2005 BAR EXAMINATIONS
IN REMEDIAL LAW
BAR EXAMINATIONS 2005
REMEDIAL LAW
25 September 2005 8 A.M. — 12 Noon
INSTRUCTIONS
This questionnaire consists of eighteen (18) numbers contained in ten
(10) pages. Read each question very carefully. Answer legibly, clearly
and concisely. Start each number on a separate page; an answer to a
sub-question under the same number may be written continuously on the
same and immediately succeeding pages until completed. Do not repeat
the question.
HAND IN YOUR
NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!!
(Sgd.) Romeo J. Callejo, Sr.
Chairman
2005 Bar Examination Committee
PLEASE CHECK THE NUMBER OF PAGES IN
THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE
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REMEDIAL LAW
- I -
a) Under Article 1144 of the New Civil Code, an action upon a judgment
must be brought within 10 years from the time the right of action
accrues. Is this provision applicable to an action filed in the
Philippines to enforce a foreign judgment? Explain.
b) May the aggrieved party file a petition for certiorari in the
Supreme Court under Rule 65 of the 1997 Rules of Civil Procedure
instead of filing a petition for review on certiorari under Rule 45
thereof for the nullification of a decision of the Court of Appeals in
the exercise either of its original or appellate jurisdiction? Explain.
c) May a private document be offered and admitted in evidence both as
documentary evidence and as object evidence? Explain.
d) Distinguish a derivative suit from a class suit.
e) When may the trial court order that the testimony of a child be
taken by live-link television? Explain. (10%)
- II -
(1.) While Marietta was in her place of work in Makati City, her
estranged husband Carlo barged into her house in Parañaque City,
abducted their six-year old son, Percival, and brought the child to his
hometown in Baguio City. Despite Marietta’s pleas, Carlo refused to
return their child. Marietta, through counsel, filed a petition for
habeas corpus against Carlo in the Court of Appeals in Manila to compel
him to produce their son before the court and for her to regain
custody. She alleged in the petition that despite her efforts, she
could no longer locate her son.
In his comment, Carlo alleged that the petition was erroneously filed
in the Court of Appeals as the same should have been filed in the
Family Court in Baguio City which, under Republic Act No. 8369, has
exclusive jurisdiction over the petition. Marietta replied that under
Rule 102 of the Rules of Court, as amended, the petition may be filed
in the Court of Appeals and if granted, the writ of habeas corpus shall
be enforceable anywhere in the Philippines.
Whose contention is correct? Explain. (5%)
(2.) Under Republic Act No. 8353, one may be charged with and found
guilty of qualified rape if he knew on or before the commission of the
crime that he is afflicted with Human Immuno-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is transmitted to the
victim.
Under Section 17(a) of Republic Act No. 8504 the court may compel the
accused to submit himself to a blood test where blood samples would be
extracted from his veins to determine whether he has HIV.
a)
Are the rights of the accused to be presumed innocent of the crime
charged, to privacy, and against self-incrimination violated by such
compulsory testing? Explain.
b)
If the result of such test shows that he is HIV positive, and the
prosecution offers such result in evidence to prove the qualifying
circumstance under the Information for qualified rape, should the court
reject such result on the ground that it is the fruit of a poisonous
tree? Explain. (8%)
- III -
Perry is a resident of Manila, while Ricky and Marvin are residents of
Batangas City. They are the co-owners of a parcel of residential land
located in Pasay City with an assessed value of P100,000.00. Perry
borrowed P100,000.00 from Ricky which he promised to pay on or before
December 1, 2004. However, Perry failed to pay his loan. Perry also
rejected Ricky and Marvin’s proposal to partition the property.
Ricky filed a complaint against Perry and Marvin in the Regional Trial
Court of Pasay City for the partition of the property. He also
incorporated in his complaint his action against Perry for the
collection of the latter’s P100,000.00 loan, plus interests and
attorney’s fees.
State with reasons whether it was proper for Ricky to join his causes
of action in his complaint for partition against Perry and Marvin in
the Regional Trial Court of Pasay City. (5%)
- IV -
Raphael, a warehouseman, filed a complaint against V Corporation, X
Corporation and Y Corporation to compel them to interplead. He alleged
therein that the three corporations claimed title and right of
possession over the goods deposited in his warehouse and that he was
uncertain which of them was entitled to the goods. After due
proceedings, judgment was rendered by the court declaring that X
Corporation was entitled to the goods. The decision became final and
executory.
Raphael filed a complaint against X Corporation for the payment of
P100,000.00 for storage charges and other advances for the goods. X
Corporation filed a motion to dismiss the complaint on the ground of
res judicata. X Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his claim for storage
fees and advances and that for his failure he was barred from
interposing his claim. Raphael replied that he could not have claimed
storage fees and other advances in his complaint for interpleader
because he was not yet certain as to who was liable therefor.
Resolve the motion with reasons. (4%)
- V -
(1.) After Lulu’s death, her heirs brought her last will to a lawyer to
obtain their respective shares in the estate. The lawyer prepared a
deed of partition distributing Lulu’s estate in accordance with the
terms of her will. Is the act of the lawyer correct? Why? (2%)
(2.) Nestor died intestate in 2003, leaving no debts. How may his
estate be settled by his heirs who are of legal age and have legal
capacity? Explain. (2%)
(3.) State the rule on venue in judicial settlement of estate of
deceased persons. (2%)
- VI -
While cruising on a highway, a taxicab driven by Mans hit an electric
post. As a result thereof, its passenger, Jovy, suffered serious
injuries. Mans was subsequently charged before the Municipal Trial
Court with reckless imprudence resulting in serious physical injuries.
Thereafter, Jovy filed a civil action against Lourdes, the owner of the
taxicab, for breach of contract, and Mans for quasi-delict. Lourdes and
Mans filed a motion to dismiss the civil action on the ground of litis
pendentia, that is, the pendency of the civil action impliedly
instituted in the criminal action for reckless imprudence resulting in
serious physical injuries.
Resolve the motion with reasons. (4%)
- VII -
Katy filed an action against Tyrone for collection of the sum of P1
Million in the Regional Trial Court, with an ex-parte application for a
writ of preliminary attachment. Upon posting of an attachment bond, the
court granted the application and issued a writ of preliminary
attachment.
Apprehensive that Tyrone might withdraw his savings deposit with the
bank, the sheriff immediately served a notice of garnishment on the
bank to implement the writ of preliminary attachment. The following
day, the sheriff proceeded to Tyrone’s house and served him the
summons, with copies of the complaint containing the application for
writ of preliminary attachment, Katy’s affidavit, order of attachment,
writ of preliminary attachment and attachment bond.
Within fifteen (15) days from service of the summons, Tyrone filed a
motion to dismiss and to dissolve the writ of preliminary attachment on
the following grounds: (i) the court did not acquire jurisdiction over
his person because the writ was served ahead of the summons; (ii) the
writ was improperly implemented; and (iii) said writ was improvidently
issued because the obligation in question was already fully paid.
Resolve the motion with reasons. (4%)
- VIII -
In a complaint for recovery of real property, the plaintiff averred,
among others, that he is the owner of the said property by virtue of a
deed of sale executed by the defendant in his favor. Copy of the deed
of sale was appended to the complaint as Annex “A” thereof.
In his unverified answer, the defendant denied the allegation
concerning the sale of the property in question, as well as the
appended deed of sale, for lack of knowledge or information sufficient
to form a belief as to the truth thereof.
Is it proper for the court to render judgment without trial? Explain.
(4%)
- IX -
On May 12, 2005, the plaintiff filed a complaint in the Regional Trial
Court of Quezon City for the collection of P250,000.00. The defendant
filed a motion to dismiss the complaint on the ground that the court
had no jurisdiction over the action since the claimed amount of
P250,000.00 is within the exclusive jurisdiction of the Metropolitan
Trial Court of Quezon City.
Before the court could resolve the motion, the plaintiff, without leave
of court, amended his complaint to allege a new cause of action
consisting in the inclusion of an additional amount of P200,000.00,
thereby increasing his total claim to P450,000.00. The plaintiff
thereafter filed his opposition to the motion to dismiss, claiming that
the Regional Trial Court had jurisdiction over his action.
Rule on the motion of the defendant with reasons. (4%)
- X -
A obtained a money judgment against B. After the finality of the
decision, the court issued a writ of execution for the enforcement
thereof. Conformably with the said writ, the sheriff levied upon
certain properties under B’s name. C filed a third-party claim over
said properties claiming that B had already transferred the same to him.
A moved to deny the third-party claim and to hold B and C jointly and
severally liable to him for the money judgment alleging that B had
transferred said properties to C to defraud him (A).
After due hearing, the court denied the third-party claim and rendered
an amended decision declaring B and C jointly and severally liable to A
for the money judgment.
Is the ruling of the court correct? Explain. (4%)
- XI -
Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is
married to another woman living in China. Her birth certificate
indicates that Helen is the legitimate child of Tony and Eliza and that
she is a Chinese citizen.
Helen wants her birth certificate corrected by changing her filiation
from “legitimate” to “illegitimate” and her citizenship from “Chinese”
to “Filipino” because her parents were not married.
What petition should Helen file and what procedural requirements must
be observed? Explain. (5%)
- XII -
Mariano was convicted by the Regional Trial Court for raping Victoria
and meted the penalty of reclusion perpetua. While serving sentence at
the National Penitentiary, Mariano and Victoria were married. Mariano
filed a motion in said court for his release from the penitentiary on
his claim that under Republic Act No. 8353, his marriage to Victoria
extinguished the criminal action against him for rape, as well as the
penalty imposed on him. However, the court denied the motion on the
ground that it had lost jurisdiction over the case after its decision
had become final and executory.
a) Is the ruling of the court correct?
Explain.
b)
What remedy/remedies should the counsel of Mariano take to secure his
proper and most expeditious release from the National Penitentiary?
Explain. (7%)
- XIII -
Rodolfo is charged with possession of unlicensed firearms in an
Information filed in the Regional Trial Court. It was alleged therein
that Rodolfo was in possession of two unlicensed firearms: a .45
caliber and a .32 caliber.
Under Republic Act No. 8294, possession of an unlicensed .45 caliber
gun is punishable by prision mayor in its minimum period and a fine of
P30,000.00, while possession of an unlicensed .32 caliber gun is
punishable by prision correccional in its maximum period and a fine of
not less than P15,000.00.
As counsel of the accused, you intend to file a motion to quash the
Information. What ground or grounds should you invoke? Explain. (4%)
- XIV -
Police operatives of the Western Police District, Philippine National
Police, applied for a search warrant in the Regional Trial Court for
the search of the house of Juan Santos and the seizure of an
undetermined amount of shabu.
The team arrived at the house of Santos but failed to find him there.
Instead, the team found Roberto Co. The team conducted a search in the
house of Santos in the presence of Roberto Co and barangay officials
and found ten (10) grams of shabu. Roberto Co was charged in court with
illegal possession of ten grams of shabu.
Before his arraignment, Roberto Co filed a motion to quash the search
warrant on the following grounds:cralaw:red
(a) he was not the accused named in the
search warrant; and
(b) the warrant does not describe the
article to be seized with sufficient particularity. Resolve the motion
with reasons. (4%)
- XV -
For the multiple stab wounds sustained by the victim, Noel was charged
with frustrated homicide in the Regional Trial Court. Upon arraignment,
he entered a plea of guilty to said crime. Neither the court nor the
prosecution was aware that the victim had died two days earlier on
account of his stab wounds.
Because of his guilty plea, Noel was convicted of frustrated homicide
and meted the corresponding penalty. When the prosecution learned of
the victim’s death, it filed within fifteen (15) days therefrom a
motion to amend the Information to upgrade the charge from frustrated
homicide to consummated homicide. Noel opposed the motion claiming that
the admission of the amended Information would place him in double
jeopardy.
Resolve the motion with reasons. (4%)
- XVI -
Dencio barged into the house of Marcela, tied her to a chair and robbed
her of assorted pieces of jewelry and money. Dencio then brought
Candida, Marcela’s maid, to a bedroom where he raped her. Marcela could
hear Candida crying and pleading: “Huwag! Maawa ka sa akin!” After
raping Candida, Dencio fled from the house with the loot. Candida then
untied Marcela and rushed to the police station about a kilometer away
and told Police Officer Roberto Maawa that Dencio had barged into the
house of Marcela, tied the latter to a chair and robbed her of her
jewelry and money. Candida also related to the police officer that
despite her pleas, Dencio had raped her. The policeman noticed that
Candida was hysterical and on the verge of collapse. Dencio was charged
with robbery with rape. During the trial, Candida can no longer be
located.
a)
If the prosecution presents Police Officer Roberto Maawa to testify on
what Candida had told him, would such testimony of the policeman be
hearsay? Explain.
b)
If the police officer will testify that he noticed Candida to be
hysterical and on the verge of collapse, would such testimony be
considered as opinion, hence, inadmissible? Explain. (8%)
- XVII -
Explain briefly whether the Regional Trial Court may, motu proprio, take judicial notice
of the following:cralaw:red
a) The street name of methamphetamine
hydrochloride is shabu;
b) Ordinances approved by
municipalities under its territorial jurisdiction;
c) Foreign laws;
d) Rules and Regulations issued by
quasi-judicial bodies implementing statutes;
e) Rape may be committed even in public
places. (5%)
- XVIII -
Regional Director AG of the Department of Public Works and Highways was
charged with violation of Section 3(e) of Republic Act No. 3019 in the
Office of the Ombudsman. An administrative charge for gross misconduct
arising from the transaction subject matter of said criminal case was
filed against him in the same office. The Ombudsman assigned a team
composed of investigators from the Office of the Special Prosecutor and
from the Office of the Deputy Ombudsman for the Military to conduct a
joint investigation of the criminal case and the administrative case.
The team of investigators recommended to the Ombudsman that AG be
preventively suspended for a period not exceeding six (6) months on its
finding that the evidence of guilt is strong. The Ombudsman issued the
said order as recommended by the investigators.
AG moved to reconsider the order on the following grounds: (a) the
Office of the Special Prosecutor had exclusive authority to conduct a
preliminary investigation of the criminal case; (b) the order for his
preventive suspension was premature because he had yet to file his
answer to the administrative complaint and submit countervailing
evidence; and (c) he was a career executive service officer and under
Presidential Decree No. 807 (Civil Service Law), his preventive
suspension shall be for a maximum period of three months.
Resolve with reasons the motion of respondent AG. (5%)
NOTHING FOLLOWS.
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