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Suggested Answer 2023 BAR Questions IN Remedial LAW

Finale
Civil Procedure (University of Santo Tomas)

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SUGGESTED ANSWERS TO THE 2023

BAR EXAMINATION QUESTIONS IN REMEDIAL LAW
(Submitted to the UP Law Bar Review Institute on 4
October 2023)

by:

DEAN SALVADOR N. MOYA II1

1. Beatrice filed an action for recovery of the sum of ₱2.5

million against Tess in the Regional Trial Court (RTC) of Taguig City.
Attached to the complaint was the promissory note, the check
issued by Rafaelle Beatrice to Tess covering said amount, and a
copy of the withdrawal slip of Tess from Banco de Otso- Rockwell
Branch, Makati City. In her answer, Tess raised as her compulsory
counterclaim the recovery of her attorney’s fees in the amount of
₱500,000 arising from the case, and a permissive counterclaim
against Rafaelle Beatrice for rescission of contract of sale
involving an Arturo Luz painting valued at ₱2 million. Tess paid the
filing fees of her permissive counterclaim. Are the
counterclaims within the jurisdiction of the RTC of Taguig
City? Discuss your answer.

SUGGESTED ANSWER:

Yes. The compulsory counterclaim is within the jurisdiction

of the RTC of Taguig City while the permissive counterclaim is not.

Under Rule 6, Sec.7, a compulsory counterclaim is any claim

for money or other relief that a defending party may have against
an opposing party, which at the time of suit arises out of, or is
necessarily connected with, the same transaction or occurrence
that is the subject matter of plaintiff’s complaint. An original
action filed before the RTC, the counterclaim may be considered
compulsory regardless of the amount involved. On the other
hand, a permissive counterclaim is essentially an independent
claim that may be filed separately in another case. This claim

1 BSC, LIB, LI.M., DCL, Founding Dean, Tomas Claudio Colleges, College of Law, Morong, Rizal;
Managing Partner, Moya Ablola Ebarle Law Firm; MCLE Lecturer on Trial Advocacy; Bar Reviewer
[Legal EDGE Review Center, Villasis Law Center, Powerhaus Review Center, Recoletos Law Center,
Magnicus Juris Reviews and Seminars Inc., UP Law Center, University of Cebu, Albano Bar Review
Center] Author [The 2000 Rules of Criminal Procedure, Notes and Cases (2017); The Revised
Guidelines on Continuous Trial in Criminal Cases in Relation to The 2000 Rules of Criminal Procedure
(2018); Bar Notes and Cases in Remedial Law (2018); Bar Notes and Cases in Criminal Law, 2018 &
2019; Notes and Cases in Remedial Law (Volumes I-IV), 2019; Notes and Cases in Civil Procedure,
Volume I (Parts I, II, IV), 2020; Notes and Cases in Remedial Law, Volume IV (Evidence), 2020; Notes
and Cases in Civil Procedure, Volume I (Part III), 2021], Bar Reviewer in Remedial Law Syllabus Based
(2021) Vols. I-IV; Professor in Civil Procedure, Criminal Procedure, Evidence, Special Proceedings,
Remedial Law Review I-II, Criminal Law I-II, Criminal Law Review [TCC-COL, TSU-SOL, NEU-COL, SSCR-
COL, UE-COL, BulSU-COL, UP-COL, UST-FCL, BU-COL, Wesleyan Phils.-COL, PUP-COL, UMAK-SOL

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must be filed with the Court having jurisdiction over the amount
involved. (PNTC Colleges vs. Time Realty, G.R. No. 219698,
27 September 2021)(Second Division)[Hernando, J.] (Moya,
II, Pre-Week Reviewer in Remedial Law, p. 22, 2023 Ed.)[Under
Rule 6]

The counterclaim in the amount of P500,000.00 arises out of

the claim existing in court while the counterclaim of P2 million
does not. Thus, compulsory counterclaim is within the jurisdiction
of the RTC regardless of the amount while the permissive
counterclaim is not within the jurisdiction of the RTC.

2. Trinca borrowed ₱1.5 million from Ida. Trinca executed a

promissory note promising to pay Ida in three equal monthly
installments. When Trinca failed to pay her obligation, Ida filed an
action for recovery of a sum of money against her in the
Metropolitan Trial Court of Pasay City. The case was raffled to
Judge Risa, who upon reading the complaint, noticed that Trinca
and Ida were neighbors in Barangay 189 in Pasay City and that
there was no prior referral of the case for barangay conciliation.
Hence, Judge Risa dismissed the case motu proprio for failure to
comply with a condition precedent. Was the dismissal by Judge
Risa proper? Explain your answer.

SUGGESTED ANSWER:

No. Prior recourse to barangay conciliation is not a

jurisdictional requirement that non-compliance therewith would
deprive a court of its jurisdiction either over the subject matter or
over the person of the defendant. Where, however, the fact of
non-compliance with and non-observance of such procedure has
been seasonably raised as an issue before the court first taking
cognizance of the complaint, dismissal of the action is proper. In
this case, the court acquired jurisdiction notwithstanding the
absence of barangay conciliation. The dismissal would be proper if
Trinca raised as an affirmative defense the failure to comply with
a condition precedent. (Ngo vs. Gabelo et al., G.R. No.
207707, August 24, 2020)(Second Division)[Hernando, J.]
(Moya, II, Pre-Week Reviewer in Remedial Law, pp. 277-278, 2023
Ed.)[under Rule 70]

3. Pauline and Regine had a dispute over a 500-square

meter parcel of land that they inherited from their deceased
parents, Milcah and James. During the barangay conciliation
proceedings, both Pauline and Regine agreed to partition the lot in
equal shares. As a result, the title to the property was cancelled
and new titles were issued in favor of Pauline and Regine as to
their respective lots. However, Regine discovered that the lot

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covered by her title was on the eastern portion rather than the
northern portion, contrary to their agreement. Hence, Regine filed
a “Petition for Annulment of Transfer Certificate of Title (TCT) and
Barangay Partition, with Prayer for Judicial Partition of the
Intestate Estate of the Spouses Milcah and James” against
Pauline. After trial, the court rendered judgment in favor of
Regine. Pauline then consulted a newly-minted lawyer, Atty. Terry,
who explained to her that there was a misjoinder of causes of
action when Regine included both annulment of TCT and the
barangay partition, as well as judicial partition in the petition.
Hence, the trial court erred when it ruled on both causes of action
instead of dismissing the petition of Regine. Is Atty. Terry
correct? Explain.

SUGGESTED ANSWER:

Atty. Terry is correct that there was misjoinder of causes of

action however Atty. Terry is incorrect that the trial court should
have dismissed the petition of Regine. Under Section 6, Rule 2 of
the Rules explicitly states that a misjoinder of causes of action is
not a ground for dismissal of an action and that a misjoined cause
of action may, on motion of a party or on the initiative of the
court, be severed and proceeded with separately. (Unicapital,
Inc. vs. Consing, Jr., 705 SCRA 511, 11 September 2013)
(Second Division)[Perlas-Bernabe, J.](Moya, p. 169, Bar
Reviewer in Remedial Law, Syllabus Based, 2021 Ed.]

In this case, there was no motion of the party nor iniative

from the court to severe the misjoined causes of action thus there
exists no bar in the simultaneous adjudication on both causes of
action.

4. Hannah Corporation (HC) is the registered owner of a

parcel of land in Kapitolyo, Pasig City. Saint Aaron School (SAS),
occupied said lot by mere tolerance since 1992 until December
2018. HC informed SAS that beginning January 1, 2019, it will be
charging ₱100,000 per month for the use and occupation of the
property. SAS refused to pay the monthly rentals prompting HC to
issue a demand letter for the payment of the amount of ₱4.8
million, representing the unpaid rentals from January 2019 to
December 2022. SAS failed to heed the demand of HC. Hence,
HC, which holds business in Quezon City, filed a complaint for
collection of a sum of money against SAS in the Regional Trial
Court (RTC) of Quezon City. SAS filed a motion to dismiss on the
ground of forum shopping since HC Had also filed an ejectment
case against it before the Metropolitan Trial Court of Pasig City.
Should the RTC grant the motion to dismiss on the ground
of forum shopping? Explain your answer.

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SUGGESTED ANSWER:

No. HC did not violate the rule on forum shopping when it

filed the collection case while the ejectment case is pending. The
determinative factor in the violations of the rule against
forum shopping is whether the elements of litis pendentia
are present, or whether a final judgment in one case will
amount to res judicata in another.

In the instant case, the second and third elements of forum

shopping and litis pendentia are lacking. Thus, there is no identity
of rights asserted and reliefs prayed for between a suit for
collection of sum of money and an ejectment case, and that any
judgment rendered in one of these actions would not amount to
res judicata in the other action. Any judgment rendered in the
ejectment case will not amount to res judicata in a civil case of
collection of sum of money for unpaid rent of the same property
and vice versa. Thus, no violation of the forum shopping rule was
committed. (Asis et al. vs. Heirs of Calignawan et al., G.R.
No. 242127, 15 September 2021)(SecondDivision)
[Hernando,J.] (Moya,II,Pre-Week Reviewer in Remedial Law, pp.
25-26, 2023 Ed.)[Section 5, Rule 7]

5. Anjan and Pam were married in 1996. However, in

November 2003, Pam left for the United States (US) due to her
alleged irreconcilable differences with Anjan. In 2020, Anjan filed
a petition for the declaration of nullity of his marriage with Pam
before the Regional Trial Court (RTC) of Makati City, where he
resides. Subsequently, Anjan filed a motion for issuance of
summons by publication because Pamal ready resided abroad.
The RTC issued an Order dated August 27, 2020 granting the
motion and directed the summons to be served upon Pam by
publication in a newspaper of general circulation in the US.
However, the copies of the order, summons, and complaint were
not served at her last known address. Meanwhile, no answer was
filed by Pam. Thus, the RTC rendered a decision granting the
petition, which eventually became final and executory. Was the
August 27, 2020 Order of the RTC proper? Explain your
answer.

SUGGESTED ANSWER:

No. If the defendant is out of the country like Pam,

summons should be served through substituted service under
Section 6, extraterritorial service under Section 17, or under Section

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18 when residents are temporarily out of the Philippines, Rule 14 of

the amended 1997 Rules of Civil Procedure. (Sabado vs. Sabado,
G.R. no. 214720, 12 May 2021) (Third Division)[Hernando,
J.]. [Moya, II, Pre-Week Reviewer in Remedial Law, p. 46, 2023
Ed.)

Under Rule 14, Sec. 17, when the defendant does not reside
and is not found in the Philippines and the action affects the
personal status of the plaintiff or relates to, or the subject of
which is property within the Philippines, service may, by leave of
court, be effected out of the Philippines by personal service as
under Section 6; or as provided for in international conventions to
which the Philippines is a party; or by publication in a newspaper
of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order
of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may
deem sufficient. In this case, there was no service made to the
last known address of Pam, thus the Order dated August 27, 2020
directing publication in a newspaper of general circulation in the
US is improper.

Extraterritorial service of summons applies only where the

action is in rem or quasi in rem but not if an action is in personam.2
(Gesolgon, et al. vs. Cyberone Ph., Inc., et al., G.R. No.
210741, October 14, 2020) (Second Division)[Hernando, J.]
[Moya, II, Pre-Week Reviewer in Remedial Law, pp. 45, 2023 Ed.)
[Under Rule 7]

6. Clarisse and Myra offered Gaita a job as a domestic

helper in Indonesia. Clarisse gave Gaita her plane ticket and
luggage to bring on her trip. Upon reaching the air port of
Yogyakarta, Indonesia, she was apprehended by the police for
allegedly carrying two kilograms of heroin inside her luggage. She
was then charged before the Indonesian courts with drug
trafficking, and subsequently convicted and sentenced to death
by firing squad. Meanwhile, in the Philippines, Clarisse and Myra
were arrested and charged with Qualified Trafficking of Persons,
Illegal Recruitment, and Estafa in the Regional Trial Court (RTC) of
Angeles City. Gaita was given an indefinite reprieve by the
Indonesian Government to give her the opportunity to testify in
the case against Clarisse and Myra. Hence, the People of the
Philippines, through the Office of the Solicitor General (OSG), filed
a motion to take the testimony of Gaita upon written
interrogatories under Rule 23 (Deposition Pending Action) of the
Rules of Court. The RTC granted the motion of the OSG. Was the
action of the RTC proper? Discuss your answer.

2 Perkin Elmer Singapore Pte Ltd. v. Dakila Trading Corporation, 556 Phil. 822, 838 (2007).

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SUGGESTED ANSWER:

Yes. Nowhere in the present Rules on Criminal Procedure

does it state how a deposition of a prosecution witness who is at
the same time convicted of a grave offense by the final judgment
and imprisoned in a foreign jurisdiction, may be taken to perpetuate
the testimony of such witness. The Rules, in particular, are silent as
to how to take testimony of a witness who is unable to testify in
open court because he is imprisoned in another country.

Depositions, however, are recognized under Rule 23 of the

Rules on Civil Procedure. Although the rule on deposition by written
interrogatories is inscribed under the said Rule, it may be applied
suppletorily in criminal proceedings so long as there is compelling
reason. Although the deposition is in writing, the trial court judge
can still carefully perceive the reaction and deportment of Gaita as she
answers each question propounded to her both by the
prosecution and the defense.

It must be mentioned that a "dying declaration" is one of the

recognized exceptions to the right to confrontation.3 In this, it will not
be amiss to state that Gaita’s deposition through written
interrogatories is akin to her dying declaration. There is no doubt
that Gaita will be answering the written interrogatories under the
consciousness of an impending death - or execution by a firing
squad to be exact. People vs. Sergio and Lacanilao (G.R. No.
24053, 9 October 2019) (Third Division) [Hernando, J.] (Moya,
II, pp. 68-70, Pre Week Reviewer in Remedial Law, 2023 Ed.)

7. Kyna, a resident of Antipolo City, is the registered owner

of a house and lot located in Tondo, Manila with an assessed value
of ₱900,000. Kyna claimed that she allowed Sarah, her sister-in-
law, to stay in the house out of compassion. Years later, Kyna
decided to distribute the property to her children, so she
demanded that Sarah vacate the premises. However, Sarah
ignored the demand. She even filed a case against Kyna
questioning her ownership of the property and contending that
she obtained title over the property through fraud, deceit, and
falsification. On August 23, 2023, Kyna sent a formal demand
letter to Sarah to vacate the property, but this remained
unheeded. Kyna wants to commence an action against Sarah no
later than May 16, 2024, before Kyna leaves and temporarily
stays in the United States. If you are the counsel of Kyna,
what action will you file, where, and in what court? Explain
briefly.

3 Bernas, Joaquin G., The Constitution of the Republic of the Philippines, A Commentary, Volume 1, 1987 Edition, p. 393.

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SUGGESTED ANSWER:

I will file an action for Unlawful Detainer before the

Metropolitan Trial Court of Manila. An ejectment case, based on
the allegation of possession by tolerance, falls under the category
of unlawful detainer. Where the plaintiff allows the defendant to
use his/her property by tolerance without any contract, the
defendant is necessarily bound by an implied promise that he/she
will vacate on demand, failing which, an action for unlawful de-
tainer will lie.4 (Eversley Childs Sanitarium vs. Sps.
Barbarona, G.R. No. 195814, 4 April 2018)(Third Division)
[Leonen, J.]. (Moya, II pp. 621-622, Bar Reviewer in Remedial
Law Syllabus Based, Vo. 1, Part II, 2021 Ed.)

8. In 2014, Karina filed before the Regional Trial Court a

petition for change of name under Rule 103 of the Rules of Court
to change her first name, include her middle name, and correct
the spelling of her surname, from “Karen Lapus”, as stated in her
birth certificate, to “Karina Garcia Lapuz”. According to Karina,
she has been using the name “Karina Garcia Lapuz” since
childhood. Will the petition of Karina prosper? Explain your
answer.

SUGGESTED ANSWER:

No. With of enactment of R.A. 9048,5 which amended

Articles 376 and 412 of the Civil Code it vested primary
jurisdiction over the correction of certain clerical or typographical
errors and changes of first name with the civil registrar.6 In 2012,
R.A. 101727 expanded the coverage of the summary
administrative procedure provided under R.A. 9048 to include
clerical corrections in the day and/or month in the date of
birth, or in the sex of the person, where it is patently clear
that there was a clerical or typographical error or mistake in
the entry.8 Presently therefore, when an entry falls within the
coverage of R.A. 9048 as amended by R.A. 10172, a person may
only avail of the appropriate judicial remedies under Rule 103 or
Rule 108 after the petition in the administrative proceedings
is first filed and later denied. (Bartolome v. Republic, G.R. No.
243288, August 28, 2019, p. 8; see also Republic v. Gallo, supra

4 Republic vs. Luriz, 542 Phil. 137 (2007).

5 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A
CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL
REGISTER WITHOUT NEED OF A JUDICIAL ORDER AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE
CIVIL CODE OF THE PHILIPPINES, approved on March 22, 2001.
6 See Republic v. Gallo, G.R. No. 207074, January 17, 2018, 851 SCRA 570, 593.
7 AN ACT FURTHER AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT
CLERICAL OR TYPOGRAPHICAL ERRORS IN THE DAY AND MONTH IN THE DATE OF BIRTH OR SEX OF A PERSON
APPEARING IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE REPUBLIC
ACT NUMBER NINETY FORTY-EIGHT, approved on August 15, 2012.
8 R.A. 10172, Sec. 1.

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note 43, at 595 and Republic v. Sali, 808 Phil. 343, 349-350
(2017); (Santos vs. Republic et al.,) Failure to comply with the
administrative procedure generally renders the petition dismissible for
failure to exhaust administrative remedies and for failure to comply
with the doctrine of primary jurisdiction. (Moya II, pp. 745-746,
Pre-Week Reviewer in Remedial Law, 2023 Ed.)

9. William and several other persons were charged with

violation of the Anti- Hazing Act. During their arraignment, William
and his co-accused pleaded not guilty to the charge that they
unlawfully subjected Carding Cruz to hazing. The information was
later amended by adding the suffix “III” to the name “Carding
Cruz”. Trial ensued without the accused having been re-arraigned
on the amended information. After the accused were convicted by
the trial court, William appealed contending that this right to be
informed of the nature and cause of the accusation agains1qt him
was violated when he was not re-arraigned after the amendment
of the information. Is William correct? Discuss.

SUGGESTED ANSWER:

No, William is not correct. Any amendment to an

information which only states with precision something
which has already been included in the original
information, and therefore, adds nothing crucial for
conviction of the crime charged is only a “formal
amendment” that can be made at any time. 9 It does not
alter the nature of the crime, affect the essence of the offense,
surprise, or divest the accused of an opportunity to meet the new
accusation.10 (Moya, II pp. 60-61, Bar Reviewer in Remedial Law
Syllabus Based, Vol. III, 2021 Ed.)

Further, Second arraignment is not required for a

formal amendment. This is so because a formal amendment
does not charge a new offense, alter the prosecution's theory, or
adversely affect the accused's substantial rights. (Villarba vs.
CA, G.R. No. 227777, 15 June 2020)(Third Division)
[Leonen, J.]. (Moya, II p. 68, Bar Reviewer in Remedial Law
Syllabus Based, Vol. III, 2021 Ed.) Hence, William is not
correct.

10. Angel was charged with Murder before the Regional

Trial Court (RTC). After trial, the court convicted her of Homicide
due to the absence of the qualifying circumstance of treachery.
She then filed a notice of appeal and applied for bail with the RTC
before transmittal of the records to the Court of Appeals. The

9 People vs. Montenegro, 242 Phil. 655 (1988)(Second Division)[Padilla, J.].

10Ricarze vs. CA, 544 Phil. 237 (2007)(Third Division)[Callejo, Sr., J.].

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prosecution opposed the application, contending that the RTC has

no jurisdiction to act on the application for bail. The RTC granted
the application for bail on the ground that the prosecution failed
to prove the five bail-negating circumstances. Did the RTC have
jurisdiction to act on the application for bail filed by
Angel? Discuss your answer.

SUGGESTED ANSWER:

No, the RTC did not have jurisdiction to act on the

application for bail filed by Angel.

Under Rule 114 Section 5, if the decision of the trial court

convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed
with and resolved by the appellate court. Here, Angel was
charged with Murder but was convicted by the RTC for Homicide.
Hence, the application for bail by Angel must be filed with and
reviewed by the Court of Appeals. Hence, the RTC did not have
jurisdiction to act on the application for bail filed by Angel. (Last
sentence of the codal provision of Sec. 5, Rule 114, 2000 Rules of
Criminal Procedure) (Moya, II pp. 185-186, Bar Reviewer in
Remedial Law Syllabus Based, Vol. III, 2021 Ed.)

11. On October 18, 2021, a warrant of arrest was issued

against Erica. At 11:00 p.m. on October 30, 2021, police officers
arrested Erica at her house pursuant to the arrest warrant. Before
arraignment, Erica moved to quash the information on the
grounds that the warrant was served at nighttime and beyond ten
days from its issuance. Is the position of Erica tenable?
Explain.

SUGGESTED ANSWER:

No, the position of Erica is not tenable. Unless specifically

provided in the warrant, the same remains enforceable until it is
executed, recalled or quashed. The ten-day period provided under
this Rule is only a directive to the officer executing the warrant to
make a return to the court.11 However, it is natural to assume that
an arresting officer, who under the law is given only ten (10) days
to serve an arrest warrant, would serve it as soon as possible. 12
(Moya, II, p. 255, The 2000 Rules of Criminal Procedure Notes and
Cases, 2017 Ed.](People vs. Givera, G.R. No. 132159, 18
January 2001)(Second Division)[Mendoza, J.].

That Erica was served with the warrant at nighttime and

11 Regalado (2000). Remedial Law Compendium (p. 335).

12 Bangayan vs. Butacan, 345 SCRA 301(22 November 2000).

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10

beyond the ten day period is of no moment. Section 6, Rule 113

provides that an arrest can be made at anytime of the day or
night. In Colorado vs. Agapito,13 complainant faulted
respondent for having been arrested on a Friday, causing him to
languish in jail for two days and two nights. The Supreme Court
held that it was of no moment that the warrant of arrest was
issued by respondent on a Friday, because it is clear in the Rules
that an arrest may be made on any day regardless of what day
the warrant of arrest was issued. Nowhere in the Rules or in any
jurisprudence can it be found that a warrant of arrest issued on a
Friday is prohibited. Thus, respondent cannot be held
administratively liable for this particular matter. He did not
commit grave abuse of authority for issuing the warrant of arrest
on a Friday, the same not being prohibited by law. (Moya, II, p.
267, The 2000 Rules of Criminal Procedure Notes and Cases,
2017 Ed.]

Hence, the position of Erica is not tenable.

12. An information for Corruption of Public Officials was

filed against Bel. Assistant City Prosecutor Chi, the investigating
prosecutor, certified in the information that the same was filed
with the prior authority of Jill, the City Prosecutor. After the
presentation of evidence by both parties, the trial court motu
proprio dismissed the case on the ground that Chi does not have
the authority to prosecute the case because the information does
not bear the signature of Jill or any other indication that she
approved the same. The trial court explained that the lack of
authority to file an information is a jurisdictional defect that
cannot be cured. Is the trial court correct? Explain.

SUGGESTED ANSWER:

No. It is sufficient for the validity of the Information of

Complaint, as the case may be, that the Resolution of the
Investigating Prosecutor recommending for the filing of the same
in court bears the imprimatur of the provincial, city or chief state
prosecutor whose approval is required by Sec. 1 of R.A. No. 5180
and is adopted under Sec.4, Rule 112 of the Rules of Court. In this
case, since information was certified by the investigating
prosecutor, thus the trial court was incorrect in motu proprio
dismissing the case. (Villa Gomez vs. People, G.R. No.
216824, 10 November 2020)(En Banc)[Gesmundo, J.][Now
CJ] (Moya II, pp. 342-343, Pre-Week Reviewer in Remedial Law,
2023 Ed.)

13. Raisa filed a case for support against Ton on behalf of

13 526 SCRA 250 (3 July 2007).

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11

their 9-year-old daughter, Rox. During trial, Rox was presented as

a witness. The counsel of Ton invoked the rule on the
incompetence of Rox to testify against her father given her tender
age. The trial court allowed Rox to testify. Is the trial court
correct? Explain briefly.

SUGGESTED ANSWER:

Yes. Under Rule 130, Sec. 21, all persons who can perceive,
and perceiving, can make known their perception to others, may
be witnesses. In this case, the tender age of Rox by itself is not a
sufficient basis to render her incompetent so long as she has the
ability to perceive, remember and tell the truth in court.

Thus, under the Rules of Court, a child may be a competent

witness, unless the trial court determines upon proper showing
that the child's mental maturity is such as to render him
incapable of perceiving the facts respecting which he is to be
examined and of relating the facts truthfully. 14 The testimony of
the child of sound mind with the capacity to perceive and make
known the perception can be believed in the absence of any
showing of an improper motive to testify. 15 Once it is established
that the child fully understands the character and nature of an
oath, the testimony is given full credence. (Moya II, Notes and
Cases in Remedial Law Vol IV, (Evidence)(Per A.M. No. 19-08-15-
SC, effective May 1, 2020) pp. 172-173, 2020 Ed.]

14. In a criminal case for Murder filed against Erika, the

prosecution presented Chelle as an eyewitness to the killing of Ly.
Chelle testified that while the three of them were on board a boat,
Erika shot Ly with a .45 caliber pistol and threw both the gun and
the body of Ly into the sea. Efforts to retrieve the gun and the
body of Ly were unsuccessful. Evidence was likewise introduced to
prove that Ly was thrown in a shark-infested area. Erika consulted
her nephew, Ted, a recent law school graduate who is reviewing
for the Bar examinations. Confident of an acquittal, Ted
recommended that Erika file a demurrer to evidence because: 1)
there is no corpus delicti due to the failure to recover the gun and
the body of Ly; and 2) the prosecution failed to prove that Erika
fired the gun due to the lack of a paraffin test. Is Ted correct?
Discuss.

SUGGESTED ANSWER:

No. In People vs. Briones, G.R. No. 226486, 22 January 2020,

citing People vs. Tuniaco, the Supreme Court ruled that the

14Section 21(b), Rule 130, Rules of Court.

15People vs. Gacho, 124 SCRA 677 (23 September 1983).

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presentation of the murder weapon is not indispensable to prove

the corpus delicti, as its physical existence is not an element of
murder. To prove the corpus delicti, the prosecution only needs to
show that: (a) a certain result has been established and (b) some
person is criminally responsible for it. Further, in the same case
the Supreme Court citing People vs. De Guzman, ruled that
paraffin testing is conclusive only as to the presence of nitrate
particles in a person, but not as to its source, such as firing from a
gun. By itself, paraffin testing only indicates a possibility, not
infallibility, that a person has fired a gun.

15. While relaxing one Sunday afternoon, Kesh suddenly

felt sick. While she was on the verge of losing consciousness,
Kesh called for Robert, her personal nurse, who was told: “Call Dr.
Nancy forthwith!” Robert asked Kesh about what happened and
Kesh further relayed: “I’m probably going to meet my Creator! I
ate the instant noodles prepared by my husband last night and I
think he put poison in it!” The following day, Kesh passed away.
The certificate of death issued by the medico-legal officer who
conducted the autopsy reflected the cause of her death as
aneurysm or rupture of a blood vessel. Later, the husband of Kesh
was prosecuted for Murder. During trial and apart from the
medico-legal certificate, the prosecution also offered in evidence
the testimony of Robert to prove the utterance of Kesh. Is the
statement of Kesh admissible as a dying declaration?
Explain.

SUGGESTED ANSWER:

Yes. For a dying declaration to constitute as an exception to

the hearsay evidence rule,16 four (4) conditions must concur: (a)
the declaration must concern the cause and surrounding
circumstances of the declarant’s death; (b) that at the time the
declaration was made, the declarant is conscious of his impending
death; (c) the declarant was competent as a witness; and (d) the
declaration is offered in a criminal case for Homicide, Murder, or
Parricide where the declarant is the victim. 17 [People vs.
Palanas, 759 SCRA 318 (17 June 2015)(First Division)
[Perlas-Bernabe, J.]; People vs. Rarugal alias “Amay
Bisaya,” G.R. No. 188603 (16 January 2013)(First Division)
[Leonardo-De Castro, J.].] This is because a dying declaration is
an evidence of the highest order; it is entitled to the utmost
credence on the premise that no person who knows of his
impending death would make a careless and false accusation.18
16Evidence is hearsay when its probative force depends in whole or in part on the competency and credibility of
some persons other than the witness by whom it is sought to produce. (See Espineli vs. People, G.R. No. 179535,
9 June 2014; See also Section 36, Rule 130 of the Rules of Court.).
17People vs. Salafranca, 666 SCRA 501 (22 February 2012).
18People vs. Sanchez, 622 SCRA 548 (29 June 2010); People vs. Cortezano, 425 Phil. 696 (2002); People vs.
Cabtalan, 666 SCRA 174 (15 February 2012); People vs. Cerilla, 564 Phil. 230 (2007).

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Further, the declaration was made in extremity, when the

party is at the point of death and when every motive of falsehood
is silenced and the mind is induced by the most powerful
considerations to speak the truth, the law deems this as a
situation so solemn and awful as creating an obligation equal to
that which is imposed by an oath administered in court. 19 (People
vs. Palanas, G.R. No. 214453, 17 June 2015)(First Division)
[Perlas-Bernabe, J.].(Rule 130, Sec. 38, RROE)(Moya, II pp.
180-181, Bar Reviewer in Remedial Law Syllabus Based, Vol. IV,
[Evidence], 2021 Ed.)(Moya II, pp. 555-556, Pre-Week Reviewer in
Remedial Law, 2023 Ed.)

In this case, all the requisites are present, thus the

statement of Kesh is admissible as a dying declaration.

16. Vangie filed an action for compulsory recognition with

prayer for support against Jay, her putative father. During trial,
she presented and identified the following documents on the
witness stand: 1) the birth certificate of Vangie reflecting Jay as
the father of Vangie per information supplied by the mother of
Vangie, but was unsigned by Jay; and 2) letters from the siblings
of Jay, addressed to private schools where Vangie was enrolled,
which attested that Jay is the father of Vangie and that he
regularly supports her education. Rule on the admissibility
and sufficiency of the documents as evidence of acts or
declarations about pedigree. Explain briefly.

SUGGESTED ANSWER:

As to admissibility, the birth certificate is admissible while

the letters from the siblings of Jay are not. An act or declaration
about pedigree is admissible when: (a) the actor or declarant is
dead or unable to testify; (b) the act or declaration is made by a
person related to the subject by birth or marriage; (c) the
relationship between the declarant or the actor and the subject is
shown by evidence other than such act or declaration; and (d) the
act or declaration was made ante litem motam, or prior to the
controversy.20 (Tandog, et al. vs. Macapagal, et al., G.R. No.
144208, 11 September 2007)(First Division)[Sandoval-
Gutierrez, J.].

Filiation proceedings are usually filed not just to adjudicate

paternity but also to secure a legal right associated with paternity,
such as citizenship,21 support or inheritance. The burden of proving
19Citing United States vs. Gil, 13 Phil. 530 (1909); People vs. Saliling, 161 Phil. 559 (1976).
20 Regalado, Remedial Law Compedium, 1997 edition, p. 646.
21 See Tecson vs. COMELEC, 424 SCRA 277 (3 March 2004); Co vs. Electoral Tribunal of the House of
Representatives, 199 SCRA 692 (30 July 1991); Board of Commissioners (CID) vs. Dela Rosa, 197 SCRA 854 (31

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paternity is on the person who alleges that the putative father is

the biological father of the child. (Herrera vs. Alba, G.R. No.
148220, 15 June 2005)(First Division)[Carpio, J.].

In this case, the birth certificate being a public document can

be admitted as evidence while the letters are considered hearsay
and therefore inadmissible. As to the sufficiency both documents
are insufficient because the unsigned birth certificate does not
prove that Jay recognized Vangie as his daughter. The letters from
the siblings of Jay being hearsay is not sufficient to prove filiation.
(Moya, II pp. 192-193, Bar Reviewer in Remedial Law Syllabus
Based, Vol. IV, [Evidence], 2021 Ed.) (Moya II, pp. 562-563, Pre-
Week Reviewer in Remedial Law, 2023 Ed.) [Sec. 41, Rule 130,
RROE]

May 1991).

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