force, intimidation, threat, strategy or stealth. possession of the property under his contract
with the plaintiff.
No previous demand for the defendant to vacate the Demand is jurisdictional if the ground is non-
premises is necessary. payment of rentals or failure to comply with lease
contract.
The plaintiff must prove that he was in prior physical The plaintiff need not have been in prior physical
possession of the premises until he was deprived possession.
thereof by the defendant.
The one (1) year period is generally counted from Period is counted from the date of last demand or
the date of actual entry on the land. last letter of demand.

25. May substituted service of summons be resorted to when the defendant is a domestic
corporation?
No. Well-settled is the rule that service of summons on a domestic corporation is
restricted, limited and exclusive to the persons enumerated in Section 11, Rule 14 of the
1997 Rules of Civil Procedure, following the rule in statutory construction that expression
unios est exclusion alterius. Service must therefore be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-house counsel. [Dole
Philippines, Inc. (Tropifresh Division) vs. Quilala, 557 SCRA 433 (2008)]

26. How does a losing defendant stay the immediate execution of a judgment in an
unlawful detainer case?
The defendant in such a case may have such judgment stayed only by (a) perfecting an
appeal; (b) filing a supersedeas bond; and (c) making a periodic deposit of the rental or
reasonable compensation for the use and occupancy of the property during the
pendency of the appeal. The failure of the defendant to comply with any of these
conditions is a ground for the outright execution of the judgment, the duty of the court
in this respect being ministerial and imperative. (Atty. Alconera vs. Pallanan, A.M. No. P-
12-3069, January 20, 2014)

27. What are the prohibited petitions, pleadings or motions in Summary Procedure?
 Motion to dismiss the complaint except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with section 12;
 Motion for a bill of particulars;
 Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
 Petition for relief from judgment;
 Motion for extension of time to file pleadings, affidavits or any other paper;
 Memoranda;
 Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
 Motion to declare the defendant in default;
 Dilatory motions for postponement;
 Reply;
 Third-party complaints;
 Interventions. [Section 13, Rule 70 of the Rules of Court]

28. What is a “hot tub” hearing?

It is a colloquial term for concurrent expert evidence, a method used for giving evidence
in civil cases in Australia. In a "hot tub" hearing, the judge can hear all the experts
discussing the same issue at the same time to explain each of their points in a discussion
with a professional colleague. The objective is to achieve greater efficiency and

7
arellano c|l|e|a|r
 2016 REMEDIAL LAW
pre-week notes

expedition, by reduced emphasis on cross-examination and increased emphasis on

professional dialogue, and swifter identification of the critical areas of disagreement
between the experts. (INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-
BIOTECH APPLICATIONS, INC., v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), ET.AL,
G.R. No. 209271, December 08, 2015)

29. What is the remedy of a spouse of a prior marriage to have a foreign judgment
nullifying the subsequent marriage between his or her spouse and another foreign
citizen be recognized in the Philippines?
The recognition of the foreign divorce decree may be made in a petition for correction of
entries in Civil Registry under Rule 108 proceeding itself, as the object of such special
proceedings is precisely to establish the status or right of a party or a particular fact.
(Fujiki v. Marinay, G.R. No. 196049, June 26, 2013)

30. Alfredo was convicted of rape. He questioned the judgment, saying it is not valid
because the judge who penned the decision is different from the judge who heard the
testimonies of the witnesses. Thus, the judge was in no position to render the
judgment, as he did not observe firsthand their demeanor during trial. Is the accused
correct?
No. The fact that the trial judge who rendered judgment was not the one who had the
occasion to observe the demeanor of the witnesses during trial, but merely relied on the
records of the case, does not render the judgment erroneous, especially where the
evidence on record is sufficient to support its conclusion. (Peope vs. Alfredo, G.R. No.
188560, December 15, 2010)

31. Arnel was charged with frustrated homicide before the RTC. The RTC found him guilty
and sentenced him to suffer imprisonment of up to six years and one day of prision
mayor. Arnel appealed to the CA, invoking self-defense and, alternatively, seeking
conviction for the lesser crime of attempted homicide. The CA affirmed RTC’s decision
hence Arnel comes to SC on petition for review. Can he still apply for probation?
Yes. While the Probation Law requires that an accused must not have appealed his
conviction before he can avail himself of probation, Arnel in this case has no choice
between appeal and probation because of the stiff penalty initially imposed by the trial
court. Besides, in appealing his case, Arnel raised the issue of correctness of the penalty
imposed on him. In a way, therefore, Arnel sought from the beginning to bring down the
penalty to the level where the law would allow him to apply for probation. (ARNEL
COLINARES vs. PEOPLE OF THE PHILIPPINES; G.R. No. 182748 December 13, 2011)

32. Do the rules on depositions in civil cases apply strictly in criminal cases?
No. The procedure for taking depositions in criminal cases recognizes the prosecution's
right to preserve testimonial evidence and prove its case despite the unavailability of its
witness. It cannot, however, give license to prosecutorial indifference or unseemly
involvement in a prosecution witness' absence from trial. To rule otherwise would
effectively deprive the accused of his fundamental right to be confronted with the
witnesses against him. (Harry Go vs. People, G.R. No. 185527, July 18, 2012)

33. A complaint was filed against several individuals for alleged violation of R.A. 3019 or
the “ANTI-GRAFT AND CORRUPT PRACTICES ACT”, including Henry for having
supposedly conspired with one of the Department Secretaries in entering into a
contract which is grossly disadvantageous to the government. The Ombudsman found
probable cause hence an information was filed with the Sandiganbayan. No charge was
filed against the Secretary because he already died. Henry filed a motion to quash on

8
 ARELLANO UNIVERSITY SCHOOL OF LAW bar operations commission

the ground that the do not constitute an offense as he is a mere private citizen with no
official authority as a government agent. Can Henry properly invoke this defense?
No. The Sandiganbayan is a special criminal court which has exclusive original jurisdiction
in all cases involving violations of R.A. 3019 committed by certain public officers. This
includes private individuals who are charged as co-principals, accomplices or accessories
with the said public officers. The only thing extinguished by the death of Secretary Enrile
is his criminal liability. His death did not extinguish the crime nor did it remove the basis
of the charge of conspiracy between him and private respondent. (People vs. Henry T.
Go, G.R. No. 168539, March 25, 2014)

34. Will a pending Petition for Review with the Secretary of Justice concerning the finding
of probable cause suspend the issuance and implementation of warrant of arrest?
No. Once a complaint or information is filed in court, any disposition of the case rests on
the sound discretion of the court. Thus, the consequent implementation of a warrant of
arrest cannot be deferred pending the resolution of a petition for review by the
Secretary of Justice as to the finding of probable cause, a function that is exclusive in
nature. To defer the implementation of the warrant of arrest would be an encroachment
on the exclusive prerogative of the judge. (Viudez II vs. Court of Appeals, GR No. 152889,
June 5, 2009)

35. When should objections to warrantless arrest be raised?

Any objection to the arrest or acquisition of jurisdiction over the person of the accused
must be made before he enters his plea by filing a motion to quash; otherwise, the
objection is deemed waived. (People vs. Lara y Orbista, G.R. No. 199877, August 13,
2012)

36. Andoy, a complainant in a prosecution for illegal possession of firearms, contends that
he was denied due process because he was not given the chance to file a reply to the
counter-affidavit of the accused. Is his contention correct?
No. Because a preliminary investigation is not a proper trial, the rights of parties therein
depend on the rights granted to them by law and these cannot be based on whatever
rights they believe they are entitled to or those that may be derived from the phrase
“due process of law”. A complainant in a preliminary investigation does not have a
vested right to file a Reply- this right should be granted to him by law. There is no
provision in Rule 112 of the Rules of Court that gives the Complainant or requires the
prosecutor to observe the right to file a Reply to accused’s counter-affidavit. (Artillero vs.
Casimiro, G.R. No. 190569, April 25, 2011).

37. As a result of vehicular mishap, petitioner was charged before the MTC of two separate
offenses in two informations: (a) reckless imprudence resulting in slight physical
injuries; and (b) reckless imprudence resulting in homicide and damage to property for
the death of the husband of the respondent and damage to the vehicle. Petitioner
pleaded guilty to the first information and was punished only be public censure.
Invoking such conviction petitioner now moves for the quashal of the other
information on the ground of double jeopardy. Does double jeopardy apply to quasi
offenses?
Yes. The two charges arose from the same facts and were prosecuted under the same
provision of the Revised Penal Code, namely Article 365. The doctrine is that reckless
imprudence under Art. 365 is a single quasi-offense by itself and not merely a means to
commit other crimes. Hence, conviction or acquittal of such quasi offense bars
subsequent prosecution for the same quasi offense, regardless of its various resulting
acts (Ivler v. Modesto- San Pedro, GR No. 172716, November 17, 2010).

9
arellano c|l|e|a|r
 2016 REMEDIAL LAW
pre-week notes

38. What are the requisites before an accused may become a State witness?
 There is absolute necessity for the testimony of the accused whose discharge is
requested;
 There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of the said accused;
 The testimony of said accused can be substantially corroborated in its material
points;
 Said accused does not appear to be the most guilty; and
 Said accused has not at any time been convicted of any offense involving moral
turpitude (Sec. 17, Rule 119).

When should the application for discharge of the state witness be made?
It should be made upon motion of the prosecution before resting its case.

39. Tomas Tuazon was charged of Drug Trafficking. The judge rendered a decision in favor
of him resulting in his acquittal, can that decision be appealed?
No, because the accused would be subjected to double jeopardy. A final judgment may
no longer be altered, amended or modified, even if the alteration, amendment or
modification is meant to correct what is perceived to be an erroneous conclusion of fact
or law and regardless of what court, be it the highest court of the land, rendered it. (Apo
Fruits Corporation v. Land Bank of the Philippines, G.R. No. 164195, October 12, 2010,
632 SCRA 727, 760)

What are the requisites for double jeopardy?

A previous case must be filed and must contain the following:
a. The complaint or information or other formal charge sufficient in form and substance
to sustain a conviction and the court had jurisdiction
b. The accused had been arraigned and the accused had entered a valid plea
c. There was a final judgment of conviction or acquitted or the case was dismissed
without his express consent
d. Then a subsequent complaint or information is filed containing a crime that is:
 The same offense; or
 An attempt to commit the said offense; or
 A frustration of the said offense; or
 Any offense which necessarily includes the first offense charged; or
 Any offense which necessarily included the first offense charged.
(Section 7, Rule 117 of Rules of Court)

Assuming later on it was revealed that the judge’s order was due to
threat/intimidation brought about by the kidnapping of his daughter, can the prior
judgment be still declared null and void? Cite the appropriate remedies.
Yes. The judge acted in grave abuse of discretion. His abuse of discretion was patent and
gross that amounts to an evasion of a positive duty enjoined by law, as he exercised his
power in a despotic manner by reason of passion. A decision of the court without
jurisdiction is null and void; hence, it could never logically become final and executory.
Foregoing considered, the aggrieved party can file a Special Civil Action of Certiorari
under Rule 65. On the other hand, the aggrieved party may also avail the other remedies
of Appeal, and Motion for Reconsideration.

40. What is the concept of interlocking confession?

It is composed of extrajudicial confessions independently made without the collusion
which are identical with each other in their materials respects and confirmatory of the
other, are admissible as circumstantial evidence against a co-accused implicated therein

10
 ARELLANO UNIVERSITY SCHOOL OF LAW bar operations commission

to show constitutes an exception to the general rule that extrajudicial confession or

admissions are admissible only against the declarant himself. (People vs. Reyes, G.R. No.
178300, March 17, 2009)

41. How was “Chain of Custody” defined in Section 1(b) of Dangerous Drugs Board
Regulation No. 1, Series of 2002 which implements R.A. No. 9165 or the
“Comprehensive Dangerous Drugs Act of 2002”?
"Chain of Custody" means the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and use in court as evidence,
and the final disposition. (People vs. Posing, G.R. No. 196973, July 31, 2013)

42. Tado was arrested during a buy-bust operation. During trial, the photocopy of the
marked money used in the operation was presented. Tado alleged that mere
photocopies of the bills are inadmissible under the best evidence rule. Rule on the
case.
The court must rule against Tado. The best evidence rule applies only when the contents
of the document are the subject of inquiry. Where the issue is only as to whether or not
such document was actually executed, or exists, or in the circumstances relevant to or
surrounding its execution, the best evidence rule does not apply. Since the aforesaid
marked money was presented by the prosecution solely for the purpose of establishing
its existence and not its contents, other substitutionary evidence, like a xerox copy
thereof, is therefore admissible without the need of accounting for the original. (People
vs. Tandoy, G.R. No. 80505, December 4, 1990)

43. What is the Daubert Test and how is it applied in DNA evidence?
Daubert Test is the determination of the court whether the evidence would meet the
applicable "general acceptance" standard for the admission of expert testimony. The rule
is that expert opinion based on a scientific technique is inadmissible unless the technique
is "generally accepted" as reliable in the relevant scientific community.

Applying the Daubert Test in DNA evidence, the DNA evidence obtained through PCR
testing and utilizing STR analysis is relevant and reliable since it is reasonably based on
scientifically valid principles of human genetics and molecular biology. (Daubert vs.
Merrell Dow, 509 U.S. 579, 1993;Agustin vs. CA, G.R. No. 162571, June 15, 2005)

44. As a rule, an electronic document and the print out thereof are regarded as original
documents under the Best Evidence Rule. Thus, a scanned image of a paper-based
document is not an original document. Is this rule absolute?
NO. In Maliksi vs. Comelec (G.R. No. 203302, April 11, 2013), it was held: The picture
images of the ballots, as scanned and recorded by the PCOS, are likewise ‘official ballots’
that faithfully capture in electronic form the votes cast by the voter, as defined by
Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent
of the paper ballots filled out by the voters and, thus, may be used for purposes of
revision of votes in an electoral protest. That the two documents—the official ballot and
its picture image—are considered "original documents" simply means that both of them
are given equal probative weight. In short, when either is presented as evidence, one is
not considered as weightier than the other.

11
arellano c|l|e|a|r
 2016 REMEDIAL LAW
pre-week notes

45. Elsa, planning to marry her boyfriend of 5 years applied for the issuance of the
Certificate of No Marriage (CENOMAR) before the NSO. However, it appears that the
CENOMAR issued reflects that she is married to Ye Son Sune, a Korean National in
2002. Knowing that she did not contract any marriage, Elsa, filed a Petition for the
Cancellation of Entries of all the entries in the wife portion appearing on the fictitious
marriage contract. Will the petition filed by Elsa prosper?
Yes. While a petition for correction or cancellation of an entry in the civil registry cannot
substitute for an action to invalidate a marriage, Elsa sought not the nullification of
marriage as there was no marriage to speak of, but the correction of the record of such
marriage to reflect the truth as set forth by the evidence. Otherwise stated, in allowing
the correction of the subject certificate of marriage by cancelling the wife portion
thereof, the trial court did not, in any way, declare the marriage void, as there was no
marriage to speak of. (Republic vs. Olaybar, 715 SCRA 605, 2014)

46. Mr. X, a consultant for the World Bank, suddenly disappeared while attending a
seminar in Quezon City. Mrs. X, wife of Mr. X, filed a petition for the Writ of Amparo
directed against PNP Chief ABC. The Court of Appeals immediately granted the said
petition. Does the grant herein determine the criminal culpability of the PNP Chief ABC
for the alleged enforced disappearance of Mr. X?
No. The writ of amparo does not determine guilt not pinpoint criminal culpability for the
disappearance, rather, it determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate remedies to address
the disappearance. The writ of amparo is a protective remedy against violations or
threats of violation against the rights to life, liberty and security. (Razon vs. Tagitis, G.R.
No. 182498, December 3, 2009)

47. Christina had an amorous relationship with Marcelino and became pregnant with the
latter’s child without the benefit of marriage. Due to financial distress and to avoid
placing her family in a potentially embarrassing situation, she decided to voluntarily
surrender Baby Julian by way of a Deed of Voluntary Commitment to the DSWD. Later
on, she wants now to recover and raise the baby hence she filed a petition for a writ of
amparo? Is it the proper remedy?
No, the privilege of the writ of amparo is a remedy available to victims of extra-judicial
killings and enforced disappearances or threats of a similar nature, regardless of whether
the perpetrator of the unlawful act or omission is a public official or employee or a
private individual. It is envisioned basically to protect and guarantee the right to life,
liberty and security of persons, free from fears and threats that vitiate the quality of life.
Christina is not searching for a lost child but asserting her parental authority over the
child and contesting custody over him. There is therefore, no "enforced disappearance"
as used in the context of the Amparo rule. [Infant JULIAN YUSA Y CARAM, represented by
his mother vs. Atty. MARIJOY D. SEGUI, G.R. No. 193652 dated August 5, 2014]

48. What if one person wanted to change the details of his birth certificate (to delete the
date of marriage of his parents, alleging that no such marriage took place), his first
name and his mother’s first name? Can he do all of these under Rule 108 of the Rules
of Court?
No, he must undergo two separate procedures. The change of first names must be done
by the civil registrar under R.A. 9048. Section 15 of the said law provides that clerical or
typographical errors on entries in a civil register can be corrected and changes of first
name can be done by the concerned city civil registrar without need of a judicial order.
On the other hand, the date of marriage of his parents is substantial in nature which
requires adversarial proceedings pursuant to Section 3, Rule 108 of the Rules of Court.

12
 ARELLANO UNIVERSITY SCHOOL OF LAW bar operations commission

(Onde vs. The Office of the Local Civil Registration of Las Piñas City, G.R. No. 197174,
September 10, 2014)

49. What is a Writ of Continuing Mandamus?

Continuing mandamus is a writ issued by a court in an environmental case directing any
agency or instrumentality of the government or officer thereof to perform an act or
series of acts decreed by final judgment which shall remain effective until judgment is
fully satisfied. (Sec. 4 [c] A.M. No. 09-6-8-SC, Rules of Procedure for Environmental Case)

A writ of continuing mandamus is, in essence, a command of continuing compliance with

a final judgment as it “permits the court to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs mandated under the court’s
decision.” (Dolot vs. Paje, G.R. No. 199199, August 27, 2013).

50. What is Epistolary Jurisdiction?

It was exercised by the Supreme Court in the case of RESIDENT MARINE MAMMALS OF
THE PROTECTED SEASCAPE TAÑON STRAIT vs. SECRETARY ANGELO REYES (G.R. No.
180771 dated April 21, 2015) in lowering the threshold for locus standi. It was opined
that the principle of human stewardship over the environment can be channelled thru a
citizen suit under the Rules of Procedure for Environmental Cases. A citizen suit allows
any Filipino to act as a representative of a party who has enforceable rights under
environmental laws before Philippine courts.

51. What is the SLAPP defense?

Strategic Lawsuit Against Public Participation (SLAPP) is a legal action filed to harass, vex,
exert undue pressure or stifle any legal recourse that any person, institution or the
government has taken or may take in the enforcement of environmental laws, protection
of the environment or assertion of environmental rights shall be treated as a SLAPP and
shall be governed by these Rules. (Section 1, Rule 6 of Rules of Procedure for
Environmental Cases)

*****Good Luck and God Bless*****

HAIL TO THE CHIEFS!

Arellano University School of Law

Bar Operations Commission 2016

13
arellano c|l|e|a|r