OCTOBER BAR REVIEW PROGRAM

PHILIPPINE SOCIAL JUSTICE FOUNDATION, INC.

LEX REVIEWS AND SEMINARS, INC.

NATIONAL BAR REVIEW CENTER

(Prof. SAMSON S. ALCANTARA- Review Director)

 

OCTOBER BAR REVIEW PROGRAM

 

Multiple Choice Questions (MCQs) Mock BAR Examinations

Based on Supreme Court Syllabi and

Lectures on Trial Memorandum and Legal Opinion

Preparation including Practical Exercises

 

 

October 8, 2011 (Saturday)

            8:00-6:00 p.m.                            Trial Memorandum and Legal                     Judge Vivencio S. Baclig

                                                                   Opinion Preparation         

 

October 9, 2011 (Sunday)

            8:00-6:00 p.m.                            Trial Memorandum and Legal                Commissioner Rolando B. Faller

                                                                                 Opinion Preparation 

 

October 15, 2011 (Saturday)

            8:00-6:00 p.m.                               Commercial Law                                       Prof. Minda C. Gapuz                       

 

October 16, 2011 (Sunday)

            8:00 - 12:30 p.m.                              Civil Procedure                                           Dean Lope E. Feble

            1:30 -  6:00 p.m.                       Provisional Remedies                                 Judge Carlito B. Calpatura

                                                                       Special Civil Actions

                                                                       Special Proceedings 

 

October 22, 2011 (Saturday)

            8:00 - 6:00 p.m.                                     Civil Law                                        Prof. Rhett Emmanuel C. Serfino

 

October 23, 2011 (Sunday)

            8:00 - 12:30 p.m.                      Legal Ethics and Legal Forms                      Prof. Carmencita C. Dabu

            1:30 -  6:00 p.m.                                 Local Taxation

                                                                       Tariff and Customs Code

                                                                                  Tax Remedies

 

October 24, 2011 (Monday)

            8:00 - 12:30 p.m.                                 Labor Law                            Exec. Labor Arbiter Generoso V. Santos

            1:30 -   6:00 p.m                             Taxation (NIRC)                                  Prof. Virginia Jeannie P. Lim

 

October 29, 2011 (Saturday)

            8:00 - 12:30 p.m.                               Political Law                                        Prof. Noel T. Tiampong

            1:30 -   6:00 p.m.                              Labor Law                            Prof. Samson S. Alcantara

                                                                                 

October 30, 2011 (Sunday)             

            8:00 - 12:30 p.m.                              Criminal Law                                          Prof. Pedro T. Dabu, Jr.

            1:30 -   6:00 p.m.                      Criminal Procedure                                       Prof. Christian G. Villasis

                                                                                  Evidence

                 

Venue: Emilio Aguinaldo College, UN Avenue, Manila

Contact Nos.: 521-6984/5264791/4980382 (Marlene)

Review Fee: P6,500.00

 

 

Law students who want to know more about answering MCQs and preparation of Trial Memorandum and Legal Opinion are most welcome to attend the Program.

 

NEWLY-DISCOVERED EVIDENCE

Evidence, to be considered newly discovered, must be one that could not, by the exercise of due diligence, have been discovered before the trial in the court below.

The determinative test is the presence of due or reasonable diligence to locate the thing to be used as evidence in the trial.  

For new trial to be granted on the ground of newly discovered evidence, the concurrence of the following conditions must obtain: (a) the evidence must have been discovered after trial; (b) the evidence could not have been discovered at the trial even with the exercise of reasonable diligence; (c) the evidence is material, not merely cumulative, corroborative, or impeaching; and (d) the evidence must affect the merits of the case and produce a different result if admitted.  (BRIONES vs. PEOPLE, G.R. No. June 5, 2009, Second Division, Brion, J.).

JURISDICTION OF HLURB

Section 5 of E.O. No. 648 or the law Reorganizing The Human Settlements Regulatory Commission (Predecessor of The HLRB), enacted on February 7, 1981, specifically mandates the HLURB Board of Commissioners to adopt rules of procedure for the conduct of its business and perform such functions necessary for the effective discharge thereof. Such grant of power necessary to carry out its functions has been held to be an adequate source of authority to delegate a particular function, unless, by express provision of the Act or by implication, it has been withheld.

For this reason, the jurisdiction of the HLURB to regulate the real estate business is broad enough to include jurisdiction over a complaint for annulment of foreclosure sale and mortgage and the grant of incidental reliefs such as a CDO.  Even Presidential Decree No. 957, "The Subdivision and Condominium Buyers Protective Decree," authorizes the HLURB as successor of the National Housing Authority to issue CDOs in relevant cases (GSIS vs Board of Commisioners, G.R. No. 180062, May 5, 2010, CARPIO MORALES, J.).

THE CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized” (Article III, Section 2 of the 1987 Philippine Constitution).

EFFECT OF A NOTARIZED DOCUMENT

An improperly notarized document cannot be considered a public document and will not enjoy the presumption of its due execution and authenticity (DELA RAMA vs. PAPA, G.R. No. 142309, January 30, 2009, Second Division, Tinga, J.). 

Be that as it may, while notarized document enjoys the presumption of regularity, the fact that a deed is notarized is not guarantee of the validity of its contents (SAN JUAN vs. OFFRIL, G.R. No. 154609, April 24, 2009, Second Division, Tinga, J.).           

CARDINAL RULE IN INTERPRETING CONTRACTS

The cardinal rule in the interpretation of contracts is embodied in the first paragraph of Article 1370 of the Civil Code: "[i]f the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control."

This provision is akin to the "plain meaning rule" applied by Pennsylvania courts, which assumes that the intent of the parties to an instrument is "embodied in the writing itself, and when the words are clear and unambiguous the intent is to be discovered only from the express language of the agreement."

It also resembles the "four corners" rule, a principle which allows courts in some cases to search beneath the semantic surface for clues to meaning. A court's purpose in examining a contract is to interpret the intent of the contracting parties, as objectively manifested by them.

The process of interpreting a contract requires the court to make a preliminary inquiry as to whether the contract before it is ambiguous. A contract provision is ambiguous if it is susceptible of two reasonable alternative interpretations.

Where the written terms of the contract are not ambiguous and can only be read one way, the court will interpret the contract as a matter of law.

If the contract is determined to be ambiguous, then the interpretation of the contract is left to the court, to resolve the ambiguity in the light of the intrinsic evidence (Abad v. Goldloop Properties, Inc., 521 SCRA 131, 143-145 (2007) cited in Benguet Corporation, et al. v. Cesar Cabildo^, G.R. No. 151402, August 22, 2008).

INCONSISTENCY BETWEEN THE AFFIDAVIT AND TESTIMONY OF A WITNESS

This Court is mindful of the rule that if there is an inconsistency between the affidavit and the testimony of a witness, the latter should be given more weight since affidavits being taken ex-parte are usually incomplete and inaccurate. Corollary to this is the doctrine that, where the discrepancies are irreconcilable and unexplained and they dwell on material points, such inconsistencies necessarily discredit the veracity of the witness' claim (People v. Villanueva, Jr., G.R. No. 187152, 22 July 2009, 593 SCRA 523, 541-542; People v. Tampon, 327 Phil. 729, 738 (1996); People v. Aniscal, G.R. No. 103395, 22 November 1993, 228 SCRA 101, 112 cited in PEOPLE OF THE PHILIPPINES vs. JONEL FALABRICA SERENAS, G.R. No. 188124, June 29, 2010, PEREZ, J.).

CRIMINAL PROCEDURE: PRESUMPTION OF INNOCENCE

 The Constitution mandates that an accused in a criminal case shall be presumed innocent until the contrary is proven beyond reasonable doubt. The prosecution is laden with the burden to overcome such presumption of innocence by presenting the quantum of evidence required.

Consequently, courts are required to put the prosecution evidence through the crucible of a severe testing, and the constitutional right to presumption of innocence requires them to take a more than casual consideration of every circumstance or doubt favoring the innocence of the accused (People v. Santos, Jr., G.R. No. 175593, October 17, 2007, 536 SCRA 489, 500, citing People v. Tan, 432 Phil. 171, 182 (2002) cited in People vs de Guzman y Danzil, G.R. No. 186498, March 26, 2010, Nachura J.).

THE EFFECT OF A PARTY’S RELIANCE ON THE CLERK OF COURT’S INSUFFICIENT ASSESSMENT OF THE DOCKET FEES

Filing the appropriate initiatory pleading and the payment of the prescribed docket fees vest a trial court with jurisdiction over the subject matter (Sun Insurance Office, Ltd. v. Asuncion, G.R. Nos. 79937-38, February 13, 1989, 170 SCRA 274, 285). 

If the party filing the case paid less than the correct amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility of making a deficiency assessment lies with the same clerk of court. In such a case, the lower court concerned will not automatically lose jurisdiction, because of a party’s reliance on the clerk of court’s insufficient assessment of the docket fees (Rivera v. Del Rosario, G.R. No. 144934, January 15, 2004, 419 SCRA 626, 635). 

As "every citizen has the right to assume and trust that a public officer charged by law with certain duties knows his duties and performs them in accordance with law," the party filing the case cannot be penalized with the clerk of court’s insufficient assessment (Ayala Land, Inc. v. Spouses Carpo, 399 Phil. 327, 334 (2000), citing Segovia v. Barrios, 75 Phil. 764, 767 (1946). However, the party concerned will be required to pay the deficiency (Fil-Estate Golf and Development, Inc. v. Navarro, G.R. No. 152575, June 29, 2007, 526 SCRA 51, 61 cited in MONTAÑER vs. SHARI’A DISTRICT COURT, G.R. No. 174975, January 20, 2009, First Division, Puno, C.J.).

JURISDICTION OVER THE NATURE OF THE ACTION AND ITS SUBJECT MATTER THEREOF DOES NOT DEPEND UPON THE DEFENSES SET FORTH IN AN ANSWER OR A MOTION TO DISMISS

 Jurisdiction of a court over the nature of the action and its subject matter does not depend upon the defenses set forth in an answer (Salas v. Castro, G.R. No. 100416, December 2, 1992, 216 SCRA 198, 204) or a motion to dismiss (Hilado v. Chavez, G.R. No. 134742, September 22, 2004, 438 SCRA 623, 641).

Otherwise, jurisdiction would depend almost entirely on the defendant or result in having "a case either thrown out of court or its proceedings unduly delayed by simple stratagem. Indeed, the "defense of lack of jurisdiction which is dependent on a question of fact does not render the court to lose or be deprived of its jurisdiction" (Salas v. Castro, supra). 

The same rationale applies to an answer with a motion to dismiss (Mamadsual v. Moson, G.R. No. 92557, September 27, 1990, 190 SCRA 82, 87 cited in MONTAÑER vs. SHARI’A DISTRICT COURT, G.R. No. 174975, January 20, 2009, First Division, Puno, C.J.).

DIFFERENCE BETWEEN QUESTION OF LAW AND QUESTION OF FACT

Whether a determinative question is one of law or of fact depends on the nature of the dispute.

A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain given set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.

A question of fact obtains when the doubt or difference arises as to the truth or falsehood of facts or when the query invites the calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole, and the probability of the situation (IRENE MARCOS-ARANETA, et al. vs. COURT OF APPEALS et al. G.R. No. 154096, August 22, 2008, Second Division, Velasco, Jr., J.).

WAYS AND EFFECT OF FORUM SHOPPING

Forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action, but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata).

If the forum shopping is not considered willful and deliberate, the subsequent case shall be dismissed without prejudice, on the ground of either litis pendentia or res judicata. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice (CHUA vs. METROPOLITAN BANK & TRUST CO. G.R. No. 182311, August 19, 2009, Third Division, Chico-Nazario, J.).

FORUM SHOPPING

Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also involve the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. Forum shopping exists where the elements of litis pendentia are present, and where a final judgment in one case will amount to res judicata in the other. The elements of forum shopping are: (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. (Cruz v. Caraos, G.R. No. 138208, April 23, 2007, 521 SCRA 510, 520-521, citing Government Service Insurance System v. Bengson Commercial Buildings, Inc., 426 Phil. 111, 125 (2002). The elements of res judicita are: (a) the former judgment must be final; (b) the court which rendered judgment had jurisdiction over the parties and the subject matter; (c) it must be a judgment on the merits; and (d) there must be, between the first and second actions, identity of parties, subject matter, and cause of action. (Ayala Land, Inc. v. Valisno, 381 Phil. 518, 528 (2000) cited in PEOPLE OF THE PHILIPPINES, vs. JOSEPH "JOJO" V. GREY, G.R. No. 180109, July 26, 2010, NACHURA, J.). 

Put differently, forum shopping exists when a party repeatedly avails himself of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other court.

Ultimately, what is truly important in determining whether forum shopping exists or not is the vexation caused the courts and party-litigant by a party who asks different courts to rule on the same or related causes and/or to grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issue Forum-shopping exists where the elements of litis pendentia are present, namely: (a) identity of parties or at least such as representing the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amounts to res judicata in the other (MALABANAN vs. RURAL BANK OF CABUYAO, INC. G.R. No. 163495, May 8, 2009, Second Division, Tinga, J.).

DOCTRINE OF PRIMARY JURISDICTION

The doctrine of primary jurisdiction precludes the courts from resolving a controversy over which jurisdiction has initially been lodged with an administrative body of special competence. For instance, in agrarian reform cases, jurisdiction is vested in the Department of Agrarian Reform (DAR); more specifically, in the Department of Agrarian Reform Adjudication Board (DARAB). (SPOUSES JESUS FAJARDO and EMER FAJARDO vs. ANITA R. FLORES, G.R. No. 167891, January 15, 2010, NACHURA, J.).

PRINCIPLE OF JUDICIAL HIERARCHY OF COURTS

The Regional Trial Courts, Court of Appeals and the Supreme Court have original concurrent jurisdiction over petitions for certiorari; the rule on hierarchy of courts determines the venue of recourses to these courts. In original petitions for certiorari, the Supreme Court will not directly entertain this special civil action unless the redress desired cannot be obtained elsewhere based on exceptional and compelling circumstances justifying immediate resort to the Supreme Court (Audi AG v. Mejia, G.R. No. 167533, July 27, 2007, 528 SCRA 378, 384-385; De los Reyes v. People, G.R. No. 138297, January 27, 2006, 480 SCRA 294, 297; and Santos v. Cruz, G.R. Nos. 170096 and 170097, March 3, 2006, 484 SCRA 66, 75 cited in CHAMBER OF REAL ESTATE AND BUILDERS' ASSOCIATIONS, INC. (CREBA) vs. ENERGY REGULATORY COMMISSION (ERC) and MANILA ELECTRIC COMPANY (MERALCO), G.R. No. 174697, July 8, 2010, BRION, J.).

Parenthetically, a direct resort to the Supreme Court in a petition for certiorari is incorrect for it violates the hierarchy of courts (Pacoy v. Cajigal, G.R. No. 157472, 28 September 2007, 534 SCRA 338, 346). In other words, a regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level courts should be filed in the RTC and those against the latter should be filed in the Court of Appeals (Chavez v. National Housing Authority, G.R. No. 164527, 15 August 2007, 530 SCRA 235, 285 citing People v. Cuaresma, G.R. No. 133250, 9 July 2002, 384 SCRA 152). 

This rule, however, may be relaxed when pure questions of law are raised. A question of law exists when the doubt or difference centers on what the law is on a certain state of facts. There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence. The resolution of the issue must rest solely on what the law provides on the given set of circumstances (Morales v. Skills International Company, G.R. No. 149285, 30 August 2006, 500 SCRA 186, 194 citing Microsoft Corporation v. Maxicorp, Inc., G.R. No. 140946, 13 September 2004, 438 SCRA 224 cited in MIAQUE vs. PATAG, G.R. Nos. 170609-13, January 30, 2009, First Division, Corona, J.).

THE POWER AND AUTHORITY TO PROMULGATE RULES CONCERNING PLEADING, PRACTICE AND PROCEDURE IN ALL COURTS NOW BELONG SOLELY TO THE SUPREME COURT

In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Fees, A.M. No. 08-2-01-0, February 11, 2010, the Court ruled that the provision in the Charter of the GSIS, i.e., Section 39 of Republic Act No. 8291, which exempts it from "all taxes, assessments, fees, charges or duties of all kinds," cannot operate to exempt it from the payment of legal fees. This was because, unlike the 1935 and 1973 Constitutions, which empowered Congress to repeal, alter or supplement the rules of the Supreme Court concerning pleading, practice and procedure, the 1987 Constitution removed this power from Congress. Hence, the Supreme Court now has the sole authority to promulgate rules concerning pleading, practice and procedure in all courts. In said case, the Court ruled that:

“The separation of powers among the three co-equal branches of our government has erected an impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this Court. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by this Court. Viewed from this perspective, the claim of a legislative grant of exemption from the payment of legal fees under Section 39 of RA 8291 necessarily fails.

Congress could not have carved out an exemption for the GSIS from the payment of legal fees without transgressing another equally important institutional safeguard of the Court's independence − fiscal autonomy. Fiscal autonomy recognizes the power and authority of the Court to levy, assess and collect fees, including legal fees. Moreover, legal fees under Rule 141 have two basic components, the Judiciary Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). The laws which established the JDF and the SAJF expressly declare the identical purpose of these funds to "guarantee the independence of the Judiciary as mandated by the Constitution and public policy." Legal fees therefore do not only constitute a vital source of the Court's financial resources but also comprise an essential element of the Court's fiscal independence. Any exemption from the payment of legal fees granted by Congress to government-owned or controlled corporations and local government units will necessarily reduce the JDF and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Court's guaranteed fiscal autonomy and erodes its independence” (emphasis supplied). In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Fees. (GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) vs. HEIRS OF FERNANDO F. CABALLERO, G.R. Nos. 158090, October 4, 2010, PERALTA, J.).